Ciolino v. Keystone Shipping Co.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

)

RICCARDO G. CIOLINO, )

)

Plaintiff, )

)

v. )

) Case No. 21-cv-11246-DJC

)

KEYSTONE SHIPPING CO. and )

KEYSTONE MANAGEMENT )

SERVICES, INC., )

)

Defendants. )

)

)

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. February 1, 2024

I. Introduction

Plaintiff Riccardo Ciolino (“Ciolino”) has filed this lawsuit against Defendants Keystone

Shipping Co. and Keystone Management Services, Inc. (collectively, “Keystone”) alleging

negligence under the Jones Act (Count I), unseaworthiness (Count II) and maintenance and cure

(Count III) arising from personal injuries allegedly suffered by Ciolino due to his exposure to

asbestos while working aboard vessels owned and operated by Keystone. D. 1.1 Keystone has

moved to strike Ciolino’s late-filed supplemental Fed. R. Civ. P. 26(a)(2)(C) expert disclosure of

non-retained, treating physicians, D. 83. Keystone has also moved for summary judgment on all

counts. D. 72; D. 89. For the reasons stated below, the Court denies Keystone’s motion to strike,

1 Ciolino has voluntarily dismissed the other Defendants. D. 52, 56.

D. 83, denies Keystone’s first motion for summary judgment, D. 72, and denies Keystone’s second

motion for summary judgment, D. 89.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material

fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect the

outcome of the suit under applicable law.” Santiago–Ramos v. Centennial P.R. Wireless Corp.,

217 F.3d 46, 52 (1st Cir. 2000). The movant bears the burden of demonstrating the absence of a

genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex

v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may

not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 256 (1986), but must come forward with specific admissible facts showing that there is a

genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir. 2010).

The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable

inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

III. Factual Background

Unless otherwise noted, the following facts are undisputed.

A. Ciolino’s Employment by Keystone

Ciolino worked as a commercial fisherman from approximately 1988 through 1995. D. 85

¶ 2; D. 87 ¶ 2. From approximately February 1996 through January 1997, Ciolino was employed

as an Able Seaman by three non-parties and worked on three merchant vessels. D. 85 ¶ 4; D. 87

¶ 4. From April 1997 to September 2011, Ciolino was employed by Keystone as an Able Seaman

and/or a Bosun on several vessels, including the M/V OCEAN CITY, the S.S. CHILBAR, the M/V

CHELSEA, the S.S. KEYSTONE TEXAS and the USNS LCPL ROY M. WHEAT. D. 85 ¶ 5; D.

87 ¶ 5. Finally, from October 2011 to July 2017, Ciolino worked as an Able Seaman and/or Boson

for vessels not owned by Keystone. D. 85 ¶ 6; D. 87 ¶ 6.

B. The S.S. CHILBAR

The S.S. CHILBAR was a steam powered tanker that was built in 1959 and scrapped in

February 2005. D. 85 ¶ 8; D. 87 ¶ 8. While employed by Keystone as an Able Seaman and/or

Boson, Ciolino worked on the S.S. CHILBAR from January 2002 to February 2005. D. 85 ¶ 7; D.

87 ¶ 7. In this role, Ciolino spent alternating periods of weeks or months living and working on

the S.S. CHILBAR and periods of weeks or months ashore and off-duty. D. 85 ¶ 7; D. 87 ¶ 7.

Ciolino spent a total of approximately 600 days working and living on the S.S. CHILBAR. D. 85

¶ 7; D. 87 ¶ 7.

Ciolino claims, and Keystone disputes, that while living on the S.S. CHILBAR, he was

exposed to asbestos in his personal living quarters, the crew’s common living quarters and in many

of the locations on the vessel in which he worked while on watch. D. 85 ¶ 9; D. 87 ¶ 9. Ciolino

testified that other officers on the S.S. CHILBAR had warned him about the presence of asbestos

on the vessel and instructed him not to disturb the asbestos pipe casting and lagging and asbestos

ceiling panels and tiles. D. 88-3 at 10-11, 54-55, 58, 65-66, 68; D. 93-1 ¶¶ 4-6. The officers,

including the captains, chief mate and second mate, told Ciolino that all the pipe insulation, all the

ceiling panels, and the non-steel bulkhead wall panels located within the crew quarters contained

asbestos. D. 93-1 ¶ 4. Ciolino cannot identify asbestos and has never been trained to do so. D.

88-3 at 55; D. 87 at 5; D. 82-7 at 9, 20, 93-94. Ciolino claims that he is not aware of asbestos

exposure while working on other vessels nor of any non-occupational asbestos exposure. D. 85 ¶

10; D. 87 ¶ 10; D. 82-2 at 2-3; D. 82-7 at 19, 34, 41, 54, 74, 78-79.

C. Medical Issues

In 2019, Ciolino developed shortness of breath, fatigue and a right sided pleural effusion

which appeared to be associated with a lung mass or a partially collapsed lung. D. 85 ¶ 11; D. 87

¶ 11. Ciolino was referred to a thoracic surgeon, Dr. Quadri, for diagnostic/therapeutic lung

surgery to treat Ciolino’s right lung condition and to rule out mesothelioma. D. 85 ¶ 11; D. 87 ¶

11. On January 10, 2020, Dr. Quadri performed surgery on Ciolino’s right lung, during which he

observed thickened and abnormal pleura and a trapped and partially collapsed right lower lobe. D.

85 ¶ 11; D. 87 ¶ 11. Following the lung surgery, Ciolino developed an infection on his left arm,

where the operative I.V. had been inserted, which resulted in cellulitis and thrombophlebitis. D.

85 ¶ 12; D. 87 ¶ 12. Because of this complication, Ciolino had to be re-admitted to the hospital,

where he underwent vascular surgery involving drainage of infected tissue and the removal of the

basilic vein on Ciolino’s left arm. D. 85 ¶ 12; D. 87 ¶ 12.

Ciolino has suffered from chronic Benign Asbestos Pleural Effusion (“BAPE”) since

2019.2 D. 85 ¶ 13. As a result of this medical condition, Ciolino has suffered from thickened and

abnormal pleura, pleural plaques, pleural effusions, a collapsed lung, shortness of breath and

2 Keystone disputes this diagnosis, arguing that the medical records of the treating providers do

not show with certainty that Ciolino suffers from BAPE. D. 87 ¶ 13. The records indicate that

Ciolino was being “treated for complications from [BAPE].” D. 82-4 at 1-2 (medical records from

Dr. Roderick). Keystone argues that “Dr. Roderick’s records simply note that plaintiff is treating

with Dr. Liesching for BAPE” and that Dr. Roderick did not independently diagnose plaintiff as

suffering from BAPE. D. 87 at 10. Regardless of which physician rendered the diagnosis, Dr.

Roderick’s records reflect that Ciolino is being treated for BAPE “both [her] office and with . . .

Dr. Liesching.” D. 82-4 at 1.

fatigue.3 D. 85 ¶ 16. BAPE is caused by exposure to asbestos.4 D. 85 ¶ 14; D. 84-1 at 4. BAPE

manifests “within 10 to 20 years after exposure.” D. 81-4 at 5; D. 82-6 at 6.

D. Discovery Dispute

At the request of both parties, the Court granted two, ninety-day extensions on fact and

expert discovery deadlines on September 23, 2022 and December 16, 2022, respectively. D. 65-

66, 68-69; D. 74 ¶¶ 8-9; D. 82 ¶¶ 8-9. After granting the second motion, the Court noted that it

did not anticipate any further extensions. D. 69. In relevant part, the revised schedule provided

that the remaining deadlines would be: fact discovery to be completed by April 3, 2023, expert

disclosures to be made by the party with the burden of proof by June 1, 2023, rebuttal disclosures

due by July 3, 2023, and expert discovery to be completed by August 3, 2023. D. 69.

The June 1, 2023 deadline for filing expert disclosures passed and Ciolino did not serve

any expert disclosures on Keystone by that date. D. 86 at 7. On June 14, 2023, Keystone filed its

first motion for summary judgment. D. 72. By this date, Ciolino had not moved for further

amendment of the scheduling order deadlines. D. 74 ¶ 16; D. 82 ¶ 16. On July 24, 2023, Ciolino

sent Keystone his Supplemental Rule 26(a)(2)(C) Expert Disclosure of Non-Retained Treating

Physicians. D. 82-6 at 17 (regarding treating physicians, Dr. Liesching, Dr. Roderick, and Dr.

Quadri). Keystone has moved to strike this late-filed expert disclosure. D. 83.

3 Keystone disputes this fact, citing to a lack of evidentiary support. D. 87 ¶ 16. The medical

records, however, contain evidence showing that Ciolino experienced these issues and

complications. D. 82-6 at 19-23, 25-27, 29-30, 33-34, 36, 39-45.

4 Keystone objects to Ciolino’s definition of BAPE because Ciolino cites a definition crafted by

legal counsel instead of citing to a definition provided by the treating physicians. D. 87 ¶ 14.

While the exact medical definition may be in dispute, Ciolino has adduced evidence in support of

the fact that BAPE is caused by exposure to asbestos.

IV. Procedural History

Ciolino instituted this action on July 30, 2021. D. 1. Keystone moved to dismiss on

October 15, 2021. D. 14; D. 15. The Court denied the motions to dismiss. D. 40. Keystone has

now moved for summary judgment, D. 72, 89, and has moved to strike the late-filed expert

disclosure, D. 83.5 The Court heard the parties on the pending motions and took these matters

under advisement. D. 98.

V. Discussion

A. Motion to Strike

Keystone moved to strike Ciolino’s late-filed supplemental Rule 26(a)(2)(C) expert

disclosure of non-retained treating physicians. D. 83. The Federal Rules of Civil Procedure

require the disclosure of experts, which are due “at the times and in the sequence that the court

orders.” Fed. R. Civ. P. 26(a)(2)(D). If a party fails to do so, it is “not allowed to use that

information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure

was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). If the Court does not find that

the failure is substantially justified or harmless, it may, in its discretion, choose whether to exclude

an expert at the summary judgment stage or at trial or impose a less severe sanction. Fed. R. Civ.

P. 37(c)(1); Esposito v. Home Depot U.S.A., 590 F.3d 72, 77-78 (1st Cir. 2009). Factors relevant

in the determination of whether to exclude such evidence include: “(1) the history of the litigation;

(2) the sanctioned party’s need for the precluded evidence; (3) the sanctioned party’s justification

(or lack of one) for its late disclosure; (4) the opponent-party’s ability to overcome the late

disclosure’s adverse effects—e.g., the surprise and prejudice associated with the late disclosure;

and (5) the late disclosure’s impact on the district court’s docket.” Esposito, 590 F.3d at 78.

5 The Court allows Keystone’s motions to file a reply brief, D. 88, 96, nunc pro tunc, and has

considered those reply briefs, D. 88-1, 96-1, in the resolution of these motions.

The Court turns to consideration of these factors here. First, it is undisputed that Ciolino

submitted his expert disclosures after the Court’s June 1, 2023 deadline. D. 86 at 7. The Court

granted two, separate extensions of the fact and expert discovery deadlines and indicated that it

was not inclined to grant further extensions. D. 66; D. 69. The parties requested the first extension

because Keystone had a change in lead counsel. D. 74 at 8; D. 82 at 8. The parties requested the

second extension because counsel for both parties had trials and would benefit from more time.

D. 74 at 9; D. 82 at 9. Here, it cannot be said that Ciolino’s failure to disclose experts by the

prescribed deadline has been part of a history of non-compliance with deadlines in this case.6

Compare Santiago-Díaz v. Laboratorio Clínico y de Referencia del Este, 456 F.3d 272, 277 n.4

(1st Cir. 2006) (concluding that the history of the litigation weighed against plaintiff where “the

plaintiff was guilty of several discovery violations besides those related to her expert witness”),

with Esposito, 590 F.3d at 79 (considering the history of the litigation factor where party missed

only one deadline). In addition, this is not a case where Ciolino has ignored pre-sanction warnings

from the Court. See Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003) (affirming dismissal where

party, “having been forewarned of the likely consequences of noncompliance, failed to abide by a

court order to appear for a deposition within seven days”).

Second, preclusion of the experts in this case would be of significant consequence to

Ciolino. See Esposito, 590 F.3d at 78-79. Without these experts, Ciolino cannot prove injury or

medical causation on any of his claims. Because “the sanction carrie[s] the force of a dismissal,

6 The Court acknowledges that since then Ciolino, after requesting three extensions for a total of

sixteen-day extension of the presumptive July 5, 2023 deadline to July 21, 2023, D. 77; D. 79; D.

81) to Keystone’s first motion for summary judgment, D. 72, then filed his opposition on August

2, 2023. D. 84. It appears to the Court, however, that given the time of same, this second missed

deadline is attributed to the same circumstances proffered as justification for the delay in disclosing

experts.

the justification for it must be comparatively more robust.” Id. at 79 (citation omitted). Dismissal

as a sanction should be reserved for extreme misconduct, Young, 330 F.3d at 81, and should not

be granted “casually.” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir. 2002).

Third, Ciolino provides various justifications for his late disclosure. First, the small firm

representing Ciolino was short staffed during the winter and spring of 2023 due to the loss of two

paralegals. D. 86-1 ¶ 3. Ciolino’s counsel also experienced a significant increase in his workload

in April 2023 due to the motion practice in other cases. Id. ¶¶ 4, 8. Between April 2023 and June

2023, Ciolino’s counsel experienced various tragedies in his family that required his attention. Id.

¶¶ 4, 6. In May and June 2023, Ciolino’s counsel explained that he had various familial

responsibilities, most of which required out-of-state travel. Id. ¶¶ 5, 7. Finally, Ciolino’s counsel

developed residual bronchitis in the summer that persisted for six weeks. Id. ¶ 9.

Of course, the fact that Ciolino’s counsel was occupied with other matters “is no excuse,”

Tower Ventures, 296 F.3d at 47 n.3, but the delay was due to extraordinary circumstances cited by

Ciolino’s counsel. See Hobbs v. Am. Sec. Ins. Co., No. 3:08-CV-000471-TBR, 2010 WL 456862,

at *3 (W.D. Ky. Feb. 3, 2010) (finding that plaintiffs’ insufficient discovery responses and delay

in supplementing were substantially justified where counsel showed poor health, repeated hospital

stays, death in the family, and staffing and scheduling concerns).

Fourth, the Court has considered the prejudice to Keystone of going “through the pains of

preparing a dispositive summary judgment motion premised on [Ciolino’s] lack of an expert in an

expert-dependent case.” Esposito, 590 F.3d at 79 (citing Gagnon v. Teledyne Princeton, Inc., 437

F.3d 188, 198 (1st Cir. 2006)). Moreover, Keystone argues that it has been prejudiced by this late

expert disclosure because it unfairly restricted its time for deposing these expert witnesses,

challenging their expertise and methodology under Daubert and preparing for trial. D. 83 at 4.

Ciolino contends that despite his late disclosure, he had previously identified his treating

physicians as expert witnesses in this case, citing his April 2022 Rule 26(a)(1) initial disclosure,

D. 82-1 at 1-2 (identifying, among others, Dr. Roderick, Dr. Liesching and Dr. Quadri, identifying

their medical practices and addresses, and noting as to each that “[i]t is expected that the

aforementioned physicians and practitioners’ knowledge includes but is not limited to Plaintiff’s

injuries, diagnoses, treatment and damages”) and his January 2023 answers to interrogatories, D.

82-2 at 7-8 (identifying these three doctors, among others, as physicians who treated him for BAPE

and related injuries); id. at 11 (identifying Dr. Roderick, Dr. Liesching and Dr. Quadri as witnesses

Ciolino would call at trial). Despite these early identifications of these three experts, Ciolino

argues, Keystone never noticed the depositions or expressed a desire to depose these three experts.

D. 86 at 5. In the later January 2023 interrogatory responses, Ciolino narrowed the number of

witnesses he would call at trial, indicating that he had “not decided who he may call as an expert

witness at trial, however plaintiff may call some or all of his treating physicians; Dr. Sarah

Roderick (P.C.P.), Dr. Timothy Liesching (Lung Specialist) and Dr. Syed Quadri (Lung

Surgeon).” D. 82-2 at 11. Given the sequence of events here, the Court does not conclude that

any prejudice to Keystone outweighs the other relevant considerations in favor of denying

exclusion of Ciolino’s experts.

Lastly, the impact on the docket does not weigh in favor of preclusion of these experts.

Here, although Keystone filed an initial motion for summary judgment based upon the absence of

expert disclosures, it has since filed another such motion on substantive grounds in the wake of

Ciolino’s expert disclosure. The Court has heard the parties on the pending motions, including the

summary judgment motions, and it has not yet set a trial date in this case. Accordingly, the Court

cannot say that the impact on the docket requires the stronger sanction of preclusion.

Because Ciolino has provided a substantially justifiable explanation for the delayed

production of his expert disclosures and upon considering the relevant factors as to whether the

sanction of exclusion of the experts that Keystone seeks is warranted here, the Court denies

Keystone’s motion to strike Ciolino’s late-filed supplemental Rule 26(a)(2)(C) expert disclosure

of non-retained treating physicians.7

B. Keystone’s First Motion for Summary Judgment

In its first motion for summary judgment, D. 72, Keystone’s only basis for seeking

summary judgment is Ciolino’s failure to disclose experts and produce expert reports by the June

1, 2023 scheduling order deadline. D. 73 at 3-4. Keystone argues that without this expert

testimony, Ciolino was unlikely to establish causation, as expert testimony is required to

demonstrate that a causal link exists between Keystone’s conduct and his alleged injuries. Id. at

4-5. The Court denies this summary judgment motion, D. 72, as moot given its decision to deny

the motion to strike Ciolino’s Rule 26(a)(2)(C) expert disclosures.

7 Keystone argues that the Court should allow the motion to strike as to Dr. Quadri also for failing

to comply with Fed. R. Civ. P. 26(a)(2)(B), which requires expert witnesses to provide a written

report “if the witness is one retained or specially employed to provide expert testimony in the case

or one whose duties as the party’s employee regularly involves giving expert testimony.” D. 88-

1 at 3. Keystone argues that Dr. Quadri does not qualify as an expert who is not required to provide

a written report under Rule 26(a)(2)(C). D. 88-1 at 3-4; Garcia v. City of Springfield Police Dep’t,

230 F.R.D. 247, 249 (D. Mass. 2005). Dr. Quadri performed surgery on Ciolino’s right lung in

January 2020 and was his attending physician during Ciolino’s post-surgical hospitalizations. D.

82-6 at 15. Dr. Quadri will testify to Ciolino’s right lung surgery, including his observations and

findings relating to this surgery, and the causal connection between Ciolino’s occupational

exposure to asbestos and the condition of Ciolino’s right lung, pleura and diaphragm at the time

of the surgery, and post-surgical infection and treatment and surgery for same. D. 82-6 at 15. Dr.

Quadri will also testify as to Ciolino’s lung conditions and diseases, including Ciolino’s 2019-

2020 pleural effusion, pleural plaques, thickening of the pleura and partially collapsed right lower

lobe. D. 82-6 at 15. Given this expected testimony, the Court concludes that Dr. Quadri’s

testimony arise from his personal knowledge obtained during the course of examination and

treatment and an expert report is thus not required. Brown v. KFC Corp., No. 05-11167-MBB,

2007 WL 7055476, at *4 (D. Mass. Mar. 19, 2007). The Court, therefore, denies the motion to

strike Dr. Quadri’s expert testimony on this alternative basis.

C. Keystone’s Second Motion for Summary Judgment

1. Negligence under the Jones Act (Count I)

Ciolino claims that Keystone was negligent under the Jones Act because it failed to provide

Ciolino with a reasonably safe place to work. D. 1 ¶¶ 36-39. Under the Jones Act, a seaman may

“maintain an action where an employer’s failure to exercise reasonable care causes a subsequent

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

“must establish all the elements of a common-law negligence claim, the burden to prove causation

under the Jones Act is ‘featherweight.’” Napier v. F/V DEESIE, Inc., 454 F.3d 61, 67 (1st Cir.

2006) (quoting Toucet v. Maritime Overseas Corp., 991 F.2d 5, 10 (1st Cir. 1993)); Ferrara, 99

F.3d at 453. “Liability, therefore, ‘exists if the employer’s negligence contributed even in the

slightest to the plaintiff’s injury.’” Ferrara, 99 F.3d at 453 (quoting Toucet, 991 F.2d at 10). The

Court turns to the elements of the Jones Act negligence claim: Keystone’s duty to Ciolino;

Keystone’s alleged breach of that duty; and that breach allegedly caused Ciolino to be harmed.

Cravo v. F/V SANTA BARBARA, No. 18-12261-PBS, 2021 WL 1087962, at *1 (D. Mass. Feb.

1, 2021).

a) Disputed Issues of Material Fact as to Causation

The parties do not dispute that Keystone had an obligation to Ciolino, one of its seamen,

see 91 at 4-7, and Keystone does not focus its motion on its alleged breach of that duty, id., but

instead contends that the undisputed facts show that Ciolino cannot sustain his burden to show

causation. That is, Keystone contends that there is no admissible evidence of breach that Ciolino

was exposed to asbestos on its vessels or that any such exposure caused his alleged injuries. Id.

Specifically, Keystone argues that Ciolino’s knowledge of asbestos on its vessels, particularly the

S.S. CHILBAR, is based solely upon the alleged statements made by other officers on the boat

and, therefore, is inadmissible hearsay. D. 91 at 6; see Evergreen Partnering Grp., Inc. v. Pactiv

Corp., 832 F.3d 1, 12 (1st Cir. 2016) (noting that inadmissible hearsay cannot be considered on

summary judgment). Ciolino argues that these statements are not hearsay, as they are admissions

of agents of a party opponent, citing Fed. R. Evid. 801(d)(2)(D) (defining a statement offered

against a party opponent that “was made by the party’s agent or employee on a matter withing the

scope of that relationship and while it existed” as non-hearsay). D. 92 at 7.

The statements at issue were made by employees of Keystone who served as officers of

the S.S. CHILBAR.8 D. 93-1 ¶¶ 4-6. These officers, identified as Captain Michael Donovan,

Captain Bill Moran, Chief Mate Dan MacDonald, and Second Mate Jim Kidd, communicated that

the S.S. CHILBAR contained asbestos while they were present on the vessel and working for

Keystone.9 Id. The officers gave warnings about the presence of asbestos while supervising

Ciolino’s work and during safety meetings, id. ¶ 6, and they instructed him not to disturb the

8 Keystone argues that paragraph 4 of Ciolino’s affidavit should be struck. D. 96-1 at 5-6.

Specifically, Keystone argues that Ciolino’s statement about officers, other than Dan MacDonald,

communicating the presence of asbestos on the ship contradicts his deposition testimony. Id.

Although Ciolino did not specifically name all of the officers that warned him about asbestos on

the ship, he indicated in his deposition testimony that multiple officers aboard the S.S. CHILBAR

cautioned him about the presence of asbestos. See D. 82-7 at 53-54, 67; Gillen v. Fallon

Ambulance Serv., 283 F.3d 11, 26 (1st Cir. 2002) (stating that “[a] subsequent affidavit that merely

explains, or amplifies upon, opaque testimony given in a previous deposition is entitled to

consideration in opposition to a motion for summary judgment”). The Court, therefore, will not

strike this paragraph.

9 Keystone argues that paragraphs 5 and 6 of Ciolino’s affidavit also should be struck because they

contradict his deposition testimony. D. 96-1 at 6-7. Specifically, Keystone argues that Ciolino

never testified about any safety meetings during the deposition. Id. The deposition at least

arguably reflects that Ciolino was not asked about safety meetings. See Gattineri v. Wynn MA,

LLC, No. 18-11229-FDS, 2022 WL 123621, at *2 (D. Mass. Jan. 13, 2022) (declining to strike a

paragraph from an affidavit where the statement did “not clearly contradict the deposition

testimony”). The excerpt of the deposition Keystone highlights to suggest that there was

inconsistency between Ciolino’s deposition testimony and his affidavit reflects questioning related

to Ciolino’s participation in union meetings and the substance of those meetings rather than safety

meetings on the vessel. D. 82-7 at 31. The Court, therefore, will not strike these paragraphs.

asbestos pipe casting and lagging and asbestos ceiling panels and tiles. Id. ¶¶ 4-6. Since the

officers, while employed by Keystone on its vessel, made these statements about a safety condition

to a subordinate employee, the statements relate to matters within the scope of the officers’

employment. See Larch v. Mansfield Mun. Elec. Dep’t, 272 F.3d 63, 72 (1st Cir. 2001); see Chery

v. Sears, Roebuck & Co., 98 F. Supp. 3d 179, 187 n.8 (D. Mass. 2015). The officers’ statements

are admissible evidence as to Ciolino’s exposure to asbestos on Keystone’s vessel and the Court

considers them in regard to the motion for summary judgment.

As noted above, various officers on the S.S. CHILBAR warned him about the presence of

asbestos on the pipe insulation, the ceiling panels, and the non-steel bulkhead wall panels located

within the crew quarters. D. 93-1 ¶ 4; D. 88-3 at 10-11, 54-55, 58, 65-66, 68. Ciolino attests that

Chief Mate Dan MacDonald told him that “this dirty white dust in the air and settling on the deck

in the crew quarters, contained asbestos from the ceiling panels moving as the ship flexed in rough

water.”10 D. 93-1 ¶ 7. According to Ciolino, when the asbestos dust collected during rough

weather, Chief Mate Dan MacDonald instructed him and others to “gently sweep up this dust and

then go over the deck with a wet mop so as to keep the asbestos dust from going back into the air

in the crew quarters.” Id.

Ciolino also introduced two Navigation and Vessel Inspection Circulars published by the

United States Coast Guard.11 The first, Navigation and Vessel Inspection Circular 5-80 (“NVIC

10 Keystone argues that paragraph 7 of Ciolino’s affidavit should be struck because it contradicts

Ciolino’s deposition testimony. D. 96-1 at 8-9. The statement in Ciolino’s affidavit regarding

asbestos collecting during bad weather, however, does not contradict his deposition testimony, as

Ciolino did testify to being warned about asbestos during cleanup following rough weather on the

ship. See D. 82-7 at 53. The Court, therefore, will not strike this paragraph.

11 Keystone argues that the Navigation and Vessel Inspection Circulars should be struck because

they constitute inadmissible hearsay. D. 96-1 at 11. The Court concludes that the NVICs are

admissible under the public records exception to the hearsay rule, Fed. R. Evid. 803(8)(A); see In

5-80”), published on March 13, 1980, states, “[a]ll vessels have some asbestos insulation material

on board.” D. 93-3 at 2. The second, Navigation and Vessel Inspection Circular 6-87 (“NVIC 6-

87”), published on September 21, 1987, states, “[s]hips that were constructed between 1940 and

1975 used substantial amounts of asbestos for insulation and fire protection.” D. 93-5 at 1. The

S.S. CHILBAR was built in 1959. D. 85 ¶ 8; D. 87 ¶ 8. The evidence of the officers’ statements

regarding the asbestos on the vessel combined with the NVICs create, at minimum, a dispute of

material fact as to the presence of asbestos on the vessel.

Even assuming arguendo the presence of asbestos on the S.S. CHILBAR, Keystone still

contends that, as a matter of law, Ciolino has failed to show causation. On this record, which

includes the medical records and expert disclosures of three of Ciolino’s treating physicians, the

Court cannot agree. Ciolino’s medical records reflect treatment for BAPE. D. 82-4 at 1-2; D. 82-

3 at 1, 5. His treating physicians are expected to testify to the same at trial and that asbestos

exposure causes BAPE. D. 82-6 at 2, 6, 8-9, 11, 15-16. The evidence, therefore, at least shows a

disputed issue of fact regarding whether Ciolino’s exposure to asbestos on Keystone’s vessel

caused his injury. See Badamo v. Chevron U.S.A. Inc., 602 F. Supp. 3d 646, 661-62 (S.D.N.Y.

2022) (denying summary judgment to defendant on a Jones Act negligence claim where plaintiff

suffering from asbestos-related cancer introduced sufficient evidence “to support at least a

circumstantial case that [plaintiff] was exposed to asbestos on the [defendant’s] vessels”).

Accordingly, the Court denies the motion for summary judgment as to the negligence claim

under the Jones Act, Count I.

re complaint of Armatur, S.A., 710 F. Supp. 390, 402 (D.P.R. 1988); Coates v. A C & S Inc., 844

F. Supp. 1126, 1132-34 (E.D. La. 1994). The public record is admissible unless the opponent can

show that the document indicates a lack of trustworthiness, Fed. R. Evid. 803(8)(B), which is not

challenged here.

2. Unseaworthiness (Count II)

An unseaworthiness claim “enforces the shipowner’s absolute duty to provide to every

member of his crew a vessel and appurtenances reasonably fit for their intended use.” Ferrara, 99

F.3d at 453 (internal citation and quotation marks omitted). This “duty includes maintaining the

ship and her equipment in a proper operating condition, and can be breached either by transitory

or by permanent defects in the equipment.” Id. Unseaworthiness may also “arise from the

employment of an unsafe method of work such as the shipowner’s failure to provide adequate

equipment for the performance of an assigned task or necessary safety equipment.” Vargas v.

McNamara, 608 F.2d 15, 18 (1st Cir. 1979) (citation omitted).

To state a claim for unseaworthiness, a seaman must show “that the unseaworthy condition

was the sole or proximate cause of the injury sustained.” 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.’” Napier, 454 F.3d at 68 (quoting Brophy v. Lavigne,

801 F.2d 521, 524 (1st Cir. 1986)). There need not be a finding of negligence to find

unseaworthiness, as “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.” Ferrara, 99 F.3d at 453 (emphasis in original) (quoting Usner v.

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

Asbestos exposure or the presence of asbestos on the vessel qualifies as an unseaworthy

condition. See Austin v. Unarco Indus., Inc., 705 F.2d 1, 12 (1st Cir. 1983) (stating that

“unseaworthiness can arise not only from something as nautical as a faulty anchor windlass but

from something as unmaritime as the presence on a ship of a hazardous chemical”); see also

Whittington v. Ohio River Co., 115 F.R.D. 201, 210 (E.D. Ky. 1987) (concluding that a vessel

containing friable asbestos is unseaworthy). As discussed in the Jones Act negligence analysis

above, the question of whether the S.S. CHILBAR was in fact contaminated with asbestos remains

a disputed issue of material fact.

As also noted above, Ciolino has at least presented a disputed issue of fact as to whether

the presence of asbestos on the ship was caused his medical conditions, namely his BAPE and

related injuries. To prevail on a theory of unseaworthiness, [plaintiff] ha[s] to prove that the

unseaworthy condition was a direct and substantial cause of his injury.” Gifford v. American

Canadian Caribbean Line, Inc., 276 F.3d 80, 83 (1st Cir. 2002). Ciolino spent a total of

approximately 600 days working and living on the S.S. CHILBAR. D. 85 ¶ 7; D. 87 ¶ 7.

According to Ciolino, the asbestos insulated pipes, ceiling panels and wall panels were located

within the crew quarters, both in the passageways and inside the individual crew cabins. D. 93-1

¶ 4. Ciolino asserts that the asbestos was disturbed both during normal weather conditions due to

the vibration of the vessel from the operation of the steam engine and during rough weather when

the vessel would rock in the sea. D. 93-1 ¶ 7. When the asbestos dust would collect in the crew

quarters, Ciolino was tasked with sweeping it up. Id. The asbestos insulation was also located

within the engine compartment, where Ciolino, on at least one occasion, spent a significant period

of time welding as part of his regular duties while working on the S.S. CHILBAR. D. 93-1 ¶ 8. 12

As noted above, the medical records and experts show that Ciolino is being treated for BAPE,

which is caused by exposure to asbestos. This evidence creates a dispute as to whether Ciolino’s

12 Keystone argues that paragraph 8 of Ciolino’s affidavit should be struck because it contradicts

his deposition testimony. D. 96-1 at 9-10. This paragraph, however, does not contradict Ciolino’s

deposition testimony, as Ciolino did indeed testify that there was insulation in the engine room

and that he had to go to the engine room to weld. 82-7 at 57-59. The Court, therefore, will not

strike this paragraph.

exposure to asbestos while on the S.S. CHILBAR was a direct and substantial cause of his injury.

Gifford, 276 F.3d at 83.

Accordingly, the Court denies the motion for summary judgment on the unseaworthiness

claim, Count II.13

VI. Conclusion

For the foregoing reasons, the Court denies Keystone’s motion to strike Ciolino’s late-filed

Rule 26(a)(2)(C) expert disclosure of non-retained treating physicians, D. 83, and denies as moot

Keystone’s first motion for summary judgment, D. 72. As to Keystone’s second motion for

summary judgment, the Court denies the motion as to all counts, D. 89.

So Ordered.

/s Denise J. Casper

United States District Judge

13 Other than his arguments about Counts I and II, Keystone does not raise a separate basis for

finding summary judgment in its favor as to maintenance and cure claim, Count III. Since “[t]he

basic facts essential to a maintenance and cure recovery are all usually included within a Jones Act

or unseaworthiness recovery,” Jenkins v. Roderick, 156 F. Supp. 299, 304-305 (D. Mass. 1957),

the Court also denies the motion for summary judgment as to Count III.