Stowe v. Moran Towing Corporation
Filing
45
ORDER & REASONS granting in part and denying in part 27 Motion for Summary Judgment and denying 31 Motion for Partial Summary Judgment, as stated herein. Signed by Judge Martin L.C. Feldman on 1/22/2013. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAROLYN FRANCIS ALBARADO STOWE
CIVIL ACTION
v.
NO. 13-0390
MORAN TOWING CORPORATION
SECTION "F"
ORDER AND REASONS
Before
the
Court
are
two
motions:
(1)
Moran
Towing
Corporation's Motion for Summary Judgment; and (2) the plaintiff's
Motion for Partial Summary Judgment on the Issue of Whether Moran
Towing Breached Its Duty of Care. For the reasons that follow, the
defendant's motion is GRANTED in part and DENIED in part, and the
plaintiff's motion is DENIED.
Background
This case arises from allegations that Moran Towing failed to
provide timely, adequate medical treatment after its engineer,
Michael Hebert, suffered a heart attack on board the M/V TURECAMO
GIRLS.
Michael Hebert was employed by Moran Towing Corporation as the
Chief Engineer on the M/V TURECAMO GIRLS, a tugboat owned and
operated by Moran.
On February 29, 2012 he boarded the tug, which
was tied up at the Moran dock in Staten Island, New York, for a
regular hitch.
After Mr. Hebert completed some paperwork, he told
the captain, Thomas Cassidy, that he was tired and went to bed.
1
Later that evening Mr. Hebert began experiencing chest pain.
Several hours after the onset of the pain, Mr. Hebert went to
Captain
Cassidy
at
around
23:10
and
complained
that
he
was
experiencing chest pain and weakness; he asked the captain to take
him to the hospital. Captain Cassidy radioed the Moran dispatcher,
informing him that he was taking Mr. Hebert to the hospital because
he was feeling ill.
Mr. Hebert went back below deck to retrieve
his coat and insurance card; Hebert and Cassidy then walked to
Cassidy's personal vehicle, which was parked on the dock.
Cassidy
used the Google application on his personal telephone to locate
directions to a nearby hospital, and drove Hebert there.
But the first hospital Cassidy drove to turned out to be a
closed, psychiatric facility that could not provide care to Hebert.
After Cassidy tried, but failed, to get into the facility, he
approached an ambulance and its crew of E.M.S. workers, who
happened to be in the parking lot at the facility; he asked them
where the nearest hospital was located.
The E.M.S. workers
suggested two hospitals, and Cassidy asked Hebert which one he
preferred.
Hebert
responded, "I don't care, just get me to the
one that is the closest", and he got back in Cassidy's car.
Cassidy drove to Richmond University Medical Center, arriving
at around 23:51; he dropped Hebert off in front and then parked his
vehicle.
When Cassidy entered the hospital and realized that
Hebert was still in the waiting room area, he informed the staff
2
that Hebert was suffering from chest pains and weakness.
A nurse
then took Hebert back to the triage area to be treated; Cassidy
asked Hebert to call when he knew something.
Hebert said that he
would, and Captain Cassidy returned to the vessel.1
At the hospital, Mr. Hebert was found to be "alert, awake and
in no distress."
He described his pain as having begun three to
four hours earlier.
Upon evaluation, including an ECG recorded at
00:08 on March 1, 2012, Dr. Alexander Tsukerman determined that
Hebert had suffered a heart attack; Mr. Hebert was treated with
several medications.
Because RUMC was not equipped to care for
cardiac emergencies, Mr. Hebert was then transported to a facility
capable
of
administering
cardiac
University Medical Center; at 01:29.
treatment,
Staten
Island
Hebert described four hours
of chest pain, which he ignored until it became worse.
Hebert was
taken to the cardiac catherization laboratory at 01:49, where he
underwent a thrombectomy (clot removal) and stint implantation to
the left anterior descending artery.
Doctors found multiple
lesions indicative of pre-existing coronary artery disease.
Hebert
was
stabilized
but
was
diagnosed
with
severe
Mr.
left
ventricular dysfunction.
After nine days in the hospital, Mr. Hebert was discharged
1
The crew was informed that Cassidy had taken Hebert to
the hospital for a possible heart attack; Cassidy stated that he
only became aware that Hebert had suffered a heart attack when
Hebert called him the next day from the hospital.
3
with instructions to follow up with a cardiologist in Louisiana for
the placement of an internal defibrillator.
He was also provided
with materials regarding smoking and diet, and he was flown back to
his hometown in Louisiana.
he died on May 2, 2012.
Sixty-two days after his heart attack,
His cause of death was presumptive cardiac
arrest from a malignant ventricular dysrhythmia, which is common in
patients with severe left ventricular dysfunction after a heart
attack.
On February 28, 2013 Mr. Hebert's daughter, Carolyn Francis
Albarado Stowe, sued Moran Towing Corporation, individually and on
behalf of the estate of her deceased father.
Ms. Stowe asserts
wrongful death and survival claims under the Jones Act and general
maritime
law;
in
particular,
Ms.
Stowe
alleges
that
Moran's
negligence caused her father's death by creating a stressful work
environment, and by failing to respond timely and adequately to Mr.
Hebert's medical emergency; she also alleges that the TURECAMO
GIRLS
was
unseaworthy
with
regard
to
its
crew
and
medical
equipment.
Moran Towing now seeks summary relief in its favor and the
plaintiff seeks partial summary judgment on the issue of liability.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
4
judgment as a matter of law.
No genuine issue of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine issue of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).34
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.
See
id.
Therefore,
"[i]f
the
evidence
is
merely
colorable, or is not significantly probative," summary judgment is
appropriate.
Id. at 249-50 (citations omitted).
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claims.
Id.
Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).
Finally, in evaluating the summary
5
judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
Anderson, 477 U.S. at 255.
II.
A.
Under the Jones Act, 46 U.S.C. § 688, a seaman’s2 employer is
liable for damages if the employer’s negligence caused the seaman’s
injury, in whole or in part.
Gautreaux v. Scurlock Marine, Inc.,
107 F.3d 331, 335 (5th Cir. 1997)(en banc).
An employer is liable
under the Jones Act if the negligence of its employees played "any
part, even the slightest" in causing the injury or death for which
damages are sought. Id. (citing Rogers v. Missouri Pacific R. Co.,
352 U.S. 500, 506 (1957)).
Even so, the Fifth Circuit clarified
that the employer's standard of care is not greater than that of
ordinary negligence under the circumstances.
Id. at 339.
"[A]
Jones Act employer is not an insurer of a seaman's safety; the mere
occurrence of an injury does not establish liability."
Marvin v.
Central Gulf Lines, Inc., 554 F.2d 1295, 1299 (5th Cir.), cert.
denied, 434 U.S. 1035 (1978).
To recover damages for his employer's negligence, a seaman
must prove that the employer breached its duty of care; ordinary
prudence under the circumstances is the standard for the duty of
care owed by an employer to a seaman.
Gautreaux, 107 F.3d at 335-
36. Likewise, seamen are held to the standard of the reasonable
2
Hebert's seaman status is undisputed.
6
seaman in like circumstances and are obliged to act with ordinary
prudence under the circumstances.
Id. at 339 (explaining that the
circumstances include the employee’s reliance on his employer to
provide
a
safe
working
training, or education).
environment,
the
seaman’s
experience,
And the causation standard is the same
for both the employer's negligence and contributory negligence:
causation is established if the party's "negligence played any
part, even the slightest, in producing the injury".
See Martinez,
481 Fed.Appx. 942, 947 (5th Cir. 2012)(quoting Johnson v. Cenac
Towing, Inc., 544 F.3d 296, 303 (5th Cir. 2008)).
However, more
than mere "but for" causation must be established. Johnson v. Cenac
Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008)(citation omitted).
Among the duties that a Jones Act employer owes to his seamen
employees is the duty to provide a reasonably safe place to work
and the duty to provide prompt and adequate medical care.
See De
Zon v. American President Lines, 318 U.S. 660, 667-68 (1943)("The
duty to provide proper medical treatment and attendance for seaman
falling ill or suffering injury in the service of the ship has been
imposed upon the ship-owners by all maritime nations.")(quoting The
Iroquois, 194 U.S. 240 (1904)); see also De Centro v. Gulf Fleet
Crews, Inc., 798 F.2d 138, 140 (5th Cir. 1986)("The legal obligation
of a ship-owner to attend to the medical needs of its crew are
undisputed: A ship owner has a duty to provide prompt and adequate
medical care to its seamen."). Of course, the measure of this duty
7
depends on the circumstances, including the seriousness of the
injury or illness and the availability of care.
at 688.
De Zon, 318 U.S.
"Although there may be no duty to the seaman to carry a
physician, the circumstances may be such as to require reasonable
measures to get him one, such as turning back, putting in to the
nearest port although not one of call, hailing a passing ship, or
taking other measures of considerable cost in time and money." Id.
B.
Independent from a claim under the Jones Act, a seaman has a
claim under the general maritime law for injuries caused by the
unseaworthiness of a vessel. The duty of a vessel owner to provide
a seaworthy vessel is an absolute non-delegable duty; the duty
imposes liability without fault.
See Mitchell v. Trawler Racer,
Inc., 362 U.S. 539, 548-49, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).
A
ship is seaworthy if the vessel, including her equipment and crew,
is reasonably fit and safe for the purposes for which it was
intended to be used.
Boudreaux v. United States of America, 280
F.3d 461, 468 (5th Cir. 2002)(citation omitted); Boudoin v. Lykes
Bros. S.S. Co., 348 U.S. 336, 339, 75 S.Ct. 382, 99 L.Ed. 354
(1955) (“The standard is not perfection, but reasonable fitness;
not a ship that will weather every conceivable storm but a vessel
reasonably suited for her intended service.”).
Unseaworthiness is not a fault-based standard; a plaintiff
must show, however, that the unseaworthy condition “played a
8
substantial part in bringing about or actually causing the injury
and that the injury was either a direct result or a reasonably
probable consequence of the unseaworthiness.”
Phillips v. Western
Co. of North America, 953 F.2d 923, 928 (5th Cir. 1992).
“[A]n
isolated personal negligent act of the crew” is not enough to
render
a
ship
unseaworthy.
Daughdrill
v.
Ocean
Drilling
Exploration Co., 709 F. Supp. 710, 712 (E.D. La. 1989).
&
Instead,
there should be evidence of “a congeries of acts.” Id. (quoting
Robinson v. Showa Kaiun K.K., 451 F.2d 688, 690 (5th Cir. 1971)).
“A vessel’s condition of unseaworthiness might arise from any
number
of
circumstances.
Her
gear
might
appurtenances in disrepair, her crew unfit.
be
defective,
her
The number of men
assigned to perform a shipboard task might be insufficient.
The
method of loading her cargo, or the manner of its stowage might be
improper.”
S.Ct.
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91
514,
517-18,
27
L.Ed.2d
562
(1971)(internal
citations
omitted); see also Webb v. Dresser Indus., 536 F.2d 603, 606 (5th
Cir. 1976), cert. denied 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d
572 (1977).
A vessel is unseaworthy when an unsafe method of work
is used to perform vessel services.
Rogers v. Eagle Offshore
Drilling Serv., 764 F.2d 300, 303 (5th Cir. 1985); Burns v. AnchorWate Co., 469 F.2d 730 (5th Cir. 1972).3
3
A seaman has a duty under both the Jones Act and general
maritime law to act as an ordinary prudent seaman would act in the
same or similar circumstances. Jackson v. OMI Corp., 245 F.3d 525,
9
III.
A.
Whether Moran Breached Its Duty of Care
The plaintiff seeks judgment as a matter of law that Moran
breached its duty of care to provide Hebert with prompt medical
attention when (a) it failed to properly implement a policy for
medical emergencies; (b) it failed to train its crew on Moran's
Operating Policies and Procedures Manual; (c) its crew failed to
follow Moran's Operating Policies and Procedures Manual; (d) its
crew failed to call 911 and otherwise failed to maintain phone
numbers for, directions to, and familiarity with local hospitals.
Moran counters that, at the very least, there exists a genuine
dispute as to the reasonableness of Moran's and Captain Cassidy's
conduct, which defeats the plaintiff's request for partial summary
judgment.
The Court agrees.
The plaintiff's arguments focusing on whether or not Moran had
a policy respecting how to respond to emergency situations and
whether or not it was followed fail to advance the resolution of
whether Moran breached its duty of care.
It is undisputed that
Moran had a policy with an "Emergency Policy & Procedures" section
urging its crew to act "timely" in an emergency "to minimize damage
to life"; and, the manual contains a check-list for "procedures
528 (5th Cir. 2001). If a seaman’s negligence contributes to his
injury, his “contributory negligence will not bar his recovery, but
may reduce the amount of damages owed proportionate to his share of
fault.” Jauch v. Nautical Services, Inc., 470 F.3d 207, 213 (5th
Cir. 2006).
10
which may be followed in dealing with an emergency", including such
steps as administer first aid and notify the dispatcher.
plaintiff
does
not
suggest
that
first
aid
should
But the
have
been
administered; and the Captain called the dispatcher.
The plaintiff's true complaint, and the issue that partial
summary judgment in her favor on liability hinges upon, is whether
the Moran crew was negligent in failing to call 911; the only
reasonable response, the plaintiff contends, when presented with an
ambulatory crewmember who complains of weakness and chest pains and
asks to be taken to the hospital, would have been to call 911.
Failing that, the plaintiff suggests that Moran was negligent in
its failure to maintain phone numbers for, directions to, and
familiarity with local hospitals.
Moran contends that, according
to Captain Cassidy, there was no perceived emergency and he acted
reasonably
under
the
circumstances
in
driving
Hebert
to
the
hospital, as requested; whether Moran breached its duty to provide
prompt medical assistance must await trial.
The Court agrees.
The record establishes that, after Hebert had turned in for
the night, he told Cassidy that he needed to go to the hospital
because he was experiencing chest pains and shortness of breath.
Hebert was able to communicate and walk around without assistance;
he went to retrieve his coat and insurance card.
Cassidy called
dispatch and Googled directions to hospitals in the area.
Cassidy
observed, and hospital personnel reported, that Hebert was "alert,
11
awake and in no distress."
The parties genuinely dispute whether
Cassidy appreciated, or should have appreciated, the seriousness of
Hebert's
condition;
they
also
dispute
whether,
under
the
circumstances presented, Cassidy took reasonable measures to get
Hebert to a hospital or whether, instead, the only prudent course
was to call an ambulance or call local hospitals to determine which
ones could accept patients suffering a heart attack. It is settled
that the measure of the employer's duty to provide prompt and
adequate medical care depends on the circumstances, including the
seriousness of the injury or illness and the availability of care.
See
De Zon, 318 U.S. at 688.
Resolution of whether Moran
discharged its duty to provide Hebert with prompt, adequate medical
care must await trial.
B.
Such issues are patently fact-intensive.
Zone of Danger, Medical Causation, and Non-Pecuniary
Damages
Moran seeks judgment as a matter of law that (1) neither the
Jones Act nor the general maritime law afford recovery for a heart
attack allegedly caused by job-related stress unless the decedent
sustained a physical impact or was in the zone of danger; (2) the
plaintiff cannot prove medical causation; and (3) the Jones Act
bars recovery of non-pecuniary damages.
1.
Zone of Danger
The plaintiff does not oppose dismissal of her claim that
Hebert's heart attack was caused by job-related stress.
12
Finding
merit in the defendant's submission, that claim is dismissed.
2.
Medical Causation
Moran
contends
that
the
plaintiff
cannot
prove
medical
causation because the undisputed medical evidence defeats her claim
that the time it took to drive Hebert to the hospital caused his
death.
The plaintiff counters that the experts disagree on this
point, which mandates denial of Moran's motion on this ground.
Moran's expert, Dr. Sander, focused on the importance of the
time that Hebert allowed to pass before disclosing his symptoms to
the crew:
What is critically important to understanding the key
issue in this case is that Mr. Hebert told both Dr.
Tsukerman at RUMC and Dr. Diab at SIUH that he had chest
pain for at least three, but possibly four, hours, and
had ignored the pain initially. Thus the infarction most
likely began around 21:00 when Mr. Hebert was noted to be
"tired." Thus the "window of opportunity" for optimal
myocardial salvage had already expired when Mr. Hebert
requested that Captain Cassidy take him to the hospital.
The time delay to angioplasty was largely driven by Mr.
Hebert's delay in asking for assistance from Captain
Cassidy.
Thus, it is more likely than not that any
delays that resulted from Captain Cassidy's responding to
Mr. Hebert['s] request to be taken to a hospital and then
transporting him to the best of his ability did not
significantly alter Mr. Hebert's final outcome.
But the plaintiff submits that the issue of whether Hebert should
have appreciated his symptoms sooner is certainly an issue of
contributory negligence for the trier of fact.
Moreover, the
plaintiff contends that Dr. Sander hedges in his opinion by stating
that the delay resulting from Captain Cassidy's failure to call an
ambulance "did not significantly alter Mr. Hebert's final outcome."
13
(emphasis supplied by plaintiff).
The plaintiff disputes the
defendant's timeline as to when Hebert arrived at the hospital and
when he was seen by a doctor, and focuses on the applicable
causation standard: whether there is some evidence that Moran's
negligence played a part, however small, in the development of
Hebert's illness and condition. And, the plaintiff invokes her own
expert, Dr. Staab, who opines:
It is well-established that the outcome of a myocardial
infarction is greatly influenced by the time to
treatment. Early and late mortality, left ventricular
function, and symptoms of congestive heart failure all
improve by reducing the time to opening a closed artery.
It is therefore my opinion, to a reasonable degree of
medical certainty, that the aforementioned delay in
treatment for Mr. Hebert's myocardial infarction-from
failing to call for an ambulance that would have taken
him directly to an appropriate hospital-led to worse left
ventricular function from a larger amount of permanent
heart injury and thereby rendered him susceptible to
death from cardiac dysrhythmia.
Predictably, Moran submits that Dr. Staab's opinion is equivocal
and relies on the assumption that Hebert began having symptoms of
chest pains at 11:10 p.m., which Moran contends is discredited by
the record, which suggests that Hebert ignored symptoms for hours
before alerting the crew.
Rather than advancing resolution of the
issue of causation on summary judgment, however, it seems that each
side's critique of the other's expert presents fact disputes
awaiting cross-examination at trial.
Viewing the facts in the
light most favorable to the plaintiff, and considering the slight
causation standard, the Court finds that the parties have presented
14
a genuine dispute regarding the issue of causation, precluding
summary judgment.
3.
Availability of Non-Pecuniary Damages
Moran seeks dismissal of the plaintiff's claims for nonpecuniary damages, including her attempts to recover for loss of
love and affection, consortium, society, as well as punitive
damages.
The plaintiff is limited by the Jones Act to recovery of
pecuniary losses.
Miles v. Apex Marine Corp., 498 U.S. 19, 32
(1990); De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 141 (5th
Cir. 1986)(citation omitted).
To the extent that the plaintiff
seeks to recover non-pecuniary damages as part of her Jones Act
claim, those claims for loss of love and affection, consortium, and
society must be dismissed.
Of course, punitive damages are available as a remedy to
seamen under the general maritime law claim of unseaworthiness.
See McBride v. Estis Well Service, L.L.C., 731 F.3d 505, 517-18 (5th
Cir. 2013).
Plaintiff alleges an unseaworthiness claim.
However,
"punitive damages recovery always requires a finding of willful and
wanton conduct", the sort of culpability that Moran suggests is
missing on this record, where Captain Cassidy, even if he did so
negligently,
attention
he
immediately
requested.
attempted
See
id.
to
get
The
Hebert
Court
the
medical
agrees.
plaintiff's punitive damages claim is therefore dismissed.
15
The
Accordingly, the defendant's motion for summary judgment is
GRANTED in part (to the extent defendant seeks dismissal of the
plaintiff's non-pecuniary damage claims and punitive damage claim
and to the extent defendant seeks dismissal of the plaintiff's
claim that Hebert's heart attack was caused by job-related stress)
and DENIED in part (to the extent defendant seeks summary relief on
the issue of medical causation), and the plaintiff's motion for
partial summary judgment is DENIED.
New Orleans, Louisiana, January 22, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
16
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