ATLANTIC SOUNDING CO., INC. v. TOWNSEND

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ORAL ARGUMENT OF DAVID W. McCREADIE ON BEHALF OF THE PETITIONERS

Chief Justice Roberts: We'll hear argument next in Case 08-214, Atlantic Sounding v. Townsend.

Mr. McCreadie.

Mr. McCreadie: Mr. Chief Justice, and may it please the Court: Mr. Townsend is a Jones Act seaman who seeks punitive damages for the willful failure to pay maintenance and cure.

Like the unseaworthiness claim in Miles, Mr. Townsend's maintenance and cure claim is a general maritime law cause of action.

Mr. Townsend cannot recover punitive damages under his general maritime law cause of action because those damages are unavailable under the Jones Act FELA, and to a lesser extent DOHSA.

This Court's decision in Miles requires uniformity between the damages that a seaman can recover under general maritime law and the damages that a seaman can recover under the guiding statutes.

Those guiding statutes again are the Jones Act, the FELA, and the DOHSA.

Those statutes--

Justice Ginsburg: Mr. McCreadie, in this case, why is it necessary to get into that, whether they are punitive damages under FELA and the Jones Act?

If we accept, as I think we must, Townsend's allegations to be true, he has said that Atlantic, as a matter of routine, puts in a boilerplate complaint for declaratory relief, reciting all the reasons why somebody could not get maintenance and cure, even though that is patently false, the allegation, for example, that he deserted his post.

He says it's false.

He says the allegation that he falsified his application for employment is false.

Accepting the -- that to be true at this stage, isn't there some kind of punitive measure to be taken against a litigant who abuses the court process in that way?

Mr. McCreadie: --First, Justice Ginsburg, those are just allegations.

There's no evidence--

Justice Ginsburg: Yes, but -- but now we're at the pretrial stage, and we're supposed to assume the truth of the allegations in Townsend's complaint.

We're assuming -- they may well turn out to be false; but at the threshold under 12(b)6 we accept those allegations as true and then determine whether a claim is stated.

Mr. McCreadie: --Well, if -- if those allegations are true, there's no distinction between the willful wanton misconduct that traditionally has been the subject of the dispute about maintenance and cure and punitive damages as opposed to those allegations.

Justice Ginsburg: But let's take this out of the maintenance and cure spot altogether.

Litigation generally, if a court determines that a litigant is abusing the court's process by filing false pleadings, is there a remedy; and if so, what is it?

Mr. McCreadie: Yes, Justice Ginsburg, there is a remedy.

And that's what Vaughan v. Atkinson provides.

In that case the -- this Court looked at abuse of the litigation process and determined that the plaintiff in that case was entitled to attorneys' fees.

Justice Ginsburg: I thought that all that was at stake there was whether the employer wrongfully withheld maintenance and cure that was owing.

The allegations made by Townsend go far beyond that they just unreasonably denied him maintenance and cure.

They suggest that this litigant, as a matter practice, standard operating procedure, makes false claims before a court.

And my question to you is, isn't across the board there a sanction, wholly apart from the particular claim, for a litigant who abuses the court's processes?

Mr. McCreadie: I think there's a -- there's a number of potential sanctions.

I mean, there is Rule 11.

There's the natural discretion of the court.

Justice Scalia: Is any of them called punitive damages?

Do you know of any case in which a court has--

Mr. McCreadie: No, I do not.

Justice Scalia: --And punitive damages, of course, requires that you first find the guilty person to lose the case.

So what if a person makes these terrible allegations, but ends up winning the case anyway, and -- and -- well, you couldn't impose punitive damages.

Mr. McCreadie: I -- I agree with--

Justice Scalia: We've got to call it something else, don't we?

Mr. McCreadie: --I agree with your position there.

And what I was trying to answer the question is if someone does abuse the litigation process, that is what Vaughan v. Atkinson addressed.

And it -- it awarded attorneys' fees, which -- which are unusual.

It is an exception to the American rule.

And it is a deterrent for anyone to try to play fast and loose with--

Justice Ginsburg: How many--

Justice Kennedy: But do you read Vaughan v. Atkinson as necessarily implying punitive damages would be inappropriate?

I -- I can't quite find the negative that you want me to find, I think, in Atkinson.

True, they didn't talk about punitive damages.

They said damages are appropriate, and attorneys' fees in this case is what the district court gave, we are going to affirm it.

But there's nothing there that said punitive damages are inappropriate.

Mr. McCreadie: --No.

The -- the dissent mentioned that.

But you cannot speak for the majority opinion.

But up until Vaughan v. Atkinson, in the history of the United States there was never a holding where punitive damages were awarded to a Jones Act seaman for the failure to pay maintenance and cure.

It was only after Vaughan v. Atkinson, after the dissent mentioned that concept, that the issue ever arose in the history of Supreme Court precedent, circuit precedent, in -- in this country.

Justice Scalia: Whose dissent was that?

I had forgotten that.

Whose dissent was it?

Do you recall?

Stewart?

Mr. McCreadie: I do -- I do not believe -- it is coming Justice Harlan, but I just -- I just cannot say off the top of my head who wrote the dissent.

Justice Ginsburg: --But you said never in the history.

I mean, there -- there are examples like the ancient Nancy case, where the damages, where they were called exemplary -- but when you say never has there been before or after punitive awards.

But there -- there is precedent, the Nancy case in this Court, cases in lower courts, there have been punitive damages awards in -- in maintenance and cure cases.

Mr. McCreadie: Justice Ginsburg, I made the distinction between there's no case in the history of the United States before Vaughan v. Atkinson awarding punitive damages to a seaman, a Jones Act seaman, for the failure to pay maintenance and cure.

The case that you refer to, the Amiable Nancy, and other cases, they apply to general maritime law with respect to collisions, now with respect to pollution, and that's a broader context.

But if we look at the history of general maritime law, if we look at, for example, Calhoun, there's the critical distinction between non-seafarers and seafarers.

If we look at Latsis, there's the critical distinction between seaman and longshoremen.

In those status, they define the class of persons that we're looking at to see whether they can recover punitive damages.

And this case involves a Jones Act seaman.

And because it involves a Jones Act seaman, that's the class of claimant that we're looking at.

And when we have a Jones Act seaman the primary statute that we look at is the Jones Act.

Of course, the Jones Act incorporates FELA by reference.

And the DOHSA, as Miles points out, also has an impact on the -- on the case.

Justice Ginsburg: Did this Court ever hold that under FELA or under the Jones Act there are no punitive damages?

Do we -- do we have any holding to that effect?

Mr. McCreadie: No -- no, there is no specific holding, and I would point out that if there was, that would answer our question today and we wouldn't be here.

But that we do have is Miles, which is very clear and specific about what damages are available to a seaman; and those damages are compensatory damages.

Miles is clear that the seaman can be compensated for pecuniary loss, the seaman can be compensated for his pre-death pain and suffering.

Because punitive damages are not compensatory damages, because punitive damages do not compensate for pecuniary loss, and because punitive damages do not compensate for pre-death pain and suffering, they are not available to a Jones Act seaman.

Justice Kennedy: Well, but that -- but that was a common law wrongful death action, correct, Miles?

Mr. McCreadie: Miles was--

Justice Kennedy: It was not admiralty maintenance and cure.

Mr. McCreadie: --Justice Kennedy, Miles was a wrongful death action.

But when we look at Miles and we question, well, that is a wrongful death action, it is very clear, should Miles apply in a personal injury action, then we need to -- we -- first we know -- we look at the -- the cases that have addressed that point.

And first off, Miles does not say that the uniformity principle applies only to wrongful death actions.

Secondly, Cortes, Supreme Court precedent, tells us that the rules are the same for personal injury and death actions for maintenance and cure under the Jones Act.

In Cortes, the opposite argument was made: That the maintenance and cure claim could proceed for personal injury but not for a death action.

Here, the Respondent is making the argument--

Justice Scalia: Excuse me, that the maintenance and cure claim could proceed or that the punitive damages claim could be made?

Mr. McCreadie: --You're absolutely correct.

Here they are making the argument that the punitive damages claim could -- can proceed under the personal injury side of the case but not the death side.

And Cortes has already addressed that issue.

And--

Justice Ginsburg: Mr. McCreadie, there's a question about this case, a troublesome feature of it.

That is, you are saying because there are no punitive damages available under FELA and under the Jones Act, then there certainly should not be any under maintenance and cure.

But if we have to answer those questions, whether there are punitive damages available under FELA and the Jones Act, in the context of a maintenance and cure claim, then we're deciding a much larger question than are punitive damages available for willful refusal to pay maintenance and cure.

We're deciding a question under the Jones Act, a question under the FELA, and there are a lot of people who would be interested -- and the seamen are a sizable group that the law cares about particularly -- but there would be a larger interest, a larger interest in the answer in the Jones Act context and FELA.

And to decide those questions in a case that doesn't present any claim under FELA or any claim under the Jones Act is troublesome.

Mr. McCreadie: --I certainly agree with you, Justice Ginsburg, that the answer to this case answers the question of what damages are available under the Jones Act and -- and FELA.

But, again, if you look at Miles, which analyzing both FELA cases, Vreeland, for example, and Kraft, which is a railroad case, it -- it has already specifically stated what compensatory -- that compensatory damages alone are available under the death side, admittedly, and that the compensation for a seaman and, therefore, for a FELA employee is limited to compensation for pecuniary loss and for pre-death pain and suffering.

Also, if we look at another string of Supreme Court precedent, it's not as clear as Miles, but if we look at the -- the other string, it -- it -- this Court has stated over and over that compensatory damages are -- are what is available under the Jones Act; compensatory damages are available under the FELA; and compensatory damages are available under DOHSA.

For example, Zicherman is a post-Miles case, and it's written and states the principles very clearly: The Jones Act provides -- permits, I should say, compensation only for pecuniary losses.

And then it discusses Vreeland, which is a FELA case, and it says that the FELA permits compensation only for pecuniary losses.

And so, again, if we -- if we look at the history on the death side, which Miles summarizes, but if we look on the personal injury side, at the Osceola, the Iroquois, Peterson mentions compensatory damages nine times in expressing what remedies are available to seamen.

And so those railroad cases, those Jones Act cases, have been decided and have been a part of our precedent for 60, 70, 80 years.

And, of course, it is important to note that the Congress has amended the Jones Act in 1982, with no tampering with this history.

It has amended the Jones Act in 2006 with no tampering with the history, and it has amended the Jones Act in 2008 without any change.

And that's in light of Guevara, decided in 1995; that's in light of Roy Al, decided in 1995, and 10 years plus for the cases to percolate and for Congress to decide whether they agree with those policy determinations.

Justice Kennedy: As -- as I read your reply brief -- and please correct me if it's a misimpression -- you didn't dispute the fact that punitive damages were available historically for the shipowner's wrongful refusal to provide maintenance and cure, or am I wrong about that?

Mr. McCreadie: I -- that must have been the Respondent's brief, because our position is -- is -- hopefully was clearer than that, that punitive damages have never been awarded in the history of the United States for the willful failure to pay maintenance and cure until after -- until after Vaughan v. Atkinson.

Justice Kennedy: And what about English admiralty, under the English precedents?

Mr. McCreadie: The -- the English precedents we did not analyze.

We took Miles when it analyzes Lord Campbell's Act, and then that was analyzed in Vreeland.

And from that point forward, Miles took that, that line of cases--

Justice Kennedy: Of course, in Miles -- again, we're coming back -- was wrongful death, not maintenance and cure.

Mr. McCreadie: --Miles was a wrongful death case that analyzed an unseaworthiness cause of action, which is brought under general maritime law.

We are looking at maintenance and cure, which is a claim brought under general maritime law.

Both existed before the Jones Act, unseaworthiness and maintenance and cure, and again both are general maritime law claims.

Chief Justice Roberts: Of course, your friend on the other side distinguishes that argument by noting that death is different.

As he puts it, we're all going to die, so--

Mr. McCreadie: In that case--

Chief Justice Roberts: --you have different considerations under the maintenance and cure.

Mr. McCreadie: --Mr. Chief Justice, that take us back again to Cortes, which this Court has already decided and analyzed.

Should we distinguish between a death action, maintenance and cure action under the Jones Act, from a personal injury action?

And the unequivocal answer from this Court is no, that -- that you should not treat them differently.

There's no logic for treating them differently.

We also need to remember that one of the anomalies that was -- that was -- that was cured by Moragne -- the first anomaly cured by Moragne was an anomaly where the unseaworthiness action would exist in State territorial waters but not in -- I'm sorry, it would exist in State territorial waters, but not on the high seas.

And that troubled the Moragne Court, that you would have a discrepancy between personal injury and death, and that's one of the issues that they tried to -- tried to reconcile.

Justice Ginsburg: I thought there was -- it was on the high seas.

They had DOHSA.

At the time of Moragne, there was DOHSA, but then it was when you weren't on the high seas that was the gap.

Wasn't that the case?

Mr. McCreadie: That's correct.

My point is there was a difference of what right you had under -- in territorial waters under unseaworthiness that Moragne described as one of the anomalies.

And the anomaly was that if the person was injured, they could get an unseaworthiness claim; if they died, they could not.

And Moragne was clear that distinguishing between death and personal injury, it made no sense.

Justice Ginsburg: But that's what the common law was.

That's why we had Lord Campbell's Act.

That was if you die, too bad; if you're injured, you correct -- collect.

That was fixed by statute on the high seas, DOHSA.

Because there was the gap, there was no Lord Campbell's Act, the Court effectively made one up, right?

That's what it did in Moragne.

Mr. McCreadie: Moragne did create some law, yes.

Let me try to answer the question in a different way--

Justice Kennedy: But I just -- and you can go ahead and answer that question without my interrupting.

But my assumption from reading the amicus briefs in this case is that punitive damages were awarded in some maintenance and cure cases, (a) as simply part of the overall award -- they weren't separated out, but it was part of the measure -- and, (b) that some American courts, American judges, including noted admiralty judges, awarded in some cases punitive damages in maintenance and cure before the modern cases, Moragne and so forth that you're -- and Miles -- that you're talking about.

Is that incorrect?

Mr. McCreadie: --That is incorrect.

If -- if you read the cases cited, and they have their roots in some law review articles that are critical of Miles, that -- that don't like the Miles decision, but if you read those cases--

Justice Kennedy: I'm talking pre-Miles.

I'm talking pre-Miles.

Mr. McCreadie: --And I'm saying the cases that are cited in those law review articles -- the purpose of the articles is to criticize Miles.

Those cases do not stand for the proposition that they're presented for in the law review article and they do not stand for the propositions that they have been presented to this Court.

They are not holding -- they are not giving an award of punitive damages for maintenance and cure in any of those cases.

Justice Breyer: Is -- how many -- how many would you say there are in a typical year, maintenance and cure cases?

About, roughly?

I mean, say in the late twentieth century, 18 -- 1980, 1990.

Have you have any guess at all?

Mr. McCreadie: Justice Breyer, because maintenance and cure is so often linked to the Jones Act and the unseaworthy cause of action, and because of the leverage that seems to be brought with punitive damages, they are virtually included in every seaman's case--

Justice Breyer: All right.

Mr. McCreadie: --from the get-go.

Justice Breyer: So how many would you guess?

Mr. McCreadie: And -- and I would have to estimate, just extrapolating from my own experience, thousands of Jones Act cases are filed in the country every year.

Justice Breyer: Uh-huh.

And they usually have maintenance and cure aspects.

Mr. McCreadie: Necessarily they do.

Justice Breyer: Can you get punitives under the Jones Act or not?

Mr. McCreadie: You cannot recover punitive damages under the--

Justice Breyer: What about unseaworthiness?

Mr. McCreadie: --You cannot recover punitive damages under unseaworthiness because that's the same rule that Miles already decided.

Miles decided in unseaworthiness--

Justice Breyer: Okay, so if I have about 30 cases -- no, I had, actually, to be honest, I thought we found about 12 in the period around 1980-2000, where they do give some punitive damages.

Mr. McCreadie: --And -- and -- and I hope I was clear that the can of worms was opened by Vaughan.

No one awarded it.

No one thought about it, until after Vaughan.

Justice Breyer: All right.

Then I found about 10 cases in the period before the Jones Act where there was something given -- punitive damages being given for something, and there was something sort of like maintenance and cure in there.

Mr. McCreadie: There -- there are some pre-Jones Act cases, like the Amiable Nancy, that -- that talk about punitive damages; and there are some cases where some seamen have not been treated very well.

But a specific look at the cases reveals that there is no pre-Jones Act case awarding punitive damages--

Justice Breyer: Over here, there is one called -- Unica v. U.S. The master should have put the libelant into the hospital, give him $1,500.

It was partly punitive.

Considering -- called The Troop -- I mean, I found some that are sort of -- sort of -- I don't know what to say.

I mean, I don't know what to make of it.

Mr. McCreadie: --The Troop is on the list.

It is a case that we have looked at, and it is -- and again, it is a case that I can say that if you look at all of them -- it is a very tedious process; there are a lot of cases, and wading through each one, none of them hold or award punitive damages for the failure to pay maintenance and cure.

And--

Justice Breyer: The Troop gave them $4,000.

Considering all the circumstances of the aggravation.

Gross neglect, mistreatment.

"It is useless to parade more of the sickening details. "

Mr. McCreadie: --And our position is that even if there is -- and there is not; let me be clear -- but even if there was one rogue case, one individual case, that does not create general maritime law.

Something more is needed.

For example, a decision from this Court would create general maritime law.

The -- the -- the Wilburn Boat case is an insurance case.

There's an example where there are some cases on the subject of marine insurance, but there's not enough for the court to conclude that there is a general maritime law on that subject.

And so returning again to this -- this pocket of cases, they do not stand for the proposition -- even if they did, if you'll notice, two of them, it's the same district court judge who is making the noise that he would have done this or he might have done this.

And -- and -- and our position is that one district court judge does not create general maritime law by mentioning the possibility of punitive damages in one case.

We're much more comfortable relying on this Court's precedents, the line of cases that builds from Moragne to Higgingbotham and culminates in Miles, we're much more comfortable looking at the history of the damages awarded by this Court to seamen, where it uses the term compensatory damages, compensation for, over and over and over without any mention whatsoever of punitive damages.

The punitive damages problem did not crop up until Vaughan, even though now everyone seems to agree Vaughan did not hold that punitive damages were available.

I would also just like to mention all the circuit court cases addressing this issue hold that Jones Act precludes punitive damages, and any circuit court that has addressed this issue since Miles, likewise specifically holds punitive damages are not available for the willful failure to pay maintenance and cure.

I'd like to reserve my remaining time.

Chief Justice Roberts: Thank you, counsel.

Mr. Sullivan.

ORAL ARGUMENT OF G.J. ROD SULLIVAN, JR. ON BEHALF OF THE RESPONDENT

Mr. Sullivan: Mr. Chief Justice, may it please the Court: I would like to start by answering the question that was raised by Justice Ginsburg.

This Court does not need to reach the question of whether or not punitive damages are available under the Jones Act or under the FELA in order to decide this issue, because maintenance and cure is different.

It precedes the Jones Act by centuries, perhaps even a thousand years, and it deals with a distinctly different problem.

Maintenance and cure deals with a situation as what do we do with an injured seaman to get him back to health and get him into the workforce?

And the law has provided since Catherine of Aragon went to Greece in the 1200s that the shipowner has a responsibility, in its capacity as a shipowner, to provide that seaman with medical care and to provide that seaman with a living allowance so that he can get better and get back into the work force.

Now, in 1920, Senator Jones intended to make the United States Merchant Marine the world's greatest merchant marine.

He was dealing in a factual scenario where 12 years earlier, on April 12th of 1912, the Titanic had sunk; 1,900 people had died.

Virtually every member of the Senate and Congress knew somebody who was on the Titanic, and during the intervening eight years, certain points of law became obvious.

First of all, the people who died on the Titanic could not recover for anything except their lost baggage.

They could not recover for the fact that their loved ones had passed away, because there was no cause of action.

Secondly, because the Titanic hit an iceberg and was not unseaworthy, there was no cause of action for negligence.

So Senator Jones set around to correct these two anomalies in the law, and said what we are going to do is we're going to create a new class of beneficiaries, who are dependents of people who die at sea, and we are going to give them the right to recover pecuniary damages.

That's the only place where pecuniary damages are mentioned in the law.

And then it said, and as to seamen, we're going to give them an additional right, a cumulative right on top of unseaworthiness, and that's going to be negligence.

It never sought out to touch maintenance and cure.

Maintenance and cure has been something that's been monitored by the courts ever since its inception, and it is a self-regulating system.

Before Guevara, shipowners regularly provided their employees with medical care without asking the question.

If there was a close call, they provided the medical care without running to the court.

They provided maintenance.

Then came Guevara, and Guevara decided for the first time there were no punitive damages, and now you have a growing problem in this country.

You have a problem with shipowners providing less and less medical care without resort to the courts.

Now, our position here is that a seaman should be not ever have to come before a court to seek maintenance and cure, and the court should never, ever have to award punitive damages.

Justice Kennedy: Well, surely there will be some incidents in which the employer in good faith thinks that there's no illness, that there's no basis for maintenance and cure.

Mr. Sullivan: And absolute--

Justice Kennedy: For you to tell me, oh, this will just never happen, I mean, that's -- that's not the way the world works.

Mr. Sullivan: --No.

And, Judge, when a -- when an employer comes to the court in good faith and says there's no entitlement to maintenance and cure, and there -- the court finds that -- or the finder of facts finds there's good faith, there's no basis for punitive damages.

Then you merely have a dispute.

But the situation--

Justice Kennedy: Well, of course, there are going to be disputes, and the question is whether or not, just from the standpoint of fulfilling professional responsibility, in almost any maintenance and cure action where the counsel for the plaintiff thinks that -- for the seaman thinks that the employer has been remiss, he doesn't add the punitive damages complaint, if we -- if we agree with your position, which changes completely the settlement and the bargaining aspect.

But you can address -- you can address that.

Mr. Sullivan: --Well -- and I agree, Your Honor, that is a prospect and a possibility, something which I personally abhor doing.

I mean, you should only plead punitive damages when you have a good faith basis for doing it; you believe you will survive a directed verdict.

It should not be thrown in to every single complaint, and I'm not denying that some counsel will do that.

But what I'm saying is that today, in 2009, in 2006, there are actually shipowners who are, as a regular practice, denying their seamen medical care.

I don't know why that is.

Perhaps it's because it is expensive now, more expensive than it has ever been.

Perhaps it is because there are safety nets that will allow the seamen to seek Medicaid, and so the taxpayer will pay for it.

Whatever the motivations are, it is a growing trend that we are seeing.

Justice Ginsburg: How many of these seamen who seek maintenance and cure are represented?

I mean, what is the incidence of representation for maintenance and cure claims as distinguished from Jones Act negligence type claims with the -- the possibility of large recoveries for pain and suffering?

Mr. Sullivan: Judge, I'd be picking a number out of the air, but I can give you anecdotal evidence of this.

In the Fifth Circuit attorneys who regularly do maritime personal injury work tell each other -- we talk about the fact that you can't afford to represent somebody who's got a maintenance and cure case that's not combined with a Jones Act case.

And there are a number of practical reasons for that.

You have to pay all the experts, and it is very expensive to bring these cases.

You have to hire the orthopedic surgeons, the -- the radiologists.

You have to pay for the tests.

And then, as an attorney, these are never recoverable as costs.

And then you are working on a contingent hourly fee.

If you win your case and you prove that they were willful, wanton and callous in -- in denying maintenance and cure, then you might get a portion of your attorneys' fees back.

Now, you may do that as a pro bono matter on occasion.

But you cannot rely upon the fact that attorneys will take these cases.

Justice Scalia: Well, why -- why does joining it to a Jones Act case help?

Mr. Sullivan: Well, because when you join it to a Jones Act case, you have the substantial possibility of getting either a settlement or a verdict at the end of the case which is going to compensate the attorneys for taking on the maintenance and cure case as a portion of it.

And so, consequently, if somebody has a serious accident, it falls under the Jones Act and there is a maintenance and cure count, the attorney will handle all of those together and feel adequately compensated.

Justice Ginsburg: Well, the -- the point you are making is that the recovery under the Jones Act can be very large, and the attorney on a contingent basis would get a piece of that.

Mr. Sullivan: Exactly, Your Honor.

Justice Ginsburg: Because it would be swelled by the pain and suffering damages which are not available in maintenance and cure.

Mr. Sullivan: That's correct, Your Honor.

Chief Justice Roberts: What is the pre-Vaughan case that awarded punitive damages -- awarded punitive damages in a maintenance and cure case?

Mr. Sullivan: Judge, first of all, I would cite to you two cases: The Rolf case, which is a 1924 Ninth Circuit case--

Chief Justice Roberts: I am -- what -- which -- any case from this Court?

Mr. Sullivan: --No.

Chief Justice Roberts: Okay.

Mr. Sullivan: This issue did not come before this Court.

Chief Justice Roberts: Right.

Justice Ginsburg: It hasn't come before this Court under FELA or the Jones Act, either, the punitive damage question?

Mr. Sullivan: It hasn't -- it has not, Your Honor.

Justice Breyer: Rolf -- Rolf is not a -- Rolf was maintenance and cure and personal injury and unseaworthiness.

So we don't know which aspect of the case led to the punitives.

Mr. Sullivan: We don't, but we know that there was outrage on behalf of the court.

And, unfortunately, in -- and I think, as Justice Souter pointed out--

Justice Breyer: Is it the case that we can't find a single pre-Jones Act case where punitives were awarded and what was sought was maintenance and cure?

I -- I found some, but they seem ambiguous to me.

Mr. Sullivan: --Well, Judge, I would say that--

Justice Breyer: What is your best?

Mr. Sullivan: --Yes.

I would say that the best are the Rolf and the Margharita, which were denials of medical care where the damages were enhanced because of outrageous conduct.

But to say that, Judge, is there a case that says this is maintenance and cure, we are going to award punitive damages, that's not been done.

Justice Breyer: So we have a history all the way back to Catherine of Aragon, and what we've been able to find in these pre-Jones Act cases is really two or three, or maybe -- I found ten actually, that I couldn't say--

Mr. Sullivan: Judge--

Justice Breyer: --Leaning over in your direction, I could take maybe three or four.

And they show a little ambiguity.

But give them all ten, and that's still ten out of hundreds of years of history.

Mr. Sullivan: --Well, let me -- let me respond to that in a couple of ways.

First of all, punitive damages were part of the common law until taken away by Congress.

And -- and it could be asserted that maintenance and cure punitive damages were not necessary because the threat was enough to -- to require shipowners to go ahead and provide this.

And I would point out to the Court that this had not been a problem prior to Guevara.

Shipowners did self-regulate.

They didn't -- seamen didn't run to the courts every time they wanted maintenance and cure; whereas, today they have to.

The leading scholar in this whole area is Professor Robertson at the University of Texas who wrote the AHA brief.

And his brief, on pages 7 through 11, catalogs the cases where he suggests punitive damages or exemplary damages were awarded for outrageous conduct involving failure to provide medical care.

And I would suggest that those show that punitive damages were unexceptional before Vaughan.

They were part of the common law.

They -- they were before this Court in the Amiable Nancy, even though it didn't involve medical care.

There is no reason to assume that if punitive damages are accepted in maritime law as part of the common law, that they weren't also accepted for the willful, wanton, egregious failure to provide a seaman with medical care.

Justice Kennedy: If I thought that the lack of counsel in maintenance and cure cases was a pivotal point or a relevant point for our decision, other than the representations of counsel, where would I look to verify that?

Mr. Sullivan: The existence of prior maintenance and cure cases?

Justice Kennedy: The -- the -- that there is a problem in seamen finding attorneys who will take maintenance and cure cases.

Mr. Sullivan: Yes, Judge, there is not empirical evidence out there.

Nobody has done studies.

I'm not aware of any.

But do we really want to wait for the situation where we have hundreds and hundreds of seamen who are -- are, you know, living homeless or living in their cars or unable to obtain medical care before this Court decides that if somebody does this, it is something that can be punished?

And -- and I think that's the situation we're at today.

It is a growing problem.

And it is a growing problem because Guevara is a relatively new case, and it has spread to the other circuits.

Chief Justice Roberts: Well, if -- if the -- if the existence of the punitive damages and maintenance cure were as well established, why wasn't that mentioned in terms in the Vaughan majority?

It only comes up in the Vaughan dissent.

Mr. Sullivan: Well, it does come up in the Vaughan dissent because it was not requested by the low -- in the -- in the lower courts.

And this Court would not consider a claim for punitive damages for the first time on appeal.

I -- I think what Justice Stewart was saying is we have a question before -- before us where somebody is requesting attorneys' fees in -- in derogation of the American Rule.

The majority is saying we are going to find an exception to the American Rule and give attorneys' fees.

And Justice Stewart is saying, I don't want to do that.

I think that the better--

Justice Scalia: Do you think Stewart knew more about these -- these obscure, ancient cases than we do?

Mr. Sullivan: --I'm sorry?

Was he more--

Justice Scalia: Do you think he knew more about these obscure, ancient cases than we do?

Mr. Sullivan: --No, I -- I think--

Justice Scalia: Had he had the benefit of briefs by Professor Robertson and -- I think not, right?

Mr. Sullivan: --No.

No.

I--

Justice Scalia: It was just sort of off the top of his head that he thought there should be punitive damages.

Mr. Sullivan: --He was quoting from McCormick on damages and some basic treatises.

And I think he was taking the position that punitive damages are in our quiver of weapons that we can use to deter--

Justice Scalia: They -- they normally are, but the question is whether there -- whether this -- this is a different quiver.

Mr. Sullivan: --Well, I think that he was saying that this is one of the weapons we have.

Instead of creating an exception to the American Rule, we ought to just give them punitive damages to account for this egregious conduct.

Justice Ginsburg: And that -- that was not argued by anybody.

It wasn't raised in the lower court.

It wasn't a punitive damages case.

Mr. Sullivan: No, it wasn't.

It wasn't.

The first time counsel for Mr. Vaughan raised the question of punitive damages was on remand.

And then the district court said, hey, look, you didn't raise it before.

Just because Justice Stewart suggested this is a -- as a -- as an alternative to attorneys' fees doesn't mean we're going to award punitive damages now.

Justice Breyer: With attorneys' fees there is a compensatory aspect.

The -- the basic obligation is to keep this seaman alive and well, and then you give him some wages if necessary, and, you know, you give him medical care.

And -- and now he's going to be out that attorneys' fees as a result of his sickness.

So I understand that.

Punitives does not compensate him for anything.

It is a policy matter for the State.

He's a beneficiary of a windfall.

And it seems a more radical step to make something up out of whole cloth here with punitives than it does with attorneys' fees.

Mr. Sullivan: Judge, I would like you to look at how Congress treats this problem.

If you had, for example, a bridge-building project where a seaman, a longshoreman and a State worker all got injured identically in the same accident side by side, and the shipowner failed to provide medical care for the longshoreman, the shipowner could go to jail.

If the shipowner provided -- or failed to provide medical care to the State worker, he could be, again, subject to criminal penalties.

On top of the criminal penalties, Congress has established these administrative agencies to assure that those workers get medical care.

On top of that, if they don't get medical care, they lose their defense of workers' compensation immunity.

They lose the defense of assumption of risk, contributory negligence, and they are subject to personal liability, not just corporate liability.

Justice Breyer: Maybe it would be a good thing.

Mr. Sullivan: Yes.

Justice Breyer: But the -- the problem here is it has pros and cons.

I was quite moved by the brief -- the citation that Professor Robertson made of all of those old cases until we looked them up.

And -- and then I found they seem to stand for a little bit less than I had the impression they stood for.

Mr. Sullivan: That--

Justice Breyer: And so we'd be making this up out of whole cloth, it seems to me.

Mr. Sullivan: --I don't think so, Your Honor.

What I think he would be saying is this is part of our power as a common law court.

And just because we haven't--

Justice Scalia: We've abandoned that.

Justice Breyer: --because Miles says don't do that.

Justice Scalia: Exactly.

We've abandoned that in this area.

We've said that what we do with these admiralty causes of action we should be guided by what Congress has done in the Death on the High Seas Act and in the Jones Act.

Mr. Sullivan: --Well--

Justice Scalia: Do you acknowledge that there are no punitive damages available in the event of death?

Mr. Sullivan: --Yes.

Justice Scalia: Well, that -- that -- now, you want to talk about what's a sensible system and what is not a sensible system.

In the days when Massachusetts used to have a -- when I was in law school, they had a compensation limit for wrongful death, but to limit for -- for pain and suffering, for negligence; and -- and, you know, the line was back her up again -- back her up again, Sam, she's not quite dead yet.

[Laughter]

I mean, is--

Mr. Sullivan: Judge, I--

Justice Scalia: --Is -- is -- is this going to be the same thing, where -- where the shipowner says, well, you know, if -- if -- if I treat him badly enough that he dies, I don't get hit with the punitive damages?

Mr. Sullivan: --I would -- I would hope that would not be the case, Your Honor.

Justice Scalia: Yeah, but it is invited, isn't it?

Mr. Sullivan: Well, I don't think it is invited, Judge.

There are reasons why that there is this anomaly that there are no punitive damages for death.

And that's because in 1920 when Congress created the Death on the High Seas Act there were no -- any kind of damages.

There was no recovery at all.

And so, Congress preempted this field of death.

And it said that death cases shall be decided under the Death on the High Seas Act.

But Congress has completely stayed away from the area of maintenance and cure.

It hasn't enacted administrative remedies because the Court has always been the one who has decided what's appropriate.

And this Court, as a matter of its -- as maintaining its court docket and maintaining these remedies, has the right and I think the obligation to say we're going to keep these cases out of court by awarding punitive damages when somebody willfully denies this right, when somebody willfully withholds medical care.

And I think if you do that, you're going to see these cases are going to disappear.

Seamen are going to start getting their medical care again.

They are not going to be coming to the court every time they get injured and saying, I haven't gotten my back surgery.

I haven't gotten my rotator cuff surgery.

And it is sort of a matter of court administration to -- to--

Chief Justice Roberts: Well, I'm not sure as sure -- I'm not sure I follow that.

Where -- in other areas where we allow punitive damages it hasn't resulted in the cases going away.

Quite the opposite.

It seems it has given rise to a variety of claims on both sides.

Mr. Sullivan: --This is a very narrow area of law, Your Honor.

We are talking about are you giving the seaman the medical care he needs to get the maximum medical improvement?

And that's all it is.

Chief Justice Roberts: Yeah, but the normal medical malpractice area has given rise to a lot of punitive damage litigation.

I don't know why this would be any different.

Mr. Sullivan: I think this would be different because all we're talking about is does the seaman get the surgery he needs.

If he doesn't get the surgery he needs and he gets worse or he continues to stay ill or he continues to stay in pain, then the shipowner should be punished.

But--

Justice Scalia: Well, it certainly -- it certainly makes these maintenance and care cases a lot more attractive to the plaintiffs' bar, doesn't it?

I mean, one of your complaints is there's just no money in it.

The claim is not for that much.

Mr. Sullivan: --The goal here, Judge, is not money.

The goal here, I think--

Justice Scalia: Of course it shouldn't be the goal.

But we're -- we're inquiring into the question of whether granting punitive damages will increase or decrease the number of lawsuits.

I -- I -- I would think it would be astounding if it would decrease the number of lawsuits.

Mr. Sullivan: --I think it would decrease the incidence when -- when medical care is denied.

Justice Ginsburg: There -- there wouldn't be any maintenance and cure claim if the system worked as it was intended; that is, that if you have a sailor who is injured, the shipowner pays room and board and medical expenses.

Mr. Sullivan: That's all it is, Your Honor.

Just say if the -- if the shipowner will treat the seaman fairly, will follow the doctor's recommendations, get him to a doctor, give him treatment so he gets better, there's -- I mean, you are saying there may be more claims for punitive damages, but there will be more awards of punitive damages because there won't be this willful and wanton, callous disregard of the seaman's rights.

And so, I would suggest that, in fact, in this narrow area of the law, if you impose punitive damages, actual punitive conduct, conduct that deserves punishment will go down and it will go down rapidly.

Justice Scalia: I -- I wish it were as clearcut as that.

I mean, what -- what if the seaman says, you know, I should have had this very expensive treatment?

And the shipowner's medical counsel said, no, this treatment is -- is not necessary.

Is that -- is that a punitive damages claim?

I bet it is.

Mr. Sullivan: I don't think so, Judge.

I think those kind of cases should be weeded out on summary judgment by the courts -- by the district court, because we're only talking about the willful, wanton and callous withholding--

Justice Scalia: He's going to say that was willful and wanton.

I obviously needed this -- this more expensive treatment.

He just didn't want to pay the money.

Mr. Sullivan: --And the court is going to have to -- the district courts are going to have to make a judgment as to the bona fides of that case.

But I think that you are going to find that it is very rare when somebody is going to act callously when the potential on the other side is that they are going to be awarded -- have punitive damages awarded against them.

And that, therefore, this is going to be a corrective mechanism that's going to do away with the problem we currently have now and make the plaintiffs even better.

Chief Justice Roberts: Well, I mean, it -- whether it gives rise to more litigation or not, it is still a significant and it will give rise to greater costs on the part of the -- the shipper which will be passed on, as is the case in a lot of areas where you have punitive damages, it will be passed on to the consumer.

awarded.

Mr. Sullivan: If the punitive damages are But the hope, of course, is that--

Chief Justice Roberts: No, no, even if they're not.

In other words, you were saying, look, to avoid punitive damages, the shipowner is going to make sure that there -- that that more expensive test is provided.

Mr. Sullivan: --It's going to err on behalf of the seaman.

Chief Justice Roberts: Yeah.

Mr. Sullivan: Yes.

Chief Justice Roberts: But that doesn't make -- that doesn't mean there are no costs involved in ruling in your favor.

Mr. Sullivan: That's true, Judge.

But here again, we're balancing the interest of somebody who is injured and whose condition may become permanent and incurable by virtue of not getting prompt care as opposed to the limited costs to the shipowner of -- of providing a doctor who is going to determine what the best care is.

And that's all we asking for, is the best care that medical care can currently provide to get the seaman to maximum cure.

If there are no further questions--

Chief Justice Roberts: Thank you, counsel.

Mr. Sullivan: --Thank you, Your Honor.

Chief Justice Roberts: Mr. McCreadie, you have three minutes remaining.

REBUTTAL ARGUMENT OF DAVID W. McCREADIE ON BEHALF OF THE PETITIONERS

Mr. McCreadie: Justice Ginsburg, I wanted to respond first to a question that you asked that I think there may have been some confusion with respect to the answer.

There is pain and suffering available in a maintenance and cure claim if the failure to pay the maintenance and cure causes injury, causes hurt.

That's what we understand from reading the Osceola and the Iroquois as interpreted by Cortes.

So, I didn't want you to be left with the impression that even if a maintenance and cure claim was brought by itself, if there's some injury, some damage beyond the failure to receive the maintenance and cure, there is a cause of action that could lead to, I think as you put it, the higher award and, hence, attorneys'--

Justice Kennedy: Is that a separate cause of action?

Or is it just part of the maintenance and cure act?

Mr. McCreadie: --It's -- it's maintenance and cure and it can be brought either under the maintenance and cure with an injury or it can be brought under the Jones Act.

You can choose your cause of action.

You just don't recover twice.

Justice Ginsburg: Are you -- are you then disputing what your colleague said about lawyers being reluctant to take maintenance and cure claims that are not tied with a Jones Act claim?

Mr. McCreadie: Justice Ginsburg, we're relying on Supreme Court precedent as opposed to anecdotal information.

But to answer your question specifically, that's why I'm explaining that they do have the right to bring a personal injury component to a maintenance and cure claim.

And the other point I wanted to make, in the Ninth and Fifth Circuits those are the circuits of Guevara and Roy Al, where punitive damages have been clearly eliminated from a maintenance and cure claim for willful failure to pay.

Since 1995 there's no dearth of cases.

Those remain two of the most active circuits in the country for seamen's cases.

And whether they are filing as just maintenance and cure or combining with the Jones Act, the ratio would probably be the same as any other circuit.

There was also a -- a question about the Vaughan and -- and what the dissent knew or didn't know; and -- and reference to McCormick on damages.

I think, again, it is -- it is a small point but it is interesting to point out that McCormick on damages, the same volume that the dissent referred to, specifically states that punitive damages are not available under FELA -- under the FELA.

And, of course, the Jones Act incorporates FELA by reference.

Really the Vaughan dissent did not have the benefit of Miles when it reached its decision.

If that court had had the benefit, we believe they would have found punitive damages are not available.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.