Whitman v. Miles

• Citation: 387 F.3d 68
• Decision Date: 28 October 2004
• Docket Number: No. 04-1117.,04-1117.
• Parties: Melodee WHITMAN, Plaintiff, Appellant, v. Rick MILES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

387 F.3d 68

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

No. 04-1117.

United States Court of Appeals, First Circuit.

Heard August 3, 2004.

Decided October 28, 2004.

Appeal from the United States District Court for the District of Maine, D. Brock Hornby, J R. Terrance Duddy, with whom Jennifer A. Archer and Kelly, Remmel & Zimmerman, were on brief, for appellant.

Leonard W. Langer, with whom Marshall J. Tinkle and Tompkins, Clough, Hirshon & Langer, P.A., were on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and DYK,^* Circuit Judges.

TORRUELLA, Circuit Judge.

In this case involving a claim for maintenance and cure benefits by a seaman suffering from multiple sclerosis, plaintiff-appellant Melodee Whitman ("Whitman") appeals from an order of the district court granting defendant-appellee Rick Miles's ("Miles") motion for summary judgment. We affirm.

I. Background

We review the entry of summary judgment de novo, viewing the facts in the light most favorable to the party opposing summary judgment, in this case Whitman. GTE Wireless, Inc. v. Cellexis Int'l, Inc., 341 F.3d 1, 4 (1st Cir.2003). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c).

On July 17, 2000, while working as a cook on Miles's ship, the S/V Timberland, Whitman had to be driven to a hospital after falling several times on the ship, burning herself while cooking, and experiencing other symptoms including fatigue, cold, numbness, and incontinence. Following an MRI, Whitman was diagnosed with multiple sclerosis ("MS"), an autoimmune disease that causes a person's immune system to attack healthy tissue in the body. Whitman has what is known as "relapsing-remitting" MS, which is characterized by symptoms that manifest themselves in sporadic, unpredictable exacerbations that flare up and then die down. Sometimes the symptoms completely clear; other times they do not. While not fatal, MS is a permanent disease with no known cure.¹

On August 3, 2000, Whitman saw Dr. Judd Jensen for a follow-up visit. Dr. Jensen noted significant improvement in Whitman's status since her hospital visit on July 17, 2000. Dr. Jensen also reiterated that the MRI findings were strongly suggestive of MS. On August 15, 2000, Whitman saw Dr. Howard Weiner for an evaluation. Dr. Weiner, an MS specialist, described Whitman's initial symptoms and MRI as classic for MS. After a neurologic examination, Dr. Weiner found that Whitman had a normal gait and there were no other motor, cerebellar, or sensory findings. He also found that Whitman was continent and only had some mild tingling feelings.

Shortly after Dr. Weiner's August 15 evaluation, Whitman began taking Betaseron, a disease-modifying medication that acts at the cellular level to alter the immune system's response to MS. On October 4, 2000, Whitman saw Dr. Jensen and complained of numbness and loss of balance. On November 17, 2000, Whitman again visited Dr. Jensen, who noted that the recent exacerbation had resolved in a couple of days, that her neurologic examination was essentially normal, and that she was asymptomatic.

Since July 2000, Whitman has had several exacerbations, with symptoms including vision problems, memory loss, dizziness, lightheadedness, nausea, vomiting, numbness, leg spasms, partial paralysis to one side of her face, and foot drop. Some, but not all, of these symptoms have faded or disappeared. Whitman's last exacerbation occurred in November 2002. Whitman also suffers from depression, for which she takes medication. Depression is common among patients with MS.

Through his insurer, Miles paid Whitman's medical bills for her initial diagnosis and treatment. Miles did not pay for any living expenses or treatment after the diagnosis. In August 2000, Whitman spoke by phone with Patrick O'Toole of Acadia Insurance Company, which is Miles's insurer, and requested maintenance and cure benefits. In a letter dated August 21, 2000, Acadia denied Whitman benefits beyond the emergency treatment and initial diagnosis. On March 6, 2003, Whitman filed suit in Maine federal district court, seeking past and ongoing maintenance and cure ("Count I"), as well as attorney's fees for unreasonable refusal to pay maintenance and cure ("Count II"). On August 28, 2003, Miles moved for summary judgment.

Miles originally argued that his duty to provide maintenance and cure ended on July 18, 2000, when Whitman was first diagnosed with MS. At oral argument before the district court, Miles conceded that the duty to provide maintenance and cure extended for a short time after diagnosis, and agreed to pay for Whitman's medical expenses up to August 15, 2000.² On November 20, 2003, the district court partially granted Miles's motion for summary judgment on Count I, finding that August 15, 2000 was the date of maximum medical recovery. The district court concluded that Miles was entitled to summary judgment for "all maintenance and cure after August 15, 2000, and for lodging expenses in their entirety."³ Whitman v. Miles, 294 F.Supp.2d 117, 125 (D.Me.2003). The district court also granted summary judgment on Count II. This appeal followed.

II. Discussion

A. Maintenance and Cure

"Maintenance and cure is the traditional form of compensation paid to a seaman who becomes ill or injured aboard a vessel." Richards v. Relentless, Inc., 341 F.3d 35, 40 n. 1 (1st Cir.2003)(citing Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527-528, 58 S.Ct. 651, 82 L.Ed. 993 (1938)). "The duty of paying maintenance and cure falls to the owner of the vessel." Id. "The term refers to the provision of, or payment for, food and lodging (`maintenance') as well as any necessary health-care expenses (`cure') incurred during the period of recovery from an injury or malady." Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 454 (1st Cir.1996)(quoting LeBlanc v. B.G.T. Corp., 992 F.2d 394, 397 (1st Cir.1993)(internal quotation marks omitted)). The right to maintenance and cure applies only to "seamen" who are injured or fall ill while "in service of the ship." LeBlanc, 992 F.2d at 396. The right applies until the seaman is "so far cured as possible." Farrell v. United States, 336 U.S. 511, 518, 69 S.Ct. 707, 93 L.Ed. 850 (1949); Ferrara, 99 F.3d at 454.

When a seaman's "condition has stabilized and further progress ended short of a full recovery, the seaman ... is no longer entitled to maintenance and cure." In re RJF Int'l Corp. for Exoneration from or Limitation of Liab., 354 F.3d 104, 106 (1st Cir.2004). This point in time is known as the seaman's "maximum medical recovery." Id. at 107 (citing Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)). However, treatment that is "more than simply palliative, and would improve [the seaman's] medical condition ... is enough to support an award of maintenance and cure in aid of permanent improvement short of a complete cure." Id.

1. Whether MS Can Be Improved Through Treatment

Whitman first argues that the district court erred in finding that MS is incapable of being improved through treatment. Whitman bases this argument on the fact that she is being treated with Betaseron, a disease-modifying drug that acts at the cellular level to alter the immune system's response to MS. Whitman states that the goals of her treatment include slowing, stabilizing, arresting, or reversing her MS symptoms. Relying on our decision in In re RJF, Whitman argues that this treatment is not palliative and will improve her medical condition.

Whitman's reliance on In re RJF is misplaced. In that case, a seaman suffered severe, permanent brain damage with symptoms including muscle spasticity and contractions. Id. at 106. The seaman's physicians provided evidence that further treatment, including rehabilitation directed in part at the muscle spasms, would lessen the muscle ailments and result in further, although incomplete, cognitive improvement. Id. at 107. Because the evidence showed that further treatment would improve the seaman's underlying condition, we found that the seaman had not reached the point of maximum medical recovery and that the shipowner's duty of maintenance and cure continued. Id.

In the instant case, Whitman concedes that her MS is permanent. The question is whether Whitman's treatment would improve her medical condition such that she had not, as of August 15, 2000, reached the point of maximum medical recovery. The testimony of the doctors for both parties leaves no genuine issue of material fact that Whitman's treatment would, at best, slow or arrest the progression of her MS, but would not reverse her symptoms or improve her condition beyond the point of maximum medical recovery.

Dr. Richard Tenser, Whitman's treating physician, testified in his deposition that Whitman's condition had not improved and had probably worsened.⁴ Dr. Tenser's testimony also indicated that, at best, he hoped treatment with Betaseron would slow or arrest the progression of Whitman's MS to prevent her from becoming disabled:

Q. Would you agree with me that it is more likely than not that Ms. Whitman will at some point in the future become disabled from her MS?

A. Again, a tough question. I mean the whole goal of her treatment is to try to prevent that...[S]he has pretty severe MS. Whether she will become disabled or not, I don't know. Obviously using the Betaseron to try to prevent that, so do I want to acknowledge that the medication will fail, I'm reluctant to do that. I would just say that she certainly has a significant chance of becoming disabled.

Moreover, Whitman mentions several times that one of the goals of her treatment is to reverse her symptoms. However, Dr. Tenser never testified that this was the...