John Doe v. Royal Caribbean Cruises, Ltd. – Part 3

Lipcon, Margulies, Alsina & Winkleman, P.A

October 28, 2012

John Doe v. Royal Caribbean Cruises, Ltd. – Part 3

Pre-hearing Brief in Arbitration Trial

Our experienced maritime attorneys are prepared to fight for our client’s rights whether it be in Court or in alternative dispute resolution. In this pre-hearing brief, our lawyers fully brief a client’s claim in preparation for arbitration with the International Center for Dispute Resolution.

IN ARBITRATION
INTERNATIONAL CENTER FOR DISPUTE RESOLUTION
CASE NO. 50-517-T-788-11
JUDGE AMY DEAN
JOHN DOE,
Claimant,

v.

ROYAL CARIBBEAN CRUISES, LTD.,
Respondent.
______________________________________/

CLAIMANT JOHN DOE’ PRE-HEARING BRIEF

COMES NOW, Claimant, JOHN DOE, by and through undersigned counsel and hereby files his Pre-Hearing Brief. In support thereof, the Claimant alleges as follows:

I. BACKGROUND.

This matter involves claims by JOHN DOE (“Claimant”) against his former employer, Royal Caribbean Cruises Ltd. (“RCCL”). The Claimant has filed claims against RCCL consisting of: Failure to Provide Maintenance & Cure (Count I) and Failure to Treat (Count II).

Claimant worked for RCCL from 1996 until 2009. During this period, Claimant worked as a stateroom attendant on vessels owned and operated by RCCL. [1] During his 13 years with RCCL, the Claimant’s employment consisted in working (and living) aboard RCCL’s ships for approximately ten consecutive months and, once the term of employment ended, the Claimant signed off the ship for approximately two consecutive months.

As a stateroom attendant, Claimant was responsible for hundreds of tasks, including but not limited to the cleaning and sanitation of rooms, and distribution of luggage to passengers. Typically, he provided these services to approximately 45-50 passengers daily. The workload (particularly on embarkation days [2]) subjected the Claimant to harsh conditions, including long hours, and no days off, for the full 9 months.

On December 16, 2009, while working on board the RCCL vessel Liberty of the Seas, the Claimant became severely ill. A few days later, on December 29, 2009, he was hospitalized and diagnosed with Polycystic Kidney Disease.[3] At that time, physicians classified his kidney function as “stage 3” kidney disease.

As the ship-owner and as Claimant’s employer, at all relevant times, RCCL had the duty to provide him with maintenance and cure, including all necessary medical treatment to improve his condition.

Indeed, under the General Maritime Law, “maintenance” is the right of a seaman to receive food and lodging if he falls ill or becomes injured while in the service of the ship. “Cure” is the right to necessary medical services. The duty to pay maintenance and cure commences when the seaman falls ill or is injured and leaves the ship. Morales Garijak, Inc., 829 F. 2d 1355 (5th Cir. 1987). This duty continues until the seaman is cured or, if there is permanent impairment, until he reaches the point of “maximum medical improvement.” Farrel v. United States, 336 U.S. 511 (1949). The point of maximum cure is a medical determination, not a legal one. Doubts are to be resolved in favor of the seaman. See Breese v. AWI, Inc., 823 F. 2d 100, 104-05 (5th Cir. 1987).[4]

Despite having knowledge of Claimant’s serious condition, including medical recommendations that he needed to undergo further treatment to improve his condition (including dialysis and kidney transplantation), RCCL has failed to provide Claimant with any maintenance and cure whatsoever. In fact, it is undisputed that after he was diagnosed with Polycystic Kidney Disease, the Claimant was sent home and never provided with any maintenance and cure. Notably, RCCL arbitrarily rejected Claimant’s demands for maintenance and cure, without a medical a declaration of maximum medical improvement, much less an unequivocal declaration of maximum medical improvement.

The situation has made Claimant financially destitute, preventing him from obtaining the necessary medical treatment that he needs to survive. Indeed, RCCL’s failure to comply with its maintenance and cure obligations has aggravated the Plaintiff’s condition to the point that his kidneys can shutdown at any time. At present, Claimant’s condition has evolved from “stage 3” to “stage 5” kidney disease, leaving him with a mere 13% kidney function. In order to survive and improve his condition, the Claimant needs immediate dialysis and a kidney transplant.

As shown below, this is the exact type of circumstance that the concept of maintenance and cure was designed to prevent. RCCL’s failure to provide maintenance and cure amounts to a willful, wanton and arbitrary denial, entitling Claimant – in addition to compensatory damages – to an award of punitive damages. See Atlantic Sounding v. Townsend, 557 U.S. 404 (2009) (affirming imposition of punitive damages on ship-owner/employer’s willful refusal to pay maintenance and cure).

II. MEMORANDUM OF LAW.
1. THIS MATTER IS GOVERNED BY UNITED STATES LAW.

The claims in this matter were originally brought on November 18, 2010, before the United States District Court for the Southern District of Florida, Case No. 10-24156, as a case in admiralty and maritime jurisdiction. The claims, brought pursuant to U.S. law, included Failure to Provide Maintenance & Cure (Count I) and Failure to Treat (Count II).

On April 19, 2011, the United States District Court for the Southern District of Florida, compelled the matter to arbitration and ordered that “[t]he arbitrator shall apply U.S. Law.”

Shortly thereafter, the parties entered into a “Stipulation” (Exhibit “1”), which provided, in part: “United States law shall apply to the substantive issues which arise in relation to liability for the alleged incident and damages. Thus, all substantive matters in this action shall be governed by the Jones Act U.S.C. §30104 and the General Maritime Laws of the United States. [5]

Accordingly, pursuant to the District Court’s Order compelling the matter to arbitration and the “Stipulation Between Parties,” this matter is governed by United States Law.

1.FOR PURPOSES OF MAINTENANCE AND CURE, THE CLAIMANT IS A SEAMAN AND HE SUFFERED HIS ILLNESS WHILE ON THE SERVICE OF THE SHIP.

First, it is undisputed that during his 13 years of employment with RCCL, the Claimant was assigned to permanently work on a ship, as a member of the ship’s crew. As such he is considered a “seaman,” and is entitled to all benefits and rights provided by the General Maritime Laws of the United States. Offshore Co. v. Robinson, 266 F. 2d 769 (5th Cir. 1959); McDermott International v. Wilander, 498 U.S. 337 (1991).[6]

Second, it is undisputed that on December 16, 2009, when the Claimant fell ill, he was employed by RCCL as a stateroom steward aboard the vessel Liberty of the Seas. Indeed, RCCL admitted this fact in its Initial Statement of Defense as follows: “Respondent acknowledges that Claimant was an employee on board a vessel it operated named Liberty of the Seas.”

Accordingly, for purposes of maintenance and cure: 1) the Claimant is a seaman and 2) who fell ill while in the service of the vessel, as a member of the vessel’s crew. See Eleventh Circuit Court of Appeals, Jury Instructions (exhibit “2”) at pg. 349:

A seaman is injured “in the course of employment” when, at the time of injury, the seaman was doing the work of the employer, that is, working in the service of the vessel as a member of the crew.

Id.; see also Id., at pg. 363: “… If the Plaintiff has proven employment as a “seaman” on the date of the accident for the purposes of the other claims, then you must find the Plaintiff is a seaman for the purposes of “maintenance and cure.”

Id.; Costa Crociere v. Rose, 939 F. Supp. 1538 (S.D. Fla. 1996)(Marcus, J.) (“In this case the parties have stipulated that Rose is a seaman who was injured while in the service of the vessel. We find, therefore, for purposes of this Order, that the [seafarer] had a right to recover maintenance and cure from the Plaintiffs.”).

Third, because Claimant is a seaman, he is part of a special class historically protected by Congress and the Courts. Indeed, since the foundation of the Republic, “[t]he policy of Congress, as evidenced by its legislation, has been to deal with [seamen] as a favored class.” Bainbridge v. Merchants’ & Miners’ Transp. Co., 287 U.S. 278 (1932). Further, as the Fifth Circuit explained in Castillo v. Spiliada Maritime Corp., 937 F.2d 240, 243 (5th Cir. 1991), “[h]istorically, seamen have enjoyed a special status in our judicial system. They enjoy this status because they occupy a unique position. A seaman isolated on a ship on the high seas is often vulnerable to the exploitation of his employer. Moreover, there exists great inequality in bargaining position between large ship-owners and unsophisticated seamen.” Id. at 243.

These protections, particularly the duty of maintenance and cure, date back two hundred years. See Costa Crociere v. Rose, 939 F. Supp. 1538 (S.D. Fla. 1996)(Marcus, J.):

The obligation of a shipowner to provide maintenance and cure under American Maritime law was first discussed in Harden v. Gordon, 11 F. Cas. 480 (No. 6,047) (C.D. Me. 1823). Drawing on his understanding of the singular hazards that attend the work of seamen and the unique relationship between a seaman and his ship or employer, Justice Story cautioned that ‘[e]very court should watch with jealousy an encroachment upon the rights of seamen, because they are thoughtless and require indulgence; because they are credulous and complying; and they are easily overreached.

Id., at 1547.

4. COUNT I: RCCL BREACHED ITS DUTY TO PROVIDE PLAINTIFF WITH MAINTENANCE AND CURE.

A. The Doctrine of Maintenance and Cure.

“Maintenance and cure” is the policy of providing a seaman who is disabled by injury or illness while in the service of the ship, medical care and treatment, and the means of maintaining one’s self during the period of convalescence. Eleventh Circuit Pattern Jury Instructions, 2005, pg. 363; see also Isbrandtsen v. Marine Servs. v. M/V Inagua Tania, 93 F. 3d 728 (11th Cir. 1996):

The seaman’s action for maintenance and cure may be seen as one designed to put the sailor in the same position he would have been had he continued to work: the seamen receives a maintenance remedy because working seamen normally are housed and fed aboard ship; he recovers payment for medical expenses in the amount necessary to bring him to maximum medical cure; and he receives an amount representing his unearned wages for the duration of his voyage or contract period.

“Maintenance” is a per diem subsistence allowance designed to provide the seaman with compensation sufficient to cover his food and lodging until the time of “maximum medical improvement.” Costa Crociere v. Rose, 939 F. Supp. 1538,1548 (S.D. Fla. 1996)(Marcus, J.). It is intended to encompass the cost of food and lodging comparable to that received aboard the vessel. Id., at 1548.

“Cure” represents the cost of medical and nursing care during the seaman’s affliction, again until the point of maximum medical improvement. Id., at 1548. This includes the cost of medical attention, including the services of physicians and nurses as well as the cost of hospitalization, medicines and medical apparatus. Eleventh Circuit Pattern Jury Instructions, 2005, (Exhibit “2”) pg. 364.

B. For purposes of maintenance and cure, all doubts must be resolved in favored of the seaman.

“Relying on the principles first articulated by Justice Story, admiralty courts have been liberal in interpreting the doctrine for the benefit and protection of seaman who are its wards.” Costa Crociere v. Rose, 939 F. Supp. 1538, 1547 (S.D. Fla. 1996)(Marcus, J.). “As a result, the shipowner’s liability for maintenance and cure is among the most pervasive of all, and is not to be defeated by restrictive distinctions nor narrowly confined.” Id., citing Vaughn v. Atkinson, 369 U.S. 527 (1962). Ambiguities or doubts in the application of the law of maintenance and cure are resolved in favor of the seaman. Rose, 939 F. Supp. 1538, 1547, citing Gaspard v. Taylor Diving & Salvage Co., Inc., 649 F. 2d 372, 374 (5th Cir. 1981).

In other words, “if leeway is to be given in any direction, all of the considerations which brought the doctrine into being dictate it should be on the sailor’s behalf.” Id., at 1548.

C. As a matter of law, fault on the part of employer or the cause of illness is irrelevant. To show that he is entitled to maintenance and cure, the Claimant only needs to show that when the illness manifested itself: 1) he was a seaman, 2) in the service of his vessel.

A seaman is entitled to maintenance and cure even if the seaman is unable to establish that an injury was the result of any negligence on the part of the employer or an unseaworthy condition existing on the vessel. Indeed, “the cause of injury or sickness is irrelevant, and tort rules of contributory negligence, comparative fault, assumption of the risk and unseaworthiness do not apply. McMillan v. Tug Jane A/ Bouchard, 885 F. Supp. 452 (E.D. N.Y. 1995); see also Vella v. Ford Motor Company, 421 U.S. 1, 3 (1975) (Brennan, J.):

The ship-owners ancient duty to provide maintenance and cure for the seaman who becomes ill or is injured while on the service of the ship … fosters the combined object of encouraging marine commerce and assuring the well-being of seamen. To further that combined object we have held that the duty arises irrespective of the absence of shipowner negligence and indeed irrespective of whether the illness or injury is suffered in the course of the seaman’s employment. And, so broad is the ship owner’s obligation negligence or acts short of culpable misconduct on the seaman’s part will not relieve (the shipowner) of the responsibility.

Id., at 3 (emphasis added); see also Costa Crociere v. Rose, 939 F. Supp. 1538 (S.D. Fla. 1996)(Marcus, J.), citing Nichols v. Barwick, 792 F. 2d 1520, 1522 (11th Cir. 1986):

The right to maintenance and cure springs from the seaman’s dependence on the ship, and does not turn on fault of the ship owner or the seaworthiness of the vessel. Morevover, the cause of the ailment is irrelevant as long as it manifests itself while the seaman is in the service of his vessel.

Id., at 1548 (emphasis added); see also Eleventh Circuit Pattern Jury Instructions, 2005, pg. 364

Generally speaking, in order to recover maintenance and cure, the Plaintiff need only show that an injury or illness occurred while the Plaintiff was in the service of the vessel on which the Plaintiff was employed as a seaman … Neither maintenance nor cure may be reduced because of any negligence on the part of the seaman; and assumption of the risk is no defense to a claim for maintenance and cure.

In short, “a shipowner’s obligation to provide cure to an injured seaman is an implied term of a maritime-employment contract and “does not depend on any determination of fault.” Maderson v. Chet Morrison Contractors, Inc., 666 F. 3d 373, 380 (5th Cir. 2002). “Thus, an owner of a vessel is almost automatically liable for the cost of medical treatment … when a seaman in its employ is injured.” Id., 380.

Here, Claimant is entitled to maintenance and cure, even if his underlying kidney disease was not caused by the fault of his employer, RCCL. Instead, the law is very clear that the only issue that matters is that the ailment/illness “manifests itself while the seaman is in the service of his vessel.” Id., at 1548.

In this case, it is undisputed that when the Claimant’s condition manifested itself, he was working as a seaman, in the service of the vessel, Liberty of the Seas. As a result, he is entitled to maintenance and cure.

D. Claimant has not reached “Maximum Medical Improvement.” Further medical treatment (including dialysis and a kidney transplantat) will improve his physical condition, will improve his kidney function, and ultimately will save his life.

Once the seaman establishes his right to maintenance and cure, the burden of persuasion shifts to the shipowner to prove that the seaman has reached the point of maximum medical improvement. Costa Crociere v. Rose, 939 F. Supp. 1538,1548 (S.D. Fla. 1996)(Marcus, J.).

A seaman is thus entitled to receive maintenance and cure from the date of departure from the vessel until the seaman reaches the point of “maximum possible cure” under the circumstances; that is, the point at which no further improvement in the seaman’s medical condition is to be reasonably expected. Eleventh Circuit Pattern Jury Instructions, 2005, pg. 365. Thus, if it appears that a seaman’s condition is incurable, or that the treatment will only relieve pain but will not improve a seaman’s physical condition, he has reached maximum medical cure. Fifth Circuit Pattern Jury Instructions, 2006, pg. 42; see also Costa Crociere v. Rose, 939 F. Supp. 1538,1549 (S.D. Fla. 1996)(Marcus, J.):

… the former Fifth Circuit, whose decisions constitute binding precedent on this Court, settled on a test that looks to the “condition” of the seaman .. the court explained that maximum medical improvement is reached “where it appears that the seaman’s condition is incurable, or that future treatment will merely relieve pain and suffering but not otherwise improve a seaman’s physical condition … The accepted legal standard holds that maximum cure is achieved when it appears probable that further treatment will result in no betterment of the seaman’s condition.

Id., at 1549 (emphasis); Morales v. Gariddjak, 829 F. 2d 1355 (5th Cir. 1987) (“The entitlement to maintenance and cure ends when the seaman reaches the date of maximum possible cure, the point at which further treatment will probably not improve his condition.”) (emphasis added); Permanent v. Martinez, 369 F. 2d 297 (9th Cir. 1966) (“The seaman is entitled to maintenance and cure … until it appears that his condition will no longer improve, and this is a question of fact).”

In short, Improvement of physical condition is the key element to determine whether the Claimant has reached “maximum medical cure.” Thus, the pivotal question for this Honorable Tribunal is the following: Would further medical treatment of the Plaintiff (including dialysis and kidney transplantation), improve his physical condition? The evidence will show that the answer is YES.

i. It is undisputed that there has never been a medical declaration that Plaintiff has reached “maximum medical improvement.” To the contrary, the only medical declaration on record is that further medical treatment (including dialysis and a transplantat) will improve Claimant’s condition.

The point of maximum medical improvement is a medical determination, not a legal one. Doubts are to be resolved in favor of the seaman. See Breese v. AWI, Inc., 823 F. 2d 100, 104-05 (5th Cir. 1987) (“This is a medical question, not a legal one; and therefore reliance on the advise of counsel, as opposed to the advise of a physician, is insufficient to constitute a reasonable investigation of a seaman’s right to maintenance and cure”); See Eleventh Circuit Pattern Jury Instructions, 2005, pg. 365 (“The obligation usually ends when qualified medical opinion is to the effect that maximum possible cure has been effected”).

There are no unequivocal medical declarations that Plaintiff has reached “maximum medical improvement.” At all relevant times, RCCL arbitrarily rejected Claimant’s demands for maintenance and cure, despite having a single medical declaration of maximum medical improvement, much less an unequivocal declaration of maximum medical improvement.

In support of the argument that Plaintiff has reached “maximum medical improvement,” RCCL relies entirely on a one-page medical report, dated December 21, 2009, issued by a shore side medical facility in Cozumel, Mexico (Exhibit “3”). RCCL’s reliance on this document, however, is unfounded.

First, the report does not contain a single declaration placing the Claimant at “maximum medical improvement.” In fact the terms “maximum medical improvement”/”maximum medical cure” are entirely absent from the report. Second, nothing in the report says that further treatment will not improve Claimant’s condition.

To the contrary, the December 2009 report only shows a diagnosis for high blood pressure, polycystic kidney disease and assesses that the “[p]atient is unfit for his current work.”

The evidence will shows that 1) on December 21, 2009, Plaintiff had not reached maximum medical improvement, 2) at present Plaintiff, still has not reached maximum medical improvement, and 3) that further medical treatment (including dialysis and a transplant) will improve Plaintiff’s physical condition. Therefore, RCCL has had a continuous obligation (dating from December 21, 2009 to the present) to provide Claimant with “maintenance and cure.” See Deposition Testimony of Dr. Lawrence Byrd[7] (Exhibit “4”), pg. 80 – 82:

Q. Is it your opinion, as you sit here today, that JOHN DOE has reached maximum medical improvement?
A. No.

Q. Why not?
A. I guess because of the things we’ve alluded to throughout the discussion of the last hour or two, that is, his blood pressure seemingly was virtually never controlled, as best I could tell. Virtually, every reading I saw represented anything from sub-optimal to really poor control. That’s the biggest single thing. Then, the additional issues of mineral and bone health just simply not addressed is the best way I could put it. Calcium phosphorous, PTH, just not addressed and needed to be That’s one of the more important things that needs to be done during this period we’ve been talking about so much of stage 4 to stage 5; and, most importantly, preparing him for what we know to be somewhere down the road, and none of us has a crystal ball, but we know that, unfortunately, dialysis is in the offering for him somewhere in the future and it seems to me a major failing that with all of this known for well over three years now, there seems to have been no, no effort to either educate Mr. DOE as to what his options are, hemo, peritoneal dialysis, transplant or to in any way, point him in a direction that would enable him to take advantage of those, so that if he’s leaning towards hemodialysis, we should have created a fistula long before today’s discussion or if he’s planning peritoneal dialysis, we should be readying him for that.

In my judgment, if he were here in New Jersey as a patient, I would have had him visit the transplant center already and he would likely be listed. So, in my mind, all of that is way short of what I would characterize as maximal.

Id. (emphasis added); see also pg. 86:

Q. So, all of the treatments that you’re talking about, they’re all geared towards improving his life, and extending his life?
A. Exactly.
….

Q. Do you have an opinion regarding what JOHN DOE’ general state of health would be today if he were given the proper care dating back to 2008?
A. Yes. I think, unquestionably, he would be in an overall healthier state if all of the usual elements had been applied, that is, again, attention to blood pressure control, to calcium phosphorous and PTH metabolism and so on. I think his cardiac status would be healthier and that, alone, would be an enormous positive prognostic event.

Id. (emphasis added); see also pg. 88-92:

Q. I know I asked you whether, as you sit here today, whether or not JOHN DOE is at Maximum Medical Improvement. You said no. I want to ask you specifically about whether Mr. DOE was signed off of the ship at the end of 2009 and goes to the Cozumel Medical Center and he’s discharged on the blood medication, do you remember those records in that period?
A. Yes.

Q. At that time in, roughly, December of 2009, was JOHN DOE at maximum medical improvement, in your opinion?
A. No.

Q. Okay. And why not?
A. For several reasons: Number 1, his blood pressure had improved during the hospitalization, but blood pressure control is a very dynamic thing. It has to be monitored closely. I’ve seen nothing that suggests to me that his blood pressure was being monitored, that it was being watched closely, that medications were being adjusted if needed or that there was any care being taken to assure that he had access to those medicines and was, indeed, taking them. So that the whole blood pressure issue is one large one. I see no evidence that there was any attempt made whatsoever to deal with those ancillary issues. Bone mineral metabolism, heart issues, nutritional issues or making preparations to sort of plug him into this, this complex system of dialysis potential, transplant potential, I just saw no evidence that anyone was pointing him in that direction at all.

Q. Other than the blood pressure, the tight watch of the blood pressure monitoring, what other monitoring would JOHN DOE need as of that date of December 2009 when he was discharged from the Cozumel medical center?
A. Yes. I think sort of, as was alluded to earlier, at the very least, four visits a year to
a nephrologist familiar with these kinds of things so that blood pressure would be paramount, that calcium phosphorous parathyroid issues would be addressed each time, measured, responded to, phosphate binders initiated, when necessary, Vitamin D initiated, when necessary, along with continuing education as to dietary sodium, potassium and protein intake and the need to start addressing do we need to create a fistula for hemodialysis? Are we thinking peritoneal dialysis? Is there a family member who might be an appropriate donor, that is, a family member not affected by polycystic kidney disease? So, to me, just a total vacuum in terms of all of the usual things that we would do for patients like Mr. DOE.

Q. When he is discharged from the Cozumel Medical Center, you would agree that JOHN DOE still needed serious continuing medical care?
A. No question about it.

Q. Do you think it was, in your opinion, do you think it was reasonable for Royal Caribbean to conclude that JOHN DOE was at maximum medical improvement when he was discharged from the Cozumel Medical Center in December 2009?
A. I would character characterize that comment, basically, as ludicrous. It defines logic. You don’t have to be a doctor or a nephrologist. This is something anybody on the street, I think, would understand. He was in no way at maximum improvement, and I can’t imagine how anyone could even construe that. That takes a lot of brass.

Q. In light of the fact that we have not seen any further medical care provided by Royal Caribbean to JOHN DOE as of the date of his discharge from Cozumel Medical Center, do you have an opinion as to whether or not Royal Caribbean’s, the medical care given to him, fell below the standard of care?
In my mind, unquestionably below the standard of care.

Q. In all of the treatment that you’ve just talked about that he should have been having since he was discharged in 2009, while that treatment may not cure JOHN DOE, it’s all treatment that is specifically designed to improve his overall health, his quality of life and prevent the decline of his health?

Unquestionably, this shows that 1) on December 21, 2009, Plaintiff had not reached maximum medical improvement, 2) at present Plaintiff, still has not reached maximum medical improvement, and 3) that further medical treatment (including dialysis and transplant) will improve Plaintiff’s physical condition.

E. At all relevant times, RCCL willfully, callously and arbitrarily refused to provide Plaintiff with “maintenance and cure.” As a result, Claimant is entitled to an award of punitive damages and attorneys fees.

When the Defendant willfully and arbitrarily fails to pay maintenance or provide cure to a seaman up to the time that the seaman receives maximum cure, and such failure results in an aggravation of the seaman’s injury, then the seaman may recover damages for prolongation or aggravation of the seaman’s injury, pain and suffering, additional medical expenses incurred as as a result of the failure to pay, and reasonably attorney’s fees and costs. Eleventh Circuit Pattern Jury Instructions, 2005, pg. 366.

Therefore, in order to award additional damages to the Plaintiff for a willful failure of the shipowner to provide maintenance and cure, this Honorable Tribunal should find: 1) That the Plaintiff was entitled to maintenance and cure: 2) That it was not provided; 3) That the failure to provide maintenance and cure was willful and arbitrary; and 4) That such failure resulted in injury to the Plaintiff. Eleventh Circuit Pattern Jury Instructions, 2005, pg. 367.

First, as set forth above and as the evidence will show at the hearing, at all times material, the Claimant was entitled to maintenance and cure. His illness manifested while he was a seaman on the service of his ship. Moreover, such duty continues to this day, because he has not yet reached the point of maximum medical improvement; further medical treatment (such as dialysis and a transplant) will improve his physical condition – and particularly his kidney function.

Second, it is undisputed that since December, 2009, RCCL has not provided Plaintiff with maintenance and cure.

Third, the failure to provide Plaintiff with the necessary medical treatment, has aggravated his condition – such that now he is left with only 13% kidney function. Had RCCL provided him with dialysis or a transplant when it was supposed to, Plaintiff would have much higher kidney function, and as a result vast improvement of his physical condition.

RCCL’s failure to provide maintenance and cure has been willful and arbitrary. Recently, the United States Supreme Court in the case of Atlantic Sounding v. Townsend, 557 U.S. 404 (2009) reaffirmed a seaman’s right to an award of punitive damages and attorneys fees due to a ship-owner’s willful, callous and/or arbitrary refusal to provide maintenance and cure. See Atlantic Sounding, (Thomas, J.) (“Because punitive damages have long been an accepted remedy under general maritime law, and because nothing in the Jones Act altered this understanding, such damages for the willful and wanton disregard of the maintenance and cure obligation should remain available in the appropriate case as a matter of general maritime law.”)

As stated earlier, Plaintiff was discharged from the shore-side medical facility in Cozumel, Mexico on December, 2009. Thereafter, after numerous requests for medical treatment – and despite having no medical declarations that Plaintiff had reached maximum medical improvement – RCCL refused to provide Claimant with any maintenance and cure.

On January 18, 2010, the Plaintiff sent an e-mail to Mayling Fernandes, at RCCL shoreside headquarters, following up on two earlier phone calls requesting the company to provide him medical treatment. (Exhibit “4”). RCCL ignored it.

On January 21, 2010, the Plaintiff’s wife, sent another e-mail, demanding medical treatment (including treatment from a specialist) for her husband (Exhibit “5”):

I send this e-mail because I am very concern about the Health of my sick husband, Mr. JOHN DOE who was sent home from Mexico after he spent a few Weeks at the Cozumel medical centre. He’s not assigned to a doctor by the RC.C.L., no medical report was given to him so a doctor here can know what to do, his medication run out, I know he needs further medical attention, there are outstanding gratuity for him aboard the ship he works, my husband has to see a neurologist which he don’t have in St. Vincent because we are lack of basic medical facilities. Are we being neglected?

Faithfully yours,
Mrs. DOE.

Once again, RCCL ignored it.

On March 11, 2010, Royal Caribbean reached out to Claimant – forty days after his initial demands for medical treatment. Rather than providing him with the treatment he need, however, Royal Caribbean offered to settle his claims for $10,000 USD. (Exhibit “6”). This is dispositive of the issue of “callous and willful” refusal to provide maintenance and cure. Indeed, offering the Claimant $10,000 to settle his case (before any lawsuit was filed), constitutes an admission by RCCL that it was in fact liable and responsible for payment of maintenance and cure.

On July 10, 2010, Counsel for Claimant sent another request to RCCL demanding payment of its maintenance and cure obligations. (Exhibit “7”). Once again, RCCL ignored the Claimant’s demands.

On July 21, 2010, 6 months after Plaintiff’s initial demands for medical treatment, RCCL acknowledged the requests for maintenance and cure, and arbitrarily denied them. In the acknowledgement, an RCCL adjuster stated that Plaintiff had reached maximum medical cure. However, RCCL made the statement without a single medical declaration to support it. (Exhibit “8”).

As stated earlier, in support of the argument that Plaintiff has reached “maximum medical improvement,” RCCL relies entirely on a one-page medical report, dated December 21, 2009, issued by a shore side medical facility in Cozumel, Mexico (Exhibit “3”). RCCL’s reliance on this document, however, is unfounded.

First, the report does not contain a single declaration placing the Claimant at “maximum medical improvement.” In fact the terms “maximum medical improvement”/”maximum medical cure” are entirely absent from the report. Second, nothing in the report says that further treatment will not improve Claimant’s condition.

To the contrary, the December 2009 report only shows a diagnosis for high blood pressure, polycystic kidney disease and assesses that the “[p]atient is unfit for his current work.” (Exhibit “3”). See also Deposition Testimony of Dr. Lawrence Byrd (Exhibit “4”), pg. 91:

Q. Do you think it was, in your opinion, do you think it was reasonable for Royal Caribbean to conclude that JOHN DOE was at maximum medical improvement when he was discharged from the Cozumel Medical Center in December 2009?
A. I would character characterize that comment, basically, as ludicrous. It defines logic. You don’t have to be a doctor or a nephrologist. This is something anybody on the street, I think, would understand. He was in no way at maximum improvement, and I can’t imagine how anyone could even construe that. That takes a lot of brass.

In sum, it is clear that at all relevant times, RCCL willfully, callously and arbitrarily refused to provide Plaintiff with “maintenance and cure.” As a result, Claimant is entitled to an award of punitive damages and attorneys fees.

5. COUNT II: RCCL IS LIABLE FOR FAILING TO PROVIDE PLAINTIFF WITH PROPER, PROMPT AND/OR ADEQUATE MEDICAL CARE. AT ALL RELEVANT TIMES, RCCL’S TREATMENT FELL BELOW THE STANDARD OF CARE.

A seaman’s employer has a duty to promptly provide adequate emergency medical care, as is reasonable under the circumstances, for an injured seaman. Aung Lin Wai v. Rainbow Holdings, 350 F. Supp. 2d 1019 (S.D. Fla. 2004) (analyzing a seaman’s failure to treat count), citing Garay v. Carnival Cruise Line, Inc., 904 F. 2d 1527, 1533 n. 6 (11th Cir. 1990); see also Barlow v. Pan Atlantic S.S. Corp., 101 F. 2d 697, 698 (2d Cir. 1939) (A seaman’s cause of action for “failure to provide prompt, adequate and proper medical treatment” is a negligence claim against the employer).

Here, the evidence will show that at all relevant times, RCCL’s treatment fell below the standard of care. See, i.e. Deposition Testimony of Dr. Lawrence Byrd (Exhibit “4”), pg. 82:

Q. You talked about that it was your opinion that the blood pressure control was sub-optimal to poor control and we looked at records going back to 2007 or, actually, 2008 when there was high blood pressure. Leading up to the point when he’s admitted to the facility in Cozumel and then him having uncontrolled blood pressure, do you have an opinion as to whether or not the control of his blood pressure during that period of time, based on what you’ve seen, fell below the standard of care?
A. Yes. I would say unquestionably it was.