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Botelho v. Nordic Fisheries, Inc.

United States District Court, D. Massachusetts

October 12, 2017

KEVIN BOTELHO, Plaintiff,
v.
NORDIC FISHERIES, INC., Defendant.

          MEMORANDUM AND ORDER ON MOTION OF DEFENDANT NORDIC FISHERIES, INC. FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE

          F. Dennis Saylor, United States District Judge.

         This action arises out of an injury suffered by a seaman aboard a fishing vessel. Plaintiff Kevin Botelho was working on the F/V AMBITION owned by defendant Nordic Fisheries, Inc., when he injured his head. He alleges, among other things, that he was injured due to defendant's negligence in failing to provide a non-skid deck surface. The complaint asserts claims for negligence, unseaworthiness, maintenance and cure, and intentional and/or negligent failure to provide maintenance and cure. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1333.

         Defendant has moved for summary judgment on Counts 1 and 2 and to strike certain portions of plaintiff's expert's initial report. The parties have also filed various motions to strike other parts of the record, as set forth below.

         For the reasons given below, the motions to strike and defendant's motion for summary judgment will be denied.

         I. Background

         Unless otherwise noted, the following facts are undisputed.

         A. Factual Background

         In June 2014, Kevin Botelho was working for Nordic Fisheries, Inc. as a seaman and deckhand aboard the F/V AMBITION on a commercial scallop-fishing trip. (Def. SMF ¶¶ 1-2).

         When fishing for scallops, the AMBITION drags two dredges, one on the starboard side and one on the port side, along the sea floor. Every hour, the dredges are winched up and their contents (which includes scallops, bycatch, rocks, and other debris) are dumped on the aft deck in what is known as “the pile.” (Pl. SMF ¶¶ 4-7). The dredges are then lowered back to the seafloor, and the crew uses the next hour to pick the scallops out of the pile, deposit them in the shucking house, and return the rocks and bycatch to the sea. (Pl. SMF ¶¶ 4-7).

         Although the vessel has a non-skid surface on some of the deck, there is an area of the stern deck where the dredges and chain bags are regularly landed that does not. According to defendants, that is due to the heavy abuse that part of the deck takes, which would cause the coating to wear off in a matter of days. (Def. Reply in Supp. Summ. J. at 6 n.2 (citing DiNapoli Rpt.); Barry Rpt. at 20 (noting that the deck of the shucking house has a non-skid surface)).

         On June 15, 2014, while working on board the AMBITION, Botelho slipped and fell. (Def. SMF ¶ 4; Pl. SMF at 1). When he slipped, he was on his way from the door of the shucking house to the pile, about three feet from the port rail, between amidships and the stern. (Def. SMF ¶¶ 6-7). Botelho contends that the deck where he slipped is bare steel. (See Pl. SMF ¶ 10).[1]

         At the time of the accident, Richard Chidsey was on deck working as a fisheries observer for the National Oceanic and Atmospheric Association. (Def. SMF ¶ 11; Pl. SMF at 3). Captain Christopher Audette was also on deck, picking the pile approximately six to eight feet away from Botelho. (Pl. SMF ¶ 17). It appears that Chidsey is the only witness to have seen any part of the fall. He also saw a skate (a flat fish) on the deck near where Botelho fell. (Pl. SMF at 3-4).[2]The evidence as to what, exactly, Chidsey saw and what Botelho slipped on is disputed and discussed in more detail below.

         At some point after his fall, Botelho alleges that he hit his head in the hold on a low light, fixture, or pipe. (Def. SMF ¶ 18; Pl. SMF at 7). He alleges that after his fall, he felt groggy and dizzy, and that he felt “very edgy” and “in a fog” for the remainder of the trip. (Pl. SMF ¶¶ 20-22).

         The AMBITION landed its catch in New Bedford about a week after Botelho's fall. (Pl. SMF ¶ 24). Botelho went to an urgent-care clinic, which transferred him to a hospital, where he was admitted and observed for several days. (Pl. SMF ¶ 25). He had suffered a mild traumatic brain injury. (Pl. SMF ¶ 45). He alleges that he continues to suffer from the consequences, and as of January 17, 2017, his doctor considered him to be totally disabled. (Pl. SMF Ex. E).

         B. Procedural Background

         Botelho filed the complaint in this action on May 26, 2015. The complaint alleges (1) negligence under the Jones Act, 46 U.S.C. § 30104 et seq.; (2) unseaworthiness under general maritime law; (3) maintenance and cure under general maritime law in the amount of $200, 000, together with costs and interest; and (4) intentional and/or negligent failure to provide maintenance and cure under general maritime law. (Compl. ¶¶ 15-29).

         On June 23, 2017, defendant moved for summary judgment on Counts 1 (negligence) and 2 (unseaworthiness), together with a supporting memorandum and a statement of material facts. Plaintiff filed his response to the statement of material facts on July 26, and his opposition to defendant's motion for summary judgment on July 27.[3] Defendant filed a reply on August 2.

         In addition to the motion for summary judgment, there are five pending motions to strike various parts of the summary-judgment filings.

         On July 18, defendant filed a motion to strike the “Purported Rebuttal Expert Report of Plaintiff's Expert, Mr. Christopher D. Barry, P.E., ” attached as Exhibit D to plaintiff's statement of material facts.

         On July 26, plaintiff filed a motion to strike the declaration of Richard Chidsey, attached as Exhibit O to defendant's statement of material facts.

         On August 2, defendant filed a motion to strike the declaration of Kevin Botelho and plaintiff's second supplemental answers to interrogatories, which were attached as Exhibits B and K, respectively, to plaintiff's statement of material facts.

         On August 10, plaintiff filed another motion to strike the strike the declaration of Richard Chidsey, attached as Exhibit O to defendant's statement of material facts. The July 26 motion questioned the document's authenticity, whereas the August 10 motion contends that defendant's counsel deliberately concealed the fact that they had obtained Chidsey's declaration until after the close of fact discovery.

         Also on August 10, plaintiff filed a motion to strike defendant's reply in support of its motion for summary judgment.

         II. Legal Standard

         The role of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (internal quotation mark omitted). Summary judgment is appropriate when the moving party shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Essentially, Rule 56[] mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'” Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115, 1121 (1st Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that determination, the court must “view 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). When “a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and footnotes omitted). The non-moving party may not simply “rest upon mere allegation or denials of his pleading, ” but instead must “present affirmative evidence.” Id. at 256-57.

         III. Analysis

         Defendant contends that it is entitled to summary judgment on Counts 1 and 2 on the ground that it is undisputed that plaintiff slipped not on the deck but on a skate, and therefore he is unable to prove that the condition of the deck surface caused his injury.

         Plaintiff, for his part, disputes that he slipped on the skate. He further argues that regardless of whether his foot was on the deck or the skate, there is still a genuine issue of material fact as to whether the condition of the deck caused his injury, because there is evidence that the slipperiness of the deck caused the skate to slide on the deck.

         A. Motions to Strike

         Because the disposition of the motions to strike may affect the evidentiary record, the Court will address them first.

         1. Background of Motions to Strike

         On August 24, 2015, defendant served its Rule 26(a)(1) initial disclosures. Those disclosures identified “Rick Chidsey[, ] Fisheries Observer[, ] 22 Gay St.[, ] Newton, MA” as a potential witness. (Pl. Opp'n to Mot. to Strike Rebuttal Rpt. Ex. A (“Anderson Decl.”) ¶ 1; Id. Ex. B). It also listed a telephone number of “(315) 484-8048.” (Id. Ex. B).

         On September 1, 2015, plaintiff served interrogatories on defendant. Interrogatory No. 10 requested that defendant “[i]dentify all . . . recorded conversations, and/or statements . . . and all memoranda of statements, made by any person at any time, relating to . . .the alleged incident . . . .” (Id. Ex. C at 4). Interrogatory No. 15 requested that defendant “identify each person who was a witness to the events immediately preceding, during, and/or immediately after the alleged incident.” (Id. Ex. C at 5).

         Also on September 1, plaintiff served requests for the production of documents on defendant. Request No. 4 sought the production of “[a]ll recorded communications, transcriptions of recorded communications[, ] written reports, statements, and memoranda of statements, which were written by, provided by or taken from, any witnesses to the alleged incident or by any persons having knowledge of the alleged incident.” (Id. Ex. D at 3). Requests 34, 35, and 36 requested documents “reviewed, ” “relied upon, ” and/or “evincing facts relied upon” by “any expert witness the Defendant intends to call at trial.” (Id. Ex. D at 6).

         On March 28, 2016-several months late, and after plaintiff had filed a motion to compel responses-defendant served its interrogatory answers and responses to document requests. (Def. Mot. to Strike Rebuttal Rpt. Ex. 2; Pl. Opp'n to Mot. to Strike Rebuttal Rpt. Ex. E). Defendant identified “Richard Chidsey[, ] 22 Gay Street[, ] Newton, MA 02460[, ] 315-484-8048” as a witness in response to Interrogatory No. 15. (Def. Mot. to Strike Rebuttal Rpt. Ex. 2 at 8-9). In response to Request for Production No. 4, defendant acknowledged that it had obtained statements from four other witnesses and objected to providing those statements, but said nothing about Chidsey. (Pl. Opp'n to Mot. to Strike Rebuttal Rpt. Ex. E at 2). In answer to plaintiff's request for documents relied on by defendant's expert, defendant responded by “agree[ing] to supplement this Response pursuant to Federal Rules of Civil Procedure 26.” (Id. Ex. E at 8-9).

         On June 18, 2016, Robert Murphy, counsel for defendant, traveled to Chidsey's home and obtained a recorded statement from him about the accident. (Def. Reply in Supp. Summ. J. Ex. D ¶¶ 4, 6). Chidsey, however, at that point lived in Marshfield, Massachusetts, not in Newton. (Id. ¶ 4).

         On November 21, 2016, fact discovery closed. (ECF 46).

         On March 24, 2017, plaintiff served the defendant with his initial expert report. (Anderson Decl. ¶ 10; Pl. SMF Ex. H).

         On April 27, 2017, defendant served plaintiff with copies of its two expert reports. (Anderson Decl. ¶ 12). Simon Bellemare's report stated that he relied in part on “Testimony of . . . R. Chidsey.” (Def. SMF Ex. W at 5). Captain Richard DiNapoli's report stated that he relied in part on a “statement of National Marine Fisheries Observer Richard Chidsey, (assigned to Vessel for voyage at issue) recorded by counsel for Defendant, undated.” (Pl. Opp'n to Mot. to Strike Rebuttal Rpt. Ex. F at 2). Neither report, as produced to plaintiff, included a copy of Chidsey's testimony.

         On May 23, 2017, plaintiff's counsel noticed the depositions of Bellemare and DiNapoli for May 31 and June 1, 2017, respectively. (Pl. Opp'n to Mot. to Strike Rebuttal Rpt. Ex. H). Plaintiff requested that the experts bring all the documents that they relied on to their depositions. (Id.). On May 27, 2017, defendant's counsel indicated that they would need to reschedule the depositions. Plaintiff's counsel tried to reschedule the depositions, but was informed by defendant's counsel that the experts would not be available until July, after the June 30, 2017 deadline for expert depositions. (Anderson Decl. ¶¶ 15-18; ECF 58).

         On June 23, 2017, defendant moved for summary judgment. That motion relied substantially on the Chidsey declaration to establish the “undisputed fact” that plaintiff slipped on a skate.

         On June 28, 2017, the parties agreed on new deposition dates for Bellemare and DiNapoli of July 12 and July 13, 2017, respectively. (Anderson Decl. ¶ 23).

         On June 29, 2017, defendant served plaintiff with copies of the materials relied on by its experts, including an audio file containing the recorded statement of Chidsey that attorney ...


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