Dillon v. United States of America
Filing
151
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered containing findings of fact and conclusions of law in support of judgment against plaintiff Dillon, and with respect to plaintiff Fisher denying without prejudice 109 Motion for class certif ication; denying without prejudice 111 Motion for Summary Judgment; denying without prejudice 113 Motion for Summary Judgment; granting 141 Motion to Dismiss and to Transfer, dismissing the complaint as to plaintiff Dillon and transferring the remaining case with respect to plaintiff Fisher to the United States District Court for the District of South Carolina; granting 143 Motion to supplement opposition to 141 . (Woodlock, Douglas)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STEPHEN DILLON and MICHAEL
FISHER and others
similarly situated,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
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CIVIL ACTION NO.
12-12289-DPW
MEMORANDUM AND ORDER
January 16, 2019
I. BACKGROUND
In the Third Amended Complaint now framing this litigation,
Stephen Dillon and Michael Fisher, seamen who claim to have
suffered injury on board government-owned vessels, allege that
they, and similarly situated seamen, are entitled to unearned
overtime wages as part of the unearned wages remedy under
admiralty law.
Cf. Padilla v. Maersk Line, Ltd., 721 F.3d 77,
82-83 (2d Cir. 2013) (holding in class action that, in some
circumstances, a seaman may be entitled to unearned overtime
compensation as part of his entitlement to unearned wages under
general maritime law).
Plaintiffs move for class certification and summary
judgment for unearned overtime wages.
At the threshold, I
confront the government’s contention that it is entitled to
judgment against Dillon based on an affirmative defense unique
to him.
Meanwhile, U.S. Marine Management, Incorporated (“USMMI”),
the General Agent operating the vessels on the government’s
behalf, has been permitted to intervene in the action.
USMMI
has contended that, if the government is granted judgment
against Dillon, the case must be transferred to the District of
South Carolina, Fisher’s residence.
The government supports
USMMI’s contention and has moved to transfer the case to the
District of South Carolina if judgment is entered against
Dillon.
II. PROCEDURAL BACKGROUND
Dillon filed the first class action complaint in this case
on December 10, 2012.
He amended the complaint on February 25,
2013 and again on March 20, 2013.
On November 18, 2013, he
filed a motion for class certification.
I denied his first
motion to certify the class without prejudice on June 5, 2014.
Dillon then filed a renewed motion to certify the class on
December 12, 2014.
I denied the renewed motion, again without
prejudice, on February 11, 2015.
My denials of class
certification were based on concerns regarding whether Dillon’s
individual circumstances would interfere with his ability to be
a suitable class representative.
2
Prior to the set of motions now before me, the parties also
filed cross motions [Dkt. No. 51 – Dillon and Dkt. No. 63 –
United States] for summary judgment on the government’s
affirmative defense based on Dillon’s alleged failure to
disclose his prior medical condition.
I denied those prior
motions from the bench, [See Dkt. No. 82], on February 11, 2015.
I did so on grounds that those motions could not be resolved as
a matter of law on the papers and fact-finding would be
necessary.
The government now presses for judgment on the same
affirmative defense based on the fact-finding I have since
conducted.
On May 11, 2015, with the agreement of the parties, I held
an evidentiary hearing on the government’s affirmative defense,
effectively making the determination the subject of a non-jury
trial.
During the evidentiary hearing that day, Dillon
testified and I am able consequently to assess his credibility.
It was evident during that hearing that Dillon, despite offering
several unpersuasive excuses and explanations, knew he was
failing to disclose his prior medical condition and that if he
had made proper disclosure, he would not have been offered the
position on the vessel he held when he suffered a medical
emergency.
Presumably in light of the testimony on July 27, 2015,
Dillon’s counsel, now also representing Fisher, brought an
3
unopposed motion to permit Fisher to intervene as a named
representative plaintiff and class representative.
To his
memorandum in support of his motion to intervene, Fisher
attached a proposed third amended class action complaint.
I
granted Fisher’s motion to intervene on February 1, 2016 and the
Third Amended Complaint remains the operative pleading in this
action.
At a status conference held on November 15, 2017, I
continued to express my concerns about Dillon’s ability to serve
as a class representative.
I further discussed with counsel the
proposition that Fisher alone could potentially represent the
putative class.
On January 19, 2018, Plaintiffs filed a motion
for class certification, [Dkt. No. 109], and a motion for
summary judgment, [Dkt. No. 111], as to the overarching issue of
liability for unearned overtime wages.
That same day, the
government filed its own motion for summary judgment on the
merits regarding the claim of Michael Fisher.
[Dkt. No. 113].
In connection with its earlier summary judgment motion
submissions, the government had filed a separate motion, [Dkt.
No. 55], under FED. R. CIV. P. 36(b) to withdraw an admission that
provided the foundation for plaintiff’s summary judgment
contentions.
In light of the decision’s pertinence to the
question of judgment as to Dillon now before me pursuant to nonjury trial procedure, this memorandum provides in Section IV a
4
full explanation of my February 11, 2015 decision [Dkt. No. 82]
to grant the motion to withdraw the admission.
On January 25, 2018, USMMI filed its formal motion to
intervene in the action and specifically raised the question of
proper venue, along with the potential need to transfer this
matter if Fisher became the sole named class representative.
The USMMI motion to intervene was unopposed and I granted it.
The venue issue is now directly raised in the motion [Dkt. No.
141] of the United States to dismiss or transfer the case if
Fisher were to become the sole named putative class
representative.
My findings and conclusions supporting judgment
against Dillon in this litigation are set forth in Sections V
and VI of this Memorandum.
My reasoning for directing transfer
is set forth in Section VII.
III. PERSONAL AND CLASS ALLEGATIONS
Dillon was employed by Maersk Line, Limited (“Maersk”), of
which USMMI is a wholly owned subsidiary, to work on a
government-owned vessel, the USNS LOPEZ.
Maersk operates the
vessel under contract with the United States Navy’s Military
Sealift Command.
USNS LOPEZ is part of the Military Sealift
Command’s Preposition Program, which prepositions ships with
military equipment and supplies in strategic locations so that
they are available if needed.
Maersk hires civilian merchant
seamen as crew for vessels, like the USNS LOPEZ, that operate
5
under contract with the government.
Dillon was hired to serve as a Qualified Member of the
Engine Department, a physically demanding job.
During the time
that Dillon worked on the USNS LOPEZ, it was stationed in Diego
Garcia, in the Indian Ocean.
Dillon began his employment on the
vessel on March 23, 2012 and was discharged on May 29, 2012
because of to a back injury.
Dillon was medically repatriated
to the United States.
After his injury, Dillon was paid maintenance and cure as
well as unearned wages for the period of the vessel’s voyage.
He alleges that he had an expectation, based on the custom and
practice aboard the USNS LOPEZ, that he would have earned and
received overtime wages if he had continued to work on the USNS
LOPEZ during the voyage.
He was not paid any unearned overtime
wages after his discharge.
Dillon initially brought this action on behalf of himself
and others similarly situated who had not received unearned
overtime wages after medical discharge.
The proposed class
consisted of civilian seamen who had been employed by civilian
contractors and had served as crewmembers on vessels owned or
chartered by the government and administered by the Military
Sealift Command, who had suffered injury or illness in the
service of the vessel, and who were paid maintenance, cure, and
6
unearned wages but not the overtime wages they otherwise would
have earned during the voyage.
Dillon is a resident of Massachusetts.
Fisher, a member of the American Maritime Officers (“AMO”)
union, was assigned by his employer, Maersk, to a position as
second assistant engineer aboard the USNS HENSON.
The USNS
HENSON is a public Geographic Survey (or T-AGS) vessel owned by
the United States and administered by the Military Sealift
Command in its Special Mission program, also known as PM2.
T-AGS vessels conduct acoustical, biological, physical, and
geophysical surveys and provide much of the military’s
information on the ocean environment, helping to improve
technology in undersea warfare and enemy ship detection.
The government contracts with commercial entities to
operate certain public vessels on its behalf, including T-AGS
vessels.
The Military Sealift Command contracted with 3PSC LLC,
which became a subsidiary of Maersk in mid-2012, to operate the
USNS HENSON as well as certain other oceanographic survey
vessels.
3PSC LLC entered into a collective bargaining
agreement (“CBA”) and certain subsequent memoranda of
understanding with the AMO union.
Fisher boarded the USNS HENSON on February 26, 2015.
Under
the Articles of Agreement signed by Mr. Fisher, his assignment
was not to exceed four months.
This was Mr. Fisher’s second
7
assignment as a second assistant engineer aboard the USNS
HENSON.
He had previously served on the vessel for nearly four
months from July 16, 2014 through November 13, 2014.
Fisher was injured aboard the USNS HENSON on June 16, 2015
and was deemed not fit for duty.
He was subsequently discharged
from the vessel on June 18, 2015.
Following Fisher’s discharge,
Maersk paid him unearned wages in the amount of $231.88 per day
— the amount of his daily base wages — through the end of his
maximum tour on June 26, 2015.
It did not pay him the unearned
overtime wages that he contends he would have earned during the
voyage.
Fisher is a resident of South Carolina.
IV. WITHDRAWAL OF THE GOVERNMENT’S ADMISSION AND
DILLON’S MOTION FOR PARTIAL SUMMARY JUDGMENT
During the course of discovery, Dillon served multiple
requests for admissions, including two requests on July 31,
2014.
The July 31, 2014 requested admission at issue in
Dillon’s motion for partial summary judgment provided that
“Defendant does not contend that it would not have hired
Plaintiff if he had given what Defendant contends would be his
correct responses to the inquiries Defendant has challenged.”
The government argued that it inadvertently failed to respond to
the July 31, 2014 requests and that it would have denied this
request for admission if it had responded.
However, under FED.
R. CIV. P. 36, a party has thirty days after being served with a
8
request for admission to answer or object to the proposed
admission.
FED. R. CIV. P. 36(a)(3).
If a party does not respond
within thirty days with a specific denial, then the matter is
deemed admitted.
FED. R. CIV. P. 36(a)(3).
Dillon’s motion for partial summary judgment against the
government’s affirmative defense — that his concealment of a
pre-existing condition bars the relief requested — was based on
this admission.
The entitlement to judgment at the heart of the
government’s current contentions regarding Dillon’s
participation in this litigation, turns on the admissible
evidence regarding the affirmative defense.
Consequently, I now address more fully in writing my oral
decision to grant the government’s motion to withdraw the
admission, before turning to consider various other related
matters currently before me.
“A matter admitted under [Rule 36] is conclusively
established unless the court, on motion, permits the admission
to be withdrawn or amended.”
FED. R. CIV. P. 36(b).
I may permit
the government to withdraw its admission if doing so would
promote the presentation of the merits in this case and would
not prejudice the other party in maintaining or defending the
action on the merits.
FED. R. CIV. P. 36(b).
The Advisory
Committee’s Note to FED. R. CIV. P. 36(b) states that “[t]his
provision emphasizes the importance of having the action
9
resolved on the merits, while at the same time assuring each
party that justified reliance on an admission in preparation for
trial will not operate to his prejudice.”
Farr Man & Co., Inc.
v. M/V Rozita, 903 F.2d 871, 876 (1st Cir. 1990) (quoting FED. R.
CIV. P. 36, Adv. Comm. Note).
The government’s asserted defense, that Dillon concealed a
pre-existing condition and that this bars his entitlement to any
unearned wages — let alone to unearned overtime — is a central
issue in this case.
As explained more fully below, the
undisputed record evidence is overwhelming - apart from the
contested admission - that Dillon made false statements during
his pre-employment examination about his prior back injuries and
treatment.
What is more, this affirmative defense was asserted in the
answer and has been a central theme of the government’s
arguments and discovery requests during the pendency of this
case.
Cf. Zimmerman v. Cambridge Credit Counseling Corp., 529
F. Supp. 2d 254, 268 (D. Mass. 2008), aff'd sub nom. Zimmerman
v. Puccio, 613 F.3d 60 (1st Cir. 2010) (the proceeding contained
“no indication that Defendants were pressing the argument” to
which the admission related).
I find that the first prong of
the withdrawal test has been met; permitting the government to
withdraw this admission and fully litigate the issue of
concealment or misrepresentation of his prior condition will
10
“facilitate the development of the case in reaching the truth.”
Farr Man & Co., 903 F.2d at 876 (quoting 4A J. Moore & J. Lucas
Moore’s Federal Practice ¶ 36-08 at 36-79 (2d ed. 1990)).
The second prong of Rule 36(b) concerns prejudice to the
party that requested the admission.
FED. R. CIV. P. 36(b) places
the burden to persuasion with respect to prejudice on Dillon.
“The prejudice contemplated by the Rule is not simply that the
party who initially obtained the admission will now have to
convince the fact finder of its truth.”
Brook Vill. N. Assocs.
v. Gen. Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982).
Rather, the
prejudice inquiry focused on “the difficulty a party may face in
proving its case . . . because of the sudden need to obtain
evidence with respect to the questions previously answered by
the admissions.”
Id.
To establish prejudice, Dillon points to the fact that, at
his October 28, 2014 deposition, Mark Kelly, of Anderson-Kelly,
referenced documents that had not previously been disclosed in a
response to a request for any documentation related to the
medical examinations.
Dillon claims that he was unable to
review the documents referenced by Kelly before the deposition
and that he was unable to re-depose Kelly after reviewing the
referenced document because Kelly’s lawyer did not consent to an
additional deposition concerning the previously unidentified
documents.
Dillon claims he was sandbagged at the deposition
11
and that he would be prejudiced at this point if he had to try
to prove that he would have been hired anyway.
Dillon does not, however, allege that he relied on the
admission in conducting discovery or in questioning Kelly during
his deposition.
In fact, the deposition of Kelly, including the
numerous questions posed to Kelly about the medical examinations
and the fit-for-duty determinations, illustrates that the
parties continued actively to conduct discovery on this
question.
There is no evidence that Dillon actually relied on
the admission during the course of discovery.
Even if Dillon
had tied the admission itself to his claim of prejudice,
“[c]ases finding prejudice to support a denial [of a motion to
withdraw an admission] generally show a much higher level of
reliance on the admissions.”
Hadley v. United States, 45 F.3d
1345, 1349 (9th Cir. 1995) (providing examples of prejudice,
such as a party’s attempt to withdraw an admission after the
opposing party showed the admission to a jury, or falsely luring
a party to believe the issue of liability was settled resulting
in cancelation of scheduled depositions); see also Brook Vill.,
686 F.2d at 70 (providing example of unavailability of key
witnesses due to a sudden need to obtain evidence on issue
previously answered by an admission).
The government acknowledges that it probably should have
produced a full copy of the Military Sealift Command Medical
12
Manual, the document referenced by Kelly during his deposition,
though it also notes that the document is available to the
public and was referenced in numerous other documents.
When
Kelly declined to be deposed a second time, Dillon did not seek
court process to compel a second deposition.
While Dillon has
pointed to a likely error during the course of discovery, he has
not tied this in any way, let alone a way that prejudices him,
to the contested admission.
Given the materiality of the subject of the admission and
the lack of a showing of prejudice, I permitted the government
to withdraw its admission.
V. DILLON’S MEDICAL HISTORY AND PRE-EMPLOYMENT
MEDICAL SCREENING
Based upon the entire record and the evidentiary hearing I
conducted to expand the summary judgment record and specifically
to assess Dillon’s credibility as a predicate to making findings
of fact and conclusions of law pursuant to FED. R. CIV. P. 52, I
find as follows.
Dillon has a long history of problems with his back.
In
1991, he injured his lower back while working on another vessel.
He received treatment and medication but was unable to work for
a period of time due to that injury.1
After an initial MRI in
1
I note that, while not mentioned in the parties’ respective
statements of fact in connection with the summary judgment
submissions, in 1991 Dillon’s doctor wrote in a letter stating:
“He is permanently unfit for duty as a seaman.”
13
1991, Dillon was diagnosed with “spondylolisthesis . . . grade
one with a slipping disc” and was told that this is a
degenerative spinal disease.
Dillon described the pain he
experienced in 1991 as an “electrical feeling,” a feeling he
admitted having other times between 1991 and 2012.
He also
described an “electrical feeling” down his left leg at the time
of the most recent injury while working on the USNS LOPEZ,
although he initially reported this injury as a strain.
Dillon has suffered chronic lower back problems since the
1991 injury.
Moreover, he strained his neck and shoulder in
1995 and received treatment for his lumbosacral spine.
In September 2000, while working for Central Gulf aboard
the GREEN WAVE, Dillon injured his lower back again.
He
received treatment at the New England Baptist Hospital Spine
Program and returned to work in May 2001.
On August 15, 2001, Dillon had an incident of severe back
pain while working on the CAPE DOMINGO.
He went out of work
between August 17, 2001 and December 10, 2001.
On January 15,
2002, Dillon injured his back after he had returned to work on
the CAPE DOMINGO.
He received treatment for this condition
through at least July 2002.
On July 11, 2002, Dillon’s treating
orthopedist diagnosed him with spondylosis, disk bulge, and
moderate stenosis.
14
Dillon was hit by a car while riding a bicycle in early
January 2006.
A new MRI was ordered in February 2006, which
again led to a diagnosis of spondylolisthesis with multi-level
disc degeneration.
Lower back surgery was recommended for him
in 2006.
Dillon applied for Social Security Disability Insurance
with an onset date of January 6, 2006 and received SSDI
benefits.
The Social Security Administration ordered two
Physical Residual Functional Capacity Assessments, one in July
2006 and the other in December 2006.
These assessments found
that Dillon’s ability to lift and stoop were restricted and that
he should be limited to two hours of standing or walking in an
eight-hour work day.
Dillon ultimately had to pay back some of
the disability payments he received because he returned to work
after he was found eligible for benefits.
Dillon was briefly at sea in 2007, and then worked as an
electrician on three voyages from January 2, 2008 to May 27,
2008.
In June 2008, after being discharged from the vessel
following the voyage, Dillon received acupuncture treatment for
back pain.
He again worked as an electrician for less than two
months, from December 2008 to February 2009.
In June 2009,
Dillon was referred to occupational therapy and acupuncture for
back pain.
He had previously also sought a refill of a Vicodin
prescription that had been prescribed by a different doctor.
15
In February 2010, Dillon visited his doctor at Harbor
Health and sought clearance to return to work as well as
documentation of a need for a bathtub bar due to chronic pain.
He was authorized to return to work and approved for
installation of the bar.
The record is not clear about why
Dillon was out of work at that time.
Dillon did not go to sea
again for three years, until he departed on the May 23, 2012
voyage aboard the USNS LOPEZ that led to the relevant injury in
this lawsuit.
During that three-year period, he held a
sedentary job doing gangway watches on a coal boat that called
in Boston.
On February 13, 2012, Dillon attended a pre-employment
medical screening at Logan Health Center as required by Maersk
before a seaman is permitted to serve on a vessel.
Maersk
contracted with Anderson-Kelly Associates, Inc. (“AndersonKelly”) to conduct these screenings.
Such screenings include an
examination by a physician based on a medical examination
history questionnaire filled out by the seaman.
After the
screening, Anderson-Kelly designates a seaman as either fit-forduty, temporarily not-fit-for-duty, or not-fit-for-duty.
The
examination is directed toward the seaman’s medical suitability
to perform the tasks required of him during the voyage.
The
medical examination history questionnaire is designed to elicit
information that is material to Maersk’s decision about whether
16
to hire a particular seaman.
Maersk tries to identify whether
seamen have pre-existing conditions because it is liable for
employee health, including for any complications from a preexisting condition that manifest during a voyage.2
During Dillon’s screening, he filled out and signed a
medical examination history questionnaire.
The questionnaire
included a list of conditions, one of which was “Back, neck or
spine pain trouble or treatment,” with a space to check yes or
no and a request for the seaman to “fully explain” an
affirmative answer.
“strained.”
Dillon checked yes and explained
In response to the question, “Have you ever had, or
have you been advised to have any operations or surgery?,”
Dillon checked “no.”
In response to the question, “Have you
ever had illness or injury other than those already noted?,”
Dillon checked “no.”
In response to the question, “Have you
ever consulted or been treated by clinics, physicians, healers,
or other practitioners within the past 5 years for other than
minor illness?,” Dillon checked “no.”
In response to the
2
It bears noting that Dillon brought four prior personal injury
lawsuits concerning ship-based injuries. These concerned a 1987
hand injury, a 1991 lower-back injury, a 1995 shoulder/neck
injury, and a 2000 lower-back injury. He has brought two
additional personal injury lawsuits, one for the 2006 incident
when he was hit by a car while bicycling and the other when he
was struck by a board falling off a truck on an unknown date.
The parties’ statements of undisputed facts do not make clear
whether Dillon was repatriated during his previous ship-board
back injuries, but there is evidence in the record to suggest
that he had been.
17
question, “Have you ever received, or is there pending, or have
you ever applied for pension or compensation for any disability
or injury?,” Dillon checked “no.”
In response to the question,
“Have you ever been medically repatriated and or discharged from
any vessel for medical reasons? If yes, why?,” Dillon checked
“yes” and noted that he was sick in Russia.
The examining
physician certified that Dillon was fit for duty.
Although
Anderson-Kelly had Dillon execute an authorization to permit
records to be obtained, Anderson-Kelly did not itself undertake
to do so.
Mark Kelly, the executive vice president of Anderson-
Kelly and the company’s custodian of records, testified at his
deposition, as an administrator overseeing the fit-for-duty
determinations, and I find that the standard practice was not to
examine outside records absent something triggering such further
inquiry.
Maersk expected that Anderson-Kelly would find a seaman to
be temporarily not-fit-for-duty and would conduct further
inquiry if the seaman was recommended for lower back surgery,
had received SSDI payments for a lower back condition, suffered
from spondylolisthesis, had a twenty-year history of back
problems, or had multiple back injuries while working aboard
vessels.
When Maersk seeks to hire a seaman with a condition
that would be considered disqualifying, Maersk must obtain a
waiver from Military Sealift Command’s Force Surgeon.
18
If Dillon
had been found temporarily not-fit-for-duty, he would not have
been permitted to sail on the voyage on the USNS LOPEZ.
As will appear in the fuller discussion of Section VI
below, I find as a matter of fact that Dillon intentionally made
material misrepresentations and omissions to create the false
impression that his medical condition raised no relevant issues
about his ability to perform the job he sought.
Moreover, I
find that, if “proper information had been given,” he would not
have been engaged for service on the USNS LOPEZ.
See infra at
32-33.
VI. CONCLUSION AS TO THE AFFIRMATIVE DEFENSE REGARDING DILLON
The government presses for judgment on the affirmative
defense that Dillon’s material misrepresentation bars recovery
of any relief he seeks in this litigation.
The government
argues that the misrepresentations I have now found in Section V
bar his claims for unearned overtime wages under the so-called
McCorpen defense.3
Maritime law has traditionally afforded a remedy of
maintenance and cure for a seaman who suffers injury or becomes
sick during his service; in addition, “[a] seaman who is injured
3
The Fifth Circuit’s decision in McCorpen v. Central Gulf
Steamship Corp., 396 F.2d 547 (5th Cir. 1968), is often cited as
the origin of this defense, though courts applied a similar
approach to such claims prior to that. See generally, e.g.,
Tawada v. United States, 162 F.2d 615 (9th Cir. 1947); Evans v.
Blidberg Rothchild Co., 382 F.2d 637 (4th Cir. 1967).
19
or becomes sick during his service is granted the wages he would
have earned had he been able to complete the contractual terms
of his employment.”
THOMAS J. SCHOENBAUM, ADMIRALTY
AND
MARITIME LAW
§ 6:29 (6th ed. 2018) (citations omitted). “The right to
unearned wages is correlative to the right to maintenance and
cure; thus the seaman will be awarded all three or none at all.”
Id.
(citations omitted).
The more extensive case law on
maintenance and cure is instructive with respect to the right to
unearned wages, and I rely on that case law in reaching my legal
conclusions regarding the defense here.4
“The remedy of maintenance and cure is deliberately
expansive,” and extends to require a shipowner to pay
compensation for injuries or illnesses stemming from a
preexisting medical condition.
Ramirez v. Carolina Dream, Inc.,
4
I note that Dillon and Fisher had employment relationships with
the relevant shipowners and that these relationships provided
predicates for negligence actions under the Jones Act. Brown v.
Parker Drilling Offshore Corp., 410 F.3d 166, 178 (5th Cir.
2005). Dillon’s separate Jones Act lawsuit, which was also
assigned to my docket, has been settled by the parties. See
Dillon v. United States, Civil Action No. 13-10051-DPW, Dkt. No.
34 (D. Mass, May 22, 2014). Similarly, Fisher’s separate Jones
Act lawsuit in the District of South Carolina has also been
settled. See Fisher v. United States, Civil Action No. 2:1503396-PMD, Dkt. No. 26 (D.S.C. October 4, 2016).
The parties have not explored at this point in the litigation
whether — and, if so, to what degree — the loss of wages remedy
under the Jones Act may give rise to a set off for damages in
this litigation. THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 6:29
(6th ed. 2018) (“[W]here loss of wages has been awarded to the
seaman in a Jones Act negligence action, there will be a
deduction of unearned wages paid to prevent double recovery.”)
(citations omitted).
20
760 F.3d 119, 122-23 (1st Cir. 2014).
Indeed, “[t]he doctrine
is ‘so broad’ that the seaman’s ‘negligence or acts short of
culpable misconduct . . . will not relieve the shipowner of the
responsibility.’”
U.S. 1, 4 (1975)).
Id. (quoting Vella v. Ford Motor Co., 421
A shipowner’s duty to provide maintenance
and cure is meant to “assure its easy and ready administration,
for it has few exceptions or conditions to stir contentions,
cause delays, and invite litigations.”
Vella, 421 U.S. at 4.
However, courts have uniformly recognized an exception to
this rule arising in circumstances where the seaman engages in
culpable misconduct.
Often called the McCorpen defense, this
exception has taken slightly different forms in different
circuits, but generally derives from the principle that
“[compensation] will be denied where [a seaman] knowingly or
fraudulently conceals his [preexisting] illness from the
shipowner.”
McCorpen v. Central Gulf Steamship Corp., 396 F.2d
547, 548 (5th Cir. 1968).
Courts also agree that, in the
absence of a pre-employment medical examination, “a seaman must
disclose a past illness or injury only when in his own opinion
the shipowner would consider it a matter of importance,” and
that the burden is on the shipowner to establish that the seaman
could reasonably be expected to have considered his medical
history a matter of importance.
Id. at 548-49; see also Ahmed
21
v. United States, 177 F.2d 898, 900 (2d Cir. 1949); Burkert v.
Weyerhaeuser Steamship Co., 350 F.2d 826, 831 (9th Cir. 1965).
Courts disagree, however, on the scope of the defense in
circumstances where a seaman is required to submit to a prehiring medical examination or interview and the seaman
misrepresents or conceals material medical facts.
In the Fifth
Circuit, and several others, a seaman is not entitled to
maintenance and cure if “(1) the claimant intentionally
misrepresented or concealed medical facts; (2) the non-disclosed
facts were material to the employer's decision to hire the
claimant; and (3) a connection exists between the withheld
information and the injury” for which maintenance and cure is
sought.
Brown v. Parker Drilling Offshore Corp., 410 F.3d 166,
171 (5th Cir. 2005); see also West v. Midland Enters., Inc., 227
F.3d 613, 617 (6th Cir. 2000); Wactor v. Spartan Transp. Corp.,
27 F.3d 347, 352 (8th Cir. 1994); Siders v. Ohio River Co., 469
F.2d 1093, 1093 (3d Cir. 1972); Vitcovich v. Ocean Rover O.N.,
106 F.3d 411 (9th Cir. 1997); Jackson v. NCL America, LLC, 730
F. App’x 786 (11th Cir. 2018) (per curiam).
In these courts,
the examination is “essentially objective inquiry,” Brown, 410
F.3d at 174, meaning it is “less reliant on determinations of a
seaman’s credibility, than other Circuits’ comparable tests.”
Id. at 175.
A “[f]ailure to disclose medical information in an
interview or questionnaire that is obviously designed to elicit
22
such information . . . satisfies the ‘intentional concealment’
requirement.”
Id. at 174 (quoting Vitcovich, 106 F.3d 411).
However, other courts, and in particular the Second
Circuit, have chosen a more subjective rule that also considers
a seaman’s good faith, holding that “concealment of a previous
condition is fraudulent only if the seaman knows or reasonably
should know that the concealed condition is relevant,” even if
the employer conducts a medical examination.
Sammon v. Cent.
Gulf S.S. Corp., 442 F.2d 1028, 1029 (2d Cir. 1971).
A seaman
will still be entitled to maintenance and cure if there was “an
honest failure to disclose his prior condition.”
Id.
While the parties discuss rules from various circuits in
their memoranda, they do not confront a threshold dimension for
me.
The First Circuit has never adopted the McCorpen defense;
nor has it stated that it sides with the Second Circuit on this
issue.
To be sure, the First Circuit acknowledges that a
seaman’s culpable misconduct will relieve a shipowner of
responsibility for maintenance and cure.
F.3d at 123.
Carolina Dream, 760
The First Circuit in Carolina Dream also quoted
approvingly language from DiBenedetto v. Williams, 880 F. Supp.
80, 86 (D.R.I. 1995), that “maintenance and cure may still be
awarded plaintiff notwithstanding a pre-existing condition as
long as that condition is not deliberately concealed and is not
disabling at the time the seaman signs on for the voyage.”
23
Carolina Dream, 760 F.3d at 123.
The term “disabling” in
DiBenedetto was not fully defined, but appears in context to
mean that it would prevent a seaman from performing his duties
on a voyage.
DiBenedetto, 880 F. Supp. at 87 (“he was not
disabled from his duties as a seaman”).
I also look to a trio of cases decided by Judge Aldrich, a
particularly able admiralty judge in the First Circuit, during
his time on this court.
In all three, Judge Aldrich held that,
because the obligation to pay maintenance imposes near-absolute
liability on a shipowner, a seaman owes a shipowner a high duty
of good faith in the initiation of employment.
Hazelton v.
Luckenbach Steamship Co., 134 F. Supp. 525, 527 (D. Mass. 1955);
see also Fardy v. Trawler Comet, Inc., 134 F. Supp. 528, 529 (D.
Mass. 1955); Lorensen v. Jenney Manufacturing Co., 155 F. Supp.
213, 214 (D. Mass. 1957).
“[T]he failure of the seaman seeking
employment to inform the shipowner of a disabling disease of
which the seaman is aware is a breach of duty.”
Hazelton, 134
F. Supp. at 527.
Judge Aldrich treated the obligation of candor as to some
degree subjective, observing that a seaman who may not be aware
of the full extent of his disease and therefore fails to
disclose the condition is less culpable than one who engages in
an “affirmative misrepresentation.”
Id.
Disclosure is also
only required “when, in the opinion of the seaman, the shipowner
24
would consider [the prior medical conditions] matters of
importance.”
Lorensen, 155 F. Supp. at 214.
If, however, the
seaman’s belief that he is fit for service or that his condition
is immaterial is unreasonable, the seaman has no justification
for failing to disclose and this would rise to the level of an
affirmative misrepresentation that would relieve a shipowner of
liability.
Id. at 527-28; see also Fardy, 134 F. Supp. at 529.
Read together, this trio of cases suggests an approach that
is closer to the Second Circuit approach than to a purely
objective McCorpen defense.
Nevertheless, Judge Aldrich’s
approach in these decisions effectively requires a seaman to
disclose information in response to a medical examination, or
spontaneously when the condition is sufficiently serious, or
else risk being denied maintenance and cure.
They do, however,
permit some leeway for seamen acting in good faith who fail to
disclose a condition they have no reason to know would be
material to the shipowner’s determination, even after a medical
examination.
Two other judges sitting in the District of Massachusetts
have addressed similar factual claims.
In Capone v. Boat St.
Victoria, No. 85-1656-MC, 1989 WL 47387 (D. Mass. Apr. 27,
1989), Magistrate Judge Collings considered the claims of a
seaman with a multi-year “history of chronic low back pain with
radiation into the right leg” who had been diagnosed as having
25
disc degeneration.
Id. at *3.
Judge Collings found after trial
based on specifics of the seaman’s medical history that the
shipowner had “failed to prove that [the seaman] held an opinion
that his back condition was such that the shipowner would
consider it a matter of importance.”
Id. at *6.
Judge Collings
also noted, however, that “this would be a different case if the
shipowner had inquired as to whether [the seaman] had back
problems and [he] denied it.”
Id. at *7.
More recently, in
Stone v. Mormac Marine Transport, Inc., No. 93-12719, 1995 WL
411220 (D. Mass. May 8, 1995), Judge Gertner granted summary
judgment to a shipowner where a seaman had failed to disclose
prior back or neck complaints during pre-employment inquiries.
She observed that “[t]he failure to disclose was hardly
inadvertent.
He was expressly asked if he had back problems; he
never mentioned it.”
Id. at *3.
With this additional perspective regarding the treatment of
a failure-to-disclose defense by judges sitting in this Circuit,
I now turn to the parties’ arguments about whether the elements
that make up an affirmative defense based on deliberate
concealment were met here.
It is undisputed that Dillon
provided at least some incorrect answers during the medical
screening.
For example, he indicated that he had never been
recommended for back surgery and that he had never applied for
or received disability benefits, although he had done both.
26
Other answers during the screening were partial or incomplete;
for example, when asked whether he had “Back, neck or spine pain
trouble or treatment,” Dillon checked yes and provided an
explanation that, at best, grossly understated the problem.5
Because of the lack of definitive guidance from the First
Circuit about whether, and to what extent, I may consider
Dillon’s subjective intent to misrepresent his condition, I
conducted an evidentiary hearing to evaluate Dillon’s
credibility before determining whether judgment should enter
against him.
During his testimony at that evidentiary hearing, Dillon
acknowledged he wrote down “strained” as an explanation to the
“back, neck or spine pain trouble or treatment” inquiry.
He
explained that “[t]hat’s what doctors called it, ‘strained or
sprained.’”
Notably, however, he recognized that his condition
was “degenerative” - one that gets worse over time - and that
was why he needed a second surgery.
Meanwhile, in his
application for SSDI, in response to the question “how do your
illnesses, injuries or conditions limit your ability to work?,”
he wrote “I cannot lift the things I need to lift without
risking injury to my back,” and described his spondylolisthesis
as “muscle skeleton problem with bruised flattened spinal cord”;
5
Dillon used the term “strain” to refer to his disability injury
aboard the USNS LOPEZ, despite the fact the injury was
previously determined to be related to his back condition.
27
“slipping disc that slips and shoots pain in left leg and right
arm.
Burning pain in chest, back, R[ight] arm.”
Dillon’s explanation of the term “strained” in the pre-
employment medical screening inquiry concerned precisely the
medical condition he contended was disabling in his SSDI
application.
He plainly knew what his condition was and
understood its significance for his ability to work, yet he
failed to communicate that on his pre-employment medical
screening forms.
He was a person having significant chronic
back pain dating back to 1991 — pain that he had repeatedly
maintained was sufficient to hinder his employment ability.
It
was affirmatively misleading to “explain” that the pain was
something that could be described as a modest “strain” not
requiring further disclosure, especially when the form itself
sought to elicit such information.
See Brown, 410 F.3d at 174;
Lorensen, 15 F. Supp at 213.
Dillon observed that he authorized Anderson-Kelly to
receive his prior medical records from the Seafarer’s Health and
Benefits Plan.
He appears to suggest that, as a consequence, he
did not need to be forthcoming in his answers or fully disclose
his medical condition.
But intentional omission to state
material facts is not excused because the shipowner may have
access to other evidence that partially addresses the
information that was omitted.
28
Dillon has also testified specifically regarding the
circumstances in which he filled out the employment form.
stated, “I had no glasses in the office.
inside, no windows at all.”
He
The lights — you’re
At another point he stated that the
questionnaire was in “so small a print, and I’m in a dark room
over at the airport.
There’s no lights.
let’s put it that way.”
There’s no windows,
In addition, he mentioned eye problems
when he was asked to look at the questionnaire during the
deposition.
He said, “I can’t—I need reading glasses.
It’s all
blurry and if I strain, everything gets blurry, and I have my
glasses at home.
I only use them when I read, but if I squint
and squint, it could make me lose my vision for distance.
happened to me once.”
It
I find this testimony unpersuasive as
essentially an expression of willful blindness regarding the
questions he was being asked.
During the evidentiary hearing, Dillon testified that back
surgery was not “recommended” to him.
He asserted that surgery
was discussed as something that the doctor could do, and that it
was the doctor’s job.
I find this explanation unconvincing as
an excuse for why he answered the employment form inquiries in
the negative.
When asked at his deposition why he did not
mention prior neck problems, he stated “So I made a mistake, but
— I overlooked something,” as well as “I made a mistake on here.
I mean, mistakes happen, but the bottom line is I didn’t lie
29
about broken bones or a back problem, right?
I might have
overlooked something.”
When Dillon was questioned in his deposition about why he
answered “no” in response to the questions about pension or
compensation for disability or injury, he answered that he
understood the question to refer to pension or disability
through the union.
Throughout his deposition when discussing
the questionnaire, Dillon repeatedly mentioned that his doctor
through the Seafarers International Union had all of his medical
records.
Dillon’s repeated statements can be understood to mean
that he believed that the doctor he saw through the union could
be counted on to provide his medical records to Anderson-Kelly
during the pre-employment screening permitting them to conduct a
thorough review.
This is an unpersuasive effort to distract
attention from his own obligation of candor and failure to
fulfill it.
Ultimately, Dillon argues that, given his partial
disclosure of his back problems by mentioning a history of back
strain and given some evidence of his difficulty understanding
or even reading much of the questionnaire, the proper question
is not merely whether he objectively provided incorrect answers
on the medical questionnaire but whether he subjectively
believed himself fit for duty at the time he started work on the
USNS LOPEZ.
However, even under a subjective standard, Dillon’s
30
arguments fail.
Dillon knowingly provided incorrect answers in
a questionnaire – including answering “no” when asked about
recommendations for surgery or other significant medical
treatment.
His conduct, therefore, constitutes an affirmative
misrepresentation rather than a mere failure to disclose.
Hazelton, 134 F. Supp. at 527.
I find it more likely than not
that he did not subjectively believe he was fit for service; in
any event, evidence of record fails to support an inference
that, given his medical history, such belief would have been
reasonable.
Nor can Dillon rely on the fact that he did not understand
the nature of his condition or the questions being asked in the
questionnaire to defeat the government’s defense.
See generally
Ahmed, 177 F.2d at 900 (holding that an Egyptian seaman who
failed to disclose his tuberculosis was entitled to maintenance
and cure because his nondisclosure was due, in part, to his weak
grasp of English).
There is no basis to conclude that Dillon
did not understand his medical condition, and the questions
asked of Dillon, a native English speaker, were much more
specific than those asked of the seaman in Ahmed, the case on
which Dillon unpersuasively seeks to rely.
Dillon was aware of his chronic back pain and knew that it,
and his generally unstable medical condition, affected his
ability to lift on board the vessel, an important duty as part
31
of his employment.
For these reasons, I find after assessing
his credibility during live testimony, that Dillon should have
known — and indeed did know — that the shipowner would have
considered the non-disclosure to be a matter of importance.
See
Brown, 410 F.3d at 175 (“The fact that an employer asks a
specific medical question on an application, and that the
inquiry is rationally related to the applicant’s physical
ability to perform his job duties, renders the information
material for the purpose of this analysis.”).
Finally, the government has adduced evidence that persuades
me Maersk would have expected a seaman to be found temporarily
not-fit-for-duty if a medical history like Dillon’s had been
fully and accurately disclosed.
Whether Maersk might ultimately
have hired him for a different task or to do work in a different
capacity is immaterial.
Evidence before me establishes the
reasons that each of the questions would be relevant to a
determination of whether a seaman is fit-for-duty.
I find that
if the proper information had been given, it would have made
Dillon at least temporarily not-fit-for-duty while a further
review was conducted, and Dillon would not then have been aboard
the USNS LOPEZ in the position for which he was unknowingly
hired when he was injured.6
6
Dillon also briefly argues that the medical examinations here
are “pre-voyage” rather than “pre-employment” based on a
characterization in the government’s brief. Regardless of the
32
Based on the evidence in the record, I conclude that
Dillon’s course of conduct bars his claims for unearned overtime
wages and the government is entitled to judgment on its
affirmative defense.
As a result, since judgement will be
entered against him, Dillon cannot represent the claims of any
putative class in this litigation.
VII. TRANSFER TO THE DISTRICT OF SOUTH CAROLINA
Because Dillon’s claims against the United States are
barred, Fisher is now the sole named representative of the
putative class in this matter and consequently, the case must be
transferred to the District of South Carolina, where Fisher
resides.
The claims in this action are brought pursuant to the Suits
in Admiralty Act, 46 U.S.C. §§ 30901-30918 (“SIAA”) and the
Public Vessels Act, 46 U.S.C. §§ 3101-31113 (”PVA”).
Both
statutes are subject to specific venue requirements that limit
where a plaintiff may pursue his claims.7
descriptive label employed, Dillon’s examination was one
designed to determine medical eligibility for a particular job
on a particular voyage and is the type of examination discussed
in McCorpen and the other cases recognizing this affirmative
defense.
7 The fact that this case is a class action does not alter the
operative venue considerations. As a general matter, the same
statutory provisions that govern venue for nonclass actions
govern in class actions, and may be satisfied only if the named
parties satisfy the requirements for venue. See e.g., United
States ex re. Sero v. Preiser, 506 F.2d 1115, 1129 (2d Cir.
1974); Turnley v. Banc of America Investment Services, Inc., 576
F. Supp. 2d 204, 212 (D. Mass. 2008).
33
The PVA, specifically, provides that a civil action
involving a public vessel “shall be brought in the district
court of the United States for the district in which the vessel
or cargo is found within the United States.”
§ 31104(a).
46 U.S.C.
If the vessel is not within the territorial waters
of the United States when the action is filed, venue is proper
“in the district court of the United States for any district in
which any plaintiff resides or has an office for the transaction
of business.”
46 U.S.C. § 31104(b).
Similarly, the SIAA provides that, in suits in admiralty
against the United States, venue is proper in the district court
for the district in which “(1) any plaintiff resides or has its
principle place of business; or (2) the vessel or cargo is
found.”
46 U.S.C. § 30906.
The Supreme Court has “h[e]ld that the Public Vessels Act
was intended to impose on the United States the same liability
(apart from seizure or arrest under a libel in rem) as is
imposed by the admiralty law on the private shipowner.”
Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 228
(1945).
Moreover, “[t]he Public Vessels Act provides that suits
thereunder shall be subject to and proceed in accordance with
all consistent provisions of the Suits in Admiralty Act.”
Thomason v. United States, 184 F.2d 105, 108 (9th Cir. 1950).
Because the SIAA’s venue provision is consistent with the PVA’s,
34
I will look to the PVA to determine where venue is appropriate.
It is well settled that venue is proper in the district “in
which the vessel [at issue] is physically located at the time
the complaint is filed.”
Wade v. Bordelon Marine, Inc., 770 F.
Supp. 2d 822, 826 (E.D. La. 2011).
Wade took the approach that,
“under the PVA, there is a succession of venue inquiries, rather
than a choice for the plaintiff: first, if the vessel is found
within a district when the complaint is filed, venue lies in
that district.”
Id.
“Second, if the vessel is not found within
the territorial waters of the United States, then venue lies
where any plaintiff resides (or any district, if no plaintiff
resides in any district).”
Id.
“Congress likely intended
subparts (a) and (b) to be mutually exclusive and for subpart
(b) to apply only as a secondary venue if subpart (a) was not
first satisfied.”
Id. at 827.
Because I have found that Dillon cannot represent the
claims of the putative class here, the question becomes whether
this district is the proper venue for Fisher as the sole
potential class representative.
The parties have not disputed
the contention that, at all relevant points in this litigation,
the USNS HENSON, the vessel at issue in Fisher’s claim, was
outside the territorial waters of the United States.
Under the PVA, then, venue is appropriate where “any
plaintiff resides.”
46 U.S.C. § 31104.
35
More specifically,
venue is proper only where Fisher, the sole named class
representative, resides.
See United States ex re. Sero v.
Preiser, 506 F.2d 1115, 1129 (2d Cir. 1974)
(Venue “may be
satisfied only if the named parties to a class action meet its
requirements); Turnley v. Banc of America Investment Services,
Inc., 576 F. Supp. 2d 204, 212 (D. Mass. 2008) (“[I]n
determining whether venue for a putative class action is proper,
courts are to look only at the allegations pertaining to the
named representatives.”).
Under the circumstances, I must conclude venue in this case
is proper only in the District of South Carolina, where Fisher
resides.
The class here may not establish venue in this
District through Dillon because he can no longer participate in
this litigation.
The plaintiff class has also been afforded a
substantial period of time within which it might have put
forward a named representative who can properly establish venue
in this District.
It has failed to do so.
Accordingly, I have
no choice but to direct transfer to the District of South
Carolina, where the sole class representative, Fisher, resides.
VIII. CONCLUSION
For the reasons set forth more fully above, direct the
clerk to enter final judgment against Dillon in this litigation.
Consequently, I GRANT the motion [Dkt. No. 141] to transfer this
case to the District of South Carolina and direct the clerk to
36
do so based upon the operative pleading of the Third Amended
Complaint in which Michael Fisher is now the sole named class
representative.
Because litigation will continue in the
District of South Carolina, I act no further other than to DENY
without prejudice the motion [Dkt. No. 109] for class
certification and the motions [Dkt. Nos. 111 and 113] for
summary judgment with respect to the remaining plaintiff Fisher,
subject to further proceedings in the District of South
Carolina.8
/s/ Douglas P. Woodlock_________
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
8
In this connection, I also direct the clerk to terminate as a
motion [Dkt. No. 125] a submission which actually constitutes an
opposition submitted by Fisher’s counsel with respect to the
summary judgment motion [Dkt. No. 113] filed by the United
States. In a similar effort to complete housekeeping regarding
outstanding motions before the case is transferred to the
District of South Carolina, I grant Dillon’s motion [Dkt. No.
143] to supplement his opposition to the Government’s motion
[Dkt. No. 141] to transfer.
37
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