Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 1 of 11 PageID #: 514 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT PADUCAH

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1 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 1 of 11 PageID #: 514 DONNA TINDLE, Administrator of the Estate of JIMMIE W. TINDLE, Plaintiff, UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT PADUCAH -vs- Case No.: 5:14-cv-110-TBR HUNTER MARINE TRANSPORT, INC. Defendant. DEFENDANT S TRIAL BRIEF Introduction Plaintiff Donna Tindle brought this action against Defendant Hunter Marine Transport, Inc. (hereinafter "Hunter Marine"), asserting claims under the Jones Act, 46 U.S.C. Sec , and the general maritime law of the United States, seeking damages as a result of her husband s death from a fatal asthma attack on April 25, 2014 aboard the M/V ELIZABETH ANN. Hunter Marine s Position Hunter Marine denies the allegations of negligence and the allegations of unseaworthiness. Hunter Marine provided a safe place for Tindle to work and a vessel that was fit for its intended purpose. Mr. Tindle s death resulted from a rare, severe, and unexpected asthma attack, rather than any fault of Hunter Marine. If fault must be assigned, it was the decedent who: (1) failed to bring sufficient medicine with him, (2) unnecessarily exposed himself to allergies by fishing the day before his death, and (3) decided against obtaining medical care on shore, which was available to him. Such negligence of Plaintiff was the exclusive or major contributing cause of his injuries. Defendant also denies Plaintiff sustained damages as a result of the alleged incident to the extent claimed by Plaintiff. 1

2 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 2 of 11 PageID #: 515 Statement of Facts In April, 2013 Tindle sought employment with Hunter as a chief engineer aboard its river towboats. As part of a pre-employment physical, Hunter required Tindle to obtain certification from his treating pulmonologist, Dr. John Forman, that he was able to work in this position notwithstanding his asthma. Dr. Forman assured Hunter that Tindle was able to do so: Mr. Tindle has been a patient of mine since 2010 and he has been treated for asthma that has been well controlled. He has rare episodes of exacerbations that are easily managed. He is on controller medicine for his asthma and rarely uses a rescue inhaler. He travels extensively at sea and we have always been able to manage his asthma without difficulty. It is my impression that Mr. Tindle is able to work as an engineer on a barge. If there is any question in this regard, please feel free to contact my office. Hunter subsequently hired Tindle. About one year into his employment, Tindle boarded the M/V ELIZABETH ANN in early April, 2014 to begin a regular 28-day trip. When Tindle boarded ELIZABETH ANN, he confirmed that he was not aware of any physical condition that may impair his ability to perform his job duties while aboard the vessel; he also disclosed that he was bringing a pro-air inhaler aboard the boat. Between 9 and 11 a.m. on April 24, Tindle spoke with Captain Milam about pollen aggravating his asthma. Tindle did not request or even suggest that he get off the vessel, and Captain Milam observed that Tindle looked fine. Tindle fished from the tow of barges later that day while the vessel waited at Cumberland City, Tennessee (mile 103 of the Cumberland River) for additional empty barges for its tow. Throughout the day, Tindle seemed to be normal. Early the next morning (between 5-6 a.m.), Tindle talked with cook Maggie Just. Tindle told Just that he was not feeling well. Just told him he should get off the boat if he was not 2

3 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 3 of 11 PageID #: 516 feeling well, but Tindle said that he didn t want to get off [the boat]. Id. Tindle s friend and co-worker Kaleb Kline was boarding the boat that day and Tindle said he wanted to ride with Kaleb for a little while so he would get off at Kentucky dam. Kentucky dam was approximately 12 hours away from the vessel s location at that time. Around 10:30 a.m. Tindle told Captain Milam that he was thinking about getting off [the vessel] but he had some medication that he was going to get at Kentucky Lock. Captain Milam asked Tindle whether he wanted to get off the vessel while the boat was stopped at Cumberland City, but Tindle said he wanted to stay on the boat. Captain Milam told Tindle to let him know if Tindle needed him to do anything. Captain Milam never heard Tindle wheeze at all and believed Tindle looked fine, other than being a little more tired. Between noon and 1 p.m. that afternoon, Tindle called his usual replacement, Ronald Cato, to see if Cato could replace Tindle early. Tindle told Cato that he was having some trouble breathing, but that it was no big issue. Cato testified that Tindle did not act like he was in distress or anything. Around 1:10 p.m. on April 25, Tindle's wife Donna phoned Dr. Forman's office and requested a prescription for his asthma medication. The documentation from Dr. Forman s office states that he is "out on the boat, will be coming on shore this weekend, needs something called in, and can't afford not to work." Dr. Forman's office called in a prescription for Prednisone. This was not the first time that Tindle failed to bring sufficient medication with him. Around 3:30 p.m. on April 25, plaintiff Donna Tindle called Hunter Marine and spoke to its Safety Manager Jonathan Bennett. She told Bennett that her husband was having some breathing difficulties on the boat and that his doctor had called in a prescription that she wanted Hunter Marine to pick up and deliver to the boat. Despite suggesting that Mr. Tindle should get 3

4 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 4 of 11 PageID #: 517 off the boat, Mrs. Tindle stated that he did not want to off the boat, but instead simply wanted his medication. Bennett picked up the medication for Mr. Tindle that afternoon. At 4:07 p.m. that same day, Tindle called deckhand Kaleb Kline (who had boarded the vessel hours earlier) to request help in his room. Kline and another deckhand, Jonathan Welker, went to Tindle s room and observed him breathing heavily. Kline told Welker to alert the pilothouse. Tindle asked Kline to administer an EpiPen (epinephrine autoinjecter) into his thigh in the event he passed out and explained to Kline how to do so. Tindle soon passed out in Kline s arms and Kline administered the EpiPen. Captain Milam who was off watch sleeping in his room was immediately awakened and notified that Tindle needed help. Captain Milan went directly to Tindle s room and found Kline next to Tindle, who was unconscious. Captain Milam s first action was to call 911. Emergency dispatchers received Captain Milam s call for help at 4:13 p.m., six minutes after Tindle had phoned Kline. The crew next brought the vessel s automated external defibrillator (AED) and connected it to Tindle. Captain Milam also directed the pilot on watch, Robert Patterson, to maneuver the towboat and tow of 15 empty barges to the closest location (Linton boat ramp) where emergency responders could access the vessel. At the time, the towboat was located at mile 75 on the Cumberland River, just two miles away from that location. The EMTs arrived at Linton at 4:35, following their drive of 18.9 miles to the remote location along the river. The crew picked up the EMTs from the ramp in a jon boat and took them to the ELIZABETH ANN, where they went immediately to Tindle s room at 4:48 p.m. Tindle was still connected to the AED, and the crew was performing CPR. The EMTs took over CPR, but they could never detect a pulse. EMTs stopped all life-saving efforts at 5:16 p.m. 4

5 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 5 of 11 PageID #: 518 Legal Issues Plaintiff s evidence fails to meet her burden of proof to establish liability against Hunter Marine. Hunter Marine acted reasonably and in accordance with established standards in the marine industry. A. The Jones Act Claim For Plaintiff to recover under the Jones Act, 46 U.S.C et seq., she must prove the Defendant was negligent and that its negligence caused the injury. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997); Del Valle v. Marine Transport Lines, Inc., 582 F.Supp. 573, 577 (D.P.R. 1984); In re Atlas Petition, 350 F.2d 592 (7th Cir. 1965). Plaintiff's evidence falls woefully short of meeting her burden of proof. B. Doctrine of Seaworthiness Under the doctrine of seaworthiness, Hunter Marine, as vessel owner and/or operator, had a duty to furnish its employees a vessel and appurtenances reasonably fit for their intended use. Hunter Marine, however, is not obligated to furnish an accident-free boat. The standard is reasonable fitness, not perfection. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926 (1960). Where the equipment, appurtenances, crew, cargo, and gear of the vessel are not defective, no liability for seaworthiness can exist. Earles v. Union Barge Line Corp., 486 F.2d 1097, (3rd Cir. 1973). In order for the Plaintiff to recover under the doctrine of seaworthiness, she must specifically prove Tindle's death was caused by some unseaworthy condition of the M/V ELIZABETH ANN. Caldwell v. Manhattan Tankers Corp., 618 F.2d 361 (5th Cir. 1980). C. Liability The Plaintiff bears the burden of proving that Tindle's death was caused by the negligence of Defendant or the unseaworthiness of its vessel. In re Marine Sulphur Queen, 460 F.2d 89, 99 (2d 5

6 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 6 of 11 PageID #: 519 Cir. 1972); Gaddis v. Orgulf Transport Co., 680 F.Supp. 1279, 1284 (S.D. Ill. 1988). The Defendant is entitled to a directed verdict under the Jones Act, 46 U.S.C , if the Plaintiff fails to submit sufficient evidence from which a jury could reasonably infer the injury was caused by negligence on the part of the Defendant. Traupman v. American Dredging Co., 470 F.2d 736, 738 (2nd Cir. 1972). Moreover, maritime law is well-established that mere proof that an injury occurred is not evidence of anyone's negligence. Id. Similarly, where there is no evidence that any injury the plaintiff may have sustained was caused by the unseaworthiness of the vessel, a defendant is entitled to an entry of judgment by the Court barring the plaintiff from obtaining recovery under the doctrine of unseaworthiness. Reinhart v. U.S., 457 F.2d 151, 153 (9th Cir. 1972). [A] Jones Act employer owes its employees a duty to exercise reasonable care to furnish such aid as ordinarily prudent persons would under similar circumstances to an injured or ill seaman ; however, the employer will not be held responsible for an error of judgment on the part of [vessel s] officers, if their judgment is conscientiously exercised with reference to existing conditions. Champ v. Marquette Trans., 2014 WL at *27 (citations omitted). In Champ, the Court declined to grant summary judgment on this particular claim because plaintiff had evidence of defendant's delay in responding to plaintiff's requests that the captain call for emergency responders in securing emergency medical treatment. However, in contrast to Champ, where the crewmember had made a request to get off the boat that was not promptly granted, the undisputed evidence here is that Tindle never requested to get off the vessel. While that opportunity was offered or suggested to him on multiple occasions, the evidence is undisputed that he repeatedly rejected the opportunity to get off the boat. The court s grant of summary judgment Decker v. Oglebay Norton Marine Services Co., 517 F.Supp.2d 991 (N.D. Ohio 2007) is instructive and involved the same arguments and 6

7 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 7 of 11 PageID #: 520 plaintiff s counsel as here. In Decker, the plaintiff was a seasoned sailor who suffered a fatal heart attack aboard a vessel while it was docked at a fuel dock. The day before his fatal heart attack, decedent was offered the chance to disembark the vessel because he looked exhausted, but he declined to do so because he wanted to qualify for overtime pay. Decker s counsel argued that the shipowner should have known better than the seaman about his health and well-being and forced him to depart the vessel, but the court rejected this argument: Plaintiff also implies that the captain of the M/V Fred R. White Jr., owed Decedent a duty to force him to knock off from work despite his expressed preference to remain aboard the ship for overtime. The Court finds no support for such an apparently boundless obligation. Id. at 998. In this Circuit, the mere fact that Tindle may have looked exhausted or tired fails to evoke Defendant s medical duty as a matter of law. Id. The same result is warranted here because the law should not require a ship owner to overrule a seasoned mariner s decisionmaking about his longstanding personal medical condition, such as asthma. To fashion such a duty would create the boundless obligation that the Decker court correctly found lacked support in the law. Even assuming that Captain Milam made an error in judgment in abiding by Tindle s desire to stay aboard the boat, which Hunter vehemently denies, such a judgment was conscientiously exercised under existing conditions and, therefore, cannot be the basis of liability. Champ, 2014 WL at *27 (citations omitted). The result in Decker summary judgment against the seaman--is supported by wellestablished law. Barlow v. Pan Atlantic S.S. Corp., 101 F.2d 697 (2 nd Cir. 1939)(first aid treatment is all that can reasonably be expected from officers of a vessel having no professional doctors, when the seaman protested against being sent to a hospital); Carleno v. Marine Transport Lines, Inc., 209 F.Supp. 859 (E.D. VA. 1962); Pappas v. The Tanker Eurynome, 1964 A.M.C (E.D. VA 1963). 7

8 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 8 of 11 PageID #: 521 Like they did in Decker, plantiff s counsel cites to The Iroquois, 194 U.S. 240 (1904) to suggest that Hunter should have somehow known better than a seasoned mariner about his personal medical condition and forced plaintiff to depart the vessel against his will. However, the facts of The Iroquois readily distinguish it from this case. The Iroquois involved a traumatic (as opposed to a longstanding and well-managed personal medical condition) injury aboard a vessel at sea that resulted in a young seaman breaking his leg and ribs. The ship s officer knew about the serious nature of the injury, whereas the injured seaman was a boy, largely ignorant of his rights and duties. Unlike the young, ignorant boy in The Iroquois, Tindle was a seasoned mariner with many years of experience managing his asthma and who declined Captain Milam s offer to depart the vessel sooner. Moreover, no one including Tindle himself recognized the serious nature of such a rare and fatal asthma attack until it was too late. In the present case, the evidence will not support Plaintiff s claim that Tindle s death was caused by the negligence of Hunter Marine and/or the unseaworthiness of the M/V ELIZABETH ANN. D. Contributory Negligence Maritime law is well-settled that contributory negligence eradicates or mitigates an employer's liability under the Jones Act when an injured seaman's negligence causes or contributes to cause his alleged injury. Perkins v. American Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th Cir. 2001). The standard for causation for purposes of contributory negligence is whether Plaintiff s negligence was a cause, in whole or in part, of the injuries. Norfolk Southern Ry. Co. vs. Sorrell. 549 U.S. 158 (2007). Similarly, the proportionate negligence of the seaman applies to reduce any damages awarded under the doctrine of unseaworthiness. Scott v. Fluor Ocean Services, Inc., 501 F.2d 983, 984 (5th Cir. 1974). 8

9 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 9 of 11 PageID #: 522 When a seaman is the cause of his or her own misfortune, they will be barred from recovery. Boudreaux v. Seadrilling Corp., 427 F.2d 1160, 1161 (5th Cir. 1970); Gaddis, supra 680 F.Supp. at 1281; Keel v. Greenville Midstream Service, Inc., 321 F.2d 903, 904 (5th Cir. 1963). The Plaintiff's duty is to exercise ordinary care for his or her own safety. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997); United States v. Waterman Steamship Corp., 190 F.2d 499 (5th Cir. 1951); Fontenot v. Teledyne Movable Off-Shore, Inc., 714 F.2d 17 (5th Cir. 1983). [T]he standard of conduct to which he must conform is that of a reasonably prudent person. If [he] subjects himself to danger which should have been anticipated and is injured thereby, he is guilty of contributory negligence. Curry v. U.S., 327 F.Supp. 155, 165 (N.D. Cal. 1971). If the seaman chooses an unsafe course of action when a safe alternative is available, that choice constitutes contributory negligence. Shipman v. Central Gulf Lines, Inc., 709 F.2d 383 (5th Cir. 1983). A seaman has a duty to act reasonably to protect himself from harm and will be held to be contributorily negligent if they places himself within a zone of danger which is unnecessary to perform his job. Waterman, supra; In re Valley Line Co., 564 F.Supp. 612 (E.D. Mo. 1983). Where a seaman knowingly exposes himself to conditions of employment while aware of an illness or disability which makes those conditions unsafe to him, or where a seaman has the possibility of securing relief from unsafe conditions by informing his superiors of them, but continues to work without doing so, he may be found to be contributorily negligent. Savoie v. Otto Candies, Inc., 692 F.2d 363, 372 (5 th Cir. 1982). The evidence in the present case will demonstrate that plaintiff cannot meet her burden of proof to establish liability against Hunter Marine. However, if the jury finds in Plaintiff's favor and makes an award to her, any such award must be reduced by the jury's determination of the percentage of contributory negligence on the part of Jimmie Tindle himself. 9

10 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 10 of 11 PageID #: 523 E. Plaintiff s Alleged Damages The Court has already granted partial summary judgment to Hunter Marine on most of the categories of damages sought by plaintiff. The only pecuniary damages available to plaintiff for her husband s death recognized by maritime are: (1) lost of support; (2) decedent s conscious pain and suffering; and (3) funeral expenses. Because Hunter Marine voluntarily paid for Mr. Tindle s funeral and he lost consciousness shortly after calling for help, lost support is the only type of damages available to plaintiff. Conclusion Hunter Marine believes that the evidence and law will demonstrate that Plaintiff will not establish a submissible case under any theory. Accordingly, the Court should sustain Hunter Marine's Motion for Judgment as a Matter of Law to be made at the close of Plaintiff's evidence and/or the close of all evidence and enter judgment in favor of Hunter Marine Transport, Inc. Respectfully submitted, GOLDSTEIN and PRICE, L.C. By:/s/ Robert Nienhuis Robert Nienhuis (KY Bar # 93026) Neal W. Settergren One Memorial Dr., Suite 1000 St. Louis, Missouri Telephone: (314) Fax: (314) Robert@gp-law.com Attorneys for Defendant Hunter Marine Transport, Inc. 10

11 Case 5:14-cv TBR-LLK Document 63 Filed 05/06/16 Page 11 of 11 PageID #: 524 CERTIFICATE OF SERVICE The undersigned certifies that on this 6th day of May, 2016, a copy of the foregoing was served via the court's electronic filing system upon all counsel of record. /s/ Robert Nienhuis 11