Bush v. Diamond Offshore Co.
| Decision Date | 07 April 1999 |
| Docket Number | No. CIV.A. 97-3176.,CIV.A. 97-3176. |
| Parties | Robert R. BUSH v. DIAMOND OFFSHORE COMPANY. |
| Court | U.S. District Court — Eastern District of Louisiana |
Allan Berger, Allan Berger & Associates, PLC, New Orleans, LA, Charles Bruce Colvin, House, Kingsmill, Riess & Seabolt, LLC, New Orleans, LA, David Paul Gontar, George Warren Byrne, Jr., Randy Jay Ungar, Randy J. Ungar & Associates, Inc., New Orleans, LA, for plaintiff.
Nelson W. Wager, III, Chopin, Wager, Cole, Richard, Reboul & Kutcher, LLP, Metairie, LA, for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Robert R. Bush was employed by Diamond Offshore Management Company ("Diamond") as a roustabout performing work aboard Diamond's semi-submersible drilling rig, the "Modu Ocean Star." On June 17, 1997, Bush was assisting in off loading pallet sized material from a service vessel, the M/V PAULA K. Bush and a co-employee were using tag lines to stabilize the loads as they were being lifted from the M/V PAULA K to the "Modu Ocean Star." As a load was lifted the end of a tag line held by Bush was pulled across the M/V PAULA K's deck and his leg became entangled in the line. Bush was raised off the deck of the M/V PAULA K. The load and Bush swung to the after-port side of the vessel and Bush struck the bulwark. His boot came off and he fell to the deck of the vessel. He sustained injuries as a result of this incident. Bush sued Diamond alleging that the incident and resulting damages were caused by Diamond's negligence and/or the unseaworthiness of its vessel. In addition, Bush sued Diamond claiming maintenance and cure and damages for willfully and wantonly failing to timely provide maintenance and cure.
Diamond denies it was negligent or that its vessel was unseaworthy. Instead, Diamond claims that Bush's injuries resulted in whole or part from Bush's negligence. Furthermore, Diamond claims that Bush intentionally and fraudulently did not disclose prior disabling conditions and has, therefore, forfeited his right to maintenance and cure.
The case came on for trial before the Court without a jury. The trial commenced on January 13, 1999 and concluded on January 15, 1999 with the understanding that the record would be kept open in order to take the testimony of Dr. Stuart Phillips who was out of the country at the time of the trial. Dr. Phillips's testimony was taken on March 22, 1999.
The matter is now ready for a decision. The Court having carefully considered the testimony of all the witnesses, the exhibits entered at trial, the record, and pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, hereby enters the following findings of fact and conclusion of law. To the extent that any finding of fact constitutes a conclusion of law, the Court hereby adopts it as such and to the extent that any conclusion of law constitutes, in whole or in part, a finding of act, the Court adopts it as such.
The "Modu Ocean Star" is a semi-submersible drilling vessel used to transport men and material over navigable water. It is owned, operated and controlled by Diamond.
On and prior to June 17, 1997, the "Modu Ocean Star" was being used to prospect for and produce minerals beneath the sea bed of the Gulf of Mexico off the coast of Louisiana and other states.
Robert R. Bush was employed by Diamond as a roustabout aboard the rig. His work contributed to the mission and express purpose of the "Modu Ocean Star."
The incident occurred at about 3:00 a.m. on June 17, 1997 while Bush and a co-employee, Walter Guidry, unloaded a series of pallet boards of chemical products from the work boat M/V PAULA K to the "Modu Ocean Star". The work boat was not anchored or secured to the rig. It floated unsecured and was held in position by its engines. The seas were at least six feet with winds at 15 miles per hour. A crane located on the "Modu Ocean Star" was being used to lift the pallets. The "Modu Ocean Star's" crane was about 100 feet above the deck of the M/V PAULA K.
Bush and Guidry were positioned on the work boat and would secure the lift lines or slings to the pallets. Guidry was the designated signal man and would signal the crane operator when it was appropriate to lift the board. The men would each hold on to a tag line as the load was lifted in an effort to guide the board off the work boat so it could be placed on the "Modu Ocean Star."
Because of the weather conditions, long tag lines were used.
Following this procedure several pallets were successfully lifted off of the work boat and moved onto the deck of the movable drill barge. On the occasion in question, crane operator Johnny Howard lowered the lift lines to Bush and Guidry who hooked them onto a pallet. The pallet was lifted but it was not properly balanced and had to be lowered so the lift line could be adjusted. After this was done, the load was lifted again. This time, as the load was being raised, the bitter end of the tag line swung "unreasonably fast" across the deck of the work boat. The tag line wrapped around Bush's leg. He hopped along the deck as the load was ascending in an unsuccessful attempt to free himself from the line. The pallet continued its assent. Bush was upended and raised off the deck.
At that time, signal man Guidry held up his right arm, clinched his fist and moved it from side to side, intending to signal the crane operator to immediately stop the assent. This signal was not the "emergency stop" signal designated in the defendant's safety manual. The crane operator saw Bush hopping toward the ascending load, but then lost sight of him. He stopped the assent of the load about the same time that Guidry gave the signal.
The load swung and Bush swung with it hitting the port bulwark of the work boat. When his boot came off, he fell and landed head first on the deck of the vessel.
As a result of the above-described incident, Robert R. Bush was injured. He complained of pain in the head, neck, ribs and lower back. He was treated in the medical room aboard the rig and the next day transferred to West Jefferson Hospital where he received treatment in the emergency room. Several days later he was seen by Dr. Christopher E. Cenac who continued to treat Bush until August 4, 1997. Dr. Cenac's treatment consisted of conservative care and various diagnostic tests, including MRI scans of the lumbar and cervical areas.
Bush was subsequently treated by Dr. George A. Murphy who examined him on September 4, October 20, November 10, and December 18 of 1997. Dr. Murphy saw Bush again on March 3, 1998. Based on his examination and review of the diagnostic tests, Dr. Murphy concluded that Bush had disc pathology at C5-6 and C6-7.
Bush was also examined by and received some treatment from Dr. Vernon Van Bolden. Bush saw Dr. Van Bolden periodically from November 12, 1997 through May of 1998. Dr. Van Bolden concluded that Bush sustained a lumbar strain and cervical radiculopathy with his MRI revealing disc pathology at C5-6 and C6-7.
Bush was examined by Dr. Edmund Landry on July 10, 1998 and again on November 9, 1998. Dr. Landry testified that the MRI and the EMG diagnostic studies were consistent with cervical disc pathology, but he found some inconsistency between his clinical findings and the diagnostic studies.
In his examination, Dr. Landry found that Bush's complaints of pain and weakness were on the left side whereas the MRI studies showed defects or narrowing on the right. Dr. Landry has no explanation for this discrepancy. After further reflection Dr. Landry testified that Bush's complaints are probably caused by cervical neuropathy not associated with an injury to a cervical disc. This neuropathy, according to Dr. Landry, could have been caused by the 1997 incident.
Robert Bush was also examined by Dr. Stuart I. Phillips on April 13, May 26 and August 24, 1998. Dr. Phillips examined the EMG dated November 11, 1998 and the MRIs dated July 1, 1997 and December 15, 1998.
Bush was also examined by Dr. J. Carlos Pisarello on April 27, 1998. His clinical examination was negative for any nerve root or disc pathology. Dr. Pisarello testified that although the reports of the EMG and MRI indicated nerve root and disc abnormality he disagreed with these findings. Apparently Dr. Pisarello does not place much value on EMG's or MRI's in diagnosing these types of injuries or, at best, questioned the accuracy of the radiologist who actually performed the tests.
Prior to the incident aboard the "Modu Ocean Star" in 1997 Bush was involved in several automobile accidents and received soft tissue injuries. He was symptom free, however, at the time he applied for work with the defendant.
In addition to his physical complaints Bush claims the incident caused or aggravated mental or psychological injuries. In connection with these complaints Bush was examined and/or treated by Dr. David H. Mielke, a psychiatrist selected by the plaintiff, and Dr. Richard R. Roniger, a psychiatrist selected by the defendant. Both doctors agree that Bush has some psychological pathology, but the evidence indicates that he has a history of psychological or psychiatric difficulties which long predates his employment with the defendant. In fact, in 1974, while in the United States Air Force, Bush was diagnosed as having a behavior disorder identified as an "unstable personality." He was recommended for discharge for unsuitability. While in the Air Force Bush received treatment for his mental condition.
Bush seeks to recover damages resulting from his injuries. He also claims that Diamond wantonly and willfully denied him maintenance and cure. Diamond asserts that Bush's injuries and/or disabilities predated his employment with Diamond. Furthermore, Diamond asserts that Bush intentionally and with malice failed to disclose all of his past injuries and/or...
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