Transoceanic Cable Ship Company, Inc. v. Bautista

Filing 86

FINDINGS OF FACT AND CONCLUSIONS OF LAW - Signed by JUDGE ALAN C. KAY on 9/5/2018. On the basis of the foregoing Findings of Fact and Conclusions of Law, the Court concludes that all of the injuries Bautista incurred in service of the C/S Decisive have reached maximum medical cure. Judgment shall issue in favor of Transoceanic and against Bautista. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
___________________________________
)
TRANSOCEANIC CABLE SHIP COMPANY LLC)
)
Plaintiff,
)
)
vs.
) Civ. No. 17-00209 ACK-KSC
)
JOSE FIESTA BAUTISTA, JR.
)
)
Defendant.
)
___________________________________)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter arises under admiralty law.

Plaintiff

Transoceanic Cable Ship Company, LLC (“Transoceanic”), which
owns the vessel C/S Decisive, filed a Complaint on May 8, 2015.
ECF No. 1.

Therein, Transoceanic sought a binding declaration

that Defendant Jose Fiesta Bautista, Jr. (“Bautista”) was no
longer entitled to the payment of maintenance and cure benefits
because any injuries Bautista had sustained while a crew member
aboard the C/S Decisive had reached maximum medical cure, see
id. at 6.1

1

Transoceanic asserted two additional bases for declaratory
relief in its Complaint, see ECF No. 1 at 6, but the parties
agreed before trial that the only issue to be determined was
that of maximum medical cure. See ECF No. 74 at 2; ECF No. 77
at 2–3.
1

The matter was tried without a jury2 on August 14–16,
2018.

The Court, having carefully considered the testimony of

the witnesses and the exhibits in the record, and pursuant to
Rule 52(a) of the Federal Rules of Civil Procedure, makes the
following Findings of Fact and Conclusions of Law.

To the

extent that a Finding of Fact constitutes a Conclusion of Law,
the Court adopts it as such.

And to the extent that a

Conclusion of Law constitutes a Finding of Fact, the Court also
adopts that assumption.

See In re Bubble Up Delaware, Inc., 684

F.2d 1259, 1262 (9th Cir. 1982) (“The fact that a court labels
determinations ‘Findings of Fact’ does not make them so if they
are in reality conclusions of law.”) (citation omitted).
I.

FINDINGS OF FACT
A. The Parties
1.

At all times material, Transoceanic has been a

Delaware limited liability corporation with its principal place
of business in Eatontown, New Jersey.
2.

ECF No. 1 ¶ 1.

At all times material, Bautista has been a citizen and

resident of the City and County of Honolulu, State of Hawai‘i.
ECF No. 1 ¶ 2; ECF No. 10 ¶ 2.

Bautista was employed by

Transoceanic and served as a crew member aboard the vessel C/S
Decisive.

ECF No. 1 ¶ 8; ECF No. 10 ¶ 8.

Bautista was in

Transoceanic initially demanded a jury trial, ECF No. 18, but
the parties later stipulated to the withdrawal of that demand
and the trial of this action without a jury, ECF No. 53.
2

2

service of the C/S Decisive for a period in 2015 that included
March 15 through April 27, and ended by May 3, 2015.

See ECF

No. 1 ¶ 8; ECF No. 10 ¶ 8; Kaneshiro Tsti. Tr. 58:6–7; Bautista
Tsti. Tr. 75:2–3.
B. The Complaints and Assessments
3.

Prior to the period of his service aboard the C/S

Decisive that included March 15–April 27, 2015, Bautista was
adjudged to be 100% physically fit.
4.

Bautista Tsti. Tr. 7:20–21.

Bautista testified that, prior to the period of his

service aboard the C/S Decisive that included March 15–April 27,
2015, he had never experienced problems with his neck, lower
back, or right knee that were similar to those he complained of
at the end of and after his 2015 service.

Bautista Tsti. Tr.

7:13–21.
5.

Bautista performed physically strenuous work aboard

the C/S Decisive for twelve hours per day, and it was not
uncommon for him to experience pain as a result of his work.
Bautista Tsti. Tr. 12:2–8.
6.

Following a shipboard incident on March 15 or 16,

2015, in which a large wave knocked Bautista over, he
experienced pain but continued to work until April 26, 2015, at
which point he stayed in bed for two days due to pain.

3

Bautista

Tsti. Tr. 72:6–20, 85:11–12; see also Pl.’s Ex 4 at p. 853; Pl.’s
Ex. 2 at p. 9.
7.

During his sessions with Transoceanic’s independent

medical examiners, Drs. Kaneshiro and Scoggin, Bautista traced
his lower back complaints (but not his neck or knee complaints)
to the March 2015 incident.

Pl.’s Ex. 4 at p. 75; Pl.’s Ex. 2

at p. 9; Kaneshiro Tsti. Tr. 39:2–6, 39:21– 25; 40:1–3; Scoggin
Tsti. Tr. 119:13–18.

At trial, however, Bautista testified that

he injured his back, knee, and neck sometime before May 2, 2015,
while working for Transoceanic aboard the C/S Decisive, but was
unable to pinpoint a specific date or incident as the origin of
his complaints.

Bautista Tsti. Tr. 5:5–16, 6:14–20, 7:5–21,

8:3–10.
8.

On April 27, 2015, while aboard the C/S Decisive,

Bautista consulted with a shipboard medical professional (“MDR”)
with complaints of back pain and right knee pain.

Pl.’s Ex. 4

at pp. 67–68.
9.

On May 2, 2015, Bautista visited an emergency room in

Halifax, Canada, where he complained again of back pain and
right knee pain.
10.

Pl.’s Ex. 4 at p. 69.

On the recommendation of the MDR, Bautista flew home

to Hawai‘i on or about May 3, 2015.
3

Bautista Tsti. Tr. 74:24–

Some of the parties’ exhibits feature two or more page numbers.
Where this occurs, the Court cites to the pagination that
appears in the lower right-hand corner.
4

25, 75:2–3.

Once back in Hawai‘i, Bautista visited a Dr.

Prather on May 4, 2015.
Tr. 75:5–9.

Pl.’s Ex. 4, pp. 69–70; Bautista Tsti.

Dr. Prather recorded Bautista’s initial complaints

of back pain and right knee pain and found on physical
examination that Bautista had (inter alia) neck pain and
cervical spasm; she ordered x-rays of his cervical spine,
lumbosacral spine, and right knee.

Pl.’s Ex. 4 at pp. 69–70.

On May 7, 2015, Dr. Prather ordered MRIs of Bautista’s cervical
spine, lumbosacral spine, and right knee.

Pl.’s Ex. 4 at p. 70.

C. Treatment
11.

Between June 2015 and July 2018, Bautista made regular

visits to Dr. Nicanor Joaquin, an internist with no specialized
training in orthopedics.

Bautista Tsti. Tr. 76:1–6; Joaquin

Tsti. Tr. 30:8–25; Pl.’s Ex. 4 at pp.72–73; Pl.’s Ex. 2 at pp.
26–29, 36–53; Def.’s Ex. B.

Dr. Joaquin was Bautista’s primary

treatment provider for his back, right knee, and neck complaints
following his service aboard the C/S Decisive.

See Kaneshiro

Tsti. Tr. 50:5–6; Bautista Tsti. Tr. 76:1–6, 78:1–2.
12.

Bautista also sought treatment from Dr. Jeffrey Lee,

an orthopedist.

Bautista Tsti. Tr. 76:7–9.

On May 14, 2016,

Dr. Lee performed a right-sided L4-L5 laminotomy and discectomy
on Bautista.

Pl.’s Ex. 2 at p. 55; see also Scoggin Tsti. Tr.

114:12–17, 131:16–21; Bautista Tsti. Tr. 76:8–11.

5

13.

For the year and a half preceding trial, the extent of

Dr. Joaquin’s treatment of Bautista had been regular office
visits comprising only medication prescription and refills and
subjective symptom assessment.

Joaquin Tsti. Tr. 47:14–24,

51:11–16; 37:22–25, 38:1–14.
14.

Bautista was taking a number of medications under Dr.

Joaquin’s care.
202.

Def.’s Ex B. at p.177–784, 191–92, 194, 198,

Some of these medications were for maladies unrelated to

Bautista’s back, neck, and knee complaints.
68:15–17.

Joaquin Tsti. Tr.

All the rest were related to pain relief.

Joaquin

Tsti. Tr. 68:18–20.
15.

For well over a year before trial, Bautista had

attended physical therapy once per week.

Pl.’s Ex. 2 at p. 10;

Joaquin Tsti. Tr. 50:7–10; Scoggin Tsti. Tr. 127:11–13.

Dr.

Joaquin had no knowledge of the details of Bautista’s physical
therapy, Joaquin Tsti. Tr. 50:2–6, and appears not to have
requested, received, or studied any reports pertaining to
Bautista’s physical therapy, Joaquin Tsti. Tr. 41:7–14, 50:2–6.
16.

On August 21, 2017, Dr. James F. Scoggin, III, who

testified for Transoceanic as an expert in orthopedic surgery,
conducted an independent medical examination of Bautista.
Scoggin Tsti Tr. 111:4–7; Pl.’s Ex. 2 at p. 8.
4

Bautista stated

The first three pages of Defendant Bautista’s Exhibit B are not
Bates stamped. The Court designated these pages as pages 177–
79.
6

to Dr. Scoggin that his physical therapy comprised only
stretching and riding a stationary bicycle.

Pl.’s Ex. 2 at p.

10; Scoggin Tsti. Tr. 127:11–17.
17.

Dr. Joaquin, Bautista’s treating physician, described

Bautista’s physical therapy as “maintenance therapy.” Joaquin
Tsti. Tr. 40:25, 49:18–19.
18.

Dr. Scoggin testified that the modalities of physical

therapy in which Bautista was engaging serve no medical purpose
other than maintaining Bautista’s general physical conditioning.
Scoggin Tsti. Tr. 127:23–25, 128:1–2.
D. Independent Medical Evaluations and Expert Testimony
19.

Dr. Steven A. Kaneshiro, who testified for

Transoceanic as an expert in orthopedic surgery, examined
Bautista on March 2, 2016.
16; Pl.’s Ex. 4 at p. 67.

Kaneshiro Tsti. Tr. 33:4–13, 35:13–
Dr. Kaneshiro also reviewed

Bautista’s medical records history and took an oral medical
history from Bautista, both generally and regarding Bautista’s
claimed injuries.

Kaneshiro Tsti. Tr. 36:24–25, 37:1–11, 37:19–

22.
20.

Following his evaluation of Bautista, Dr. Kaneshiro

issued a report on March 18, 2016, that included his answers to
nine specific questions posed by Transoceanic.
at pp. 85–87.

See Pl.’s Ex. 4

All opinions given in response to those questions

7

were expressed to a reasonable degree of medical probability.
Kaneshiro Tsti. Tr. 46:25, 47:1–4.
21.

Dr. Kaneshiro concluded that, as of the date of his

examination, Bautista’s back had “not resolved or reached
maximum medical improvement.” Pl.’s Ex. 4 at p. 86.
22.

As part of his medical records review, Dr. Kaneshiro

examined an MRI scan of Bautista’s right knee, taken on May 19,
2015, and saw nothing that required additional treatment or
indicated an injury that required attention.

Kaneshiro Tsti.

Tr. 44:10–12, 44:19–21; Pl.’s Ex. 4 at p. 86.

Dr. Kaneshiro

concluded that Bautista’s right knee had resolved as of March 2,
2016, and did not require further evaluation or treatment.
Pl.’s Ex. 4 at p. 87; Kaneshiro Tsti. Tr. 45:24–25, 46:1.
23.

Dr. Kaneshiro opined that there was no objective

evidence that Bautista had suffered a neck injury.

Kaneshiro

Tsti. Tr. 42:5–8; 43:22–25, 44:1–5.
24.

In his physical examination of Bautista’s neck, back,

and lower extremities, Dr. Kaneshiro noted pain behaviors,5 but
did not at that time judge Bautista’s pain behaviors to be an

5

Dr. Kaneshiro testified that pain behaviors are verbal and
nonverbal communications by a patient that he is experiencing
pain, and that in some cases such behaviors can corroborate the
findings of the physical examination, while in others they can
indicate exaggeration of subjective pain. Kaneshiro Tsti. Tr.
35:25, 36:1–6.
8

exaggeration of his symptoms.

Pl.’s Ex. 4 at pp. 79–80, 83;

Kaneshiro Tsti. Tr. 36:9–11, 46:3–5.
25.

Dr. Scoggin examined Bautista on August 21, 2017.

Scoggin Tsti. Tr. 111:4–7; 113:4–7; Pl.’s Ex. 2 at p. 8.

Dr.

Scoggin also reviewed Bautista’s medical records and took an
oral history from Bautista.
26.

Pl.’s Ex. 2 at pp. 8–12.

Following his evaluation of Bautista, Dr. Scoggin

issued a report on November 22, 2017, that included his answers
to ten specific questions posed by Transoceanic.
2 at pp. 58–62.

See Pl.’s Ex.

All opinions given in response to those

questions were expressed to a reasonable degree of medical
probability.
27.

Pl.’s Ex. 2 at p. 62.

Dr. Scoggin opined in his report that Bautista’s low

back injury had reached maximum medical improvement as of the
date of Dr. Scoggin’s examination.
Tsti. Tr. 135:2–4.

Pl.’s Ex. 2 at 59; Scoggin

In response to the question, “Does Mr.

Bautista require further medical treatment for any
injury(ies)/condition(s) caused by the shipboard accident[?]”,
Dr. Scoggin concluded that “[n]o further formal medical
treatment is indicated, necessary, or appropriate.” Pl.’s Ex. 2
at p. 60.
28.

Bautista told Dr. Scoggin that he felt his knee pain

was radiating from his low back.
Tsti. Tr. 130:24–25, 131:1.

Pl.’s Ex. 2 at p. 10; Scoggin

In his report, Dr. Scoggin stated
9

that there was no objective evidence of a right knee injury,
Pl.’s Ex. 2 at p. 59; see also Scoggin Tsti. Tr. 134:11–12, and
opined that Bautista’s right knee condition had reached maximum
medical improvement as of the date of his examination, Pl.’s Ex.
2 at p.59–60; see also Scoggin Tsti Tr. 136:23–25.
29.

Dr. Scoggin testified that further medical treatment

would not result in the betterment of Bautista’s condition.
Scoggin Tsti. Tr. 135:15–18.
30.

Like Dr. Kaneshiro, Dr. Scoggin testified that he did

not believe that Bautista had suffered a neck injury.
Tsti. Tr. 147:7–8, 148:6–7.

Scoggin

Dr. Scoggin also testified that

there were no objective injury findings as to Bautista’s neck,
and that the likeliest cause of Bautista’s neck complaints was
degenerative changes in his spine.

Scoggin Tsti. Tr. 149:25,

150:1–6.
31.

In the course of his examination of Bautista’s back,

Dr. Scoggin made six positive Waddell’s findings—i.e., findings
of subjective pain with nonanatomical causes—which made Dr.
Scoggin concerned that Bautista may have been exaggerating his
complaints.

Pl.’s Ex. 2 at 56; Scoggin Tsti. Tr. 116:4–12,

117:10, 118:7–18.
32.

On January 22, 2018, Dr. Kaneshiro reviewed Dr.

Scoggin’s written report, as well as the office notes and
operator reports by Dr. Lee (Bautista’s surgeon) and Dr. Joaquin
10

(Bautista’s primary treating provider) that were prepared
between March 2, 2016 and January 22, 2018.

Kaneshiro Tsti. Tr.

49:18–23, 50:3–6, 51:10–18.
33.

Dr. Kaneshiro then prepared an addendum to his

original evaluation report.
Ex. 5.

Kaneshiro Tsti. Tr. 50:7–12; Pl.’s

In his addendum report, Dr. Kaneshiro agreed with Dr.

Scoggin’s findings and conclusions as laid out in the latter’s
November 22, 2017 report: inter alia, that Bautista’s lower back
and right knee conditions had reached maximum medical
improvement, and that no further formal treatment was indicated,
necessary, or appropriate.

Pl.’s Ex. 5 at p. 104; Kaneshiro

Tsti. Tr. 52:4–15; Pl.’s Ex. 2 at p. 60.
34.

Upon reviewing Bautista’s additional medical records

and Dr. Scoggin’s report, Dr. Kaneshiro formed the opinion in
January 2018 that the pain behaviors he observed in March 2016
may have been indicative of symptom magnification.
Tsti. Tr. 36:13–23.

Kaneshiro

Dr. Kaneshiro noted in his testimony that a

person may magnify his symptoms either unknowingly or knowingly.
Kaneshiro Tsti. Tr. 76:22–25.
II.

CONCLUSIONS OF LAW
A. General Maritime Law
1.

This Court has jurisdiction over this matter pursuant

to 28 U.S.C. § 1333, which provides original jurisdiction over
admiralty or maritime claims, and 28 U.S.C. § 2201(a), which
11

empowers district courts to issue declaratory judgments.

Venue

is proper under 28 U.S.C. § 1391 because this Court has personal
jurisdiction over the defendant.
2.

The matter before the Court is whether the injuries

Bautista sustained while working aboard the C/S Decisive have
reached maximum medical cure.
3.

“Under principles of general maritime law, seamen are

entitled to maintenance and cure from their employer for
injuries incurred in the service of the ship[.]”

Aguilera v.

Alaska Juris F/V, O.N.569276, 535 F.3d 1007, 1009 (9th Cir.
2008) (alteration in original) (citation and internal quotation
marks omitted).

“Maintenance is the reasonable cost for food

and lodging, and cure is the reasonable cost of medical expenses
incurred by a seaman until he reaches maximum medical
improvement.” Lovell v. Master Braxton, LLC, No. CV 15-3978,
2016 WL 6819043, at *5 (E.D. La. Nov. 18, 2016) (citing Hall v.
Noble Drilling Inc., 242 F.3d 582, 586-87 (5th Cir 2001)).
B. Cure and Maximum Medical Cure
4.

A shipowner’s obligation to pay “[m]aintenance and

cure . . . extends during the period when [a seaman] is
incapacitated to do a seaman’s work and continues until he
reaches maximum medical recovery.” Vaughan v. Atkinson, 369 U.S.
527, 531 (1962).

12

5.

A seaman has reached maximum medical recovery (also

known as maximum medical cure or maximum medical improvement)
“where it is probable that further treatment will result in no
betterment in the claimant’s condition.” Rashidi v. Am.
President Lines, 96 F.3d 124, 128 (5th Cir. 1996) (citation
omitted).
6.

Treatment need not be intended to return a seaman to

work in order to be considered “curative.”

A seaman suffering

from permanent and incurable conditions is entitled to
maintenance and cure until the point his “condition has
stabilized and further progress ended short of a full recovery.”
In re RJF Int’l Corp., 354 F.3d 104, 106 (1st Cir. 2004)
(holding that where a seaman suffered a serious brain injury
which reduced his mental capacity to that of an 18–24 month old,
treatment which had the potential to provide cognitive
improvement and help the seaman cope with muscle spasticity and
contraction was “curative”); Permanente S. S. Corp. v. Martinez,
369 F.2d 297, 298 (9th Cir. 1966) (stating that maximum cure is
reached when “the seaman is well or his condition is found to be
incurable”).
7.

A shipowner’s cure obligations do not extend to paying

for treatments that are merely palliative.

See Stanovich v.

Jurlin, 227 F.2d 245, 246 (9th Cir. 1955).

Treatments that

serve only to relieve pain and suffering are not included within
13

the scope of “cure.” See Barto v. Shore Const., LLC, 801 F.3d
465, 477 (5th Cir. 2015) (citation omitted); see also Light v.
Jack’s Diving Locker, No. CIV.05-00706 BMK, 2007 WL 4321715, at
*1 (D. Haw. Dec. 11, 2007) (“A vessel’s owner is not liable for
care that is only [in]tended to reduce pain, or which is not
calculated to help cure the underlying medical condition.”)
(citing Whitman v. Miles, 387 F.3d 68, 71 (1st Cir. 2004)).
8.

Transoceanic, as the shipowner, bears the burden of

proving by a preponderance of the evidence that Bautista has
reached maximum cure in relation to the injuries he sustained in
service of the vessel.

Debbie Flo, Inc. v. Shuman, 2014 A.M.C.

840 (D.N.J. 2014) (“It is the vessel owner’s burden to prove
that MMI, or maximum cure, has been attained by the injured
seaman.”) (citing Smith v. Delaware Bay Launch Serv., Inc., 972
F. Supp. 836, 848 (D. Del. 1997)); Haney v. Miller’s Launch,
Inc., 773 F. Supp. 2d 280, 290 (E.D.N.Y. 2010) (stating that the
employer has the burden of showing the seaman has reached
maximum cure); Hedges v. Foss Mar. Co., No. 3:10-CV-05046 RBL,
2015 WL 3451347, at *5 (W.D. Wash. May 29, 2015) (collecting
cases); Zermeno v. N. Pac. Fishing, Inc., No. C16-1540RSL, 2017
WL 4843484, at *2 (W.D. Wash. Oct. 26, 2017) (“[I]t is the
shipowner’s burden to prove by a preponderance of the evidence
that plaintiff reached maximum cure . . . .”).

14

9.

“Whether a seaman has reached maximum medical cure is

a medical question[.]” Rashidi, 96 F.3d at 128 (citation
omitted).
10.

If any doubt exists as to whether a seaman is entitled

to coverage, whether particular medical treatment is necessary,
or whether maximum cure has been reached, courts generally
resolve such doubt in favor of the seaman.

See, e.g., Moore v.

The Sally J., 27 F. Supp. 2d. 1255, 1262 (W.D. Wash. 1998)
(citations omitted); see also Vaughn v. Atkinson, 369 U.S. at
532.
11.

Here, the evidence is ambiguous as to whether Bautista

suffered a right knee injury in service of the C/S Decisive.
Following Vaughn, 369 U.S. at 532, the Court resolves this
ambiguity in Bautista’s favor and concludes that Bautista did
suffer a knee injury that entitled him to maintenance and cure.
12.

The Court draws the above conclusion in light of the

fact that Bautista’s medical records reflect that he reported
knee pain while still aboard the C/S Decisive, Pl.’s Ex. 2 at p.
13; Pl.’s Ex. 4 at p. 68.
13.

This fact creates an ambiguity, even in light of the

countervailing facts that: (1) Bautista stated to Dr. Scoggin
that his knee pain radiated from his low back, Pl.’s Ex. 2 at p.
10; Scoggin Tsti. Tr. 130:24–25, 131:1; (2) Dr. Scoggin stated
unequivocally that there was no objective evidence of knee
15

injury, Pl.’s Ex. 2 at p. 59; see also Scoggin Tsti. Tr. 134:11–
12; and (3) Dr. Kaneshiro opined that he saw nothing in the
contemporaneous MRI “that would require any additional treatment
or [indicated] an injury that required attention,” Kaneshiro
Tsti. Tr. 44:19–21.
14.

The Court further concludes that Bautista suffered a

back injury in service of the C/S Decisive.

Not only does

Plaintiff not dispute this point, but Bautista complained of
back pain during the term of his service aboard the C/S
Decisive.

Pl.’s Ex. 2 at p. 13–14.

Dr. Kaneshiro opined in his

initial report that surgery was appropriate for Bautista’s low
back complaints, Pl.’s Ex. 2 at p. 87, which indicates to the
Court that Dr. Kaneshiro believed there was objective evidence
of injury.
15.

The Court concludes that Bautista’s right knee and

back injuries reached maximum medical cure as of August 21,
2017.
16.

These medical determinations were made by Dr. Scoggin,

Pl.’s Ex. 2 at 59–60; Scoggin Tsti Tr. 135:2–4, 136:23–25, and
corroborated by Dr. Kaneshiro, Pl.’s Ex. 5 at p. 104; Kaneshiro
Tsti. Tr. 52:4–15.

No medical expert testified to the contrary.

In fact, Dr. Joaquin, Bautista’s treating physician, testified
that Bautista’s lower back “has been taken care of.” Joaquin
Tsti. Tr. 8:9–10.
16

17.

Moreover, the Court notes that Bautista’s condition

appears to be stable and unlikely to change; in other words, the
Court finds by a preponderance of the evidence that further
treatment will result in no betterment of Bautista’s knee and
back conditions.
omitted).

See Rashidi, 96 F.3d at 128 (citation

Bautista’s 2018 medical records reveal virtually no

variance in his condition between January and July 2018.
Ex. B.

Def.’s

Bautista has engaged in the same course of physical

therapy for well over a year before trial, Joaquin Tsti. Tr.
50:7–10; Dr. Joaquin, Bautista’s treating physician, described
the physical therapy as “maintenance therapy,” Joaquin Tsti. Tr.
40:25, 49:18–19, and Dr. Scoggin opined that the therapy has no
medical value beyond general physical conditioning, Scoggin
Tsti. Tr. 127:23–25, 128:1–2.

This physical therapy appears to

have resulted in no improvement in Bautista’s condition.

And

for at least the year and a half prior to trial, Dr. Joaquin’s
treatment of Bautista’s ailments has been palliative rather than
curative, comprising the prescription of medications intended to
relieve pain and regular office visits at which Bautista’s
subjective symptoms are assessed.

Joaquin Tsti. Tr. 47:14–24,

51:11–16; 37:22–25, 38:1–14, 68:11–20.
18.

The Court further concludes that Bautista suffered no

neck injury during his service aboard the C/S Decisive.

17

19.

Both of the testifying expert orthopedic surgeons

concluded that Bautista suffered no neck injury at all.
Kaneshiro Tsti. Tr. 42:5–8; 43:22–25, 44:1–5; Scoggin Tsti. Tr.
147:7–8, 148:6–7.

Drs. Kaneshiro and Scoggin drew this

conclusion after examining Bautista and reviewing his medical
records.

See Kaneshiro Tsti. Tr. 35:13–16, 37:19–22; Scoggin

Tsti. Tr. 113:4–7; Pl.’s Ex. 2 at pp. 8–12.

Both testified that

there were no objective findings of neck injury, Kaneshiro Tsti.
Tr. 42:5–8; 43:22–25, 44:1–5; Scoggin Tsti. Tr. 149:25, 150:1–6,
and Dr. Scoggin opined that degenerative changes to Bautista’s
spine were the likeliest cause of his neck complaints, Scoggin
Tsti. Tr. 149:25, 150:1–6.

Bautista presented no medical expert

testimony to refute these conclusions.

Moreover, Bautista did

not make subjective complaints of neck pain until after the end
of his service aboard the C/S Decisive, Pl.’s Ex. 4 at pp. 67–
70, and was unable to link his neck complaints to any occurrence
that took place aboard ship, Bautista Tsti. Tr. 5:–16, 8:3–10.
On the basis of these facts, the Court has no doubt in
concluding that Bautista did not incur a neck injury in service
of the C/S Decisive.
20.

The Court notes that on May 4, 2015, Dr. Prather

indicated a finding of cervical spasm and assessed a cervical
strain, Pl.’s Ex. 4 at pp. 69–70.

Dr. Prather then ordered x-

rays and MRIs, including of Bautista’s cervical spine.
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Id.

Drs. Kaneshiro and Scoggin both examined the resultant imaging,
see Kaneshiro Tsti. Tr. 37:19–22; Pl.’s Ex. 2 at p. 8, and both
concluded that there was no objective evidence of neck injury,
Kaneshiro Tsti. Tr. 42:5–8, 43:22–25, 44:1–5; Scoggin Tsti. Tr.
149:25, 150:1–2.

Therefore, the Court holds in the alternative

that, in the event Bautista did suffer a neck injury on board
the C/S Decisive, any such injury no longer existed as of the
date of Dr. Scoggin’s examination.
III. SUMMARY
On the basis of the foregoing Findings of Fact and
Conclusions of Law, the Court concludes that all of the injuries
Bautista incurred in service of the C/S Decisive have reached
maximum medical cure.

Judgment shall issue in favor of

Transoceanic and against Bautista.

IT IS SO ORDERED.
DATED:

Honolulu, Hawai‘i, September 5, 2018.

________________________________
Alan C. Kay
Sr. United States District Judge

Transoceanic Cable Ship Co. v. Bautista, Civ. No. 17-00209 ACK-KSC, Findings
of Fact and Conclusions of Law.

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