Summary
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.
Summary of this case from Hampton v. Daybrook Fisheries, Inc.Opinion
No. 00-2930, Section "R" (2).
January 2, 2001.
ORDER AND REASONS
Before the Court is a Motion for to Sever Maintenance and Cure Claims and for an Expedited Trial of the Maintenance and Cure Issues. For the reasons stated below, the Court grants' the motion.
II. DISCUSSION
Plaintiff, a seaman, seeks severance of his maintenance and cure claim from the rest of his complaint and for an expedited trial of these claims because he contends that his doctor has recommended that he undergo surgery. The recommended surgery consists of a lumbar discectomy and nerve root decompression of the L4-5 and L5-S1 levels and a posterior lumbar interbody fusion with the application of a cage system and segmental lateral stabilization with pedicle screw rods. (See Pl.'s Mem. Supp. Mot. for Severance Ex. C, Dr. Amilcar Correa's Medical Report). Defendant does not oppose severance but opposes a trial date on these issues prior to March 2001. Defendant opposes an expedited trial before an earlier date because it claims that there are doubts whether plaintiff sustained a work-related injury and is entitled to maintenance and cure. Defendant contends that it needs time to obtain and evaluate relevant medical testimony.
As stated in Tate v. American Tugs, Inc., 634 F.2d 869 (5th Cir. 1981):
While the seaman has the right, which he here chose to exercise, to join his claim for maintenance and the other general maritime law claims with his Jones Act claim, Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S. Ct. 468, 3 L.Ed.2d 368 (1959), and obtain a jury trial of all of these claims, Fitzgerald v. United States Lines, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 270 (1963), he is not obligated to do so. Pelotto v. L N Towing Co., 604 F.2d 396 (5th Cir. 1979). Indeed he may either sue separately for maintenance and cure, Pelotto v. L N Towing Co., 604 F.2d 396, 402 (5th Cir. 1979), see Pacific S.S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 74, 73 L.Ed.2d 220 (1928), or, having filed one suit, ask for severance of the maintenance claim and an expedited trial of it by the court. Caulfield v. AC D Marine, Inc., 633 F.2d 1129 at 1133 (5th Cir. 1981).
Under the reasoning of Tate, plaintiff is entitled to seek this severance. Plaintiff has not requested a jury; thus this entire matter will be heard by the Court in any event. Furthermore, the Court believes that hearing this claim separately may clarify the issues for the Jones Act trial because denying a severance may cause plaintiff to delay surgery. Such a delay would make the determination of damages in the Jones Act case speculative.
Accordingly, IT IS ORDERED that the motion for expedited trial setting of the maintenance and cure claims is GRANTED. The maintenance and cure claims are ordered severed and set for trial on April 9, 2001 at 8:30 a.m.