Friday, August 10, 2012


Blood on Brown Water Chapter 3 continued part 7b

Chapter 3 Continued:Towing Company Must Pay for Endangering its Mariners’ Health

[Editorial note:. NMA followed this remarkable case from the outset through the court’s rendering the summary judgment requested by Plaintiff Herman Newton. This article is an edited version of the motion for summary judgment, Civil Action #36199, filed in Division A of the 18th. Judicial District of Louisiana subsequently granted on maintenance and cure” and “unseaworthiness” issues. The motion was filed by NMA Attorney Mark L. Ross, Esq. we edited out (for readability) cites of case law and use of depositions obtained in this case. For further information, contact Attorney Mark L. Ross, 600 Jefferson St., Suite 501, Lafayette, La. 70501. Tel.(337) 266-2345.] Herman Newton vs. Versatility Marine, LLC The plaintiff, Herman Newton, brought the Motion for Summary Judgment under La C.C.P, 966, the Jones Act. (This is an "editorial note "that appears in the actual NMA manuscript, not part of our serialization editing)

 Herman Newton vs. Versatility Marine, LLC

 The plaintiff, Herman Newton, brought the Motion for Summary Judgment under La C.C.P, 966, the Jones Act, 46 U.S.C. 688, et seq. and the general maritime law. The Plaintiff moves the Court to find as an uncontested matter of fact or law that the defendant, Versatility Marine, LLC, owes the plaintiff, a former member of defendant’s crew aboard defendant’s towboat East Wind, maintenance and cure following his development of an MRSA staph infection on or about Mar. 2, 2007.

 The evidence shows that plaintiff became ill while in the service of his vessel. The evidence also shows that despite actual, repeated notice of plaintiff’s staph infection and eleven day hospitalization, Versatility Marine, LLC arbitrarily and capriciously denied plaintiff maintenance and cure. The Plaintiff further moves the Court to find as an uncontested matter of fact and law that defendant, Versatility Marine, LLC, is liable to plaintiff since plaintiff’s staph infection resulted from the unseaworthiness of the M/V East Wind.

Towboat East Wind Judged to be “Unseaworthy”

The M/V East Wind’s crew was rendered unseaworthy in that a fellow deckhand, Adam Hanshew, carried the MRSA staph and infected the plaintiff, Herman Newton. The vessel was further rendered unseaworthy by Versatility’s failure to properly decontaminate the vessel after notification of the staph contagion, as well as provide plaintiff with medical care under Versatility’s maintenance and cure obligations.

 Herman Newton is a former crewmember of the M/V East Wind, a vessel chartered and/or operated by defendant, Versatility Marine, a towboat company doing business within the State of Louisiana from its office in Port Allen, Louisiana. 

 Another Crewmember Infected Herman Newton 

 In mid-February 2007, Herman Newton, was a crewmember of the M/V East Wind and working out of Galveston, Texas. On or about Feb. 11, 2007, Versatility brought aboard a new deckhand, Adam Hanshew. Unbeknownst to Newton, Adam Hanshew previously contracted and continued to suffer from a staph infection known as Methecillin Resistant Staphylococcus Aureus (hereinafter "MRSA"). MRSA is infectious, resistant to antibiotics and can lead to toxic shock syndrome, pneumonia, blood poisoning, organ failure, the loss of limbs and death.   Once contracted, MRSA remains in the victim’s blood system for life and can manifest again at any time.

 One eyewitness to the events at issue was former Versatility Captain Gary Hensley, a towboat pilot with 20 years experience who began working with Versatility on Sept. 7, 2006 and who provided a deposition in this case. Versatility appointed Captain Hensley to pilot their towboat M/V East Wind and gave him the option to choose
his own crew. Captain Hensley chose as deckhand plaintiff Herman Newton with whom he had worked previously and considered an "outstanding deckhand." Captain Hensley recalled that the carrier of the staph infection, Adam Hanshew, came aboard the M/V East Wind as a new deckhand in early Feb. 2007. After a day or day and a half, Captain Hensley noticed that Hanshew’s nose was swollen and was "real red." Hanshew’s nose continued to get "really big and really sore and it started draining". At that point, Hanshew told Captain Hensley and Herman Newton that the swelling stemmed from a staph infection from which he had suffered three previous outbreaks and showed them surgical scars to his stomach, chest and arm required to cut out the infected tissue. As deckhand Hanshew’s infection continued to
worsen it began to drain a "pussy mucus type drain."

 Captain Hensley arranged for Hanshew to receive medical treatment in Port Arthur, Texas, because Hanshew told him he could not sleep due to the "pussy mucus type" draining. Furthermore, Captain Hensley and his crew feared being infected since Hanshew cooked the crew’s meals.

 Captain Hensley felt compelled to get Hanshew medical attention less than a week after Hanshew came on board the M/V East Wind. The examining physician found that Hanshew suffered from a staph infection and refused to release him to return to work and further directed that Hanshew receive immediate medical attention at his home in Mississippi.

 From the time Adam Hanshew came on board the M/V East Wind until he had to leave due to his staph infection, he bunked with the plaintiff, fellow deckhand Herman Newton, in an 8’ by 10’ bunkroom. Hanshew and Newton used the same shower and toilet. Captain Hensley recalled that Hanshew was "draining" and bunking with Herman Newton for three or four days. 

 Versatility Marine’s management recognized the highly contagious nature of Hanshew’s staph infection from the outset. When Versatility refused to provide transportation for Adam Hanshew to return home to Mississippi from Port Arthur, Texas, Versatility Marine general manager Rhonda Watson and port captain Doug Faust told Captain Hensley they were concerned about the contagious nature of Hanshew’s staph infection and Versatility’spotential liability if some else became infected.

 Captain Hensley and his relief pilot, Captain David Whitehurst, concerned about their own exposure to Hanshew’s staph infection, went on the internet to learn about staph infections, "and the more we read, the more scared we got about it..." Captains Hensley and Whitehurst thereupon contacted the Center for Disease Control (CDC) in Atlanta, Georgia, among other agencies, and were advised to have a professional cleaning crew fumigate and clean the boat. The CDC also advised Captain Hensley to throw away the mattresses on which Adam Henshaw and his roommate, Herman Newton, had slept. Captain Hensley told Versatility’s port captain, Doug Faust, its general
manager, Rhonda Watson and the company’s owner, Bud Watson, about the CDC’s recommendations that Versatility shut down the M/V East Wind so a professional service could fumigate the vessel and that Hanshew’s and Newton’s mattresses be thrown away, "… to kill whatever viruses may be on that boat to protect us."

 Versatility Refused to Take CDC Recommended Steps to Remove Staph Infection From Their Towboat 

 Doug Faust was the marine superintendent for Versatility and was in charge of regulatory compliance and safety for Versatility’s vessels. Faust admitted he learned of the staph infections aboard the M/V East Wind when the vessel’s captain, Gary Hensley, called and told him of deckhand Hanshew’s infection. When the subject of maintenance and cure for deckhand Hanshew was discussed, however, Versatility refused to provide Hanshew medical treatment on the pretext that Hanshew’s affliction was a so-called "pre-existing condition." Incredibly, about two months after ejecting Hanshew from the M/V East Wind in Port Arthur, Texas and refusing to provide him medical treatment, Versatility rehired Adam Hanshew. Versatility rehired Hanshew despite its knowledge that he could expose yet other Versatility employees to the highly infectious and dangerous MRSA staph. Hanshew did not finish his 28 day hitch after Versatility hired him a second time since Hanshew had yet -another outbreak and had to leave the vessel again.

 Captain Hensley subsequently discovered in speaking with the captain of Hanshew’s second Versatility boat that Hanshew came down with an outbreak of "something" and that Versatility never advised that vessel’s crew that Hanshew had recently suffered an MRSA staph outbreak.
After deckhand Hanshew left the M/V East Wind to obtain medical treatment on his own, Versatility refused to hire a professional decontamination service to clean the M/V East Wind. Versatility told Captain Hensley, "they could not afford to shut the boat down for a professional cleaning crew...." Instead, Versatility’s port captain Faust
told Captain Hensley to have the crew clean the boat with Lysol and bleach.

 Versatility also refused to throw away the mattresses on which Hanshew and Newton slept despite the CDC’s strong recommendation that the mattresses be discarded since once the staph, "gets into the mattress, there is no killing that virus in the mattress." Versatility’s Doug Faust responded that Versatility would not discard the mattresses as they were supposedly brand new and Versatility did not want to buy new ones. 

Herman Newton Contracts MRSAStaph Infection

Captain Hensley recalled that Newton came to him a few days after Hanshew left the boat complaining of painful red spot on his right leg above his knee with a black spot in the middle. Captain Hensley told Doug Faust, Versatility’s port captain, about Newton’s staph infection, which was the second infection aboard his vessel in the space of a week. Herman Newton went to San Jacinto Methodist Hospital in Baytown, Texas where he had his right leg aspirated, was prescribed antibiotics, given a "do not return for work" slip and directed to seek medical attention.

Captain Gary Hensley e-mailed Versatility port captain Doug Faust and general manager Rhoda Watson a "First Report of Injury or Illness" dated Mar. 2, 2007, which reported that Newton suffered, "Possible spider bite or outbreak of Staph infection." Captain Hensley recalled that Versatility’s port captain Doug Faust, general manager
Rhonda Watson and owner Bud Watson seemed "very nonchalant" about a second case of staph infection aboard the M/V East Wind. Doug Faust and Versatility refused even after a second staph infection within a week to retain a professional cleaning crew to fumigate and decontaminate the vessel. 

 Captain Hensley recalled that Versatility would not arrange transportation for Herman Newton to return home to Florida because Versatility was concerned, "about the contagious level of it" and, "that they could be held liable and responsible for Mr. Joe Blow or Mr. Julio Inglesias coming down with this stuff...." Plaintiff Herman Newton, like Hanshew, therefore had to find his own way home.

Versatility’s Doug Faust spoke to plaintiff Herman Newton after Newton left the M/V East Wind in Texas and returned home to Crestview, Florida to seek medical care. Newton informed Faust that a Florida doctor sent him straight to a hospital emergency room, "Because he was in urgent need," due to the infection in his right leg.

 Newton informed Faust in a series of telephone calls that he had been placed in isolation, diagnosed with a staph infection and repeated asked if Versatility would cover plaintiff’s medical expenses. Faust filed an,
"Incident Investigation Report" dated Mar. 12, 2007 with Versatility, reporting that Herman Newton had suffered an, "Infection of right leg", and that, "At his home in Florida he was diagnosed with CAMRSA." No form CG- 2692 ever was filed nor was the Coast guard notified by the company of Newton’s illness. In short, Versatility
received a constant stream of information concerning the source of Newton’s infection, its diagnosis and pleas from Newton for maintenance and cure, all of which Versatility ignored.

 Herman Newton entered North Okaloosa Medical Center on March 6 and was discharged from hospital on March 16, 2007. A treating physician diagnosed that Newton suffered from MRSA staph infection. Newton’s physician stated that: “(he was)…a previously healthy 28-year-old gentlemen whom I have seen in the postoperative period after he had had an incision and drainage of his right knee. I agree with Dr. Herf’s antibiotic choices in the form of Vancomycin and Zosyn, as the patient is a perfect setup for community acquired methicillinresistant
staphylococcus aureus. I question whether or not he ever actually had a spider bite. He denies any trauma to the right knee. He states that it popped up spontaneously, but given the history that there are other folks on the boat that he was working on in close quarters with this infection, I feel that this may be methicillin-resistant staphylococcus aureus...”

 Newton presented a full set of the voluminous North Okaloosa Medical Center records for to Versatility Marine, LLC, but received no response to his request for payment of maintenance and cure. Versatility’s port captain, Doug Faust, "felt quite sure" that Versatility would cover plaintiff’s maintenance and cure expenses "because of the situation at hand. He was aboard our vessel, had an infection, and sought medical treatment, and I felt it was our responsibility.".Faust could not think of any reason why Herman Newton should not receive maintenance and cure. Captain Hensley agreed that he could not think of any reason why Newton should
not receive maintenance and cure. Captain Hensley concurs that by all rights, "he should have been paid maintenance and cure and transportation home by the law."
Versatility “ be continued.

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