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September 16, 2005.

GEORGE LEWIS, Plaintiff,

The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge


This matter was tried before the court for a period of three days, commencing on June 6, 2005. Plaintiff George Lewis, a merchant marine, has brought an action against the defendant United States for damages incurred as a result of an accident in June 2003, which occurred while Lewis was on board the vessel USNS YANO. Lewis appeared through his counsel, Lyle Cavin Jr. and Christopher Goodroe, and the United States appeared through its counsel, Eric Danoff.


  The court has attempted to "avoid commingling findings of fact with conclusions of law." Lieber v. Macy's West, Inc., 80 F. Supp. 2d 1065, 1066 n. 1 (N.D. Cal. 1999). To the extent this effort fails, "any conclusions that are inadvertently labeled as findings (or vice versa) shall be considered `in [their] true light, regardless of the label that the . . . court may have placed on [them].'" Id., quoting Tri-Tron International v. Velto, 525 F.2d 432, 435-36 (9th Cir. 1975).

  A. George Lewis

  George Lewis is a 58-year-old merchant marine who now lives in Oakland, California. Lewis grew up in Alabama, where he only completed the seventh grade before leaving school to work full-time on his family's farm. Lewis is functionally illiterate. He is able to sign his name and recognize his name on documents, but is not able to read or write anything beyond that. Lewis left home when he was 18 and moved to New Orleans. He became a merchant marine in 1967 and worked through the National Maritime Union until 2002. In 2003, Lewis joined a new union, the Sailors' Union of the Pacific. It was through this union that Lewis was assigned to work on the USNS YANO, in the capacity of an able-bodied seaman.

  Before Lewis joined the YANO, he had already been diagnosed with a number of medical conditions, including hypertension and diabetes. He had previously broken his right orbital bone (eye socket) some time before 2003. Lewis was unable to provide any information about this injury at trial, but affirmed that he did not injure his right eye while on the YANO.*fn1

  Additionally, in November 2002, Lewis was diagnosed with hepatitis C and was told to abstain from drinking alcohol in the future. Def. Exh. A-27.

  B. June 20, 2003 Accident

  The YANO was being used to transport military cargo by sea from the east coast of the United States to Kuwait and back. The schedule for the YANO indicates that it was docked in Newport News, Virginia from June 15 to June 29, 2003, when it set sail for the Middle East. Def. Exh. A-3.

  On June 20, 2003, Lewis reported to work at 8 a.m.*fn2 Bosun Jeff Tweedy assigned Lewis and ordinary seaman Kenneth Thueringer to clean up oil in the forward machine space of the ship.*fn3 Tweedy Depo. at 16:22-20:20.

  The forward machine space contains machinery that uses pressurized hydraulic fluid to power machinery on the deck, and as a result, oil from the machinery will leak. For this reason, the forward machine space is designed with a raised metal lip on the floor a few inches high and surrounding the machinery, to catch the oil and confine it to one area. The area inside the metal lip is called the "containment space." The space is about the height of a man's calf, and allows about four inches of space in which to work. See Def. Exh. A-10 (pictures of forward machine space and containment space). The space is also equipped with both natural and mechanical ventilation. See Def. Exh. A-10 at 13 (picture of ventilation), DiMattia Depo. at 85:17-86:14, 160:2-162:13; Reed Depo. at 20:17-25:24.

  When docked, the YANO listed to starboard (right). DiMattia Depo. at 144:18-145:6. Thus, the oil in the containment space was deeper on the starboard side than on the port side (left). Lewis testified that the oil was very deep. Crewmembers testified that the shallow side of the spill (taking up about half of the containment area) had only a sheen of oil, and the deeper side had about an inch or two of oil at most. Thueringer Depo. at 16:17-18:4; Tweedy Depo. at 21:4-9 (describing half an inch of oil at the most). See also DiMattia Depo. at 145:11-149:3 (describing at most about 2 inches of oil at the deep end, and a sheen on the other); Reed Depo. at 30:6-31:3 (noting that oil deeper than 2 inches would have spilled out of the containment space). Tweedy told Lewis and Thueringer to clean the oil using absorbent pads, known as diapers. This is a standard method of cleaning oil in forward machine spaces, and is a routine deckhand assignment. Tweedy Depo. at 22:9-23:24.

  While spills on deck are cleaned with sawdust, sawdust is generally not used in the closed forward machine space because the dust can interfere with the machinery's functioning. Tweedy Depo. at 26:2-27:10, DiMattia Depo. at 79:19-80:10, 149:18-150:3. A wet/dry vacuum similarly cannot be used because the vacuum does not work for oil. DiMattia Depo. at 78:8-15. Ordinarily, the deckhand places the diapers, which are about 19 inches long and 15 inches wide, onto the spill; allows the pad to absorb the oil; and then discards the pad. This is repeated until only a small amount of oil is left, at which point the deckhand uses a rag to wipe away the remaining oil. Tweedy Depo. at 24:19-25:12. If Lewis or Thueringer felt that using the diapers was unreasonable or ineffective, they were free to obtain any equipment they felt necessary to use from the supply closet. See, e.g., Thueringer Depo. at 21:21-22:6 (noting that Lewis did not express a need for sawdust that day).

  Lewis and Thueringer started working around 10:20 a.m. However, each testified very differently about the events and circumstances of their assignment.

  According to Lewis, in order to reach the oil in the back of the containment area, he was required to step into the containment area. He put down a diaper and stood on it to reach the oil in the back. As he was reaching back, Lewis testified and physically demonstrated in court that his right foot slid out from under him and as he fell, he hit his head on a pipe. However, Lewis then testified that he hit his head on the pipe as he was raising his head up from a crouching position when his hand slipped. He continued to testify as to both versions of the events interchangeably throughout the trial. The documentation similarly reflects both versions. Compare, e.g., Pl. Exh. 4 (incident report of 7/15/03, reporting that accident occurred when Lewis' hand slipped and he raised his head) with, e.g., Pl. Exh. 9 (Lewis reporting to defendant's expert Goldstein in 2004 that his leg slipped and he hit his head while falling). At trial, Lewis testified that he felt dizzy or lightheaded at the time of the accident.*fn4

  Lewis also testified that a short time later, he hit his head a second time almost in the same spot, as he was working underneath a tabletop. Lewis testified that he was wearing a hard hat, but it fell off right before he hit his head, both times. Lewis claimed at trial that he had hit his head quite hard, but that he did not lose consciousness either time.*fn5 Lewis also testified that he was alone at the time both accidents happened, because Tweedy and Thueringer had left the space to get equipment. Lewis also testified that after the accident occurred, he stopped working.

  Thueringer testified differently as to the events of that morning. Thueringer testified that he never left the forward space that morning, and was working with Lewis at all times. Thueringer also testified that while oil generally has an odor, he did not feel any effects from inhaling any oil fumes that morning. He testified that Lewis was not wearing a hard hat. While he did not witness the accident, Thueringer recalled that at some point that morning, Lewis said he hit his head on a pipe, and that he had a "higgin," or bump, on his head as a result. Thueringer reported that Lewis did not appear to be in great pain or distress beyond rubbing his head, was not bleeding, did not have a seizure, did not lose consciousness at any time, and continued working in the containment area without further incident. Thueringer also reported that they finished the job around 11:30 a.m. Lewis did not mention a second accident to him or any bumps involving a table. Thueringer Depo. at 22:25-26:19, 32:22-34:6, 36:12-37:8.

  Lewis did not report the injury to DiMattia, the ship's medical officer for the month of June, see Def. Exh. A-4 (ship medical log, showing no report of injury on 6/20/03), or to his supervisor Tweedy, Tweedy Depo. at 28:21-25 (no report of injury from incident). Lewis continued to work for the rest of the day without incident.

  C. Post-Accident

  On June 26, Lewis casually mentioned to Tweedy that he had bumped his head a few days earlier, but that he was not injured. Tweedy Depo. at 29:1-30:8. Tweedy reported this to third mate Tanner, who would be acting as the ship's chief medical officer for the month of July. Tanner then asked Lewis if he was all right. Tanner Depo. at 66:23-68:7. Since the ship was still docked at Newport News at this time, it would have been possible for Lewis to see a doctor immediately if there was a problem. Lewis, however, said he was fine. Id., see also, e.g., Tanner Depo. at 69:4-8. Therefore, no medical report was logged and no medical referral was made. Def. Exh. A-4.

  On July 9, 2003, about three weeks after the accident occurred and after the YANO had left port and set sail for Kuwait, Lewis reported to Tanner, who was the medical officer for that month, that his head hurt. Lewis stated that this was an injury he had incurred before boarding the YANO. DiMattia Depo. at 56:17-20. Tanner and DiMattia then visually inspected Lewis' head and found no bumps or swelling. DiMattia Depo. at 118:8-119:15 (neither Tanner nor DiMattia noticed bumps or swelling on Lewis' head), 167:21-168:13. Nonetheless, because neither Tanner nor DiMattia are medical doctors, they called a shoreside doctor, who recommended that Lewis use ice packs on the injury and take ibuprofen for the discomfort. Def. Exh. A-5; see also Reed Depo. at 11:10-13:5 (captain inspected Lewis and ordered Tanner to call shoreside doctors MHS). At that time, Lewis denied feeling any dizziness, nausea, or confusion. Def. Exh. A-6; see also Tanner Depo. at 20:20-21:17, ...

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