Whitman v. Miles

• Decision Date: 20 November 2003
• Docket Number: No. CIV. 03-61-P-H.,CIV. 03-61-P-H.
• Parties: Melodee WHITMAN, Plaintiff, v. Rick MILES, Defendant.
• Court: U.S. District Court — District of Maine

294 F.Supp.2d 117

Melodee WHITMAN, Plaintiff, v. Rick MILES, Defendant.

No. CIV. 03-61-P-H.

United States District Court, D. Maine.

November 20, 2003.

R. Terrance Duddy, Kelly, Remmel & Zimmerman, Portland, ME, for Melodee Whitman, Plaintiff.

Leonard W. Langer, Tompkins, Clough, Hirshon & Langer, Portland, ME, for Rick Miles, Defendant.

DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HORNBY, District Judge.

Under ancient maritime law principles, a sailor who is injured or becomes sick while in the service of the ship has a right to "maintenance and cure" (living and medical expenses) from the ship owner until the sailor is cured or until the illness or injury is diagnosed as permanent and incapable of being improved.¹ This protection developed in simpler times when treatment for the injuries and illnesses sailors confronted was generally neither lengthy nor complex. But modern medicine has devised measures to keep people alive in the face of incurable illness, or at least to alleviate a portion of their suffering — sometimes by heroic measures, sometimes by treatment that runs into years, sometimes with medications that are experimental, expensive or both. What, then, do maintenance and cure mean in the 21st century? The question in this case is how far maintenance and cure extend for a sailor diagnosed with multiple sclerosis, who wants continuing treatment. In the face of uncontested evidence that multiple sclerosis is incurable and that the sailor was as improved as possible on August 15, 2000, I conclude that the ship owner's obligation of maintenance and cure ended on that date, although the sailor in question obviously needs continuing medical treatment. After oral argument on November 5, 2003. I GRANT IN PART the ship owner's motion for summary judgment.²

FACTS

On the ship owner's motion for summary judgment, I rely on uncontested facts or the sailor's version if in conflict. The defendant, Rick Miles, owned the schooner Timberwind. Pl.'s Statement of Material Facts ("SMF") ¶ 8. The plaintiff, Melodee Whitman, was assistant cook onboard Timberwind in July of 2000. Pl.'s SMF ¶ 9; Def.'s SMF. ¶ 1. On July 17, 2000, Whitman went to the hospital after falling several times on board the ship and experiencing symptoms that included fatigue, loss of balance, numbness, and incontinence. Pl.'s SMF ¶ 3; Def.'s SMF ¶ 2. On July 18, 2000, following an MRI, physicians declared that Whitman's condition was consistent with advanced multiple sclerosis ("MS"). Def.'s SMF ¶ 3. MS is an autoimmune disease recognized as incurable, but not fatal. Pl.'s SMF ¶¶ 28-30; Pl.'s Mem. at 1, 3. Miles, through his insurer, paid Whitman's medical bills for the emergency and initial diagnostic treatment ($6,604.85), but not for any treatment or living expenses after the diagnosis. Def.'s SMF ¶ 28. For at least one month after her discharge from the hospital, Whitman lived with a friend and did not pay rent. Def.'s SMF ¶ 25.

On August 3, 2000, Whitman saw Dr. Judd Jensen for a follow-up. Dr. Collins' Aff., Ex. 3 at 14.³ In his summary of the visit, Dr. Jensen said that Whitman's extremities were still a little numb, but "not as much as they were," her balance was "good," and she was not experiencing incontinence. Id. He reported that Whitman said, "I feel back to myself." Id. Dr. Jensen also noted "significant subjective and objective improvement in Ms. Whitman's neurologic status since her presentation in the emergency room on July 17," and reiterated that the MRI findings "seemed strongly suggestive" of MS. Id.

On August 15, 2000, Whitman saw Dr. Howard Weiner, an MS specialist, for an evaluation. Dr. Collins Aff., Ex. 3 at 15. He described her initial symptoms and MRI as "classic for multiple sclerosis." Dr. Weiner's neurologic examination on August 15 showed that Whitman by then had "a normal gait" and had "no other motor, cerebellar, or sensory findings." Id. Dr. Weiner noted that after her hospitalization, Whitman was treated with steroids for five days. She "has subsequently resolved to the extent that she now is continent and only has some mild and tingling feelings," he reported. Id.

Shortly after the August 15 evaluation, Whitman began taking Betaseron, an experimental drug designed to alter the abnormal immune systems of MS patients. Pl.'s SMF ¶¶ 4, 17. On October 4, 2000, Whitman returned to Dr. Jensen and complained that she had been experiencing numbness and loss of balance for the past week. Dr. Collins Aff., Ex. 3 at 16. In his summary of the October 4 visit, Dr. Jensen noted that "[p]rior to one week ago [Whitman] felt completely back to normal from her previous bout of neurologic symptoms." Id. He predicted that Whitman was suffering from a "mild, early exacerbation" and proscribed Solu-Medrol to treat the exacerbation. Id. When Whitman visited Dr. Jensen again, on November 17, 2000, he said that her "`minor exacerbation' resolved in a couple of days" and that Whitman was no longer experiencing any numbness or balance problems. Id. at 17. He further reported: "Ms. Whitman appears to be doing quite well from the point of view of her [MS]. Her neurologic examination seems essentially normal at this time and she is asymptomatic." Id.

MS manifests itself in sporadic and unpredictable exacerbations, which die down and flare up periodically. Def.'s SMF ¶ 8. Since July, 2000, Whitman has had a number of such episodes, Def.'s SMF ¶ 9, and has experienced symptoms including vision problems, memory loss, dizziness, lightheadedness, nausea, vomiting, worsening bladder and bowel control problems, numbness, partial paralysis to one side of her face, leg spasms, and persistent foot drop. Def.'s SMF ¶ 12. Not all of these symptoms have worsened, and some have disappeared. Pl.'s SMF ¶ 32. The most recent episode was in November, 2002. Pl.'s SMF ¶ 6. Whitman also suffers from depression, and she takes an antidepressant medication daily. Pl.'s SMF ¶ 2.

Although Whitman has not responded well to Betaseron, Pl.'s SMF ¶ 22, she continues to take the drug by injection every other day. Pl.'s SMF ¶ 2. If she were to stop taking Betaseron or a comparable drug, her symptoms would become worse and the onset of greater disability would accelerate. Pl.'s SMF ¶ 26.

When Whitman's treating physician, Dr. Tenser, last saw her after the November 2002 exacerbation, he noted that while the symptoms from that episode had not cleared up completely, she showed neurological improvement since the exacerbation.⁴ Pl.'s SMF ¶ 16.

When Dr. Tenser was deposed on July 30, 2003, he testified that it is unlikely that Whitman will improve further.⁵ Def.'s SMF ¶ 19. Dr. Collins, an MS specialist selected by the defendant, was deposed on August 12, 2003. He testified that, based on his review of Whitman's medical records, he believed it is probable that her condition will continue to deteriorate over time.⁶ Def.'s SMF ¶ 17.

The goal of continuing Whitman's treatment is to arrest or slow down the progression of the MS, Pl.'s SMF ¶ 35, or to stabilize or reverse her symptoms. Pl.'s SMF ¶ 38. MS is not curable. Pl.'s Resp. to Def.'s SMF ¶ 6.

ANALYSIS

(1) Maintenance and Cure Generally

Maintenance and cure are the unique obligations that ship owners owe sailors who fall ill or become injured while in the service of a ship. Neither fault nor causation is required. If a sailor is injured or becomes ill while in the service of the ship, the ship owner has an absolute duty to pay for the sailor's food and lodging (maintenance) as well as any necessary medical expenses (cure) during the sailor's recovery. LeBlanc v. B.G.T. Corp., 992 F.2d 394, 397 (1st Cir.1993). "In the service of the ship" means that the sailor was "answerable to [the ship's] call to duty" when he or she fell ill or was injured. Farrell v. United States, 336 U.S. 511, 516, 69 S.Ct. 707, 93 L.Ed. 850 (1949). Maintenance and cure were fashioned to protect sailors who historically faced hazardous conditions from the sea, pirates and foreign ports. See Calmar v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 82 L.Ed. 993 (1938). The Supreme Court has explained the policies behind the obligation:

The ship owner's ancient duty to provide maintenance and cure for the seaman who becomes ill or injured while in the service of the ship derives from the "unique hazards (which) attend the work of seamen" and fosters the "combined object of encouraging maritime commerce and assuring the well-being of seamen."

Vella v. Ford Motor Co., 421 U.S. 1, 3-4, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975)(quoting Aguilar v. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. 930, 87 L.Ed. 1107 (1943)). The protection was crafted in such a way as to be "so inclusive as to be relatively simple, and [so that it] can be understood and administered without technical considerations. It has few exceptions or conditions to ... invite litigation." Farrell, 336 U.S. at 516, 69 S.Ct. 707; Vella, 421 U.S. at 4, 95 S.Ct. 1381. But there are limits; it does not amount to lifetime insurance. Farrell, 336 U.S. at 519, 69 S.Ct. 707. Early cases debated whether the obligation continued after the voyage had ended, e.g., McCarron v. Dominion Atlantic R. Co., 134 F. 762 (D.Mass.1905), but it has long been clear that there is no long term obligation for an incurable disease or chronic illness, Calmar, 303 U.S. at 528, 58 S.Ct. 651, and, in accordance with the Shipowners' Liability Convention, that the protection lasts only until the sailor "is so far cured as possible."⁷ Farrell, 336 U.S. at 518, 69 S.Ct. 707 (citing The Wensleydale, 41 F. 829 (E.D.N.Y.1890)); accord Vella, 421 U.S. at 6 n. 5, 95 S.Ct. 1381 (quoting Desmond v. United States, 217 F.2d 948, 950 (2d Cir. 1954) ("only until the disease is cured or recognized as incurable.")).⁸

Whitman and Miles agree that Whitman was diagnosed with MS in July, 2000. They disagree, however, about whether or when Whitman's MS was diagnosed "permanent" and "incapable of being improved."...