Charles Sementilli v. Trinidad Corporation, Trinidad Corporation, Third-Party-Plaintiff-Appellant v. Stephen H. Taus, Third-Party-Defendant-Appellee ( 1998 )

Per Curiam Opinion; Concurrence by Judge T.G. NELSON; Dissent by Judge FLETCHER.

PER CURIAM.

Trinidad Corporation filed an indemnity action in admiralty against Stephen H. Taus, M.D., to recover the damages it incurred when Charles Sementilli, a crewman aboard its vessel, was injured. The district court granted summary judgment in favor of Dr. Taus, finding that Trinidad had faded to present evidence to show that Dr. Taus’s alleged misconduct was the proximate cause of the injury suffered by Trinidad. We have jurisdiction under 28 U.S.C. § 1291. We reverse.

I.

Dr. Taus began treating Charles Sementilli in 1986 for a variety of physical and psychological complaints arising from an on-the-job conveyor belt accident. As a result of this accident, the physical requirements of Sem-entilli’s job as an onshore cookie baker, as well as Sementilli’s chronic depression, bursitis, tendinitis and hypertension, Dr. Taus determined Sementilli to be completely disqualified from working as an onshore baker.

In May 1990, Dr. Taus declared Sementilli to be totally and permanently disabled from the baking profession and incapable of doing any other job requiring Sementilli to lift weights of more than ten to twenty pounds. Dr. Taus also advised that Sementilli should avoid future jobs which would require him to jump, ran, climb, lift, or stand for extended periods, or which involved cold, wet, noisy or vibrating working conditions. Despite this advice and his declaration that Sementilli was totally disabled, Dr. Taus encouraged Semen-tilli to become a merchant seaman on a U.S. flag vessel.

On October 24, 1990, Dr. Taus issued a medical slip to the National Maritime Union (“NMU” or “union”) stating that Sementilli was fit for sea duty. Dr. Taus issued this medical slip despite his knowledge that an ordinary part of a seaman’s job is climbing ladders, lifting heavy weights and working long hours without rest and under adverse conditions. Several days before and again sixteen days after sending this “fit-for-duty” evaluation to the union, Dr. Taus formally advised Sementilli’s private disability insurer that Sementilli was still totally disabled due to chrome depression, tendinitis, bursitis and hypertension.

Sementilli obtained his first sea billet aboard the U.S. flag vessel USNS AGENT, working from December 1990 through March 1991. Dr. Taus continued to produce reports stating that Sementilli was totally disabled from working as an onshore baker during this time period despite the fact that Semen-tilli was engaging in extremely heavy manual labor aboard the AGENT. As soon as Sem-entilli left the AGENT, he again sought medical treatment from Dr. Taus for various physical conditions, including low back pain. On May 20,1991, Dr. Taus diagnosed Semen-tilli as suffering from low back sprain and left hip arthritis.

Approximately one month later, Trinidad needed a seaman for the S.S. ADMIRALTY BAY. Under a contract between Trinidad and the union, Trinidad was required to hire its seamen from the NMU hall. Furthermore, under the contract, Trinidad was required to hire any qualified seaman sent to it by the union. If Trinidad wanted to ensure that a seaman sent to it by the union was physically fit to carry out the rigorous duties of a merchant mariner, Trinidad could require the seaman to be examined by the union-designated physician for the area.

In response to Trinidad’s request for a seaman, the union sent Sementilli. Prior to employment, Trinidad required Sementilli to undergo a physical examination to ensure that he was physically fit for duty at sea. To fulfill this requirement, Sementilli was examined by Dr. Taus, the union-designated physician for the area. Dr. Taus knew that the preemployment physical was a precondition to Sementilli obtaining a position as a merchant seaman aboard Trinidad’s vessel, and that Sementilli would not be allowed to ship out on Trinidad’s vessel unless certified as fit-for-duty.

After an examination, Dr. Taus certified Sementilli as fit-for-duty by designating Sementilli as “accepted” on the preemployment physical examination form. This form, signed by Dr. Taus as the “examiner,” also stated that Sementilli had never suffered from any previous injuries, back complaints, depression or nervous troubles.

Sementilli presented this preemployment examination form, with its fit-for-duty certification, to the master of the ADMIRALTY BAY and was accepted for employment aboard the vessel. Without this fit-for-duty certification, Sementilli would not have been hired to work on the vessel. Furthermore, had Trinidad known that Sementilli had been declared permanently disabled from working as a shoreside baker, and had a long history of psychological and orthopedic complaints, it would not have hired him to serve aboard its vessel.

On July 5, 1991, only five days after shipping out on the ADMIRALTY BAY, Semen-tilli slipped and fell on a rug as he stepped out of the vessel’s elevator. At the time of the accident, Sementilli was stepping out of the elevator carrying a tray of frozen meat weighing approximately fifty pounds. When he placed his foot on the rug in front of the elevator, which had been placed on the floor upside-down so that the rubber nonslip backing was facing up instead of down, it slipped out from under him and he fell.¹ As a result of the fall, Sementilli allegedly suffered renewed back pain and severe depression. Dr. Taus has declared that, as a result of these injuries, Sementilli is permanently disabled from future sea duty.

Sementilli filed suit against Trinidad for the back and psychiatric injuries he allegedly sustained as a result of the slip and fall, seeking damages in excess of $1,500,000 pursuant to the admiralty remedies of maintenance and cure, Jones Act (46 U.S.C. § 688) negligence and unseaworthiness. Trinidad and Sementilli settled the action for $75,000.

Trinidad then impleaded Dr. Taus, seeking indemnity from him on the grounds that Dr. Taus had negligently and wrongfully certified a person known to him to be already permanently disabled as fit-for-duty as a merchant seaman; that Dr. Taus had knowingly deceived Trinidad as to Sementilli’s true physical condition; and that Trinidad had relied on Dr. Taus’s certification in hiring Sementil-li. Trinidad sought indemnity for the costs of the settlement with Sementilli, as well as for the shipowner’s maintenance and cure obligations. Trinidad proceeded under several different legal theories, including negligence, breach of the maritime warranty of workmanlike service, negligent misrepresentation and fraud.

Dr. Taus moved for summary judgment, arguing that he was entitled to judgment as a matter of law because Trinidad could not show that the injury it suffered was proximately caused by Dr. Taus’s certification of Sementilli as fit-for-duty. The district court granted Dr. Taus’s summary judgment motion. Although the district court found Dr. Taus’s certification of Sementilli to have been the “undisputed” cause in fact of Trinidad’s injuries, it found that Trinidad had failed to present evidence sufficient to show that the certification was the proximate cause of Trinidad’s injuries. In making this finding, the district court excluded from consideration the declaration of Trinidad’s expert, Smith A. Ketchum, M.D. Trinidad timely appeals.

II.

We review a grant of summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). We review the district court’s decision to exclude evidence in deciding a summary judgment motion for an abuse of discretion. General Elec. Co. v. Joiner, - U.S. -, -, 118 S.Ct. 512, 519, 139 L.Ed.2d 508 (1997).

III.

To - establish the element of causation, Trinidad offered the declaration of Dr. Ket-chum. Dr. Ketchum stated in this declaration that he had reviewed Sementilli’s medical records maintained by Dr. Taus. Dr. Ketchum then summarized his findings, based on his review of these records: that, as recently as May 20, 1991, Sementilli had been diagnosed as suffering from low back sprain and left hip arthritis; that since 1988, Dr. Taus had diagnosed Sementilli as suffering from swollen ankles, gout, acute gout, and left and right ankle sprain on more than twenty occasions; that Sementilli had suffered from depression, anxiety and nervous troubles since 1985; that Dr. Taus had declared Sementilli permanently disabled from working as a shoreside baker due to bursitis, tendinitis, hypertension and depression; and that Dr. Taus had disqualified Sementil-li from jobs involving lifting weights in excess of twenty pounds, jumping, running, climbing, crawling, or working conditions that were noisy, subject to sudden temperature changes or which involved cramped quarters, high places or vibrations.

Dr. Ketchum then opined, based on his review of Sementilli’s medical records and his knowledge, experience, training and education, that the functional job requirements for a steward/seaman in the U.S. merchant marine are greater than those required for a shoreside baker; that a person permanently disabled from a shoreside baker’s job is not fit for duty as a seaman; that a seaman must be able to show “emotional adaptability for employment in the maritime environment”; that, given Sementilli’s lengthy and chronic depression and chronic anxiety, he was a psychological “accident waiting to happen” and should have been disqualified for sea duty; that the working conditions which Sementilli was barred from by Dr. Taus-lifting more than twenty pounds, jumping, running, climbing, crawling, cramped quarters, high places, vibrations, noise and an environment subject to sudden temperature changes-are necessarily conditions that a seaman will be subject to when working aboard a ship; that Sementilli was in very poor psychological and physical condition and was likely to sustain injury aboard a vessel, irrespective of any fault on the part of the ship owner; that “Sementilli’s slipping accident could well have been eaused-at least in part-by the instability and physical limitations created by [his] pre-existing orthopedic problems (i.e., chronic ankle swelling, shoulder complaints, low back pain, etc.)”; and that “Sementilli’s pre-existing history of anxiety, ‘nerves’ and depression (which quite probably gave rise to ‘difficulty in thinking’ and ‘psychomotor retardation’) may well have caused or contributed to Mr. Sementilli’s slip-and-fall accident aboard the vessel.”

The district court excluded Dr. Ketchum’s declaration from consideration because it found Dr. Ketchum’s opinion to be “pure speculation.” We review the district court’s decision to exclude this evidence for an abuse of discretion. See General Elec., — U.S. at -, 118 S.Ct. at 519.

The district court listed three reasons for its finding of inadmissibility: (1) that Dr. Ketchum never personally examined Semen-tilli; (2) that Dr. Ketchum was not present when the accident occurred; and (3) that Dr. Ketchum was not privy to Sementilli’s thought processes just prior to the accident. In relying on these three reasons for excluding Dr. Ketchum’s testimony, the district court abused its discretion.

Federal Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Fed.R.Evid. 702. In determining whether expert testimony is admissible under Rule 702, the district court must keep in mind Rule 702’s “broad parameters of reliability, relevancy, and assistance to the trier of fact.” Derosiers v. Flight Int'l of Fla., 156 F.3d 952, 960-61 (9th Cir.1998). Moreover, because Dr. Ketchum’s declaration does not constitute “scientific” testimony, but rather testimony based on the doctor’s training and experience, the standards set out in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), governing admissibility of scientific expert testimony, do not apply. See Derosiers, 156 F.3d at 960-61; McKendall v. Crown Control Corp., 122 F.3d 803, 807-08 (9th Cir.1997) (holding that the Daubert factors do not apply to expert testimony based on the expert’s experience and training).

Neither party disputes that Dr. Ketchum qualifies as an expert by virtue of his “knowledge, skill, experience, training, or education.” Furthermore, it is clear that Dr. Ketchum’s knowledge would assist the fact-finder in understanding the evidence and determining an issue of material fact-the existence of causation.

The unique working conditions of a seaman aboard a vessel, and the risks and possible consequences of a person with Sem-entilli’s physical and psychological background working as a seaman on a vessel, are beyond the common experience of the average layman. Whether Sementilli’s psychological and physical conditions could have contributed to his continuing to place a rug upside-down on the floor, and slipping on the upside-down rug when stepping off an elevator carrying a tray of frozen meat weighing more than fifty pounds in rolling seas, are also beyond the common experience of the average layman. Dr. Ketchum’s expert testimony would assist the trier of fact in understanding the significance of the conditions at sea and the possible consequences of having physical and psychological incapacities such as those experienced by Sementilli while working at sea. Dr. Ketchum’s expert testimony was therefore admissible under Rule 702 to assist the fact-finder in understanding the evidence and in determining whether Sementilli’s incapacities were a substantial factor in bringing about the accident. See Fed.R.Evid. 702; Maffei v. Northern Ins. Co. of N.Y., 12 F.3d 892, 897 (9th Cir.1993).

The facts that Dr. Ketchum did not personally examine Sementilli, was not personally present at the accident scene, and was not “privy” to Sementilli’s thought processes just prior to the accident do not render his otherwise admissible expert testimony inadmissible. Federal Rule of Evidence 703 allows an expert to base his or her opinions and inferences on facts and/or data “perceived by or made known to the expert at or before the hearing.” Fed.R.Evid. 703. Thus, as the Supreme Court has recognized: “Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert v. Merrell Dow Phamn., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (emphasis added). Dr. Ketchum’s opinions and inferences were based on his review of Sementilli’s medical records, as well as his knowledge, experience, training and education. Under Rule 703, Dr. Ket-chum was allowed to rely on such information in forming his opinion. The district court’s decision to exclude this evidence based on Dr. Ketchum’s lack of firsthand knowledge or personal observation was an abuse of discretion. See United States v. Morales, 108 F.3d 1031, 1035 (9th Cir.1997) (“A district court abuses its discretion when it bases its decision on an erroneous view of the law....”).

IV.

The district court erred in refusing to consider Dr. Ketchum’s declaration in deciding the summary judgment motion and in granting summary judgment in favor of Dr. Taus. We therefore REVERSE and REMAND for further proceedings.

1 . Sementilli’s testimony varies on the story behind why the rug was placed upside-down. At one point he says that the chief steward placed the rug upside-down after cleaning it; that Sem-entilli was "going to question him about that because it was unusual” but that "things got real busy right then and there, and I was unable to ask him and the question never came up after-wards”; and that he had never "discussed that rug with anybody on the ship before [his] accident” other than being told to move it while mopping and sweeping and to replace it where it was afterwards.

At another point, Sementilli answered, in response to the question of whether he ever asked the chief steward if he could turn the rug back to its proper position with the' rubber side down:

Not after I heard him mention to Emanuel that he wanted it that way. Well, he mentioned that to me, that he wanted it that way. Keep it upside down. But I had my mind on so many duties I did not-I was not concentrating on asking him why.

At still another point, Sementilli testified as follows:

Q. Did [the chief steward] tell you that he was putting the rug down rubber side up for a reason?

A. I can’t remember.

Q. At any time in the two or three days before your accident, did anybody aboard the ship ever comment on or discuss that rug?

A. I don’t remember.

Q. Did you ever talk to the chief steward or anyone else in the steward's department about the rug being upside down prior to your accident?

A. I don't remember if I did or I didn't.

Viewing the evidence in the light most favorable to Trinidad, as we must on summary judgment, a reasonable fact-finder could infer that Sementilli did not ever hear or ask why the rug was upside-down. Furthermore, the fact remains that as part of Sementilli's job, he was required to mop in front of the elevator. To complete this task, he had to move the rug and mop underneath it. So, for the two or three days between the time the rug was allegedly placed upside-down by the chief steward and the accident, Sementilli himself moved the rug and replaced it several times.

Finally, when asked whether he realized or thought that having the rug upside-down constituted a dangerous condition, Sementilli responded:

No. It was kind of baffling. Not-I didn’t think of it as dangerous, but I just wondered if I thought he might have wanted to keep the top clean or something like this, cleaner for a longer length of time, to myself. But there were so many duties that I had to learn how to do, how things were-my mind was so occupied.