Tindle v. Hunter Marine Transp., Inc.

• Decision Date: 21 January 2016
• Docket Number: CIVIL ACTION NO. 5:14-CV-00110-TBR-LLK
• Parties: DONNA TINDLE, as administrator of the Estate of Jimmie W. Tindle, Plaintiff, v. HUNTER MARINE TRANSPORT, INC., Defendant.
• Court: U.S. District Court — Western District of Kentucky

DONNA TINDLE, as administrator of the Estate of Jimmie W. Tindle, Plaintiff, v. HUNTER MARINE TRANSPORT, INC., Defendant.

CIVIL ACTION NO. 5:14-CV-00110-TBR-LLK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY PADUCAH DIVISION

January 21, 2016

MEMORANDUM OPINION AND ORDER

Donna Tindle filed this wrongful death action as the administrator of her late-husband Jimmie W. Tindle's estate. She alleges that Hunter Marine Transport, Inc. unreasonably delayed evacuating Tindle from the M/V Elizabeth Ann after he complained of difficulty breathing and so breached its duty to provide prompt and adequate medical care under the Jones Act and general maritime law. With discovery at an end, each side seeks to exclude certain expert opinions offered by the other. Hunter Marine also asks for partial summary judgment as to certain theories on which Mrs. Tindle bases her negligence claims and as to the availability of particular types of damages. Collectively, the Court addresses those motions below.

I.

A.

1.

In April 2013, at the age of 53, Jimmie W. Tindle sought employment as an engineer with Hunter Marine Transport, Inc. R. 27 at 1 (Response to Motion to Exclude Dr. Varon's Opinions). As part of the application process, Hunter Marine required Tindle to undergo a medical evaluation. R. 21-1 at 2 (Memorandum in Support of Motion to Exclude Dr. Varon's Opinions). A physician with HealthWorks Medical, LLC examined Tindle on April 17, 2013. See R. 27-1 at 1 (Report from HealthWorks Medical, LLC). During that examination, the physician noted that Tindle suffered from asthma. Id. at 1-2. Based on Tindle's poor spirometry results, HealthWorks Medical deferred clearing Tindle until his treating pulmonologist, Dr. John W. Forman, certified him as fit for duty. Id. at 1-2, 11. Soon after, Dr. Forman did just that, stating:

Mr. Tindle has been a patient of mine since 2010 and has been treated for asthma that has been well controlled. He has rare episodes of exacerbations that are easily managed. He is on controller medication for his asthma and rarely uses a rescue inhaler. He travels extensively at sea and we have always been able to manage his asthma without difficulty.

It is my impression that Mr. Tindle is able to work as an engineer on a barge. If there is any question in this regard, please feel free to contact my office.

Id. at 4. Relying on Dr. Forman's letter, HealthWorks Medical declared Tindle medically fit to work aboard a river towboat, provided he not be assigned to a vessel which required respirator use. Id. at 3. Subsequently, Hunter Marine hired Tindle. R. 21-1 at 2.

2.

On two occasions during his time with Hunter Marine, Tindle experienced episodes of respiratory distress severe enough to force him to seek shoreside medical treatment. The first incident occurred on July 4, 2013, when Tindle called his supervisor, Port Engineer Gary Adams, and said that he needed to see a doctor about his asthma immediately. R. 27-2 at 25 (Adams' Deposition). Port Engineer Adams relieved Tindle, and Hunter Marine's Safety Manager Jonathan Bennett transported Tindle to Livingston Hospital in Salem, Kentucky. Id. at 25-27. According to Livingston Hospital's records, Tindle complained of "shortness of breath, respiratory distress, and [a] history of asthma with exacerbation." R. 27-3 at 2 (Records of Livingston Hospital). The admittingphysician ordered a breathing treatment, including injections and oxygen, and proscribed Tindle a series of medications. Id. at 3. Tindle filled the prescriptions at a local pharmacy, and then returned to the vessel that afternoon. R. 27-2 at 28-29.

The second episode transpired on August 24, 2013. Id. at 13, 24. Again, Tindle called Port Engineer Adams and complained of shortness of breath and trouble breathing. Id. As before, Port Engineer Adams arranged for Tindle to be transported from the vessel to Dallas Medical PLLC in Paducah, Kentucky. Id. The admitting physician ordered a breathing regimen and proscribed Tindle another series of medications. R. 27-4 at 1-4 (Records of Dallas Medical PLLC). Tindle filled those prescriptions and returned to the vessel later that day too. R. 27-2 at 15, 24.

3.

The circumstances behind the tragic incident aboard the M/V Elizabeth Ann—and those at the core of this lawsuit—begin on April 24, 2014. Sometime between 9:00 a.m. and 11:00 a.m., Tindle spoke with Captain Billy Milam about pollen "aggravating his asthma." R. 27-7 at 19, 32 (Milam's Deposition). Before that conversation, Captain Milam was unaware that Tindle suffered from asthma: No one from Hunter Marine had told Captain Milam about the two prior episodes where Tindle had to be evacuated from the vessel. See id. at 19, 92-93. But according to Milam, Tindle "looked fine" on the morning of April 24, and neither spoke about him departing the vessel that day. See id. at 32-33, 35.

The following morning, Tindle talked with vessel cook Maggie Just during breakfast. R. 21-7 at 13 (Just's Deposition). Just thought that Tindle "looked tired and just like he didn't feel well," id., and Tindle told her that "he thought his asthma wasacting up," id. at 14. Tindle left with a cup of coffee, but returned to the galley sometime later, and told Just that "he was feeling worse." Id. at 15. Just agreed that Tindle looked worse for wear, and she told Tindle that when Kaleb Kline boarded the vessel, he should go. Id. But Tindle said that he wanted to "ride with Kaleb for a little while so he would get off at Kentucky Dam," a destination roughly twelve hours away. Id. at 15-16.

In addition to speaking with Just, Tindle called Dr. Foreman's office sometime during the morning of April 25 and requested medication for his breathing problems. See R. 21-8 at 1 (Records of Pulmonary Medicine Center of Chattanooga). According to Dr. Forman's records, Tindle said that he "[would] be coming ashore this weekend, needs something called in, [and couldn't] afford not to work." Id. Dr. Foreman proscribed a Prednisone regimen. Id.

At around 10:30 a.m., Tindle approached Captain Milam as he had the day before. R. 27-7 at 36. Tindle told Captain Milam that his asthma was "acting up and [that] he had run out of medicine," but that he would retrieve more when the M/V Elizabeth Ann arrived at Kentucky Lock. Id. at 37. Captain Milam asked Tindle if he wanted to leave the vessel; Tindle's response is not entirely clear, see id. at 36-41, and is contested, compare R. 21-1 at 3, with R. 27 at 4 & n.1. In addition, Tindle discussed the possibility of calling his supervisor, Port Engineer Adams. R. 27-7 at 35-37. Perhaps Captain Milam put it best when he testified that "[Tindle] didn't sound certain about what he was going to do." Id. at 36-37. In any event, Captain Milam described Tindle as looking "fine," but "a little more tired that day" than usual. Id. at 42.

While the record is not forthcoming about how Safety Manager Bennett learned of Tindle's breathing issues, see R. 27-2 at 41-42, sometime between 9:00 a.m. and10:00 a.m. that same morning, Safety Manager Bennett spoke with Port Engineer Adams about Tindle's condition, id. at 40-41. Port Engineer Adams suggested that it might be necessary to take Tindle off of the vessel. Id. at 40. Shortly after speaking with Safety Manager Bennett, Port Engineer Adams called Ronnie Cato to see if he might be able to relieve Tindle, but Cato declined because of other obligations. Id. at 42-44. Port Engineer Adams' subsequent efforts to find an engineer to relieve Tindle proved fruitless. Id. at 44.

Apparently, Tindle also called Cato between 12:00 p.m. and 1:00 p.m. that afternoon. R. 21-10 at 8 (Cato's Deposition). According to Cato's testimony, "[Tindle] was having some trouble breathing, but it was no big issue. I mean, he didn't act like he was in distress or anything." Id. at 8-9. Tindle asked if Cato might be able to come and relieve him, id. at 8, but Cato declined because of family obligations, id. at 9. Cato suggested that Tindle contact Port Engineer Adams, and the conversation ended. Id. at 12.

Tindle's wife called Hunter Marine around 3:35 p.m. that afternoon and spoke with Safety Manager Bennett. R. 21-9 at 34 (Bennett's Deposition). Mrs. Tindle asked him to retrieve some medication called in for her husband because he "was having some breathing difficulties." Id. According to Safety Manager Bennett, she "was adamant that it was just medication that [Tindle] needed, and he did not want to get off the boat." Id. at 35. Safety Manager Bennett assured Mrs. Tindle that he would bring the medication to her husband. Id.

Later that afternoon at 4:07 p.m., Tindle called deckhand Kaleb "Tiny" Kline. R. 21-11 at 9-11 (Kline's Deposition). Sounding distressed, Tindle said: "Tiny,something's wrong. Come up here." Id. at 11-12 (internal quotation marks omitted). Along with fellow deckhand Jonathan Welker, Kline went straight to Tindle's room. Id. at 12. The pair found Tindle "standing at his window breathing heavily." Id. at 12-13. Kline told Welker "to go alert the wheelhouse." Id. at 13. Kline then stood behind or to the side of Tindle while Tindle explained how to administer an EpiPen should he lose consciousness. Id. at 14-15. After a few minutes, Tindle passed out in Kline's arms. Id. at 15. Meanwhile, another deckhand woke Captain Milam and "told him that [Tindle] needed his help"; Captain Milam rushed to Tindle's room. R. 21-6 at 45 (Milam's Deposition).

Captain Milam found Tindle unconscious with Kline tending to him. Id. at 46. According to Captain Milam, Tindle had a pulse. Id. at 47. Within a few short moments, Welker returned along with crewmember Ben Vernon. Id. at 48. Either Kline or Captain Milam instructed Welker or Vernon to get an Automated External Defibrillator. Compare id. at 45, with R. 21-11 at 16-17. As Captain Milam left to call 911, he passed a crewmember carrying an AED to Tindle's room. R. 21-6 at 48. The crew removed Tindle's shirt and attempted to connect the AED to Tindle. R....