Delancy v. US Seafoods LLC et al
Filing
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MEMORANDUM AND DECISION ; court finds in favor of pltf in the amt of $2,500 by Judge Ricardo S Martinez. (RS)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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DONALD DELANCY,
Plaintiff,
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v.
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CASE NO. C09-1125RSM
MEMORANDUM AND DECISION
U.S. SEAFOODS, LLC, a Washington and/or a
foreign corporation, et al.,
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Defendants.
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Plaintiff Donald Delancy brings this seaman’s injury action pursuant to the Jones Act, 46 U.S.C.
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§ 30104, and general maritime law. He seeks to recover damages for a dental injury he sustained while
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working aboard a fishing vessel, together with maintenance and cure. The parties cross-moved for
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summary judgment, defendant U.S. Seafoods asking that liability, if any, be limited to a single tooth,
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and plaintiff asking for summary judgment as to liability under the Jones Act and general maritime law.
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Dkt. ## 20, 27. The Court granted defendant’s motion for summary judgment, limiting liability to
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damages directly attributable to injury and loss of tooth # 25. Dkt. # 35. The Court found that issues of
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fact regarding the accident that caused injury to plaintiff’s tooth precluded summary on his Jones Act
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negligence and unseaworthiness claims, and denied plaintiff’s motion. Id. The matter was then set for
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trial, and the parties agreed to try the issues to the Court on written submissions rather than live
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testimony.
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In the trial brief, defendant admitted liability under the Jones Act for the purpose of the trial.
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Dkt. # 44, p. 2. Thus, the only issue remaining to be determined by the Court is the amount of
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damages. Plaintiff requests $45,000 in damages; defendant contends that an amount between $1500 and
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$2500 is appropriate.
MEMORANDUM AND DECISION - 1
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Having fully considered the facts found earlier in the Order on summary judgment, the parties’
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trial briefs, and additional evidence submitted therewith, the Court now enters the following Findings of
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Fact and Conclusions of Law.
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FINDINGS OF FACT
The facts relevant to damages were determined and set forth in the Order on Summary Judgment,
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Dkt. # 35. This decision fully incorporates all facts set forth in the prior Order, and they will only be
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summarized here, supplemented where appropriate with facts found from the parties’ trial submissions.
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1. Plaintiff Donald Delancy was a crewman on the F/V Alaska Beauty on September 18, 2006,
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the date he was injured. The vessel was moored at the dock in Alaska. Captain George Hutchings
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directed the crewmen to make repairs to a net reel, which required climbing the gantry. The gantry was
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reached by a six-foot stepladder. Plaintiff held the ladder steady while Troy Tyehouse ascended to
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make the repairs with a wrench.
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2. Captain Hutchings testified in his deposition that Mr. Tyehouse had completed the task and
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was descending the stepladder when he slipped and fell backward, landing on the deck. Mr. Tyehouse
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was not injured, but the wrench he held in his hand struck plaintiff in the mouth.
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3. Plaintiff saw dentist James Arneson, D.D.S. in Kodiak that same day. Dr. Arneson noted that
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tooth # 25 was fractured and teeth ## 24 and 26 were loose. He also noted existing periodontal disease.
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Dr. Arneson splinted the teeth together with a Kevlar ribbon and advised plaintiff to “take it easy.”
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Plaintiff returned to work on the ship and worked at least until September 29, 2006, when he was
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diagnosed with bronchopneumonia. Plaintiff advised the doctor he saw that day, John Koller, M.D.,
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that he planned to fly to his home in Sequim, Washington, that same night. Dr. Koller advised plaintiff
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to stay in town for a day or two, until he felt better able to fly. He also advised plaintiff to follow up
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with a dentist regarding his tooth and with a doctor regarding his pneumonia upon returning to Sequim.
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The records available to the Court do not indicate when plaintiff actually returned to Washington State.
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4. Plaintiff saw Gary Lange, D.D.S. in Sequim on November 6, 2006. Dr. Lange referred
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plaintiff to a specialist, Dr. Stig Osterberg, for consideration of an implant to replace tooth # 25. Dr.
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Osterberg found sufficient bone to support an implant at tooth # 25. He also noted moderate to severe
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MEMORANDUM AND DECISION - 2
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periodontal disease, and recommended scaling and root planing. Dr. Osterberg’s chart notes indicate
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that at the time of this visit, plaintiff was already missing ten teeth, in addition to the broken tooth # 25.
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Four of the missing teeth were wisdom teeth which are commonly removed in adults.
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5. Defendant paid the bill for the visit to Dr. Lange. Dr. Osterberg’s bill was sent to plaintiff,
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pursuant to office policy to bill patients directly. Plaintiff neither paid the bill nor presented it to
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defendant for payment. As a result of non-payment, Dr. Osterberg declined to see plaintiff for further
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treatment.
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6. Plaintiff did not seek further dental treatment until October 19, 2009, more than three years
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after the shipboard injury, and several months after this lawsuit was filed. Dr. Lange extracted seven
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more teeth and then developed a plan for restoration, including crowns and fillings, for an estimated cost
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of $8,533. Plaintiff did not proceed with the treatment plan, but later consulted a different dentist, Dr.
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Douglas Wilkey, D.D.S. Dr. Wilkey originally estimated a cost of $9,154.00 for treatment, but later
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updated his estimate to place the total cost at $20,073.
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7. The Court’s earlier Order limited plaintiff’s damages to tooth # 25. This was based on the
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finding that it was plaintiff’s own inaction, together with his preexisting periodontal disease, that led to
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the loss of his teeth beyond tooth # 25. The Court here re-states that finding of fact.
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8. Plaintiff testifies in his “Declaration re pain and Suffering” that he suffered extreme pain for a
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period of approximately one month after the injury. After that, the pain subsided, but he still has pain
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in his mouth “on a daily basis,” rating that pain between “5" and “7" on a scale of “1 to 10.”
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Declaration of Donald Delancy, Dkt. # 45, Exhibit 1. He further states that he has been told he needs
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dental work to relieve his pain and allow him to eat normally. Id.
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CONCLUSIONS OF LAW
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Having found these facts from the evidence presented, the Court now makes the following
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Conclusions of Law:
1. Plaintiff filed this suit pursuant to the Jones Act, 46 U.S.C. § 30104, as amended October
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2006, and general maritime law. The Court has jurisdiction of the matter pursuant to 28 U.S.C. § 1331.
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Venue is proper in this district due to defendant’s presence here. The vessel F/V Alaska Beauty was
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MEMORANDUM AND DECISION - 3
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owned by defendant, who is a resident of this district.
2. The Jones Act, originally enacted as 46 U.S.C. § 688, provides that “a seaman injured in the
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course of his employment . . . may elect to bring a civil action at law, with the right of trial by jury,
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against the employer. Laws of the United States regulating recovery for personal injury to, or death of,
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a railway employee apply to an action under this section.” 46 U.S.C.§ 30104(a).
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3. Plaintiff was a seaman within the meaning of the Jones Act on September 18, 2006.
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4. In order to prevail on his negligence claim under the Jones Act, plaintiff has the burden of
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proving, by a preponderance of the evidence, that the defendant was negligent, and that such negligence
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was the cause, however slight, of his injury. In re Hechinger, 890 F. 2d 202, 208 (9th Cir. 1989); cert.
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denied, 498 U.S. 848 (1990).
5. In order to prevail on his claim of unseaworthiness under the Jones Act, plaintiff has the
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burden of proving by a preponderance of the evidence that the F/V Alaska Beauty was unseaworthy, and
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that the unseaworthy condition was a cause of his injury. A vessel is seaworthy if the vessel and its
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parts and equipment are reasonably fit for their intended purpose, and operated by a crew which is
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reasonably adequate and competent for the work assigned. Conversely, the vessel is unseaworthy if the
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vessel or any of its equipment is not reasonably fit for its intended purpose, or if its crew is not
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reasonably adequate or competent to perform the work assigned. Ribitzki v. Canmar Reading & Bates,
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Ltd. Partnership, 111 F. 3d 658, 664 (9th Cir. 1997).
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6. Defendant, for the purpose of trial, has admitted liability “under the Jones Act and for
unseaworthiness.” Defendant’s Trial Brief, Dkt. # 44, pp. 1-2.
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7. Plaintiff has the burden of proving his damages by a preponderance of the evidence. Damages
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means the amount of money that will reasonably and fairly compensate him for the injury caused by the
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defendant.
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8. Pursuant to 46 U.S.C. § 30104, common-law rights or remedies in cases of personal injury to
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railway employees apply to a seaman injured in the course of employment. Section 53 of the Federal
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Employers’ Liability Act, 45 U.S.C. § 53, which provides for a reduction in the plaintiff’s damages as a
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result of the plaintiff’s comparative negligence, is applicable to actions under both the Jones Act and
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MEMORANDUM AND DECISION - 4
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general maritime law. See Fuszek v. Royal King Fisheries, 98 F.3d 514, 516 (9th Cir.1996), Kopczynski
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v. The Jacqueline, 742 F.2d 555, 557–58 (9th Cir.1984), cert. denied, 471 U.S. 1136 (1985).
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“Admiralty has developed and now follows its own fairer and more flexible rule which allows such
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consideration of contributory negligence in mitigation of damages as justice requires.” Pope & Talbot,
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Inc. v. Hawn, 346 U.S. 406, 409 (1953).
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9. The Court has ruled previously that defendant’s liability is limited to plaintiff’s single tooth, #
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25, so only damages related to that tooth may be awarded. Plaintiff’s statement that he suffered extreme
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pain in his mouth after the injury is credible. However, it appears that plaintiff may have delayed as
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long as five weeks after returning to Sequim before seeing Dr. Lange on November 6, 2006. He offered
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no testimony or other evidence on this point, and the Court may not speculate as to the reason for the
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apparent delay. Plaintiff has thus not met his burden of proving, by a preponderance of the evidence,
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that his pain was extreme for a full month. Nor has he proven that his pain throughout that period was
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fully attributable to the September 18 injury, where he did not seek treatment that would alleviate the
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pain until November 6. Further, his statement that he continues to suffer pain at a level of 5 to 7 on a
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scale of 10, on a daily basis, is not credible in light of his failure to seek dental care for three years after
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the 2006 visits to Dr. Lange and Dr. Osterberg. Any pain, discomfort, or difficulty in eating after 2006
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is attributable solely to plaintiff’s inaction, and his damages shall be reduced accordingly.
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10. The Court finds that $2500 will reasonably and fairly compensate plaintiff for the pain he
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experienced in the weeks following the injury to his mouth. Any pain plaintiff experienced after
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November 6, 2006 was due to his own inaction or failure to mitigate, and is not compensable.
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DECISION OF THE COURT
The Court finds in favor of plaintiff in the amount of $2,500. The Clerk shall enter judgment
accordingly.
DATED this 14th day of December 2011.
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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
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MEMORANDUM AND DECISION - 5
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