The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Robin Weaver brought this action against Hollywood
Casino — Aurora, Inc., under the Jones Act, 46 U.S.C.App. § 688
et seq. Ms. Weaver also asserts damages under general maritime
common law. Ms. Weaver alleged that, while employed by Hollywood
Casino, she was injured when she attempted to lift a 1,000 pound
bank from an employee onto which the bank had fallen. I held a
bench trial following discovery.
Federal jurisdiction depends on the plaintiff's ability to
invoke the Jones Act. The Seventh Circuit defines someone as a
seaman for Jones Act purposes if (1) the person injured had a
more or less permanent connection with a vessel in navigation,
and (2) the person injured made a significant contribution to the
maintenance, operation, or welfare of the transportation function
of the vessel. Johnson v. John F. Beasley Const. Co.,
742 F.2d 1054, 1063 (7th Cir. 1984). It is not disputed that Ms. Weaver
had a more or less permanent connection with, and made a
significant contribution to, the casino boat. The issue here is
whether the boat is a vessel. The defendants argue that no vessel
the primary purpose of which is gaming
can be a Jones Act vessel. They cite Davis v. Players Lake
Charles Riverboat, Inc., 74 F. Supp.2d 675, 676 (W.D.La. 1999)
("[T]he movement of a casino Riverboat over navigable water would
be serving a purpose that is merely incidental to its primary
function as a gambling facility."). The Fifth Circuit, however,
has upheld a Jones Act class action for casino boat workers in
Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir.
1999). So I do not read Davis to say that no gaming ship can be
a Jones Act vessel. It rather holds this particular ship, for
special circumstances applicable in that case, was a mere
gambling facility. Because the defendants have not come forward
with any evidence of special circumstances that would defeat Ms.
Weaver's jurisdictional showing, I reject their argument and
conclude that I have jurisdiction under the Jones Act.
On May 13, 1995, Robin Weaver was working as a slot machine
attendant on the "City of Lights I," a gambling boat owned by
Hollywood Casino. The City of Lights had recently been remodeled.
One day earlier, a bank, which is a moveable chest containing
drawers which are filled with coins and tokens, had fallen over.
Hollywood Casino was aware of this incident and knew that the
banks were unstable. It was in the midst of bolting them to the
boat but had not finished bolting all the banks when the incident
about which Ms. Weaver complains occurred. This incident also
involved a bank, which weighed between 1,000 and 1,500 pounds,
which fell over onto the leg of another Hollywood Casino
employee. Ms. Weaver, along with others, came to the employee's
aid, and helped raise the bank off the injured employee. The bank
was later found to have been resting on uneven floor. It was not
bolted to the floor or any wall. The design of the bank (all of
the drawers could be opened at once), the fact that the bank was
not bolted to the floor of a vessel that itself moved, and the
fact that the bank was located on uneven flooring either singly
or together led to the accident in which the bank fell over.
Ms. Weaver injured her left wrist while helping to push the
bank off the employee's foot. She felt pain within 45 minutes of
the event and went to the hospital following the end of her
shift. Her wrist was swollen and a splint applied. She did not
return to the same job following her return to the boat as she
was restricted in what she could lift with her left hand. She
later worked in sales and in accounting, and received awards as
an outstanding employee, but was fired in 1999. The cause of her
termination is the subject of a separate lawsuit. She had injured
her wrist on May 5, 1995 in an accident for which Hollywood
Casino is not alleged to be responsible. She did not see a
physician about that injury. She had also had earlier injuries,
including a broken wrist in third grade, and an injury to her
wrist in 1992.
Ms. Weaver was examined by a board certified orthopedic
physician, Dr. John Showalter, in January, 1996, to whom she had
been sent by her first physician. Dr. Showalter determined that
at that time Ms. Weaver exhibited normal movement in her left
wrist. Dr. Showalter administered a series of tests to determine
Ms. Weaver's grip strength and concluded that her strength was
normal (and that she attempted to conceal her actual strength).
Dr. Showalter did find some irritability of Ms. Weaver's ulnar
nerve at the elbow level. The ulnar nerve at the wrist level was
normal, however. There was no pathology. He did conclude that she
had some wrist pain, possible triquetrolunate ligament
disruption, with ulnar-positive variance. She was advised to
increase her mobility and to have an injection in the area where
she showed symptoms. Dr.
Showalter examined Ms. Weaver a second time in November, 1996.
She reported having followed his advice. At this time, Dr.
Showalter's examination indicated Ms. Weaver's ulnar nerves in
both her wrist and elbow were normal. He also concluded that if
there was any injury to her elbow it was not caused by the
accident in May, 1995.
Ms. Weaver's primary orthopedic physician, Dr. Scott O'Connor,
also testified by deposition. Dr. O'Connor saw Ms. Weaver for the
first time on June 1, 1995. He diagnosed her injury as a wrist
sprain. He saw her again at various times during 1995. He
concluded that her range of motion was normal by December, 1995,
and that if she had any nerve damage it was "extremely" mild, and
that it was unlikely that the May 13, 1995 injury resulted in any
significant damage to the ulnar nerve. In 1998, Dr. O'Connor saw
Ms. Weaver again and concluded that she had some clawing on her
small finger of her left hand, an indication of an ulnar injury.
He could not say whether it would have been caused by the 1995
injury at Hollywood Casino. He concluded at that time that she
did not have any significant wrist problems. He did recommend
surgery for a cubital tunnel condition of her elbow.
Defendant's witness, Dr. Alvin Kanter, also an orthopedic
surgeon, testified that the records he reviewed, which showed no
reported injury to Ms. Weaver's elbow in May, 1995, mean that if
she developed an ulnar injury that was not diagnosed until 1998,
it could not have been caused by the May 13, 1995 accident.
Ms. Weaver saw another physician, Dr. Gary Skaletsky, a
neurological surgeon, in August, 1999. He diagnosed her to have a
compressive neuropathy of the ulnar nerve at the elbow, also
referred to as a cubital tunnel syndrome. He did testify that he
believed the injury was related to the May 13, 1995 accident.
However, he later testified that his opinion was based on Ms.
Weaver's representation to him that the only time she had
suffered trauma to her left arm was at that time. He agreed that
an injury at some other point could have resulted in the later
cubital tunnel syndrome. He also testified that the syndrome can
be caused by non-traumatic events such as leaning with an elbow
on the side of a car door while driving.
I conclude that plaintiff suffered a sprained wrist in the May
13, 1995 accident. She did not suffer a chronic wrist injury or
an ulnar nerve injury. Her current need for surgery is unrelated
to the 1995 accident. Most of the physicians' findings are
consistent. I find no reason to believe that Dr. Showalter had
any reason not to credibly report his conclusion that Ms. Weaver
was not accurately reporting her strength at the time he did
tests that indicated her real strength was greater than reported.
I found Dr. Kanter's testimony credible as well.
Ms. Weaver was a seaman employed by a maritime vessel engaged
in maritime activity on May 13, 1995, and therefore can maintain
an action against her employer ...