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.
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).
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, ...