The opinion of the court was delivered by: Hall, Circuit Judge
Submitted: December 2, 2011
Before: HALL, LYNCH, LOHIER, Circuit Judges.
Plaintiff-Appellant, a seaman, contracted lymphoma and sued his former employer, a tugboat operator, seeking inter alia maintenance and cure. Undisputed evidence establishes that the seaman had lymphoma during his maritime service. But it is also undisputed the disease did not present any symptoms at all until after his service. After concluding the disease did not "manifest" itself during the seaman's service, the district court granted summary judgment for the tugboat operator.
Because the seaman's illness indisputably occurred during his service, he is entitled to maintenance and cure regardless of when he began to show symptoms. We REVERSE the district court's grant of summary judgment for the tugboat operator and REMAND the case with instructions to enter partial summary judgment for the seaman.
Plaintiff-Appellant Richard Messier, a seaman, contracted lymphoma and sued his former employer, Defendant-Appellee Bouchard Transportation Co., Inc. ("Bouchard"), seeking maintenance and cure.*fn1 Undisputed evidence establishes that Messier had lymphoma during his maritime service. But it is also undisputed the disease did not present any symptoms at all until after his service. After concluding Messier's lymphoma did not "manifest" itself during his service, the district court (McMahon, J.) granted summary judgment for Bouchard.
The first presentation of symptoms, however, is not the touchstone for maintenance and cure. If a seaman's injury or illness occurs during his service, he is entitled to maintenance and cure regardless of when he starts to show symptoms. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district court's grant of summary judgment for Bouchard and remand the case with instructions to enter partial summary judgment for Messier.
This case's facts are not materially in dispute.*fn2 Messier, a career tugboat seaman, was hired by Bouchard in March 2004. In September 2005, he was assigned to work on a Bouchard vessel called the tug Evening Mist. He served at least two three-week "hitches" between September and October 2005. Messier claims that on the evening of October 23, 2005, while in service, he fell climbing down a ladder, and suffered back pain. He sought medical care, and was diagnosed with a "probable back sprain." Messier's back injury was apparently minor, and the pain associated with it quickly subsided. But the resulting medical examinations revealed a much more serious problem. During the course of Messier's examination, his doctor had ordered routine blood tests, which showed an elevated level of creatinine in Messier's blood. For a week Messier's creatinine levels rose dramatically, and his doctor sent him to the emergency room on November 4, 2005, to be treated for renal failure. The symptoms subsided and Messier was released, but doctors performed more tests, trying to discover why his kidneys had failed. In late December 2005, two months after his service on the Evening Mist ended, Messier was diagnosed with B-cell lymphoma. He underwent treatment, and did not return to work until October 2006.
Messier filed this complaint in federal district court in November 2008, asserting claims for negligence under the Jones Act, and for unseaworthiness and maintenance and cure under general maritime law. The parties cross-moved for summary judgment on maintenance and cure after Messier dropped his other claims. Although the district court concluded that, for the purposes of summary judgment, Messier's lymphoma existed while he was employed on the Evening Mist, it held that Messier was not entitled to maintenance and cure as a matter of law because his lymphoma did not "manifest" itself, i.e., did not present symptoms, while Messier was in service of the ship. Accordingly, the district court granted Bouchard's motion for summary judgment and dismissed the case.*fn3
We review an order granting summary judgment de novo, Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011), applying the same standard as the district court, see Breeden v. Kirkpatrick & Lockhart LLP (In re Bennett Funding Group, Inc.), 336 F.3d 94, 99 (2d Cir. 2003). Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). We "examin[e] the evidence in the ...