Napier v. F/V Deesie, Inc.

United States Court of Appeals
For the First Circuit

Nos. 05-1503
05-2545

JAMES NAPIER,

Plaintiff, Appellant,

v.

F/V DEESIE, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Torruella, Lynch and Lipez,
Circuit Judges.

David B. Kaplan, with whom The Kaplan/Bond Group was on brief,
for appellant.
Joseph A. Regan, with whom Syd A. Saloman and Regan & Kiely
LLP, were on brief, for appellee.

July 11, 2006
 TORRUELLA, Circuit Judge. Plaintiff-appellant James

Napier ("Napier") filed a suit against defendant-appellee F/V

Deesie, Inc. ("Deesie") in the United States District Court for the

District of Massachusetts, seeking damages on three counts of

maritime law: one count pursuant to the Jones Act, 46 U.S.C. App.

§ 688; one count of unseaworthiness; and one count for maintenance

and cure. Deesie moved for summary judgment on all three claims.

The magistrate judge granted summary judgment with regard to the

Jones Act and the unseaworthiness claims but denied summary

judgment for the claim of maintenance and cure. We find that the

magistrate judge erred in granting summary judgment and remand the

case for further proceedings consistent with this opinion.

I.

In accordance with our standard of review for summary

judgment, we present the facts in the light most favorable to

Napier. See Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.

1995). Deesie employed Napier as a crewman aboard the F/V DEESIE,

a fishing vessel. On or about April 13, 2001, the crew of the F/V

DEESIE was fishing approximately 1500 miles south to southeast of

Puerto Rico. Napier was attaching baited hooks to the line feeding

out of the vessel's stern when an accident occurred in which a

rusty, six-inch hook impaled the lower left portion of his abdomen.

Using bolt cutters and a razor, the captain and Napier cut out the

hook. Napier quickly doused the wound with peroxide, applied a

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bandage, and returned to work. The ship's first aid kit contained

aspirin, and Napier took aspirin, as well as Motrin, to treat the

pain resulting from the injury. Eight days after the accident,

Napier experienced sudden pain and loss of breath. The captain

attempted to call in an air rescue; this, however, was not possible

due to the location of the F/V DEESIE.

Upon arrival in San Juan, the captain sent Napier to a

doctor who diagnosed him with an infection and prescribed

antibiotics. Two days later, on or around April 21, 2001, Napier

developed severe stomach pains, began vomiting blood, and was taken

by ambulance to University Hospital in Puerto Rico. He was

admitted with gastrointestinal bleeding, and physicians discovered

that Napier had suffered a perforated duodenal ulcer, which

required two surgeries and a one-month stay at University Hospital.

The physicians also noted in Napier's medical record that Napier

had taken cocaine and heroin on the day prior to his admission to

the hospital.

On December 27, 2002, Napier filed suit against Deesie

seeking damages on three counts: one count pursuant to the Jones

Act, one count of unseaworthiness, and one count for maintenance

and cure.1 Deesie moved for summary judgment, after discovery, on

1
The Jones Act allows seamen to recover for all injuries caused
by their employer's negligence, whether or not that negligence
creates an unseaworthy condition. An unseaworthy condition exists
when a vessel or its appurtenances are not reasonably fit for their
intended purposes, although "reasonably fit" does not require a

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August 2, 2004. Deesie and Napier each filed affidavits from their

respective medical experts to establish whether the fishhook

accident was the cause of the perforated ulcer. Deesie submitted

the affidavit of Dr. Michael D. Apstein ("Dr. Apstein"), a

specialist in gastroenterology and internal medicine. After

reviewing all of the pertinent medical records and historical

background, Dr. Apstein concluded that the perforated ulcer was not

caused by the fishhook because, based on the location of the injury

and the size of the hook, it would have been nearly impossible for

the hook to have reached the duodenum. Rather, Dr. Apstein

suggested that the perforated ulcer was more likely than not caused

by the reported cocaine use.

Napier also submitted an expert medical report, authored

by Dr. Roberto Feliz ("Dr. Feliz"). Dr. Feliz agreed that 'the

fishing hook itself did not directly lead to the duodenal

perforation since it was not long enough to reach the posteriorly

ship to be accident-free. A claim of unseaworthiness compensates
seamen for injuries caused by an unseaworthy condition found on
board a vessel or its appurtenances. However, liability for
unseaworthiness does not require any showing of a defendant's
negligence. The right to maintenance and cure allows seamen to
recover payments for food and lodging ("maintenance") and any
necessary health-care expenses ("cure") while recovering from
injury or illness that occurred while in service of the ship. The
right to recover maintenance and cure is generally without any
regard to fault; however, a seaman may forfeit his entitlement by
engaging in gross misconduct. See Usner v. Luckenback Overseas
Corp., 400 U.S. 494 (1971); Mitchell v. Trawler Racer, Inc., 362
U.S. 539 (1960); Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449 (1st
Cir. 1996).

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located duodenum in the abdomen." Dr. Feliz, however, also

explained several medically accepted factors that can potentially

lead to ulcers, focusing in particular on the effects of

nonsteroidal anti-inflammatory drugs (NSAIDs). He stated that

NSAIDs "such as aspirin, Advil, Naprosyn, Motrin" and steroids such

as prednisone can cause ulcers by disrupting the normal mucosal

defense and repair system, making the mucosa more susceptible to

the attack of gastric acid. Dr. Feliz went on to describe in more

detail the link between Motrin and ulcers in patients with a

history of ulcers. He stated that Napier "appeared to have been

treated" with aspirin and Motrin and concluded that there was a

"causal relationship between the injury sustained with the hook and

the subsequent development of a duodenal ulcer." Additionally, Dr.

Feliz contradicted Dr. Apstein's statement that the use of cocaine

could possibly produce a perforated ulcer within one day of

consumption.

On March 3, 2005, the magistrate judge granted Deesie's

motion for summary judgment as to the Jones Act and unseaworthiness

claims but denied the motion as to the claim for maintenance and

cure. The magistrate judge excluded the testimony of Dr. Feliz for

failure to rest upon an adequate factual foundation. Specifically,

the magistrate judge ruled that there was insufficient factual

evidence to support the claim that Napier had ingested aspirin or

Motrin. In particular, he looked to the phrase "appeared to have

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been treated" in Napier's expert report to demonstrate that the

report was based on conjecture. Moreover, the magistrate judge

found that the record was devoid of any reference to Motrin, and

that the only mention of aspirin was the captain's testimony that

there was aspirin aboard the ship. Without Dr. Feliz's testimony

to establish the fishhook accident as the cause of the ulcer, the

magistrate judge found that Napier had produced no evidence as to

causation and entered partial summary judgment in favor of Deesie.

This was plainly error in light of an admission made by

the defendant. In Deesie's amended motion for summary judgment,

Deesie stated the following: "For the purposes of this motion, we

assume that (a) the plaintiff took aspirin and Motrin at some point

following the hooking incident and (b) the consumption of these

over-the-counter medications caused his injury." The magistrate

judge's ruling was also erroneous because Napier, in a supplemental

affidavit that was filed with his opposition to Deesie's amended

motion for summary judgment, stated that he took aspirin and

Motrin, an allegation that should have been taken as true by the

magistrate judge for purposes of deciding upon the summary judgment

motion. See DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.

2005) ("In adjudicating a motion for summary judgment, a district

court construes the facts 'in the light most amiable to the

nonmovant[] and indulges all reasonable inferences favorable to

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[him].'" (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st

Cir. 1990)).

On March 17, 2005, Napier moved for reconsideration under

Fed. R. Civ. P. 59(e). As part of the motion for reconsideration,

counsel for Napier submitted an affidavit explaining that Napier

had informed counsel that he took aspirin and that counsel had

relayed that information to Dr. Feliz. Dr. Feliz also presented an

affidavit confirming that Napier's counsel informed him that Napier

had ingested aspirin following the accident. Dr. Feliz further

clarified that the phrase "appeared to have been treated" was

superfluous; his intention was to convey that he was informed prior

to issuing his opinion that the patient had taken aspirin.

Upon consideration of the additional affidavits, the

magistrate judge found that there was sufficient evidence for Dr.

Feliz to base his testimony on the fact that Napier had taken

aspirin. However, the magistrate judge held that although the

medical report submitted by Dr. Feliz attested to the dangers of

Motrin and Motrin taken in combination with aspirin, it did not

support the claim that aspirin alone could cause an ulcer. The

magistrate judge thus found that Napier had not presented

sufficient evidence on the issue of causation to avoid summary

judgment on the Jones Act and unseaworthiness claims. The

magistrate judge also gave two alternative grounds for granting

summary judgment. First, Napier had not shown that anyone on board

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could have known of Napier's history of ulcers. Second, Napier

presented no evidence to suggest that the presence of aspirin could

make a vessel unseaworthy.

II.

A. Standard of Review

In this appeal, Napier is appealing from two orders: 1)

the initial summary judgment order, and 2) the denial of Deesie's

motion for reconsideration (which is really a motion to amend

judgment under Fed. R. Civ. P. 59(e)). We review the grant of

summary judgment de novo. Pagano v. Frank, 983 F.2d 343, 347 (1st

Cir. 1993). We review the denial of a motion to amend judgment for

abuse of discretion. Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st

Cir. 1994).

Regarding our review of the summary judgment decision, we

are authorized to reverse the lower court if, after viewing the

facts and making all inferences in favor of the non-moving party,

the evidence on record is "sufficiently open-ended to permit a

rational fact finder to resolve the [liability] issue in favor of

either side." Coyne, 53 F.3d at 457 (internal citations and

quotation marks omitted). Although this case comes before us under

our maritime jurisdiction, the standard for granting summary

judgment motion in an admiralty case is identical to that applied

in non-admiralty cases. Cerqueira v. Cerqueira, 828 F.2d 863, 864-

65 (1st Cir. 1987).

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 Summary judgment is appropriate when one party has failed

to raise a genuine issue of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248-52 (1986). A genuine issue exists

when, based on the evidence, a reasonable jury could resolve the

issue in favor of the non-moving party. Fajardo Shopping Ctr.,

S.E. v. Sun Alliance Ins. Co. of P. R., 167 F.3d 1, 7 (1st Cir.

1999). Further, a fact is material if it has the "potential to

affect the outcome of the suit." Santiago-Ramos v. Centennial P.R.

Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v.

Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). Here, the burden

rests on the moving party, Deesie, to demonstrate that there is "an

absence of evidence to support the nonmoving party's case."

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). As we have

noted, the role of the court at the summary judgment stage is to

"examine[] the entire record 'in the light most flattering to the

nonmovant and indulge all reasonable inferences in that party's

favor.'" Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997)

(quoting Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581

(1st Cir. 1994)). Throughout this process, the judge must remember

that "[c]redibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge." Anderson, 477 U.S. at 255.

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 B. Expert Testimony

We begin with the motion for summary judgment and the

magistrate judge's interpretation of Dr. Feliz's expert testimony.

As we have said, the magistrate judge erred in entering summary

judgment in the first place, given the admission by the defendant

that Napier "took aspirin and Motrin at some point following the

hooking incident" and Napier's own affidavit -- the contents of

which were to be accepted as true for purposes of the summary

judgment motion -- stating that he had ingested those drugs.

We therefore turn to the motion for reconsideration. In

assessing the motion for reconsideration, the magistrate judge

determined that the additional affidavits filed were sufficient to

demonstrate that there was a factual basis for Dr. Feliz to believe

that Napier had taken aspirin. The magistrate judge, however,

found no such basis for believing that Napier had taken Motrin, as

the entire record was devoid of any mention of the drug or

indication that Napier had access to the drug.

This conclusion was also contrary to both the defendant's

admission and Napier's own statement that he had taken Motrin. But

even if the defendant had not made such an admission and Napier had

not made his statement and it was still in doubt that Napier had

taken Motrin, we believe that Dr. Feliz's report supported the

contention that aspirin alone can cause ulcers (which, the

magistrate judge pointed out, was necessary for Napier to survive

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Deesie's summary judgment motion). Even if the magistrate judge

was correct in asserting that Dr. Feliz made several conclusory

statements concerning Motrin and Motrin taken in combination with

aspirin as the specific cause of Napier's ulcer, this does not

negate the evidentiary value of the rest of his affidavit. In

particular, we highlight Dr. Feliz's statement that "NSAID

nonsteroidal anti-inflammatory medications and steroid usage such

as aspirin, Advil, Naprosyn, Motrin and prednisone causes ulcers in

the same mechanism as described above." The unambiguous meaning of

Dr. Feliz's statement is that any of these individual medications

alone is sufficient to cause an ulcer. Therefore, the magistrate

judge erred in finding that Dr. Feliz's report did not support the

claim that aspirin alone could cause an ulcer.

C. Jones Act Claim

The Jones Act provides seamen with a cause of action

against employers when "an employer's failure to exercise

reasonable care causes a subsequent injury even where the

employer's negligence did not render the ship unseaworthy."

Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 453 (1st Cir. 1996)

(citing Toucet v. Maritime Overseas Corp., 991 F.2d 5, 10 (1st Cir.

1993)). While Napier must establish all the elements of a common-

law negligence claim, the burden to prove causation under the Jones

Act is "featherweight." Toucet, 991 F.2d at 10 (citations

omitted). Napier need only demonstrate that the vessel's

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"negligence played any part, even the slightest, in producing the

injuries for which the plaintiff seeks damages." Connolly v.

Farrell Lines, Inc., 268 F.2d 653, 655 (1st Cir. 1959) (citing

Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506 (1957)).

The magistrate judge granted summary judgment for this

claim on the ground that Napier had presented no evidence to show

a causal relationship between the fishhook accident and his ulcer.

Taking all factual inferences in favor of Napier, he has shown that

aspirin was available on board the vessel and that he took aspirin

to treat the pain from the fishhook accident. Further, the expert

testimony provided by Napier indicates that aspirin alone can cause

ulcers. For purposes of avoiding summary judgment, Napier has

carried his burden to establish the hooking incident as the cause

of his ulcer.

As an additional ground for denying the Rule 59(e)

motion, the magistrate judge found that even if the captain or

another crew member had given aspirin to Napier, Napier had not

shown that that person knew that Napier had a history of ulcers.

However, the giving of aspirin was not the negligent act. Napier

alleged negligence in the circumstances surrounding the fishhook

accident, which the magistrate judge did not address. Napier's

taking of aspirin is relevant to linking the fishhook accident to

his ulcer. As we described above, we think a jury could find the

requisite causation between the fishhook accident and the ulcer

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even if the ship's captain and crew did not know Napier's medical

history.

D. Unseaworthiness

Unseaworthiness has been defined by the Supreme Court as

a separate cause of action and unique from a claim under the Jones

Act. Ferrara, 99 F.3d at 452 (1st Cir. 1996) (quoting Usner v.

Luckenbach Overseas Corp., 400 U.S. 494, 498 (1971)). The doctrine

of unseaworthiness places an absolute duty upon shipowners to

furnish a "seaworthy" ship and compensate seamen for injuries

caused by any defect in a vessel or its appurtenant appliances or

equipment. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 548-49

(1960); Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st

Cir. 1980). A shipowner is not bound to provide an accident-free

ship, but rather the duty is "to furnish a vessel and appurtenances

reasonably fit for their intended use." Mitchell, 362 U.S. at 550.

That duty extends to all situations aboard the ship, whether

transient or permanent, developing before the ship leaves its home

port or at sea. Id. at 549-50. The absolute duty is such that

even a temporary and unforeseeable malfunction or failure of a

piece of equipment is sufficient to establish an unseaworthy

condition. Ferrara, 99 F.3d at 453 (quoting Hubbard, 626 F.2d at

199).

Liability based upon a claim of unseaworthiness does not

require a showing of negligence, but instead imposes a strict

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liability regime upon shipowners. "The reason, of course, is that

unseaworthiness is a condition, and how that condition came into

being -- whether by negligence or otherwise -- is quite irrelevant

to the owner's liability for personal injuries resulting from it."

Usner, 400 U.S. at 498. For liability to exist, a plaintiff must

first establish the existence of an unseaworthy condition on board

the vessel and then demonstrate the unseaworthy condition to be the

proximate cause of his injury. Ferrara, 99 F.3d at 453. Proximate

cause requires that the unseaworthy condition is the "cause which

in the natural and continuous sequence, unbroken by any efficient

intervening cause, produces the results complained of, and without

which it would not have occurred." Brophy v. Lavigne, 801 F.2d

521, 524 (1st Cir. 1986).

The doctrines of proximate cause and superseding cause

are applicable in admiralty law. See Exxon, Co., U.S.A. v. Sofec,

Inc., 517 U.S. 830, 832 (1996). Napier must demonstrate that

Deesie's negligence in allowing the fishhook accident is the

proximate cause of the injury in order to recover.2 In order for

the negligent act to constitute proximate cause, the act or

omission must be a substantial factor in bringing about harm and

the injury incurred must have been a reasonably foreseeable

2
Because negligence claims are generally based upon state law,
"courts sitting in admiralty may draw guidance from . . . the
extensive body of state law applying proximate causation
requirements and from treaties and other scholarly sources."
Exxon, 517 U.S. at 839.

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consequence. See Veilleux v. Nat'l Broad. Co., 206 F.3d 92, 123-24

(1st Cir. 2000). A determination of proximate cause focuses

primarily on foreseeability and exists when a "prudent person

reasonably could anticipate" the resulting injury. Malavé-Félix v.

Volvo Car Corp., 946 F.2d 967, 971 (1st Cir. 1991) (citing Marshall

v. Pérez-Arzuaga, 828 F.2d 845, 847 (1st Cir. 1987)). However,

Deesie can escape liability in the face of proximate causation by

proving the existence of an unforeseeable intervening cause.

Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288, 296 (1st Cir.

1999). An intervening cause is a new and independent cause of the

harm which is neither anticipated nor reasonably foreseeable by the

defendant: it must operate independently of and occur after the

conclusion of the defendant's negligent conduct. Malavé-Félix, 946

F.2d at 972; Marshall, 828 F.2d at 848.

The magistrate judge granted summary judgment for this

claim on the ground that Napier had presented no evidence to show

a causal relationship between the unseaworthiness of the vessel and

his ulcer. For the reasons discussed above, Napier has presented

sufficient evidence of a causal connection between the fishhook

accident and his ulcer to avoid summary judgment.

Deesie, however, argues that it cannot be held liable

because the aspirin treatment constitutes an intervening cause as

a matter of law. Deesie argues that Napier's ulcer was not a

foreseeable result of providing aspirin on board the ship and that

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Napier's decision to take aspirin despite his history of ulcers was

an independent cause of the harm. We think this is properly an

issue for the jury. A reasonable jury may well conclude that

Napier took matters into his own hands by ingesting a medicine

contraindicative for persons with a history of ulcers. However,

that same jury could find adverse consequences from medical

treatment to be a foreseeable risk arising from a hooking incident

at sea. The issues of foreseeablility and superseding cause are

properly for the jury to decide when there may be reasonable

differences in opinion. Springer v. Seaman, 821 F.2d 871, 876 (1st

Cir. 1987); see also Swift v. United States, 866 F.2d 507, 510 (1st

Cir. 1989) ("Application of the legal cause standard to the

circumstances of a particular case is a function ordinarily

performed by, and peculiarly within the competence of, the

factfinder."); Putnam Res. v. Pateman, 958 F.2d 448, 460 (1st Cir.

1992) ("When, as here, the existence of proximate cause turns on an

issue of superseding causation . . . the jury's role may be

especially significant.").

As an additional ground for denying the Rule 59(e)

motion, the magistrate judge found that Napier had presented no

evidence showing that the presence of aspirin aboard the F/V DEESIE

rendered the vessel unseaworthy. However, Napier alleged that the

vessel was unseaworthy because of the circumstances surrounding the

accident in which a fishhook became embedded in his abdomen.

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Because the magistrate judge did not address the unseaworthiness

alleged by Napier, summary judgment is not appropriate on this

alternative ground.

III.

For the reasons given above, we reverse the grant of

summary judgment on the Jones Act and unseaworthiness claims and

remand the case for proceedings consistent with this opinion.

Reversed and Remanded.

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