Opinion
CIVIL ACTION, NO. 02-1200, SECTION: "R" (4)
January 14, 2003
ORDER AND REASONS
Before the Court are defendant's motions for summary judgment on plaintiff's negligence and maintenance and cure claims. For the following reasons, the Court DENIES defendant's motion for summary judgment on the issue of causation of plaintiff's injury, but GRANTS defendant's motion for summary judgment on the issue of maintenance and cure.
I. Background
This action arises out an accident that allegedly occurred on or around May 3, 2001 when plaintiff, Carl Cavalier, Jr., allegedly suffered a hernia while working for defendant PO Ports Louisiana, Inc. At that time, plaintiff worked on shoreside cranes and water derricks chartered by PO.
In September of 1999, plaintiff was diagnosed by his treating physician, Dr. David Longcope, with colon cancer. Plaintiff returned to work after successfully undergoing and recovering from surgery. In October of 2000, plaintiff developed a ventral, or incisional, hernia at the location where he had surgery. Plaintiff underwent surgery to repair the hernia and returned to work three months later on January 1, 2001. Following the repair, Dr. Longcope instructed plaintiff to see him every three months.
At his scheduled visit on or about March 28, 2001, plaintiff informed Dr. Longcope that his abdomen was sore. Dr. Longcope "did not appreciate any herniation" while examining plaintiff but states that plaintiff may have had an undetectable hernia. (Longcope Depo., attached to Def.'s Mot. Summ. J., Ex. A at 14, 51-53.) Dr. Longcope thus ordered a CAT scan. On May 4, 2001, plaintiff underwent the CAT scan, which revealed a small hernia.
On or about May 7, 2001, before returning to work at 4:00 p.m., plaintiff met with Dr. Longcope and informed the doctor that he had recently suffered an injury while attempting to shift barge tops and/or covers at work. Dr. Longcope examined plaintiff and discovered a large appreciable hernia. On May 9, 2001, plaintiff reported his injury to PO and asserted that it occurred on May 3, 2001. Plaintiff underwent hernia repair surgery in July 2001.
The issue before the Court is whether plaintiff suffered the large hernia injury while working for PO on or before May 3, 2001, or on May 4, 5, or 6, 2001 when it is undisputed that he was not working for PO. Defendant moves for summary judgment based on Dr. Longcope's deposition testimony. In his deposition, Dr. Longcope stated that he saw plaintiff on May 4, 2001 and found only a small hernia on the CAT scan which did not appear to be bothering plaintiff. ( See Longcope Depo., Def.'s Ex. A at 14-15.) Dr. Longcope testified that, on May 4, he could not feel this small hernia revealed by the CAT scan. ( See id. at 53.) The doctor further testified that, on May 4, plaintiff said he was "feeling fine" and did not mention, to the doctor's recollection, any accident or injury having occurred at work or otherwise. ( See id. at 14-15; 53-54.) Lastly, Dr. Longcope testified that, as of May 4, he did not see any reason to place work restrictions on plaintiff. ( See id. at 16.)
Dr. Longcope next testified that he saw plaintiff again on May 7, 2001, at which time plaintiff complained of bad soreness as a result of lifting something heavy at work. ( See id. at 17-18.) Dr. Longcope detected a bulge at plaintiff's midline incision and determined that plaintiff had an appreciable symptomatic hernia which had not been present during his May 4 examination of plaintiff. ( See id. at 17-19.) The doctor stated that the July 2001 surgery was due to "the recurrence of a hernia which appeared to be caused by the incident between May 4 and May 7 of that year." ( Id. at 38.)
Plaintiff opposes summary judgment based on Dr. Longcope's post-deposition affidavit. In his affidavit, Dr. Longcope states that he made a "material mistake" in reading plaintiff's chart during his deposition. (Longcope Aff., attached to Pl.'s Mot. Opp'n to Mot. Summ. J., Ex. A ¶ a.) Dr. Longcope states that he never saw or examined plaintiff on May 4, 2001 and the last time he examined plaintiff before May 7 was on March 28. ( See id. ¶ c.) He states that his chart notes from May 4 "only reference a phone call concerning CAT scan findings of Mr. Cavalier from a May 4, 2001 CAT scan." ( Id.) The CAT scan findings were positive for a small hernia. ( See id. ¶ h.) Dr. Longcope confirms his deposition testimony that he examined plaintiff on May 7, 2001 and found him to have a recurrent ventral hernia caused by plaintiff's lifting heavy barge tops or covers. ( See id. ¶ c.) Dr. Longcope states that, because he misread his chart notes and testified under the mistaken belief that an office examination of plaintiff had occurred on May 4, he concluded that plaintiff's hernia occurred between May 4 and May 7, 2001. ( See id. ¶ d.) Dr. Longcope states in his affidavit that the hernia actually must have occurred before May 4 when the CAT scan was taken, but after March 28, 2001, when he last saw plaintiff. ( See id. ¶¶ d, j.) The doctor concludes by confirming all the opinions he gave in his deposition regarding causation of plaintiff's injury, disability, restrictions, and surgery, reiterating that the only change in his testimony relates to the date of injury. ( See id. ¶¶ g, i.)
Along with this affidavit testimony, plaintiff submits evidence of Dr. Longcope's billing records, which shows that Dr. Longcope did not see or examine plaintiff on May 4, 2001 but did examine him on May 7, 2001. ( See Pl.'s Ex. C.) Further, plaintiff submits his own affidavit stating that his accident occurred on or before May 3, 2001 and that he did not have an office visit with Dr. Longcope on May 4, 2001. ( See Cavalier Aff., Pl.'s Ex. D ¶¶ a, b.)
Defendant also moves for summary judgment on the issue of maintenance and cure. Dr. Longcope testified in his deposition that plaintiff has reached maximum medical improvement ("MMI") In addition, defendant's physician, Dr. Stephen Harkness, examined plaintiff and stated on August 8, 2002 that plaintiff has reached MMI. Defendant initiated compensation and medical payments to plaintiff on July 10, 2001, after he left work on July 5, 2001, and continued to make payments through July 2002. ( See Def.'s Ex. C.)
The Court rules as follows.
II. DISCUSSION
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. Dr. Longcope's Conflicting Deposition and Affidavit
The Fifth Circuit recently stated, "[U]nder the federal rules, when the sole evidence purporting to create a genuine issue of material fact and thus to preclude summary judgment is an affidavit that conflicts with deposition testimony, we have required an explanation of that conflict." Copeland v. Wasserstein, Perella Co., Inc., 278 F.3d 472, 482 (5th Cir. 2002) (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996)). In Copeland, as in other cases in which summary judgment was granted despite a contradictory affidavit, the party offering the contradictory affidavit did not attempt to explain the contradictions between the witness' affidavit and his prior deposition. See id. at 483; see also S.W.S. Erectors, 72 F.3d at 496. In this case, however, Dr. Longcope explains why his deposition and affidavit are contradictory. His explanation that he misread his chart notes at the deposition and therefore mistakenly thought that he had examined plaintiff on May 4, 2001 is plausible. The Court also notes that Dr. Longcope's billing records and plaintiff's own affidavit corroborate that Dr. Longcope did not see or examine plaintiff on May 4. Although it is true that Dr. Longcope does not explain how a small, non-painful hernia showing on the May 4 CAT scan became a large, painful hernia by May 7, his explanation of the discrepancy in dates, which is corroborated by billing records and plaintiff's affidavit, creates an issue of fact as to the date of the accident. Therefore, the Court finds that Dr. Longcope's affidavit must be considered.
Considering Dr. Longcope's affidavit and deposition, and the plaintiff's affidavit, the Court concludes that there is a genuine issue of material fact as to whether plaintiff's injury occurred on or before May 3, 2001, while he was working for defendant.
B. Maintenance and Cure
Seamen have a right to maintenance and cure for injuries suffered by them in the course of their duties on a vessel. See O'Donnell v. Great Lakes Dredge Dock Co., 318 U.S. 36, 41-42 (1943); Guevara, 59 F.3d at 1499. Seamen injured in the course of their employment are entitled maintenance and cure benefits until they reach MMI. See Breese v. AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987). MMI is the point at which no further improvement in the seaman's medical condition is reasonably expected. See Lauland v. Hugh Eymard Towing Co., Inc., 2000 U.S. Dist. LEXIS 6447, *20 (citing Farrell v. United States, 336 U.S. 511, 518 (1949)). Generally, the obligation to provide maintenance and cure ends when a doctor provides a qualified medical opinion that plaintiff has reached MMI. See Lauland, 2000 U.S. Dist. LEXIS 6447 at *20 (citing Breese, 823 F.2d at 104-05).
Maintenance is a daily stipend for living expenses; cure is the payment of medical expenses. See Guevara v. Maintenance Overseas Corp., 59 F.3d 1496, 1499 (5th Cir. 1995).
In this case, both Dr. Longcope, plaintiff's treating physician, and Dr. Harkness, defendant's evaluating physician, determined that plaintiff has reached MMI. Plaintiff does not dispute this fact. Plaintiff claims that defendant has not proved that defendant "in fact paid plaintiff maintenance and cure payments in connection with the accident that is at issue herein." (Pl.'s Mem. in Opp'n to Mot. Summ. J. at 1-2.) The Court finds this argument meritless, because defendant attached as evidence to its motion for summary judgment a comprehensive record of payments made to plaintiff for medical bills and disability beginning on July 10, 2001 and ending in July 2002. ( See Def.'s Ex. C.) Plaintiff further argues that defendant "has not proved that plaintiff is in fact a seaman pursuant to the Jones Act . . . ." (Pl.'s Mem. in Opp'n to Mot. Summ. J. at 2.) Plaintiff misstates the law, for it is plaintiff's, not defendant's, burden to prove seaman status in order to receive maintenance and cure payments. See Foster, III v. Brian's Trans. Serv. et al., 1993 U.S. Dist. LEXIS 4531, *6 (E.D. La. 1993) (citing MARTIN NORRIS, 2 THE LAW OF SEAMEN § 26.21 at 53 (Supp. 1992)). The Court therefore finds that there is no genuine issue of material fact that defendant has fulfilled its obligation to pay plaintiff maintenance and cure.
III. CONCLUSION
For the foregoing reasons, the Court DENIES defendant's motion for summary judgment on the issue of causation, but GRANTS defendant's motion for summary judgment on the issue of maintenance and cure.