Whitman v. Miles

United States Court of Appeals
For the First Circuit

No. 04-1117

MELODEE WHITMAN,

Plaintiff, Appellant,

v.

RICK MILES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Dyk*, Circuit Judges.

R. Terrance Duddy, with whom Jennifer A. Archer and Kelly,
Remmel & Zimmerman, were on brief, for appellant.
Leonard W. Langer, with whom Marshall J. Tinkle and Tompkins,
Clough, Hirshon & Langer, P.A., were on brief, for appellee.

October 28, 2004

*
Of the Federal Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. In this case involving a claim

for maintenance and cure benefits by a seaman suffering from

multiple sclerosis, plaintiff-appellant Melodee Whitman ("Whitman")

appeals from an order of the district court granting defendant-

appellee Rick Miles's ("Miles") motion for summary judgment. We

affirm.

I. Background

We review the entry of summary judgment de novo, viewing

the facts in the light most favorable to the party opposing summary

judgment, in this case Whitman. GTE Wireless, Inc. v. Cellexis

Int'l, Inc., 341 F.3d 1, 4 (1st Cir. 2003). Summary judgment is

appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c).

On July 17, 2000, while working as a cook on Miles's

ship, the S/V Timberland, Whitman had to be driven to a hospital

after falling several times on the ship, burning herself while

cooking, and experiencing other symptoms including fatigue, cold,

numbness, and incontinence. Following an MRI, Whitman was

diagnosed with multiple sclerosis ("MS"), an autoimmune disease

that causes a person's immune system to attack healthy tissue in

the body. Whitman has what is known as "relapsing-remitting" MS,

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which is characterized by symptoms that manifest themselves in

sporadic, unpredictable exacerbations that flare up and then die

down. Sometimes the symptoms completely clear; other times they do

not. While not fatal, MS is a permanent disease with no known

cure.1

On August 3, 2000, Whitman saw Dr. Judd Jensen for a

follow-up visit. Dr. Jensen noted significant improvement in

Whitman's status since her hospital visit on July 17, 2000.

Dr. Jensen also reiterated that the MRI findings were strongly

suggestive of MS. On August 15, 2000, Whitman saw Dr. Howard

Weiner for an evaluation. Dr. Weiner, an MS specialist, described

Whitman's initial symptoms and MRI as classic for MS. After a

neurologic examination, Dr. Weiner found that Whitman had a normal

gait and there were no other motor, cerebellar, or sensory

findings. He also found that Whitman was continent and only had

some mild tingling feelings.

Shortly after Dr. Weiner's August 15 evaluation, Whitman

began taking Betaseron, a disease-modifying medication that acts at

the cellular level to alter the immune system's response to MS. On

October 4, 2000, Whitman saw Dr. Jensen and complained of numbness

and loss of balance. On November 17, 2000, Whitman again visited

Dr. Jensen, who noted that the recent exacerbation had resolved in

1
In her brief, Whitman acknowledges that MS is a permanent
disease.

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a couple of days, that her neurologic examination was essentially

normal, and that she was asymptomatic.

Since July 2000, Whitman has had several exacerbations,

with symptoms including vision problems, memory loss, dizziness,

lightheadedness, nausea, vomiting, numbness, leg spasms, partial

paralysis to one side of her face, and foot drop. Some, but not

all, of these symptoms have faded or disappeared. Whitman's last

exacerbation occurred in November 2002. Whitman also suffers from

depression, for which she takes medication. Depression is common

among patients with MS.

Through his insurer, Miles paid Whitman's medical bills

for her initial diagnosis and treatment. Miles did not pay for any

living expenses or treatment after the diagnosis. In August 2000,

Whitman spoke by phone with Patrick O'Toole of Acadia Insurance

Company, which is Miles's insurer, and requested maintenance and

cure benefits. In a letter dated August 21, 2000, Acadia denied

Whitman benefits beyond the emergency treatment and initial

diagnosis. On March 6, 2003, Whitman filed suit in Maine federal

district court, seeking past and ongoing maintenance and cure

("Count I"), as well as attorney's fees for unreasonable refusal to

pay maintenance and cure ("Count II"). On August 28, 2003, Miles

moved for summary judgment.

Miles originally argued that his duty to provide

maintenance and cure ended on July 18, 2000, when Whitman was first

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diagnosed with MS. At oral argument before the district court,

Miles conceded that the duty to provide maintenance and cure

extended for a short time after diagnosis, and agreed to pay for

Whitman's medical expenses up to August 15, 2000.2 On November 20,

2003, the district court partially granted Miles's motion for

summary judgment on Count I, finding that August 15, 2000 was the

date of maximum medical recovery. The district court concluded

that Miles was entitled to summary judgment for "all maintenance

and cure after August 15, 2000, and for lodging expenses in their

entirety."3 Whitman v. Miles, 294 F. Supp. 2d 117, 125 (D. Me.

2003). The district court also granted summary judgment on Count

II. This appeal followed.

2
How the date August 15, 2000 was reached bears mentioning.
Miles, relying on Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 530
(1938), conceded that his duty to provide maintenance and cure
continued for a reasonable time after diagnosis. In its decision,
the district court noted that the standard in Calmar was superceded
by the Shipowner's Liability Convention and found that under the
Convention maintenance and cure benefits continue until the sailor
is "so far cured as possible". Farrell v. United States, 336 U.S.
511, 518 (1949). However, because Miles conceded liability for
maintenance and cure until August 15, 2000, the district court
assumed that Miles's duty did not end before that date. The
district court, using the test in Farrell, later found that
August 15, 2000 was also the date of maximum medical recovery.
3
The district court found that, because Whitman lived with a
friend and did not pay rent between July 18, 2000 and August 15,
2000, Miles was not obligated to pay for her lodging.

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 II. Discussion

A. Maintenance and Cure

"Maintenance and cure is the traditional form of

compensation paid to a seaman who becomes ill or injured aboard a

vessel." Richards v. Relentless, Inc., 341 F.3d 35, 40 n.1 (1st

Cir. 2003)(citing Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527-

528 (1938)). "The duty of paying maintenance and cure falls to the

owner of the vessel." Id. "The term refers to the provision of,

or payment for, food and lodging ('maintenance') as well as any

necessary health-care expenses ('cure') incurred during the period

of recovery from an injury or malady." Ferrara v. A. & V. Fishing,

Inc., 99 F.3d 449, 454 (1st Cir. 1996)(quoting LeBlanc v. B.G.T.

Corp., 992 F.2d 394, 397 (1st Cir. 1999)(internal quotation marks

omitted)). The right to maintenance and cure applies only to

"seamen" who are injured or fall ill while "in service of the

ship." LeBlanc, 992 F.2d at 396. The right applies until the

seaman is "so far cured as possible." Farrell v. United States,

336 U.S. 511, 518 (1949); Ferrara, 99 F.3d at 454.

When a seaman's "condition has stabilized and further

progress ended short of a full recovery, the seaman . . . is no

longer entitled to maintenance and cure." In re RJF Int'l Corp.

for Exoneration from or Limitation of Liab., 354 F.3d 104, 106 (1st

Cir. 2004). This point in time is known as the seaman's "maximum

medical recovery." Id. at 107 (citing Vaughan v. Atkinson, 369

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U.S. 527, 531 (1962). However, treatment that is "more than simply

palliative, and would improve [the seaman's] medical condition

. . . is enough to support an award of maintenance and cure in aid

of permanent improvement short of a complete cure." Id.

1. Whether MS Can Be Improved Through Treatment

Whitman first argues that the district court erred in

finding that MS is incapable of being improved through treatment.

Whitman bases this argument on the fact that she is being treated

with Betaseron, a disease-modifying drug that acts at the cellular

level to alter the immune system's response to MS. Whitman states

that the goals of her treatment include slowing, stabilizing,

arresting, or reversing her MS symptoms. Relying on our decision

in In re RJF, Whitman argues that this treatment is not palliative

and will improve her medical condition.

Whitman's reliance on In re RJF is misplaced. In that

case, a seaman suffered severe, permanent brain damage with

symptoms including muscle spasticity and contractions. Id. at 106.

The seaman's physicians provided evidence that further treatment,

including rehabilitation directed in part at the muscle spasms,

would lessen the muscle ailments and result in further, although

incomplete, cognitive improvement. Id. at 107. Because the

evidence showed that further treatment would improve the seaman's

underlying condition, we found that the seaman had not reached the

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point of maximum medical recovery and that the shipowner's duty of

maintenance and cure continued. Id.

In the instant case, Whitman concedes that her MS is

permanent. The question is whether Whitman's treatment would

improve her medical condition such that she had not, as of

August 15, 2000, reached the point of maximum medical recovery.

The testimony of the doctors for both parties leaves no genuine

issue of material fact that Whitman's treatment would, at best,

slow or arrest the progression of her MS, but would not reverse her

symptoms or improve her condition beyond the point of maximum

medical recovery.

Dr. Richard Tenser, Whitman's treating physician,

testified in his deposition that Whitman's condition had not

improved and had probably worsened.4 Dr. Tenser's testimony also

indicated that, at best, he hoped treatment with Betaseron would

slow or arrest the progression of Whitman's MS to prevent her from

becoming disabled:

Q. Would you agree with me that it is more
likely than not that Ms. Whitman will at some
point in the future become disabled from her
MS?

A. Again, a tough question. I mean the
whole goal of her treatment is to try to
prevent that. . .[S]he has pretty severe MS.
Whether she will become disabled or not, I

4
While Dr. Tenser discussed improvement, he did so in the context
of improvement from Whitman's last exacerbation, not improvement in
her overall condition.

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 don't know. Obviously using the Betaseron to
try to prevent that, so do I want to
acknowledge that the medication will fail, I'm
reluctant to do that. I would just say that
she certainly has a significant chance of
becoming disabled.

Moreover, Whitman mentions several times that one of the

goals of her treatment is to reverse her symptoms. However,

Dr. Tenser never testified that this was the goal of her treatment.

Miles's medical expert, Dr. Edward Collins, mentioned "reversing"

some of Whitman's symptoms in his deposition testimony, but not

reversing the MS itself. Further, Dr. Collins noted that, while he

hoped that treatment might reverse certain symptoms of MS, he was

not predicting that result. He also later testified that the goal

of her treatment was to slow the downward progression of Whitman's

MS, and that an upward improvement would not occur.

The testimony of both doctors is very different from In

re RJF, where the seaman's doctors opined that further treatment

would not merely arrest symptoms of the underlying condition, but

would improve the condition itself. Id. Further, in In re RJF,

the testimony of the shipowner's doctors left room for the

conclusion that further treatment could lead to long-term

improvement of the seaman's condition. Id. In the instant case,

Dr. Collins explicitly stated that no reversal or upward

improvement in Whitman's condition would occur.

In sum, while Whitman's treatment may be necessary and

beneficial to her, its benefits relate to slowing or arresting the

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progression of her disease. We agree with the district court that

"[s]lowing or arresting a decline, while medically important,

simply is not the same as effecting an improvement . . . ."

Whitman, 294 F. Supp. 2d at 123.

2. August 15, 2000

Whitman also argues that the district court erred in

finding that she was as improved as possible on August 15, 2000.

According to Whitman, the district court should not have found that

she was as improved as possible on August 15, 2000, because nothing

in the medical record at that time mentioned her condition as being

permanent, she had not yet begun her treatment with Betaseron, and

she was later asymptomatic on November 17, 2000.

While it may be true that the medical record on

August 15, 2000 says nothing about Whitman's condition being

permanent, it is undisputed that Whitman had been diagnosed with

MS by August 15, 2000. By definition, MS is a permanent, incurable

disease. There was no need for a doctor to use the word

"permanent" when Whitman's condition was, by definition and

concededly, permanent.

Regarding the fact that Whitman had not yet begun

treatment with Betaseron on August 15, 2000, both medical experts

testified that the goal of the Betaseron was to slow or arrest the

progression of MS. There is no evidence that the goal or even the

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hope of the Betaseron treatment was to improve Whitman's condition

beyond where it was on August 15, 2000.

Finally, although Whitman was diagnosed in November 2000

as asymptomatic, this diagnosis was made in the context of the most

recent exacerbation of her relapsing-remitting MS.5 Her

asymptomatic status on that date does not mean that her overall

condition had improved, but merely that the symptoms from her last

exacerbation had died down.

Whitman first experienced symptoms in mid-July 2000 and

had to be hospitalized. On August 15, 2000, Dr. Weiner found that

these symptoms had "resolved," and Whitman began her treatment

shortly thereafter. Whitman's medical expert, Dr. Tenser,

testified that Whitman has not improved during the course of her

treatment. We therefore conclude that Whitman's condition has not

improved since August 15, 2000, and that date thus represents a

date when Whitman reached the point of maximum medical recovery.

3. Depression

Whitman also argues that she suffers from depression as

a result of her MS, and that because her depression is curable, she

is entitled to maintenance and cure for its treatment. The

district court did not determine whether Whitman is arguing that

5
According to Whitman's physician Dr. Tenser, in relapsing-
remitting MS, a patient has exacerbations when "[n]eurologic
symptoms occur, [that] once again may clear completely or may clear
incompletely."

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her depression is a symptom of MS or is a separate ailment, instead

finding that Whitman would not be entitled to maintenance and cure

regardless of which argument she was making. We agree.6

If Whitman's argument is that her depression is a

distinct ailment from her MS, giving rise to its own claim for

maintenance and cure, then she has failed to produce any evidence

that she began to suffer from depression while in the service of

the ship, an element on which she would have the burden of proof at

trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)("[T]he plain language of Rule 56(c) mandates the entry of

summary judgment . . . against a party who fails to make a showing

sufficient to establish the existence of an element essential to

that party's case, and on which that party will bear the burden of

proof at trial.").

The alterative argument that Whitman's depression is a

symptom of her MS would not alter her eligibility for maintenance

and cure. Our conclusion that August 15, 2000 is the date she

reached maximum medical recovery precludes her from maintenance and

cure benefits. Whitman has produced no evidence that she suffered

from depression as a symptom of her MS on or before August 15,

2000. Even assuming that her depression could be cured, it would

6
Like the district court, we do not address whether depression is
a symptom of MS or a distinct illness.

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not improve her condition beyond where it was on August 15, 2000,

when she was not suffering from depression.7

4. Consultation of Whitman's Physician

Whitman's final argument is that maintenance and cure

should have continued until her physicians declared her condition

permanent. See Vella v. Ford Motor Co., 421 U.S. 1, 4-5

(1975)(holding that maintenance and cure continues until a seaman's

injury is medically diagnosed as permanent); Hubbard v. Faros

Fisheries, Inc., 626 F.2d 196, 202 (1st Cir. 1980)(concluding that

a seaman "was entitled to maintenance and cure until his physicians

diagnosed his condition as permanent"). According to Whitman,

Miles's insurance representative, Patrick O'Toole, terminated her

maintenance and cure benefits prior to consulting her physicians

and without any evidence that Whitman's MS was permanent and

incapable of being improved. Whitman argues that the earliest the

diagnosis of permanency could have occurred was July 30, 2003, when

Miles deposed her doctor.

In Vella, the Supreme Court quoted with approval a Second

Circuit decision stating that "[t]he shipowner is liable for

maintenance and cure only until the disease is cured or recognized

as incurable." Vella v. United States, 421 U.S. at 6 n.5 (quoting

7
We do not address whether curing Whitman's depression would
effectuate an improvement in her MS because it is clear that, even
if this were the case, Whitman's condition would not improve beyond
where it was on August 15, 2000.

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Desmond v. United States, 217 F.2d 948, 950 (2d Cir. 1954)

(emphasis added)). In the instant case, it is undisputed that, as

of August 15, 2000, Whitman was diagnosed by her physicians as

having MS, a disease that is by definition recognized as permanent

and incurable.8 In this situation, we do not believe that a

physician must use the magic words "permanent" or "incapable of

being improved" in a diagnosis. We agree with the district court

that such a requirement "would elevate form over substance."

Whitman, 294 F. Supp. 2d at 124. By August 15, 2000, Whitman had

been diagnosed by her physicians with MS, a condition that is

recognized as incurable. Miles's obligation to provide maintenance

and cure therefore ended by August 15, 2000.

B. Attorney's Fees

At trial, Whitman would have the burden of proving that

Miles was "callous, willful, or recalcitrant" in withholding

maintenance and cure payments. See Robinson v. Pocahontas, Inc.,

477 F.2d 1048, 1051 (1st Cir. 1973). The district court found that

Miles's refusal to pay maintenance and cure beyond the date of

Whitman's diagnosis was not callous, willful, or recalcitrant. See

Whitman, 294 F. Supp. 2d at 125. Whitman argues that the district

court erred because it failed to determine what Miles's insurance

adjuster knew about MS, and from what source, when it terminated

8
We note again that there is no dispute about whether MS is
permanent because Whitman herself concedes that MS is a permanent
disease.

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Whitman's maintenance and cure benefits in August 2000.9 Whitman

asks us to remand Count II for a factual determination on this

point. However, it is Whitman who bears the burden at summary

judgment of producing evidence that Miles was "callous, willful, or

recalcitrant" in denying her maintenance and cure benefits.

Whitman has produced no such evidence, and we therefore affirm the

district court's grant of summary judgment on Count II. See

Celotex Corp., 477 U.S. at 322-23.

Affirmed.

9
This argument appears to be based on a belief that, if the
district court found that Miles's insurer had not consulted
Whitman's doctors or made a thorough examination of Whitman's
medical records before terminating maintenance and cure, then Miles
would have been callous, willful, or recalcitrant.

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