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Rowan v. Chem Carrier Towing, LLC

United States District Court, E.D. Louisiana

May 5, 2015



SARAH S. VANCE, District Judge.

Defendant Chem Carrier Towing, LLC moves for partial summary judgment on plaintiff William J. Rowan's claim for punitive damages for defendant's allegedly arbitrary and capricious denial of plaintiff's cure demand.[1] Defendant also moves the Court to strike the affidavit and report of plaintiff's treating physician Dr. John Sledge.[2] The Court denies defendant's motion for partial summary judgment because plaintiff has offered sufficient evidence to create a question of material fact as to whether defendant arbitrarily and capriciously denied his cure demand. The Court also denies defendant's motion to strike the affidavit and report of Dr. Sledge because Federal Rule 26(a)(2)(B)'s expert report requirement does not apply to treating physicians.


This is a personal injury action arising under the Jones Act, 46 U.S.C. ยง 30104, and general maritime law. Plaintiff alleges that he was injured in two accidents while working as a deckhand for defendant. First, on November 18, 2010, plaintiff injured his left shoulder while working aboard the M/V Sandy B, a vessel owned and operated by defendant.[3] Plaintiff was treated by Dr. Craig Green, who performed a left shoulder arthroscopic rotator cuff repair. Plaintiff re-injured his left shoulder on May 29, 2011 while working aboard the M/V George Batna, another vessel owned and operated by defendant.[4] Once again, Dr. Green performed a left shoulder surgery to repair the damage. Plaintiff also treated with orthopedic surgeon Dr. Felix Savoie, who performed a left shoulder revision surgery on June 5, 2012.[5]

Plaintiff contends that the May 29, 2011 accident also caused a thoracic spine injury "and/or aggravation of a pre-existing thoracic spine condition."[6] Plaintiff underwent thoracic spine surgery on November 26, 2013 and argues that defendant is liable for punitive damages for its allegedly arbitrary and capricious decision to deny payment for the surgery.[7]

Plaintiff's thoracic spine condition was first identified by Dr. Dan Hodges, a pain physician who treated plaintiff at the referral of defense counsel. Dr. Hodges first noticed an abnormality on plaintiff's thoracic spine on January 9, 2013.[8] Upon noticing this abnormality, Dr. Hodges ordered a thoracic spine MRI. The thoracic spine MRI showed an abnormality within plaintiff's thoracic cord "most compatible with an arachnoid or epidermoid cyst."[9] The MRI also depicted herniations at T4-5, T5-6, and T6-7, "all indenting [the] ventral thoracic cord."[10] After reviewing the thoracic spine MRI, Dr. Hodges referred plaintiff to orthopedic surgeon Dr. John Sledge.

Upon learning of plaintiff's thoracic condition, defendant scheduled an independent medical examination (IME) with Dr. Ralph Katz on June 19, 2013. Dr. Katz reviewed plaintiff's medical records, interviewed plaintiff, and performed a physical examination. In response to defense counsel's query "Can Mr. Rowan's November 18, 2010, or May 29, 2011, incident be linked to the back or neck pain to a degree of medical certainty?, " Dr. Katz responded "I do not feel his low back symptoms or thoracic symptoms are attributed to any of the accidents."[11]

After the IME with Dr. Katz, plaintiff continued treatment with Dr. Sledge. Dr. Sledge issued a report on June 26, 2013, concluding that plaintiff suffered from

[s]mall disk herniation at C6-C7, which are longstanding and were non-symptomatic prior to this incident. Since the accident, he has had symptoms of cord compression. There is thoracic spinal cord changes and compression at the level of T5. Flattening of the thoracic cord with distematomyelia at T4-T5 level.[12]

Dr. Sledge further opined that "no further orthopedic surgical intervention is needed" and that "[i]t is highly unlikely that the thoracic cord changes are due to work injury dated May 2[9], 2011."[13] Dr. Sledge then referred plaintiff to Dr. David Weir for a neurological evaluation.

Dr. Weir examined plaintiff on August 19, 2013, and ordered an MRI of plaintiff's thoracic region.[14] On September 10, 2013, after examining the MRI and evaluating plaintiff a second time, Dr. Weir stated that plaintiff would "more probably than not, require surgical decompression" to address his thoracic condition.[15] Dr. Weir further opined that plaintiff's thoracic condition "is, more probable than not, related to his accident occurring on 05/2[9]/2011."[16]

Plaintiff saw a second neurosurgeon, Dr. Alan Appley, on September 11, 2013. After examining plaintiff, Dr. Appley concluded that

Mr. Rowan has a complicated intraspinal process with spinal cord compression from an arachnoid cyst from T4-T5 and a left T6-T7 disc herniation. While the arachnoid cyst is more likely congenital rather than acquired due to trauma, the work injury of May 2[9], 2011 not only aggravated the spinal cord compression from the arachnoid cyst, but it also most likely caused the T6-7 disc herniation. While the disc herniation in and of itself is certainly significant enough to warrant surgery, his spinal cord compression and neurologic compromise are compounded by the presence of the arachnoid cyst.[17]

On October 9, 2013, plaintiff scheduled an "emergency" appointment with Dr. Weir complaining of "excruciating thoracic pain."[18] After examining plaintiff, Dr. Weir concluded that plaintiff's condition was a "neurologic emergency" and stated that plaintiff "needs emergent spinal cord ...

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