Sana v. Hawaiian Cruises, Ltd.

181 F.3d 1041 (9th Cir. 1999)

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Nature of the Case

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Facts

D hired P to work in the galley aboard the Navatek. After P left work on March 10, his father noticed that P was walking differently and that P's hands were 'shivering or shaking.' The father also observed swelling and a scratch right at P's hairline. P told him that he had bumped his head at work. On March 11, P became very ill at a church event and was unresponsive. Doctors performed a CAT scan. The result was negative for head trauma, and P was released. D's behavior became increasingly bizarre. He was unable to sit still or sleep, his body shook, and he laughed inappropriately. P could not work, and by March 13, his condition deteriorated. An EEG showed that P's brain function was slowing. Further testing revealed leukocytosis. The doctors could not determine definitively the cause of P's brain inflammation. On March 16, P slipped into a coma, in which he remains to this day. At trial, Dr. Pearce opined that P had viral encephalitis. This was based on P's shaking, weakness, and behavioral changes. It could not be determined what caused P's encephalitis because none of the tests was conclusive. D's expert testified that it was impossible to determine when P was infected. P's counsel sought the maritime remedies of maintenance and cure. D refused the request. P filed a complaint seeking maintenance and cure, as well as damages for negligence and unseaworthiness under the Jones Act. At trial, P attempted to call Don Beaudry, the president of D's insurance company. Beaudry's agent had investigated P's behavior on March 9 and 10. The agent's report contains transcripts of his interviews with two of P's co-workers and P's immediate supervisor. The co-workers said that P told them that he had bumped his head at work on March 10 and one claims that P was behaving abnormally that day. The manager said that P told him that he felt sick on March 8. Since neither Rutherford nor P's co-workers were available to testify at trial, P hoped to establish through Beaudry that the Rutherford report was an admissible business record. The court held it contained inadmissible hearsay. It then held that P was not entitled to maintenance and cure. The court also denied P's Jones Act claims. P appealed.