United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION OF DEFENDANT NORDIC
FISHERIES, INC. FOR SUMMARY JUDGMENT AND MOTIONS TO
Dennis Saylor, United States District Judge.
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.
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.
reasons given below, the motions to strike and
defendant's motion for summary judgment will be denied.
otherwise noted, the following facts are undisputed.
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).
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).
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)).
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).
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).The evidence as to what, exactly, Chidsey
saw and what Botelho slipped on is disputed and discussed in
more detail below.
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).
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).
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).
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. Defendant filed a
reply on August 2.
addition to the motion for summary judgment, there are five
pending motions to strike various parts of the
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.
26, plaintiff filed a motion to strike the declaration of
Richard Chidsey, attached as Exhibit O to defendant's
statement of material facts.
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
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
August 10, plaintiff filed a motion to strike defendant's
reply in support of its motion for summary judgment.
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.
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
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.
Motions to Strike
the disposition of the motions to strike may affect the
evidentiary record, the Court will address them first.
Background of Motions to Strike
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).
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).
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).
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).
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.
November 21, 2016, fact discovery closed. (ECF 46).
March 24, 2017, plaintiff served the defendant with his
initial expert report. (Anderson Decl. ¶ 10; Pl. SMF Ex.
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.
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).
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
28, 2017, the parties agreed on new deposition dates for
Bellemare and DiNapoli of July 12 and July 13, 2017,
respectively. (Anderson Decl. ¶ 23).
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