Falconer v. Penn Maritime, Inc.

• Decision Date: 21 October 2005
• Docket Number: No. CIV.05-42-B-W.,CIV.05-42-B-W.
• Parties: Bruce FALCONER, Plaintiff, v. PENN MARITIME, INC., Defendant.
• Court: U.S. District Court — District of Maine

397 F.Supp.2d 62

Bruce FALCONER, Plaintiff, v. PENN MARITIME, INC., Defendant.

No. CIV.05-42-B-W.

United States District Court, D. Maine.

October 21, 2005.

Carolyn M. Latti, Latti & Anderson LLP, David F. Anderson, Latti & Anderson LLP, David J. Berg, Latti & Anderson LLP, Boston, MA, for Bruce Falconer, Plaintiff.

James M. Kenny, Kenny, Stearns and Zonghetti, Joseph T. Stearns, Kenny, Stearns and Zonghetti, Noreen Dever Arralde, Kenny, Stearns and Zonghetti, New York City, David C. King, Rudman & Winchell, Bangor, ME, for Penn Maritime Inc, Defendant.

ORDER ON MOTIONS IN LIMINE

WOODCOCK, District Judge.

Plaintiff filed a motion in limine to exclude evidence of his prior receipt of maintenance and cure benefits and Social Security Disability and Medicare benefits, and to prevent Defendant from offering expert testimony on the issue of liability. Defendant moves in limine to allow the introduction of evidence of Plaintiff's prior receipt of Social Security Disability and Medicare benefits. This Court denies Plaintiff's request to exclude evidence of maintenance and cure benefits, but grants Plaintiff's request to exclude evidence of prior receipt of Social Security Disability and Medicare. Correspondingly, Defendant's motion is denied. This Court grants Plaintiff's expert testimony motion, except as to lay opinion testimony.

I. Discussion

a. Plaintiff's Receipt of Maintenance and Cure Benefits

Mr. Falconer moves in limine arguing that his prior receipt of maintenance and cure benefits is inadmissible, since he never asserted a claim against the Defendant for maintenance and cure and is not seeking recovery on that basis. He seeks an order precluding Penn Maritime from introducing evidence of maintenance and cure benefits. Pl.'s Mot. in Limine re Pl.'s Receipt of Maintenance and Cure Benefits (Docket # 35). Defendant responds that Plaintiff has not identified which benefits he considers "maintenance and cure" and which are advance payments of claimed damages. Since maintenance and cure extends only until the condition or disability is incurable, any further payments, Defendant reasons, must satisfy part of Plaintiff's claim for compensatory damages.¹ Def.'s Resp. to Pl.'s Mot. in Limine re Pl.'s. Receipt of Maintenance and Cure Benefits (Docket # 45).

Under the Jones Act, the obligation to provide maintenance and cure is, unlike negligence, not based on fault and is separate from and supplemental to compensatory damages. Pacific S.S. Co. v. Peterson, 278 U.S. 130, 137-38, 49 S.Ct. 75, 73 L.Ed. 220 (1928); Muise v. Abbott, 160 F.2d 590, 592 (1st Cir.1947). However, care should be taken to avoid a windfall for the Plaintiff. It does not follow that a "particular item of his claim, such as maintenance, if recovered in one suit, may again be recovered in another. In admiralty as elsewhere, a litigant may not recover compensation for a single claim more than once." McCarthy v. American Eastern Corp., 175 F.2d 727, 729 (3d Cir.1949); Bartholomew v. Universe Tankships, Inc., 279 F.2d 911, 915-916 (2d Cir.1960); Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963)("This Court has held that recovery of maintenance and cure does not bar a subsequent action under the Jones Act ... but of course, where such closely related claims are submitted ... questions of res judiciata and collateral estoppel necessarily arise, particularly in connection with efforts to avoid duplication of damages"); LaFontaine v. The G.M. McAllister, 101 F.Supp. 826, 829 (S.D.N.Y.1951)("The damages recoverable in an action based either on negligence under the Jones Act or on unseaworthiness under the general maritime law overlap to some extent those sought in an action for maintenance and cure.").

When "a seaman's `condition has stabilized and further progress ended short of a full recovery, the seaman ... is no longer entitled to maintenance and cure.'" Whitman v. Miles, 387 F.3d 68, 71 (1st Cir.2004)(quoting In re RJF Int'l Corp., 354 F.3d 104, 106 (1st Cir.2004)). This point is known as the seaman's "maximum medical recovery." Id. To allow Plaintiff to claim that Defendant's payments past the point of maximum medical recovery were part of "maintenance and cure" rather than pre-payment of damages would be to allow Plaintiff a bonus recovery. Policy, however, dictates that Defendant bear the burden of proof on this issue. Bartholomew, 279 F.2d at 916. Evidence of maintenance and cure damages will be strictly limited to two questions: (1) if and when the "fuzzy boundary between improvement and palliation", RJF, 354 F.3d at 107, was crossed; and, (2) whether Penn Maritime's payments were in fact prepayment of damages.² Mr. Falconer's motion in limine to exclude evidence of maintenance and cure payments is DENIED.

b. Plaintiff's Receipt of Social Security and Medicare Benefits

Arguing that Social Security Disability and Medicare benefits are subject to the collateral source rule and inadmissible, Mr. Falconer moves in limine to exclude evidence of his receipt of these benefits. Pl.'s Mot. in Limine Regarding Pl.'s Receipt of Collateral Benefits (Docket # 36). In turn, Penn Maritime argues, both in response and in its own motion, that there is no per se rule excluding collateral source evidence, and it seeks to introduce evidence of these benefits to offset its maintenance and cure obligation as well as "for any permissible use, such as proving lack of motivation for returning to work". Def.'s Mot. in Limine at 8 (Docket # 43); Def.'s Resp. to Pl.'s Mot. in Limine Regarding Pl.'s Receipt of Collateral Benefits at 3 (Docket # 46).

1. Offset

Penn Maritime argues that Mr. Falconer's receipt of Social Security Disability Income (SSDI) benefits and eligibility for Medicare benefits should be admissible "as proof that Penn [Maritime] does not owe plaintiff maintenance and cure" and to offset "defendant's maintenance and cure obligation to plaintiff". Def.'s Mot. in Limine at 8, 10. Penn Maritime's argument is rather cryptic and difficult to parse. But, as framed, this Court will not allow Penn Maritime to introduce evidence of Mr. Falconer's receipt of Medicare and Social Security benefits to gain an offset. Although Penn Maritime's obligation for maintenance and cure may overlap with Medicare and SSDI benefits, Mr. Falconer has not asserted a claim against Penn Maritime for maintenance and cure benefits in this law suit and, therefore, the issue is not joined. See Pl.'s Resp. in Opp'n to Def.'s Mot. in Limine Regarding Pl.'s Receipt of Collateral Benefits at 2 (Docket # 53)("...there is no claim by Plaintiff for Defendant improperly and untimely cutting Plaintiff off from maintenance and cure.").

Elsewhere, however, Defendant suggests that its real purpose is to prevent Plaintiff from obtaining an award for lost wages and medical expenses on the erroneous premise that he has not received such benefits and will not continue to receive them in the future. Def.'s Mot. in Limine at 8-9. The parties have not provided sufficient information to allow a final determination of the issue; however, in In re RJF Int'l Corp., 332 F.Supp.2d 458, 464 (D.R.I.2004), Judge Smith in a thorough and persuasive opinion set forth the analytic method this Court will follow. This Court remains to be convinced that Medicare is the functional equivalent to the "cost-free" care once provided seamen in the Public Health Service. For the reasons well expressed in RJF, it is more likely the Medicare Secondary Payer provisions of federal law, 42 U.S.C. § 1395y(b)(2), contemplate reimbursement, not an offset. To the extent Moran Towing & Transp. Co. v. Lombas, 58 F.3d 24 (2d Cir.1995) would work a different result, this Court declines to follow it.

However, this does not end the analysis, as in this case, Medicare and the union health plan have liens for past amounts paid in the event of any money received as a result of judgment or settlement. Pl.'s Resp. in Opp'n to Def.'s Mot. in Limine Regarding Pl.'s Receipt of Collateral Benefits at 3. In these circumstances, to allow Penn Maritime to encourage the jury to offset Mr. Falconer's recovery by taking into account his previous receipt of both SSDI benefits and maintenance and cure would not merely prevent a double recovery, but would allow a double deduction. Penn Maritime may not introduce evidence of Mr. Falconer's receipt of SSDI and Medicare benefits to demonstrate that he is not entitled to damages for lost wages or past medical expenses.

2. Motivation to Return to Work

Under the collateral source rule, the Plaintiff need not offset his recovery from the Defendant by the amount of any benefits received from a source collateral to the Defendant, and evidence of such benefits should, therefore, not be permitted at trial. McGrath v. Consolidated Rail Corp., 136 F.3d 838, 840-41 (1st Cir.1998). The rule is designed to prevent juries from improperly misusing evidence of collateral sources. However, every rule has its exceptions. In McGrath, the First Circuit upheld the trial court's allowance of collateral source evidence in order to show lack of motivation to go back to work — precisely the same purpose which Defendant intends. Id. On the other hand, in Eichel v. New York Central Railroad Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), the Supreme Court found ample reason to uphold the district court's decision to exclude such evidence, finding that "insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice". Id. at 255, 84 S.Ct. 316. See also McGrath, 136 F.3d at 841; De Medeiros v. Koehring Co., 709 F.2d 734, 741 (1st Cir.1983)("Even in Eichel ...the narrower question was simply whether or not to uphold the district court's discretionary ruling").

Consistent with Eichel, Plaintiff argues that evidence of malingering can come from witnesses, introduction...