United States District Court, N.D. California
September 16, 2005.
GEORGE LEWIS, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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.
FINDINGS OF FACT
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,
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
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, 76:18-77:12; 82:3-23. Tanner
and DiMattia were specifically told by the shoreside doctor to
observe Lewis carefully to see if he seemed dizzy or confused.
Id.; see also Def. Exh. A-4 (medical log). They followed
these orders, and Lewis appeared to be fine.
At no time following the accident did anyone report seeing
Lewis in any apparent distress. Lewis never reported any injuries
or discomfort and worked diligently while on board. See, e.g.,
DiMattia Depo. at 61:1-8 (Lewis reporting to DiMattia that injury
would not impair Lewis' ability to work), 105:1-4, 134:3-20
(Lewis worked voluntary overtime in addition to completing his
regular duties); Tweedy Depo. at 30:21-34:16, 35:24-36:15,
36:16-37:22. In addition, Tanner and Lewis were assigned to the
12 to 4 watch on the ship, which requires that two sailors stand
on deck from 12 noon to 4 p.m. and 12 midnight to 4 a.m., and
thus spent eight hours a day together every day while at sea.
Tanner reported that Lewis stood all his watches during this time, always seemed fine, and that Lewis
never reported any injuries or discomfort to him. Tanner Depo. at
50:9-17, 77:21-79:2, 84:5-85:5; Reed Depo. at 13:15-24 (noting
that Tanner was in best position to check on Lewis during the
Throughout the voyage, Lewis continued to perform all his
assigned duties and appeared fine to all observers. See also
DiMattia Depo. at 169:19-172:11; Reed Depo. at 79:1-81:5 (noting
that if Lewis had appeared dizzy at any time, he would not have
been permitted to steer, but that Lewis was an excellent helmsman
while serving on the YANO.). However, Lewis testified at trial
that he was experiencing dizzy spells and headaches throughout
On July 26, 2003, the YANO docked in Ashuaybah, Kuwait, and
Lewis was sent to see a shoreside doctor. The shoreside doctor
recommended that Lewis be given one day off to rest, and
prescribed Tylenol. Lewis took the day off and then worked all
his shifts for the rest of the voyage without further incident.
Tanner Depo. at 77:21-79:2 (Lewis stood all watches except for
the day off in Kuwait).
On the return voyage from Kuwait, the YANO docked in Crete and
Amsterdam. Lewis claims that he requested to see shoreside
doctors or be sent home early from those ports, but that his
supervisors refused. Other crewmembers claim that no such
requests were made. See, e.g., Tanner Depo. at 36:13-16,
The YANO returned to the United States and docked in Savannah
on September 4, 2003. Lewis requested to see a doctor in
Savannah. The doctor in Savannah found Lewis unfit for duty, and
sent Lewis home to Virginia.
After returning to Virginia, Lewis began seeing a number of
doctors for a variety of medical complaints. On September 12,
2003, Lewis went for a follow-up checkup concerning the YANO
accident. At that time, he reported that he had lost
consciousness at the time of the accident, and that he had a
brain tumor. He did not report any seizures, and also did not
report his preexisting conditions of hypertension, diabetes, or
hepatitis C. Def. Exh. 28 at 1-2. On October 31, 2003, he returned to the ER, reporting that he
had a brain tumor. At that time, he reported that on June 20,
2003, he hit his head on a metal table, fell unconscious, and had
a seizure, "which he has never had before or since." He reported
his hypertension but not his diabetes or hepatitis C. Def. Exh.
28 at 4-5.
On the morning of December 15, 2003, Lewis drank anywhere from
two to five beers. The record is unclear as to where Lewis drank
these beers. At his deposition, Lewis had testified that he drank
two beers at home and then three at a bar later that day, but at
trial, Lewis denied going to the bar and stated instead that he
had drunk three beers at home, after which he was walking to a
convenience store when his knees began to weaken before he lost
consciousness. When confronted with this inconsistency, Lewis had
What is undisputed is that Lewis was found passed out in front
of a local bar, having hit his head when he fell. He testified
that he had no warning of the event and did not mention feeling
dizzy before he lost consciousness. Lewis was found foaming at
the mouth and moving lethargically, and was rushed to the
emergency room. See, e.g., Def. Exh. A-28 at 7 (ER report). At
the ER, he reported that he had fractured his skull in the
accident on the YANO, but that it had healed. When reporting his
preexisting medical conditions, he reported his hypertension and
diabetes but not his hepatitis C. He was diagnosed as having
suffered a seizure. Def. Exh. A-28 at 7-9.
The next day, Lewis told the doctors that he had previously had
a seizure in October 2003, of which he remembered no details, and
that he had felt dizzy before passing out the day before. Id.
at 10. However, he told another doctor that he had never had any
previous seizures, but also that he had experienced three
previous episodes of "passing out." The doctors also noted that
bystanders did not report any seizure-like activity when Lewis
passed out at the bar the other day. Id. at 11. Lewis reported
drinking 3-4 beers a day, but did not report his hepatitis
C.*fn6 Lewis was diagnosed with intracranial bleeding, which
was expected to resolve without incident.
After this incident, Lewis returned to the hospital about a
week later, reporting painful headaches and asking to stay in the
hospital "until this all resolves." Def. Exh. A-28 at 15
(12/21/03 visit). A few weeks later, Lewis returned to the
emergency room, reporting that he was repeatedly passing out and
in constant pain with a headache. Id. at 18 (1/14/04 visit,
also finding that "he smells somewhat of alcohol but denies
During this time, Lewis underwent a number of MRIs to determine
whether he had suffered any brain trauma, all of which came back
normal. See, e.g., Pl. Exh. 9 at 5 (independent medical expert
Goldstein report, summarizing history of MRIs); Def. Exh. A18
(def. medical expert Barakos, same); Goldberg Depo. at 9:16-10:13
(plaintiff expert, summarizing MRIs from 2003).
Some time after this, Lewis moved to Oakland. On May 13, 2004,
Lewis arrived at the ER reporting another seizure incident. Lewis
now reports that he has a persistent headache and blacks out
intermittently, and as a result, he is now completely unable to
work. Lewis has since been diagnosed with persistent seizure
disorder. His doctor, Richard Gravina, testified that he does not
believe that Lewis is likely to improve.
The YANO paid Lewis $16/day (standard contract rate) in
maintenance and cure payments for his medical expenses from
September 5, 2003 to July 7, 2004. Def. Exh. A14. Based on Dr.
Goldstein's independent medical examination, see Def. Exh. A22,
the YANO determined that as of July 7, 2004, Lewis had reached
the point of maximum medical improvement for his headaches and
Lewis claims that his headaches, dizziness and seizures were
all caused by the accident on the YANO and requests damages from
the United States.
As is apparent, Lewis' version of the events on the YANO stands
in stark contrast with almost every other crewmember's testimony,
and in places also contradicts itself. For the reasons that
follow, the court concludes that Lewis' testimony is not
reliable. The court does not believe that Lewis intentionally attempted
to deceive the court in presenting his testimony. Lewis appears
to be a modest hard-working man, who has worked for everything
that he has, and who has not been the recipient of many, if any,
handouts. However, the record reflects numerous examples of Lewis
omitting elements of his medical history and misstating his
personal history and basic facts. Lewis' trial testimony amply
demonstrated his poor recall and his profound difficulties in
articulating coherent responses even to
relatively-straightforward direct questioning. See also,
e.g., Goldstein Depo. 19:11-12 (describing Lewis as "sincere,"
but an "unreliable historian").
The internal inconsistencies in Lewis' testimony make it
impossible to reconcile certain versions of Lewis' testimony with
other versions, rendering much of the testimony unbelievable. For
instance, in one version of events, Lewis claims that while
working in about 4 inches of space in the forward machine space,
he hit his head hard enough to fracture his skull, recovered, and
then hit his head again a few minutes later.
Moreover, Lewis was unable to give a coherent account of the
accident itself, at times claiming that he slipped and fell
downward, and at others claiming that he hit his head while
raising it up. The court notes that if Lewis had in fact slipped
downward as he demonstrated in the courtroom, the resultant bump
should have been to the front of his head or forehead, and if he
had hit his head while raising his head up, as he described the
second accident, he should have hit the back of his head. The
medical records show and Lewis testified however, that the injury
was to the side of his head. No explanation can be found in the
record that would explain this seeming inconsistency.
Additionally, Lewis seemed somewhat impressionable and
suggestible, answering questions the way he believed the
questioner would want him to, which rendered his testimony
particularly vulnerable to tainting through leading questions.
For example, the first time Lewis indicated that he may have felt
dizzy at the time of the June 20 accident was when he was
specifically asked many months after the accident by one of his
experts, if he had felt dizzy at the time of the accident. This
further undermines the reliability of Lewis' testimony. The court therefore credits the testimony of the other sailors
as more accurately describing the circumstances on June 20, 2003,
and finds that Lewis somehow suffered a hard bump to the head,
enough to cause pain, headache and bruising, but not enough to
cause dizziness, seizures or permanent damage. The court also
finds that any head pain that Lewis may have suffered after the
accident was not sufficiently severe to have affected his work on
the YANO in any way.
CONCLUSIONS OF LAW
A. Legal Standards
Lewis sues both for unseaworthiness and for negligence under
the Jones Act. Both causes of action are premised on a finding
that the YANO was not reasonably fit to set sail and that Lewis'
injuries were caused by the YANO's negligence or unseaworthiness.
The United States as a shipowner has an absolute duty to
provide a seaworthy ship, which is a ship that is reasonably fit
for its intended use. Ribitzki v. Canmar Reading & Bates Ltd.
P'ship, 111 F.3d 658, 664 (9th Cir. 1997). To prevail on this
claim, Lewis must show that 1) the ship's warranty of
seaworthiness applied to him; 2) he was injured by the ship's
equipment; 3) the equipment was not reasonably fit for its
intended use; and 4) this unseaworthy condition caused Lewis'
Lewis also sues the United States for negligence under the
Jones Act, 47 U.S.C. § 688. Under the Jones Act, Lewis must show
that the United States "was negligent, and the negligence was a
cause, however slight, of his injuries." Ribitzki,
111 F.3d at 662 (noting that "even the slightest negligence is sufficient to
sustain a finding of liability," and citing Havens v. F/T Polar
Mist, 996 F.2d 215, 218 (9th Cir. 1988)). To show negligence,
Lewis must demonstrate that the United States had a duty to
provide him a safe place to work, breached that duty, knew or
should have known about the work conditions, and that the United
States' negligence caused Lewis' injury. Ribitzki,
111 F.3d at 663-64. 3. Maintenance and Cure
Lewis also requests maintenance and cure. "Maintenance and cure
is the obligation of a shipowner to care for a seaman injured
during the course of maritime employment." Kopczynski v. The
Jacqueline, 742 F.2d 555, 559 (9th Cir. 1984) (citations
omitted). The ship is only obliged to pay maintenance and cure
until the sailor reaches the point of "maximum cure," where the
sailor will not improve any further. Farrell v. United States,
336 U.S. 511, 518 (1949). All ambiguities concerning liability
are to be resolved in favor of the seaman. Vaughan v. N.J.
Atkinson, 369 U.S. 527, 532 (1962).
B. YANO's Negligence
As discussed above, the court cannot credit any of Lewis' trial
testimony concerning his alleged head injury. Since the accident,
Lewis has related so many different versions of the events of
June 20, 2003, that it is impossible for the court to determine
exactly what happened in the forward machine space to cause Lewis
to bump his head, or if conditions on the YANO factored into the
injury in any way. In other words, the court believes that Lewis
bumped his head on June 20, 2003, while on the YANO. However, the
circumstances which produced this accident are less than clear,
and it is impossible to conclude that it was caused by something
the government did or that it was not caused by something Lewis
did. Thus, the court cannot find that the YANO bears any
responsibility for Lewis' injury.
C. Conditions in the Forward Machine Space
However, even assuming that the conditions in the forward
machine space caused Lewis to bump his head, Lewis fails to
demonstrate unseaworthiness or negligence based on the buildup of
oil in the forward machine space, or on the YANO's request for
Lewis to clean up the oil.
1. Oil Spill
To find that the YANO was unseaworthy, Lewis must show that it
was unreasonable for the YANO to have allowed dripping oil to
build up in the containment area and to have asked Lewis to clean
it up. Given the nature of sailors' work, it is not reasonable to
demand a completely unslippery work environment, but a sailor is
nonetheless entitled to a work space that is not unreasonably
slippery for the job the sailor is asked to do. See Ribitzki,
111 F.3d at 663, 665 (citing cases). However, this is not a
situation where the sailor is asked to perform his duties in an
environment that happens to be slippery. Rather, here the sailors
were specifically ordered to clean up spilled oil.
Under these circumstances, the court cannot find that the
forward space was unreasonably slippery for the job Lewis was
assigned to do, or that it was unreasonable for Lewis to be
assigned the task of cleaning the oil. The government provided
extensive testimony that oil routinely drips from the machinery
in the forward space in the normal course of ship use and
maintenance. See, e.g., Tweedy Depo. at 21:10-24; Reed Depo. at
24:20-22, 27:7-9, 52:2-7; DiMattia 90:15-91:4, 156:13-157:4. In
fact, the containment area bordered by the metal lip on the
floor, was specifically designed to catch and contain dripping
oil. Lewis thus cannot establish unseaworthiness on this basis.
In addition, because of the list of the ship, the oil had only
accumulated to about two inches at its deepest end. As many of
the crewmembers reported, the shallow end of the oil pool was
merely an oil slick on the surface. Thueringer Depo. at
16:17-18:4, 20:1-9 (normal amount of oil in the containment
area); Tweedy Depo. at 21:4-9; DiMattia Depo. at 145:11-149:3).
The court credits the crewmembers' testimony as more accurate
than Lewis', and thus finds that the YANO crew did not
unreasonably delay in cleaning the oil, as there is no evidence
that the amount of oil within the containment area was excessive.
Similarly, the YANO did not act unreasonably in asking Lewis to
clean the containment area. The containment area is designed to
catch oil, which is slippery by its very nature. It is not
unreasonable for an area which is specifically designed to catch
oil to be slippery, and thus Lewis' work space cannot be
considered unreasonably slippery for the task he was assigned to
do: namely, cleaning up oil.
2. Oil Spill Cleanup
Lewis also claims the ship was unseaworthy because he was not
given proper direction on how to clean the oil spill, he was not provided with
a proper and safe method for cleaning the oil, and he was not
provided with proper and adequate tools for the job.
There is no evidence in the record supporting any of these
arguments. The crewmembers describe the task of cleaning the
containment area of the forward machine space as an extremely
routine job. See, e.g., Tweedy Depo. at 22:9-23:24; DiMattia
Depo. at 139:15-17; Thueringer Depo. 13:14-24, 19:15-25. Lewis
had almost forty years experience as a merchant marine, and had
worked as an able-bodied seaman for much of that time. The YANO
did not act unreasonably in assuming that Lewis would be able to
clean the oil spill without extensive instruction.
Similarly, there is no evidence that Lewis was not provided
with a safe method for cleaning oil or not provided with adequate
tools to do so. The government presented extensive evidence that
using rags and diapers was a safe, effective, and adequate method
for cleaning up oil in the containment area. See, e.g., Tweedy
Depo. at 38:10-39:14; Thueringer Depo. at 26:20-27:5. The
government also presented evidence that other methods of cleaning
spills, such as those suggested by Lewis sawdust or a wet/dry
vacuum would not be as effective in the forward machine space.
Tweedy Depo. at 26:2-27:10, DiMattia Depo. at 78:8-15,
79:19-80:10, 149:18-150:3. The court finds this evidence
persuasive, and concludes that the YANO cannot be found
unseaworthy on this basis.
Finally, Lewis argues that the YANO was unsafe or unseaworthy
because the inadequate ventilation of the toxic oil fumes in the
forward machine space caused him to become dizzy, which resulted
in the accident. However, the only evidence that Lewis felt dizzy
before he fell on June 20, 2003, was Lewis' own statement made in
response to questions from his own expert in preparation for
trial, many months after the accident. See Pl. Exh. 28 (Stoller
expert report). Lewis never mentioned that he had felt dizzy
before he slipped to his crewmembers or to any medical personnel.
The government additionally presented evidence that the forward
space was well-ventilated, that Thueringer did not recall any
unusual odors or dizziness on Lewis' part that day, and that the oil at issue is
not considered toxic, see Def. Exh. A-30. The court has already
found that it cannot credit Lewis' testimony that he felt dizzy
before the accident occurred, and given the evidence presented by
the government, the court finds that Lewis has not shown that the
YANO was unsafe or unseaworthy for lack of ventilation.
D. Lack of Damages
Finally, even if the court were to find negligence or
unseaworthiness were the cause of Lewis' fall, his claims would
still fail because he is unable to establish damages caused by
Doctors Goldstein and Gravina both agree that if Lewis had
suffered a sufficiently-traumatic injury to trigger permanent
damage, he would have begun feeling headaches or dizziness within
two to three days of the injury. See also Goldberg Depo. at
46:21-47:12. While Lewis complains of headaches in this time
period, he specifically denied feeling dizzy. See Def. Exh.
A-6; see also Tanner Depo. at 20:20-21:17, 76:18-77:12;
82:3-23. This supports a conclusion that Lewis was not
permanently injured on June 20, 2003.
In fact, Lewis did not even report the injury to his
supervisors until about three weeks later, and did not feel
sufficiently unwell that he could not work or request overtime in
that time period. His coworkers also note that in this period of
time, he appeared in no distress and worked without incident. So
any symptoms Lewis felt were obviously not disabling. See,
e.g., DiMattia Depo. at 61:1-8, 105:1-4, 134:3-20,
169:19-172:11; Tweedy Depo. at 30:21-34:16, 35:24-36:15,
36:16-37:22; Tanner Depo. at 50:9-17, 77:21-79:2, 84:5-85:5; Reed
Depo. at 79:1-81:5.
Thus, even if Lewis had shown that the YANO had negligently
caused the accident (which he has not), Lewis also has not shown
that the June 20, 2003 accident caused him any damage, let alone
rendered him completely unable to work for the remainder of his
working life. The court thus finds that the YANO and the United
States bear no responsibility for Lewis' current medical condition(s).*fn7
E. Maintenance and Cure
The only evidence in the record that Lewis did not reach
maximum cure as of Goldstein's July 6, 2004 independent medical
examination, see Def. Exh. A22, are Gravina's rebuttal reports
of February 2005, in which he opines that Lewis might show
improvement when he begins taking the proper level of medicine.
Pl. Exh. 20. This supports a conclusion not that Lewis' medical
condition was likely to improve, but rather, that Lewis'
condition was exacerbated because he was not receiving or taking
sufficient medicine. However, a finding of maximum cure is
reached when the plaintiff's physical incapacity is permanent,
see Vella v. Ford Motor Co., 421 U.S. 1, 5 (1975), and as a
policy matter, cannot be defeated by a failure to comply with
By contrast, at trial, Goldstein testified that in his opinion,
Lewis' condition was "permanent and stable," meaning that further
improvement was unlikely. This more accurately describes the
nature of the maximum cure inquiry. Since Gravina conceded that
nothing had changed in Lewis' medical history since the summer of
2004, the court thus credits Goldstein's finding that Lewis had
reached maximum cure as of July 6, 2004, and finds that the
government's obligation to provide maintenance and cure is fully
Judgment is entered in favor of the defendant. The clerk shall
close the file.
IT IS SO ORDERED.
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