Greenwell v. Aztar IN Gaming Corp.

• Decision Date: 04 October 2001
• Docket Number: 00-3879,Nos. 00-3753,s. 00-3753
• Citation: 268 F.3d 486
• Parties: (7th Cir. 2001) Janet Greenwell, Plaintiff, Cross-Appellant, v. Aztar Indiana Gaming Corporation, doing business as Aztar Casino, Defendant, Third-Party Plaintiff/Appellant, Cross-Appellant, v. Matthew B. Kern and Gregory J. Loomis, Third-Party Defendants/Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 486

268 F.3d 486 (7th Cir. 2001)

Janet Greenwell, Plaintiff, Cross-Appellant, v. Aztar Indiana Gaming Corporation, doing business as Aztar Casino, Defendant, Third-Party Plaintiff/Appellant, Cross-Appellant, v. Matthew B. Kern and Gregory J. Loomis, Third-Party Defendants/Appellees.

Nos. 00-3753, 00-3879

In the United States Court of Appeals For the Seventh Circuit

Argued June 6, 2001

Decided October 4, 2001

Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. No. 98 C 211--Richard L. Young, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Fairchild, Bauer, and Posner, Circuit Judges.

Posner, Circuit Judge.

We have a three- cornered dispute that raises a tangle of jurisdictional and procedural issues. The plaintiff, Greenwell, suffered back pain while walking in a casino boat on which she was employed by the owner, Aztar. (On the origins and popularity of modern riverboat gambling, see Lori Chapman, "Riverboat Gambling in the Great Lakes Region: A Pot of Gold at the End of the Rainbow or Merely 'Fool's Gold?,'" 26 U. Toledo L. Rev. 387, 390-91 (1995); Ronald J. Rychlak, "The Introduction of Casino Gambling: Public Policy and the Law," 64 Miss. L.J. 291, 309 (1995).) The boat was afloat on a navigable waterway of the United States in Indiana. Aztar referred Greenwell to two doctors, Kern and Loomis, who operated on her back-- negligently, she claims. Yet her suit, which charges both a work-related injury to her back and medical malpractice and related torts in the treatment of the injury, is not against the doctors but against Aztar. Aztar, however has impleaded the doctors, contending that they are the primary wrongdoers.

Greenwell bases federal jurisdiction primarily on the Jones Act, which applies the principles of the FELA to maritime workers, 46 U.S.C. App. sec. 688(a); Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990); Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875, 877 (7th Cir. 2001); Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 266 (2d Cir. 1963), and on the admiralty doctrine of maintenance and cure, which requires a seaman's employer to provide food, lodging, and--what is relevant here-- medical services to a seaman injured while employed on the ship. Lewis v. Lewis & Clark Marine, Inc., 121 S.Ct. 993, 997 (2001); Galveston County Navigation District No. 1 v. Hopson Towing Co., 92 F.3d 353, 357 n. 8 (5th Cir. 1996); Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 679 (2d Cir. 1971). The seaman is unlikely to have an alternative source of maintenance and cure when at sea; the doctrine thus formalizes and makes mandatory what, in its absence, would probably be a contractual undertaking by the employer. Cf. Aguilar v. Standard Oil Co., 318 U.S. 724, 730 (1943); Silmon v. Can Do II, Inc., 89 F.3d 240, 242 (5th Cir. 1996). The duty is nonwaivable, perhaps out of fear of duress against seamen who are injured, or fall sick, far from land, and so are at the mercy of their employer.

Had Greenwell's back pain been caused by an injury sustained at work, as she originally charged, and had the malpractice in treating her been committed by a doctor employed by Aztar, her employer, Aztar would have been liable in accordance with standard principles of respondeat superior. It would have been liable under both the Jones Act and the doctrine of maintenance and cure, because the malpractice would have been committed by a fellow employee acting within the scope of his employment. De Zon v. American President Lines, Ltd., 318 U.S. 660, 665-69 (1943); Fitzgerald v. A.L. Burbank & Co., supra, 451 F.2d at 679-80. Even if the doctor had been an independent contractor hired by Aztar to discharge the "cure" part of Aztar's duty of maintenance and cure, rather than an employee, Aztar would have been liable, as explained in id. at 680. But after admitting in her deposition that she had been seeing a chiropractor about her back before experiencing back pain on board the ship, she amended her complaint to drop the charge that she had been injured at work and charged instead that Aztar had either directed her to use the incompetent doctors who operated on her or had fraudulently induced or otherwise improperly compelled her to use them. Under standard tort principles (see, e.g., Reed v. Bascon, 530 N.E.2d 417, 420-21 (Ill. 1988)) that are equally applicable to maritime cases, Aztar would be liable, not vicariously but as a negligent actor, if it steered Greenwell to doctors who it knew or should have known were incompetent. Fitzgerald v. A.L. Burbank & Co., supra, 451 F.2d at 679; cf. Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1369 (5th Cir. 1988).

That's a big "if." Steering a patient to a doctor who commits malpractice is not itself malpractice or otherwise tortious unless the steerer believes or should realize that the doctor is substandard, and that is not claimed. Yet the district judge, instead of dismissing the malpractice claim on the merits and therefore with prejudice, dismissed it without prejudice. He thought it merely premature, because Greenwell hadn't completed the precomplaint review procedure to which Indiana subjects claims of medical malpractice. Ind. Code sec. 34-18-8-4; Hill v. Porter Memorial Hospital, 90 F.3d 220, 222 (7th Cir. 1996); Sherrow v. GYN, Ltd., 745 N.E.2d 880, 884 (Ind. App. 2001). The judge also dismissed Aztar's third-party claim against the doctors.

Both dismissals are interlocutory, because the remainder of Greenwell's complaint, consisting of fraud claims against Aztar that invoke the district court's supplemental jurisdiction, 28 U.S.C. sec. 1367, remains pending in the district court. The general rule in the federal system is that only final judgments are appealable. 28 U.S.C. sec. 1291. The judge purported to make the dismissals appealable by entering partial final judgments under Fed. R. Civ. P. 54(b). This was improper with respect to the dismissal of Greenwell's claims. Rule 54(b) can be used only to enter judgment "as to one or more but fewer than all of the claims or parties," with "claim" defined to include all legal grounds that are based on closely related facts. Indiana Harbor Belt R.R. v. American Cyanamid Co., 860 F.2d 1441, 1444 (7th Cir. 1988). The retained fraud claims overlap the dismissed claims too closely to satisfy this criterion. In contrast, the dismissal of the third-party claim let the doctors out of the case, thus satisfying the "fewer than all of the . . . parties" provision of Rule 54(b) and making that dismissal a final, immediately appealable judgment. So their appeal is secure.

Now it is true that interlocutory appeals are authorized in admiralty cases by 28 U.S.C. sec. 1292(a)(3), but this route isn't open to Greenwell either, and for two reasons. First, as we'll see, Greenwell failed to invoke admiralty procedures, Continental Casualty Co. v. Anderson Excavating & Wrecking Co., 189 F.3d 512, 517 (7th Cir. 1999), and second, the only interlocutory appeals that fall within section 1292(a)(3) are those that "determin[e] the rights and liabilities of the parties." This language has been interpreted to exclude procedural orders, Wingerter v Chester Quarry Co., 185 F.3d 657, 668-70 (7th Cir. 1999) (per curiam); Sea Lane Bahamas Ltd. v. Europa Cruises Corp., 188 F.3d 1317, 1321-22 (11th Cir. 1999), such as the order in this case dismissing Greenwell's claim for failure to exhaust administrative remedies. It's a sensible interpretation. A rule allowing all interlocutory orders to be immediately appealable would flood us with appeals. Anyway the purpose of the special admiralty appeal statute is merely to allow the determination of liability to be appealed without awaiting the determination of damages, Beluga Holding, Ltd. v. Commerce Capital Corp., 212 F.3d 1199, 1203 (11th Cir. 2000), consistent with the historic admiralty practice (now of course widely imitated in ordinary civil cases as well) of trying liability and damages separately. Wingerter v. Chester Quarry Co., supra, 185 F.3d at 670.

That leaves only one route for Greenwell's appeal: the doctrine of pendent appellate jurisdiction. The dismissal of Aztar's third-party complaint against the doctors is appealable by virtue of Fed. R. Civ. P. 54(b), as we have said, and Greenwell's appeal is closely related to it. But after the Supreme Court questioned the existence of the doctrine in Swint v. Chambers County Commission, 514 U.S. 35, 43-51 (1995), we turned skittish, describing it as a "controversial and embattled doctrine" in United States v. Board of School Commissioners, 128 F.3d 507, 510 (7th Cir. 1997), and invoking it not a single time in the six years after Swint was decided. Yet the doctrine clearly still lives, for it has been invoked by the Supreme Court since Swint, in Clinton v. Jones, 520 U.S. 681, 707 n. 41 (1997), where the Court said that "the Court of Appeals correctly found that pendent appellate jurisdiction over this issue was proper." Cf. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 770 n. 2 (2000). It has also been invoked by our sister circuits. See Comstock Oil & Gas Inc. v. Alabama & Coushatta Indian Tribes, 261 F.3d 567, 571 (5th Cir. 2001); Streit v. County of Los Angeles, 236 F.3d 552, 559 (9th Cir. 2001); In re Stoltz, 197 F.3d 625, 629 (2d Cir. 1999); Twelve John Does v. District of Columbia, 117 F.3d 571, 574-75 (D.C. Cir. 1997). This is an apt case for the use of the doctrine. Greenwell's malpractice claim against Aztar is entwined with Aztar's indemnity claim against the doctors (Greenwell is trying to hold Aztar liable for the doctors' acts, and indemnity depends on whether she succeeds), and since we must decide the latter, we might as well decide the former at the same time and head off a second appeal--so this is one of those cases in which allowing an interlocutory appeal prevents rather than produces...