Commercial Litigation and Arbitration

Internet Evidence — Medical Article Pulled from Web by Author Who Has Not Examined Plaintiff Inadmissible to Prove Incurability of Plaintiff’s Medical Condition

Debbie Flo, Inc. v. Shuman, 2014 U.S. Dist. LEXIS 14526; 2014 AMC 840 (D.N.J. Feb. 5, 2014):

This matter comes before the Court on the motion of Debbie Flo, Inc. ("Plaintiff") to terminate maintenance and cure, or in the alternative to suspend maintenance until advances are recouped. For the reasons expressed herein, Plaintiff's motion will be GRANTED IN PART, DENIED IN PART.


This action arises from an injury sustained by Kevin Shuman, a commercial fisherman, in October, 2011, while working in the employment of Plaintiff, a commercial fishing enterprise. On October 7, 2011, while working aboard the F/V Miss Laura Louise, Shuman complained of stomach pain and a discharge from his navel. He departed the vessel on his own the following day, and  [*2] was diagnosed with a hernia on October 9, 2011. Several days later, Shuman sought medical treatment for a shoulder injury that he claimed to have sustained while working at sea for Plaintiff. Although Plaintiff contends that Shuman's shoulder injury was not sustained at sea, Plaintiff's insurer began paying maintenance and cure. In addition to maintenance in the amount of $25 per day, the insurer also paid Shuman $50 per day as an advance.

Shuman eventually required two surgical procedures for his shoulder condition, and was also diagnosed with lymphedema, which is a condition involving swelling of the tissue in the chest. Treatment for both of these conditions as well as the hernia were paid for by Plaintiff's insurer. Plaintiff's insurance coverage has evidently now been exhausted, and Plaintiff has moved for a declaratory judgment that no further cure is owed for any treatment of the lymphedema. Plaintiff also seeks permission to apply the advance payments to Shuman as a credit against its future maintenance obligations.


Seamen are entitled to receive maintenance and cure from the vessel owner when they are injured while in the course of their duties at sea. O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 41-42, 63 S. Ct. 488, 87 L. Ed. 596 (1943).  Maintenance is "the living allowance for a seaman while he is ashore recovering from injury or illness," while cure "is payment of medical expenses incurred" in treating the injury or illness. Deisler v. McCormack Aggregates, Co., 54 F.3d 1074, 1079 (3d Cir. 1995). Maintenance and cure obligations are not statutory, but rather have been recognized by maritime law "[f]rom its dawn," dating at least back to the twelfth century. O'Donnell, 318 U.S. at 41; see also Ritchie v. Grimm, 724 F. Supp. 59, 61 (E.D.N.Y. 1989) (tracing these obligations back to the Laws of Oleron, an ancient code of maritime law). Maintenance and cure obligations are owed without regard to fault on the part of the shipowner or the seaman. Barnes v. Andover Co., L.P., 900 F.2d 630, 633 (3d Cir. 1990).

Maintenance and cure payments are owed until the seaman is cured or reaches maximum cure, also called maximum medical improvement ("MMI"). Deisler, 54 F.3d at 1079. MMI is the point at which the seaman is either cured, or at which no further improvement in the seaman's medical condition is reasonably expected. O'Connell v. Interocean Mgmt. Corp., 90 F.3d 82, 84 (3d Cir. 1996). The question of whether an injured seaman has reached MMI is a "medical rather than legal question." Halcomb v. Kimberly Clark Tissue Co., Civ. No. 99-1092, 2000 WL 1802071, at *1 (S.D. Ala. May 31, 2000) (citing Breese v. AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987)). Pre-trial motions relating to maintenance and cure "should be treated as something similar to a motion for summary judgment." McNeil v. Jantran, Inc., 258 F. Supp. 2d 926, 930 (W.D. Ark. 2003). Further, a medical determination that "terminates the right to maintenance and cure . . . should be unequivocal." Tullos v. Res. Drilling, Inc., 750 F.2d 380, 388 (5th Cir. 1985).

Like summary judgment, the Court can thus grant such a motion only if the moving party "shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue is "material" to the dispute if it could alter the outcome, and a dispute of a material fact is "genuine" if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) ("Where the record taken as a whole  [*5] could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'") (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). In deciding whether there is any genuine issue for trial, the court is not to weigh evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility determinations are for the jury, the non-moving party's evidence is to be believed and ambiguities construed in its favor. Id. at 255; Matsushita, 475 U.S. at 587.

A. Lymphedema


Plaintiff ... argues that MMI has been  [*8] reached with respect to Shuman's lymphedema. It is the vessel owner's burden to prove that MMI, or maximum cure, has been attained by the injured seaman. Smith v. Delaware Bay Launch Serv., Inc., 972 F. Supp. 836, 848 (D. Del. 1997). Plaintiff has submitted a reference to an internet article in support of its argument that lymphedema is incurable, and thus MMI has already been reached. See Pl. Mot. at 7. The Court cannot accept this article as the basis for ruling as a matter of law that Shuman has reached MMI. See, e.g., Griego v. Barton Leasing, Inc., Civ. No. 08-2325, 2010 U.S. Dist. LEXIS 14769, 2010 WL 618279, at *3 (D. Colo. Feb. 19, 2010) (articles from the internet are not admissible evidence); St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999) ("evidence procured off the Internet is adequate for almost nothing . . . ."). A showing that MMI has been reached is Plaintiff's burden, and Plaintiff cannot meet it by displaying an internet article written by someone who has not examined Shuman. Established law indicates the need for an individual diagnosis as to the injured seaman's condition. See O'Connell, 90 F.3d at 84 (payment of cure continues until "his condition is diagnosed  [*9] as permanent and incurable.") (emphasis added). There is nothing in the record indicating that such a diagnosis has been made by any doctor as to Shuman's condition. Thus, the Court cannot enter a declaratory judgment that no further cure is owed for lymphedema.2

2   The Court points out that this holding should not be interpreted as deciding that Shuman is entitled to maintenance and cure in connection with him lymphedema. As Plaintiff recognizes, it may stop the payment of maintenance and cure, but must accept the risk that it could be subject to payment of damages if it is later determined that it did so wrongly. See Pl. Mot. at 5; Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 417, 422, 129 S. Ct. 2561, 174 L. Ed. 2d 382 (attorney's fees are only awarded for the callous, willful, and persistent refusal to pay maintenance and cure, while punitive damages are only awarded for the willful or wanton failure to comply with a duty to pay maintenance and cure). The ultimate determination as to the merits of a maintenance and cure claim, when joined with a Jones Act claim, is be made by a jury. Fitzgerald v. United States Lines Co., 374 U.S. 16, 21, 83 S. Ct. 1646, 10 L. Ed. 2d 720 (1963).

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