Davis v. Brunsman
| Decision Date | 28 January 2021 |
| Docket Number | Case No. 3:19-cv-01221-AC |
| Court | U.S. District Court — District of Oregon |
| Parties | Cory DAVIS, a seaman, Plaintiff, v. James BRUNSMAN, an individual; and Rocky Ertzberger, an individual, Defendants. |
Gordon T. Carey, Jr., Attorney at Law, Portland, OR, Nicholas J. Neidzwski, Anderson Carey Williams Neidzwski, Bellingham, WA, for Plaintiff.
Bert W. Markovich, Schwabe Williamson & Wyatt, PC, Seattle, WA, Colin J. Folawn, Schwabe, Williamson & Wyatt, Michael E. Haglund, Haglund Kelley LLP, Portland, OR, Brian C. Zuanich, Robert P. Zuanich, Pro Hac Vice, Zuanich Law PLLC, Seattle, WA, for Defendants.
Introduction
Plaintiff, Cory Davis, ("Davis"), filed this lawsuit against defendants James Brunsman ("Brunsman") and Rocky Ertzberger ("Ertzberger") seeking damages for injuries he suffered while working on the fishing vessel, the F/V ALERT ("ALERT"), as well for as maintenance, cure, and wages. Davis filed a motion to compel cure ("Motion") asking the court to direct Brunsman, the owner of the ALERT, to "immediately authorize the cervical spinal surgery prescribed by [Davis's] treating orthopedic surgeon." (Plf.’s Mot. to Compel Cure, ECF No. 34, ("Mot."), at 2.)
The court finds Davis's motion raises issues of initial entitlement to cure for Davis's current cervical spine condition and should be considered under a summary judgment standard. Because genuine issues of material fact exist with respect to the initial cause of Davis's condition and its relation to the incident on the ALERT, the Motion is denied.1
Having denied Davis's motion, the court elects the alternative of an expedited, bifurcated trial on these issues: 1) the proper diagnosis of Davis's current condition; 2) whether Davis's current condition is related his service on the ALERT; and 3) the medical necessity of the recommended cervical spine surgery.
Davis began working as a deckhand aboard the ALERT in May 2018. Toward the end of a fishing trip in mid-August 2018, the vessel's engine malfunctioned. Ertzberger owned a fishing vessel, the F/V ELVAGENE ("ELVAGENE"), which began towing the ALERT to port when, on August 22, 2018, the weather quickly turned bad. The resulting swells and rough seas damaged the ALERT and forced the crew of the ALERT to cut the tow lines to save the ELVAGENE. The ALERT laid over and sunk shortly thereafter. Davis suffered various injuries as a result of the August 22, 2018 incident ("Incident").
On August 22, 2018, as the storm worsened and after the tow lines were curt, the ALERT deckhands, Andrew Elmenhurst ("Andrew"), Patrick Elmenhurst ("Patrick"), Ty Round ("Round") and Davis, gathered in the galley. (Andrew Elmenhurst Dep.2 111:8-19; Round Dep.3 77:1-13.) When the ALERT started to tip, Andrew, Patrick, and Round exited the galley. (Andrew Elmenhurst Dep. 113:18-22; Patrick Elmenhurst Dep.4 81:6-10; Davis Dep.5 33:24-34:13.) Davis then attempted to exit the galley, but the ALERT lurched to the side and the sliding door closed in Davis's face. (Davis Dep. 36:18-24.)
According to Davis, he was unable to open the door by pushing or pulling or get to the door on the other side of the galley because of the water flooding the galley. (Davis Dep. 41:16-25, 38:15-17.) He then tried to kick the sliding door open but became pinned between the stove and the table. (Davis Dep. 42:3-7.) Davis got away from the table, punched through the glass of the sliding door, wrenched the door open, pulled himself through the door with water rushing in, and swam to the surface. (Davis Dep. 42:9-43-4.)
Davis testified that while swimming in the ocean waiting to be rescued by the ELVAGENE, he was "sucked" under water by the sinking ALERT. He "kept trying to get to the surface and it kept feeling like it was getting farther away," his "vision started to tunnel," "[e]verything slowed down," he saw a "pin light" and got a "euphoric feeling" which scared him and caused him to start kicking for what felt like "forever." (Davis Dep. 82:1-8, 84:12-85:3.) When he again reached the surface, he claimed he saw the ELVAGENE coming straight toward him. (Davis Dep. 85:2-6.)
Patrick described Davis as a "storyteller" who told inconsistent stories that Patrick learned to take "with a grain of salt" and eventually ignored. (Patrick Dep. 117:13-118:16.) While Davis's medical records reflected his claim of having been sucked down by the ALERT and struck by the ELVAGENE, Patrick testified he was able to see Davis while Davis was in the water and did not see either of those events, and he reiterated Davis would embellish stories when talking about his past. (Patrick Dep. 164:5-165:14.)
Andrew similarly described Davis as someone who embellished and told "stories that were, you know, seemingly impossible." (Andrew Dep. 217:9-22.) Andrew, like Patrick, disputed Davis's report he was hit in the head by the ELVAGENE, adding that Davis had no marks, cuts, or lacerations on his head or face and explaining that if the ELVAGENE hit someone at the speed it was moving, the person would not have survived. (Andrew Dep. 214:2-215:4.) He also challenged Davis's claim he was temporarily under water in the galley, because Davis "was outside of the galley on the side of the boat before the cabin would have been submerged under water." (Andrew Dep. 155:3-11.) Andrew, who served as the cook for the ALERT and spent much of his time in the galley, also refuted Davis's claim of being pinned by the galley table, because it "was bolted to the floor and the way that the boat rolled was not a violent or quick motion in regards to what it would take to – to, like, thrust a table that was bolted onto the ground on to Cory." (Andrew Dep. 215:13-216:7.) Finally, Andrew testified Davis was in the water for a total of approximately two minutes. (Andrew Dep. 142:10-17.)
Round also considered Davis a "bit of a storyteller," as well as a "people pleaser," and admitted he doubted his trustworthiness "a little bit." (Round Dep. 117:4-22; 119:1-3.) Round confirmed the galley door closed before Davis was able to exit the galley but testified that he helped Davis slide the door open and Davis was out of the galley within twenty-to-thirty seconds of Round's exit. (Round Dep. 78:20-79:13, 79:24-80:1, 88:4-12.) Round denied Davis had to break glass or punch his way out, or that the galley was under water as Davis made his way out. (Round Dep. 79:14-23. 80:2-8.) He also stated Davis was "right beside me all the way to the ELVAGENE" and on a floating device, and that he never saw Davis go under the water. (Round Dep. 83:12-25, 84:6-21.) Finally, he stated Davis "was never hit on the head" and "was never anywhere near the bow" of the ELVAGENE. (Round Dep. 124:25-125:10, 151:2-12.)
Davis was rescued and taken aboard the ELVAGENE. While travelling to Seattle, Washington, Davis vomited salt water, had trouble keeping things in his stomach and was not interested in eating or drinking liquids. (Brunsman Dep.6 220:18-221:4; Davis Dep. 120:6-121:23.) Upon arriving at port in Seattle, Washington, late in the evening of August 23, 2018, Davis was taken to the emergency room, where he complained of hand and arm lacerations
, nausea, vomiting, full body pain, and a headache, but specifically denied neck pain. (Ertzberger Dep.7 200:3-6; Carey Decl. dated December 14, 2020, ECF No. 35 ("Carey Decl."), Ex. F at 2, 4.) He reported multiple pieces of equipment struck him in the head and flank during the Incident. (Carey Decl. Ex. F at 3.)
Tests revealed Davis was suffering from acute renal failure
, but had no acute traumatic injury to his head, chest, or abdomen; no intracranial abnormality; and no hematoma, hemoperitoneum, or other bleeding. (Carey Decl. Ex. F at 3.) The medical provider reported a normal range of motion in Davis's neck and, with regard to Davis's cervical spine, noted: (Carey Decl. Ex. F at 5.) Davis was transferred to a hospital the next day for treatment of his renal failure. (Carey Decl. Ex. F at 3, 44.)
While in the hospital, Davis complained of pain in his right shoulder and neck region. (Carey Decl. Ex. K at 14.) Shortly after his discharge, he indicated he was experiencing muscle aches in his upper and lower extremities, but his extremities were "warm and well-perfused" with "no compartment tightness," normal range of motion, and minimal pain with palpation. (Carey Decl. Ex. K at 19-20.)
On January 26, 2019, it appears Davis completed a "Neck Disability Index"8 in which he characterized his neck pain as mild, resulting in frequent, moderate headaches; that it made it difficult to look after himself, lift heavy weights, concentrate, work, and sleep; but that it only moderately affected his ability to read, drive, and engage in recreational activities. (Carey Decl. Ex. K at 22.) On another health questionnaire, Davis reported frequent pain in his neck but no pain in his arms. (Carey Decl. Ex. K at 41.) He thereafter participated in regular manual therapy
or massage treatments for a month and consistently reported symptom improvement in his neck. (Carey Decl. Ex. K at 23-39.) In February and April of 2019, Davis reported neck pain to a physical therapist. (Carey Decl. Ex. K at 49, 50.)
Davis began treatment with Alexander Ching, M.D., an orthopedic spine surgeon ("Dr. Ching"), in May 2019, primarily for his low back and bilateral leg pain, but he also because he reported "neck issues from the accident as well." (Ching Decl. dated December 8, 2020, ECF No. 37 ("Ching Decl."), ¶ 3.) Davis elected to continue conservative treatment for...
To continue reading
Request your trial