Opinion
CIVIL ACTION NO: 01-1913 SECTION: "R"(1)
August 26, 2002.
ORDER AND REASONS
Before the Court is plaintiff's motion to sever his maintenance and cure claim and for an expedited trial of the maintenance and cure issues. For the following reasons, the Court denies plaintiff's motion.
I. Discussion
Plaintiff, a seaman, seeks severance of his maintenance and cure claim from the rest of his complaint and for an expedited trial of this claim. Larry Hampton, plaintiff, worked for many years as a seaman for defendant Daybrook Fisheries, Inc. ("Daybrook"). On or about April 18, 2000, plaintiff was involved in an accident which allegedly caused injury to his lower back and lumbar discs and nerves. Hampton was first examined by orthopedist Dr. Chris Wiggins, who referred Hampton to neurosurgeon Dr. John McCloskey. (Pl.'s Not. to Sever Maintenance and Cure Claim, Ex. 3.) In September 2000, McCloskey determined that Hampton was not likely a surgical candidate and recommended physical therapy. (Pl.'s Mot. to Sever Maintenance and Cure Claim, Ex. 6.) Physical therapy did not alleviate plaintiff's pain, and in October 2000 Dr. McCloskey recommended surgery. (Pl.'s Mot. to Sever Maintenance and Cure Claim, Ex. 8.) Specifically, Dr. McCloskey recommended that he undergo a decompressive laminectomy at L4-L5 and probable partial diskectomy at L5. ( Id.) Daybrook, which had paid for Hampton's medical expenses, did not agree to pay for surgery. Instead, Daybrook ordered that Hampton obtain a second opinion from Dr. Troy Middleton, who opined that Hampton was not a surgical candidate. (Pl.'s Mot. to Sever Maintenance and Cure Claim, Ex. 9.) Hampton was then referred to Dr. Edward Schnitzer, who, in turn, referred Hampton to Dr. Jeffrey Laseter, a pain management physician.
Dr. Laseter treated Hampton until mid-March 2001, at which time Dr. Laseter concluded that Hampton was a surgical candidate. (Pl.'s Mot. to Sever Maintenance and Cure Claim, Ex. 13.) Meanwhile, on March 15, 2001, Dr. Schnitzer wrote a report indicating that Hampton had reached maximum medical improvement. (Pl.'s Mot. to Sever Maintenance and Cure Claim, Ex. 14.) Soon after receiving Dr. Schnitzer's report, Daybrook stopped paying Hampton's maintenance and cure. In April 2001, Dr. McCloskey again recommended surgery. (Pl.'s Mot. to Sever Maintenance and Cure Claim, Ex. 16.) Again, Daybrook refused to pay for it.
On June 13, 2002, Dr. Schnitzer retracted his earlier statement indicating that Hampton had reached maximum medical improvement. (Pl.'s Mot. to Sever Maintenance and Cure Claim, Ex. 15.) Counsel for Daybrook represented to the Court that Daybrook has reinstated maintenance effective the date of Dr. Schnitzer's retraction, and that Daybrook recently approved cure for an MRI and a physical therapy evaluation.
Plaintiff asserts that his maintenance and cure claim should be severed because Daybrook refuses to pay for surgery, and that the more remote from the date of the incident that surgery is performed, the less likely the patient is to have an optimal result. (Pl.'s Mot. to Sever Maintenance and Cure Claim, Ex. 19.) Defendant maintains that it is not obligated to pay for the surgery because other doctors have determined that it is unnecessary and unlikely to assist Hampton.
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." Tate v. American Tugs, Inc., 634 F.2d 869, 871 (5th Cir 1981); see also Martinez v. Edison Chouest Offshore, Inc., 2001 WL 6726 (E.D.La. 2001). If a seaman joins the claims, he may later "ask for severance of the maintenance claim and an expedited trial of it by the court." Tate, 634 F.2d at 871. In deciding whether to sever a maintenance and cure claim, courts consider the plaintiff's interest in an expediting trial of these issues, the proximity of the scheduled trial date, whether plaintiff has requested a jury trial, and whether the nonmoving party opposes the motion. Martinez, 2001 WL 6726; Charpentier v. Blue Streak Offshore, Inc., 1996 WL 383126 (E.D.La. 1996).
In Martinez, this Court ordered severed a maintenance and cure claim where (1) the plaintiff had not requested a jury trial, (2) the trial was not to take place for another eight months, and (3) the defendant did not oppose severing the claim provided that it be allowed at least two months to obtain and evaluate medical testimony. Martinez, 2001 WL 6726. The Charpentier court, by contrast, declined to order severed a maintenance and cure claim where the plaintiff had requested a jury trial that was scheduled to take place in fewer than four months. Charpentier, 1996 WL 383126.
Here, plaintiff has requested a jury trial that is scheduled to take place in three months, on December 2, 2002. He is already two-and-one-half years post-injury, so a delay of three more months is unlikely to change materially the outcome of any surgery. Further, defendant opposes plaintiff's motion. Given the close proximity of the trial date, the amount of time already lapsed since the injury, the time and expense of jury trials, and the likelihood that the same physicians would testify at both trials, the Court finds that efficiency and judicial economy dictate that plaintiff's motion be denied. The Court will, however, try the entire case earlier if the parties wish an earlier trial date in September or October 2002.
II. Conclusion
For the foregoing reasons, the Court denies plaintiff's motion to sever his maintenance and cure claim.