Macphail v. Oceaneering Intern., Inc.

• Decision Date: 11 February 2002
• Docket Number: No. CIV.A.G-01-266.,CIV.A.G-01-266.
• Citation: 186 F.Supp.2d 704
• Parties: Alistair J. MACPHAIL Plaintiff, v. OCEANEERING INTERNATIONAL, INC. Defendant.
• Court: U.S. District Court — Southern District of Texas

186 F.Supp.2d 704

Alistair J. MACPHAIL Plaintiff, v. OCEANEERING INTERNATIONAL, INC. Defendant.

No. CIV.A.G-01-266.

United States District Court, S.D. Texas, Galveston Division.

February 11, 2002.

Joseph W Walker, Franklin Mosele & Walker, Gary J Siller, Strasburger & Price LLP, Houston, for Alistair J MacPhail, plaintiffs.

James Patrick Cooney, Royston Rayzor et al, Houston, for Oceaneering International, Inc., defendants.

ORDER GRANTING MACPHAIL'S MOTION TO ENJOIN AND DENYING OCEANEERING'S MOTION FOR RECONSIDERATION OF ITS MOTION TO DISMISS

KENT, District Judge.

Plaintiff Alistair MacPhail ("MacPhail") brings this lawsuit pursuant to the General Maritime Law of the United States of America, the Jones Act, 46 U.S.C.App. § 688, and the state laws of Texas. Plaintiff seeks monetary damages for injuries suffered in the course of his employment as a saturation diver on the dive support vessel OCEAN WINSERTOR, owned and operated by Defendant Oceaneering International, Inc. ("Oceaneering"), a large multi-national corporation headquartered in Houston, Texas. Now before this Court is MacPhail's Motion to Enjoin Oceaneering from further pursuing an action that it recently instituted against MacPhail in Australia and Oceaneering's Motion for Reconsideration of its Motion to Dismiss. For the reasons articulated below, MacPhail's Motion to Enjoin is hereby GRANTED and Oceaneering's Motion for Reconsideration is hereby DENIED.

I.

The factual allegations giving rise to this manifestly tragic lawsuit have been largely set out in a prior Order. However, because they are intertwined with the issues sub judice, they are once again set out in full. While working for Oceaneering on May 18, 1998, MacPhail was committed under pressure to saturation diving in the China Sea.¹ Along with three diving partners, MacPhail was "stored" at a depth of approximately 100 feet with a breathing mix of helium and oxygen. During the thirty day period that MacPhail remained in saturation, he and his diving partners undertook approximately fifteen "bell runs" in which they would descend to the bottom in a diving bell, exit the bell for several hours of work and then return to the vessel to await their next run.

As MacPhail entered the diving bell for his second bell run, he observed oil, mud and sludge coating the hoses and the inside of the bell. While on the bottom during the run, MacPhail experienced severe headaches, loss of concentration and decreased coordination. Upon returning to the bell, MacPhail felt disoriented. After the bell was returned to the vessel, MacPhail experienced headaches, loss of appetite, nausea and vomiting. MacPhail promptly and specifically reported his problems to surface management and the deck crew cleaned the interior of the bell.

Throughout the entire remainder of the saturation period, MacPhail continued to experience headaches, nausea, the loss of dental fillings and other severe and immediate medical problems. Although MacPhail repeatedly reported his troubles to management, the dive was not shut down and Oceaneering sent MacPhail on numerous subsequent dives. Later analysis of the seabed showed that the mud contained toxic levels of various metals including arsenic and mercury, cyanide, hydrogen sulfide and polychlorinated biphenyls.

When MacPhail was brought to the surface after thirty days, he was weakened, disoriented and exuding a "disgusting" odor. Clearly, he was in dire need of medical attention. MacPhail was transported first from the vessel to Hong Kong, where he received one day of medical attention, and then to Singapore, for additional treatment.

Upon returning to Australia (his residence at the time), MacPhail visited additional doctors provided by Oceaneering, but his condition continued to worsen. Over the ensuing months, MacPhail suffered sleep loss, depression, pain in his teeth, episodes of intense anger, excruciating headaches, fainting spells and a host of other complications. MacPhail continued to make requests to Oceaneering for experts in hyperbaric medicine and toxicology, but was repeatedly told that Oceaneering was either looking for or unable to locate appropriate specialists. Ultimately (and incomprehensibly), Oceaneering failed to refer MacPhail to even one specialist experienced in diving medicine, chemical poisoning, or hyperbaric medicine.

Oceaneering appointed Cocks Macnish, an Australian law firm, to liaise with MacPhail. Two Oceaneering employees, Overland and Leung, assured MacPhail that the Cocks Macnish lawyers were not adversarial but rather, were appointed to allocate resources and seek out the best medical help available. However, Patricia Saraceni, the Cocks Macnish solicitor handling the case, blithely responded to MacPhail's repeated requests for help by informing him that Oceaneering could not continue to help him and that the situation required closure. Furthermore, Overland and Leung repeatedly telephoned MacPhail, deprecating his problems and offering him a sum of money to "put it all behind us." Later, after Saraceni, Overland and Leung informed MacPhail that there was nothing more medically that could be done, and threatened to cut off future medical and financial assistance. Sick, frightened and intimidated, MacPhail agreed to sign a Deed of Release and Discharge ("Release"). MacPhail was not represented by counsel at that time.

The Release was prepared by Saraceni and executed in Western Australia on November 3, 1999. In consideration of the Release, MacPhail received $280,000.00, a commitment on the part of Oceaneering to provide MacPhail with additional training courses and an escrow fund in the amount of $25,000.00 to cover future medical expenses. The forum selection clause contained in the Release reads:

In the event of any dispute in respect of or arising from this Deed of Release and Discharge or any matter relating thereto the parties hereby agree to submit their dispute to the exclusive jurisdiction of the District Supreme Court of Western Australia, or to the Federal Court of Australia and the parties hereby agree to submit to the exclusive jurisdiction of the said courts.

The execution of the Release was followed by the entry of a judgment in the District Court of Western Australia, Perth.

By the spring of 2000, MacPhail was a shadow of his former self. Severely depressed and in constant pain, MacPhail found himself unable to work or carry on normal relationships with others. That year, he became aware that one of his similarly situated diving partners had received helpful treatment in the United States from the Van Meter hyperbaric group. MacPhail subsequently traveled to the United States and was treated by the Van Meter specialists for one month, beginning on November 15, 2000. MacPhail was diagnosed with multiple physical abnormalities, including significant brain and nerve damage, all linked to toxic chemical exposure and decompression sickness. Tragically, one Van Meter physician noted that MacPhail's "short, medium and long term prognosis would have been very different had he been immediately treated."

MacPhail later discovered that Oceaneering had never contacted any hyperbaric specialist or expert toxicologist, but rather, relied upon individuals with no diving medical experience to coordinate his treatment, even though Oceaneering actually knew of such specialists and had used them in the past. Furthermore, Oceaneering originally provided Plaintiff with an incomplete chemical analysis of the substances he had been exposed to while diving, even though Oceaneering had possessed the complete analysis. This omission may have substantially impeded his treatment and recovery, and was, at the very least, deceitfully withheld from him during the sham negotiation of his "settlement," reached under extreme duress.

In light of these discoveries, MacPhail was moved to file this lawsuit. Oceaneering responded by filing a Motion to Dismiss for improper venue pursuant to the forum selection clause recited above. On October 17, 2001, the Court issued an Order Denying Oceaneering's Motion to Dismiss. In that Order, the Court determined that "... the forum selection clause at issue [is] unreasonable and therefore unenforceable because its enforcement would violate a strong public policy and because Plaintiff would thereby be deprived of his day in court. To find such a clause valid and enforceable in the precise facts of this case would amount to an unmistakable violation of our strong public policy protecting the rights of seamen as wards of the American admiralty courts, and furthermore, would effectively deprive MacPhail of his rightful day in a court of proper jurisdiction." Accordingly, the Court permitted this action to proceed here in the Southern District of Texas. As such, the Parties have since continued with discovery and trial preparation.

Around January 1, 2002, MacPhail's lead counsel, Joseph W. Walker, sent a letter to counsel for Oceaneering advising Oceaneering that MacPhail was going to travel to the United States in mid-January 2002 for further treatment and independent medical examinations ("IMEs"). The IMEs were scheduled or around February 1, 2002. The letter suggested that the Parties schedule depositions during MacPhail's visit to the United States and inquired as to whether Oceaneering was amenable to mediating the lawsuit during that time. Oceaneering's counsel responded to Walker's letter on January 2, 2002. In its response, Oceaneering indicated its desire to arrange IMEs for MacPhail and to schedule his deposition while he was present in the United States.

On January 9, 2002, just days before MacPhail was scheduled to depart for the United States, Oceaneering, Oceaneering International Party Limited and Oceaneering Australia Party Limited filed a Writ of Summons in the Supreme Court of Australia seeking specific performance of the Release. The Writ commanded MacPhail to make an appearance in the...