SUMMARY JUDGEMENT FOR SHIP OWNER UP HELD AS SEAMAN HAD NOT SHOWN THAT MEDICAL MONITORING WAS NECESSARY
In re: MARINE ASBESTOS CASES; Plaintiffs-Appellants, v. AMERICAN HAWAII CRUISES,INC.; GREAT INDEPENDENCE SHIP COMPANY; GREAT HAWAIIAN PROPERTIES CORPORATION;GREAT HAWAIIAN CRUISE LINE, INC., dba American Hawaii Cruises, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2001 U.S. App. LEXIS 20136
February 13, 2001, Argued and Submitted, San Francisco, California
September 10, 2001, Filed
PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-97-77777-HG. Helen Gillmor, District Judge, Presiding.
DISPOSITION: AFFIRMED.
PROCEDURAL POSTURE: The United States District Court for the District of Hawaii granted summary judgment to defendant shipbuilders in plaintiff seamen's claims for exposure to asbestos in the course of employment on board the vessels. The seamen appealed.
OVERVIEW: The seamen argued that summary judgment was improper. The seamen argued that their claim for recovery fell under the Jones Act, 46 U.S.C.S. ß App. 688 (2000), which granted seamen a claim for personal injury caused by an employer's negligence. The seamen maintained that the Jones Act permitted recovery for medical monitoring. The seamen failed to raise a genuine issue of material fact as to whether any increased risk of disease made medical monitoring reasonably necessary, or whether early detection would provide any clinical benefit. It was not shown that a treatment existed, or that there was clinical value to administering any such treatment before the onset of symptoms. There was no evidence that a single examination would yield any clinical benefit. The seamen failed to establish that they suffered an injury that was cognizable under a theory of unseaworthiness. They were not sick and uninjured, therefore there was no recovery under the doctrine of cure. The denial of the seamen's Fed. R. Civ. P. 56(f) motion was not an abuse of discretion because all of the facts needed to raise a genuine issue of material fact were within the control of the seamen.
OUTCOME: The judgment was affirmed.
