Costa Crociere, SpA v. Rose

• Decision Date: 15 July 1996
• Docket Number: No. 95-377-Civ-Marcus.,95-377-Civ-Marcus.
• Citation: 939 F. Supp. 1538
• Parties: COSTA CROCIERE, S.p.A., a foreign corporation, and Family Hotel Services, Inc., a foreign corporation, Plaintiffs, v. Ewart C. ROSE, Defendant.
• Court: U.S. District Court — Southern District of Florida

939 F. Supp. 1538

COSTA CROCIERE, S.p.A., a foreign corporation, and Family Hotel Services, Inc., a foreign corporation, Plaintiffs, v. Ewart C. ROSE, Defendant.

No. 95-377-Civ-Marcus.

United States District Court, S.D. Florida.

July 15, 1996.

Michael T. Moore, Holland & Knight, Miami, FL, for plaintiffs.

Stephen A. Papy, Miami, FL, Joel C. Cronin, Romano, Eriksen & Cronin, P.A., West Palm Beach, FL, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MARCUS, District Judge.

THIS CAUSE was tried before the Court without a jury on the issue of maintenance and cure and the specific question of whether the Defendant has reached the point of maximum medical improvement. Evidence was presented on November 27 and 28, 1995 and closing arguments were heard on December 11, 1995.

The Plaintiffs filed their single-count complaint on February 24, 1995, seeking a declaration that the Defendant has reached the point of maximum medical improvement, and that therefore the Plaintiffs have no continuing obligation to provide him with maintenance and cure. The Defendant filed an answer and counterclaim on April 26, 1995.¹ The original counterclaim contains three counts. Count I seeks relief for Jones Act negligence and failure to provide prompt and adequate medical care. Count II seeks relief under the common law doctrine of unseaworthiness. Count III seeks relief for the Plaintiffs' alleged failure to provide maintenance and cure. In an Order dated June 30, 1995, the Court bifurcated this lawsuit, setting one series of pre-trial dates for Defendant's Jones Act and unseaworthiness claims, and another set of dates for issues relating to maintenance and cure. At a pre-trial conference on November 7, 1995, the parties agreed that maintenance and cure would be tried to the Court, upon the understanding that the Plaintiffs could reserve their right to raise affirmative defenses to Rose's continued entitlement to maintenance and cure at the time of a jury trial on the Jones Act and unseaworthiness claims.

After a thorough review of the evidence and materials presented at trial, and having considered the memoranda and argument of counsel, we conclude that the Defendant has not reached the point of "maximum medical improvement" as defined in the case law of this Circuit, and that therefore the Plaintiffs must continue to provide maintenance and cure. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following Findings of Fact and Conclusions of Law:

I. FINDINGS OF FACT

1. The Defendant, Ewart C. Rose, is a black, 35-year-old citizen of Jamaica and a resident alien in the United States. He resides and is domiciled in Miami, Florida. At all times material to this lawsuit, Rose was a seaman and "in the service of the vessel."

2. Plaintiff Costa Crociere, S.p.A. ("Costa") is the owner and operator of the vessel M/V American Adventure. Plaintiff Family Hotel Services, Inc. ("FHS") employed Rose while he served aboard the M/V American Adventure, from some time in early February of 1994 until June 21, 1994, when he was transferred off the vessel for medical care and treatment.

3. In February of 1987, Rose, at that time a seaman aboard a ship purportedly operated by Premier Cruise Lines, Ltd., was referred by the ship's doctor to Dr. Jonathan Gayden, a physician based in Melbourne, Florida and specializing in internal medicine. Gayden evaluated Rose on or about February 23, 1987, and found, among other things, that the Defendant suffered from hypertension and a urinary infection. Gayden prescribed separate medications for the hypertension and the infection. Rose returned for a second visit in March, 1987, at which time Gayden discovered blood in Rose's urine. During a third visit in April, 1987, Rose complained of left flank pain. Gayden then referred Rose to Dr. Wanich, who conducted a kidney biopsy.

4. In May, 1987, Dr. Gary Pearl interpreted the biopsy and prepared a report summarizing his findings. See P'tiff. exh. 49. Pearl, an Orlando, Florida-based specialist who is board certified in anatomic pathology, clinical pathology and neuropathology, diagnosed Rose as suffering from IgA nephropathy, a renal disease associated with excessive immune deposits, a component of which is immunoglobulin A.

5. IgA nephropathy is an incurable kidney disease. The exact cause of the disease, which may result in a total loss of renal function, is unknown.

6. Defendant's expert, Dr. Alan Arieff, testified that he believed Pearl's diagnosis was incorrect. Arieff, a nephrologist and professor of medicine at the University of California School of Medicine in San Francisco, is board certified in internal medicine and nephrology and is associated with the University's transplant, dialysis and renal disease programs. Arieff based his opinion on a review of the findings summarized in Pearl's report. He testified that while some of Pearl's findings were consistent with a diagnosis of IgA nephropathy, other findings suggested that Rose was suffering from malignant hypertension.² Unlike Pearl, however, Arieff did not examine the kidney tissue removed during the biopsy or review pictures or slides of the tissue. The Court therefore finds, for purposes of this Order, that while malignant hypertension may have contributed to Rose's current condition, the predominant cause is IgA nephropathy.

7. On or about June 21, 1994, while serving as a crew member on the M/V American Adventure, Rose suddenly became ill, and was removed from the ship for emergency medical care. He was airlifted to the Dominican Republic, and from there to Miami, Florida, where he was admitted to Cedars Medical Center and stabilized.

8. Dr. Luis Garcia-Mayol examined Rose upon his arrival at Cedars, and remains the Defendant's primary treating physician. Garcia-Mayol described himself as a consultant on nephropathy and internal medicine who spends 50 percent of his time with kidney dialysis patients. He testified that his examination of Rose revealed that the Defendant had suffered a total renal failure along with acute high blood pressure. Rose was immediately placed on kidney dialysis. Since then, Rose has received dialysis treatments three times a week at the Flamingo Park Kidney Center in Miami.

9. In November, 1994, Garcia-Mayol referred Rose to Dr. Joshua Miller, co-director of the Division of Transplantation, Department of Surgery at the University of Miami. Dr. Miller screened Rose in order to determine his appropriateness as a candidate for a kidney transplant. Miller concluded that Rose was a viable transplant candidate.³ Rose's brother has volunteered to donate his kidney for the operation.

10. Garcia-Mayol stated that, notwithstanding the dialysis treatments, Rose presently suffers from high blood pressure, softened bones, peripheral nerve difficulties and severe walking disabilities, all of which are attributable to his kidney disease. Garcia-Mayol testified that Rose has chronic renal failure, and that his condition has been degenerating over the past twelve months.

11. The Plaintiffs' principal expert was Dr. David Roth, a nephrologist specializing in transplantation at the University of Miami School of Medicine. Roth is medical director of the School's transplant program, working exclusively with kidneys.

12. Roth described the nature of IgA nephropathy. He explained that it is a progressive disease, in the sense that it triggers a process that results in gradual damage to the kidney, leading to an eventual loss of kidney function. He testified that no method of retarding the advance of the disease has been recognized as the standard of care, although a number of experimental drug trials have shown promise. For the moment, according to Roth, the most important factor in retarding the disease is control of hypertension, because elevations in blood pressure aggravate the condition and speed the progressive loss of kidney function.

13. Roth testified that when renal failure occurs, the body is unable to prevent the accumulation of toxins and other fluids. Without treatment on dialysis, or a kidney transplant, a patient with total renal failure will die within no more than a matter of weeks. The parties have stipulated that, without dialysis or a transplant, Rose will die. When asked by Defendant's counsel whether Rose would have to receive dialysis or a transplant in order to expect maximum improvement in his condition, Roth answered "Okay. Fine."

14. As noted above, the Defendant currently is receiving dialysis treatments. Roth explained that the purpose of dialysis is to remove from the body the toxins that otherwise would be eliminated by a functioning kidney. He testified, and we find, that a patient receiving dialysis shows a measurable improvement from the standpoint of body chemistry and overall well-being. The patient's blood will show a more moderate level of abnormalities, and cardiac function is enhanced. Roth explained that this improvement is most dramatic when the very ill begin to receive dialysis, but even those less critically ill report a better appetite and more energy over a period of weeks. He added that it is unclear how much, if any, measurable deterioration takes place between individual dialysis sessions.

15. Both Roth and Arieff testified, and the Court finds, that a patient can be maintained on dialysis for a significant period of time. Arieff estimated that a patient can live 10-20 years. Roth explained that a dialysis patient has a "reasonable life expectancy."

16. The alternative to continued dialysis is a transplant. Roth said the suitability of a patient for transplant is determined by reference to a multitude of variables. These variables include: (1) the patient's cardiac function and history of cardiac disease, if any; (2) other co-morbid factors, such as vascular disease, malignancy, high blood pressure and prior strokes; (3) the results of a psychological interview, with particular...