Opinion
CIVIL ACTION NUMBER: 03-0363 SECTION: "R"
December 19, 2003
ORDER AND REASONS
The Court held a trial on plaintiff's claim, severed from his other claims, for maintenance and cure against defendant Delta Towing, L.L.C. Plaintiff also seeks compensatory damages and attorney's fees. After hearing live testimony and reviewing all the evidence, the Court rules as follows.
I. FINDINGS OF FACT
Plaintiff Joseph Lodrigue alleges that he incurred back and knee injuries in an accident on the M/V MISS EUNICE, a crew boat owned and operated by defendant. The accident occurred on October 6, 2002. Delta Towing terminated Lodrigue's employment on December 17, 2002, and Lodrigue filed this suit against Delta Towing on February 5, 2003. In the lawsuit, Lodrigue alleges Jones Act negligence and unseaworthiness of the MISS EUNICE and claims damages for pain and suffering, lost wages, loss of life's enjoyment, and medical expenses. Plaintiff also seeks maintenance and cure and compensatory damages and attorney's fees because Delta Towing arbitrarily, wantonly, and capriciously refused to pay him maintenance and cure. Plaintiff moved for an expedited trial of his maintenance and cure claims. Plaintiff contended that he may have to delay the surgery recommended by his physician until his maintenance and cure claim is resolved. The Court granted plaintiff's motion and held a nonjury trial of the maintenance and cure issues on December 4, 2003. After reviewing the testimony and other evidence presented at trial, the Court makes the following findings of fact.
At the time of the accident, Delta Towing employed plaintiff Joseph Lodrigue as the captain of the MISS EUNICE. Lodrigue had worked for Delta Towing or its predecessor, RB Falcon Inland, since 2000. When Lodrigue applied to RB Falcon, he underwent two pre-employment physical examinations by Dr. Kirk Dantin. As a part of both exams, Lodrigue denied that he had suffered any previous knee injury, but he had in fact injured his left knee in 1996 when he slipped and fell on his father's front porch. Dr. Lee Leonard, an orthopedic surgeon, treated the 1996 knee injury on several occasions over a one — month period. Dr. Leonard concluded that Lodrigue "probably subluxed his left patella," and released him to return to work.
See Def.'s Findings of Fact, at ¶ 2.
See Def.'s Ex. 2, Lodrigue's RB Falcon Personnel Records.
See id.; Def.'s Ex. 9, Lodrigue's Medical Records from Dr. Leonard.
Lodrigue's Testimony.
See Def.'s Ex. 9, Lodrigue's Medical Records from Dr. Leonard.
Id.
Dr. Dantin testified that if he had known about Lodrigue's previous knee injury from 1996, he would have performed a more focused exam on Lodrigue's knee. Dr. Dantin indicated that if he had found anything of concern upon further physical examination of Lodrigue's knee, he might have ultimately concluded that Lodrigue was not fit for the position at RB Falcon for which he had applied. Although Lodrigue's previous knee injury did not come to light in the two pre-employment physicals, the exams did reveal that Lodrigue suffered from a back condition described as spondylolysis without spondylolisthesis and that he had some small Shmorl nodes in his back. Dr. Dantin initially approved Lodrigue for employment with a caution against heavy lifting but then approved him for unrestricted employment after the second physical on October 2, 2000.
See id., at pp. 27-28.
Id. at p. 28.
See Def.'s Ex. 19, Dr. Dantin's Depo., at pp. 9-10. Dr. Dantin testified that he observed these abnormalities on the plaintiff's back x — ray.
See id., at pp. 9-10; see also id., Ex. A, Mar. 16, 2000, Physical Exam.
See id., at p. 15; see also id., Ex. B, Oct. 2, 2000, Physical Exam.
When Delta Towing acquired RB Falcon's assets in 2001, it required RB Falcon's employees to reapply for work, but it did not require new physical exams, unless the employee was out with an illness or injury at the time of the purchase. When he reapplied, Lodrigue was not asked about, nor did he reveal to Delta Towing, his earlier knee injury.
Testimony of Lisa Hamby, Delta Towing's Corporate Representative.
Testimony of Joseph Lodrigue.
The accident at issue occurred on October 6, 2002. At the time, the MISS EUNICE was on standby in Houma, Louisiana. Lodrigue fell aboard the MISS EUNICE when he lowered himself through a hatch opening into the engine room. Lodrigue slipped and twisted his knee as he fell. Lodrigue completed a Delta Towing Personal Injury/Illness form in connection with his accident. On the form, Lodrigue described how the injury occurred: "Sliped [sic] going into engine room causing left knee to twist.' Two other Delta Towing employees, Joseph Verret and Scotty Bruce, witnessed Lodrigue's fall. Verret completed a Delta Towing Witness Statement and stated that "Joseph Lodrigue was going down to engine room, and his foot slipped off motor and he fell twisting his knee. Scottie [sic] Bruce and I reported incident to Troy and Lance who told us to bring him to company doctor. "
Lodrigue's Testimony, see also Delta Towing's Summary of Material Facts, Pre — Trial Order, at p. 4.
Lodrigue's Testimony.
Id.
See Pla.'s Ex. 2, Delta Towing's Personal Injury / Illness Form.
Id.
Lodrigue's Testimony.
Pla.'s Ex. 4, Delta Towing's Witness Statement.
After the accident, Delta Towing took Lodrigue to Occupational Medicine Services (OMS), where Lodrigue saw a registered nurse, F. L. Waguespack, APRN. The nurse reported the history of Lodrigue's present complaint as: "He slipped in some diesel while walking and twisted his left knee externally. He heard a pop and is here to have it checked." Lodrigue reported no earlier injury to his knee and made no complaints of back pain. Waguespack indicated that Lodrigue had "slight swelling on the medial aspect of the meniscus area," but "[n]o swelling anywhere else, no effusion seen." The nurse placed Lodrigue in a Neoprene brace, gave him crutches, told him not to put weight on his knee, and suggested Tylenol or Ibuprofen for pain. Lodrigue was scheduled to see Dr. John Sweeney, an orthopedic surgeon, for an orthopedic evaluation the next day.
See Pla.'s Ex. 5, Lodrigue's OMS Medical Records.
Id.
Id.
Id.
Id.
Id.
The next day, on October 7, 2002, Lodrigue saw Dr. Sweeney. Dr. Sweeney indicated that "Lodrigue slipped while working on an oily engine in a crew boat that he is captain of. He thinks he either struck the knee or twisted it." Dr. Sweeney also states that Lodrigue "had quite a bit of discomfort in the knee initially, but it is much better now. He says he able to get around reasonably well, the knee is not giving away or locking but he has some discomfort around the medial side of the knee." Dr. Sweeney examined Lodrigue and noted "some diffuse tenderness around the medial side of the knee but the ligaments are intact." He also found no effusion and no McMurray's sign (an indication of no medial or lateral cartilage tear).
Testimony of Dr. John Sweeney by Deposition, Def.'s Ex. 22. Findings regarding Dr. Sweeney and his evaluation and treatment of Lodrigue are based on Dr. Sweeney's Testimony, Def.'s Ex. 22, Lodrigue's OMS Medical Records, Pla.'s Ex. 5, and Dr. Sweeney's Report Regarding his Independent Medical Examination, Def.'s Ex. 26.
Dr. Sweeney saw Lodrigue again on October 10, 2002. He reported that Lodrigue was "about 20-30% better overall. His knee is no longer tender or swollen." Dr. Sweeney stated that Lodrigue was doing more with his knee, and Lodrigue thought that it would be back to normal in a few more days. After Lodrigue saw Dr. Sweeney again on October 23, 2002, Dr. Sweeney reported that Lodrigue was "about 50-60% better overall," and Lodrigue's knee was "really benign now in its appearance." Dr. Sweeney indicated that he hoped to get Lodrigue back to regular duty work after he saw him again on October 28, 2002.
When Lodrigue saw Dr. Sweeney again on October 28, 2002, his knee was "only a little bit better over last visit." Dr. Sweeney stated that Lodrigue did not think he could safely do his job, but that he was willing to try. Dr. Sweeney also indicated that Lodrigue was experiencing "quite a bit of discomfort, particularly along the medial side of his knee around the femoral attachment of the medial collateral ligament." Dr. Sweeney ordered an MRI of Lodrigue's knee and saw Lodrigue again on October 31, 2002. Dr. Sweeney reported that Lodrigue's "MRI scan shows a bruise of the lateral condyle and some changes in the medial meniscus, not clearly a tear, most likely degenerative." Dr. Sweeney also indicated that Lodrigue "feels he can go back to work. He desires to go back to work." Lodrigue testified that he pushed Dr. Sweeney to clear him for full work duty because he needed to earn money. Dr. Sweeney also noted that Lodrigue mentioned that his back had been hurting. Dr. Sweeney stated that "[h]e said he's had the pain all along, he just didn't bother to mention it. He thinks he mentioned it to me on one occasion, although looking back through the notes, I don't see where I recorded it. He says his back is more painful than his knee now." Upon examination, Lodrigue showed tenderness on the right side of his lower back, but had a full range of motion. A neurological exam of his lower extremities produced normal results. Dr. Sweeney indicated that he asked Lodrigue if he wanted to continue on a "no work" status, but Lodrigue declined because he was anxious to get back to work. Dr. Sweeney noted that he "didn't find anything [in the] exam that would keep him from working or place him at an increased risk for working.". Dr. Sweeney allowed Lodrigue to go back to work but told Lodrigue that he wanted to see him again "if his symptoms in his back or his knee change or worsen." Delta Towing paid for Lodrigue's medical treatment at OMS.
Lodrigue's Testimony.
See Def.'s Ex. 5, Copies of Payments to OMS.
Lodrigue returned to work and worked from November 1, 2002 until his hitch ended November 26, 2002. He performed his job functions without complaints of back or knee pain and did not seek medical treatment during this interval. Although he did not report it to Delta Towing, Lodrigue's knee and back continued to bother him. Lodrigue was scheduled to return to work in mid — December 2002. Before returning to work, Lodrigue told Delta Towing that he would be unable to work because his father-in-law suffered a heart attack and was in critical condition. When pressed for details, Lodrigue admitted that he had lied, and that his father-in-law did not have a heart attack. Lodrigue eventually admitted to Delta Towing that the real reason he did not report to work that day was because he was experiencing marital difficulties. Delta Towing's Crew Boat Manager Gary Breaux terminated Lodrigue later that day.
Lodrigue's Testimony.
Id.
Id.
Id.
Id.
Id.
Id.
Id.; Def.'s Ex. 3, Lodrigue's Delta Towing Personnel Records.
After Delta Towing fired Lodrigue, he applied for unemployment from the State of Louisiana at the end of December 2002. He told Delta Towing that he would apply for unemployment until he could find another job. The unemployment benefits application asked, "[i]s there any reason you could not accept work right now, such as illness, disability, family responsibility, or lack of transportation, etc.?" and Lodrigue checked "No." Lodrigue contacted other companies to find a new job, but he was unsuccessful.
See Def.'s Ex. 13, State of Louisiana Benefits Application.
Lodrigue's Testimony.
Def.'s Ex. 13, State of Louisiana Benefits Application.
Lodrigue's Testimony; see also Def.'s Ex. 12-G, Record of Work Search Contacts.
On February 5, 2003, Lodrigue sued Delta Towing for Jones Act negligence and unseaworthiness and alleged claims for maintenance and cure. Lodrigue did not seek any further medical treatment after his visit to Dr. Sweeney on October 31, 2002, until April 2, 2003, when he saw Dr. John Cobb, an orthopedic surgeon, on the recommendation of his attorney. Lodrigue complained of headaches and blurred vision. He reported that he had pain in the lower right side of his back and sometimes had pain in the left side too. Lodrigue told Dr. Cobb that the pain goes into his right thigh when he drives. His deep tendon reflex on his right Achilles tendon was absent, and he was symptomatic on right leg raise. Dr. Cobb noted that Lodrigue had a full range of motion but he complained of pain with flexion. Lodrigue reported that the back pain began a week to a week and a half after the accident. Dr. Cobb confirmed through an x-ray exam that Lodrigue suffers from spondylolysis at the L5 vertebra without spondylolythesis and pars defect on L5. In addition, Lodrigue complained of "aching, numbness, popping, swelling and sometimes weakness in the left knee," which was swollen upon examination. Dr. Cobb found mild effusion of the left knee and pain over the medial side of the knee. He noted that Lodrigue was in pain when he put weight on the knee. He also complained that his right shoulder had been aching and "locking up" during the last two months. After Dr. Cobb examined Lodrigue and reviewed the report of the October 2002 MRI of Lodrigue's left knee, he recommended an MRI of Lodrigue's lumbar spine and arthroscopic surgery on Lodrigue's left knee with a possible medial meniscectomy.
Lodrigue's Testimony.
See Pla.'s Ex. 6, Lodrigue's Medical Records from Dr. Cobb. Findings regarding Dr. Cobb and his evaluation and treatment of Lodrigue are based on Dr. Cobb's Testimony, Def.'s Exs. 20-21, and Lodrigue's Medical Records from Dr. Cobb, Pla.'s Ex. 6.
Lodrigue had the MRI scan on May 7, 2003, and he saw Dr. Cobb again on May 21, 2003. Dr. Cobb concluded that Lodrigue has some instability at the L5-S1 level and suffers from some S1 radiculitis on the right. He determined that Lodrigue had "a dessicated disc at S1 with a diffuse bulge" but that it did not "clearly involve the nerve canal." Dr. Cobb found no nerve root impingement. Dr. Cobb's found that the MRI scan of Lodrigue's lumbar spine showed degenerative changes at every disc level. He concluded that Lodrigue's accident did not cause the degeneration but rendered Lodrigue's back symptomatic. He admitted that the pars defect in Lodrigue's back could contribute to his symptoms. Dr. Cobb continued to recommend arthroscopy for the knee and also recommended a transforaminal selective nerve block covering two nerves on the right to reduce Lodrigue's back and leg pain. At this visit, Lodrigue misinformed Dr. Cobb that the reason he stopped working was because of increased pain in his back and continued pain in his knee. Dr. Cobb saw Lodrigue for another follow up visit on September 17, 2003. He concluded that Lodrigue had some degree of radiculitis associated with spondylolithesis and some degenerative disc disease. At this visit, Dr. Cobb found that Lodrigue's Achilles reflex, once absent, was now depressed.
Dr. Cobb concluded that based on his medical history, Lodrigue's symptoms are, within reasonable medical probability, related to his fall aboard the MISS EUNICE in October 2002. Dr. Cobb explained that the first symptoms from a back injury could surface anywhere from a week to six months after an accident. In his opinion, Lodrigue has not reached maximum medical improvement. Dr. Cobb continues to recommend a transforaminal selective nerve block to help relieve Lodrigue's back and leg symptoms and a arthroscopic evaluation of Lodrigue's left knee with a possible medial meniscectomy.
On May 29, 2003, Lodrigue notified Delta Towing that Dr. Cobb had recommended arthroscopic surgery and a nerve block and requested that Delta Towing prepay the cost of the prescribed surgery. In discovery responses served on June 11, 2003, Lodrigue revealed to Delta Towing for the first time that he had an earlier injury to his knee. Delta Towing requested an independent medical evaluation (IME). As of June 23, 2003, Delta Towing still had not arranged the IME, and plaintiff indicated that he would not submit to an IME by a doctor other than Dr. Sweeney, the original orthopedic surgeon to whom Delta Towing chose to send plaintiff. Delta Towing moved to compel plaintiff to submit to an IME, but Magistrate Judge Wilkinson denied defendant's motion in a Minute Entry dated September 3, 2003. The magistrate judge held that an IME by a second physician other than Dr. Sweeney for litigation purposes only would be cumulative or duplicative. On September 30, 2003, Judge Wilkinson granted Delta Towing's motion to compel Lodrigue to undergo an IME by Dr. Sweeney.
See Def.'s Ex. 24, Correspondence between the Parties.
See Def.'s Ex. 12-H, Delta Towing's Interrogatories and Plaintiff's Answers (Jun. 11, 2003).
See Def.'s Ex. 24, Correspondence between the Parties.
Id.
Rec. Doc. 26.
Id.
Rec. Doc. 36.
On October 16, 2003, Dr. Sweeney examined Lodrigue and rendered a written report. He also testified by deposition at trial. Dr. Sweeney concluded that "within a reasonable degree of medical probability, . . . there is no back injury or problem related to [Lodrigue's] 10/06/02 accident." He testified that Lodrigue's accident was a "low — energy" accident and had a low probability of causing a back injury. Further, Dr. Sweeney noted that Lodrigue's case presented some inconsistencies regarding his back, because Lodrigue said that he hurt his back in the accident but did not have pain until four or five days after the accident. Dr. Sweeney also noted that Lodrigue's recollection of when he mentioned his back pain to him differs from Dr. Sweeney's records. With respect to plaintiff's knee, Dr. Sweeney concluded that he was at maximum medical improvement as of October 31, 2002 and testified that he disagreed with Dr. Cobb's recommendation for knee surgery. He describes Lodrigue's knee condition as one of degenerative meniscal changes, not "meniscal tears that are traumatic or need treatment."
Based on the above findings of fact, the Court now considers plaintiff's claims for both maintenance and cure and for compensatory damages and attorney's fees based on Delta Towing's allegedly arbitrary, wanton, and capricious refusal to pay maintenance and cure to plaintiff.
II. DISCUSSION
A. Maintenance and Cure i. Applicable Law
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. Before plaintiff can recover maintenance and cure, he bears the burden of alleging and proving the following facts: (a) his engagement as a seaman, (b) that his illness or injury occurred, was aggravated or manifested itself while in the ship's service, (c) the wages to which he may be entitled, and (d) the expenditures or liability incurred by him for medicines, nursing care, board and lodging. See Foster, III v. Brian's Trans. Serv. et al., 1993 WL 114528, *2 (E.D. La. 1993) (citing MARTIN NORRIS, 2 THE LAW OF SEAMEN § 26.21 at 53 (Supp. 1992)). A plaintiff need not present any proof of negligence or fault on the part of the employer to establish his entitlement to maintenance and cure. See id.
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).
Seamen injured in the course of their employment are entitled maintenance and cure benefits until they reach the point of maximum medical improvement ("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, 2000 WL 533880, *7 (citing Farrell v. United States, 336 U.S. 511, 518 (1949)). In other words, MMI is the point beyond which it is not reasonably possible that medical treatment will "reduce [the amount of the seaman's] disability," be "curative," "better the seaman's condition," or "improve [his] health." Vella v. Ford Motor Co., 421 U.S. 1 (1974); Gaspard v. Taylor Diving Salvage Co., 649 F.2d 372, 374 n. 3 (5th Cir. 1981); Pelotto v. LN Towing Co., 604 F.2d 396, 400 (5th Cir. 1970). If "future treatment will merely relieve pain and suffering," then MMI has been reached. Pelotto, 604 F.2d at 400.
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 (citing Breese, 823 F.2d at 104-05). Conflicting diagnoses and prognoses of various physicians present a question to be determined by the trier of fact as to the entitlement to maintenance and cure benefits and as to whether an employer's termination of maintenance and cure benefits was arbitrary or capricious. See Tullos v. Resource Drilling, Inc., 750 F.2d 380 (5th Cir. 1985). As the United States Supreme Court held long ago in Vaughan v. Atkinson, "When there are ambiguities or doubts [as to a seaman's right to receive maintenance and cure], they are resolved in favor of the seaman." Vaughan v. Atkinson, 369 U.S. 527, 532 (1962) (citing Warren v. United States, 340 U.S. 523 (1951)).
The Vaughan rule must be applied when there is conflicting credible medical testimony as to whether the seaman has reached MMI. In Johnson v. Marlin Drilling Company, 893 F.2d 77 (5th Cir. 1990), the Fifth Circuit stated:
While it is obviously within a district court's domain to judge the credibility of the evidence presented to it, in cases of maintenance and cure, important considerations must be taken into account. Significantly, it is crucial to ensure that the rule stated in Vaughan, regarding the existence of ambiguities and doubts, is applied correctly. . . .[U]nder the Vaughan rule, the possibility of physical improvement, expressed by [the seaman's second doctor], would require a finding in favor of Johnson.
Johnson, 893 F.2d at 80. In Malta v. United States, 2001 U.S. Dist. LEXIS 4769 (E.D.La. 2001), the court considered conflicting testimony of two credible doctors regarding two MRIs of plaintiff's knee and whether he had reached MMI. After performing an MRI, which the doctor believed revealed no meniscal tears, performing arthroscopic surgery, prescribing pain medication, and recommending physical therapy, the first doctor eventually concluded that there was nothing more he could offer plaintiff and released him to light to medium duty work. See id. at *3-4. The second doctor believed that there was a possibility of a tear which the first doctor had missed or which had recently developed. See id. at *5-6. The second doctor recommended another arthroscopic surgery. See id. Considering these facts, the Court applied the Vaughan rule to hold in favor of the seaman:
The Court found both doctors to be highly credible witnesses, and believes that there is simply a difference of opinion regarding whether Plaintiff has reached maximum medical cure, and the possible benefits that could result from a second arthroscopy. . . . In a situation such as the one facing the Court, where there is equally strong evidence presented by both parties as to whether Plaintiff has achieved maximum medical cure, the Supreme Court has clearly instructed the lower courts to resolve those ambiguities in favor of the seaman.
Id. at *8. See also In re Sirret Offshore Towing Company, 1997 U.S. Dist. LEXIS 13408, *15, *16-17 (E.D.La. 1997) ("[T]here is conflicting testimony between two board certified orthopedic surgeons as to exactly when [plaintiff] reached maximum medical cure. . . . [A]ny doubt . . . must be resolved in favor of [plaintiff]."); Williams v. American River Trans. Co., 1996 U.S. Dist. LEXIS 14140, *10-11 (E.D.La. 1996) (holding that continuing maintenance and cure is owed when doctors dispute MMI, starting from the date the shipowner discontinued maintenance and cure based on a finding by one doctor of MMI).
This case is similar to the case before this Court in Gorum v. Ensco Offshore Co., 2002 WL 31528460 (E.D.La.). In Gorum, the plaintiff suffered a knee injury that provoked disagreement among qualified physicians as to the presence of a meniscal tear, his need for surgery, and his capacity for improvement. The Court found, inter alia, that the plaintiff had "advanced credible testimony as to his condition and potential for medical improvement," and although defendant presented contrary evidence from qualified physicians, their testimony merely raised doubts as to plaintiff's entitlement to maintenance and cure, which Vaughan required the Court to resolve in favor of the seaman. Id., at p. *7. The Fifth Circuit recently affirmed the Court's conclusion in Gorum. 2003 WL 22661469 (5th Cir. 2003).
ii. Analysis
The parties in this case do not dispute whether Lodrigue was a seaman employed by Delta Towing. Parties also do not dispute that Lodrigue fell on October 6, 2002, while working aboard the MISS EUNICE as its captain. Delta Towing disputes, however, whether it is liable to plaintiff for maintenance and cure. Delta. Towing asserts that Lodrigue reached maximum medical improvement for his knee injury as of October 31, 2002, and it asserts that Lodrigue's accident aboard the MISS EUNICE did not cause his back injury. Delta Towing also argues in the alternative that it is not liable to plaintiff for maintenance and cure related to his knee injury because Lodrigue failed to disclose a previous knee injury in his pre — employment physical exams. The Court addresses each of these arguments in turn.
a. Maximum Medical Improvement
Dr. Cobb concluded that Lodrigue has not yet reached MMI. He recommends arthroscopic surgery for plaintiff's knee, and a nerve block to relieve the plaintiff's symptoms in his leg and back. Delta Towing, on the other hand, relies on the opinion of Dr. Sweeney, who contends that Lodrigue's knee symptoms are due to degenerative meniscal changes that do not need treatment and that his back condition was not caused by the accident.
The Court finds that plaintiff has advanced credible medical testimony as to his back and knee conditions and potential for medical improvement. Dr. Cobb is an orthopedic surgeon who has practiced in Louisiana for 28 years. He is a member of the local, state, and national medical associations, as well as the American Academy of Orthopedic Surgery and the American College of Spine Surgery. His opinion is based on objective test results, his examination of plainiff, and plaintiff's history. Defendant, on the other hand, presents conflicting credible medical testimony regarding Lodrigue's knee injury and its potential for improvement. Dr. Sweeney does not dispute that Lodrigue's knee is injured. He concludes, though, that the MRI of Lodrigue's knee does not contain indications of a complete tear in the meniscus and that the signal changes in the MRI are more consistent with degenerative meniscal changes than with changes that are traumatic or in need of treatment. Because he concludes that the signal changes are degenerative, Dr. Sweeney does not believe that the surgical procedure recommended by Dr. Cobb is warranted. The cases reveal that the diagnosis of meniscal injuries is often difficult and that qualified physicians can reasonably disagree about the proper diagnosis. See Malta, 2001 U.S. Dist. LEXIS 4769; Gorum, 2002 WL 31528460. This case is no different. Just as the Court found in Gorum, "the Court finds that [Dr. Sweeney's] testimony simply raises doubts as to plaintiff's entitlement to maintenance and cure, which Vaughan requires the Court to resolve in favor of the seaman." Gorum, 2002 WL 31528460, at *7 (citing Johnson, 893 F.2d at 80; Malta, 2001 U.S. Dist. LEXIS 4769 at *8; In re Sirret, 1997 U.S. Dist. LEXIS 13408, *15, *16-17; Williams, 1996 U.S. Dist. LEXIS 14140, *10-11). Accordingly, the Court concludes that Lodrigue is entitled to maintenance and cure with respect to his knee injury.
b. Plaintiff's Back Injury
As noted above, Dr. Cobb concluded that Lodrigue's back symptoms are, within reasonable medical probability, related to his fall aboard the MISS EUNICE in October 2002. He notes that Lodrigue's back conditions are degenerative but concludes that the degeneration became symptomatic as a result of the accident. Dr. Cobb admits that he bases his conclusion on Lodrigue's medical history as given to him by Lodrigue. The Court questions Lodrigue's credibility in this regard, especially in light of Lodrigue's failure to disclose his previous knee injury to Drs. Dantin, Sweeney, and Cobb. Further, the Court notes that although Lodrigue contends that his back became symptomatic within a week to a week and a half after his accident, the first documented complaint of back pain is not until October 31, 2002. On the other hand, Lodrigue's back is clearly symptomatic, as his depressed deep tendon reflex on his right side demonstrates. It is true, as defendant well knew, that plaintiff suffered from back abnormalities, i.e. spondylolysis with a pars defect, before he fell. Nevertheless, there is no evidence that Lodrigue's back was ever symptomatic before, and he had worked without complaint for defendant and its predecessor for several years under physically demanding conditions. Nor does the record contain evidence that Lodrigue suffered from any other trauma besides his fall aboard the MISS EUNICE. Dr. Cobb explained that a back injury can cause the onset of back pain a considerable time after the trauma and concluded that, based on the timing of Lodrigue's complaints of back pain and in light of this absence of another intervening cause of Lodrigue's back pain, Lodrigue's symptoms are related to his fall. Dr. Cobb's conclusion that a fall from two to three feet rendered a previously asymptomatic back condition symptomatic is not farfetched or lacking in credibility.
Defendant again presents conflicting, credible medical testimony regarding Lodrigue's back injury. Dr. Sweeney did not dispute that Lodrigue suffers from a back condition, but he concluded that his condition is not related to his accident aboard the MISS EUNICE. He relied on inconsistencies in statements made by plaintiff, his late reports of back pain, his ability to work for several weeks after his accident, and the degenerative nature of his condition. Again applying Vaughan and resolving doubts in favor of Lodrigue, the Court finds that Lodrigue is entitled to maintenance and cure with respect to his back injury.
c. Plaintiff's Previous Knee Injury
Maintenance and cure may be awarded "even where the seaman has suffered from an illness pre — existing his employment." McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968). Nevertheless, "there is a general principle that it will be denied where he knowingly or fraudulently conceals his illness from the shipowner." Id.; Bodden v. Professional Divers of New Orleans, Inc., 2001 WL 1223589, at *2 (E.D.La.); see also factor v. Spartan Transportation Corp. 27 F.3d 347, 352 (8th Cir. 1994) (adopting the McCorpen standard in the Eighth Circuit). Specifically, when the shipowner requires a prospective seaman to undergo a pre-hiring medical examination, and the seaman either intentionally misrepresents or conceals material medical facts, then the seaman is not entitled to an award of maintenance and cure. See McCorpen, 396 F.2d at 549. The shipowner is entitled to this defense only when (1) the seaman has intentionally misrepresented or concealed medical facts; (2) the misrepresented or concealed facts were material to the employer's hiring decision; and (3) there exists a causal link between the preexisting disability that was concealed and the disability incurred during the voyage. McCorpen, 396 F.2d at 549; In re Rene Cross Const., Inc., 2003 WL 359936 (E.D.La.); Russell v. Seacor Marine, Inc., 2000 WL 1514712, at *2 (E.D.La.).
Defendant argues that Lodrigue intentionally misrepresented or concealed medical facts when he denied any previous knee injuries on the form he completed in connection with both of his pre-employment physical examinations administered by its predecessor. In support of this contention, Delta Towing points to Lodrigue's answers on the forms and his testimony that these answers were incorrect.
Plaintiff contends that defendant may not raise the McCorpen defense at this point in the case because the defense is an affirmative defense that must be specially pleaded in its answer. The Court assumes without deciding that the defendant may argue this defense.
Clearly, Lodrigue intentionally concealed medical facts. See MeCorpen, 396 F.3d at 549. Lodrigue testified that he did not disclose his knee injury in his pre — employment physical exams because he was afraid that RB Falcon might not hire him if he did.
Lodrigue's Testimony.
The Court finds, however, that defendant failed to meet the second element of the McCorpen defense because it failed to show that the pre — existing knee injury would have affected its decision to hire plaintiff. Delta Towing's argument to the contrary is belied by the fact that it continued to employ Lodrigue after it purchased RB Falcon assets, even though it knew that he had existing abnormalities in his back and was initially hired with restrictions on heavy lifting. If having an existing back condition was not disqualifying, it is not believable that a five year — old knee injury that caused no intervening problems would have caused Delta Towing to reject plaintiff. Delta Towing says it relied on the physician, Dr. Dantin, who performed the pre — employment physicals for its predecessor RB Falcon. Dr. Dantin never said that had he known of plaintiff's earlier knee injury, he would have found him unsuitable for hire. Rather, he said that he would have performed a more focused examination of plaintiff's knee. He stated only that the previous knee injury may have affected his decision to clear Lodrigue for employment if he had found anything in the physical exam that concerned him. There is no evidence that Lodrigue's knee was symptomatic from his earlier injury or prevented him in any way from performing his duties for either RB Falcon or Delta Towing. As a result, the Court concludes that Delta Towing failed to demonstrate that the concealment of plaintiff's previous knee injury was material to its hiring decision. The Court therefore rejects defendant's argument that plaintiff is not entitled to maintenance and cure because he concealed his earlier knee injury.
iii. Amount of Maintenance
Because the Court found that the plaintiff is entitled to maintenance, the Court now turns to the amount of maintenance due. "The maritime doctrine of maintenance entitles a seaman injured in the service of his ship to `food and lodging of the kind and quality he would have received . . . aboard [the] ship.'" Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 586 (5th Cir. 2001) (quoting Tate v. American Tugs, Inc., 634 F.2d 869, 871 (5th Cir. Unit A 1981)). Lodrigue is entitled to the reasonable cost of food and lodging, provided he has incurred the expense. See id. at 587. A seaman's burden of producing evidence of expenses is "feather light," and a court may award reasonable expenses even if the seaman fails to conclusively prove the precise amount of actual expenses. See id. at 588.
Lodrigue submitted documentation of his lodging expenses, which include the payments on first and second mortgages, the rent on the lot for the mobile home, and utilities. Lodrigue also submitted documentation of food and living expenses over a one — month period that totaled approximately $300.00. Some of these expenses were for items that were for toiletries for plaintiff's wife or clothing. Based on these expenses, plaintiff argues that a maintenance rate of $33.57 is reasonable. The Court acknowledges that plaintiff need not conclusively prove the precise amount of actual expenses, but the Court finds that plaintiff's proposed rate should be adjusted to $31.00, which reflects a reasonable approximation of his compensable expenses. Hall, 242 F.3d at 591-92 (upholding maintenance rates of $30.50 and $31.50 per day).
See Pla.'s Ex. 20. The monthly payments on the first and second mortgages on the mobile home in which he lives total $461.00.
The monthly rent payment is $75.00.
Lodrigue submitted copies of water bills that averaged $36.53 per month over a three — month period and electricity bills that averaged $160.25 over a four — month period.
B. Compensatory Damages and Attorney's Fees
i. Applicable Law
The Fifth Circuit has held that, upon receiving notice of a claim for maintenance and cure, a shipowner may investigate and require corroboration of the claim, and need not immediately provide payment. See Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir. 1987) (citing McWilliams v. Texaco, Inc., 781 F.2d 514, 518-20 (5th Cir. 1986)). If the shipowner unreasonably rejects the claim after investigating it, the owner becomes liable for compensatory damages in addition to maintenance and cure, such as aggravation of the seaman's condition. See id. Further, if the owner rejects the claim in an arbitrary and capricious, or willful, callous, and persistent manner, the owner becomes liable for attorney's fees as well as maintenance and cure and compensatory damages. See Guevara, 59 F.3d at 1513.
ii. Analysis
Although the Court found that plaintiff is entitled to maintenance and cure with respect to both his back and knee injuries, the Court finds that Delta Towing's denial of plaintiff's maintenance and cure was not unreasonable. Delta Towing paid for the medical treatment by Dr. Sweeney that Lodrigue incurred immediately following his accident about the MISS EUNICE. At the end of October of 2002, Dr. Sweeney released Lodrigue for full work duty. Lodrigue worked without restriction for more than three weeks in November 2002, and during that time he never complained to Delta Towing of back or knee pain. Delta Towing terminated Lodrigue in mid — December 2002, and Lodrigue did not make any demand for maintenance and cure until he filed suit on February 5, 2003. At that time, Lodrigue had not yet seen a physician other than Dr. Sweeney since his injury. Lodrigue then saw Dr. Cobb, who recommended arthroscopic surgery for his knee and a nerve block for his back. On May 29, 2003, Lodrigue demanded that Delta Towing pay him maintenance and pay the expenses associated with the treatment recommended by Dr. Cobb. Delta Towing reasonably exercised its right to investigate Lodrigue's claim and requested that Lodrigue submit to an independent medical examination. Since Dr. Sweeney had previously released Lodrigue to full work duty in October 2002 and Lodrigue then proceeded to work for more than three weeks, it was more than reasonable that Delta Towing did not pay maintenance and cure when initially demanded. A short time later, Delta Towing received answers to interrogatories from plaintiff that disclosed a previous knee injury that Lodrigue had not disclosed in his pre-employment physicals.
Delta Towing conducted its investigation of Lodrigue's claim, and Dr. Sweeney performed an IME in October 2003. Dr. Sweeney concluded that Lodrigue's knee had reached MMI as of the end of October 2002 and that Lodrigue's back symptoms were not related to the accident. Delta Towing's decision not to pay maintenance and cure related to Lodrigue's knee is supported by a credible medical opinion and is further supported by Lodrigue's unrestricted work for Delta Towing for over three weeks in November 2002. Also, Delta Towing reasonably argued that it is not liable for maintenance and cure related to Lodrigue's knee even if the knee had not reached MMI because he failed to disclose his previous knee injury in his pre — employment physicals. The Court finds that even though Delta Towing was privy to Dr. Cobb's opinion that Lodrigue's knee injury had not reached MMI, Delta Towing had a reasonable basis for denying maintenance and cure on plaintiff's knee injury.
Delta Towing's denial of maintenance and cure related to Lodrigue's back was also reasonable. Its denial was again supported by credible medical testimony from Dr. Sweeney. Dr. Sweeney opined that it is "far — fetched to believe that there is pathology in his lumbar spine related to the 10/06/02 accident." Further, Lodrigue did not immediately complain of back pain, and he did not initially inform anyone at Delta Towing that he had injured his back in connection with the accident. The first documented complaint of back pain by Lodrigue is in the records from Lodrigue's visit with Dr. Sweeney on October 28, 2002, three weeks after Lodrigue's fall. Although Lodrigue contends that he experienced back pain within four or five days of the accident, Delta Towing reasonably discredited Lodrigue's statements given the number of times he had lied to Delta Towing in the past. Accordingly, the Court finds that Delta Towing did not unreasonably deny plaintiff's claim for maintenance and cure related to his back.
As a result, the Court denies plaintiff's claim for compensatory damages stemming from Delta Towing's allegedly unreasonable denial of his claim for maintenance and cure. Because the Court concludes that Delta Towing's denial of maintenance and cure benefits was not unreasonable, it follows that its denial was also not arbitrary or capricious. Consequently, the Court also denies plaintiff's claim for attorney's fees related to Delta Towing's denial of his claim for maintenance and cure.
III. PLAINTIFF'S MOTION IN LIMINE AND PARTIES' OBJECTIONS
Plaintiff moved in limine and both parties moved at trial to exclude various aspects of the opposing parties' evidence and testimony. The Court resolved most of these objections on the record at trial. Two issues remain, however.
First, the Court notes that plaintiff moved to admit the deposition testimony of Lisa Hamby, Delta Towing's Corporate Representative, and defendant objected. Although plaintiff correctly argued that the deposition constitutes an admission by the defendant, plaintiff failed to demonstrate to the Court why the entire deposition was relevant. Hamby testified at trial, and plaintiff was able to cross — examine her on any relevant topics from her deposition.
Second, the Court conditionally admitted defendant's exhibit 29, Lodrigue's criminal records from Terrebone Parish. The Terrebone Parish records contain three different bills of information that charge Lodrigue with issuing worthless checks. After further review of the records, the Court sustains plaintiff's objection to their admissibility. Defendant argues that these records are admissible under Federal Rule of Evidence 404(b) because they show a pattern of acting dishonestly for economic benefit. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The Fifth Circuit has held that evidence must satisfy two criteria for admission under Rule 404(b): "(1) it must be relevant under Federal Rule of Evidence 401 to an issue other than the defendant's character; and (2) it must have probative value that substantially outweighs its prejudicial impact under Federal Rule of Evidence 403." U.S. v. Walters, ___ F.3d ___, 2003 WL 22664478, at *5 (5th Cir. 2003) (citing U.S. v. Beechum, 582 F.2d 898, 911-13 (5th Cir. 1978)). The Court finds that the alleged instances of issuing worthless checks are too dissimilar to and some of them are too far removed in time from the conduct at issue to be probative of a pattern. Further, the records contain no evidence that Lodrigue was convicted of issuing worthless checks in Terrebone Parish. As such, the relevant rule is Federal Rule of Evidence 608(b), which provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross — examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross — examined has testified.
Delta Towing may therefore attack Lodrigue's credibility by inquiring about specific instances of his conduct on cross-examination, but because it may not prove these specific instances by extrinsic evidence, the Court excludes Lodrigue's Terrebone Parish criminal records.
The Court notes that at trial, Delta Towing cross-examined Lodrigue regarding these charges of issuing worthless checks.
IV. PREJUDGMENT INTEREST
Plaintiff also seeks prejudgment interest. Under 28 U.S.C. § 1961, the Court may award prejudgment interest on any money judgment in a civil case recovered in a district court. In admiralty cases generally, prejudgment interest should be awarded. See Inland Oil and Transport Co. v. Ark — White Towing Co., 696 F.2d 321, 327 (5th Cir. 1983). The purpose of prejudgment interest is to compensate, not penalize. See Transorient Navigators Co., S.A. v. M/S SOUTHWIND, 788 F.2d 288, 294 (5th Cir. 1986). "Discretion to deny prejudgment interest is created only when there are `peculiar circumstances' that would make it inequitable for the losing party to be forced to pay prejudgment interest." Noritake Co. v. M/V HELLENIC CHAMPION, 627 F.2d 724, 728 (5th Cir. 1980). The Court finds no such peculiar circumstances in this case and awards plaintiff prejudgment interest.
V. CONCLUSION
For the foregoing reasons, plaintiff Joseph Lodrigue is entitled to maintenance and cure as follows:
(1) maintenance in the amount of $31.00 per day from November 27, 2002 until he reaches maximum medical improvement;
(2) prejudgment interest on the maintenance award at the applicable federal rate, over the period from November 27, 2002 until the date of this order;
(3) cure for the cost of arthroscopic surgery and a nerve block, to be paid before plaintiff undergoes these procedures, and all associated medical, rehabilitative, and necessary treatment, until the point at which plaintiff reaches MMI; and
(4) the medical expenses that plaintiff has incurred for treatment by Dr. Cobb.
The plaintiff is directed to submit a judgment consistent with this order by December 23, 2003.
New Orleans, Louisiana.