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August 2, 1985

Joseph Acocella, Plaintiff,
Montauk Oil Transportation Corp., Defendant

The opinion of the court was delivered by: COOPER



Defendant seeks an order compelling plaintiff to submit to an "interview and testing" by a "certified vocational rehabilitation counselor" (so named in the moving papers) pursuant to Fed. R. Civ. P. 26(a), 26(b)(1), and 35. Plaintiff opposes defendant's motion on the grounds that such an order is not permissible under the rules cited by defendant and that the information sought is obtainable through other means.

 Plaintiff, a merchant seaman who seeks to recover damages for alleged injuries sustained at sea, claims, inter alia, that his injuries will prevent future employment. If the jury finds in favor of plaintiff on the question of liability and if plaintiff is indeed prevented from obtaining future employment, he will be entitled to receive the total amount of wages he would have received during the remainder of his work life.

 Defendant asserts that it may be called upon to demonstrate whether and to what extent plaintiff can mitigate his damages by obtaining alternative employment. In connection with this aspect of the defense, defendant wishes to have plaintiff interviewed and tested by a "vocational rehabilitation counselor."

 Defendant cites Fed. R. Civ. P. 26(a) and 26(b)(1) in support of its motion, but we fail to see in what respect Rule 26 applies to the demand for an "interview and testing" by a "vocational rehabilitation counselor." Rule 26(a) simply lists the methods by which discovery may be obtained, including physical and mental examinations. Rule 26(b)(1) addresses the type of information which may be obtained through discovery.

 At issue in defendant's motion is not only the type of information sought but the appropriate method by which to obtain it. Defendant asserts in its supporting affidavit that it seeks information regarding plaintiff's "medical, education and vocational history, and plaintiff's ambition and motivation concerning alternate employment." (Affidavit of John P. James, sworn to June 27, 1985, at 2-3) ("James Affidavit").

 In opposing defendant's motion, plaintiff argues that defendant has had ample opportunity to obtain the information sought in discovery procedures already undertaken. Fed. R. Civ. P. 26(b)(1)(i) and (ii) reads in pertinent part:

 The frequency or extent of use of the discovery methods . . . shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; . . . .

 In response to defendant's requests, plaintiff has undergone one medical examination, one deposition, answered two sets of interrogatories and responded to a request for production of documents. Plaintiff asserts that defendant's instant application is clearly belated. We agree.

 Defendant responds that the requested "interview and testing" is essential because, unlike discovery previously obtained, it will afford the "vocational rehabilitation counselor" the opportunity to evaluate and develop relevant data regarding plaintiff's future employability. Defendant insists that the relief it seeks is within the "broad scope" of Rule 35. (James Affidavit at 3).

 Fed. R. Civ. P. 35 states in relevant part:

 (a) Order for Examination. When the mental or physical condition . . . of a party . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician . . . . The order may be made only on motion for good cause shown . . . .

 Any type of physical or mental examination entails an invasion of personal privacy, but Rule 35 was adopted because "the need for such examinations in the interest of truth and justice" outweighs the consideration of personal privacy interests. 8 C. Wright & A. Miller, Federal Practice and Procedure ยง 2231 (1970) Concern for the protection of personal privacy is evident in the fact that the rule is limited in scope. It specifically and guardedly limits its applicability to an examination by a physician in cases where the physical or mental condition of a party is in controversy.

 Defendant notes that it has retained the services of "DeSimone Rahabilitation Services" to conduct the "interview and testing." According to defendant the "vocational rehabilitation counselors" are "fully qualified to render an opinion concerning plaintiff's ability and aptitude to perform alternate employment and the vocational opportunities available to plaintiff . . . ." (James Affidavit at 2) Defendant has not, however, alleged any facts indicating the qualifications -- imperative educational requisites, performance, experience, etc., etc. -- necessary to become a "certified vocational rehabilitation counselor."

 Even if it is conceded that a "vocational rehabilitation counselor" is an expert in vocational aptitude and "fully qualified" in that field, Rule 35 noticeably lacks a description of the type of person or scope of examination envisioned by the instant application. No authority is cited and we find none either supporting defendant's argument that its suggested "interview and testing" is contemplated by the rule or any other authoritative source approving the relief sought here.

 Clearly there is absolutely nothing in the moving papers before us even suggesting that the proposed "interview and testing" requires the service, in whole or part, of a physician to participate in the "physical or mental examination sought." As noted earlier, plaintiff has already been examined by a physician at defendant's request to determine his physical condition conceded by the parties to be in controversy. As to the need of a mental examination by a physician, nothing is even implied on this application.

 Since nothing appears to the contrary, we take it for granted that a "vocational rehabilitation counselor" does not possess the qualifications of a physician. Finally, defendant has not persuaded us that it has met the "good cause" requirement of Rule 35. It is evident that defendant has had ample opportunity to obtain the information sought by discovery methods provided for by the Federal Rules of Civil Procedure.


 On the basis of the foregoing, we conclude there is no legal authority authorizing the relief applied for herein. Accordingly, we are constrained to, and do, deny the motion.




 Plaintiff moves for a mandatory injunction directing defendant to make maintenance and cure payments of $70.00 per week prior to resolution of that issue at trial.

 Plaintiff, a seaman and a member of the crew of the CIBRO NORFOLK, a vessel operated and controlled by defendant, brings this action in negligence for personal injuries allegedly sustained on May 9, 1984 while in performance of his duties. Among his other claims, plaintiff asserts a cause of action for maintenance and cure under the general maritime law for a reasonable period of his disability which purportedly resulted from the injuries he sustained.

 Following the injury, plaintiff was treated by Dr. George Jerro of Brooklyn, New York, who stated on May 11, 1984, two days after the accident, that Mr. Acocella was not fit for duty. Defendant began making payments for maintenance and cure on May 10, 1984. Subsequently defendant arranged for plaintiff to be examined by its physician, Dr. Mortimer Shapiro, who reported that plaintiff was not disabled and was capable of returning to full duty. Relying on Dr. Shapiro's report, defendant ceased making such payments after July 15, 1984. On July 26, 1984, plaintiff went to see another physician, Dr. Anthony Costa, who diagnosed Mr. Acocella as suffering from "lumbro-sacral sprain and strain, possible herniated lumbar disc," and found his prognosis guarded.

 Plaintiff now seeks to have defendant resume maintenance and cure payments in the amount of $70.00 per week which he asserts were wrongfully terminated. Plaintiff claims that he is in "desperate financial circumstances" (affidavit of Joseph Acocella, verified April 15, 1985, at 1) ("Acocella Affidavit") and thus cannot wait until after trial to receive the money he maintains he presently deserves. Plaintiff seeks a mandatory injunction directing defendant to resume such payments due now and in the future, also an award of attorney's fees and interest.

 The Law

 Under the general maritime law, it has long been recognized that a seaman who becomes ill or injured while in the service of a vessel is entitled to receive maintenance and cure payments from his employer for food, lodging and medical care. See The Bouker No. 2, 241 F. 831, 835 (2d Cir. 1917). Under the common law and up to the present day, a seaman is entitled to receive these payments from the time that he is injured until he reaches maximum cure, i.e., when the incapacity has been cured or when it has been declared permanent. Farrell v. United States, 336 U.S. 511, 517, 93 L. Ed. 850, 69 S. Ct. 707 (1949). Thus, in order for a plaintiff to prove entitlement to maintenance and cure, he must first demonstrate that he was injured and sustained damages as a direct result therefrom. See Musgrave v. Bronx Towing Line, Inc., 219 F. Supp. 918 (S.D.N.Y. 1963).

 Since such an inquiry is a triable question of fact, any determination at this time regarding maintenance and cure would amount to a summary disposition. Indeed, it has often been noted that essential issues involved in resolving disputes over claims of entitlement to maintenance and cure are questions of fact and are not appropriate for summary disposition. For example, in Tate v. American Tugs, Inc., 634 F.2d 869 (5th Cir. 1981), a seaman already receiving $8.00 per day for maintenance and cure endeavored, by injunction, to increase the amount of his payments. The Court there held that the proper amount of maintenance and cure is a question of fact for the trial court and refused to deal with the case summarily by way of an injunction. Id. at 870-71. Also, in Brown v. Sinclair Refining Company, 227 F. Supp. 714 (S.D.N.Y. 1964), the Court recognized that the determination of the date on which an employer's duty to pay maintenance and cure is finally fulfilled is an improper matter for summary judgment. Brown involved a question as to whether plaintiff seaman continued to be disabled. The Court said:

 The fact question remains for decision by trial whether the defendant has discharged its obligation to provide 'actual maintenance and cure, or its equivalent in money, up to the time when the seaman has recovered from his disability to the extent it is reasonable to believe recovery under treatment is possible."

 Id. at 716 (quoting Muruaga v. United States, 172 F.2d 318, 321 (2d Cir. 1949).

 Plaintiff's argument is based on the language of the Supreme Court in Vaughan v. Atkinson, 369 U.S. 527, 530, 8 L. Ed. 2d 88, 82 S. Ct. 997 (1962), that "[e]quity is no stranger in admiralty; admiralty courts are, indeed, authorized to grant equitable relief . . ." Plaintiff asserts that this concept provides a basis for his ability to obtain pretrial payments of maintenance and cure. The facts of Vaughan, however, do not support such an interpretation. The Supreme Court in Vaughan approved an award of attorney's fees, although such an award was usually denied in suits for breach of contract, since it had been found by the fact finder at trial that the employer had acted callously and willfully toward the seaman. Id. Injunctive or summary relief was not mentioned.

 Plaintiff also relied on Tate, supra, in support of his contention that a mandatory injunction is appropriate in the present situation. There the Court noted that perhaps in an extreme case a destitute seaman, who would be irreparably damaged if he did not promptly receive financial help, might have some basis for his argument that he is entitled to an injunction. However, the Court specifically noted that it was not making a decision regarding the availability of such relief. Id. at 871. Instead, it said that a trial on the issue of maintenance and cure was warranted, for it would "accord both parties a full hearing on the evidence instead of the summary presentation inevitably required in considering the issuance of a preliminary injunction." Id. (emphasis added).

 Our Circuit Court of Appeals requires that a plaintiff seeking a preliminary injunction for relief prior to resolution on the merits of a case, bears a heavy burden in meeting stringent standards:

 The movant must make a clear showing of either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.

 State of New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750 (2d Cir. 1977) (citations omitted) (emphasis in original). See also Restaurant Associates Industries, Inc. v. Anheuser Busch, Inc., 397 F. Supp. 1213 (S.D.N.Y. 1973). Moreover, a plaintiff is required to meet his basic obligation to make a clear showing of the threat of irreparable harm. Indeed, such a showing is fundamental and is a traditional requirement of all preliminary injunctive relief. State of New York v. Nuclear Regulatory Commission, supra, at 750. Pertinent also is:

 It is well known that courts are more reluctant to grant a mandatory injunction than a prohibitory one and that generally an injunction will not lie except in a prohibitory form. Such mandatory injunctions, however, are not granted unless extreme or very serious damage will result and not issued in doubtful cases or where the injury complained of is capable of compensation in damages.

 Clune v. Publishers' Association of New York City, 214 F. Supp. 520, 531 (S.D.N.Y. 1963).

 The plaintiff fails to clearly show that he satisfies the prerequisites for granting a preliminary mandatory injunction. First, plaintiff has not demonstrated a convincing showing of probable success on the merits. As noted previously, there are positively conflicting accounts as to the alleged injuries and the consequences thereof. Not only would such a conflict of fact preclude summary judgment; it makes it impossible to determine at this time whether plaintiff is likely to make out a meritorious claim.

 Second, plaintiff has not demonstrated that he will suffer irreparable harm if his motion is not granted. Indeed, he has offered virtually no evidence on this point other than the mere statement in his affidavit that, "I continue to have no other source of income and I am in desperate financial circumstances." (Acocella Affidavit at 1) Considering the reluctance of courts to grant preliminary injunctive relief, particularly in mandatory form, plaintiff's sparse evidence does not sustain his burden of proof. In short, we find that plaintiff has not convincingly shown any present financial hardship.

 The defendant's initial payments to plaintiff do not negate the present issue before us. There is also no merit to the contention in plaintiff's memorandum that plaintiff should be paid now, for it he loses "the defendant will still have the option to recover any monies paid to the plaintiff by bringing an action to recover the same."

 It is the burden of one who moves for a preliminary injunction to satisfactorily show he is entitled to such relief (See citations above). Because preliminary injunctive relief can only be awarded upon "a clear showing" that the movant is entitled thereto, a heavy burden for the movant, State of New York v. Nuclear Regulatory Commission, supra, at 750 (emphasis in original) (citations omitted), plaintiff's motion for a preliminary mandatory injunction, must be denied. Plaintiff's entitlement to receive maintenance and cure from the defendant must await resolution at trial on the merits of the case.

 Motion denied.



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