Carbo v. Chet Morrison Services, LLC
Filing
25
ORDER & REASONS denying 22 Plaintiff's Motion to Sever Cure Claim and For Expedited Trial Date for the Cure Claim. Signed by Judge Carl Barbier on 8/14/13. (sek, )
Carbo v. Chet Morrison Services, LLC
Doc. 25
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GERALD J. CARBO, JR.
CIVIL ACTION
VERSUS
NO: 12-3007
CHET MORRISON SERVICES, LLC.
SECTION: "J” (4)
ORDER AND REASONS
Before the Court is Plaintiff's Motion to Sever Cure Claim
and
Expedited
Trial
for
the
Cure
Claim
(Rec.
Doc.
22)
and
Defendant's opposition thereto (Rec. Doc. 23). Plaintiff's motion
was set for hearing on August 14, 2013, on the briefs. The Court,
having
considered
the
motions
and
memoranda
of
counsel,
the
record, and the applicable law, finds that Plaintiff's motion
should be DENIED for the reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This maritime action arises out of a Jones Act claim for
negligence
as
unseaworthiness,
well
as
maintenance
general
and
cure,
maritime
and
claims
wages.
for
Plaintiff
Gerald J. Carbo, Jr. ("Mr. Carbo") alleges that on or about
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January 1, 2012, he was injured when he fell while working as a
seaman on Defendant Chet Morrison Services, LLC's ("Morrison")
vessel, the M/V Caroline Morrison. Mr. Carbo alleges that he
suffered a large subcutis hematoma on his left thigh as a result
of the fall for which injury he was under the care of Dr. Brett
Casey.
Mr. Carbo alleges that in November 2012, he began to
experience problems with his right knee. Subsequently, Mr. Carbo
filed his Seaman Complaint on December 19, 2012.
Following the filing of his complaint, Mr. Carbo alleges
that
he
was
unhappy
with
Dr.
Casey's
care
and
engaged
the
services of a different physician, Dr. Tim Finney. Dr. Finney
opines that, though Mr. Carbo had pre-existing osteoarthritis in
the right knee, the change in Mr. Carbo's gait, attributable to
the
left
thigh
hematoma,
aggravated
Mr.
Carbo's
right
knee.
Consequently, Dr. Finney is of the opinion that Mr. Carbo is a
candidate for total right knee arthroplasty.
Following Dr. Finney's diagnosis, Mr. Carbo sent a demand to
Morrison asking it to guarantee the cost of the proposed surgery
pursuant to its obligation of cure. Morrison did not agree to
guarantee the cost, and arranged for Mr. Carbo to be evaluated by
Dr. Chris Cenac. Dr. Cenac agrees that Mr. Carbo is a candidate
for total knee arthroplasty, but does not agree that the right
2
knee issues are related to the alleged left thigh injury, but
rather he believes that Mr. Carbo's need for total right knee
arthroplasty likely pre-dates the left thigh injury. Mr. Carbo
alleges that, without the proposed surgery, the pain in his right
knee will only continue to increase. On July 17, 2013, Mr. Carbo
filed the instant motion to sever his cure claim and expedite
trial on the severed claim. Morrison filed its opposition on
August 1, 2013.
PARTIES’ ARGUMENTS
Mr. Carbo argues that, as noted in Tate v. American Tugs,
Inc. 634 F.2d 869, 871 (5th Cir. 1981), a seaman is not obligated
to bring his claims for maintenance and cure together with his
other claims, and that if he does bring the all of his claims
together, he may later move for severance and expedited trial of
his cure claim. In making this determination, Mr. Carbo urges the
Court to consider the following factors, extracted from Martinez
v, Edison Chouest Offshore, Inc., 00-2930, 2001 WL 6726 (E.D. La.
Jan.
2,
2001)(Vance,
J.):
(1)
"plaintiff's
interest
in
an
expediting [sic] trial of these issues," (2) "the proximity of
the scheduled trial date," (3) "whether plaintiff has requested a
jury trial," and (4) "whether the nonmoving party opposed the
3
motion." (Pl.'s Memo., Rec. Doc. 22-1, p. 3-4). Considering these
factors, Mr. Carbo argues that "he will be subjected to undue
pain and suffering" and that "[i]t is in the interest of justice
that
his
claim
for
cure
be
severed
and
tried
expeditiously."(Pl.'s Memo., Rec. Doc. 22-1, p. 4)
Morrison agrees that the cure claims may be severed and
tried
expeditiously,
and
that
the
Court
should
consider
the
above-listed factors in deciding the instant motion. Defendant
argues, however, that the factors weigh against granting Mr.
Carbo's motion. In addition to the these factors, Morrison urges
the court to consider (a) "whether medical testimony needed in
the separate cure trial will be duplicative of the main trial"
and (b) the ongoing need for discovery. (Def.'s Opp. Rec. Doc.
23, p. 3)
Applying
these
factors,
Morrison
contends
that
the
Mr.
Carbo's interest in expediting the claim is low because (a) all
of Mr. Carbo's medical bills related to the fall have been paid
to date, and (b) he has applied for and should be receiving
disability payments.1 Morrison further contends that a jury trial
is scheduled for November 18, 2013, which was only four months
1
Note that while the interrogatory answer attached to Defendant's
opposition as Exhibit A shows that Mr. Carbo applied for disability, it does
not say that he was approved at the time of his response. (Def. Opp., Exh. A.,
Rec Doc. 23-1, p. 2)
4
away at the time the motion was filed, and is now only three
months
away.
Morrison
argues
that
there
will
be
significant
overlapping issues in the trial on the cure claim and the main
trial, including (a) whether the incident occurred, (b) whether
the injury resulted from Mr. Carbo's willful conduct, and (c)
whether Mr. Carbo's pre-existing injuries are the cause of his
injury. In addition to the overlapping issues, Morrison argues
that the cure trial would require duplicative expert testimony.
Finally, Morrison argues that, because counsel for Mr. Carbo has
been out of town for another trial, Morrison has yet to depose
Mr. Carbo or his treating physician, and that it has the right to
investigate the cure claim. Morrison argues that, even if the
cure claim is severed, it will still need time to conduct such
discovery.
Morrison urges the Court to analogize the instant matter to
Raffield v. Y & S Marine, Inc., 06-10758, 2008 WL 89006 (E.D.
La., Jan. 7, 2008)(Lemelle, J.) wherein the Court denied a motion
to
sever
interest
and
in
expedite
having
cure
surgery,
claims,
because
despite
(a)
a
the
jury
plaintiff's
trial
was
scheduled within three months, (b) such a delay in treatment was
not likely to materially change the outcome of the surgery, (c)
the medical expert testimony used in the cure trial and the main
5
trial would be duplicative, and (d) there was a need for further
discovery.
LEGAL STANDARD & DISCUSSION
If an injured seaman files a suit for maintenance and cure
along with other claims, he may, at a later time, "ask for
severance of the maintenance claim and an expedited trial of it
by the court." Tate v. Am. Tugs, Inc., 634 F.2d at 871. In
determining whether to sever and expedite the cure claims, courts
should "consider the plaintiff's interest in 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." Marine Drilling Mgmt. Co. v. Scott,
02-1967,
2003
WL
133218
(E.D.
La.
Jan.
15,
2003)(internal
citation omitted).
Considering the foregoing factors, the Court finds that it
must deny Mr. Carbo's motion.
undergoing
the
recommended
While it is undoubtedly true that
surgery
will
serve
Mr.
Carbo's
interests by alleviating his pain, the Court finds that the rest
of the factors outweigh this interest. Trial2 is set to occur
within about three months, and Defendant has yet to depose Mr.
2
The November 18,2013 trial is a jury trial at the request of both
parties.
6
Carbo or his treating physician at no fault of his own. By the
time the depositions could be held and transcribed, and the
parties
given
September,
time
with
to
trial
analyze
only
them,
about
it
six
will
weeks
be
the
away.
end
of
Moreover,
Defendant opposes the motion, Plaintiff has requested a jury, and
there are many overlapping issues that would best be left to one
factfinder,
all
of
which
weigh
against
granting
Mr.
Carbo's
motion.
In Charpentier v. Blue Streak Offshore, Inc., 96-323, 1996
WL 383126 (E.D. La. July 3, 1996), the court denied a plaintiff's
motion
to
sever
and
expedite
his
cure
claim,
stating
the
following:
With less than four months until the scheduled jury
trial, and much discovery needed in this case, both the
interests of justice and judicial economy are best
served by having one trier of fact hear all of the
issues involved in this case. A separate hearing on the
issue of maintenance and cure is not merited when the
trial date is in the near future and discovery is
wanting.
Moreover, the issues in this case are based upon a
unitary set of circumstances and depend in large part
upon the same evidence. In this vein, defendant aptly
illustrates that the facts of plaintiff's claims are
interwoven—the factual determinations which will be
decisive as to what, if any, damages are due may well
decide whether any maintenance and cure is due to the
plaintiff.
Id. See also Raffield v. Y & S Marine, Inc., 2008 WL 89006
7
(motion denied where trial was in two months, discovery was
ongoing,
defendants
unlikely
to
opposed
materially
the
affect
motion,
the
and
outcome
the
of
delay
the
was
proposed
surgery); see also Marine Drilling Mgmt. Co. v. Scott, 2003 WL
133218 (motion denied when defendant opposed the motion, there
was a likelihood of duplicative testimony, and when trial was
five months away and the injury had occurred almost two years
prior, indicating that a short, further delay would not alter the
outcome
of
the
surgery).
The
Court
finds
that
the
facts
of
Charpentier and the instant matter are nearly identical, and that
the
rationale
for
denying
the
plaintiff's
motion
was
sound;
therefore, the Court adopts this rationale as its own and must
deny Mr. Carbo's motion.
Accordingly, Plaintiff's Motion to Sever Cure Claim and For
Expedited Trial Date for the Cure Claim (Rec. Doc. 22) is DENIED.
New Orleans, Louisiana this 14th day of August, 2013.
CARL J. BARBIER
UNITED STATES DISTRICT COURT
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