Napier v. F/V Deesie, Inc.

• Decision Date: 11 July 2006
• Docket Number: No. 05-1503.,No. 05-2545.,05-1503.,05-2545.
• Citation: 454 F.3d 61
• Parties: James NAPIER, Plaintiff, Appellant, v. F/V DEESIE, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

454 F.3d 61

James NAPIER, Plaintiff, Appellant, v. F/V DEESIE, INC., Defendant, Appellee.

No. 05-1503.

No. 05-2545.

United States Court of Appeals, First Circuit.

Heard May 4, 2006.

Decided July 11, 2006.

COPYRIGHT MATERIAL OMITTED

David B. Kaplan, with whom The Kaplan/Bond Group was on brief, for appellant.

Joseph A. Regan, with whom Syd A. Saloman and Regan & Kiely LLP, were on brief, for appellee.

Before TORRUELLA, LYNCH and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff-appellant James Napier ("Napier") filed a suit against defendant-appellee F/V Deesie, Inc. ("Deesie") in the United States District Court for the District of Massachusetts, seeking damages on three counts of maritime law: one count pursuant to the Jones Act, 46 U.S.C.App. § 688; one count of unseaworthiness; and one count for maintenance and cure. Deesie moved for summary judgment on all three claims. The magistrate judge granted summary judgment with regard to the Jones Act and the unseaworthiness claims but denied summary judgment for the claim of maintenance and cure. We find that the magistrate judge erred in granting summary judgment and remand the case for further proceedings consistent with this opinion.

I.

In accordance with our standard of review for summary judgment, we present the facts in the light most favorable to Napier. See Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995). Deesie employed Napier as a crewman aboard the F/V DEESIE, a fishing vessel. On or about April 13, 2001, the crew of the F/V DEESIE was fishing approximately 1500 miles south to southeast of Puerto Rico. Napier was attaching baited hooks to the line feeding out of the vessel's stern when an accident occurred in which a rusty, six-inch hook impaled the lower left portion of his abdomen. Using bolt cutters and a razor, the captain and Napier cut out the hook. Napier quickly doused the wound with peroxide, applied a bandage, and returned to work. The ship's first aid kit contained aspirin, and Napier took aspirin, as well as Motrin, to treat the pain resulting from the injury. Eight days after the accident, Napier experienced sudden pain and loss of breath. The captain attempted to call in an air rescue; this, however, was not possible due to the location of the F/V DEESIE.

Upon arrival in San Juan, the captain sent Napier to a doctor who diagnosed him with an infection and prescribed antibiotics. Two days later, on or around April 21, 2001, Napier developed severe stomach pains, began vomiting blood, and was taken by ambulance to University Hospital in Puerto Rico. He was admitted with gastrointestinal bleeding, and physicians discovered that Napier had suffered a perforated duodenal ulcer, which required two surgeries and a one-month stay at University Hospital. The physicians also noted in Napier's medical record that Napier had taken cocaine and heroin on the day prior to his admission to the hospital.

On December 27, 2002, Napier filed suit against Deesie seeking damages on three counts: one count pursuant to the Jones Act, one count of unseaworthiness, and one count for maintenance and cure.¹ Deesie moved for summary judgment, after discovery, on August 2, 2004. Deesie and Napier each filed affidavits from their respective medical experts to establish whether the fishhook accident was the cause of the perforated ulcer. Deesie submitted the affidavit of Dr. Michael D. Apstein ("Dr.Apstein"), a specialist in gastroenterology and internal medicine. After reviewing all of the pertinent medical records and historical background, Dr. Apstein concluded that the perforated ulcer was not caused by the fishhook because, based on the location of the injury and the size of the hook, it would have been nearly impossible for the hook to have reached the duodenum. Rather, Dr. Apstein suggested that the perforated ulcer was more likely than not caused by the reported cocaine use.

Napier also submitted an expert medical report, authored by Dr. Roberto Feliz ("Dr.Feliz"). Dr. Feliz agreed that "the fishing hook itself did not directly lead to the duodenal perforation since it was not long enough to reach the posteriorly located duodenum in the abdomen." Dr. Feliz, however, also explained several medically accepted factors that can potentially lead to ulcers, focusing in particular on the effects of nonsteroidal anti-inflammatory drugs (NSAIDs). He stated that NSAIDs "such as aspirin, Advil, Naprosyn, Motrin" and steroids such as prednisone can cause ulcers by disrupting the normal mucosal defense and repair system, making the mucosa more susceptible to the attack of gastric acid. Dr. Feliz went on to describe in more detail the link between Motrin and ulcers in patients with a history of ulcers. He stated that Napier "appeared to have been treated" with aspirin and Motrin and concluded that there was a "causal relationship between the injury sustained with the hook and the subsequent development of a duodenal ulcer." Additionally, Dr. Feliz contradicted Dr. Apstein's statement that the use of cocaine could possibly produce a perforated ulcer within one day of consumption.

On March 3, 2005, the magistrate judge granted Deesie's motion for summary judgment as to the Jones Act and unseaworthiness claims but denied the motion as to the claim for maintenance and cure. The magistrate judge excluded the testimony of Dr. Feliz for failure to rest upon an adequate factual foundation. Specifically, the magistrate judge ruled that there was insufficient factual evidence to support the claim that Napier had ingested aspirin or Motrin. In particular, he looked to the phrase "appeared to have been treated" in Napier's expert report to demonstrate that the report was based on conjecture. Moreover, the magistrate judge found that the record was devoid of any reference to Motrin, and that the only mention of aspirin was the captain's testimony that there was aspirin aboard the ship. Without Dr. Feliz's testimony to establish the fishhook accident as the cause of the ulcer, the magistrate judge found that Napier had produced no evidence as to causation and entered partial summary judgment in favor of Deesie.

This was plainly error in light of an admission made by the defendant. In Deesie's amended motion for summary judgment, Deesie stated the following: "For the purposes of this motion, we assume that (a) the plaintiff took aspirin and Motrin at some point following the hooking incident and (b) the consumption of these over-the-counter medications caused his injury." The magistrate judge's ruling was also erroneous because Napier, in a supplemental affidavit that was filed with his opposition to Deesie's amended motion for summary judgment, stated that he took aspirin and Motrin, an allegation that should have been taken as true by the magistrate judge for purposes of deciding upon the summary judgment motion. See DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.2005) ("In adjudicating a motion for summary judgment, a district court construes the facts `in the light most amiable to the nonmovant[] and indulges all reasonable inferences favorable to [him].'" (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990)).

On March 17, 2005, Napier moved for reconsideration under Fed.R.Civ.P. 59(e). As part of the motion for reconsideration, counsel for Napier submitted an affidavit explaining that Napier had informed counsel that he took aspirin and that counsel had relayed that information to Dr. Feliz. Dr. Feliz also presented an affidavit confirming that Napier's counsel informed him that Napier had ingested aspirin following the accident. Dr. Feliz further clarified that the phrase "appeared to have been treated" was superfluous; his intention was to convey that he was informed prior to issuing his opinion that the patient had taken aspirin.

Upon consideration of the additional affidavits, the magistrate judge found that there was sufficient evidence for Dr. Feliz to base his testimony on the fact that Napier had taken aspirin. However, the magistrate judge held that although the medical report submitted by Dr. Feliz attested to the dangers of Motrin and Motrin taken in combination with aspirin, it did not support the claim that aspirin alone could cause an ulcer. The magistrate judge thus found that Napier had not presented sufficient evidence on the issue of causation to avoid summary judgment on the Jones Act and unseaworthiness claims. The magistrate judge also gave two alternative grounds for granting summary judgment. First, Napier had not shown that anyone on board could have known of Napier's history of ulcers. Second, Napier presented no evidence to suggest that the presence of aspirin could make a vessel unseaworthy.

II.

A. Standard of Review

In this appeal, Napier is appealing from two orders: 1) the initial summary judgment order, and 2) the denial of Deesie's motion for reconsideration (which is really a motion to amend judgment under Fed. R.Civ.P. 59(e)). We review the grant of summary judgment de novo. Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993). We review the denial of a motion to amend judgment for abuse of discretion. Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st Cir. 1994).

Regarding our review of the summary judgment decision, we are authorized to reverse the lower court if, after viewing the facts and making all inferences in favor of the non-moving party, the evidence on record is "sufficiently open-ended to permit a rational fact finder to resolve the [liability] issue in favor of either side." Coyne, 53 F.3d at 457 (internal citations and quotation marks omitted). Although this case comes before us under our maritime jurisdiction, the standard for granting summary judgment motion in an admiralty case is identical to that applied in non-admiralty cases. Cerqueira v. Cerqueira, 828 F.2d 863, 864-65 (1st Cir.1987).

Summary judgment is appropriate when one party has failed to raise a genuine issue of material...