IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30595
Summary Calendar
THOMAS E. JOHNSTON,
Plaintiff-Appellant,
versus
TIDEWATER MARINE SERVICE; TIDEWATER MARINE INC.; TWENTY GRAND
OFFSHORE INCORPORATED; TIDEWATER TOWING INC.,erroneously referred
to as Tidewater Marine Service Inc. & Tidewater Marine Inc.;
PENTAL INSURANCE COMPANY
Defendant-Appellee.
Appeal from the United States District Court
for the
Western District of Louisiana
(94-CV-1451)
April 23, 1997
Before JOHNSON, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Thomas E. Johnston appeals the district court’s partial denial
of his motion for new trial. Plaintiff asserts that the jury’s
verdict contained an irreconcilable conflict. Because we find that
the district court did not err in reconciling the jury’s verdict,
we affirm.
I. Facts and Procedural History
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Johnston filed a complaint against Tidewater Marine Service,
Twenty Grand Offshore, Inc., and Pental Insurance Company
(Tidewater), asserting claims of negligence under the Jones Act,
unseaworthiness, and maintenance and cure. These claims were tried
to a jury. Throughout the trial both Johnston and Tidewater
presented conflicting evidence concerning the value, nature, and
necessity of certain medical procedures.
The district court submitted special interrogatories to the
jury concerning each of the three causes of action asserted by
Johnston. When the jury returned the verdict, they determined that
Tidewater was not negligent, that the vessel was unseaworthy, and
that Johnston was not entitled to cure and maintenance. In
awarding compensatory damages for the unseaworthiness claim, the
jury allocated $89,000 for future medical expenses.
Johnston filed a motion for new trial claiming, amongst other
things, that the jury’s award of future medical expenses was
inconsistent with the finding that Johnston was not entitled to
maintenance and cure. The district court denied the motion for new
trial on this point stating that the jury’s verdict could be
reconciled when considering the large amount of evidence at trial
that the treatment sought by Johnston was merely palliative and not
curative in nature. Johnston now appeals the district court’s
partial denial of his motion for new trial.
II. Discussion
We are required under the Seventh Amendment to make a
2
concerted effort to reconcile seemingly inconsistent answers to
special interrogatories if possible. See Atlantic & Gulf
Stevedores, Inc. v. Ellerman Lines Ltd., 369 U.S. 355, 364 (1962);
White v. Grinfas, 809 F.2d 1157, 1161 (5th Cir. 1987). We must
attempt to reconcile jury findings before we are free to disregard
the verdict. See Gallick v. B&O R.R. Co., 372 U.S. 108, 119
(1963). This court has stated that the test used in reconciling
apparent conflicts in jury verdicts is
whether the answers may fairly be said to represent a
logical and probable decision on the relevant issues as
submitted, even though the form of the issue or
alternative selective answers prescribed by the judge may
have been the likely cause of the difficulty and largely
produced the apparent conflict . . . . If on review of
the District Court’s judgment we find that there is no
view of the case which makes the jury’s answers
consistent and that the inconsistency is such that the
special verdict will support neither the judgment entered
below nor any other judgment, then the judgment must be
reversed and the cause remanded for trial anew.
Griffin v. Matherene, 471 F.2d 911, 915 (5th Cir. 1973) (citations
omitted).
In the present case, Johnston contends that it is
inconsistent to award compensatory damages for future medical
expenses under a claim of unseaworthiness and then decline to find
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that Tidewater owed a duty of maintenance and cure for those same
medical expenses. We disagree. Importantly, unseaworthiness and
maintenance and care are separate and distinct causes of action.
See Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 452 (6th Cir.
1996); see also, Liner v. J.B. Talley and Co., Inc., 618 F.2d 327,
332 (5th Cir. 1980). A claim for unseaworthiness is compensatory
in nature maintenance while a claim for maintenance and cure is
curative in nature. Cf. LeBlanc v. B.G.T. Corp., 992 F.2d 394,
397 (1st Cir. 1993). Under a maintenance and cure claim, a vessel
owner only has a duty to make payments for necessary therapeutic,
medical, and hospital expenses until maximum cure is reached.
Maximum cure occurs
when it appears probable that further treatment will
result in no betterment of the seaman’s condition. Thus,
where it appears that the seaman’s condition is
incurable, or that future treatment will merely relieve
pain and suffering but not otherwise improve the seaman’s
physical condition, it is proper to declare that the
point of maximum cure has been achieved.
Gaspard v. Taylor Diving and Salvage Co., Inc., 649 F.2d 372, 375
n.3 (5th Cir. 1981) (citing Pelotto v. L & N Towing Co., 604 F.2d
396, 400 (5th Cir. 1979)). Therefore, when a particular medical
procedure is merely palliative in nature or serves only to relieve
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pain and suffering, no duty to provide payments for cure exists.1
As stated earlier, there was a large amount of conflicting
testimony during the trial about whether the medical procedure
Johnston was seeking monetary damages for was curative. After
looking at the evidence presented at trial, it is entirely
possible that the jury determined that the medical procedure
Johnston was seeking compensation for was merely palliative
instead of curative in nature. Thus, it would have been
consistent for the jury to award compensatory damages for future
medical expenses under the unseaworthiness claim yet find that
Tidewater did not owe Johnston a duty of maintenance and cure.
Because we agree with the district court’s conclusion that
the jury’s verdict can logically be reconciled we hold that the
district court did not err in partially denying Johnston’s motion
for new trial.
AFFIRMED.
1
We recognize that a formal definition of cure was not
provided to the jury. However, simply using the ordinary meaning
of the word cure--”to restore to health”--the jury could have
concluded that if a medical procedure was not deemed curative in
nature, Johnston was not entitled to recover expenses for the
procedure under a claim for maintenance and cure. WEBSTER’S NEW
COLLEGIATE DICTIONARY 276 (1979).
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