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August 18, 1981

Fred G. SALEEBY, Plaintiff,
KINGSWAY TANKERS, INC., Defendant and Third Party Plaintiff, v. BAILEY REFRIGERATION CO., INC., Third Party Defendant

The opinion of the court was delivered by: COOPER

On November 18, 1980 the jury delivered a verdict in favor of the plaintiff for $ 1,510,705 on the two theories of liability submitted to it for determination: unseaworthiness and violation of the Jones Act, 46 U.S.C. § 688. *fn1" Pursuant to special interrogatories submitted to it, the jury determined that the plaintiff was 15% contributorily negligent; that of the entire general verdict, past and future medical expenses amounted to $ 263,000.

The defendant now seeks to be relieved of the verdict by moving for judgment notwithstanding the verdict and alternatively for a new trial. The defendant's position is: (1) that the verdict is contrary to the evidence and law; (2) that the verdict is against the weight of the evidence and as such reflects an improper rather than a reasonable appraisal of the evidence. For his part, the plaintiff insists that the total trial record and the law applicable thereto firmly supports the jury's verdict.

The Facts

 Plaintiff, Fred Saleeby ("Saleeby"), commenced his employment as the chief engineer aboard defendant's ship, the T.T. Williamsburg, on August 24, 1974. After two voyages and a nine month vacation, Saleeby rejoined the ship while it was undergoing repairs at the Verlome Shipyard in Rotterdam, Holland on February 23, 1976. It was there that he first learned from the ship's chief steward that the on-board food freezer ("the meat box") was not defrosting properly causing ice to accumulate in the meat box and on the surrounding deck.

 The meat box itself was approximately 20' X 13' X 8' in dimension and was principally used to store food for the crew. It came equipped with an automatic defroster unit which included freon coils, heating coils, a diffuser pan, drain lines and a fan. The problem with the meat box was that certain heating coils in the diffuser and diffuser pan were defective.

 When the automatic defroster unit was activated, the accumulated ice would begin to melt and drain into the diffuser pan and drain line. The water in the pan and drain line would then turn to ice because the heating coils were not working. Eventually, the ice-blocked drain line would cause an overflow of water to accumulate on the deck, diffuser and freon coils-all of which rapidly turned into ice. Because the diffuser and freon coils were covered with ice, no refrigerated air generated from the fan could enter the meat box. Thus, the temperature in the meat box would rise and endanger the food contained therein.

 Shortly after Saleeby learned of this problem, he spoke with Thomas Keenan, the port engineer in charge of repairs aboard the T.T. Williamsburg while it was in the Verlome Shipyard in Holland. Subsequent to inspection of the meat box and an unavailing search for spare parts, Keenan directed Saleeby to manually defrost the meat box when the ship set sail, and to order parts through the home office. In due course, Saleeby notified the captain of the Williamsburg of the meat box deficiency.

 The vessel sailed from Holland bound for the Persian Gulf on March 14, 1976 without the needed parts. A number of attempts at getting the parts then ensued. A requisition dated April 25, 1976 for the parts was sent to the home office; two cablegrams dated June 23 and July 27, 1976 were sent by the captain to Avon Marine (agent of Anndep Steamship Company, the managing agent for the Williamsburg); Saleeby spoke to Mr. Bentsen, president of Nova Marine Co., a spare parts company, as well as with Keenan again in June 1976. Nothing helpful resulted from these requests.

 Throughout this entire period (after the ship sailed from Holland) the meat box was attended to by Walter Seales, 1st assistant engineer; to a lesser extent by Alfred Case and Rufus Cobb, both 2nd assistant engineers; Saleeby and others. The actual procedure they employed in manually defrosting was to shut down the refrigeration equipment; remove the food from the meat box; drag in a hot water hose used to melt the ice from, among other places, in front of and behind the diffuser; and finally remove the ice from the meat box and surrounding deck area. The entire procedure took from 30 to 45 minutes.

 On September 7, 1976, Saleeby, after checking the daily noon log, noticed from the entries therein that the temperature in the meat box was rising. He decided to defrost the meat box. He notified the 3d assistant engineer and proceeded to shut down the refrigeration equipment. He managed to get behind the diffuser unit by climbing over the drain line and under the diffuser. He then opened the vents on the back wall and began melting the ice. Once all the ice in back of the diffuser melted, Saleeby started to return to the front of the diffuser. He got both feet back across the drain line and was just about to stand up when he slipped and fell.

 As to the jury's finding of 15% contributory negligence, it may have been influenced by Saleeby's testimony on cross examination that he did not have to climb behind the diffuser unit to defrost the meat box. *fn2" He could have remained in front of the unit and simply sprayed the hot water behind it. We note in passing that although we will not recalculate the jury's finding as to Saleeby's contributory negligence, the 15% which the jury found is the absolute minimum we would let stand.

 Initially, we reject in toto any contention which the moving papers set forth on the issue of liability. Both quantitatively and qualitatively, the fair preponderance of the credible evidence adduced during this trial supports the jury's verdict as to liability.

 Viewing the evidence in the light most favorable to Saleeby, it is "... so strongly and overwhelmingly in favor of (him) that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against (him)." Bernardini v. Rederi Aì Saturnus, 512 F.2d 660, 662 (2d Cir. 1975). See also 5A Moore's Federal Practice P 50.07(2) at 79-83. Therefore, we deny the motion for judgment n.o.v. in all respects.

 We also disagree with the defendant that plaintiff breached a duty owing to his employer. The "Walker" doctrine, Walker v. Lykes Bros. Steamship Co., 193 F.2d 772 (2d Cir. 1952), although to date not overruled, has repeatedly been unavailing to defendants in our Circuit's Court of Appeals. See Johannessen v. Gulf Trading, 633 F.2d 653, 655 n.3 (2d Cir. 1980); Berke v. Lehigh, 435 F.2d 1073 (2d Cir.), cert. denied, 404 U.S. 825, 92 S. Ct. 55, 30 L. Ed. 2d 53 (1970); Dunbar v. DuBois' Sons Co., 275 F.2d 304, 306 (2d Cir.), cert. denied, 364 U.S. 815, 81 S. Ct. 45, 5 L. Ed. 2d 46 (1960); 1B Benedict on Admiralty, § 25, n.28 (7th Edition, 1980).

 Medical Attention

 For our purposes here, we need not review Saleeby's long medical history prior to his accident on September 7, 1976 except to say that since his childhood he had developed dorsolumbar scoliosis and kyphosis (sometimes referred to as kyphoscoliosis) which caused what was described at trial as an "S" shaped curvature of the spinal column and a moderate rounding or humping of the back; all of which had stabilized well before the time of the accident involved herein. *fn3"

 Saleeby's medical problems began almost immediately after his accident. The captain of the Williamsburg confined Saleeby to his quarters and gave him pain pills. *fn4" Shortly thereafter Saleeby was helicoptered to a hospital in Durban, South Africa; about 10 days later he was repatriated to this country where he sought the treatment of Drs. Hicks and Piggott. *fn5" Dr. Piggott determined that Saleeby had done damage to his back and spine as Saleeby's flexion and extension were greatly reduced. After a short period of bed rest and traction at home, Saleeby was admitted to McLeod Hospital on September 26, 1976. Shortly thereafter and subsequent to a medical work-up, Dr. Hicks declared that Saleeby had a contused kidney which resulted in hematuria. *fn6"

 In October, 1976 Saleeby was admitted to Roper Hospital for "conservative" care. Dr. Barone, a neurosurgeon there, found that Saleeby had numbness and pain in his left leg as well as lower back pain. *fn7" In December, 1976 Saleeby was again readmitted to Roper Hospital with the same complaints and was given medication, physical therapy and traction.

 During 1977, Saleeby was admitted on three separate occasions to Duke Hospital under the care of Drs. Erwin and Nashold. After a battery of tests and therapy which included biofeedback, no improvement in Saleeby's condition was noted. An epidermal dorsal column stimulator was inserted, a portion of which was beneath Saleeby's skin, to help bypass some of the pain in his back and down the left leg. *fn8" By then, Dr. Nashold had also determined that Saleeby had chronic nerve root irritation of the lumbar 5 nerve root and needed to have a pacemaker implanted in lieu of any further use of the stimulator. *fn9"

 In 1978 Saleeby had the pacemaker implanted at Duke Hospital in the hope of eliminating or reducing his pain. The pacemaker remained operational for only three months and this necessitated two follow-up operations. It was during the second such operation that Saleeby developed marked hypoxia as a result of complications from the anesthesia used. *fn10" The marked hypoxia caused permanent damage to Saleeby's heart and lung.

 Saleeby again saw Drs. Hicks and Nashold in 1979 and 1980 complaining of shortness of breath and weakness in the left leg. After a full heart work-up at Duke Hospital, it was determined that Saleeby had permanent nerve damage, slight scarring of the right lung and atrophy of the left thigh. *fn11"

 The parties have agreed as to past medical expenses up to and including the date of trial. *fn12" The defendant has paid certain of these expenses amounting to $ 3,642.38; the claimed unpaid balance is $ 33,783.46.

 As to future medical expenses, there was some conflicting testimony. According to Dr. Balensweig, defendant's doctor, who examined Saleeby twice before trial, "... (Saleeby) reached maximum of active medical care...." On the other hand, Dr. Hicks, plaintiff's internist, testified that Saleeby would incur future expenses for medical attention, for Dr. Hicks planned to see him every two months on a permanent basis assuming "no further aggravation or exacerbation of Saleeby's present condition." The cost for Dr. Hicks' services would be $ 200 per year. Dr. Hicks also stated that Saleeby would need medication for the rest of his life, but was unable to estimate its cost. *fn13" The total future cost for Dr. Hicks' professional services then, assuming Saleeby reached the maximum of his life expectancy, is $ 4,400.

 Further, Dr. Nashold (plaintiff's neurosurgeon) testified that he felt Saleeby would require follow-up care; that Saleeby would require medication in the future; that further surgery would be required only if the pacemaker malfunctioned or some new medical breakthrough developed. The only testimony by Dr. Nashold as to actual costs related to the replacement of the pacemaker. If such surgery eventuated, the costs would be: $ 3,000 for a new device; $ 5-10,000 for hospitalization; and "several thousand dollars" for doctor's bills. *fn14"

 Assuming that a future operation will be required, the maximum amount attributable to this aspect of future medical expenses is $ 17,000.

 Finally, Dr. Piggott (plaintiff's orthopedist) testified that he believed Saleeby would continue under the intermittent care of physicians at Duke hospital, although he was uncertain as to what specific arrangements Saleeby had made. Dr. Piggott thought that there might be a possibility of future surgery for further implantation or adjustment of the pacemaker; that in that event, he would see Saleeby for follow-up care at $ 10 per visit. *fn15"

 Here again, assuming the eventuality of an operation and that Saleeby will see Dr. Piggott several times a year over the period of Saleeby's life expectancy, the maximum of future medical expenses payable to Dr. Piggott is approximately $ 1,100.

 What we have recited on the issue of damages relating to medical attention accorded plaintiff, as well as expenses related thereto, constitutes the highlights of proof most favorable to him throughout the total trial record.

 The law on medical expenses for an injured seaman is clear. "In the event of liability of the shipowner on the ... unseaworthiness claims the injured seaman is entitled to recover indemnity ... for medical expenses reasonably incurred in the past and to be incurred in the future...." Bartholomew v. Universe Tankers, 279 F.2d 911, 916 (2d Cir. 1960). Alternatively, "(recovery) of medical expenses in a Jones Act case is not prohibited as long as plaintiff is not permitted an additional recovery for the same expenses under a count for maintenance and cure." Butwinski v. Penn. R.R. Co., 249 F.2d 644, 645 (2d Cir. 1957). See also Fitzgerald v. United States Lines, 374 U.S. 16, 19-20, 83 S. Ct. 1646, 1649-50, 10 L. Ed. 2d 720 (1963); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 533 (9th Cir. 1962); Krey v. United States, 123 F.2d 1008, 1010 (2d Cir. 1941); Roebling's Sons Co. v. Erickson, 261 F. 986, 987 (2d Cir. 1919).

 Equally axiomatic is that plaintiff has the burden of proving every element of his claim including medical expenses, and of reducing or eliminating by credible proof any speculation or uncertainty as to future medical expenses so that a jury, when applying the fair ...

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