Kelly v. Keystone Shipping Co.

• Decision Date: 14 July 2003
• Docket Number: No. CIV.A. 01CV11498MBB.,CIV.A. 01CV11498MBB.
• Citation: 281 F.Supp.2d 313
• Parties: Jay P. KELLY, Plaintiff, v. KEYSTONE SHIPPING COMPANY, Defendant.
• Court: U.S. District Court — District of Massachusetts

281 F.Supp.2d 313

Jay P. KELLY, Plaintiff, v. KEYSTONE SHIPPING COMPANY, Defendant.

No. CIV.A. 01CV11498MBB.

United States District Court, D. Massachusetts.

July 14, 2003.

COPYRIGHT MATERIAL OMITTED

Joseph G. Abromovitz, Boston, MA, for Jay P. Kelly, Plaintiff.

Seth S. Holbrook, Holbrook & Murphy, Boston, Brian B. Kydd, Kneeland & Kydd, Arlington Heights, MA, for Keystone Shipping Company, Defendant.

MEMORANDUM AND ORDER RE: PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF THE APPLICABILITY OF 45 U.S.C. § 53 THEREBY BARRING ANY ASSESSMENT OF THE PLAINTIFF'S COMPARATIVE NEGLIGENCE (DOCKET ENTRY # 76)

BOWLER, United States Chief Magistrate Judge.

Pending before this court is the issue of whether to reduce the jury's verdict by the 45% contributory fault of plaintiff Jay P. Kelly ("plaintiff" or "Kelly") assessed by the jury. During trial and prior thereto, plaintiff argued that 45 U.S.C. § 53 ("section 53") of the Federal Employers' Liability Act ("FELA") precludes any reduction of a jury verdict based on plaintiff's negligence. Section 53 authorizes a reduction in damages based on a plaintiff's contributory negligence except in cases where the defendant/employer's violation of "any statute enacted for the safety of employees contributed to" the plaintiff's injuries. 45 U.S.C. § 53. Plaintiff relies on 46 C.F.R. § 12.13-1 (1999), which prescribes training requirements for persons designated to take charge of medical care on board a ship, as the safety statute violated by defendant and a policy letter promulgated by the Commanding Officer of the United States Coast Guard ("the Coast Guard") on December 3, 1999, discussing such training.

Plaintiff initially raised the issue of the bar against the defense of contributory negligence under section 53 in the first supplement to the joint pretrial order (Docket Entry # 35). Defendant Keystone Shipping Company ("defendant" or "Keystone") consistently opposed any such reduction. After conducting an evidentiary hearing prior to trial,¹ this court concluded that the issue of whether Keystone designated Charles Hoerr Mayes, Jr. ("Mayes"), Second Mate aboard the S.S. Keystone Texas ("the Keystone Texas"), as a person in charge of medical care was an issue of fact for the jury. After further argument and briefing, on May 2, 2003, this court issued a ruling during trial that 46 C.F.R. § 12.13-1 (1999) grandfathered Mayes' training and licensing requirements and, consequently, he possessed the required training and licensing at the time of the January 2000 incident.² Adopting plaintiff's argument based on the policy letter, however, this court concluded that the policy letter allowed for the voluntary designation of a person to take charge of medical care by practice or company policy.³ As plaintiff repeatedly argued, the policy letter "raised the bar" by requiring additional and immediate implementation of the STCW licensing requirements for a person designated to provide medical care. The relevant provision in the letter relied upon by plaintiff states:

If by practice, company policy, or to meet STCW requirements, someone aboard a seagoing ship is designated to take charge of medical care, that individual must meet the standards of competency set forth in STCW Code, Section A-VI/4-2, and be able to produce evidence of having met those standards.

(Plaintiff's Memorandum of Law in Support of Applicability of United States Coast Guard Regulations Relative to the Designation of Charles Mayes, Dated April 27, 2003, No Docket Entry No. Assigned, Ex. 1; henceforth: "Plaintiff's USCG Memorandum").

As stated in open court on May 2, 2003, the issue of whether Keystone had a policy or practice and designated Mr. Mayes as a person in charge of medical care was a fact issue for the jury.⁴ Although the theory of liability was based on the policy letter, it inevitably required the jury to find a violation of 46 C.F.R. § 12.13-1 (1999) albeit only through a practice or company policy. Question two in the special verdict form asked the jury to determine by a preponderance of the evidence if Keystone breached a Coast Guard regulation by a practice or company policy.⁵ They answered affirmatively.

Question one asked the jury to determine if Keystone was negligent and whether that negligence was a cause of an injury to plaintiff. Again, the jury answered the question affirmatively.

The general instructions distinguished between the two theories of liability, negligence and negligence per se⁶ based on the violation of 46 C.F.R. § 12.13-1 (1999). (Docket Entry # 49, p. 25). For practical purposes, the jury's finding in question two is relevant primarily to the issue of contributory negligence under section 53. See Pratico v. Portland Terminal Co., 783 F.2d 255, 269 (1st Cir.1985) (Campbell, C.J., dissenting) (addressing section 53 and noting that, "[f]or practical purposes," the negligence per se finding "has little effect" because the "plaintiff was able to convince the jury of [the] defendant's negligence without the benefit of evidence of the OSHA regulation"). On May 6, 2003, the jury assessed damages amounting to $1,848,750 but found plaintiff 45% at fault.

Because of the contentious nature and difficulty of the issue, this court asked for additional briefs from the parties regarding the reduction of the $1,848,750 damages based on the jury's finding plaintiff 45% at fault. The parties submitted the additional briefs as of June 5, 2003. Plaintiff's filing (Docket Entry # 76, p. 9) asks this court to award the full amount of the jury verdict barring any assessment of plaintiff's negligence. This court therefore construes the filing as a motion to enter a judgment for the full amount of the jury's verdict without a reduction due to plaintiff's negligence. See, e.g., Primus v. Galgano, 187 F.Supp.2d 1, 2 (D.Mass.2002) (motion filed by the defendant after jury verdict and prior to final judgment for entry of judgment to reduce medical malpractice verdict to statutory cap), aff'd, 329 F.3d 236 (1st Cir.2003); Hawn v. Pope & Talbot, 99 F.Supp. 226, 228 (E.D.Pa.1951) (Longshoremen's and Harbor Workers' Compensation claim wherein the plaintiff filed motion for entry of judgment after jury verdict and prior to judgment for full amount without deduction for contributory negligence). Defendant's filing insists that the jury's verdict of 45% contributory negligence must stand. (Docket Entry # 80, p. 6). The issue of reducing the verdict by the proportion of plaintiff's contributory negligence under section 53 due to the violation of 46 C.F.R. § 12.13-1 (1999) ("regulation 12.13-1") or the policy letter itself is therefore ripe for review.

DISCUSSION

Plaintiff presently moves for the entry of the full amount awarded by the jury arguing, inter alia, that defendant breached regulation 12.13-1, in effect since July 31, 1998, and that section 53 therefore bars the assessment of plaintiff's 45% contributory negligence. (Docket Entry # 76). Plaintiff's motion to enter a judgment for the full amount of the jury verdict without an assessment of plaintiff's negligence results in revisiting the import of the policy letter⁷ and the grandfathering issue under regulation 12.13-1 thereby implicating the May 2, 2003 ruling.

This court has the inherent power to reconsider prior rulings. Greene v. Union Mutual Life Insurance Company of America, 764 F.2d 19, 22 (1st Cir.1985); Ramos v. Roman, 83 F.Supp.2d 233, 236-237 (D.P.R.2000); see In Re Villa Marina Yacht Harbor, Inc., 984 F.2d 546, 548 (1st Cir.1993) (court's inherent power is rooted in the equitable power to "process litigation to a just and equitable conclusion"); see also Langevine v. District of Columbia, 106 F.3d 1018, 1023 (D.C.Cir.1997) ("[i]nterlocutory orders are not subject to the law of the case doctrine and may always be reconsidered prior to final judgment"); Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994) ("`Until entry of judgment, interlocutory orders remain subject to change at any time;'" quoting treatise with brackets omitted); Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991) ("courts have inherent power to reconsider interlocutory orders and re-open any part of a case before entry of a final judgment"). The jury's special verdict under Rule 49(a), Fed.R.Civ.P., was interlocutory inasmuch as this court intended to reserve the issue of whether to reduce the verdict by plaintiff's contributory negligence and asked for further briefing on the issue. See Commercial Union Insurance v. Seven Provinces Insurance Co., 217 F.3d 33, 37 (1st Cir.2000) ("`final decision' ... is [ ] "`one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment'""), cert. den., 531 U.S. 1146, 121 S.Ct. 1084, 148 L.Ed.2d 959 (2001);⁸ Zayas-Green v. Casaine, 906 F.2d 18, 21 (1st Cir.1990) ("by definition, interlocutory orders are not final decisions"); see, e.g., Harris v. Goldblatt Brothers, Inc., 659 F.2d 784, 786 (7th Cir.1981) (judgment entered by clerk after jury verdict not final judgment inasmuch as court never contemplated the verdict to constitute final judgment but, instead, decided to hear equitable relief and statutory attorney's fees issues after jury trial).

After a more careful and considered examination of the Code of Federal Regulations, the history of regulation 12.13-1 and the STCW Convention outside the rapid pace of trial, this court concludes that the documentation and training required by this regulation for persons designated to take charge of medical care was not grandfathered. The prior ruling in open court relative to grandfathering was a manifest error of law and it would be unjust to reduce the verdict where, as here, no such reduction is required under the law.

I. Section 53

The Jones Act, 46 U.S.C. § 688, expressly incorporates the FELA, 45 U.S.C. §§ 51-60, and provides seamen with the same rights as those enjoyed by railroad employees. Roy Crook and Sons, Inc. v....