Summary
denying motion to sever premised upon the plaintiff's inability to afford surgery
Summary of this case from Bergeron v. Zurich Am. Ins. Co.Opinion
CIVIL ACTION NO: 03-2657, SECTION "R"
March 18, 2004
ORDER AND REASONS
Before the Court is the motion of plaintiff, Shane Grundstrom, to sever his maintenance and cure claim for an expedited trial. For the following reasons, the Court denies the plaintiff's motion.
I. Background
Shane Grundstrom alleges that on February 14, 2002, he was working aboard the M/V JOHNNY SR. and was struck by a cable that caused him to fall onto the deck of the vessel. He alleges that he sustained severe and disabling injuries as a result of the fall. Grundstrom asserts that at the time, he was a seaman aboard the JOHNNY SR., which was owned and operated by defendants 4-J'S Enterprise, Inc. and Callais § Sons, LLC. Grundstrom alleges that his injuries were caused by the negligence of the defendants. He now moves to sever his maintenance and cure claim for an expedited trial.
II. Discussion
The Fifth Circuit has held that although a seaman has the right to join a claim for maintenance and cure with a claim brought pursuant to the Jones Act, he is not obligated to do so. See Tate v. American Tugs, Inc., 634 F.2d 869, 871 (5th Cir. 1981) see also Cooper v. Nabors Offshore, Inc., 2003 WL 22174237, *1 (E.D.La.); Hampton v. Daybrook Fisheries, Inc., 2002 WL 1974107, *2 (E.D.La.); Martinez v. Edison Chouest Offshore, Inc., 2001 WL 6726, *1 (E.D.La.). If a seaman chooses to join the claims, then, at a later time, he may request that the maintenance and cure claim be severed and tried on an expedited basis by the Court. See Cooper, 2003 WL 22174237, at *1. When deciding whether to sever a maintenance and cure claim, courts consider several factors: the plaintiff's interest in an expedited trial on these issues, the proximity of the scheduled trial date, whether the plaintiff has requested a jury trial, and whether the nonmoving party opposes the motion. See id; see also Hampton, 2002 WL 1974107, at *2; Carpentier v. Blue Streak Offshore, Inc., 1996 WL 383126, *1-*2 (E.D.La.). Other factors that courts have considered are whether a delay in the plaintiff's surgery would make a determination of damages in the Jones Act speculative and whether the same experts would have to testify in both trials. See Cooper, 2003 WL 22174237, at *1; Marine Drilling Management Co. v. Scott, 2003 WL 133218, *l (E.D.La.); Hampton, 2002 WL 1974107, *2.
Defendants argue that once a plaintiff requests a jury trial, he may not sever his maintenance and cure claims for trial by the Court. The Court finds that relevant Fifth Circuit case law, see, e.g., Tate, 634 F.2d at 871, contradicts defendants' assertion.
In his motion, plaintiff contends that he has an interest in an expedited trial of his maintenance and cure claims because his treating physician recommended that he undergo surgery. Plaintiff asserts that he cannot afford the surgery, and defendants will not authorize the surgery or pay maintenance. Plaintiff states that his medical condition becomes more painful on a daily basis. Plaintiff has requested a jury trial, and the trial is scheduled to take place in approximately six months on September 20, 2004. In addition, defendants object to the requested severance. Defendants argue that the same trier of fact should hear all of plaintiff's claims. Defendants also argue that they need time to perform and independent medical examination and conduct further discovery. Further, it is likely that the same experts would have to testify in both trials regarding the plaintiff's damages.
The Court notes that if it were to grant plaintiff's motion, the parties would have to conduct additional medical evaluation and discovery, which would delay the date on which the Court could schedule the expedited trial. An expedited trial in this matter therefore would not materially accelerate the adjudication of plaintiff's claims. Also, plaintiff's accident occurred over two years ago, and the litigation had been going on for approximately a year and a half before plaintiff moved to sever his maintenance and cure claims. The additional delay is not likely to materially change the outcome of any surgery. Further, if the Court denies plaintiff's motion, the same fact-finder will adjudicate all of plaintiff's claims, and the experts and other witnesses will have to testify only once.
Based on these factors, the Court concludes that efficiency and judicial economy are best served by denying plaintiff's motion. The Court will consider advancing the trial date of the entire case if either party so requests.
III. Conclusion
For the foregoing reasons, the Court denies plaintiff's motion to sever his maintenance and cure claims for expedited trial. If either party wishes to advance the trial date of all of the claims in this case, then it shall file an appropriate motion within 14 days of the date of this order.