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Vernon Halpin v. Barnegat Bay Dredging Co.

June 27, 2011

VERNON HALPIN,
PLAINTIFF,
v.
BARNEGAT BAY DREDGING CO., INC., DEFENDANT.



The opinion of the court was delivered by: Arpert, U.S.M.J

NOT FOR PUBLICATION

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This matter having come before the Court on a Motion by Plaintiff Vernon Halpin ("Plaintiff" or "Halpin") to "compel Defendant Barnegat Bay Dredging Co., Incorporated ("Defendant" or "BBD") and Michael Walters ("Walters") and/or The Walters Nixon Group, Inc. ("Nixon Group") to produce all statements obtained from interviews of employees of Defendant, others with knowledge of the December 4, 2009 accident, and the statement(s) of Plaintiff and drawing(s) produced by Plaintiff pursuant to FED. R. CIV. P. 34, 37, and 45" together with "an award of attorneys' fees and costs" [dkt. entry. no. 19], returnable June 6, 2011. Defendant filed opposition on May 23, 2011. For the reasons stated herein, Plaintiff's Motion is denied as set forth more fully below.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff "has been employed by Defendant since 2005" and alleges that he was "injured on December 4, 2009 while employed as a deckhand aboard the dredge tender APACHE on Peck's Bay in Ocean City, New Jersey". See Pl.'s Decl. of Florrie L. Wertheimer ("Wertheimer"), dkt. entry no. 19-1 at 1. "Defendant's vessels, the PEE WEE and the GENERAL, were likewise working on the day of the accident". Id. Plaintiff states that on the day of the accident he "was attempting to remove a poly ball from a 500' foot section of plastic discharge pipeline so that it could be attached to the metal discharge pipeline of the dredge JOHN FULLERTON". See Pl.'s Decl. of Halpin, dkt. entry no. 19-2 at 1. Plaintiff maintains that a "new section of pipeline...was brought to the vicinity of the APACHE with a poly ball inserted in both ends" and the "first poly ball was removed without incident...[and] attached to the 5,000' foot plastic discharge line". Id. at 1-2. Thereafter, Plaintiff alleges that he "was attempting to remove the plug which was located at the bottom of the second poly ball" while he "straddled" a "portion of the new 500' foot section" when "the pipeline...lurched forward" and he was "propelled forward to the pontoon supporting the metal pipeline". Id. at 2. Plaintiff claims that the sudden lurch was caused by "the tender PEE WEE, [which] struck the plastic pipeline approximately 2000' feet from the APACHE". Id. As a result, Plaintiff's "right arm was crushed between the open end of the metal discharge pipe coming from the dredge and the new section of plastic pipeline, causing a deep laceration of [his] forearm and other injuries to [his] right arm". Id. Plaintiff states that he "came back on board the APACHE" and "waited for the PEE WEE to arrive" in order to be "taken to the dock" and then "the hospital in Atlantic City". Id.

According to Plaintiff, on December 9, 2009, "the day of [his] release from the hospital, Walters...called [him] to discuss [his] physical condition and the accident". Id. "Within a week of [his] discharge", "Walters visited Plaintiff at...home" and together they "discussed the accident and Plaintiff drew...an accident diagram with [his] left hand". Id. Plaintiff notes that Walters "is the President of the Nixon Group and, upon information and belief, third-party administrator for Defendant's insurance carrier Northern Assurance Company of America". See Pl.'s Decl. of Wertheimer at 3.

Defendant asserts that "Plaintiff is a seaman entitled to maintenance and cure" based upon the "crushing injury" he suffered "to his right arm on December 4, 2009...while employed as a Jones Act seaman by Defendant". See Def.'s Opp'n Br., dkt. entry no. 23 at 1. "Jones Act seaman who are injured or become ill during the course of their employment are automatically entitled to maintenance and cure" even if the "cause of the injury or illness...[is] not...work related" or is "irrelevant to the employer's obligation to pay...benefits". Id. Defendant contends that it "met its maintenance and cure obligation with respect to this Plaintiff". Id. However, Defendant acknowledges that "[a]s a seaman, Plaintiff may sue his employer for injuries sustained in the service of the ship" and "may recover damages if the injury was the result of the negligence of the employer or the unseaworthiness of the vessel". Id. Here, Defendant states that "[b]ecause of the severity of the injury, Defendant and its insurer anticipated that Plaintiff would bring a lawsuit under the Jones Act and general maritime law". Id. "Having learned the extent of Plaintiff's injuries just days after the occurrence, and in light of the litigation which would inevitably follow", Defendant maintains that Walters "investigated the accident to develop any defenses to Plaintiff's claims". Id. Walters states that his "firm has been retained on a number of occasions to act to investigate claims and also to handle the maintenance and cure aspects of Jones Act cases". See Def.'s Opp'n Decl. of Walters, dkt. entry no. 22-1, Ex. A at 1. "In cases with minor injuries or where litigation is not expected", Walters states that he "simply monitor[s] the claimant's medical progress and handle[s] the payment of benefits". Id. However, "[i]n cases involving Jones Act seaman and more serious injuries", Walters "will undertake a more in depth investigation". Id. "On December 8, 2009, [Walters] received a verbal request from the insurance representatives of Defendant to conduct an investigation" with respect to the accident involving Plaintiff on December 4, 2009. Id. "On December 9, 2009, [Walters] contacted Plaintiff's wife and was told that Plaintiff was going to be released from the hospital that day". Id. "On December 10, 2009, [Walters] called Plaintiff and discussed his physical condition" and, based upon "the fact that the injuries seemed...serious and Plaintiff was a Jones Act seaman, [Walters] expected that Plaintiff would file suit". Id. at 2. "On December 14, 2009, [Walters] met with Plaintiff at his home and generally discussed the details of the accident and took some rough notes". Id. Walters notes that "[o]n the same date, Plaintiff drew three diagrams and [Walters] made a number of notes on one of them". Id. However, Walters did not "prepare any written statement for Plaintiff to sign and...never made any recording, electronic or otherwise, of...[his] discussion" with Plaintiff. Id. "On December 30, 2009, [Walters] had telephone interviews with Swan, Ferraro, Beam and Laurence" and "took some rough notes of these interviews on [his] desktop computer". Id. However, Walters did not prepare "any written statements for these individuals to sign and...did not record either electronically or otherwise [his] discussions with these individuals". Id. Walters maintains that he has "notes in [his] file concerning these interviews...and reported [his] conclusions to the insurer regarding...Plaintiff and witnesses, as well as the potential liability of and defenses available to Defendant". Id. Walters never interviewed Hill, O'Neil, Fullerton, Moore, or Rose and never prepared any statements for these individuals to sign. See Def.'s Opp'n Decl. of Raymond T. Letulle ("Letulle"), dkt. entry no. 22-2, Ex. B at 2-3.

On June 23, 2010, Plaintiff filed a Complaint alleging that his injuries were sustained "wholly and solely by reason of the negligence, recklessness and carelessness of Defendant, its agents, servants and/or employees, and by reason of the unseaworthiness of its vessels". See Pl.'s Compl., dkt. entry no.1 at 2. On November 5, 2010, Plaintiff forwarded his "First Notice to Produce" and requested that Defendant provide:

6. All statements obtained by Defendant or anyone acting on behalf of Defendant relating to Plaintiff's accident including any statements obtained from Plaintiff.

7. Any and all investigation reports or photographs taken or relating in any manner whatsoever to Plaintiff's accident of December 9, 2009 and all photographs, videotapes, films or visual reproductions or descriptions of Plaintiff purporting to depict Plaintiff's activities from December 9, 2009 through the present.

See Pl.'s Ex. C, dkt. entry no. 19-5. Defendant responded to these requests on December 3, 2010 and stated:

6. Objection. Answering Defendant objects to this request as it seeks disclosure of information protected from disclosure as material prepared in anticipation of litigation or is attorney work product. Without waiving this objection, none.

7. Objection. Answering Defendant objects to this request as it seeks disclosure of information protected from disclosure as material prepared in anticipation of litigation or is attorney work product. Without waiving this objection, Answering Defendant does not possess any photographs, videotapes, films, or visual reproductions or descriptions of Plaintiff purporting to depict Plaintiff's activities from December 9, 2009 through the present. Answering Defendant reserves the right to supplement its response.

See Pl.'s Ex. D, dkt. entry no. 19-6.

Thereafter, Plaintiff served a subpoena on "Michael Walters/Walters Nixon Group, Inc." requesting:

All recorded statements (electronic otherwise) of interviews conducted regarding Plaintiff's accident of December 4, 2009 with the following:

1. Joseph Hill ("Hill")

2. Robert O'Neil ("O'Neil")

3. Philip Beam ("Beam")

4. Richard Ferraro ("Ferraro")

5. Kevin Swan ("Swan")

6. Richard Laurence ("Laurence")

7. John Fullerton ("Fullerton")

8. Ryan Moore ("Moore")

9. Susan Rose ("Rose")

See Pl.'s Ex. E, dkt. entry no. 19-7. Although Walters and the Nixon Group "never responded to this subpoena", Defendant's counsel responded by letter dated April 25, 2011 (Id. at 3-4) and stated:

We are responding to your subpoena issued to the Nixon Group. We object to the subpoena as calling for material gathered in anticipation of litigation or otherwise subject to privilege. Without waiving the objection, the Nixon Group has no recorded witness statements in its file.

See Pl.'s Ex. G, dkt. entry no. 19-9.

Defendant maintains that "Walters not only had reason to anticipate litigation, ...[he] had reason to expect litigation" based upon his training as "an attorney" and the fact that he is "president of the Nixon Group, a company that provides investigation services to marine employers and their insurers". See Def.'s Opp'n Br. at 1. Defendant notes that "Walters does not routinely investigate every accident or injury to maritime employees" because "[i]njuries to seaman which appear minor are simply handled as maintenance and cure claims...and interviews of the employee and witnesses are not undertaken". Id. at 1-2. However, in this case, "Walters had an initial telephone conversation with Plaintiff on December 10, 2009" during which he "learned the extent of Plaintiff's injuries...and the fact that he had been hospitalized for 6 days". Id. at 2. Defendant maintains that because "Plaintiff was a Jones Act seaman with the statutory right to sue his employer", and "given the nature of Plaintiff's injuries...which were serious", "Walters expected that litigation would ensue...and [therefore] arranged to interview Plaintiff and...Beam, Ferraro, Swan and Lawrence". Id. Defendant notes that all of the individuals interviewed by Walters "were employed by Defendant". Id.

Plaintiff maintains that based upon his own recollection and the deposition testimony of Hill, O'Neil, Beam, Ferraro, Swan, and Laurence, "answers to such questions as what caused the PEE WEE to stop and/or...[abruptly] pause...[and] the configuration of the APACHE, the steel discharge pipe, and...[the] new plastic pipe section" cannot be obtained "under any circumstances" absent production of the "statements" taken by Walters and the Nixon Group. See Pl.'s Decl. of Wertheimer at 4-9. Similarly, Plaintiff contends that "whether the answers provided...[to Walters] were the same as [those] provided" during deposition "is questionable" because memories "may have faded" and Plaintiff "cannot obtain the substantial equivalent of the contemporaneous statements [given to Walters] without undergoing substantial hardship...". Id. at 9. Oppositely, Defendant asserts that the "documents prepared by Walters are not statements". See Def.'s Opp'n Br. at 2. Defendant maintains that Walters "did not prepare verbatim written statements...[and] did not ask anyone to adopt or sign any statement". Id. Rather, Walters made "notes of the conversations for his file...and reported his conclusions to the insurer and Defendant". Id. Defendant contends that "[s]uch documents have not been requested, and...production cannot be compelled because they are materials prepared in anticipation of litigation...and as they contain Walters' mental impressions, opinions and strategy". Id. Defendant notes that "Plaintiff's counsel noticed the depositions" of "[a]ll of the witnesses interviewed by Walters". See Def.'s Decl. of Letulle, Ex. B at 1.

Based upon the fact that counsel could not reach an agreement with respect to the disputed materials, Plaintiff filed the present Motion on May 12, 2011. See dkt. entry no. 19.

A. Plaintiff's Arguments in Support of the Motion

1. Plaintiff is entitled to a copy of his own statement and any drawings or renderings he made pursuant to FED.R.CIV.P. 26(b)(3)(C).

Plaintiff notes that he "made a statement to Walters...within a week after his release from the hospital". See Pl.'s Br., dkt. entry no. 20 at 2. Citing FED. R. CIV. P. 26(b)(3)(C), Plaintiff argues that "[t]his statement falls squarely within the confines of [the] Rule" and states that Plaintiff "requested his statement from Defendant...and subpoenaed same from [the] Nixon Group" and "was informed by Defendant that no such statements exist". Id. at 2-3. For these reasons, Plaintiff seeks to compel a copy of his own statement and any drawings or rendering he made and, pursuant to FED. R. CIV. P. 37(a)(5), seeks an "award of expenses" related thereto. Id.

2. Plaintiff is entitled to copies of the statements taken by Walters pursuant to case law and the Federal Rules of Civil Procedure.

(a) Plaintiff is entitled to copies of the statements taken by Walters pursuant to case law.

Plaintiff notes that Walters, "as principal of the Nixon Group, interviewed all [of] Defendant's employees who were working on the day of Plaintiff's accident and...other personnel". Id. at 3. Plaintiff argues that Walters "did so in the ordinary course of his business and in his capacity as a third-party administrator for Defendant's insurance carrier, Northern Assurance Company of America". Id. Citing St. Paul Reinsurance Co. v. Commercial Fin. Corp., 197 F.R.D. 620, 635 (N.D. Iowa 2000), Plaintiff contends that "[c]courts have observed that the application of the work product doctrine to documents prepared by insurance companies during claims investigations is difficult because the nature of the insurance business is such that an insurance company must investigate a claim prior to determining whether to pay ...


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