Olsen v. American S.S. Co.

Decision Date12 May 1999
Docket NumberNo. 98-1030,98-1030
Citation2000 A.M.C. 90,176 F.3d 891
PartiesMichael G. OLSEN, Plaintiff-Appellant, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Donald A. Krispin, Robert J. Allen (briefed), Michael J. Conner (argued and briefed), Jaques Admiralty Law Firm, Detroit, Michigan, for Plaintiff-Appellant.

Thomas W. Emery (argued and briefed), David M. Shafer (briefed), Allison L. Hoff (briefed), Garan, Lucow, Miller & Seward, Detroit, Michigan, for Defendant-Appellee.

Before: SILER, BATCHELDER, and COLE, Circuit Judges.

OPINION

COLE, Circuit Judge.

Plaintiff Michael Olsen filed suit under the Jones Act, 46 U.S.C.App. § 688 et seq., and under general admiralty law against defendant American Steamship Co. seeking damages relating to a heart attack he suffered while in the company's employ. Specifically, Olsen alleged that the ship on which he served was unseaworthy and that the defendant was negligent because it breached its duty to provide prompt and adequate medical care. Following a jury verdict in favor of the defendant, Olsen brings this appeal. Most notably, he asserts that the district court erred by limiting the testimony of one of his expert witnesses. For the following reasons, we AFFIRM the judgment of the district court.

I.

On the morning of July 5, 1995, while his ship the M/V Sam Laud was docked in the port of Waukegon, Illinois, deckhand Michael Olsen and another shipmate were asked to work overtime cleaning the ship's cargo holds, which Olsen described as a nasty job. 1 A Great Lakes freighter, the M/V Sam Laud carries in its five holds gypsum, sand, and other raw materials mined in the region. During the process of off-loading, the holds' pitched sides vibrate to shake the cargo down to a conveyor belt. This procedure is not perfect, however. Some cargo invariably sticks in the holds' nooks and crannies, requiring deckhands to climb down fifty-foot ladders to remove it manually, usually with garden hoes. Each deckhand wears a safety belt and, upon reaching the bottom of a hold, clips the belt on to one of various chains located throughout the space so that he can safely clamber around the sloped sides knocking cargo down to the bottom.

As Olsen and his partner began this work, the temperature inside the poorly ventilated holds was a humid 100-plus degrees. The cargo that day was particularly sticky, and Olsen and his partner were asked to re-enter some of the holds because some of the cargo they knocked down adhered to the conveyors. These conditions, while difficult, were apparently not unusual. The men could take a break whenever they needed, and they had water both to drink and pour over themselves.

At some point while performing this task, Olsen began to feel ill. Up on the deck, he walked over to a vent, hoping to cool off. The ship's captain happened by and asked Olsen if he was all right. Olsen said that he thought so. At trial, he testified that, in fact, he was unconcerned about his symptoms at this point, believing that his malady would clear up. After Olsen had rested for a while, he re-entered the holds to finish the job. When it was complete, Olsen went back to the same spot on the deck. After sitting there for a while, he discovered that he could not pick his head up off his chest. Olsen informed the watchman (i.e. his supervisor) that he would be unable to continue working (the next task was to wash down the holds) and returned to his quarters.

Olsen did not work his next watch. The ship set sail, but before it arrived in its next port, Grand Haven, Michigan, third mate Kenny Bellmore informed Olsen that the captain was taking Olsen to see the doctor. At the North Ottawa Community Hospital, Olsen complained of the following symptoms: aching teeth, prickly arms, a burning sensation in his chest, and difficulty walking. Dr. L. Michael Sterenberg concluded, after examining Olsen, that he was dehydrated. The doctor gave Olsen an intravenous saline solution, telling him to drink lots of fluids and to take it easy for a day. 2

Olsen reported that he felt better after he received the fluids. When he returned to the vessel, the morning of July 6, it was almost time for his morning watch, but he was allowed to rest. Olsen did not tell the captain or anyone else that he was unfit for duty, although he did tell the captain that he was "still not normal." At around 4:00 p.m., Olsen was asked to perform his afternoon watch. The ship was underway again, and he was assigned the duty of painting the smokestacks. The temperature near the stacks was close to two hundred degrees. 3 Olsen felt very weak and after about a half hour or so of painting, he and his watchman agreed that "this is too much and we kind of wrapped 'er up." Olsen went to the ship's fantail to cool off but cannot remember if he performed any other duties on that watch. The next thing he can remember is helping to tie up the ship as it unloaded cargo, from about 8:00 p.m. to 4:00 a.m., at Zilwaulkee, Michigan. This was a difficult task, requiring Olsen and at least one other crewman to row ashore repeatedly--in this case in the rain--and find a tree, rock, or "official spile" to tie onto, and then row back. After this task was completed, Olsen worked his regular morning watch.

From Zilwaulkee, the ship sailed to East Tawas, Michigan, which is four or five hours away. Still feeling sick, Olsen requested vacation time. He called his girlfriend Laura Standen, who was in Petoskey, Michigan, and asked her to pick him up. She testified that when she arrived, she wanted to take him to the hospital that night, but he refused. Olsen promised her, however, that he would go in the morning if still not feeling well. They drove back to Petoskey that night, and the next morning, July 8, he went to Northern Michigan Hospital. Doctors there diagnosed him as being in the throes of a heart attack. Olsen had open-heart surgery. Since then, he has been unable to work as a seaman or perform any other physical labor.

Olsen filed this lawsuit on September 23, 1996, alleging that the M/V Sam Laud was unseaworthy and that the American Steamship Co. violated its duty to provide prompt and adequate medical care to Olsen. On November 10, 1997, the district court held a final pretrial conference and signed off on the parties' Proposed Joint Pretrial Order. The court ordered the parties to submit pretrial briefs, and they did so on December 1, 1997. The parties also each submitted proposed jury instructions and a statement of the case. A jury trial began on December 15, 1997. The jury returned a verdict in favor of the defendant on December 17, 1997. This timely appeal followed.

II.

The main issue in this appeal is whether the district court erred by limiting the testimony of Dr. Helen H. Winkler, one of Olsen's expert witnesses. Specifically, the court did not allow Dr. Winkler to answer three questions relating to potential negligence on the part of Dr. Sterenberg: (1) "[T]o an internist, what do [the symptoms that Olsen presented at North Ottawa Community Hospital] classically represent;" (2) "Would it have been prudent to have an EKG administered at that time;" and, (3) in reference to Dr. Sterenberg's certifying Olsen fit for duty, should "a person presenting ... the symptoms as you've described, as well as the knowledge of the tests that were not performed ... be returned to work with those conditions present." The district court concluded that Dr. Sterenberg's negligence was not properly before the jury and that the questions posed were therefore irrelevant.

"A trial court's decision to exclude evidence is reviewed for abuse of discretion." Sutkiewicz v. Monroe County Sheriff, 110 F.3d 352, 357 (6th Cir.1997). This court will not disturb the discretion of the trial court "unless the reviewing court finds that the ruling excluding the evidence is not only erroneous but results in substantial injustice to the aggrieved party." Id. In order to evaluate whether the district court so erred, we must first briefly examine various admiralty law causes of action. There are three causes of action generally available to a seaman who becomes sick or injured while in service of his or her vessel. First, the seaman may bring an action for maintenance and cure, in which he or she seeks wages plus reimbursement for medicine, treatment, and other expenses relating to his injury. This is admiralty law's original remedy; similar ones are found in the Laws of Oleron, published in the 12th Century, and in other ancient codes. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 543, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); 1B Benedict on Admiralty, § 41 et. seq. (1997). Olsen did not bring such a claim here, however. Second, the seaman may bring an unseaworthiness action, a strict liability claim alleging that the defendant shipowner failed to provide a vessel reasonably fit for its intended use. See Miles v. Apex Marine Corp., 498 U.S. 19, 25-26, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990); Mitchell, 362 U.S. at 543-49 (providing an excellent history of the unseaworthiness action); see generally 1B Benedict on Admiralty, §§ 23-31 (1997). Olsen brought an unseaworthiness claim, but it is not relevant to the exclusion of Dr. Winkler's testimony.

Finally--and this is relevant--a seaman may bring a negligence action under the Jones Act, 46 U.S.C.App. § 688. 4 See generally 1B Benedict on Admiralty, §§ 21-22 (1997) (noting that although the cause of action has assumed less importance since the rise of the warranty of seaworthiness in the 1950's and 1960's, "Jones Act negligence is not, however, dead"). A shipowner owes several duties to a ship's crew; chief among them for the purposes of this case is the duty to provide prompt and adequate medical care to a sick or injured crewman. See Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527, 1533 (11th Cir.1990); De Centeno v. Gulf Fleet Crews, Inc., ...

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