Messier v. Bouchard Transp.

• Decision Date: 22 November 2010
• Docket Number: No. 08 Civ. 09505(CM).,08 Civ. 09505(CM).
• Citation: 756 F.Supp.2d 475
• Parties: Richard MESSIER, Plaintiff,v.BOUCHARD TRANSPORTATION, Defendant.
• Court: U.S. District Court — Southern District of New York

756 F.Supp.2d 475

Richard MESSIER, Plaintiff,

v.BOUCHARD TRANSPORTATION, Defendant.

No. 08 Civ. 09505(CM).

United States District Court, S.D. New York.

Nov. 22, 2010.

Roberta Ellen Ashkin, Law Offices of Roberta Ashkin, New York, NY, Dennis Michael O'Bryan, Howard Michael Cohen, O'Bryan Baun Choen Cuebler Karamanian, Birmingham, MI, for Plaintiff.Daniel J. Fitzgerald, John Joseph Walsh, Freehill, Hogan & Mahar, LLP, New York, NY, for Defendant.

DECISION AND ORDER DENYING PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

McMAHON, District Judge:

INTRODUCTION

Plaintiff Richard Messier originally filed this maritime action pursuant to the Jones Act, alleging negligence and unseaworthiness. He also asserted that he was entitled to maintenance and cure pursuant to general maritime law, because he suffered from B-cell lymphoma, a form of cancer, while serving as a seaman aboard the Tug Evening Mist (“Evening Mist”), a vessel owned by Defendant Bouchard Transportation Co., Inc. (“Bouchard”). Plaintiff has since dropped his Jones Act claim.¹

Plaintiff's claim for maintenance and cure presents what counsel claim is a question of first impression in this Circuit: what does it mean to “manifest” a disease for admiralty purposes? More specifically, can a plaintiff obtain maintenance and cure for an illness that was asymptomatic during the entire time he was serving on the vessel, and that was not diagnosed until over a month after his service ended—but which he undoubtedly contracted some months earlier, and suffered from (albeit without exhibiting any symptoms) while he was in the service of the defendant's ship.

The parties have cross-moved for summary judgment on this question. I deny Plaintiff's motion and grant Defendant's. The disposition of the cross motions for summary judgment renders Plaintiff's motion for leave to amend moot.

BACKGROUND

The facts are taken from the parties' Rule 56.1 Statements of Fact, the original complaint and exhibits accompanying the parties' motions for summary judgment. The pertinent facts are not disputed.

Messier has worked more than forty years as a seaman on tugboats. In March of 2004, Messier was hired by Bouchard to work as a seaman. During his employment, Messier worked three-week “hitches;” three weeks on, followed by three weeks off.

In September 2005, Messier was assigned to work as the relief captain on the Bouchard vessel the Evening Mist. (Aff'n of John J. Walsh, Sep. 4, 2009 (“Walsh Aff'n”) Ex. B at 63–64.) Messier recalls working at least two hitches on the Evening Mist. ( Id.)

The final day of what was ultimately Messier's last hitch aboard the Evening Mist was October 23, 2005. ( Id.; Walsh Aff'n Ex. D.) The Evening Mist was located at the Caddell Shipyard drydock in Staten Island New York tied up alongside a barge owned by Caddell. (Walsh Aff'n Ex. B at 64–66.) Because the Caddell barge was between the Evening Mist and the dock, Messier and the other seamen working on her had to use two ladders in order to either embark or disembark from the Evening Mist—one ladder to get from the Evening Mist to the barge, and another ladder to get from the barge to the dock. ( Id. at 65).

At the end of each hitch, it was the custom for the replacement crewmembers to hold the ladders while the retiring crewmembers disembarked. ( Id.) Messier contends that his relief on October 23, Captain Richard Thurlow, did not hold the ladder while Messier was disembarking, as a result of which Messier slipped while climbing down the ladder that led from the barge to the dock.² ( Id. at 66–67.) Messier began suffering back pain the following day, so he sought treatment for his injury from his primary care physician, Dr. Bradley Ruben. ( Id. at 73–75.)

Dr. Ruben diagnosed Messier with a probable back sprain.³ ( Id.) Messier testified at his deposition that his back pain subsided completely within a couple of days after his fall. ( Id. at 74.)

Dr. Ruben also ordered routine blood tests, for which Plaintiff's blood was drawn on October 25, 2005. (Walsh Aff'n Ex. E, Medical Record by Dr. Ruben (“Ruben Medical Records”).) On October 28, 2005, Dr. Ruben called Messier and advised him that the blood test revealed some elevation in his creatinine level. (Walsh Aff'n Ex. B at 75; Ex. E, Ruben Medical Records.) Medical records indicate that Messier's creatinine level on October 28, 2005 blood-test were 2.2 mg/dL. (Walsh Aff'n, Ex. E October 28, 2005 Lab Results.) Messier's blood was tested a second time, on November 2, 2005; in just a week his creatinine level had risen to 8.0 mg/dL. (Walsh Aff'n Ex. E, November 2, 2005 Lab Results.) Dr. Ruben was sufficiently alarmed about the rising levels of creatinine in Messier's blood that he sent Messier to the emergency room at Citrus Memorial Hospital on November 4, 2005. ( Id.) Plaintiff was admitted to the hospital for treatment of renal failure. (Walsh Aff'n Ex. E, Hospital Admission Report by Dr. Ruben (“Ruben Admission Report”) at 1.)

During his four day hospitalization, Dr. Ruben noted that Messier exhibited no physical “symptoms of renal failure such as decreased urinary output, nausea, vomiting, gittyness [sic], etc.” ( Id. at 1–2.) A renal sonogram performed while Messier was admitted indicated “mild atrophy of Messier's right kidney compared to left, mild hydronephrosis at the left kidney, and multiple small cortical cysts in the right kidney.” ( Id.) Messier was discharged from the hospital after a stent was placed in his kidney. ( Id.) At the time of his discharge, Messier's creatinine level had gone back down to just below the level reported on his October 28, 2005 blood-test. ( Id. & Walsh Aff'n Ex. E October 28, 2005 Lab Results.)

Following his discharge Messier underwent additional tests, including a CT scan of the abdomen, to try to ascertain why his kidneys had failed. (Attachment to September 15, 2009 Decl. of Timothy A. Brant M.D. (“Brant Decl.”), January 13, 2006 Letter Report by Dr. Timothy Brant to Dr. William Harrer (“Brant Letter”) at 1–2.) In late December 2005—two months after he left the Evening Star—Messier was diagnosed with B-cell lymphoma. ( Id.)

From January 2006 until October 2006, Messier suffered bouts of debilitating symptoms resulting from his lymphoma and the effects chemotherapy and radiation treatment. (Walsh Aff'n Ex. Bat 36–37.) He did not return to work until October 2006. ( Id. at 33–34.) By that time, his illness had subsided, and Messier was able to begin working for a different shipping company. ( Id.)

On November 5, 2008, Messier filed the instant complaint. The case was originally assigned to the Hon. Peter K. Leisure. It was transferred to this Court's docket on October 1, 2010, when Judge Leisure retired. The summary judgment motions were fully briefed and ripe for decision.

DISCUSSION

I. STANDARD OF REVIEW

A party is entitled to summary judgment when there is “no genuine issue as to any material fact” and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the Court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the nonmoving party must present “specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e). The party opposing summary judgment “may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

To withstand a motion for summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Instead, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmoving party. Summary judgment is designed to flush out those cases that are predestined to result in directed verdict. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.1997).

II. CROSS MOTIONS FOR SUMMARY JUDGMENT

Both parties have moved for summary judgment on the issue of whether Messier is entitled to “maintenance and cure.” Plaintiff suggests two possible theories of recovery: first, that his illness manifested while he was in the service of Bouchard's ship; and second, that his illness manifested at a time when he was otherwise entitled to maintenance and cure.

Insofar as Plaintiff's first theory is concerned, the relevant facts are undisputed, and the cross motions raise a pure question of law: did Messier “manifest” his B-cell lymphoma while he was “in the service of the ship?” That depends on whether the word “manifest” is a synonym for “have”—even if the disease is asymptomatic throughout the period of the seaman's work for the defendant—or whether one must “show symptoms” of a disease while in service of the ship in order to “manifest” it. If the former, then Messier is entitled to summary judgment directing that he be paid maintenance and cure; if the latter, then Bouchard is. The question is certainly one of first impression in this Circuit; and as far as this court is aware it is a question that has been addressed—and only in...