Opinion
Civil Action No. 00-2928
December 10, 2001
Before this Court is defendants, Sea Support Services ("Sea Support") and Zurich American Insurance Company's ("Zurich"), Partial Motion for Summary Judgment (rec. doc. 26). Plaintiff initiated suit to recover damages under the Jones Act for injuries to his hand and neck allegedly sustained in two separate accidents while he was employed by defendant, Sea Support Services and working on its vessel, the M/V MELINDA B. ADAMS. Plaintiff maintains that he injured his: (1) left hand in a crane accident on or about April 1, 2000 when a crane operator mishandled the crane ball and crushed his hand while he was unloading cargo and (2) neck on or about August 16, 2000, when he fell down stairs while going below deck to the engine room. Defendants subsequently brought this Motion for Partial Summary Judgment contending that plaintiff could not establish that neck injuries were inflicted during his employment with Sea Support. Having considered the memoranda and relevant law this Court DENIES defendants' motion for the reasons stated herein.
Background
On February 17, 2000, plaintiff sought treatment for neck pain, left arm pain, and arm numbness at St. Vincent's Hospital in Binningham, Alabama. Dr. R. Rex Harris evaluated plaintiffs' complaints of neck pain radiating down his left upper extremity and recommended injections and a cervical MRI. Plaintiff returned to St. Vincent's two days later and underwent an MRI that revealed a left paramedian disk protrusion at the C6-7 level that compressed the nerve root. Dr. Harris diagnosed plaintiff with a herniated cervical disk and referred plaintiff to a neurosurgeon.
On February 24, 2000, Dr. Thomas C. Wilson, Jr., a Board certified neurosurgeon, evaluated plaintiff. During that visit, Ginther complained of long standing neck pain that worsened along his left side and extended through his arm and into the first three digits of his left hand. Plaintiff explained that he had been experiencing that pain since August of 1999. Dr. Wilson diagnosed plaintiff with persistent cervical radiculopathy secondary to disk herniation at the C6-7 level, and recommended neck surgery. Although a date was selected for operation, Ginther canceled his surgery on February 28, 2000.
Ginther began working for Sea Support on March 24, 2000. On or about August 16, 2000, plaintiff alleges that he injured his neck in a fail aboard Sea Support's vessel. On September 21, 2000, Ginther underwent an MRI and on September 25, 2001, neurosurgeon Dr. Bradley J. Bartholomew, examined plaintiffs' injuries. The physical examination revealed Ginther was significantly weak in his left triceps, wrist extension, and hand intrinsics. Dr. Bartholomew diagnosed plaintiff with an enlarged C6-7 disc herniation with spinal cord compression and recommended an anterior cervical diskectomy and fusion. The surgery was performed on September 29, 2000.
Partial Motion for Summary Judgment
Defendants contend that the uncontroverted facts show plaintiff's cervical injury existed before his employment with Sea Support began. Therefore, they allege that plaintiff is unable to prove that defendants had any role in causing his injuries. Specifically, defendants argue that the: (1) testimony of Dr. Wilson reveals that, contrary to plaintiff's deposition testimony, his statement to his employer, and his interrogatory responses, he suffered from serious neck pain and discomfort in his left arm and hand in February 2000 and (2) testimony of Dr. Bartholemew, that there could be a causal connection between plaintiffs' injuries and his fall while employed by defendant, should be disregarded because his medical opinion was based on incorrect and false information.
See Defs.' Mem., Deposition of Dr. Thomas Wilson, pp. 12-22, attached thereto as Exh. B.
See Defs.' Mem., Deposition of Daniel Ginther, pp. 44-45; 55; 58; 121-22 and 179, attached thereto as Exh. C.
See Defs.' Mem., Transcript of Recorded Statement taken September 27, 2000, p. 47, attached thereto as Exh. D.
See Defs.' Mem., Plaintiffs' Responses to Interrogatories at No. 17, attached there as Exh. E, and Plaintiffs' Supplemental Answers to Interrogatories, attached there to as Exh. G.
In support of their second argument, defendants rely on Federal Rule of Evidence Rule 702 which requires expert witnesses' testimony to be based on "sufficient fact or data." Fed.R.Evid. 702. Defendants also point to: (1) Guillory v. Domtar Industries, Inc., 95 F.3d 1320 (5th Cir. 1996) in which the court limited an expert's testimony because based on "altered facts and speculation." 95 F.3d at 1330, 1331 and (2) Christophersen v. Allied Signal Corporation, 939 F.2d 1106 (5th Cir. 1991) a toxic tort case where the Court affirmed the trial court's exclusion of medical expert testimony when the facts and data that the doctor relied on were "critically incomplete or grossly inaccurate." 939 F.2d at 1114.
In this case, Dr. Bartholomew testified that his medical opinion attributing plaintiffs' injuries to the alleged August 16, 2000 accident was premised on two factors: (1) plaintiffs' statements that he had not suffered neck pain before the alleged accident and (2) the September 21, 2000 MRI that revealed spinal cord compression presumably causing plaintiffs' left arm weakness. Initially, Dr. Bartholomew testified that he believed the arm weakness was not present before the alleged accident, but admitted on cross-examination that three sets of medical reports from treatments plaintiff received before August 16, 2000, the date of the alleged accident, showed signs of left arm weakness. Thus, under Federal Rule of Evidence 702, defendants believe that Dr. Bartholemew's testimony should be excluded because it was not based on correct information.
See Defs.' Reply Brief at 3-4.
See id. at 4-6.
Without the testimony of Dr. Bartholomew, defendants argue, the evidence is clear that plaintiffs' neck was injured prior to his coming to work for Sea Support and conclude that plaintiff is unable to meet his burden of proof to show that his neck was injured while in the service of Sea Support's vessel.
However, plaintiff contends that the evidence and testimony reveal that there are several issues of material fact regarding whether his neck injuries were caused or exacerbated by his alleged August 2000 accident. Specifically, plaintiff points to the testimony of the following witnesses to establish issues of material fact: (1) Dr. Wilson testified that in February 2000, plaintiffs' nerve root, not his spinal cord, was compressed, he could not render an opinion as to whether the alleged accident caused further injury, and conceded that if the September 2000 MRI showed severe cord compression it would indicate a worsening of plaintiffs' condition from February 2000, (2) Dr. Bartholomew reviewed plaintiffs' previous medical records and noted a significant difference between the February 2000 MRI and September 2000 MRI, explained that with the severe cord compression revealed on the September 2000 MRI, a man would not be able to perform offshore engineering work that plaintiff did from March 2000 through the time of the alleged incident, and commented that the herniation and/or progression of injury as seen in the September 2000 MRI would have required a second injury or trauma, and (3) Mr. Perez, a co-employee on the vessel when plaintiff was allegedly injured, testified that although he did not see him fall, he did see Ginther limp forward from the rear of the vessel, and gathered from his condition that he had fallen and noted that before August 16, 2000, he had not noticed Ginther with any neck discomfort.
See Pl.'s Mem., Deposition of Dr. Thomas Wilson, p. 26, ln. 3-7, attached thereto as Exh. A.
See id., Deposition of Dr. Thomas Wilson, p. 27, ln. 12-14 and p. 28-29, attached thereto as Exh. A.
See id., Deposition of Dr. Bradley J. Bartholomew, p. 22, ln. 16-20, attached thereto as Exh. B.
See id., Deposition of Julio Perez, p. 39, ln. 10-16, attached thereto as Exh. C.
Plaintiff also contests defendants' attempt to exclude Dr. Bartholomew's medical opinion as to causation arguing that he reviewed and took into account all of plaintiffs' medical records, including the two MRIs which revealed the change in the disk herniation, from the compression of a nerve root to the compression of the spinal cord. Thus, because the medical records and the September 2000 MRI film showing spinal cord compression are not false and they support the proposition that the injury worsened after the alleged accident, a genuine issue of material fact clearly exists, and the Motion for Partial Summary Judgment should be denied.
Analysis
Motion for Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "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). "An issue is material if its resolution could affect the outcome of the action." Daniels v. City of Arlington, Texas, 246 F.3d 500, 502 (5th Cir. 2001).
The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, 76 F.3d 651, 656 (5th Cir. 1996) (citation omitted). When the moving party has carried its burden under Rule 56(c), its opponent must do more that show there is some possible doubt as to the material facts. Rather, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986); Beck v. Texas State Board of Dental Examiners, 204 F.3d 629, 633 (5th Cir. 2000).
In reviewing the motion, the Court considers the record as a whole, disregarding evidence that the jury is "not required to believe." Thomas v. Great Atlantic and Pacific Tea Company, Inc., 233 F.3d 326, 329 (5th Cir. 2000). Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita at 588. Finally, the Court notes that substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In a Jones Act case, a seaman has the burden of proving by medical testimony that his injuries were due to the defendant's negligence. See Mayhew v. Bell S.S. Co., 917 F.2d 961, 963 (6th Cir. 1990). In Mayhew, the court stated that the plaintiff need not present evidence that the defendant's negligence was the proximate cause, but that a "medical expert must be able to articulate that there is more than a mere possibility that a causal relationship exists between the defendant's negligence and the injury for which the plaintiff seeks damages." Id.; Crane v. Diamond Offshore Drilling, Inc., 99-166 (La.App. 5th Cir. 9/15/99), 743 So.2d 780, 793 (Jones Act seaman must introduce medical evidence that shows "there is a reasonable possibility of causal connection between the accident and the disabling condition.").
In this case, the Court must determine whether plaintiff has created an issue of material fact sufficient to defeat defendant's Motion for Partial Summary Judgment as to his neck injury. After reviewing the memoranda and facts presented, this Court finds that plaintiff has established that there are issues of material fact related to plaintiffs' neck injuries that a jury must resolve.
First, the testimony of Dr. Bartholomew can not be completely discredited. While it is true that plaintiff seemed to have a pre-existing condition that affected his neck and Dr. Bartholemew did not have complete information when he rendered his first diagnosis, his opinion further revealed that even with a pre-existing condition, the alleged accident worsened plaintiffs' condition. After reviewing all of plaintiffs' prior medical reports and comparing plaintiffs' two MRIs, he concluded that the alleged accident (1) worsened Ginther's condition from a compression of the nerve root to a compression of the spinal cord, (2) caused the weakness in his extremities, and (3) necessitated surgery. In forming this opinion, Dr. Bartholomew relied on the data and the information that neurosurgeons rely on when they state their medical opinion, namely the medical history in the medical records and the MRI films and reports. Furthermore, the fact that Ginther worked continuously for Sea Support after he was diagnosed by Drs. Harris and Wilson with a compressed nerve root in February 2000 until the time of his alleged accident and then was only able to work for eight more days is consistent with the testimony that someone with a cord compression would not be able to perform offshore engineering work.
Thus, there is an issue of material fact as to whether plaintiffs' present neck injuries were caused during his employment with defendant. A jury must resolve that issue.
Accordingly,
IT IS ORDERED that defendants' Motion for Partial Summary Judgment is DENIED.