Sana v. Hawaiian Cruises

• Decision Date: 29 April 1999
• Docket Number: No. 98-15077,98-15077
• Citation: 181 F.3d 1041
• Parties: (9th Cir. 1999) BENTER HERNIST SANA, guardian ad litem for Peter Hernist Sana, Plaintiff-Appellant v. HAWAIIAN CRUISES, LTD.; ISLAND NAVIGATION, CO.; BANK OF HAWAII, In Personam; M/V NAVATEK I, O.N. D953302, its engines, boilers, tackle, freight, equipment, stores and furnishings In Rem, Defendants-Appellees. Argued and Submitted:
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1041

181 F.3d 1041 (9th Cir. 1999)

BENTER HERNIST SANA, guardian ad litem for Peter Hernist Sana, Plaintiff-Appellant v. HAWAIIAN CRUISES, LTD.; ISLAND NAVIGATION, CO.; BANK OF HAWAII, In Personam; M/V NAVATEK I, O.N. D953302, its engines, boilers, tackle, freight, equipment, stores and furnishings In Rem, Defendants-Appellees.

No. 98-15077

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: April 29, 1999

Decided: June 4, 1999

Jay Friedheim, Honolulu, Hawaii, for the plaintiff-appellant.

Michael D. Formby and Robert G. Frame, Alcantara & Frame, Honolulu, Hawaii, for the defendants-appellees.

Appeal from the United States District Court for the District of Hawaii. Manuel L. Real, Chief Judge, Presiding. D.C. No. CV-96-00828-MLR.

Before: Jerome Farris, John T. Noonan and Susan P. Graber, Circuit Judges.

FARRIS, Circuit Judge:

Peter Sana appeals from the judgment in favor of Hawaiian Cruises, Ltd. on his claim for maintenance and cure. We reverse.

BACKGROUND

On January 5, 1995, Hawaiian Cruises hired Sana to work in the galley aboard the Navatek I, a vessel used for whale-watching cruises. He typically worked from 6:30 a.m. to 2:30 p.m. on certain assigned days, and he could be called to work additional shifts on short notice.¹ On March 9 and 10, 1995, Sana worked a normal shift. He did not report any accident or illness, and his manager Jenny Curry observed nothing unusual about his appearance or behavior.

After Sana left work on March 10, he ran into his father, Hernist. Hernist noticed that Sana was walking differently and that Sana's hands were "shivering or shaking." Hernist also observed swelling and a scratch right at Sana's hairline. Sana told him that he had bumped his head at work.

On March 11, Sana became very ill at a church event. When his brother Benter arrived to pick him up, he was unresponsive. Benter took him to the Straub Clinic, where doctors performed a CAT scan. The result was negative for head trauma, and Sana was released.

Later that evening, Sana's behavior became increasingly bizarre. He was unable to sit still or sleep, his body shook, and he laughed inappropriately. On March 12, Benter informed Hawaiian Cruises that Sana was sick and could not work that day. On March 13, Sana's condition deteriorated. His family called an ambulance, and Sana was taken to Pali Momi Hospital. Hospital workers noted confused behavior, hysteria, and seizures, and they transferred Sana to the Straub Clinic.

At the Straub Clinic, Dr. James Pearce, a neurologist, gave Sana an EEG. This test showed that Sana's brain function was slowing. Further testing revealed leukocytosis, which to Pearce indicated a viral or bacterial brain infection. Dr. Pearce consulted Dr. Francis Pien, an infectious disease specialist, who initially agreed with Pearce's diagnosis. As Sana's condition worsened, the doctors performed additional tests, including a brain biopsy. None of the tests revealed the presence of a virus, fungus, or bacterium. Thus, the doctors could not determine definitively the cause of Sana's brain inflammation. On March 16, Sana slipped into a coma, in which he remains to this day.

At trial, Dr. Pearce opined that Sana had viral encephalitis. He concluded that Sana was suffering from this illness while he was working on March 9 and 10. Dr. Pearce based this opinion on Sana's shaking, weakness, and behavioral changes. Dr. Pien refused to speculate about what had caused Sana's encephalitis, because none of the tests was conclusive. He also refused to speculate about the time at which Sana first fell ill. Dr. Maurice Nicholson, Hawaiian Cruises' expert, testified that it was impossible to determine when Sana was infected.² He also stated that Sana could have been infected at the church event on March 11. None of the doctors believed that the blow to Sana's head caused his illness.

On August 8, 1995, Sana's counsel sought from Hawaiian Cruises the traditional maritime remedies of maintenance and cure. After conducting an investigation, Hawaiian Cruises refused the request. On October 3, 1996, Sana filed a complaint seeking maintenance and cure, as well as damages for negligence and unseaworthiness under the Jones Act. On October 22, 1996, Hawaiian Cruises filed an answer, and on January 14, 1997, it sought to amend its answer by pleading a limitation of liability under 46 U.S.C. 183(a). Over Sana's objection, the court granted Hawaiian Cruises leave to amend.

At trial, Sana attempted to call Don Beaudry, the president of Hawaiian Cruises' insurance company. A Beaudry Insurance agent named Michael Rutherford had investigated Sana's behavior on March 9 and 10. Rutherford's report contains transcripts of his interviews with two of Sana's co-workers, Christopher Kalani Kauhi and Saver Ruben, and with Sana's immediate supervisor John Michael Hudson. In the interviews, which took place a few days after Sana was admitted to the Straub Clinic, both Kauhi and Ruben state that Sana told them that he had bumped his head at work on March 10. Kauhi also claims that Sana was behaving abnormally that day. Hudson states that Sana told him that he felt sick on March 8. Since neither Rutherford nor Sana's co-workers were available to testify at trial, Sana hoped to establish through Beaudry that the Rutherford report was an admissible business record.

The court held that the Rutherford report contained inadmissible hearsay, and it refused to let Beaudry testify. On the merits, it credited the testimony of Drs. Pien and Nicholson.³ The court concluded that Sana did not prove that his illness manifested itself on or before March 10, 1995, his last day of work. Therefore, he was not entitled to maintenance and cure. The court also denied Sana's Jones Act claims.

Sana timely appealed the denial of his maintenance and cure claim. He argues that the court erred by (1) excluding the Rutherford report, (2) holding that Sana was not answerable to the call of duty after he left work on March 10, and (3) allowing Hawaiian Cruises to amend its answer to plead a limitation of liability.

STANDARD OF REVIEW

We review a trial court's rulings on the admissibility of evidence for abuse of discretion. See United States v. Arias-Villanueva, 998 F.2d 1491, 1503 (9th Cir. 1993). We review findings of fact for clear error. See Resner v. Arctic Orion Fisheries, 83 F.3d 271, 274 (9th Cir. 1996). We review whether the doctrine of maintenance and cure applies to a given set of facts de novo. See Stevens v. McGinnis, 82 F.3d 1353, 1356 (6th Cir. 1996).

DISCUSSION

"[A] seaman who falls ill while in the service of his vessel is entitled to... maintenance and cure." Dragich v. Strika, 309 F.2d 161, 163 (9th Cir. 1962) (seaman who evidenced signs of Parkinson's disease aboard fishing vessel entitled to maintenance and cure). The obligation does not depend on the negligence or fault of the shipowner, nor is it limited to cases in which the seaman's employment caused his illness. Id. Traditionally, courts have construed this obligation liberally. See, e.g., Aguilar v. Standard Oil Co., 318 U.S. 724, 735, 87 L. Ed. 1107, 63 S. Ct. 930 (1942) (obligation should "not be narrowly confined or whittled down by restrictive and artificial distinctions defeating its broad and beneficial purposes").

I. Did Sana fall ill while "in the service of his vessel"?

Sana argues that he experienced symptoms of encephalitis while he was still working on the Navatek I. Assuming that the court properly excluded the Rutherford report, Sana's only evidence to support this proposition is Dr. Pearce's opinion that he was infected by March 9. The court rejected this testimony, and it accepted the view of Drs. Pien and Nicholson that the origin and onset of the infection were impossible to determine. This resolution of the medical testimony was not clearly erroneous.

If the Rutherford report is admissible, Sana has a much better case. Hudson's statement establishes that Sana felt ill as early as March 8. Kauhi's statement shows that Sana was behaving abnormally on March 10. Taken together, these statements bolster Dr. Pearce's testimony that Sana was infected by March 9.

In Stevens, 82 F.3d at 1353, the Sixth Circuit affirmed a grant of maintenance and cure on similar facts. Stevens suffered a blow to the head when he fell on the deck of a towboat. According to a co-worker, Stevens suffered headaches for months, and his personality changed. The shipowner eventually fired him for threatening the same co-worker. Five months later, Stevens was diagnosed with a brain tumor. Both the district court and the Sixth Circuit concluded that he became sick while in the ship's service. Therefore, he was entitled to maintenance and cure.

Like Stevens, Sana exhibited the first signs of a severe illness while at work. Unlike Stevens, Sana deteriorated very shortly thereafter. This proximity makes Sana's case even stronger. In light of the inconclusive medical testimony presented by Hawaiian Cruises and the traditional liberality of the maintenance and cure remedy, the court's exclusion of the Rutherford report materially affected Sana's case.

II. Did the court abuse its discretion in excluding the Rutherford report?

The Rutherford report involves several layers of hearsay: (1) it is an unsworn, out-of-court statement by Rutherford; (2) it contains unsworn, out-of-court statements by Sana's co-workers; (3) which recall unsworn, out-of-court statements by Sana. For the document to be admissible, each layer of hearsay must satisfy an exception to the hearsay rule. See Fed. R. Evid. 805.

Sana argues that his statements to his co-workers are admissible under Fed. R. Evid. 803(3), which excepts from the hearsay rule statements "of the declarant's then existing... physical condition (such as... pain... and bodily health)." Hawaiian Cruises simply denies, without explanation, that this section applies. It is mistaken. The statements are admissible...