RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 1999 FED App. 0168P (6th Cir.)
File Name: 99a0168p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
Michael G. Olsen,
Plaintiff-Appellant,
No. 98-1030
v.
American Steamship Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 96-00767 Robert Holmes Bell, District Judge.
Argued: February 5, 1999
Decided and Filed: May 12, 1999
Before: SILER, BATCHELDER, and COLE, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael J. Conner, JAQUES ADMIRALTY LAW FIRM, Detroit, Michigan, for
Appellant. Thomas W. Emery, GARAN, LUCOW, MILLER & SEWARD, Detroit,
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No. 98-1030
Michigan, for Appellee. ON BRIEF: Michael J. Conner, Robert J. Allen, JAQUES
ADMIRALTY LAW FIRM, Detroit, Michigan, for Appellant. Thomas W. Emery, David
M. Shafer, Allison L. Hoff, GARAN, LUCOW, MILLER & SEWARD, Detroit, Michigan,
for Appellee.
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OPINION
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R. GUY COLE, JR., Circuit Judge. Plaintiff Michael Olsen filed suit
under the Jones Act, 46 U.S.C. 688 et seq., and under general admiralty law
against defendant American Steamship Co. seeking damages relating to a heart
attack he suffered while in the company's employ. Specifically, Olsen alleged
that the ship on which he served was unseaworthy and that the defendant was
negligent because it breached its duty to provide prompt and adequate medical
care. Following a jury verdict in favor of the defendant, Olsen brings this
appeal. Most notably, he asserts that the district court erred by limiting
the testimony of one of his expert witnesses. For the following reasons, we
AFFIRM the judgment of the district court.
I.
On the morning of July 5, 1995, while his ship the M/V Sam Laud was
docked in the port of Waukegon, Illinois, deckhand Michael Olsen and another
shipmate were asked to work overtime cleaning the ship's cargo holds, which
Olsen described as a nasty job.{1} A Great Lakes freighter, the M/V
_________________
{1} A deckhand's duties on the M/V Sam Laud generally include assisting in
the loading and unloading of cargo, mopping decks, cleaning windows, and
painting. Olsen worked two four-hour watches -- i.e. shifts -- each day. His
was the 4:00 to 8:00 watch, meaning that Olsen was on duty for these hours in
both the morning and the evening. Overtime was apparently a regular
occurrence. However, the ship's second mate testified at trial that Olsen
could have declined overtime if he wished, and that if Olsen was experiencing
illness or fatigue he could have quit working at any time.
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Sam Laud carries in its five holds gypsum, sand, and other raw materials mined
in the region. During the process of off-loading, the holds' pitched sides
vibrate to shake the cargo down to a conveyor belt. This procedure is not
perfect, however. Some cargo invariably sticks in the holds' nooks and
crannies, requiring deckhands to climb down fifty-foot ladders to remove it
manually, usually with garden hoes. Each deckhand wears a safety belt and,
upon reaching the bottom of a hold, clips the belt on to one of various chains
located throughout the space so that he can safely clamber around the sloped
sides knocking cargo down to the bottom.
As Olsen and his partner began this work, the temperature inside the
poorly ventilated holds was a humid 100-plus degrees. The cargo that day was
particularly sticky, and Olsen and his partner were asked to re-enter some of
the holds because some of the cargo they knocked down adhered to the
conveyors. These conditions, while difficult, were apparently not unusual.
The men could take a break whenever they needed, and they had water both to
drink and pour over themselves.
At some point while performing this task, Olsen began to feel ill. Up
on the deck, he walked over to a vent, hoping to cool off. The ship's captain
happened by and asked Olsen if he was all right. Olsen said that he thought
so. At trial, he testified that, in fact, he was unconcerned about his
symptoms at this point, believing that his malady would clear up. After Olsen
had rested for a while, he re-entered the holds to finish the job. When it
was complete, Olsen went back to the same spot on the deck. After sitting
there for a while, he discovered that he could not pick his head up off his
chest. Olsen informed the watchman (i.e. his supervisor) that he would be
unable to continue working (the next task was to wash down the holds) and
returned to his quarters.
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Olsen did not work his next watch. The ship set sail, but before it
arrived in its next port, Grand Haven, Michigan, third mate Kenny Bellmore
informed Olsen that the captain was taking Olsen to see the doctor. At the
North Ottawa Community Hospital, Olsen complained of the following symptoms:
aching teeth, prickly arms, a burning sensation in his chest, and difficulty
walking. Dr. L. Michael Sterenberg concluded, after examining Olsen, that he
was dehydrated. The doctor gave Olsen an intravenous saline solution, telling
him to drink lots of fluids and to take it easy for a day.{2}
Olsen reported that he felt better after he received the fluids. When
he returned to the vessel, the morning of July 6, it was almost time for his
morning watch, but he was allowed to rest. Olsen did not tell the captain or
anyone else that he was unfit for duty, although he did tell the captain that
he was "still not normal." At around 4:00 p.m., Olsen was asked to perform
his afternoon watch. The ship was underway again, and he was assigned the
duty of painting the smokestacks. The temperature near the stacks was close
to two hundred degrees.{3} Olsen felt very weak, and after about a half hour
or so of painting, he and his watchman agreed that "this is too much and we
kind of wrapped 'er up." Olsen went to the ship's fantail to cool off but
cannot remember if he performed any other duties on that watch. The next
thing he can remember is helping to tie up the ship as it unloaded cargo, from
about 8:00 p.m. to 4:00 a.m., at Zilwaulkee, Michigan. This was a difficult
task, requiring Olsen and at least one other crewman to row ashore repeatedly
-- in this case in the rain -- and find a tree, rock, or "official spile" to
tie onto, and
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{2} Olsen contends that Dr. Sterenberg originally listed him as unfit for
duty on a form provided by American Steamship, but changed the diagnosis at
the request of the ship's captain. There is absolutely no support for this
contention in the record.
{3} Olsen insisted this was not a hyperbolic figure. The ship's two engines
were running and, thus, the stacks were in use. He was using a special, high-
temperature paint "you can use for hot things like your blacking of your wood
stoves or such."
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No. 98-1030
then row back. After this task was completed, Olsen worked his regular
morning watch.
From Zilwaulkee, the ship sailed to East Tawas, Michigan, which is four
or five hours away. Still feeling sick, Olsen requested vacation time. He
called his girlfriend Laura Standen, who was in Petoskey, Michigan, and asked
her to pick him up. She testified that when she arrived, she wanted to take
him to the hospital that night, but he refused. Olsen promised her, however,
that he would go in the morning if still not feeling well. They drove back to
Petoskey that night, and the next morning, July 8, he went to Northern
Michigan Hospital. Doctors there diagnosed him as being in the throes of a
heart attack. Olsen had open-heart surgery. Since then, he has been unable
to work as a seaman or perform any other physical labor.
Olsen filed this lawsuit on September 23, 1996, alleging that the M/V
Sam Laud was unseaworthy and that the American Steamship Co. violated its duty
to provide prompt and adequate medical care to Olsen. On November 10, 1997,
the district court held a final pretrial conference and signed off on the
parties' Proposed Joint Pretrial Order. The court ordered the parties to
submit pretrial briefs, and they did so on December 1, 1997. The parties also
each submitted proposed jury instructions and a statement of the case. A jury
trial began on December 15, 1997. The jury returned a verdict in favor of the
defendant on December 17, 1997. This timely appeal followed.
II.
The main issue in this appeal is whether the district court erred by
limiting the testimony of Dr. Helen H. Winkler, one of Olsen's expert
witnesses. Specifically, the court did not allow Dr. Winkler to answer three
questions relating to potential negligence on the part of Dr. Sterenberg: 1)
"[T]o an internist, what do [the symptoms that Olsen presented at North Ottawa
Community Hospital] classically represent;" 2) "Would it have been prudent
to have an EKG administered at that time;" and, 3) in reference to Dr.
Sterenberg's certifying
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No. 98-1030
Olsen fit for duty, should "a person presenting . . . the symptoms as you've
described, as well as the knowledge of the tests that were not performed . . .
be returned to work with those conditions present." The district court
concluded that Dr. Sterenberg's negligence was not properly before the jury
and that the questions posed were therefore irrelevant.
"A trial court's decision to exclude evidence is reviewed for abuse of
discretion." Sutkiewicz v. Monroe County Sheriff, 110 F.3d 352, 357 (6th
Cir.1997). This court will not disturb the discretion of the trial court
"unless the reviewing court finds that the ruling excluding the evidence is
not only erroneous but results in substantial injustice to the aggrieved
party." Id. In order to evaluate whether the district court so erred, we
must first briefly examine various admiralty law causes of action. There are
three causes of action generally available to a seaman who becomes sick or
injured while in service of his or her vessel. First, the seaman may bring an
action for maintenance and cure, in which he or she seeks wages plus
reimbursement for medicine, treatment, and other expenses relating to his
injury. This is admiralty law's original remedy; similar ones are found in
the Laws of Oleron, published in the 12th Century, and in other ancient codes.
See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 543 (1960); 1B Benedict on
Admiralty, 41 et. seq. (1997). Olsen did not bring such a claim here,
however. Second, the seaman may bring an unseaworthiness action, a strict
liability claim alleging that the defendant shipowner failed to provide a
vessel reasonably fit for its intended use. See Miles v. Apex Marine Corp.,
498 U.S. 19, 25-26 (1990); Mitchell, 362 U.S. at 543-49 (providing an
excellent history of the unseaworthiness action); see generally 1B Benedict on
Admiralty, 23-31 (1997). Olsen brought an unseaworthiness claim, but it is
not relevant to the exclusion of Dr. Winkler's testimony.
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No. 98-1030
Finally -- and this is relevant -- a seaman may bring a negligence
action under the Jones Act, 46 U.S.C. 688.{4} See generally 1B Benedict on
Admiralty, 21-22 (1997) (noting that although the cause of action has
assumed less importance since the rise of the warranty of seaworthiness in the
1950's and 1960's, "Jones Act negligence is not, however, dead"). A shipowner
owes several duties to a ship's crew; chief among them for the purposes of
this case is the duty to provide prompt and adequate medical care to a sick or
injured crewman. See Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527, 1533
(11th Cir. 1990); De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 140 (5th
Cir. 1986); Joyce v. Atlantic Richfield Co., 651 F.2d 676, 685 (10th Cir.
1981); Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 679 (2nd Cir. 1971).
Its measure depends upon the circumstances of each case -- the
seriousness of the injury or illness and the availability of aid.
Although there may be no duty to the seaman to carry a physician,
the circumstances may be
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{4} The Jones Act "makes applicable to seamen injured in the course of their
employment the provisions of the Federal Employers' Liability Act [FELA], 45
U.S.C. 51-60, which gives to railroad employees a right of recovery for
injuries resulting from the negligence of their employer, its agents, or
employees." De Zon v. American President Lines, 318 U.S. 660, 665 (1943).
Specifically, the Jones Act's 46 U.S.C. 688 provides that:
Any seaman who shall suffer personal injury in the course of his
employment may, at his election, maintain an action for damages at
law, with the right of trial by jury, and in such action all
statutes of the United States modifying or extending the
common-law right or remedy in cases of personal injury to railway
employees shall apply.
FELA's 45 U.S.C. 51, in turn, provides that:
Every common carrier by railroad . . . shall be liable in damages
to any person suffering injury while he is employed by such
carrier . . . for such injury or death resulting in whole or in
part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its . . . equipment.
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Olsen v. Am. Steamship Co.
No. 98-1030
such as to require reasonable measures to get him to one, as by
turning back, putting into the nearest port although not one of
call, hailing a passing ship, or taking other measures of
considerable cost in time and money.
De Zon v. American President Lines, 318 U.S. 660, 667 (1943); Joyce, 651 F.2d
at 684. The shipowner's potential liability does not end once the owner gets
a crewman to treatment, however. If a ship carries a doctor, the shipowner
is vicariously liable for the physician's negligence. See De Zon, 318 U.S. at
665. Similarly, the shipowner is liable for the negligence of an on-shore
physician that it hires to treat a crewman. See De Centeno, 798 F.2d at 140
(shipowner liable where vessel's agent arranged for De Centeno to see local
physician who negligently failed to recognize De Centeno's signs of diabetes
and therefore failed to order blood test, where proper diagnosis could have
avoided diabetic coma and death); Fitzgerald, 451 F.2d at 679 (stating that
shipowner is liable for the negligence of the doctor it selects); Central Gulf
S.S. Corp. v. Sambula, 405 F.2d 291, 299 (5th Cir. 1968) (shipowner liable for
negligently selecting general practitioner, rather than ophthalmologist, who
misdiagnosed and mistreated plaintiff's eye injury); Admiralty Overseas Corp.
v. United States, 433 F.Supp. 419, 421 (N.D. Cal. 1977) ("Doctors who are
hired by the shipowner to provide care for seamen are . . . agents of the
shipowner, and the shipowner is liable for the malpractice of the doctor.");
cf. Garay, 904 F.2d at 1533 (noting that although plaintiff had alleged
failure to provide prompt and adequate care, plaintiff had not alleged that
treatment provided was "negligent or inadequate").
To recapitulate, then, there are two ways that a shipowner can violate
the duty to provide prompt and adequate medical care: directly, such as when
the shipowner fails to get a crewman to a doctor when it is reasonably
necessary and the ship is reasonably able to do so; and vicariously, when the
shipowner selects a doctor who acts negligently. The questions that the
district court excluded relate solely to the latter theory. The reason that
we conclude that the district
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court did not err in excluding these questions is that Olsen's attorneys
inexplicably{5} developed only the former theory before they called Dr.
Winkler to the stand.
Olsen's complaint generally alleged that "Defendant owed plaintiff the
duty of providing medical care subsequent to Plaintiff's myocardial
infarction" and that "Defendant failed to provide prompt and adequate medical
care resulting in delay of medical treatment and subsequent aggravation of
injury." We will assume, without so deciding, that under the rules of notice
pleading that this broad averment was sufficient to raise a claim for either
direct or vicarious breach of defendant's duty to provide prompt and adequate
medical care. See Fed. R. Civ. P. 8(a). The parties' proposed pretrial
order, which the court adopted, was as vague as Olsen's complaint -- it listed
as an issue for trial "[w]hether the Defendant . . . was negligent in the
manner claimed by Plaintiff." None of Olsen's later submissions to the
district court, however, even obliquely alleged negligence on the part of Dr.
Sterenberg. Because, as the district court noted, Olsen's complaint was
"really very sketchy,"{6} the court requested pretrial briefs two weeks before
trial "so [the judge would] know what this case was about." Plaintiffs
pretrial brief focused solely on the direct theory of failure to provide
medical care. It states:
Mr. Olsen was stricken at approximately 2:00 p.m. on July 5th
while in the port of Waukegon, Illinois. No medical treatment was
rendered to him until the vessel reached Grand Haven, Michigan,
ten (10) hours later. Bruce Dunlap, the mate in charge at the
time Mr. Olsen became ill, testified that he checked on Mr. Olsen
only one time in the interim. Following emergency room
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{5} "Inexplicably" because, in an October 7, 1997 letter, Dr. Winkler
informed plaintiff's Jaques Admiralty Law Firm that she was prepared to
testify that Olsen in fact suffered a heart attack on July 5, 1994 i.e.,
before he was treated by Dr. Sterenberg, who found only dehydration.
{6} To which Olsen's counsel responded, "I know."
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treatment in Grand Haven, Plaintiff was put back to work and no
further treatment was rendered notwithstanding his continuing
complaints. The medical evidence is clear: Plaintiff's heart
attack was the result of his hard physical labor in the
intervening days he remained aboard Defendant's vessel. Plaintiff
is entitled to compensation is allowed [sic] for pain and
suffering during the delay caused by Defendant shipowner's failure
to render medical attention to an injured seaman.
Plaintiff's statement of the case alleges that "Defendant's vessel the M/V Sam
Laud was not seaworthy as a result of Defendant's failure to provide crewmen
equal and competent to their calling to ensure that Plaintiff had adequate and
timely medical assistance with an opportunity to recuperate pursuant to the
instructions of the emergency room doctor prior to engaging in further
duties." The document seems to imply, then, that Dr. Sterenberg's treatment
was in fact not negligent -- it asserts that the defendant's breach was
failing to follow Dr. Sterenberg's instructions with regard to rest for Olsen.
Plaintiff's proposed jury instructions do not mention medical care at all --
in either the negligence or the seaworthiness instructions.{7} Furthermore,
plaintiff's opening statement did not allege or imply that Dr. Sterenberg had
done anything wrong, and plaintiff never moved to amend the statement of the
case or any other submission.
In this light, the district court properly determined that Dr. Winkler's
proffered testimony was not relevant to the issues presented at trial. This
court's decision in McKinney v. Galvin, 701 F.2d 584 (6th Cir. 1983), is
instructive. McKinney's complaint alleged several causes of action, including
false arrest, excessive use of force, illegal search and seizure, and
malicious prosecution. McKinney did not
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{7} The instructions never specifically state what plaintiff alleges was
unseaworthy about the M/V Sam Laud, though they do define seaworthiness
generally. The instructions provide that, with regard to negligence,
plaintiff alleges that defendant "failed to provide safe decking" and to keep
the deck "free of foreign oil."
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advance his malicious prosecution claim in either the joint pretrial statement
or in his theory of the case. "Consequently, the District Court considered
the claim[] abandoned under Fed. R. Civ. P. 16." Id. at 585-86. This court
upheld the district court's determination, noting that "[a] party's failure to
advance theories of recovery in the pre-trial statement constitutes waiver."
Id. at 586 n.3. This court also upheld the district court's exclusion of
evidence that McKinney had been acquitted of the charge for which he was
arrested -- a malicious prosecution claim would have required proof of a
favorable disposition on the charge -- on the ground that the evidence was
more prejudicial than probative. See id. at 586.
In the present case, Olsen's complaint advanced a vague claim for breach
of the duty to provide prompt and adequate medical care. The pretrial order
contains an even more vague reference to negligence. However, the district
court asked the plaintiff to submit a trial brief specifically detailing his
claim. Olsen did so, but the brief contained no reference to vicarious
liability. Rather, the brief focused on the shipowner's alleged direct breach
of duty. Vicarious liability is also notably absent from Olsen's statement of
the case and proposed jury instructions. Under McKinney, the district court
was entitled to conclude that to the extent that Olsen's complaint stated such
a claim, he waived it before trial. Therefore, also under McKinney, the
district court was entitled to conclude that Dr. Winkler's testimony relating
to Dr. Sterenberg's possible negligence was not relevant to the case.
III.
Olsen raises several other issues that we can deal with briefly. Olsen
contends that the district court erred by allowing defendant, over the
plaintiff's objection, to refer in defendant's closing argument to the lack of
evidence as to Dr. Sterenberg's negligence. Olsen contends that "[a] litigant
is unduly prejudiced when his opponent is successful in preventing the
admission of evidence on a particularly crucial issue in dispute, and then
points to the absence of such evidence in closing argument." We find no
evidence in the record, however, that the defendant made the sort of reference
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Olsen alleges. Next, Olsen contends that the district court committed
reversible error by improperly interjecting the issue of workers' compensation
into the trial and refusing to give a curative instruction. The district
court twice before the jury uttered the words "workers' compensation," but
never stated or implied that Olsen had received workers' compensation. The
district judge in no way implicated the collateral source rule, and thus Olsen
is not entitled to a new trial on this ground. Finally, Olsen contends that
the district court erred by failing to give an instruction indicating that
assumption of risk was not a defense in the case. A plaintiff's comparative
negligence can lessen a shipowner's liability under the Jones Act, but
assumption of risk is not a defense. See Socony-Vacuum Oil Co. v. Smith, 305
U.S. 424, 431 (1939); Burden v. Evansville Materials, Inc., 840 F.2d 343, 346
(6th Cir. 1988). In this case, the district judge properly gave a comparative
negligence instruction. While it is reversible error to "mask an assumption
of risk charge in the garb of contributory negligence," Furka v. Great Lakes
Dredge & Dock Co., 755 F.2d 1085, 1090 (4th Cir. 1985), that did not happen
here.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED in all respects.
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