Petition for Writ of Certiorari — Stevens v. McGinnis, Inc.

Supreme Court, U.S.

FILED

96 885 SEP 9 14)

BEHGE-~O+ THE CLE RS

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1995

DARRELL EDWARD STEVENS,

Petitioner,

Vv.

McGINNIS, INC.,

Respondent.

On Petirion For A Wart Or Certiorari

To Tue Unrrep States Court Or Appeas

For Tue Srxtu Crecurr

PETITION FOR WRIT OF CERTIORARI

MEREDITH L. LAWRENCE

COUNSEL OF RECORD

MerepiTH L. Lawrence P.S.C.

ATTORNEY AND COUNSELOR AT LAw

2890 CHANCELLOR Drive

Surre 110

Crestview Hits, KY 41017-0540

(606) 291-5255

ATTORNEY FOR PETITIONER

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

QUESTIONS

Question No. 1. Does the administration of Maintenance and

Cure under the Doctrine of General Maritime Laws and the

Laws and Rules of Admiralty cause modern-day American

seaman to be victims of unconstitutional denial of equal

protection under the laws?

Question No. 2. Does Vaughn v, Atkinson, 369 U.S. 527

(1962), specifically regarding the need for attorney's fees in

Maintenance and Cure cases need updated and modernized?

Question No. 3. Do the current variations of interpretation by

the District Courts and Courts of Admiralty based upon the

Supreme Court holding in Vaughn v. Atkinson, 369 U.S. 527

(1962) create an environment which prohibits American

seamen from obtaining legal counsel because of their inability

to pay and the Courts unwillingness to award attorney's fees?

A.

B.

PARTIES TO THE PROCEEDING

Petitioner, Seaman Darrell Edward Stevens;

Respondent McGinnis, Inc., wholly owned

subsidiary of McNational, Inc.

= i _ S

——_ ee aT eee eee eee

il

TABLE OF CONTENTS

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS ..............

STATEMENT OF THECASE ............. cc ccsces

APPENDIX

Appendix A

Decision of the United States District Court,

Eastern District of Kentucky at Covington,

ee

Appendix B

Decision of the United States Court of

Appeals, Sixth Circuit, decided and Filed

ESS GUN ALS Caek Sak rab iesxe chk

Appendix C

Order of the United States Court of Appeals,

Sixth Circuit, Denying Petition for Rehearing,

Gains Dae 05, SIG ss FAAS A RG 3la

Appendix D

Expenses Incurred Darrell Stevens v._

McGinnis, Inc., Civil Action No. 93-CV-189 ... 33a

iv

TABLE OF AUTHORITIES

Vaughn v. Atkinson, 369 US 527 (1962)

OPINIONS BELOW

The Petitioner, Seaman Darrell Edward Stevens,

petitions this Court for a Writ of Certiorari to review the May

7, 1996 opinion of the United States Court of Appeals for the

Sixth Circuit affirming the judgment and opinion of the United

States District Court for the Eastern District of Kentucky dated

August 5, 1994, denying reasonable attorney's fees.

The opinion of the United States Court of Appeals for

the Sixth Circuit dated May 7, 1996 is reported at 82 F.3d 1353

(6th Cir. 1996).

JURISDICTION

Petitioner Darrell Edward Stevens, a Ward of this

Court, seeks review of the opinion entered by the United States

Court of Appeals for the Sixth Circuit on May 8, 1996,

specifically and only as it regards a failure to award attorney's

fees following a four-year legal battle with a callous employer.

This petition further seeks a revisiting of the Vaughn v.

Atkinson case, a decision now thirty-four years old which is in

desperate need of update.

The Petitioner seeks to invoke the jurisdiction of the

United States Supreme Court to review the opinion of the

United States Court of Appeals for the Sixth Circuit pursuant

to Section 28 USC Subsection 1254(1).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS

This Petition for a Writ of Certiorari stems from

interpretation of the General Maritime Law of the United States

of America, specifically as it impacts the doctrine of

Maintenance and Cure.

This Petition seeks an interpretation of the

Constitutional Provision providing equal protection of the laws,

specifically as it impacts the doctrine of Maintenance and Cure.

As it is currently administered by the Federal Court

System, the General Maritime Laws of the United States

(specifically Maintenance and Cure) excludes the seaman from

equitable legal counsel fees and therefore needs specific

provisions set out, organized and rendered for the District

Courts to administer equitably and consistently.

STATEMENT OF THE CASE

The original complaint of which this Petition for Writ

of Certiorari arises was filed by Captain Darrell Edward

Stevens, an American Seaman, and a Ward of this Court,

(hereinafter "Stevens") on November 23, 1993 in the United

States District Court for the Eastern District of Kentucky at

Covington.

Stevens sought out a lawyer and retained legal counsel

only after "begging and pleading" for Maintenance and Cure

from his employer-Defendant McGinnis, Inc. (hereinafter

"McGinnis"). Stevens went penniless and became a literal

begger, "in the streets”.

The original complaint sought damages under the Jones

Act for negligence and, under the General Maritime Law for

unseaworthiness for injuries sustained to Stevens and

additionally, requested Maintenance and Cure be awarded by

the Court with reasonable attorney's fees and costs. The

Maintenance and Cure issues were bifurcated from the original

complaint and tried May 28, 1994 to His Honor Judge William

O. Bertelsman.

On August 5, 1994, Judge Bertelsman issued his

Findings resulting in an Order directing Defendant McGinnis,

Inc. to pay Maintenance and Cure to Stevens. No Maintenance

and Cure was paid. Defendant McGinnis and Plaintiff

Stevens both filed timely appeals to the United State District

Court for the Sixth Circuit.

On May 7, 1996, the United States Court of Appeals for

the Sixth Circuit affirmed Judgment and Order of His Honor

William O. Bertelsman in a two to one decision. The opinion

is now reported at 82 F.3d 1353 (Sixth Circuit 1996).

Defendant McGinnis petitioned the Sixth Circuit for a

rehearing on May 21, 1996, same petition being denied on June

13, 1996.

ee ee ee ere Pr |

B. FACTS

Stevens was a fit seaman for decades having worked

most recently for Defendant McGinnis for eight years prior to

his termination on December 8, 1992. During his employment

Stevens sustained an injury by falling from the towknee onto

the deck, striking the back of his head, neck and spine on the

steel gunnel of the boat. He refused immediate evacuation

from the motor vessel and remained on the job, electing to take

over-the-counter medications and continuing on with his

assigned duties. His symptoms resolved for a brief period of

time, but would "come and go" and eventually caused him to

complain while he was at work. He became agitated and

aggravated with his employer, McGinnis and Stevens

symptoms finally progressed to a point where both Stevens and

McGinnis’ supervisor testified at trial that his headaches

extended into behavioral changes.

Medical witnesses retained and called to testify on

behalf of each party disagreed as to whether the complaints of

Stevens were necessarily related to a tumorous condition.

However, all medical witnesses agreed the symptoms, finally

diagnosed as a "paraganglion" tumor located at the base of

Stevens skull existed during his employment, probably at the

time of the fall and before termination on December 8, 1992.

Stevens was fired December 8, 1992, after repeatedly

complaining about dumping environmental contaminants in the

form of bilge oils or bilge slops, oil wastes, and garbage into

navigable waters of the Ohio River. A Federal Prosecutor's

investigation resuited in McGinnis, Inc. pleading guilty to

violation of the Clean Water Act. (See Attached Appendix A).

McGinnis’ guilty plea was presented in November, 1996 and

received by his Honor Herman Weber Southern District Court

for the Western District of Ohio in Cincinnati.

Stevens’ termination by his employer is solely and only

based upon his threat to expose the Defendant McGinnis for

ongoing and surrepticious violations of the Clean Water Act.

4

The persistent refusal of McGinnis, Inc. to pay the

ordered Maintenance and Cure is no more than retaliation upon

the injured and ill Seaman Stevens.

ARGUMENT

Despite prevailing and substantial legal argument, with

resolution in favor of Stevens, the District Court and the Sixth

Circuit refuses to award any attorney's fee.

in this Maintenance and Cure case, the amount sought

is Twenty- Dollars ($20.00) per day which is by its very nature

intended to reflect the basic sustenance needed during Stevens'

convalescence and/or recovery. Who could deduct an equitable

fee from Twenty Dollars?

By failing to equitably award attorney's fees, the

District Court and the Circuit Court set an unconstitutional and

unforgiving process in place by depriving seamen from seeking

redress in the courts.

Are ethical lawyers supposed to take a one-third

contingency from a daily sustanence payment? Without

reasonable attorney's fees, an American Seaman is denied

access to the Court. He is literally a "Ward" and cannot present

his case to the bench. By denying reasonable attorney's fees to

a victorious Maintenance and Cure claimant the Courts cause

a small slice of American Society to go without legal counsel.

Pro bono legal services may be available in theory, but should

not be taxed unnecessarily.

Other statutory compensation such as State Workers

Compensation programs and compensation from

Longshoremen & Harbor Workers Compensastion Act as

amended exclude the Amercian Seaman. Both programs

prescribe equitable/reasonable, atttorney fees for a successful

claimant; and there are no "callous" requirements.

Likewise, Social Security and other disability "acts"

5

ee ae

favor and/or provide for reasonable and equitable attorney fees

when a claimant is successful.

Only the Seaman is alienated from the otherwise

protective "safety net" built into our nation's statutes. Few

Seamen could find the Federal Courthouse and without

reasonable-equitable attorney fees & costs being allowed fewer

lawyers can take-on a Maintenance and Cure case at all.

Currently the system as administered causes increased

pain and suffering to Seamen.

Presumably, hopefully the Supreme Court in Atkinson

did not intend to place such a harsh burden on the American

Seaman.

Finally, the current interpretations of Atkinson result in

the Employer electing to avoid the intent and purpose of the

Doctrine of Maintenance and Cure. By not paying

Maintenance and Cure, four things can happen; all are in the

employers best interest, none the Seaman's:

l. Seaman gets no treatment, goes away or dies;

2. Seaman gets some free treatment, finds another

job, goes away or dies;

a Seaman seeks legal counsel which causes

Employer to come up with some excuse for not

paying Maintenance and Cure thereby avoiding

counsel fees and costs and Seaman and counsel

go away; or the fourth and most likely scenario

is:

4. Penniless Seaman finds Counsel, invests

counsel's time, money and resources, wins a

favorable Maintenance and Cure decision,

employer has to pay Twenty Dollars ($20.00)

per day - no penalty, no costs, no fees, no

incentive to use any effort to assist the next

injured/ill Seaman find medical care, etc., and

Seaman's Counsel closes his office.

6

CONCLUSION

So who pays the Seaman's expenses incurred to present

his claim to the District Court? Without authority from this

Court, how can any Counsel afford to protect the interests of

the Seaman. As presently interpreted, Vaughn v. Atkinson has

seriously curbed the ability of counsel to present a seaman's

claim. If he loses, he loses; if he wins, he loses.

Respectfully submitted

Meredith L. Lawrence

Counsel of Record

Meredith L. Lawrence P.S.C.

Attorney and Counselor at Law

2890 Chancellor Drive

Suite 110

Crestview Hills, Kentucky 41017-0540

APPENDIX A

Eastern District of Kentucky

FILED

August 5, 1994

At Covington

Leslie G. Whitmer

Clerk, U. S. District Court

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

AT COVINGTON

CIVIL ACTION NO. 93-189

DARRELL EDWARD STEVENS, )

Plaintiff,

v. ORDER

McGINNIS, INC.,

es

Darrell Stevens brings this suit under the Jones Act,

seeking damages and maintenance and cure. The maintenance

and cure claim was severed and tried before this court without

a jury on July 28, 1994. Pursuant to Fed. R. Civ. P. 52, the

court renders the following findings of fact and conclusions of

law.

la

FINDINGS OF FACT

McGinnis, Inc. (hereinafter “McGinnis”) operates

towboats and barges upon the Ohio River. From 1985 to 1992,

Darrell Stevens was employed by McGinnis aboard their

vessels, working first as a deckhand and later as a pilot, though

he was not assigned to any particular vessel. While employed

with McGinnis, Stevens was supervised by Michael Carey and

worked occasionally with Steve Buching. Although his work

schedule varied, Stevens normally worked a twelve-hour shift

for six consecutive days followed by three days off.

It is undisputed that, during his employment with

McGinnis, Stevens had an undetected tumor located at the right

base of his skull. It is also undisputed that a physical

examination during the term of employment would have

revealed the tumor. However, the parties dispute whether this

tumor “manifested itself’ during Steven’s employment with

McGinnis.

Allegedly in March 1991, Stevens fell while working on

a boat, striking the steel deck with the back of his head and

neck; the same area where his tumor was located. Although

Stevens reported his fall to Carey, Stevens refused medical

assistance other than some aspirin, and Care did not complete

an accident report on the incident.

Some time after his fall, Stevens began to experience

headaches. Additionally, both Stevens and Carey assert that

Stevens experienced a personality change exhibited by Stevens’

increasingly sour disposition toward others, although Buching

testified that he did not detect any change in Stevens’

personality. It is undisputed that during Stevens’ employment

with McGinnis, he drank alcohol and occasionally had

altercations with his co-employees, both before and after his

2a

fall. However, Carey testified that after Stevens’ fall, Stevens

continually complained to Carey about his headaches and co-

employees. (Doc #54, Dep. Carey, p. 80). On December 8,

1992, both Stevens and Carey were fired.

Five months after he was fired, Stevens was admitted to

St. Elizabeth Hospital for treatment of alcoholism and stomach

ulcers. During a CAT scan, Stevens’ tumor was revealed.

Eventually, a baseball size glomus jugulare tumor,

approximately six centimeters by five centimeters, was

removed from his right neck and skull area. (Doc #53, Dep. Of

Dr. Deutsch, pp. 30-36). After the tumor was excised, Stevens’

headaches disappeared and his disposition towards others

improved.

Stevens contends that, while he as employed with

McGinnis, the tumor manifested itself through his chronic

headaches and his personality change. The medical experts

agree that Stevens’ tumor, a glomus jugulare tumor, is an

extremely rare type. Additionally, the experts agree that it is

possible for the tumor to have been the cause of Stevens’

headaches, although they disagree as to the likelihood that his

headaches were caused by the tumor. (Doc #50, Dep. Of Dr.

Poore, pp. 17-23); (Doc #53, Dep. Of Dr. Deutsch, pp. 40-42);

(Doc #56, Dep. Of Dr. Grier, pp. 12-17); (Doc #59, Dep. Of Dr.

Martin, pp. 25-29). The experts further disagree as to whether

the trauma sustained from Stevens’ alleged fall on the boat

aggravated the tumor and caused a release of hormones, which

caused Stevens’ alleged personality change. /d.

During the trial, the parties stipulated that the

appropriate amount of maintenance in this case is $20 per day.

Moreover, for the purposes of this trial, the parties agreed that

Stevens’ tumor was caused by his employment with McGinnis.

3a

The court finds that the plaintiff experienced some

symptoms of the tumor while employed by McGinnis, namely,

headaches and pressures in the head, and deterioration of his

personality, although the tumor was not diagnosed until after

the employment was terminated. Thus, for the reasons stated

below, this court finds that the tumor “manifested itself,” while

in the employ of McGinnis. However, the court expresses no

view as to whether the fall aggravated the effects of the tumor.

CONCLUSIONS OF LAW

The right to maintenance and cure invoked by the

plaintiff in this case is of ancient origin. As stated in 2 Martin

J. Norris, The Law of Seamen §§ 26:1 to 26:2 (4th Ed. 1985 &

Supp. 1994) [hereinafter “Law of Seamen”':

“For centuries the seaman’s right to

maintenance and cure when sick or injured in the

service of the vessel without willful misbehavior on his

part, has been recognized by the general maritime law.

It has been perhaps the only remedy upon which the

seaman could rely to give him succor in his hour of

need. Maintenance and cure, a remedy without the

defeating rules of contributory negligence, assumption

of risk, the fellow-servant rule of the common law,

fault, etc., is to the seaman a simple and certain

measure of compensation when he finds himself

temporarily or permanently incapacitated. Maintenance

and cure as a working man’s remedy anticipated

industrial workmen’s compensation by a thousand

years. Mistakenly or otherwise, it is understandable

' See also Law of Seamen §§ 26:3 to 26:4 for text of laws dating

from the Middle Ages.

4a

why seamen through their unions have fought valiantly

to retain their right to maintenance and cure as well as

rights under the Jones Act and other remedial statutes)

in preference to any form of compulsory compensation.

Steee

“Maintenance and cure -- a right given by the general

maritime law in consequence of the seaman’s status

resulting from any shipping contract between the

seaman and the master or the vessel -- gives to the

seaman, ill or injured in the service of the ship without

willful misbehavior on his part, wages to the end of the

voyage and subsistence, lodging and care to the point

where the maximum cure attainable has been reached.”

_ As recounted in Law of Seamen, the doctrine of

maintenance and cure was originally designed to prevent the

captain of an oceangoing vessel from stranding ashore a

seaman who was injured or became ill while in the service of

the ship. /d. at §§ 26:3 to 26:8.

The concept of the right to maintenance and cure arising

when one becomes ill in the service of the ship is difficult of

application in cases where, as in the case at bar, a seaman

alternates daily back and forth between the vessel and shore,

rather than engaging in a long voyage. In the landmark case

Aguilar v. Standard Oil Co., 318 U.S. 724 (1943), the Supreme

Court of the United States held that a seaman on shore leave

was to be considered in the service of the ship, because some

recreation by the seaman is necessary for the efficient operation

of the ship. In the Law of Seamen, Norris discusses this

concept, pointing out that “being in the ship’s service has

received a rather liberal interpretation.” Law of Seamen at §

26:23. Discoursing further on the Aguilar case, Norris states:

Sa

“Since the Aguilar Case, a liberal interpretation

of ‘in the service of the ship’ has been applied. A

number of cases have been decided wherein awards of

wages and maintenance and cure have been granted to

seamen ill or injured ashore while in the pursuance of |

their own relaxation and pleasures.

“The effect of the Aguilar decision has been to expand

and elasticize the meaning and extent of the phrase ‘in

the service of the ship’ so that at the present time it

virtually encompasses all of the seaman’s activity from

the time he first boards the vessel to the time that he

departs from her after signing off, and perhaps, for a

reasonable time thereafter should any illness manifest

itself traceable to his activities while in the ship’s

service. The personal nature of the seaman’s activity at

the moment of illness or injury is not the determining

factor in deciding his right to an award. What may

defeat it is his own willful misbehavior.”

Id. (footnotes omitted).

In its argument against an award of maintenance and cure for

Stevens, the Defendant cites the case of Shaw v. Ohio River

Co., 526 F.2d 193 (3rd Cir. 1975) wherein a female crew

member, who worked thirty days on and thirty days off on a

linehaul river boat, was diagnosed with a breast tumor during

her thirty-day off period. That court held that she was not in

the service of the ship at the time the injury manifested itself.

This court holds that Shaw is not in accord with the

modern doctrine of maintenance and cure as discussed in Law

of Seamen, supra. Nor, as is obvious, is Shaw analogous on its

facts with the case at bar. A member of the crew in a linehaul

boat has at least a substantial period where he or she is absent

6a

from the ship and perhaps not subject to recall. This is not the

case with the plaintiff in the instant action. On average,

Stevens worked twelve-hour shifts for six consecutive days

followed by three days off. This court holds that he was

generally in the service of the vessel (or fleet of vessels) at all

times in this situation. Thus, this situation is analogous to the

seaman discussed by Norris, who went home to take a shower

during his lunch period.”

This court believes that a more enlightened application

of the doctrine of maintenance and cure is to be found in

George v. Chesapeake & Ohio Ry. Co., 348 F. Supp. 283, 287

(E.D. Va. 1972). The plaintiff in George was a commuter-type

seaman similar to the plaintiff in the instant case. In George,

it was held that the seaman who was diagnosed with a slow

developing cancer after he left employment with the company,

was entitled to maintenance and cure.

“Since [the seaman] no longer remains in the

ship’s service once he leaves the vessel, in order to

bring himself within the protection of maintenance and

cure his cancer must have either ‘occurred, been

aggravated, or manifested itself while he was on board

his vessel.’ The application of this test is complicated

by the fact that the plaintiff's maladies are merely

manifestations of a slow and insidious disease from

which he apparently has been suffering for 15 years.

This is not the case of some traumatic accident which

originates at an identifiable point in time or an illness

whose first manifestation is disabling. There is grave

doubt as to the exact time the cancer commenced, as

well as doubt concerning the location where it first

2 Law of Seamen, p. 60.

7a

manifested itself, but it may be said with certainty that

mapiveled sel while [the seamun] was employed as ,

ma PRET RER YAN RP gS Be Wren eager ‘ode of

ing J ip and, therefore, [the

seaman] is entitled to maintenance and cure.”

Id. (emphasis added); see also Petition of the United States, 303

F. Supp. 1282, 1311 (E.D.N.C. 1969), aff'd 432 F.2d 1357 (4th

Cir. 1970).

This court notes that the George court gave no weight

to the fact that the plaintiff therein left the ship while on duty

to seek medical advice. Hence, this court holds that the

significant fact is that the plaintiff here experienced symptoms

from the tumor while in the employ of the defendant, and the

tumor would have been diagnosed if he had sought medical

advice while in the employ of the defendant. Cf. Gauthier v.

Crosby Marine Service, Inc., 499 F. Supp. 295, 299 (E.D. La.

1980), reconsidered, 536 F. Supp. 269 (1982), aff'd, 752 F.2d

1085 (Sth Cir. 1985); Rowald v. Cargo Carriers, Inc., 243 F.

Supp. 629 (D. Mo. 1965).

This court also finds that the plaintiff has not reached

maximum cure in that he is receiving medical advice

advocating further surgery or other treatment.

This court further finds that, since the law in this

situation was not clearly established, the defendant is not liable

for punitive damages or attorney’s fees.

The court understands why the defendant is upset at

having to pay for a condition that is not work-related. It must

be recalled, however, that the maintenance and cure is a limited

8a

——

remedy. Lost wages are only partially recoverable. Permanent

disability benefits are not recoverable. On the other hand, it

applies to non-work-related illness. Therefore, defendant must

accept the bitter with the sweet.

As the court has stated on many occasions, a

workmen’s compensation system would be better for the river

trade, both for the employer and the employee. Such is not the

law, however.

Therefore, the court being advised,

IT IS ORDERED AND ADJUDGED as follows:

1. That the plaintiff, Darrell Stevens, is entitled to

maintenance and cure at the stipulated rate of $20.00 per day

from the time his employment was terminated;

2. That the plaintiff, Darrell Stevens, is entitled to

medical expenses for the treatment of his tumor (subject to the

laws of reimbursement by insurance or otherwise) during the

same period;

3. That plaintiff, Darrell Stevens, shall recover nothing

by way of punitive damages or attorney’s fees.

This 5th day of August, 1994.

WILLIAM O. BERTELSMAN,

CHIEF JUDGE

APPENDIX B

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Ruie 24

ELECTRONIC CITATION: 1996 FED App. 0134P

(6th Cir.)

Nos. 94-6091/6404

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Darrell Edward Stevens, )

)

Plaintiff-Appellee, _)

Cross-Appellant, )

)

V. ) ON APPEAL from the

) United States District

McGINNIS, INC., ) Court for the Eastern

) District of Kentucky

Defendant-Appellant, )

Cross-Appellee. )

Decided and Filed May 7, 1996

10a

Stevens v. McGinnis, Inc. Nos. 94-6091/6404

BEFORE: BROWN, WELLFORD, and MILBURN, Circuit

Judges.

BROWN, J., delivered the opinion of the court, in

which MILBURN, J., joined. WELLFORD, J. (pp. 15-18),

delivered a separate dissenting opinion.

BAILEY BROWN, Circuit Judge. In this maritime

common law case, Stevens, formerly a towboat deckhand and

pilot, sued McGinnis, Inc. (“the company”), his former

employer, for maintenance and cure resulting from the removal

of a tumor which afflicted him during his employment with the

company.' After a bench trial the district court found that the

tumor caused certain symptoms, e.g., headaches and

personality changes, from which Stevens suffered during his

employment, and thus that the tumor manifested itself during

Stevens’s service to the company. The district court therefore

awarded maintenance and cure to Stevens. The company

appeals the district court’s judgment. Stevens cross-appeals the

court’s refusal to award him attorney’s fees. For the reasons set

forth below, we AFFIRM the district court’s judgment.

I. FACTS

The company, which operates barges and towboats on

the Ohio River, employed Stevens, first as a deckhand and later

' Stevens originally filed this suit seeking maintenance and cure

under maritime common law and damages under the Jones Act, 46 U.S.C.

app. § 688 (1988). The district court severed the maintenance and cure

claim from the Jones Act claim. Only the maintenance and cure claim is

before this court.

lla

Stevens v. McGinnis, inc. Nos. 94-6091/6404

as a pilot, from 1985 until 1992. Stevens’s years with the

company were marred by alcoholism and occasional fighting

with coworkers. He was, however, a generally agreeable

worker prior to March of 1991. At that time, Stevens fell on

the deck of a towboat and suffered a blow to the head and neck.

He reported the fall to his supervisor, but did not seek medical

attention. After the fall, Stevens began complaining of

headaches. Throughout the next year and a half, the headaches

grew so frequent that Stevens “complained continuously,”

according to his supervisor, Michael Carey. Moreover, Carey

testified that Stevens’s personality changed after his fall.

While he was admittedly a quick-tempered and occasionally

violent man before he fell, after the fall Stevens had

considerable difficulty relating to his fellow employees and

handling even minor job-related problems. Stevens’s

headaches grew severe and his disposition even poorer. In

Carey’s words, “it was like dealing with just a different

person.”

Stevens's employment problems culminated on

December 8, 1992, when he fought with another employee and

allegedly threatened Carey with a gun (Stevens denies that he

threatened Carey). The company fired both Stevens and Carey

on that day.

Five months later, Stevens entered a hospital seeking

treatment for alcoholism and stomach ulcers. While in the

hospital, Stevens underwent a CAT scan which revealed a

baseball-sized glomus vagale tumor in his neck below his right

ear. A glomus vagale tumor is a very rare, noncancerous type

of glomus jugulare tumor (also known as a paraganglioma)

which occurs in the head and neck. This particular type of

12a

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

tumor occurs so infrequently that there are only approximately

one hundred reported cases of them in medical literature. In

June of 1993, a surgeon, Dr. Deutsch, removed the tumor from

Stevens’s neck. Thereafter, Stevens’s headaches subsided and

his personality improved. Accordingly to his family physician,

Dr. Poore, Stevens became “a model citizen” after his surgery

and recuperation. The company argues, however, that

Stevens’s improved condition also corresponded with an

apparently successful treatment for alcoholism.

After the surgery, Stevens, who is characterized by his

attorney as a “homeless pauper” who is “completely penniless,”

requested that the company provide him maintenance and cure

payments to help defray his living expenses and the costs of his

surgery and recuperation. The company refused, and Stevens

filed this suit.

After a bench trial, the district court found, as a matter

of fact, that the tumor caused Stevens’s headaches and

personality changes.’ The court thus concluded that the tumor

“manifested itself’ during Stevens’s employment with the

company. Therefore, the district court ordered the company to

pay maintenance to Stevens beginning on the day of the

termination of this employment through the point at which he

reaches maximum cure, in the amount of twenty dollars per

day. Moreover, the court ordered the company to pay the

“medical expenses for the treatment of his tumor . . . during the

same period.” The court held, however, that “since the law in

this situation was not clearly established, the [company] is not

2 The district court, however, specifically refused to make a

finding regarding whether Stevens’s fall affected the tumor.

l3a

Stevens v. McGinnis, Inc. Nos. 94-6091/6404

liable for . . . attorney’s fees.”

The company appeals the judgment of the district court,

claiming that the court’s findings of fact were clearly

erroneous, and that it erred in holding that maritime common

law requires it to pay maintenance and cure to Stevens. Steven

cross-appeals, claiming he is entitled to attorney’s fees.

Il, ANALYSIS

A. The district court’s factual findings are not clearly

erroneous.

We review a district court’s findings of fact for clear

error. Fed. R. Civ. P. 52(a). “A finding is ‘clearly erroneous’

when although there is evidence to support it, the reviewing

[court] on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” Concrete Pipe

& Prods. v. Construction Laborers Pension Trust, 113 S. Ct.

2264, 2279 (1993) (quoting United States v. United States

Gypsum Co., 333 U.S. 364, 395 (1948)).

At trial, the district court considered the testimony of

four physicians; two called by each side. Predictably, the two

doctors Stevens called, Dr. Poore (Stevens’s family physician)

and Dr. Martin, testified that the tumor probably caused the

headaches and personality problems Stevens endured between

his fall and his surgery. The company’s physicians, Dr.

Deutsch (who actually removed the tumor) and Dr. Geier,

testified that it was unlikely that the tumor caused Stevens’s

problems. Without going into detail regarding the scientific

testimony, suffice it to say that the experts on both sides

l4a

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

offered scientific rationale tending to support their conclusions,

and that one cannot satisfactorily reconcile the differing

opinions.

Perhaps the most compelling evidence presented

concerning the tumor was how rare this type of tumor actually

is. As noted above, only approximately one hundred similar

tumors are known to have occurred. It is therefore difficult to

know exactly what effects such a tumor could produce. The

district court thus had to make a difficult finding based on

conflicting evidence regarding a rare tumor. The only

undisputed facts were that the tumor existed during Stevens’s

employment with the company, and that Stevens’s symptoms

subsided after the tumor was removed.’ After a review of the

record, we are not left “with a definite and firm conviction” that

the district court made a mistake. Thus, we conclude that the

district court did not clearly err in finding that the tumor caused

Stevens’s headaches and personality changes from which he

suffered during his employment. Cf. Sentilles v. JInter-

Caribbean Shipping Corp., 361 U.S. 107, 109 (1959) (holding

that a jury may draw an inference as to the cause of an illness

despite the lack of unanimity among experts as to the cause).

B. The company must provide maintenance and cure

to Stevens.

Assuming the district court’s factual conclusions to be

correct, whether the doctrine of maintenance and cure is broad

enough to include Stevens’s claim is a legal question, and thus

3 As indicated above, however, the company argues that the

symptoms subsided because Stevens had quit drinking.

15a

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

we review it de novo. United States v. Spinelle, 41 F.3d 1056,

1057-58 (6th Cir. 1994).

I Maintenance and Cure Law

In Blainey v. American Steamship Co., 990 F.2d 885

(6th Cir.), cert. denied, 114 S. Ct. 346 (1993), we provided the

following basic synopsis of maintenance and cure law:

Rather than relying upon the protection of

workers’ compensation statutes, seamen who suffer

illness or injury on the job look to a unique package of

remedies. Due to “historical tradition and the

realization that seamen are required to endure special

perils and hardships,” federal common law of the sea

accords seamen special relief not available to other

workers, including maintenance [and] cure .... Thomas

J. Schoenbaum, Admiralty and Maritime Laws § 5-1

(1987). Maintenance refers to a shipowner’s obligation

to provide a mariner with food and lodging if he

becomes injured or falls ill while in service of the ship,

while cure alludes to the duty to provide necessary

medical care and attention. See Al-Zawakari v.

American S.S. Co., 871 F.2d 585, 586 n.1 (6th Cir.

1989). A shipowner is liable to pay maintenance and

cure to the point of maximum cure, that is, when the

seaman’s affliction is cured or declared to be

permanent. See Farrell v. United States, 336 U.S. 511,

517-19 (1949).

Blainey, 990 F.2d at 886-87.

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Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

The shipowner’s obligation to pay maintenance and

cure stems from two basic policy concerns recognized by

maritime law for hundreds of years. See Martin J. Norris, The

Law of Seamen § 26:4 (1985) (stating that the roots of the

obligation to pay maintenance and cure are found in medieval

sea codes). These two policy concerns are (1) the well-being

of seamen aboard ship and in foreign ports, and (2) the

importance of a capable merchant marine to the economic and

military security of a nation. Justice Story, sitting as a circuit

judge, once stated the concerns underlying maintenance and

cure as follows:

Seamen are by the peculiarity of their lives

liable to sudden sickness from change of climate,

exposure to perils, and exhausting labour. They are

generally poor and friendless, and achquire habits of

gross indulgence, carelessness, and improvidence. If

some provision be not made form them in sickness at

the expense of the ship, they must oftgen in foreign

ports suffer the accumulated evils of disease, and

poverty, and sometimes perish from the want of

suitable nourishment. ... If [the costs of maintenance

and cure] are a charge upon the ship, the interest of the

owner will be immediately connected with that of the

seaman. The master will watch over their health with

vigilance and fidelity. He will take the best methods, as

well as to prevent diseases, as to insure a speedy

recovery from them. He will never be tempted to

abandon the sick to their forlorn fate... . Beyond this,

is the great public policy of preserving this important

class of citizens for the commercial service and

maritime defence of the nation. ... Even the merchant

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Stevens v. McGinnis, Inc. Nos. 94-6091/6404

himself derives an ultimate benefit from what may

seem at first an onerous charge. It encourages seamen

to engage in perilous voyages with more promptitude

and at lower wages.

Harden v. Gordon, 11 F. Cas. 480, 483 (C.C.D. Me. 1823) (No.

6,047); see also Vella v. Ford Motor Co., 421 U.S. 1, 3-4

(1975) (stating that the duty to pay maintenance and cure

encourages maritime commerce and assures the well-being of

seamen). _

Over the years, the courts have broadened the duty to

pay maintenance and cure. It is now well-settled that

maintenance and cure is payable even though the shipowner is

not at fault, and regardless of whether the seaman’s

employment caused the injury or illness. Calmar S.S. Corp. V.

Taylor, 303 U.S. 525, 527 (1938). In Taylor, the Supreme

Court established that the duty to pay maintenance and cure

does not necessarily end with the voyage on which the seaman

falls ill, but can continue beyond that voyage. The Court wrote

that

whether the seaman is at home or abroad, his right to

maintenance and cure may outlast the voyage. The

policy underlying the obligation, so cogently stated by

Justice Story in Harden v. Gordon, . . . and the

liberality with which admiralty courts have traditionally

interpreted rules devised for the benefit and protection

of seamen who are its wards . . . call for some extension

of the duty beyond the term of service.

Id. at 529. The Court determined, however, that, in cases

18a

Stevens v. McGinnis, Inc. Nos. 94-6091/6404

where the seaman suffers from a disease “which manifests itself

during his employment, but is not caused by it,” the

shipowner’s duty is to expend such funds as are necessary only

to put the seaman in such condition “as reasonably may be

expected to result from nursing, care, and medical treatment.”

Id. at 530 (emphasis added). Thus, the shipowner is not

required to support the ill seaman for the rest of his life.‘

The 7aylor opinion had a major impact on maintenance

and cure law. Beyond its actual holding, the opinion

reaffirmed that seamen are considered wards of the court, and

that the rules devised for their “benefit and protection” should

be construed liberally. Also, it added the term “manifests

itself” to the maintenance and cure lexicon, so that the

following rule is often repeated: A shipowner must pay

maintenance and cure for any illness or injury which occurred,

was aggravated, or manifested itself while the seaman was in

the ship’s service. Norris, supra, at § 26:21.

Since Taylor, the Supreme Court has heard four

maintenance and cure cases: Aguilar v. Standard Oil Co., 318

U.S. 724, 737 (1943) (holding that a seaman is entitled to

maintenance and cure even if he falls ill or is injured while

ashore, as long as he is subject to the call of duty); Farrell v.

United States, 336 U.S. 511, 517 (1949) (holding that a seaman

who overstays his shore leave and injures himself through his

own negligence is entitled to a reasonable period of

maintenance and cure, but not to maintenance and cure for

* The Court expressly reserved, however, the question of the

shipowner’s duty where the seaman is injured or made ill as a result of his

employment. Taylor, 303 U.S. at 530.

19a

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

life); Vaughan v. Atkinson, 369 U.S. 527, 533 (1962) (holding

(1) that a sick seaman who is forced to work because his former

employer refuses to pay maintenance and cure is not required

to set off his earnings against a maintenance and cure award,

and 92) that the seaman may recover attorney’s fees as

damages when the former employer unreasonably refuses to

pay maintenance and cure); and Vella v. Ford Motor Co., 421

U.S. 1, 4 (1975) (reversing this court and holding that an

injured seaman shall recover maintenance and cure until his

injury is declared permanent , not just until it becomes

permanent). In each case, the Court refused the opportunity to

restrict the scope of maintenance and cure liability. In fact, in

all four cases, the Court commented on the “breadth and

inclusiveness of the shipowner’s duty.” Vella, 421 U.S. at 4

(“[T]he breadth and inclusiveness of the shipowner’s duty

assure its easy and ready administration for ‘[i]t has few

exceptions or conditions to stir contentions, cause delays, and

invite litigations.” (quoting Farrell, 336 U.S. at 516));

Aguilar, 318 U.S. at 730-31 (“So broad is the shipowner’s

obligation, that negligence or acts short of culpable misconduct

on the seaman’s part will not relieve him of the

responsibility.”); Farrell, 336 U.S. at 516 (“it has been the

merit of the seaman’s right to maintenance and cure that it is so

inclusive as to be relatively simple, and can be understood and

administered without technical considerations.”); Vaughan, 369

U.S. at 532 (“[T]he shipowner’s liability for maintenance and

cure [is] among ‘the most pervasive’ of all and . . . it [is] not to

be defeated by restrictive distinctions nor ‘narrowly confined.’

[Aguilar, 318 U.S. at 735]. When there are ambiguities or

doubts, they are resolved in favor of the seaman.”).

When one reviews the body of maintenance and cure

20a

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Stevens v. McGinnis, Inc. Nos. 94-6091/6404

law in this country, including the Supreme Court cases

discussed supra and the numerous circuit court and district

court decisions on the topic (some of which are discussed

infra), it becomes apparent that the courts have not yet defined

any distinct bounds to the shipowner’s duty to provide

maintenance and cure. Nonetheless, in the case before us, the

company asks us to decide that the district court went too far

when it awarded maintenance and cure to Stevens.

2. This Case

The company argues that, even assuming the tumor

caused Stevens’s headaches and personality changes, we should

reverse the district court’s award of maintenance and cure. The

company asserts that the tumor did not actually become

“manifest” until it was discovered through the CAT scan five

months after the company fired Stevens. Stevens, on the other

hand, contends that the tumor “manifested itself,” through the

headaches and personality changes, while he was in the service

of the ship, i.e., during his employment with the company. The

parties primarily argue about meaning of the verb “to manifest”

as it is used in the cases and treatises. This argument is largely

wasted. The parties fail to realize that the resolution of this

case does not depend on the meaning of the verb “to manifest.”

The word is widely used in this context only because in 7: aylor,

the Supreme Court chose it to help distinguish between

illnesses and injuries actually caused by a seaman’s

employment and those which merely come to be known during

his employment. There is no precedent binding on this court

that restricts us to resolving this case based on a definition of

“to manifest.”

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

The real question facing us is: Must the company pay

maintenance and cure only when a seaman’s illness is

diagnosed during his employment, or must the company pay

maintenance and cure to any seaman whose illness caused

symptoms during his employment, even if the illness is not

diagnosed until after the seaman’s employment terminates?

Neither the Supreme Court nor this court has ever directly

addressed this question. In Vaughan v. Atkinson, however, the

Supreme Court stated that “[m]aintenance and cure is designed

to provide a seaman with food and lodging when he becomes

sick or injured in the ship’s service.” 369 U.S. at 531

(emphasis added). There is no mention of manifestation at all.

That opinion provides us with guidance. As noted

above, the Court granted certiorari in Vaughan to determine

whether the seaman was entitled to attorney fees, and whether

the shipowner could set off wages that the seaman earned while

sick against maintenance payments. In Vaughan, the seaman

entered a hospital five days after the end of his employment

with the shipowner. The hospital treated him for tuberculosis.

Id. at 528. After nearly two months, the hospital discharged the

seaman, who then spent two years in outpatient status.

Eventually, two years and five months after his voyage ended,

the seaman was declared fit for duty. /d.

During his two years of recuperation, the seaman

attempted to recover maintenance and cure from his former

employer. The employer questioned the seaman’s supervisors

and determined that the seaman had not complained of any

illness during his service aboard ship. /d. The employer

therefore repeatedly denied the seaman’s claims for

maintenance and cure. Jd. The seaman did not recover

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Stevens v. McGinnis, Inc. Nos. 94-6091/6404

maintenance and cure until, after a trial, the district court

ordered the shipowner to pay it. Vaughan v. Atkinson, 200 F.

Supp. 802, 803 (E.D. va. 1960). The court, however, denied

the seaman’s claim for attorney’s fees. /d. at 804. After the

Fourth Circuit affirmed the judgment, Vaughan v. Atkinson,

291 F.2d at 813, 815 (4th Cir. 1961), the Supreme Court heard

the case and determined that the seaman was indeed entitled to

attorney’s fees. 369 U.S. at 533. In reaching its decision, the

Court noted that maintenance and cure “was plainly owed [the

seaman] under the laws that are centuries old.” Jd. at 531.

While this language from Vaughan is arguably dicta

since the Court granted certiorari to determine whether the

seaman was entitled to attorney’s fees, not whether he was

entitled to maintenance and cure, it nonetheless persuades us to

affirm the district court in this case. The Vaughan Court

obviously believed that the seaman was entitled to maintenance

and cure. Stevens, like the seaman in Vaughan, entered a

hospital after his employment had ended. As in Vaughan, it is

clear that Stevens became ill while “in the service of his ship.”

Moreover, unlike the seaman in Vaughan, Stevens actually did

complain of his illness, ie, the headaches, during his

employment. The only relevant distinction between the two

cases is that Stevens was diagnosed five months after his

employment terminated, rather than five days. We do not

believe, however, that this difference compels a different result.

In both cases, the seaman was afflicted while “in the service of

his ship.” That Stevens was remiss in seeking treatment does

not scuttle his claim. Thus, based on Vaughan, we hold that

Stevens is entitled to receive maintenance and cure until he

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

reaches maximum cure.°

c. Denying attorney’s fees was not an abuse of

discretion.

We review a district court’s decision regarding whether

to award attorney’s fees in admiralty cases for an abuse of

discretion. Breese v. AWI, Inc., 823 F.2d 100, 103 (Sth Cir.

1987) (cited with approval in Al/-Zawkari v. American S.S. Co.,

871 F.2d 585, 590 n.8 (6th Cir. 1989)). “An abuse of discretion

exists when the district court applies the wrong legal standard,

misapplies the correct legal standard, or relies on clearly

erroneous findings of fact.” First Technology Safety Sys. v.

Depinet, 11 F.3d 641, 647 (6th Cir. 1993). The standard for

awarding attorney’s fees in maintenance and cure cases derives

> The Vaughan opinion also supports the several cases in which

courts have awarded maintenance and cure based solely on the presence of

an insidious disease during a seaman’s employment. E.g. Petition of the

United States, 303 F. Supp. 1282, 1311 (E.D.N.C. 1969) (“Clearly the claim

for maintenance and cure is valid even though the lung cancer may not have

manifested itself while in the service of the ship. Obviously [the seaman]

had the malignancy while aboard the [ship].”), aff'd, 432 F.2d 1357 (4th

Cir. 1970); George v. Chesapeake & O. Ry., 348 F. Supp. 283, 287 (E.D.

Va. 1972) (“Obviously this malignancy was present during his daily periods

of being in the service of his ship and, therefore, [the seaman] is entitled to

maintenance and cure.”). We need not go quite so far, however, because in

this case the district court found that Stevens suffered from symptoms of the

tumor while employed by the company. Unlike the seamen in Vaughan,

Petition of the United States, and George, Stevens did complain of illness

during his employment. Thus, we need not decide the question of whether

the mere existence of an insidious disease during a seaman’s voyage entitles

him to maintenance and cure from the shipowner, no matter how long it

takes for the seaman to discover the disease.

24a

Stevens v. McGinnis, Inc. Nos. 94-6091/6404

from Vaughan v. Atkinson, 369 U.S. at 530-31. In Vaughan,

the Supreme Court awarded attorney fees after concluding that

the shipowner was “callous” and recalcitrant in its “willful and

persistent” refusal to pay maintenance and cure which was

“plainly owed.” Jd.; see also Holmes v. J. Ray McDermott &

Co., 734 F.2d 1110, 1118 (Sth Cir. 1984) (same standard) (cited

with approval in Al-Zawkari, 871 F.2d at 590 n.8 (6th Cir.

1989)).

Thus, the first step in deciding whether the seaman is

entitled to attorney’s fees requires us to determine whether

maintenance and cure was plainly owed. The district court

denied attorney’s fees because it found that existing law did not

clearly establish liability in this case. Thus, the court

determined that the company had a reasonable defense to

Stevens’s claim, and therefore “did not act callously or with

indifference to the seaman’s plight” in denying it.

Given the similarities we find between this case and

Vaughan, we are tempted to reverse the district court on this

point. We note, however, that the district court found that

liability was not clearly defined. Because the portions of the

Vaughan opinion on which we rely are arguably dicta, and

because that opinion’s relevance completely escaped the

parties, we hold that liability for maintenance and cure in this

case was not so clear that the district court abused its discretion

in denying attorney’s fees.

III. CONCLUSION

We AFFIRM the district court’s judgment.

25a

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

HARRY W. WELLFORD, Circuit Judge, dissenting.

Noting a paucity of information about the rare condition known

as a glomus jugulare tumor and a conflict among the testifying

experts as to whether Stevens’ tumor caused his alleged

headaches and personality change, the majority holds that the

district court reasonably found that plaintiff established that

those problems were attributable to the tumor. Unlike the

majority, I am left “with a definite and firm conviction” that the

district court’s factual finding on this issue was erroneous.

Therefore, I respectfully dissent and would reverse the award

of maintenance and cure in this case.

In my view, there are two problems with the district

court’s finding. First, there is very little in the record, beyond

Stevens’ own self-serving allegations, tending to prove that

Stevens actually experienced the severe headaches and

personality change now alleged to be attributable to the tumor.

Stevens’ experts concede that his tumor could have existed

asymptomatically. Although those same doctors testified that

Stevens experienced headaches and a personality change, their

assessment of his physical condition was based solely on

information provided by Stevens. Additionally, prior to this

lawsuit, the only indication that Stevens ever complained of

such maladies to McGinnis or to his fellow employees was the

testimony of Michael Carey, a co-worker who was fired by

McGinnis on the same day as Stevens.' Furthermore, Stevens

failed to make reference to any “personality change” in an

' Carey admitted that he failed to inform McGinnis of several

violent episodes involving Stevens in 1991 and 1992. He further testified

that he did not know that Stevens had or was treated for an alcohol abuse

problem.

26a

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

April 18, 1994 affidavit concerning his employment with

McGinnis. Finally, Stevens did not indicate to any of the

various doctors involved in his 1993 treatment for alcoholism

and stomach ulcers that he was suffering from persistent

headaches or behavioral changes. This is confirmed by the

reports of Dr. James Linne, Dr. Daniel Barkdoll and therapist

Tom Volker.

Even if Stevens did experience these problems, the

proof is strong that they were caused by his alcohol abuse, not

the tumor. Stevens, part of a family afflicted by alcoholism,

has a long history of heavy alcohol abuse which began at age

sixteen and continued until he began spitting up blood and

sought treatment in 1993. At that time, Stevens reported that

his alcohol abuse had destroyed both of his marriages and

caused him to lose his job with McGinnis. During the six

months prior to checking himself into the hospital, Stevens

admits consuming approximately two fifths of liquor per day.

At the outset, it should be noted that, although Stevens

sought at trial to link his headaches and personality change to

his tumor by showing that these maladies arose after his 1991

fall, this causal connection was never established.

Furthermore, the parties agree that the tumor was not caused

by, or otherwise related to, Stevens’ employment with

McGinnis. Thus, the only evidence that Stevens’ problems

may have been attributable to the tumor is the testimony of Drs.

Poore and Martin, which is speculative in nature.

Both Drs. Martin and Poore admitted that Stevens’

tumor could have existed without causing any symptoms, but

they opined that, because those problems abated once the tumor

27a

Stevens v. McGinnis, Inc. Nos. 94-6091/6404

was removed, it is probable that the tumor was the source of

Stevens’ headaches and personality change.? Both doctors

admitted that alcohol abuse can also produce headaches and

behavioral changes of the type alleged by Stevens.

Furthermore, any post-surgery changes in Stevens’ condition

can plausibly be explained by the fact that Stevens reportedly

had attained sobriety at that time. Neither Dr. Poore nor Dr.

Martin were aware of Stevens’ history of alcoholism at the time

of their testimony. I cannot escape the conclusion that any

problems experienced by Stevens were clearly the product of

his alcohol abuse.

The unquestioned medical expert on the rare condition

experienced by Stevens was Dr. Rodney Geier, a board-

certified Cincinnati radiation oncologist, who reviewed the

hospital records in this case. His opinion was that the

symptoms that might be expected from this type of tumor

would be “hoarseness . . . some difficulty swallowing,

symptoms related to the vagus nerve or the tenth cranial nerve,”

but not headaches or personality changes. His opinion further

was that we would not expect such a tumor to secrete

catechloamines, and that any such secretion would not modify

Stevens’ behavior.

I add a few words about the majority’s construction of

the doctrine of maintenance and cure. In upholding the award

to Stevens, the majority relies on dicta from Vaughan vy.

2 Dr. Poore, a family practitioner, did not review the hospital

records, and agreed that he would defer to the opinion of specialists, yet he

disagreed with the other doctors about the secretion of catecholamines from

the tumor.

28a

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

Atkinson, 369 U.S. 527 (1962). That case, however, is easily

distinguishable from the present situation. In Vaughan, the

seaman plaintiff checked into a hospital only five days after

returning from a three month voyage. Additionally, in contrast

to the case at bar, it is obvious that the defendant shipowner in

Vaughan knew, before the end of the voyage (i.e., during the

employment relationship), that the plaintiff was ill, because the

defendant issued the plaintiff a certificate to receive hospital

treatment once the ship docked. See id. at 528.

The Supreme Court has stated that the doctrine of

maintenance and cure should not be “narrowly confined.” See

Aguilar v. Standard Oil Co., 318 U.S. 724, 735 (1943). In my

opinion, this admonition is not contravened by concluding that

maintenance and cure does not apply to an illness, only

speculatively and tenuously connected to a seaman’s

employment, which was first discovered six months after the

seaman was terminated due to alcoholism and assaultive

behavior. Further, it may be that Stevens waived any claim to

maintenance and cure by failing to report the 1991 fall that

allegedly activated his tumor and by failing to seek medical

attention at any time while in the employ of McGinnis. See

Vella v. Ford Motor Co., 421 U.S. 1, 5 n.4 (1975) (leaving

open the question of whether “a seaman may forfeit his right to

maintenance and cure by not reporting a known injury or

malady, or by refusing from the outset to allow proper medical

examination, or by discontinuing medical care made

available”). In any event, Stevens’ condition was not manifest

during his McGinnis employment.’

3 To “manifest,” according to Webster's THIRD NEW

INTERNATIONAL DICTIONARY, is “to show plainly” or “to make

29a

Stevens v. McGinnis, Inc. Nos. 94-609 1/6404

In sum, I would reverse on the basis that Stevens has

not proven that his tumorous condition manifested itself during

his employment with McGinnis.

palpably evident or certain.”

30a

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)

APPENDIX C

FILED

JUN 13 1996

LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DARRELL EDWARD STEVENS,

Plaintiff-Appellee,

Cross-Appellant,

McGINNIS, INC.,

)

)

)

)

)

v. ) ORDER

)

)

)

Defendant-Appellant, )

Cross-Appellee. )

BEFORE: BROWN, WELLFORD, and MILBURN, Curcuit

Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote on

the suggestion for rehearing en banc, the petition for rehearing

has been referred to the original panel.

3la

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied. Judge

Wellford would grant rehearing for the reasons stated in his

dissent.

ENTERED BY ORDER OF

THE COURT

Is/

Leonard Green, Clerk /s/

32a

APPENDIX D »

EXPENSES INCURRED

DARRELL STEVENS v. MCGINNIS, INC.

CIVIL ACTION NO. 93-CV-189

4 1-07-94 Commonwealth Psychological

Associates Services Rendered 500.00

2-11-94 Family Medical Center -

Medical Records 20.00

4-08-94 Federal Express- Monitoring

; Tech. 22.25

) 4-11-94 Walgreen’s - Photographs 18.35

i 4-22-94 Walgreen’s - Photographs 4.16

4-25-94 Becky Lindley,

: Clerk - Mileage 19.06

f

4-27-94 Monitoring Technologies Corp. -

‘ Equipment Rental For Tests 57.95

4-30-94 Northern Kentucky Reporting

Service Copies of transcripts of

Stevens, Christopher McGinnis,

Steve Busching 373.75

33a

in eget ty etaree

7-01-94

7-08-94

7-25-94

7-26-94

7-29-94

8-16-94

8-24-94

9-02-94

9-20-94

10-28-94

10-31-94

Tri-County Reporting & Video

Tape Service - Transcript Copy

of Mike Carey Deposition

Mary Ann Murphy, Court

Reporter, Floyd Poore

Deposition Copy

Reed Reporting Company -

Deposition Transcript of

Mark Deutsch, M.D.

Kinko’s - Copies

Kevin D- Martin, M.D.

St. Elizabeth Hospital -

Medical Record Copies

Med-Cor - Medical Records

Copies

U.S. District Court Clerk -

Filing Fees

Reed Reporting Company -

Deposition of Darrell Stevens

7-21-94 and 7-2294

Deborah McCarthy -

Transcript Copy

U.S. District Court Clerk -

Filing Fees

34a

177.35

80.40

190.00

4.20

2,000.00

244.00

141.83

105.00

292.50

100.00

105.00

11-09-94

11-17-94

H 11-29-94

12-07-94

12-27-94

2-22-95

7-25-94

i 1-03-96

ee

Pe Se tenn Ee Pee ae

Deborah McCarthy -

Appeal Transcripts

Draper & Oestreicher,

Court Reporters

Family Medical Center -

Services Rendered

Family Medical Center -

Services Rendered

Family Medical Center -

Research & Report

Kinko’s Copies

Reed Reporting Company -

Deposition Transcript of

Kevin martin, M.D.

Dr. Harold Bryant, Ph.D -

Report

Family Medical Center -

Reports

Floyd G. Poore, M.D. -

Testimony

Long Distance Phone Cails,

Postage, Photocopying,

and Fax

TOTAL

35a

114.75

142.00

55.00

50.00

100.00

27.09

102.50

433.00

754.50

1,000.00

200.00

$7,434.64