Rowan v. Chem Carriers Towing LLC

Filing 106

ORDER AND REASONS denying 80 Motion for Partial Summary Judgment; denying 83 Motion to Strike the affidavit and expert report of Dr. Sledge.. Signed by Chief Judge Sarah S. Vance on 5/5/14. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM J. ROWAN

CIVIL ACTION

VERSUS

NO: 12-712

CHEM CARRIER TOWING, LLC

SECTION: R(3)

ORDER AND REASONS
Defendant Chem Carrier Towing, LLC moves for partial summary
judgment on plaintiff William J. Rowan's claim for punitive damages
for

defendant's

allegedly

plaintiff's cure demand.1

arbitrary

and

capricious

denial

of

Defendant also moves the Court to strike

the affidavit and report of plaintiff's treating physician Dr. John
Sledge.2

The Court denies defendant's motion for partial summary

judgment because plaintiff has offered sufficient evidence to
create

a

question

of

material

fact

as

to

whether

arbitrarily and capriciously denied his cure demand.

defendant
The Court

also denies defendant's motion to strike the affidavit and report
of Dr. Sledge because Federal Rule 26(a)(2)(B)'s expert report
requirement does not apply to treating physicians.

1

R. Doc. 80.

2

R. Doc. 83

I.

BACKGROUND
This is a personal injury action arising under the Jones Act,

46 U.S.C. § 30104, and general maritime law.

Plaintiff alleges

that he was injured in two accidents while working as a deckhand
for defendant.

First, on November 18, 2010, plaintiff injured his

left shoulder while working aboard the M/V Sandy B, a vessel owned
and operated by defendant.3

Plaintiff was treated by Dr. Craig

Green, who performed a left shoulder arthroscopic rotator cuff
repair.

Plaintiff re-injured his left shoulder on May 29, 2011

while working aboard the M/V George Batna, another vessel owned and
operated by defendant.4

Once again, Dr. Green performed a left

shoulder surgery to repair the damage. Plaintiff also treated with
orthopedic surgeon Dr. Felix Savoie, who performed a left shoulder
revision surgery on June 5, 2012.5
Plaintiff contends that the May 29, 2011 accident also caused
a thoracic spine injury "and/or aggravation of a pre-existing
thoracic spine condition."6

Plaintiff underwent thoracic spine

surgery on November 26, 2013 and argues that defendant is liable
for punitive damages for its allegedly arbitrary and capricious

3

R. Doc. 80-3 at 1.

4

Id.

5

Id.

6

R. Doc. 82-24 at 1.
2

decision to deny payment for the surgery.7
Plaintiff's thoracic spine condition was first identified by
Dr. Dan Hodges, a pain physician who treated plaintiff at the
referral

of

defense

counsel.

Dr.

Hodges

first

noticed

an

abnormality on plaintiff's thoracic spine on January 9, 2013.8
Upon noticing this abnormality, Dr. Hodges ordered a thoracic spine
MRI.

The

thoracic

spine

MRI

showed

an

abnormality

within

plaintiff's thoracic cord "most compatible with an arachnoid or
epidermoid cyst."9

The MRI also depicted herniations at T4-5, T5-

6, and T6-7, "all indenting [the] ventral thoracic cord."10

After

reviewing the thoracic spine MRI, Dr. Hodges referred plaintiff to
orthopedic surgeon Dr. John Sledge.
Upon learning of plaintiff's thoracic condition, defendant
scheduled an independent medical examination (IME) with Dr. Ralph
Katz on June 19, 2013.
records,

interviewed

examination.

Dr. Katz reviewed plaintiff's medical
plaintiff,

and

performed

a

physical

In response to defense counsel's query "Can Mr.

Rowan's November 18, 2010, or May 29, 2011, incident be linked to
the back or neck pain to a degree of medical certainty?," Dr. Katz
responded "I do not feel his low back symptoms or thoracic symptoms

7

R. Doc. 82 at 7.

8

R. Doc. 86-9 at 1.

9

R. Doc. 86-10 at 1.

10

Id.
3

are attributed to any of the accidents."11
After the IME with Dr. Katz, plaintiff continued treatment
with Dr. Sledge.

Dr. Sledge issued a report on June 26, 2013,

concluding that plaintiff suffered from
[s]mall disk herniation at C6-C7, which are longstanding
and were non-symptomatic prior to this incident. Since
the accident, he has had symptoms of cord compression.
There is thoracic spinal cord changes and compression at
the level of T5. Flattening of the thoracic cord with
distematomyelia at T4-T5 level.12
Dr. Sledge further opined that "no further orthopedic surgical
intervention is needed" and that "[i]t is highly unlikely that the
thoracic cord changes are due to work injury dated May 2[9],
2011."13

Dr. Sledge then referred plaintiff to Dr. David Weir for

a neurological evaluation.
Dr. Weir examined plaintiff on August 19, 2013, and ordered an
MRI of plaintiff's thoracic region.14

On September 10, 2013, after

examining the MRI and evaluating plaintiff a second time, Dr. Weir
stated that plaintiff would "more probably than not, require
surgical decompression" to address his thoracic condition.15

Dr.

Weir further opined that plaintiff's thoracic condition "is, more

11

R. Doc. 80-2 at 12.

12

R. Doc. 80-2 at 4.

13

Id.

14

R. Doc. 82-8 at 3.

15

Id. at 5.
4

probable

than

not,

related

to

his

accident

occurring

on

05/2[9]/2011."16
Plaintiff saw a second neurosurgeon, Dr. Alan Appley, on
September

11,

2013.

After

examining

plaintiff,

Dr.

Appley

concluded that
Mr. Rowan has a complicated intraspinal process with
spinal cord compression from an arachnoid cyst from T4-T5
and a left T6-T7 disc herniation. While the arachnoid
cyst is more likely congenital rather than acquired due
to trauma, the work injury of May 2[9], 2011 not only
aggravated the spinal cord compression from the arachnoid
cyst, but it also most likely caused the T6-7 disc
herniation. While the disc herniation in and of itself
is certainly significant enough to warrant surgery, his
spinal cord compression and neurologic compromise are
compounded by the presence of the arachnoid cyst.17
On

October

9,

2013,

plaintiff

scheduled

an

"emergency"

appointment with Dr. Weir complaining of "excruciating thoracic
pain."18

After

examining

plaintiff,

Dr.

Weir

concluded

that

plaintiff's condition was a "neurologic emergency" and stated that
plaintiff "needs emergent spinal cord decompression as recommended
by Dr. Alan Appley on his note of 09/11/2013."19
Based on Dr. Weir's conclusion that plaintiff was suffering
from a "neurologic emergency," plaintiff's counsel sent defendant
a letter on October 11, 2013 asking defendant to approve payment

16

Id.

17

Id. at 11.

18

Id. at 7.

19

Id.
5

for

the

surgery

under

its

maintenance

and

cure

obligation.20

Plaintiff's counsel attached a copy of Dr. Weir's October 9, 2013
report to the demand letter.21

On October 16, 2013, defendant

denied plaintiff's demand stating:
As you know, Mr. Rowan underwent an independent medical
examination by orthopedic surgeon Ralph Katz who has
opined that Mr. Rowan's thoracic condition was not
causally related to the incident.22
On October 21, 2013, plaintiff saw Dr. Savoie to address "back
and

shoulder

issues."23

Although

Dr.

Savoie

concluded

that

plaintiff had not "re-torn his shoulder," Dr. Savoie opined that
plaintiff's "severe pathology in the shoulder" prevented a more
timely discovery of his thoracic condition.24

Dr. Savoie further

stated that plaintiff had "always complained of problems with the
upper back/thoracic spine" and agreed with Drs. Appley and Weir
that plaintiff's "spine problem needs to be corrected asap and that
this problem would be related to the original injury."25
On November 11, 2013, plaintiff presented to Dr. Appley

20

R. Doc. 82-6 at 1.

21

Id. at 2.

22

R. Doc. 82-7 at 1.

23

R. Doc. 82-8 at 15.

24

Id.

25

Id.
6

complaining of "severe mid thoracic pain."26

After examining

plaintiff, Dr. Appley concluded that plaintiff's symptoms had
worsened since his September 11, 2013 visit, and that plaintiff "is
miserable [at] this point and really should have surgery as soon as
possible."27
On November 15, 2013, plaintiff sent defendant a second cure
demand.

Plaintiff informed defendant that "this is a medical

emergency" and that if defendant refused to authorize payment for
the surgery, plaintiff would "have no alternative but to make
financial arrangement to have the surgery performed and seek full
reimbursement for the surgery together with Punitive Damages."28
Plaintiff attached the medical reports of Dr. Weir, Dr. Appley, and
Dr.

Savoie,

all

of

whom

concluded

that

plaintiff's

condition was related to his May 29, 2011 accident.29

thoracic
As of

November 26, 2013, defendant had not responded to plaintiff's
second cure demand, and plaintiff elected to undergo surgery.30
On November 27, 2013, the day after surgery, defendant denied
plaintiff's second cure demand, stating:
In further response to your request that Chem Carriers

26

Id. at 12.

27

Id. at 14.

28

R. Doc. 82-8.

29

Id.

30

R. Doc. 82-20.
7

pay for the thoracic surgery, as you know, Dr. Katz has
opined that the thoracic condition is not causally
related to the incident.31
Defendant also requested that plaintiff make himself available for
a second IME before undergoing the surgery "so that we can ensure
the

pre-surgical

medical

evidence

preserved and not spoliated."32

of

his

thoracic

spine

is

Although a pre-surgery IME was not

possible, defendant nevertheless scheduled a second IME with Dr.
Eric Amundson.

On February 18, 2014, after reviewing plaintiff's

medical records, interviewing plaintiff, and conducting a physical
exam, Dr. Amundson issued his report and stated that "it is my
professional opinion that Mr. Rowan did not exacerbate or aggravate
his thoracic condition pathology while working on either November
18, 2010 or May 29, 2011."33
Defendant

filed

the

instant

motion

for

partial

summary

judgment arguing that it cannot be held liable for punitive damages
because it relied on the opinions of Dr. Katz, Dr. Sledge, and Dr.
Amundson in denying plaintiff's cure demands.34
brief

in

opposition,

plaintiff

31

R. Doc. 82-10 at 1.

32

Id.

33

R. Doc. 80-2 at 14.

34

R. Doc. 80-1 at 1.
8

attaches

a

In support of his
November

10,

2014

affidavit35 and report36 of Dr. Sledge.

In these documents, Dr.

Sledge revises the conclusion he reached in his June 26, 2013
report and states:
At that time, June 26, 2013, [I] discussed with Rowan
that the thoracic cord compression secondary to the
diastematomyelia was long standing in nature and not
related to the May [29], 2011 injury, but that the acute
thoracic herniations at T4-5, T5-6, and T6-7 were
indenting the cord and causing cord changes and symptoms
due to a combination of the trapped cord and the
herniations induced by the accident.37
Dr. Sledge thus concludes that "[i]t is my expert medical opinion
that the T4-5 disc herniation, the T5-6 disc herniation, the T6-7
herniation, [and] the T7-8 disc herniation are temporally and
causally related to injuries sustained during the accident on
5/[29]/2011."38

Defendant moves to strike Dr. Sledge's affidavit

and report arguing that they are untimely under the Court's
scheduling order.39

II.

LEGAL STANDARD
Summary judgment is warranted when "the movant shows that

there is no genuine dispute as to any material fact and the movant

35

R. Doc. 82-16.

36

R. Doc. 82-17.

37

R. Doc. 82-16 at 3.

38

R. Doc. 82-17 at 2.

39

R. Doc. 83.
9

is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the

Court

considers

"all

of

the

evidence

in

the

record

but

refrain[s] from making credibility determinations or weighing the
evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co.,

530

inferences

F.3d
are

395,
drawn

398–99
in

(5th

favor

Cir.

of

the

2008).

All

nonmoving

reasonable
party,

but

"unsupported allegations or affidavits setting forth 'ultimate or
conclusory facts and conclusions of law' are insufficient to either
support or defeat a motion for summary judgment." Galindo v.
Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also
Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
forward with evidence which would 'entitle it to a directed verdict
if the evidence went uncontroverted at trial.'" Int'l Shortstop,
Inc. v. Rally's, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991). The
nonmoving party can then defeat the motion by either countering
with evidence sufficient to demonstrate the existence of a genuine
dispute of material fact, or “showing that the moving party's
evidence is so sheer that it may not persuade the reasonable
fact-finder to return a verdict in favor of the moving party." Id.
10

at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075
("Rule 56 'mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial.'" (quoting Celotex, 477 U.S. at
322)).

III. DISCUSSION
a.

Chem Carrier's Motion to Strike the Affidavit and Report
of Dr. Sledge

Defendant moves to strike the November 10, 2014 affidavit and
report of Dr. Sledge arguing that plaintiff failed to submit Dr.
Sledge's expert report before September 19, 2014 in violation of
the Court's scheduling order and Federal Rule of Civil Procedure
11

26(a)(2)(B).40

The Court finds defendant's argument to be without

merit.
The Court's June 19, 2014 scheduling order required plaintiff
to submit "[w]ritten reports of experts, as defined by Federal Rule
of Civil Procedure 26(a)(2)(B)" by September 19, 2014.41

Rule

26(a)(2)(B) provides as follows:
Witnesses Who Must Provide a Written Report.
Unless
otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report-prepared and signed by the witness--if the witness is one
retained or specially employed to provide expert
testimony in the case or one whose duties as the party's
employee regularly involves giving expert testimony.
The Advisory Committee Notes accompanying the 1993 Amendments
explain, however, that Rule 26's written report requirement applies
"only to those experts who are retained or specially employed to
provide such testimony . . . .
can

be

deposed

or

called

A treating physician, for example,
to

testify

requirement for a written report."

at

trial

without

any

Plaintiff contends, and Dr.

Sledge's report and affidavit indicate, that Dr. Sledge's opinions
are based on knowledge acquired during the course of his treatment
of the plaintiff.

Defendant does contend otherwise.

Because a

written report is not required "for a treating physician whose
testimony and opinions derive from information learned during
actual treatment of the patient," the Court denies defendant's

40

R. Doc. 83-1 at 1-2.

41

R. Doc. 57 at 2.
12

motion to strike.

Knorr v. Dillard's Store Serv., Civ. A. No. 04-

3208, 2005 WL 2060905, at *3 (E.D. La. Aug. 22, 2005).

See also

Wilcox v. Max Welders, L.L.C., Civ. A. No. 12-2389, 2013 WL
4517907, at *1 (E.D. La. Aug. 22, 2013) ("[A] treating physician .
. . is not required to provide defendants with a formal written
report to the extent that his opinions derive from information
learned during actual treatment of the patient.").
b.

Chem Carrier's Motion for Partial Summary Judgment

Defendant also moves for summary judgment on plaintiff's claim
for punitive damages.

Defendant contends that plaintiff's claim

for punitive damages fails as a matter of law because defendant
relied on the expert opinions of Dr. Katz, Dr. Sledge, and Dr.
Amundson in denying plaintiff's cure demand.42
Until

a

seaman

reaches

the

point

of

maximum

medical

improvement, he is entitled to maintenance and cure benefits43 for
injuries suffered while working on a vessel.

See O'Donnell v.

Great Lakes Dredge & Dock Co., 318 U.S. 36, 41-42 (1943).

A seaman

reaches maximum medical improvement when it is probable that future
treatment will not result in the improvement of the seaman's
condition.

Springborn v. Am. Commercial Barge Lines, Inc., 767

F.2d 89, 95 (5th Cir. 1985).

42

"It is the medical, not the judicial,

R. Doc. 80-1 at 1.

43

Maintenance is a daily stipend for living expenses; cure
is the payment of medical expenses. See Guevara v. Maintenance
Overseas Corp., 59 F.3d 1496, 1499 (5th Cir. 1995).
13

determination

of

permanency

that

terminates

the

right

to

maintenance and cure." Tullos v. Resource Drilling, Inc., 750 F.2d
380, 388 (5th Cir. 1985).

Ambiguities or doubts with respect to

the entitlement to maintenance and cure must be resolved in the
seaman's favor.

Cooper v. Diamond M Co., 799 F.2d 176, 179 (5th

Cir. 1976).
Although a shipowner is entitled to investigate and require
corroboration before paying a claim for maintenance and cure, the
Fifth

Circuit

has

established

a

sliding

scale

of

shipowner

liability for wrongful denials of maintenance and cure.

See

Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir. 1987),
abrogated on other grounds by Guevara v. Maritime Overseas Corp.,
59 F.3d 1496 (5th Cir. 1995).

A shipowner who is in fact liable

for maintenance and cure but who reasonably denied the payments may
be held liable only for the amount of maintenance and cure.

Id.

If a shipowner refuses to pay maintenance and cure without a
reasonable defense, the shipowner becomes liable for compensatory
damages in addition to the maintenance and cure.

Id.

"Further, if

the owner rejects the claim in an arbitrary and capricious, or
willful, callous, and persistent manner, the owner becomes liable
for punitive damages and attorney's fees as well as maintenance and
cure and compensatory damages."

Gorum v. Ensco Offshore Co., Civ.

A. No. 02-2030, 2002 WL 31528460, at *8 (E.D. La. Nov. 14, 2002)
(internal citations omitted).

14

The

Fifth

Circuit

has

repeatedly

held

that

conflicting

diagnoses and prognoses from various physicians present a question
of fact as to the seaman's entitlement to maintenance and cure
benefits and as to whether an employer's termination of maintenance
and cure benefits was arbitrary or capricious.

See Tullos v.

Resource Drilling, Inc., 750 F.2d 380, 389 (5th Cir. 1985) ("In
essence, [shipowner] chose one doctor from many and followed his
recommendation.

This may not be arbitrary and capricious, but it

is sufficient evidence entitling Tullos to have the jury resolve
his arbitrary and capricious claim."); Breese v. AWI, Inc., 823
F.2d 100, 104 (5th Cir. 1987) ("[When] a shipowner ha[s] relied on
the opinion of its own physician (who ha[s] examined the seaman) to
terminate maintenance payments in the face of conflicting medical
opinions on the issue of whether maximum cure ha[s] been reached,
a jury question [is] raised as to whether such behavior would
entitle the seaman to punitive damages.").
Although defendant claims that it relied on the opinions of
Dr. Sledge, Dr. Amundson, and Dr. Katz in denying plaintiff's cure
demands, plaintiff has provided the Court with evidence indicating
that defendant relied solely on the opinion of its IME physician
Dr. Katz in denying plaintiff's cure demands.44

Indeed, when

denying plaintiff's October 11 and November 15, 2013 cure demands,
defendant stated:

44

See R. Docs. 82-7 and 82-10.
15

As you know, Mr. Rowan underwent an independent medical
examination by orthopedic surgeon Ralph Katz who has
opined that Mr. Rowan's thoracic condition was not
causally related to the incident.45
Thus,

although

Dr.

Sledge's

June

26,

2013

opinion

and

Dr.

Amundson's post-operation opinion support Dr. Katz's conclusion
that plaintiff's thoracic condition is not causally related to his
May

29,

2011

injury,

plaintiff

has

provided

the

Court

with

sufficient evidence to create a question of material fact as to
whether defendant relied solely on the opinion of Dr. Katz in
denying plaintiff's October 11 and November 15, 2013 cure demands.
Because a jury question is raised when a shipowner "choose[s] one
doctor from many and follow[s] his recommendation," Tullos,

750

F.2d at 389, the Court denies defendant's motion for summary
judgment on plaintiff's punitive damages claim.

See Synder v. L &

M Botruc Rental, Inc., 924 F. Supp. 2d 728, 734 (E.D. La. 2013)
("When there are conflicting diagnoses and prognoses from various
physicians, there is a question of fact to be determined by the
trier of fact as to whether . . . an employer's termination of
maintenance and cure benefits was arbitrary and capricious.");
Barclay v. Cameron Charter Boats, Inc., Civ. A. No. 09-462, 2011 WL
3468380, at *3 (W.D. La. Aug. 8, 2011)(denying summary judgment
because "conflicting medical reports . . . [provide] sufficient
evidence to have the jury resolve the seaman's arbitrary and

45

R. Doc. 82-7.
16

capricious claim"); Musielak v. Rowan Intern., Inc., 814 F. Supp
556,

558

(S.D.

Tex.

1993)

("Here,

where

two

doctors

give

fundamentally different interpretation of plaintiff's condition, it
is impossible for the Court to summarily decide that callousness
and indifference do not exist.").

IV.

CONCLUSION
For the foregoing reasons, the Court denies defendant's motion

for summary judgment on plaintiff's punitive damages claim.

The

Court also denies defendant's motion to strike the November 10,
2014 affidavit and expert report of Dr. Sledge.

New Orleans, Louisiana, this ___ day of May, 2015.
5th

_____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

17