United States Court of Appeals For the First Circuit

No. 20-2073

MAGNUS AADLAND,

Plaintiff, Appellant,

v.

BOAT SANTA RITA II, INC.; BOAT SANTA RITA III, INC.; FRANCIS A. PATANIA; SALVATORE PATANIA, JR.,

Defendants, Appellees,

F/V LINDA,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Barron, Chief Judge, Thompson and Hawkins, Circuit Judges.

Scott W. Lang, with whom Catherine Kramer, Lang Xifaras & Bullard, Andrew B. Saunders, and Saunders & Saunders, LLP were on brief, for appellant. Francis McSweeney, with whom Joseph A. Regan and Regan & Kiely, LLP were on brief, for appellees.

 Of the Ninth Circuit, sitting by designation. July 28, 2022 BARRON, Chief Judge. This appeal concerns a suit that

Magnus Aadland brought in the United States District Court for the

District of Massachusetts against the owners of a fishing vessel

on which he was a seaman. He alleges that the owners breached a

federal common law obligation under admiralty law that is known as

the duty of cure. He contends that they did so by failing to pay

him adequately for the costs of the medical care that he received

after he fell ill from an infection that he acquired while working

aboard their vessel. He further alleges that, even if the

defendants did satisfy their duty of cure through various payments

that they made to him and his private health insurer, they so

delayed in doing so that he is entitled to compensatory damages

for emotional distress, punitive damages, and attorney's fees.

The District Court granted judgment to the defendants after a bench

trial.

We vacate the grant of judgment with respect to Aadland's

claim that the defendants' breached their duty of cure and remand

for further proceedings consistent with this decision. Our ruling

on that score also leads us to vacate the District Court's grant

of judgment to the defendants with respect to Aadland's claims for

compensatory damages for emotional distress, punitive damages, and

attorney's fees for the defendants' alleged delay in fulfilling

the duty of cure. Finally, we reverse the District Court's ruling

that Aadland had reached what is known as the "point of maximum

- 3 - medical recovery," which is a bar to any claim for cure based on

the costs of recovery past that point in time.

I.

The following facts are not contested on appeal. On

July 9, 2014, the F/V Linda, owned by Boat Santa Rita II

("BSR II"), Boat Santa Rita III, Frank Patania, and Salvatore

Patania, left New Bedford, Massachusetts on a commercial

scalloping trip. Aadland was the vessel's captain.

A few days into the trip, while at sea, Aadland fell

ill. His condition continued to worsen, and the F/V Linda reversed

course and traveled back to Massachusetts. Upon arrival in New

Bedford on July 18, 2014, Aadland was transported to a hospital.

He was diagnosed with a group G Streptococcus infection.

Aadland spent the next six months at various inpatient

facilities, receiving medical treatment at them from July 18, 2014,

to December 29, 2014. He was then discharged and received

outpatient treatment until July 9, 2015, when he was again admitted

to the hospital due to health complications that stemmed from the

infection. Aadland was released from this second period of

hospitalization on September 10, 2015. He thereafter received

outpatient treatment for symptoms attributable to the infection.

It is a general principle of admiralty law that if "a

seaman falls sick[] or is wounded[] in the service of the ship,"

"the vessel and her owners are liable . . . to the extent of [the

- 4 - seaman's] maintenance and cure." Atl. Sounding Co. v. Townsend,

(2009) (quoting The Osceola,

(1903)). The duty of maintenance and cure is often referred to as

a single duty, but there are two distinct aspects of it --

"maintenance" and "cure."

"Maintenance" refers to "the provision of, or payment

for, food and lodging." LeBlanc v. B.G.T. Corp.,

(1st Cir. 1993). "Cure," by contrast, refers to "necessary

health-care expenses . . . incurred during the period of [the

seaman's] recovery from an injury or malady."

The duty of maintenance and cure can be traced back

centuries to legal codes of several seafaring nations. See

Vaughan v. Atkinson,

, 532 n.4 (1962); see also 1B

Erastus Cornelius Benedict, Benedict on Admiralty § 42 (2022)

(explaining that a shipowner's duty to provide maintenance and

cure can be found in the Laws of Oleron, which date to

approximately the year 1200); 2 Robert Force & Martin J. Norris,

The Law of Seamen § 26:6 (5th ed. 2021) (same). The Supreme Court

of the United States first formally recognized the duty of

maintenance and cure, however, in The Osceola,

(1903).

In doing so, the Court echoed Justice Story's oft-quoted

passage in Harden v. Gordon,

(C.C.D. Me. 1823).

There, he explained that

- 5 - [s]eamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. They are generally poor and friendless . . . . If some provision be not made for them in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment. Their common earnings in many instances are wholly inadequate to provide for the expenses of sickness.

. Justice Story reasoned there that if the "expenses of

his [on-ship] sickness [or injury] are a charge upon the ship, the

interest of the owner will be immediately connected with that of

the seamen" and "[t]he master will watch over their health with

vigilance and fidelity[,] . . . tak[ing] the best methods . . . to

prevent diseases, [and] to ensure a speedy recovery from them."

The parties agree that from December 30, 2014 to October

16, 2020, Aadland was paid maintenance of $84 per day by BSR II,1

which amounted to $175,664 in total. There is no dispute before

us regarding whether the defendants satisfied their duty of

"maintenance."

The picture is more complicated with respect to whether

the defendants satisfied their duty of "cure." That is in part

Aadland received the first payment from BSR II on 1

February 5, 2015, containing the amount owed by BSR II to Aadland from December 30, 2014 until February 5, 2015.

- 6 - because, for a portion of the period that followed Aadland's on-

ship infection, he used private health insurance that he had

through his wife's employer to pay for the costs of the healthcare

that he received related to that infection. It was not entirely

clear at the time that the Tufts health insurance plan furnished

by his wife's employer covered the costs of treating his on-ship

illness, because it was a work-related illness.2

In addition, after Aadland's wife lost her job, Aadland

personally enrolled in the Tufts COBRA plan, at a cost of

approximately $2,000 per month.3 For most of the period in which

Aadland was enrolled in the Tufts COBRA plan, BSR II paid Aadland

an "advance" of $114 per day. Aadland began receiving advance

payments six months after he fell ill on the ship.4

BSR II referred to the payments when made as "advance"

payments. BSR II also made these payments with the disclaimer

that "the amount of any settlement, judgment or award" "resulting

2Aadland's health insurance policy contained a disclaimer that his insurer "will not provide coverage for any injury or illness for which it determines that benefits are available under any workers' compensation coverage or equivalent employer liability." Since April 2017, Medicare has been Aadland's primary 3

insurer, but Aadland has also purchased a supplemental healthcare plan. Aadland testified that he enrolled in the Tufts COBRA plan in October 2014. As already discussed, Aadland received the first 4

payment from BSR II in February 2015, which included payments for December 2014-February 2015.

- 7 - from [a] claim for personal injuries or illness occurring [in July

2014] while aboard the F/V Linda" "will be reduced by the amount

of the advance."

Aadland received a total of $238,374 in advance

payments. He used a portion of those payments to pay the premiums

for his Tufts COBRA plan, which he in turn relied on to pay for

the costs of the treatment that he received for his on-ship illness

during this period. There is no indication in the record that

Aadland has reimbursed the defendants for any of the funds that he

received as "advance payments."

In addition, BSR II reimbursed Aadland for his out-of-

pocket medical expenses owing to his on-ship illness. These

included expenses such as those he incurred from the co-payments

he was required to make under his insurance plan.

Finally, after the commencement of this suit, BSR II

paid Aadland's health insurer, Tufts, $400,000 "in full

satisfaction of any lien or claim [the insurer, Tufts,] might have

against [the] Aadland[s] . . . for coverage of Aadland's medical

expenses." BSR II made this payment on the eve of trial.

Aadland filed his lawsuit against the F/V Linda, BSR II,

BSR III, and their owners on July 7, 2017. Aadland's operative

complaint alleges that the defendants breached their duty of cure,

which he contends his on-ship illness triggered. His complaint

claims that he is entitled to damages in the amount of the total

- 8 - cost of the healthcare that he received to treat his July 2014

infection, as well as compensation for pain and suffering that

resulted from the defendants' delay in providing him with the

payments for cure that he contends that he is owed. See Hines v.

J.A. LAPorte, Inc.,

(11th Cir. 1987) (affirming

an award of compensatory damages for "prolonged . . . pain and

suffering" that resulted from the defendant's failure in that case

to timely provide maintenance and cure); Stevens v. Seacoast Co.,

(5th Cir. 1969) (noting that if the delay in

providing adequate maintenance and cure "contributed in any degree

to additional pain or disability or prolonged the recovery period,"

"resulting damages [from that delay] are due"). Aadland's

complaint further alleges that the defendants' failure to provide

him with adequate cure payments was willful and thus that he is

entitled to punitive damages, attorney's fees, and costs. See

Atl. Sounding Co.,

(holding that punitive

damages can be awarded if a shipowner's failure to timely pay

maintenance and cure was "willful"); Vaughan v. Atkinson,

(1962) (holding that attorney's fees can be awarded if

a seaman proves that a shipowner failed to timely provide

maintenance and cure); Robinson v. Pocahontas, Inc.,

(1st Cir. 1973) (explaining that where a shipowner was

"callous, willful, or recalcitrant in withholding [maintenance or

- 9 - cure] payments," the seaman may recover punitive damages as well

as attorney's fees).

The defendants filed their answer to Aadland's complaint

on September 11, 2017. They moved thereafter for summary judgment

on the issue of whether they "willfully" failed to provide adequate

maintenance and cure. They did not, at that time, move for summary

judgment on the underlying issue of whether they had fulfilled

whatever duty of maintenance and cure they had to Aadland in

consequence of his on-ship illness.

The District Court denied the defendants' summary

judgment motion on November 25, 2019. The case then proceeded to

a three-day bench trial.

At the bench trial, the District Court heard testimony

from Aadland, his wife, and Frank Patania, one of the owners of

the vessel on which Aadland worked when he fell ill. Evidence

admitted into the record included Aadland's medical bills,

payments from BSR II to Aadland, communications between Aadland's

wife and Frank Patania, and communications between Frank Patania

and BSR II's insurance broker regarding Aadland's illness.

The District Court entered judgment on October 16, 2020,

in favor of the defendants under Federal Rule of Civil

Procedure 58. After finding the facts described above, see Aadland

v. Boat Santa Rita II, Inc., No. 17-cv-11248,

, at

- 10 - *1-3 (D. Mass. Oct. 16, 2020), the District Court issued its legal

conclusions.

The District Court first addressed whether the

defendants had any ongoing duty of cure or whether they did not

because Aadland had reached what is known as the point of maximum

medical recovery. That is the point at which the seaman who has

suffered an on-ship illness or injury "is 'so far cured as

possible,'" Whitman v. Miles,

(1st Cir. 2004)

(quoting Farrell v. United Sates,

(1949)), such

that the shipowner no longer has a duty of cure to satisfy. The

District Court found that "[t]here [was] no evidence that Aadland

ha[d] not reached maximum medical recovery," given that Aadland

had testified that "he only saw his cardiologist, infectious

disease doctor and primary care physician every six months for

checkups and . . . was discharged from occupational therapy to

begin a home exercise program." Aadland,

, at *3.

The District Court concluded on that basis that the defendants

could "terminate maintenance and cure" to Aadland on a going-

forward basis (assuming, that is, that it had satisfied its duty

up until that point).

(quoting Saco v. Tug Tucana Corp.,

(D. Mass. 2007)).

The District Court next addressed whether the defendants

had satisfied their duty of cure up until the point at which

- 11 - Aadland had reached maximum medical recovery. It ruled that the

defendants had. Id. at *3-4.

Finally, the District Court concluded that Aadland's

claim seeking damages for emotional distress, punitive damages,

and attorney's fees could not succeed because Aadland could not

establish that the defendants willfully withheld maintenance and

cure payments that he was due. Id. Thus, the District Court

granted judgment to the defendants on these claims as well.

Aadland thereafter timely appealed.

II.

"When a district court conducts a bench trial, its legal

determinations engender de novo review," as do its "determinations

about the sufficiency of the evidence." United States v.

15 Bosworth Street,

(1st Cir. 2001). Its factual

findings are reviewed for clear error. See id.; see also Fed. R.

Civ. P. 52(a)(6).

A district court's resolution of mixed questions of law

and fact is typically treated with deference. But, if the district

court "'premise[s] its ultimate finding . . . on an erroneous

interpretation of the standard to be applied,' . . . we treat the

trial court's conclusion as a question of law," entitled to no

deference. Vinick v. United States,

(1st Cir. 2000)

(alteration in original) (quoting United States v. Parke, Davis &

Co.,

(1960)).

- 12 - III.

We start with Aadland's challenge to the District

Court's grant of judgment to the defendants on his claim that they

breached their duty of cure to him. A premise of this challenge

is that he is entitled to a cure award that is equal to the cost

of the reasonably necessary medical care that he received to treat

his on-ship illness, even if he did not personally pay that full

cost in receiving that care because he relied on private insurance

to pay it. An additional premise of this challenge is that the

cost of this care in his case is properly measured by the "sticker

price" of $1.2 million that his healthcare providers charged for

that care and not some lesser amount, such as the amount that his

healthcare providers accepted as payment from his insurer for the

care that they provided to him in treating his on-ship illness.

Based on these twin premises, Aadland contends that the

District Court erred in granting judgment to the defendants on the

breach-of-the-duty-of-cure claim because the defendants did not,

and still have not, paid him that $1.2 million amount that he

contends that they owe him as cure. And that is so, he contends,

notwithstanding that he acknowledges in pressing this challenge

that the defendants have made some payments directly to him and

one payment (of $400,000) directly to his insurer in return for

its release of his liability to the insurer.

- 13 - Of course, as Aadland acknowledges, he did not actually

pay $1.2 million for the care that he received to treat his on-

ship illness. He instead paid for that care, as we have seen,

chiefly through a private insurer, though he did also incur some

out-of-pocket expenses in the form of co-pays and the like. He

thus does not dispute that he was out-of-pocket for the care only

for the amount of the premiums that he had to pay for the insurance

and for the costs of the co-payments and the like, and that this

amount is far less than the amount of cure that he seeks.

Nor does Aadland dispute that his healthcare providers

did not themselves receive $1.2 million for the care that they

provided to him. Instead, he concedes that they received as

payment for that care only roughly $600,000, which was paid to

them by Tufts pursuant to both the Tufts plan that his wife had

through her employer and through the Tufts COBRA plan.

Nonetheless, Aadland contends that, based on the logic

of a Fifth Circuit ruling whose reasoning he asks us to adopt,

Gauthier v. Crosby Marine Service, Inc.,

(5th Cir.

1985), the defendants are still obliged to pay him the $1.2 million

pursuant to their duty of cure. For, he contends, that case

rightly holds that when "a seaman alone purchase[s] medical

insurance,"

, and relies on it to pay the costs of the

care that he receives to treat an on-ship illness or injury, then

the proper measure of the shipowner's cure obligation is the cost

- 14 - of that care and not either the out-of-pocket cost to the seaman

of receiving it or the amount that the healthcare providers

accepted for such care from the insurer.

Moreover, Aadland contends that Gauthier also was right

in holding one more thing -- that, in a circumstance in which the

seaman relied on health insurance that he alone purchased to cover

the costs of the care that he received for his on-ship illness or

injury, the shipowner is not entitled to set off the amount that

the healthcare providers received from the seaman's health insurer

as payment for that care from the shipowner's obligation to pay

cure in the amount of the costs of that care.

Thus, he

contends, based on Gauthier, the defendants here may not set off

from what he contends is their $1.2 million cure obligation the

roughly $600,000 that Aadland's healthcare providers received from

the insurer to pay for the treatment of Aadland's on-ship illness.

For these reasons, Aadland contends that the District

Court's grant of judgment to the defendants cannot stand because

the District Court declined to apply Gauthier to his case, based

on reasons for doing so that he contends are not sound. For, by

failing to apply Gauthier here, he contends, the District Court

erroneously concluded both that the defendants are entitled to set

off from their cure obligation the roughly $600,000 that his

healthcare providers received from the insurer and that, given the

set-off and the payments made to Aadland by the defendants, Aadland

- 15 - had incurred no expense for the care that he received for his on-

ship illness, he was not entitled to any additional payment as

cure. He further contends that there is no alternative ground

manifest in the record on which we can affirm the District Court's

ruling granting judgment to the defendants on his claim that they

are in breach of their duty of cure. And that is so, he contends,

even if we were to agree with him that the District Court's

reasoning in so granting judgment on that claim was flawed.

We approach this case, as the parties do and as the

District Court did, on the assumption that Gauthier guides our

analysis -- but without barring attention to that issue in the

future. As we will explain, we conclude that there is merit to

Aadland's challenge to the District Court's ruling granting

judgment to the defendants on his breach-of-the-duty-of-cure

claim. Moreover, as we will also explain, we agree with Aadland

that we cannot affirm the District Court's grant of judgment to

the defendants on that claim on an alternative ground, at least

given the arguments that the defendants have made to us. Finally,

because of these conclusions, we will also address the question of

what the proper measure of cure is in this case insofar as there

is no basis for applying Gauthier here, so that the District Court

on remand may determine based on that amount the extent to which

all, or any, of the defendants' cure obligation has been satisfied.

- 16 - A.

We start with the issue that the District Court found to

be dispositive, which concerns the applicability of Gauthier to

this case. Given that the District Court declined to apply

Gauthier here because it determined that Gauthier was factually

distinguishable rather than wrongly decided, a brief review of the

facts of that case is in order.

The shipowners in Gauthier had initially paid

maintenance and cure to the seaman after the seaman had suffered

injuries while aboard their vessels. See Gauthier v. Crosby Marine

Serv., Inc.,

(E.D. La. 1980), on

reconsideration,

(E.D. La. 1982). The shipowners

had then stopped doing so after the seaman's condition had

worsened.

They stopped doing so, moreover, despite the

seaman's affirmative request for continued cure.

The seaman in that case, after having had his request

for cure rebuffed, turned to his private insurer to pay for the

costs of his medical care pursuant to a policy that he had alone

purchased with no help from either shipowner. After having used

that insurance to pay for his treatment of his on-ship-injuries,

he then sued the shipowners who had denied him further cure

payment.

The shipowners defended against the suit in part by

arguing that they were entitled to set off from their cure

- 17 - obligation the payments that the seaman's insurer had made for the

seaman's healthcare attributable to his on-ship injuries. See

Gauthier,

. Moreover, the shipowners argued on

that basis that they did not owe the seaman the cure that he sought

because the costs of the seaman's medical care for his injuries

that had been paid for by the insurer was not an "expense" that

the seaman had incurred.

Gauthier rejected the shipowners' contention. It held

instead that the seaman "had incurred expenses" because he alone

had paid the premiums that secured the private health insurance

that he had used to pay for the healthcare that he had received to

treat his on-ship injuries. It further held that "where a seaman

has alone purchased medical insurance, the shipowner is not

entitled to a set-off from the maintenance and cure obligation

moneys the seaman receives from his insurer."

The court

reasoned that "the policy of protecting injured or ill seamen" at

the root of maintenance and cure "would be hampered if a shipowner,

in hopes of reducing his liability, delayed maintenance and cure

payments to force seamen to look first to their private insurer."

In granting judgment to the defendants on Aadland's

breach-of-the-duty-of-cure claim, the District Court did not

purport to take issue with Gauthier's holding that the shipowners

in that case were not entitled to the set-off. Instead, it ruled

- 18 - that Gauthier was distinguishable as a factual matter from

Aadland's case and that, in consequence, its no-set-off rule did

not apply here. Aadland,

, at *4.

The District Court first noted that Aadland, unlike the

seamen in the cases on which Gauthier relied, had not requested

cure from the defendants. It also noted, relatedly, that, as a

result, the defendants were "not aware of Aadland suffering any

dire financial straits" due to his medical expenses and had not

refused any request from Aadland for cure.

The District Court

then explained that while the seaman in Gauthier had incurred

expenses personally in the form of the payments that he made to

cover the costs of the premiums for the insurance he relied on to

pay for his care, "Aadland ha[d] not incurred any medical expenses

himself and even his health insurance premiums, which were part of

the basis of the calculation of the advances he has received from

BSR II, have been covered."

Nor, the District Court noted,

are there "outstanding medical expenses or reimbursements for

Aadland's medical care that Aadland is obligated to pay."

The District Court explained that "under these

circumstances," Aadland,

, at *4 (emphasis added),

Gauthier's rule that where a "seaman alone purchase[s] medical

insurance," the shipowner cannot reduce its cure obligation by the

amount of money the seaman receives from his insurer, Gauthier,

, does not apply. And, after accounting for the

- 19 - set-off of the roughly $600,000 that Aadland's medical providers

accepted as payment for their treatment of his on-ship illness,

the District Court then granted summary judgment to the defendants

on Aadland's breach-of-the-duty-of-cure claim on the ground that

Aadland had incurred no expenses for his treatment, at least given

the payments that had been made directly to him by the defendants.

As this recitation of the decision below shows, the

District Court's ruling that Gauthier could be distinguished from

Aadland's case rested, at least in part, on the ground that Aadland

failed to request cure as the seaman in that case had. But, the

District Court did not hold that a seaman must request cure to be

entitled to it. Moreover, the defendants concede on appeal that

a shipowner's duty to provide maintenance and cure to a seaman who

falls ill or is injured at sea includes the duty to inform the

seaman that the shipowner has that duty, and they do not dispute

Aadland's contention that they did not inform him of their

obligation in that regard.

Thus, we do not see how the fact that Aadland failed to

request cure from the defendants provides a basis for concluding

that Gauthier's no-set-off rule is inapplicable here, insofar as

that no-set-off rule is otherwise applicable. For, if Aadland had

no duty to request cure and was not informed by the defendants of

their duty to provide cure to him, then his failure to have

requested cure could not relieve the defendants of whatever cure

- 20 - obligation to him that they otherwise would have had. The question

thus would remain under Gauthier -- absent some other reasons for

deeming it to be inapplicable -- as to whether the defendants were

entitled to reduce their cure obligation by setting off the payment

that the insurer made to Aadland's healthcare providers to treat

his on-ship illness.

But, as we have noted, the District Court did not suggest

that Gauthier erred in holding that defendants are not entitled to

set off such payments when the seaman alone purchased the health

insurance on which he relied to cover the costs of his care. Nor

did the District Court find that Aadland did not alone purchase

the health insurance on which he relied to obtain his care for his

on-ship illness. Nor, finally, did the District Court hold that

any of the other unique features of Aadland's case on their own,

and without the added feature of his not having requested cure,

suffice to render Gauthier inapplicable. Thus, the District Court

appears to have held that the defendants were entitled to the set-

off without finding that Aadland did not alone purchase the

insurance that he used to pay for his medical care, and the

District Court did so based, at least in part, on a reason that

(insofar as Gauthier's rule itself goes unchallenged) does not

justify that conclusion -- namely, that Aadland did not request

cure at any point.

- 21 - Accordingly, because the District Court did not hold

that the defendants would be entitled to judgment on Aadland's

breach-of-the-duty-of-cure claim even if they were not entitled to

the set-off, we cannot affirm that ruling. Instead, we must vacate

it, because it rests on an impermissible ground for distinguishing

Gauthier and does not otherwise explain why Gauthier does not

apply.

B.

The defendants contend, however, that even if the

District Court's reasons for distinguishing Gauthier do not hold

up, there is an alternative ground for affirming the District

Court's ruling granting judgment to them on Aadland's breach-of-

the-duty-of-cure claim. And that is so, they contend, because the

record incontrovertibly shows that Aadland, unlike the seaman in

Gauthier itself, did not "alone purchase[] [his] medical

insurance," Gauthier,

, and so incurred no

"expense" for his care (at least given what the record shows

regarding the other payments that the defendants made either

directly to him or to his insurer). Thus, they argue, even under

Gauthier itself, Aadland is wrong to contend that the District

Court erred in ruling that the defendants were entitled to the

set-off and that he has incurred no expenses for the care that he

received, at least given the payments that have been made directly

to him by the defendants. But, although we may affirm the District

- 22 - Court on any ground manifest in the record, see Ungar v. Arafat,

, 51 n.4 (1st Cir. 2011), we cannot do so here for the

reasons that we will next explain.

To be sure, the record does show -- without dispute --

that, just as the District Court found, the premiums for the

insurance that Aadland relied on during the first three months

following his on-ship illness to pay for the costs of his care

attributable to his on-ship illness were deducted directly from

his wife's paycheck rather than his own. But, while there is

precedent to support the notion that a seaman who receives

financial assistance from his parent in the wake of his on-ship

illness or injury does not thereby incur an expense that is a

"charge" on the shipowner, see, e.g., Johnson v. United States,

(1948); In re RJF Int'l Corp.,

(D.R.I. 2004), we agree with Aadland that the nature of

the relationship between the seaman and the person providing

financial assistance to him matters. And, given that it is not

unusual for a married couple to share finances, we are not

persuaded by the defendants' implicit assertion that the use of

one spouse's paycheck to fund the insurance of the other is

necessarily a "gift" from the one to the other in the same way

that perhaps a parent paying the premiums of an adult child might

be viewed.

- 23 - Indeed, in the maintenance context, an injured seaman

might stay at home to recover, and his spouse might pay the rent

or mortgage for that home at that time. But, we do not agree that

means that the spouse is "gifting" the seaman shelter, such that

the seaman cannot get maintenance to help pay the rent or mortgage.

Cf. Saco,

.

Thus, the record does not compel the conclusion that

Aadland did not alone purchase his insurance -- and so did not

incur any expense in consequence of his reliance on it to pay for

his care -- during this period. Instead, it provides a supportable

basis for finding that he did. Accordingly, at least as to this

period, we conclude that the District Court's grant of judgment to

the defendants on Aadland's breach-of-the-duty-of-cure claim must

be vacated, absent a finding about the nature of the financial

relationship between Aadland and his spouse that would support a

finding that he did not incur an expense from the costs of paying

the premiums during this period.

Nor can we agree with the defendants that the record

conclusively shows that Aadland did not alone purchase his

insurance -- and so, for that reason, incurred no expense -- during

the ensuing period in which he relied on his Tufts COBRA health

insurance to pay his healthcare providers for the costs of the

care he received to treat his on-ship illness. The defendants

point out that the record indisputably shows that, during this

- 24 - period, Aadland received "advance" payments from the defendants

that he then used to pay the premiums for the Tufts COBRA

insurance. They go on to contend that, as a result, they, rather

than Aadland, purchased that insurance. See, e.g., Shaw v. Ohio

River Co.,

(3d Cir. 1975) (finding that a

shipowner was entitled to a set-off for the medical expenses paid

for by a health insurance plan it provided to its seamen at no

expense to themselves).

But, the District Court did not find, and the record

does not incontrovertibly show, that the advance payments were

made to Aadland in a form other than as a loan. For, while the

District Court found that Aadland had not paid the defendants back

for the advance payments as of the time the District Court issued

its judgment, Aadland,

, at *2, the relevant

question is whether the advance payments were made to Aadland

pursuant to an agreement between Aadland and the defendants that

Aadland did not need to pay the defendants back for those payments.5

The defendants argue that because the advance payments 5

are best understood as maintenance and cure payments, there is no expectation that Aadland pay the advance payments back. See Block Island Fishing, Inc. v. Rogers,

(1st Cir. 2016). But, the defendants do not contend that they represented that the payments were maintenance or cure payments at the time that they were made to Aadland. Instead, they contend that they should be understood as much at present because of the way they were calculated. We thus leave the resolution of this factual dispute about the nature of the payments at the time that they were made to the parties and the District Court on remand.

- 25 - After all, if those payments were not made pursuant to

such an agreement, then Aadland was merely loaned money by the

defendants that he owed to them. And, in that event, Aadland would

have been in all relevant respects "abandon[ed] . . . to his fate"

and own devices to cover the costs of caring for his on-ship

illness during the period in which he was enrolled in the Tufts

COBRA insurance. The Dutra Grp. v. Batterson,

(2019) (quoting McBride v. Etis Well Serv., L.L.C.,

, 394 n.12 (5th Cir. 2014) (Clement, J., concurring)). For, we

see no basis for concluding that a shipowner may evade Gauthier's

no-set-off rule by making the seaman a loan to cover the costs of

the insurance that the seaman then alone purchases and relies on

to pay for the healthcare that he needs to treat an on-ship

illness.

Indeed, the proposition that a shipowner may not evade

Gauthier's no-set-off rule by making a loan to the seaman to cover

the costs of his private health insurance is not itself disputed

by the defendants. Nor was that proposition rejected by the

District Court.

In addition, the proposition accords with -- even if it

is not compelled by -- Gauthier's own rationale for not allowing

a set-off of the payments made by an insurer pursuant to insurance

that the seaman alone purchased. Gauthier cautioned that if a

shipowner were able to reduce its cure obligation in such a

- 26 - fashion, then the shipowner would be incentivized to "delay[]

maintenance and cure payments to force seamen to look first to

their private insurer" -- an outcome the court there concluded was

at odds with the duty's aim of "protecting injured or ill seamen."

.

This proposition draws additional support from the

Supreme Court's decision in Vaughan v. Atkinson,

(1962). There, the Court held that a shipowner cannot "force the

disabled seaman to work, and then evade part or all of their

[maintenance] obligation by having it reduced by the amount of the

sick man's earnings," because otherwise "unconscionable

employers . . . [would] use the withholding of maintenance and

cure as a means of forcing sick seamen to go to work when they

should be resting, and to make the seamen themselves pay in whole

or in part the amounts owing as maintenance and cure."

. And, we note, this proposition accords as well with the rule

that a shipowner may reduce the cost of its cure obligation via

the seaman's admission to a public marine hospital that provides

medical care only if the shipowner first presents the injured or

ill seaman with "a master's certificate carrying admittance to a

public hospital." Kossick v. United Fruit Co.,

(1961); see also Calmar S. S. Corp. v. Taylor,

(1938).

- 27 - Thus, insofar as the record may be deemed to show that

the "advance payments" were made to Aadland as a loan, there would

be no basis for finding that he did not alone purchase the Tufts

Cobra Plan insurance and so no basis for affirming the District

Court's ruling that the defendants are entitled to the set-off

they seek. There then also would be no basis for concluding, given

Gauthier, that the defendants are entitled to a grant of judgment

on Aadland's breach-of-the-duty-of-cure claim.

Accordingly, because of the uncertain nature of the

record as to whether Aadland did or did not alone purchase the

insurance in question, the defendants' proposed alternative ground

for affirming the District Court's grant of judgment to the

defendants on Aadland's breach-of-the-duty-of-cure claim fails.

We thus vacate and remand the District Court's judgment for the

defendants on Aadland's breach-of-the-duty-of-cure claim, so that

the District Court may make the findings that have not yet been

made but that bear on whether Aadland did alone purchase his

insurance during the periods in question. For, we emphasize, if

he did alone purchase that insurance, then the defendants would

not be entitled to set off from their cure obligation the roughly

$600,000 payment that Aadland's medical providers received from

the insurer as payment for their treatment of his on-ship illness.

And thus, the determination of whether Aadland was entitled to

recover on his breach-of-the-duty-of-cure claim would have to be

- 28 - assessed on the understanding that no such set-off could be claimed

by the defendants, which is an assessment that the District Court

has not yet made.6

C.

Having determined this much thus far, the question as to

what the proper measure of cure is in this case necessarily also

presents itself. That question is plainly relevant to the issue

that may arise on remand concerning how much of the defendants'

cure obligation (if any) has been satisfied (set-off not included)

through payments that they have made, either directly to Aadland

or to the insurer, Tufts.

As we have noted, with respect to the issue of the amount

of cure that is owed, Aadland contends that, if Gauthier applies,

then he is owed as cure the "sticker price" of the healthcare that

he received, which is $1.2 million. That amount, Aadland contends,

6 There is a third period concerning Aadland's coverage that is worth noting. Since April 2017, Aadland's healthcare has been paid for through Medicare and a private supplemental health insurance plan he pays for. No party advances a separate reason for distinguishing Gauthier based on the source of Aadland's health insurance during this third period. Nor do we purport to comment on whether these facts would provide a basis for distinguishing Gauthier. Compare Moran Towing & Transp., Co. v. Lombas,

(2d Cir. 1995), with Gypsum Carrier, Inc. v. Handelsman,

(9th Cir. 1962).

- 29 - represents the reasonable costs of his care, given that it is the

amount that his healthcare providers charged for it.7

The defendants contend in response, however, that,

insofar as Gauthier does apply here, the proper valuation of the

cure obligation is still at most the amount that Aadland's

healthcare providers accepted as full payment from the insurer for

his care. And, they assert, that amount comes to approximately

$600,000, which is considerably less than the $1.2 million amount

that Aadland favors.

In pressing for this lesser amount to measure the cure

obligation even under Gauthier, the defendants first emphasize,

correctly, that Gauthier never resolved how much cure the shipowner

there owed the seaman; Gauthier only determined that the shipowner

was not entitled to set off the payments that the insurer made to

cover the cost of the seaman's care against its cure obligation.

The defendants then further note that it was not until Manderson

v. Chet Morrison Contractors, Inc.,

(5th Cir. 2012),

that the Fifth Circuit reached the question of what the cure

obligation would be in a situation in which Gauthier applied. They

Aadland does not develop an argument to us that the 7

proper measure of cure in his case is the cost of his care -- be it the "sticker price" or the roughly $600,000 his healthcare providers accepted as payment -- plus the cost of his premiums and out-of-pocket expenses. We thus deem such an argument waived. See United States v. Zannino,

(1st Cir. 1990).

- 30 - then contend that Manderson undermines Aadland's position that the

proper measure of cure is $1.2 million in his case. We agree.

The defendants point out that Manderson held that when

a seaman alone purchases his medical insurance, such that

Gauthier's no-set-off rule applies, "the relevant amount" owed as

cure is not the "sticker price" the healthcare providers assign to

the care that they provided to the seaman to treat his on-ship

illness or injury. Rather, "the relevant amount is that needed to

satisfy the seaman's medical charges," which there was the "lower

amount paid by [the seaman's] insurer." Manderson,

. Thus, the defendants contend, because "the amount paid by"

Aadland's insurer was only approximately $600,000, Aadland cannot,

given Manderson, be entitled to a cure award that is pegged to the

$1.2 million "sticker price" that his healthcare providers

assigned to the care that they provided to him to treat his on-

ship infection.

Aadland contends otherwise by arguing that, under

Manderson, the lower measure of cure that the Fifth Circuit there

embraced only applies if the shipowner has taken a proactive step

toward ensuring that the seaman has a way to pay for the care

needed to treat his on-ship injury or illness. And, he contends,

the record shows that, unlike in Manderson, the defendants in this

case "played no part in the proactive procurement or payment of"

the health insurance that was used to pay for the care in question.

- 31 - Thus, he contends, he is entitled to a cure award pegged to the

$1.2 million sticker price, notwithstanding that his health care

providers in fact accepted a much lower amount.

But, we are not persuaded by Aadland's contention.

Manderson does not purport to limit its holding regarding the

proper measure of cure in a case in which a seaman relies on

insurance that he alone purchased to pay for the healthcare that

he received for an on-ship illness or injury to the circumstance

in which the defendants took steps to ensure that the seaman had

a way to pay for his insurance (without, of course, going so far

as to pay for that insurance). Moreover, Aadland himself

acknowledges that the defendants here knew at the time that they

made the advance payments that Aadland had health insurance that

he was relying on to pay for his care. And, while the record does

show that there are questions about whether the insurance would

cover those costs, we see no basis for concluding that the mere

possibility that coverage could be denied in and of itself suffices

to make Manderson's approach to defining the measure of cure

inapplicable in a case like this. That is at least the case given

that there is no dispute that the defendants in this case did take

some measures to ensure that the seaman to whom the duty of cure

would be owed could procure insurance, such as by, at the very

least, loaning him money to procure it through the advance payments

that they made to him. Nor, we add, did Aadland have his requests

- 32 - for coverage denied by Tufts during the period in which he was

relying on that insurance to pay for his care.8

Thus, we conclude that, insofar as Gauthier does apply,

we cannot agree with Aadland that the duty of cure is defined in

his case by the sticker price for the healthcare that he received

but that neither he nor his insurer was charged. Instead, insofar

as Aadland did alone purchase the insurance in question, such that

Gauthier applies, the cure owed here is the roughly $600,000 that

8 We note that, insofar as the defendants mean also to assert that Aadland is actually entitled only to a much lower amount of cure, as defined chiefly by the costs of the premiums for his health insurance plus any expenses attending to his reliance on that insurance (rather than the cost of the healthcare itself), the District Court did not so hold. (The District Court only determined that Gauthier was distinguishable; it did not then reach the issue of what the defendants' cure obligation would be if Gauthier was not distinguishable.) Moreover, Manderson, applying Gauthier, does not hold that the cost of the premiums is the right measure of cure when a seaman alone purchases insurance, see

, and the defendants do not develop any argument for why Manderson's reasoning should not apply here. Thus, any such argument is waived. See Zannino,

("[A] litigant has an obligation 'to spell out its arguments squarely and distinctly,' or else forever hold its peace." (quoting Rivera– Gomez v. de Castro,

(1st Cir. 1988))). We note, too, that insofar as the defendants mean to contend that, if the amount accepted as payment by the healthcare providers is the measure of cure, that amount here is only $400,0000 because that is the amount that they paid directly to the insurer in return for its release of Aadland of any liability owing to the payments that it made to the healthcare providers for that care, we also cannot agree. And that is so, because the defendants do not purport to take issue with Manderson, which stated that the correct value of the cure obligation in that case was "the lesser amount those providers accepted as full payment from Manderson's insurer,"

(emphasis added).

- 33 - his healthcare providers accepted as payment for his care from his

insurer.

Of course, there still does remain the question of

whether, given that the cure owed would be roughly half of the

$1.2 million amount that Aadland is suing to obtain, the defendants

have satisfied their duty of cure. The defendants contend that

they have done so by virtue of the payments that they made to

Aadland and his insurer since Aadland fell ill in July 2014 and

the fact that his wife paid for a portion of his health insurance

premiums.

But, the District Court has not addressed this question.

That is so, because it was of the view -- which we have rejected

-- that the defendants could set off the roughly $600,000 paid for

Aadland's care by the insurer because, in part, Aadland failed to

request cure.

Thus, we leave to the District Court on remand the

assessment of what cure was paid -- insofar as, that is, the

District Court finds on remand that Aadland did alone purchase the

insurance on which he relied to pay for his care for some period

of the time in question. Nonetheless, we do make the following

observations with respect to that assessment.

First, and by way of recalling our analysis above

concerning how Gauthier applies here, if the District Court were

to find on remand that the advance payments were made with the

- 34 - understanding that Aadland would not by accepting them incur a

debt to the defendants, then, at least as to the period of time

for which Aadland used the payments to pay for the premiums for

the insurance that he used to pay for the healthcare that he

received for is on-ship illness, Gauthier would be

distinguishable. And, in that event, the defendants, for such

period, would appear to have fulfilled their cure obligation, given

the set-off to which they would be entitled.

But, if the District Court were to find on remand that

Aadland incurred a debt from his receipt of the advance payments,

then a distinct set of questions would arise concerning how to

calculate what amount of cure was owed and what amount had been

satisfied. And, as to that set of questions, we offer the

following guidance.

To the extent that the District Court were to find on

remand that the debt had been incurred by Aadland from his receipt

of the advance payments but that some or all of the debt then had

been extinguished, it may be that a portion of the amount of the

extinguished debt would satisfy some of the defendants' cure

obligation. We say no more on this score, however, because the

parties do not develop on appeal an argument as to whether the

amount of any extinguished debt incurred from receipt of the

advance payments should be credited against the defendants' cure

obligation, and if so, in what amount.

- 35 - Indeed, neither party advances an argument even as to

whether any such amount of extinguished debt should be credited

against the defendants' cure obligation of roughly $600,000 (as

measured by the amount of payment accepted by Aadland's health

care providers from the insurer) or viewed as covering the costs

of an additional part of the defendants' cure obligation. On the

latter view, we note, the amount of the defendants' cure obligation

would not be just the roughly $600,000 that the healthcare

providers accepted as payment from the insurer. It instead would

be that amount plus the cost of (at least a portion of) the premiums

for the insurance that the insurer provided as well as Aadland's

out-of-pocket expenses for the healthcare that he received for his

on-ship illness in the form of co-payments and the like.

We thus leave this nuanced set of questions to the

District Court to address on remand. That way the District Court

may address those questions after having heard whatever arguments

the parties may make to it, including any arguments that the

parties may choose to make to it as to whether any arguments

pertaining to this set of questions have been waived over the

course of this litigation by either party.

There is also the question of whether the defendants'

payment of $400,000 to the insurer, or any portion of that payment,

may count toward the satisfaction of the defendants' cure

obligation and how that payment may bear on the amount of that

- 36 - obligation. But, here, too we leave these questions to the

District Court, given the limited arguments touching on them that

have been made to us by the parties on appeal. This approach will

enable the District Court to resolve these questions in the first

instance with the aid of having heard whatever arguments the

parties may choose to make, given that the parties have not

developed arguments pertaining to those questions to us on appeal.

Finally, we note that if the District Court were to

conclude on remand that Aadland did not alone purchase his health

insurance either only during the period in which he received his

health insurance through his wife's employer-sponsored plan or,

alternatively, only during the period in which he was covered by

the Tufts COBRA plan following her termination from her job, then

there would remain the question of how much cure Aadland must still

be paid by the defendants as cure for that specific period. For,

in that event, Aadland would not be entitled to recovery for non-

payment of cure based on Gauthier for the other period, precisely

because he would not have been found to have alone purchased his

insurance for that period.

Aadland has not developed, however, a distinct argument

to us as to what amount the defendants would owe him as cure in

the event that he were to be found to have alone purchased his

insurance for only one of the periods identified above rather than

- 37 - for the whole of the time spanning both periods. Nor, we should

add, have the defendants weighed in on this issue to us.

We do note, though, that, given the episodic way that

maintenance and cure payments are customarily calculated, it seems

plausible that Aadland would be entitled to cure for the cost of

the care that he received for such a limited period,

notwithstanding that he did not alone purchase the insurance that

he relied on to pay for the healthcare that he received during the

whole of the time that he was relying on such healthcare to treat

his on-ship illness. But, in all events, we leave this question

as well to the District Court to resolve on remand, so that, again,

it may do so with the benefit of whatever arguments the parties

properly advance below.

IV.

Having vacated the District Court's grant of judgment to

the defendants on Aadland's breach-of-the-duty-of-cure claim, we

now come to his additional claim that the defendants' failure to

timely pay him adequate cure, to the extent the defendants so

failed, was done in "bad faith." Here, Aadland argues that the

record shows that the defendants knew of their cure obligation to

him and recognized that his health insurance may not cover the

costs of his care, yet never communicated its cure obligation to

him and waited until "the eve of trial" before reaching an

agreement with his insurer to release him from any liability

- 38 - resulting from his use of his insurance to pay for the care he

received to treat his on-ship illness. As a result, Aadland

contends that he is entitled to compensatory damages for mental

distress for the "mental anguish" that he suffered due to both his

need to rely on his insurance to pay for his healthcare despite

the ambiguity as to whether the insurance covered those costs, as

well as his need to file this suit to receive adequate cure from

the defendants. And, Aadland further contends that he is entitled

to punitive damages and attorney's fees for the defendants'

allegedly willful delay in fulfilling their cure obligation.

As we noted at the outset, the District Court was not

persuaded and granted judgment for the defendants on this claim.

But, the District Court's judgment in this regard relied on its

determination that Aadland was not deprived of any cure owed to

him by the defendants because Gauthier did not apply, in part

because Aadland did not request cure. Nor, in granting judgment

to the defendants with respect to these delay-based claims, did it

address the fact that, from the time Aadland fell ill at sea to

the time of this suit, Aadland faced the risk of a lawsuit by his

insurer to recover the cost of the healthcare his insurance had

paid for.

We therefore vacate the District Court's grant of

judgment on his claim seeking compensatory damages for emotional

distress, punitive damages, and attorney's fees. That way, the

- 39 - District Court may consider those claims in light of our other

conclusions regarding Aadland's claim for cure.

V.

We have one final ruling by the District Court to

address. It concerns whether the defendants have met their burden

of proving that Aadland has reached the point of maximum medical

recovery.

"Maximum medical recovery" occurs "[w]hen a seaman's

'condition has stabilized,'" Whitman,

(quoting In

re RJF Int'l Corp.,

(1st Cir. 2004)), and the

seaman is "so far cured as possible," Ferrara v. A. & V. Fishing,

Inc.,

(1st Cir. 1996) (quoting LeBlanc,

). Even when a seaman's "progress ended short of a full

recovery, the seaman . . . is no longer entitled to maintenance

and cure" once the shipowner has proven by a preponderance of the

evidence that the seaman has reached the point of maximum medical

recovery. Whitman,

(quoting In re RJF Int'l Corp.,

); see also Johnson v. Marlin Drilling Co.,

(5th Cir. 1990) (describing the burden of proof by

which a shipowner must establish that the injured seaman has

reached the point of maximum medical recovery as when it is

"probable that further treatment will result in no betterment of

the seaman's condition" (quoting Gaspard v. Taylor Diving & Salvage

- 40 - Co.,

, 374 n.3 (5th Cir. 1981))); 1 Admiralty & Mar.

Law § 6:33 (6th ed. 2021) (same).

As part of the defendants' effort to minimize the amount

owed to Aadland as cure, if any amount is, the defendants argued

to the District Court, as a defense, that Aadland had reached the

point of "maximum medical recovery" by July 2019. For that reason,

they contend, he is not entitled to cure payments for any

healthcare he received for his on-ship illness after that point in

time. The District Court agreed, and Aadland now appeals that

ruling.

We note at the outset that we are dubious that the issue

of maximum medical recovery is properly presented in this case.

The defendants, in raising this defense, contend that Aadland

reached the point of maximum medical recovery only in July 2019

-- just three months before trial and well after he first became

ill. But, it is not clear to us from either the record or the

arguments of the parties whether Aadland sought cure from the

defendants to cover the cost of treatment he received in that

three-month period as Aadland has been paying for his healthcare,

at least in part, through Medicare since April 2017.9 Nor did the

The record evidence Aadland points to in support of 9

his statement that he incurred approximately $1.2 million in healthcare expenses lists the last expense paid by Aadland's health insurance as being incurred in March 2017. But, the figure Aadland asserts represents the "sticker price" of his healthcare exceeds

- 41 - defendants themselves seek a declaratory judgment of any sort on

this issue. Nonetheless, the District Court ruled on this issue,

and there is ambiguity as to whether Aadland may seek cure for

treatment he received after July 2019. We thus address it, and,

as we will explain, we conclude that Aadland is right that the

District Court's maximum-medical-recovery ruling was wrong.

A.

When determining whether a seaman has reached the point

of maximum medical recovery, a court must consider whether "further

rehabilitation would be more than simply palliative, and would

[instead] improve [the seaman's] medical condition." In re RJF

Intern. Corp.,

(citations omitted). The burden is

on the shipowner to provide evidence that supports, by a

preponderance of evidence, its assertions regarding "the earliest

time when it is reasonably and in good faith determined by those

charged with the seaman's care and treatment that the maximum cure

reasonably possible has been effected." Hubbard v. Faros

Fisheries, Inc.,

(1st Cir. 1980) (quoting Vella

v. Ford Motor Co.,

, 6 n.5 (1975)). It is thus "the

medical, not the judicial, determination of permanency that

the amount billed to his insurance as of March 2017, and other evidence in the record supports the finding that Aadland has been visiting his doctors after that date and paying for that care with some form of insurance.

- 42 - terminates the right to maintenance and cure" via maximum medical

recovery.

Here, the District Court determined that, because

"[t]here is no evidence that Aadland has not reached maximum

medical recovery," the defendants had fulfilled their obligation

to provide Aadland with cure. Aadland,

, at *3.

But, by framing the conclusion in that way, the District Court, as

Aadland emphasizes in his arguments to us, "shifted the burden to

prove [maximum medical recovery] away from [the defendants] and

placed the burden to disprove [maximum medical recovery] onto

Aadland," such that the District Court committed "an error of law."

See also Weeks Marine, Inc. v. Watson,

(E.D. La. 2016) ("After a seaman has proved his initial entitlement

to maintenance and cure, the burden shifts to the ship owner to

prove that maximum cure has been reached."); Saco,

(same); Smith v. Delaware Bay Launch Serv., Inc.,

(D. Del. 1997) (same); McMillan v. Tug Jane A.

Bouchard,

(E.D.N.Y. 1995) (same); 1 Admiralty

& Mar. Law § 6:33 (same).

If, when reviewing a district court's judgment following

a bench trial, the district court "'premise[s] its ultimate

finding . . . on an erroneous interpretation of the standard to be

applied,' . . . we treat the trial court's conclusion as a question

of law," entitled to no deference. Vinick,

(quoting

- 43 - Parke, Davis & Co.,

). We thus must proceed by

reviewing de novo the District Court's determination that the

evidence in the record sufficed to show that Aadland had reached

a point of maximum medical recovery. Id.; see also Aldridge v.

A.T. Cross Corp.,

(1st Cir. 2002) (explaining that

this court can "affirm a district court's judgment on any grounds

supported by the record" (quoting Greenless v. Almond,

(1st Cir. 2002))).

B.

The defendants support their contention that they can

meet their burden to show that Aadland has reached a point of

maximum medical recovery, such that we may affirm the District

Court's ruling as to maximum medical recovery, with reference to

three pieces of evidence in the record. First, they point to a

note "discharg[ing] [Aadland] from occupational therapy to begin

a home exercise program." Second, they point to Aadland's

testimony in his October 12, 2018 deposition that "he only saw his

cardiologist, infectious disease doctor and primary care physician

every six months for checkups." Finally, they point to Aadland's

testimony that he went skiing in Maine in 2016.10 Aadland contends

The defendants, in their briefing to us, also present 10

a series of statements made by Aadland's doctors that could indicate that Aadland has reached a point of maximum medical recovery, but none of those statements were admitted into the record before the District Court. As a result, we cannot affirm

- 44 - that none of these pieces of evidence suffices to permit the

defendants to meet their burden of proof as to this affirmative

defense, because none of them suffices to show that his treating

"physicians [have] made an unequivocal diagnosis of

. . . permanency." See Hubbard,

. We agree.

To be sure, the "discharge note" that the defendants

point to was from a treating physician. But, the District Court

interpreted this document as "discharg[ing]" Aadland from

occupational therapy after fourteen sessions so that he could

"begin a home exercise program," even though the record shows, as

Aadland emphasizes in his briefing to us, at trial, that Aadland

testified that, from September 2015 until March 2020 (when COVID

made receiving treatment difficult), he "did each year the amount"

of physical and occupational therapy he "was allowed to from the

insurance company." Aadland further testified that in 2019, the

year the "discharge note" was produced, the maximum number of

occupational therapy sessions was fourteen -- the same number of

sessions he received before the note "discharged" him to proceed

with home exercise -- and that he had arranged with his

occupational therapist to continue treatment with the sessions he

the District Court by referring to any of those documents. Cf. Fed. R. App. P. 10(e); United States v. Rivera-Rosario,

(1st Cir. 2002) ("[A] 10(e) motion is designed to only supplement the record on appeal so that it accurately reflects what occurred before the district court." (quoting Belber v. Lipson,

, 551 n.1 (1st Cir. 1990))).

- 45 - had "saved" for later in the year, and "then [in] January of

2020[,] [he] would start with new ones." Thus, it is not at all

clear that the "discharge note" -- once it is considered in

combination with Aadland's testimony about his occupational

therapy -- shows by a preponderance of the evidence that Aadland

was receiving "palliative" rather than "rehabilitative" care. See

In re RJF Intern. Corp.,

.

Nor does Aadland's October 12, 2018 deposition help the

defendants to meet their burden of establishing as much. The

defendants contend that Aadland's statements that "he only saw his

cardiologist, infectious disease doctor and primary care physician

every six months for checkups" support a finding that Aadland had

reached a point of maximum medical recovery. But, given that

Aadland was not asked why he did not see his doctors more

frequently at that deposition, it is hard to know whether that

frequency of visits speaks to the "palliative" nature of his care

or whether that too can be attributed to the limits of his health

insurance policy.

It is true that in the same deposition, Aadland did not

disagree that his doctors were "not doing anything for [him] at

the moment designed for [him] to get . . . better." But, it is

not at all clear whether Aadland, in making that statement, was

communicating his own opinion of the efficacy of his doctors' care

or relaying his doctors' opinions as to his prognosis. And, that

- 46 - distinction matters as Aadland is not a medical doctor and thus

cannot himself make the "medical determination" necessary to

determine that he has reached maximum medical recovery -- a reality

that the defendants' themselves do not dispute. See Hubbard,

(quoting Vella,

n.5).

Finally, the defendants contend that Aadland's testimony

at trial that he went skiing in 2016 suffices to show that he has

reached a point of maximum medical recovery. But, Aadland

testified that he went skiing in 2016 with Maine Adaptive, which

he explained is a skiing program for people with disabilities.

That fact in and of itself provides no indication of Aadland's

prognosis, nor does it suggest whether the treatment he continued

to receive in the years that followed was merely "palliative" or

was "rehabilitative" in nature. Nor, we add, is the evidence that

he went skiing a determination by Aadland's medical doctor that he

had recovered to the maximum extent reasonably possible.

C.

We are thus not persuaded that the evidence to which the

defendants point -- even when viewed together -- suffices to meet

their burden of demonstrating that Aadland's treating physicians

had determined that Aadland had reached maximum medical recovery.

Neither the "discharge note" nor Aadland's deposition testimony

nor Aadland's time skiing in 2016 suggest that it is more likely

than not that, at the time of trial, Aadland's care was

- 47 - "palliative" rather than "rehabilitative." We thus conclude that

the District Court erred in determining that the defendants' duty

to provide cure had terminated, and so we reverse that aspect of

the District Court's judgment.

VI.

For the foregoing reasons, the judgment of the District

Court is reversed in part, vacated in part, and remanded for

further proceedings. The parties shall bear their own costs.

- 48 -