Smith v. F/V Marauder

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David A. Szwak
Posts: 1974
Joined: Thu Jul 13, 2006 11:19 pm

Smith v. F/V Marauder

Post by David A. Szwak »

Smith v. F/V Marauder
Not Reported in F.Supp.2d, 2003 WL 22016892
W.D.Wash.,2003.
May 16, 2003

MEMORANDUM AND DECISION


LASNIK, J.


I. INTRODUCTION

*1 This matter was heard by the Court in a bench trial on January 31, 2003. Plaintiff, a seaman, suffered a heart attack on March 2, 2001, while in service to Defendant's vessel. Plaintiff seeks maintenance and cure for a second heart attack, which occurred on December 25, 2001. Defendant contends that the second heart attack is not attributable to the first, precluding liability for subsequent maintenance and cure. At the conclusion of the January 31 bench trial, the Court instructed the parties to attempt to settle this matter. Despite several extensions to the settlement deadline, the parties have been unable to resolve this matter, See Orders Extending Settlement Deadline (Dkts # 23-25). The Court has considered the evidence presented at trial, exhibits admitted into evidence, and the arguments of counsel. Being fully advised, the Court now makes the following Findings of Fact and Conclusions of Law.



II. FINDINGS OF FACT

1. On March 2, 2001, Plaintiff suffered a heart attack while aboard the Defendant's vessel, the F/V Marauder. On April 30, 2001, Plaintiff's cardiologist released Plaintiff to return to work. Defendant paid maintenance to Plaintiff, at a rate of $30 per day, and all medical bills through May 30, 2001.

2. On December 25, 2001, Plaintiff suffered a second heart attack while at home in Alaska, Plaintiff underwent medical procedures as treatment for the second heart attack in December of 2001, and May and June of 2002. Over $100,000 in medical bills incurred in that treatment remain due to the Providence Alaska Medical Center and the University of Washington Medical Center.

3. Based on the testimony of Dr Paul Peterson, which the Court finds to be the most credible expert testimony, Plaintiff's December 25 heart attack was caused by scar tissue that formed in the right coronary artery as a reaction to placement of a stent in that artery following the March 2 heart attack The December 25 heart attack was not caused by the natural progression of Plaintiff's underlying heart disease



III. CONCLUSIONS OF LAW



A. Obligation for Maintenance and Cure.

The obligation to provide cure exists at least until the seaman's condition is determined either to be permanent or to have reached maximum medical cure. Vella v. Ford Motor Co., 421 U.S. 1, 5, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975) The shipowner has the burden of proving that maximum cure has been attained. Smith v. Delaware Bay Launch Serv., Inc., 972 F.Supp. 836, 848 (D.Del.1997). “The cut-off date for maintenance and cure is not the point at which the patient recovers sufficiently to take up his old employment; but rather, the time of maximum possible cure.â€
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555
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