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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

TRUNG LE,

Plaintiff,

v.

AMERICAN SEAFOODS COMPANY

LLC, et al.,

Defendants.

CASE NO. C06-130JLR

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

This matter came for a bench trial that began on December 3, 2007. Plaintiff

Trung Le was represented by Arnold Berschler of Berschler Associates, P.C., San

Francisco, California and Wayne Mitchell of Bellevue, Washington. Defendants were

represented by Eric McVittie and Robert Zarkos of LeGros, Buchanan & Paul, Seattle,

Washington. At the conclusion of the case, the court took the case under advisement. 

After considering the testimony and exhibits submitted at trial and the written and oral

arguments of counsel, the court makes the following Findings of Fact and Conclusions of

Law.

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ORDER – 2

I. Findings of Fact

1. Defendants, American Seafoods Company, LLC and Northern Jaeger, LLC

(collectively “ASC”) are limited liability companies organized under the laws of the State

of Delaware that conduct business in the Western District of Washington. At all relevant

times, ASC was the operator of the F/T NORTHERN JAEGER (“JAEGER”), a fishing

tender that processes seafood products.

2. Plaintiff Trung Le is 31 years old and emigrated from Vietnam in March 2000. In

mid-2001, Le began working as a seafood processor aboard the JAEGER.

3. On February 17, 2005, Mr. Le was assigned to the JAEGER’s box elevator

(“boxilator”), an enclosed vertical conveyor that carries boxes of frozen product from the

freezer hold to the upper deck, during the vessel’s offload in Dutch Harbor, Alaska. Mr.

Le was working in the freezer hold on the left, or control side, of the boxilator. The

control side is equipped with an emergency stop button and an intercom between the

freezer and the upper deck. Fellow crewmember, Danny Mills, was assigned to the right,

non-control side of the machine. Based on their positions, Mr. Le was using his right arm

and Mr. Mills was using his left arm to guide the boxes.

4. That day Mr. Le dislocated his right shoulder while working at the boxilator. The

parties disagree about how the injury occurred, whether the shoulder injury continues to

affect Mr. Le’s ability to work, and whether Mr. Le’s left ear was damaged during the

same incident.

5. No witness saw Mr. Le fall and/or strike his head and/or ear on February 17, 2005.

6. Mr. Le immediately reported his shoulder injury to second-mate/purser Charlie

Dietrich and received onboard treatment. He did not tell Mr. Dietrich that he had injured

his head or ear. Mr. Dietrich then drove Mr. Le to the Illiuliuk Clinic in Dutch Harbor,

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ORDER – 3

where the dislocation was reduced. During treatment, Mr. Le never complained of a head

or ear injury.

7. After Mr. Le was released from the clinic, Alan Davis, ASC’s Safety and

Compliance Officer, transported him to the vessel to pick up his personal effects and then

brought him to a hotel to rest until his flight to Seattle for treatment left early the next

morning. Mr. Le told Mr. Davis about an “old issue” with hearing loss but never said that

falling in the freezer hold caused his hearing loss. Mr. Davis filled out an accident report

setting forth Mr. Le’s version of the incident: “Box Fell From Boxilator, Reached down

For it & Fell (Slipped) Landed on Right Hand Right Shoulder Pain.” Ex. 31. 

8. ASC flew Mr. Le to Seattle for further shoulder treatment. On March 2, 2005, Mr.

Le underwent an MRI. The radiologist, Tuyen Hoang, M.D., noted that Mr. Le had a

“recurrent dislocation,” meaning that he had suffered a prior dislocation 2-3 years ago in

addition to his most recent one in February 2005. Ex. A-24, at 2. Dr. Hoang concluded

that Mr. Le had an “acute-on-chronic anterior shoulder dislocation.” Id. at 3. Dr. Hoang

noted that “[t]he presence of marrow edema underlying a Hill-Sachs defect suggested an

acute injury. However, the complete absence of the anterior-inferior labrum and presence

of small structures within the anterior-inferior joint, representing worn down labrum or

synovial irregularity, suggests that this represents an old injury.” Id. 

9. On March 4, 2005, Mr. Le filed a second injury report with the assistance of Kelly

Soderberg, the sister of Mr. Le’s live-in girlfriend. In it, he provided a more detailed

account of the February 17 incident:

I was loading the box[i]lator, and a box fell from it. This was probably due

to the fact that the boat . . . was at a tilt (listed), making it difficult for boxes

to stay on box[i]lator shelves that are not level—I stopped the boxelator,

and reached for the fallen box. I slipped and landed on right hand, this gave

me right shoulder pain. As I slipped, I hit my left ear on a bottom edge of a

table. This later gave me discomfort. I filled out a report form like this one

with Alan Davis . . . . My shoulder was in a[]lot of pain, and I forgot to

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ORDER – 4

mention the discomfort I felt in my left ear. I told Alan 11⁄2 hours later

(upon waking up from having my dislocated shoulder reset) about my left

ear. He said to talk to Bob Lang [ASC’s Claims Manager] in Seattle. I am

in the process of contacting Bob Lang right now. 

Ex. 37. According to Mr. Le, the ice on the floor and the box that fell caused his injury. 

Id. ASC responded by sending Mr. Le for treatment with otolaryngologist, Jonathan

Chinn, M.D., and later to Charles Fulmer, Au.D., for a CROS hearing aid. 

10. On March 14, 2005, Dr. Chinn examined Mr. Le, who complained of left-ear

hearing loss, vertigo, and tinnitus. Through an interpreter, Mr. Le told Dr. Chinn that

something had gotten stuck in his ear but was unable to say what it was and had trouble

describing the events leading to the injury. Dr. Chinn discovered a scab on the tympanic

membrane of Mr. Le’s left ear. An audiogram confirmed that Mr. Le had total hearing

loss in his left ear. Mr. Le told Dr. Chinn that he had never had hearing problems before

the February 17, 2005 incident.

11. On April 8, 2005, orthopedic surgeon, Charles Peterson, M.D., performed a

surgical repair of Mr. Le’s right shoulder. Dr. Peterson confirmed Dr. Tuyen’s diagnosis

of a pre-existing shoulder condition and found that Mr. Le’s right anterior-inferior labrum

was completely missing. Ex. 55, at 9-11.

12. On November 3, 2005, Mr. Le underwent another MRI on his shoulder. Dr.

Peterson noted that the MRI showed no significant pathology and that Mr. Le’s shoulder

felt stable. Id. at 40 On December 17, 2005, Dr. Peterson noted that Mr. Le’s range of

motion was nearly back to normal, his shoulder showed no instability, and that no further

treatment was necessary. Id. at 41. Dr. Peterson added that Mr. Le “is able to lift more

than [the] 20 lb[s.] he states.” Id. On December 19, 2005, Dr. Peterson noted that Mr.

Le was at maximum medical improvement and released him to work. Id. at 42.

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ORDER – 5

13. Mr. Le is the only person to testify that on February 17, 2005, there was listing of

the ship, ice at his work station, and that he suffered an ear injury. His testimony is,

however, inconsistent and unreliable.

14. During this litigation, Mr. Le has taken the position that he reached into the mouth

of the boxilator to retrieve a fallen box that was stuck either at the level of the floor or at

the level of the conveyor belt/rollers; in his effort to pull the box loose, he fell backward

on the icy deck and landed either on his right hand or shoulder; and he struck his head or

his left ear. In his two injury reports, however, Mr. Le makes no reference to reaching

into the boxilator to dislodge a box.

15. In his second injury report and in his deposition, Mr. Le said that he struck his ear

on the “table”/conveyor belt. See Ex. 37; Le Dep. at 96. At trial, Mr. Le suggested that,

in looking at photographs of the freezer hold, he must have struck his head or ear on a

pole. The conveyor belt and the pole stand in different directions vis-a-vis where Mr. Le

was stationed.

16. Mr. Le cannot, in fact, recall anything from the point he began falling until about

five minutes later.

17. Mr. Le was wearing a hard hat at the time of his injury. No crewmember or

treating medical personnel noticed an injury to his ear. No foreign body that might have

entered his ear has been identified or found. 

18. Mr. Le believed that Mr. Mills, who was working directly across from him, saw

Mr. Le attempt to dislodge the box from inside of the boxilator and fall. Id. at 88.

19. Mr. Mills did not see or hear a box fall, and did not see Mr. Le reach into the

boxilator to dislodge a stuck box. Mr. Mills did not see Mr. Le fall and dislocate his

shoulder or hurt his ear. Mr. Mills noticed that the boxilator had stopped and looked up. 

Mr. Le stood hunched over and was holding his arm. When Mr. Mills asked what had

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ORDER – 6

happened, Mr. Le said that his arm hurt. Mr. Mills asked if Mr. Le had fallen and Mr. Le

responded that he had not. Mr. Mills directed Mr. Le to seek medical assistance and left

the freezer hold himself to find a processor to take Mr. Le’s position at the boxilator. Mr.

Mills was the only person in the freezer hold with the opportunity and the vantage point

to witness the incident either directly or through his peripheral vision. 

20. Crewmember Aaron Co’s videotaped testimony contradicts Mr. Mills’ account of

the incident. According to Mr. Co, as soon as the conveyor belt stopped, he saw Mr. Le

seated on the ground, where Mr. Le remained for two minutes. Mr. Co purportedly

escorted Mr. Le from the freezer hold to Mr. Le’s onboard room, went to “rest” for an

unspecified period of time, then spoke to Mr. Mills about the incident. According to Mr.

Co, Mr. Mills said that a box was stuck and Mr. Le slipped and fell while trying to

dislodge it. Co Dep. at 37-38. Mr. Mills does not recall ever having this conversation

with Mr. Co.

21. Mr. Mills’ testimony is more credible than Mr. Co’s. When Mr. Co first spoke to

ASC’s counsel, he could recall neither which side of the conveyor belt Mr. Le was

working on nor whether Mr. Le was lying down or kneeling after the accident. Co Dep.

at 50, 55. Though Mr. Le was directed to seek medical attention, Mr. Co did not escort

him to see Charlie Dietrich; that duty fell upon another Vietnamese-speaking

crewmember. Mr. Co instead returned to the freezer hold to have a conversation with

Mr. Mills in which Mr. Mills described with remarkable specificity details that Mr. Le

himself never wrote down in his injury reports and proposed only during this litigation.

22. ASC held safety meetings before every offload in which the processors were

instructed on how to deal with concerns with traction, including standing on top of fiber

or boxes of product. Mr. Mills testified that there was no ice where he was working,

which was only a few feet from Mr. Le’s workspace. Mr. Davis testified that he went to

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ORDER – 7

the freezer hold within hours of the accident, found no signs of ice on the deck, and

noticed that the processors were standing on boxes of product. Mr. Le was wearing a

hard hat and freezer boots, never before complained about traction, and presented no

evidence that other processors have slipped and fallen in the freezer hold. Mr. Le’s own

recollection of his “fall” is so murky that he cannot recall in which direction he fell,

whether he landed on his hand or shoulder, and what he struck, if anything, on the way

down.

23. Prior to 2001, there was a problem with boxes falling in the boxilator shaft and

injuring processors such as Mr. Mills, who broke fingers in such an incident. ASC

addressed that design defect in October 2000 by installing safety bars that shut off the

boxilator if a box is not inserted all the way into it. Mr. Le did not present evidence of

anyone other than himself being injured since 2001 by boxes falling from the boxilator. 

The testimony of Mr. Le’s expert witness, Captain Charles Jacobsen, was unreliable. 

Captain Jacobsen never inspected the JAEGER’s boxilator, has never been in the

JAEGER’s freezer hold, and had no idea who manufactured the JAEGER’s boxilator. He

has never before testified about a boxilator and the last time he worked with a boxilator

was over a decade ago for approximately twelve hours.

24. Mr. Le injured his right shoulder either pushing boxes into the boxilator or by

falling onto his outstretched right hand. The most significant cause of his shoulder

dislocation was pre-existing shoulder damage, including a ground-down anterior-inferior

labrum. The accident was not caused by ice that created unsafe, slippery conditions; by

the vessel listing to one side; or by the flawed design of the boxilator.

25. Mr. Le has been less than forthright about his prior shoulder and ear injuries.

26. In November 2001, Mr. Le suffered an injury caused by his wife striking his elbow

while he was cleaning his ear with a cotton swab. Ex. 56 at 9. The impact resulted in an

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ORDER – 8

acute perforation of his left tympanic membrane for which he was treated in the

emergency room at North Bay Hospital in Florida. His complaints included pain,

dizziness, nausea, and ringing in his ear. Id. at 4.

27. In January 2004, Mr. Le underwent an industrial hearing examination, which

showed that he suffered from moderately severe to severe hearing loss in his left ear. 

After the examination, Mr. Le admitted to crewmember/girlfriend Erin O’Dell that in

2002, while aboard the JAEGER, he had lost hearing when falling pan liners knocked

him down and his head hit the metal on the ground. O’Dell Dep. at 80-81.

28. In its interrogatories, ASC requested a list of all the physicians Mr. Le had seen in

the ten years before the incident. Mr. Le responded by providing the name of the hospital

that treated him for his perforated eardrum, but he described the reason for treatment as

“an ear infection.” Ex. A-8 at 4.

29. Mr. Le stated that before February 17, 2005, he never suffered from any hearing

loss in his left ear, or, at least, that he never noticed any difference between his left and

right ears. Le Dep. at 20.

30. That statement’s veracity has been called into question by Ms. O’Dell’s testimony,

the 2004 audiogram, and his own counsel’s closing argument. Mr. Le failed to disclose

any prior hearing loss to Dr. Chinn in March 2005 or during the independent medical

examinations. His own medical expert, Alan Langman, M.D., opined that Mr. Le

suffered from hearing loss prior to the February 2005 incident. Dr. Langman also

conceded that Mr. Le may have been deaf in his left ear prior to the incident; Mr. Le had

not been frank regarding his medical history; and the hearing in a damaged ear has a

greater propensity to deteriorate than the hearing in an undamaged ear.

31. Mr. Le admitted that he suffered a shoulder separation while aboard the JAEGER

in 2002. Le Dep. at 16. He never reported this injury.

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ORDER – 9

32. Before each season on the JAEGER, Mr. Le filled out a medical history and

healthcare questionnaire. Ex. A-30. In each questionnaire from 2002 to 2005, Mr. Le

failed to disclose prior shoulder or ear injuries in response to queries as direct as “Have

you ever been injured on or off the job?” and “Have you seen a doctor in the past 5

years?” See id. at 5. The January 2002 questionnaire was in the Vietnamese language. 

33. As of February 17, 2005, Mr. Le was either already deaf in his left ear or his

hearing was compromised such that nothing that occurred onboard the JAEGER on that

day contributed to further hearing loss. Constantine Palaskas, M.D., opined that Mr. Le

was more probably than not already deaf in his left ear as of the January 2004 industrial

hearing examination. Dr. Palaskas noted that the 2004 audiogram was not “screened”

and, therefore, the minuscule, residual left-ear hearing shown in the test results was

consistent with a crossover effect, i.e., Mr. Le’s good right ear picked up sound that could

not be picked up by Mr. Le’s deaf left ear. Dr. Chinn’s March 2005 report of a scab on

Mr. Le’s left eardrum cannot, given the record, support a finding that what occurred on

February 17, 2005 caused Mr. Le’s left ear problems. Mr. Le’s ear canal showed no

signs of contemporaneous injury, no one noticed such an injury, and such scabs on the

eardrum are not necessarily the result of a traumatic injury.

34. Mr. Le has exaggerated his right shoulder injury. After his employment with ASC,

Mr. Le ran and operated his own restaurant from November 2005 to June 2006 in which

he cooked, picked up supplies, cleaned, bussed tables, acted as the host, worked the cash

register, and served food. He worked at least six days a week for 10-12 hours a day

without difficulty or further pain complaints.

35. A March 2005 MRI and Dr. Peterson’s operative notes show that Mr. Le had a

pre-existing shoulder condition that predisposed him to future shoulder dislocations.

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ORDER – 10

Credible medical testimony by his treating physician, Dr. Peterson, and ASC’s

rehabilitation expert, Aleksandra Zietak, M.D., shows that Mr. Le has regained at least

the same level of functionality in his shoulder that he had prior to his February 17, 2005

injury. 

36. Mr. Le’s claim that his failure to understand the English language contributed to

the many inconsistencies in his testimony lacks credibility. Mr. Le testified live both

with and without a Vietnamese-language interpreter. Without an interpreter, Mr. Le was

able to comprehend the questions and communicate his answers effectively. He filed a

detailed second injury report in March 2005 without the assistance of a Vietnamese

translator. Mr. Le has been assisted by counsel throughout this litigation and made many

of his inconsistent statements through an interpreter. 

37. ASC did not fail to provide a safe workplace, to supervise, or to provide a safe

offload procedure.

38. Mr. Le has been capable of returning to his previous occupation as a processor

aboard the JAEGER since December 19, 2005.

39. Mr. Le received maintenance at the contractually agreed upon rate of $25.00 per

day until December 19, 2005. Maintenance ended when Mr. Le reached maximum

medical cure on December 19, 2005.

40. ASC has paid all medical expenses Mr. Le has presented.

II. Conclusions of Law

1. The court has jurisdiction over this case based on the Jones Act, 46 U.S.C.

§ 30104, the general maritime law, and 28 U.S.C. § 1333. The Western District of

Washington is the proper venue for this case.

2. The Jones Act provides a cause of action in negligence for seamen injured in the

course of employment. To prove negligence under the Jones Act, a plaintiff must show

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ORDER – 11

duty, breach, notice, and causation. See Ribitzki v. Canmar Reading & Bates, Ltd.

P’ship, 111 F.3d 658, 662 (9th Cir. 1997). The mere fact that a seaman suffers an injury

does not create liability; rather, the seaman must prove the existence of negligence on the

part of his employer. See Caldwell v. Manhattan Tankers Corp., 618 F.2d 361, 363 (5th

Cir. 1980). To recover, a seaman must prove that his employer’s negligence played a part

in producing his injury. See Ribitzki, 111 F.3d at 664.

3. Mr. Le failed to meet his burden to establish that his injury was caused by ASC’s

negligence. Mr. Le failed to show how the vessel’s list and alleged ice in his workspace

played a role in causing or aggravating his injuries. Several witnesses testified credibly

about the training and measures taken by processors to deal with traction issues in the

freezer hold and Mr. Le never countered with evidence of other processors suffering from

traction issues. Mr. Le failed to prove that the boxilator or the vessel’s offload procedure

was unsafe, or that a modification to the offload machinery would have prevented the

alleged accident. Mr. Le also failed to show that ASC failed to supervise its crew

properly or to provide a safe workplace.

4. Mr. Le’s claim for Jones Act negligence is dismissed with prejudice.

5. “A shipowner has an absolute duty to furnish a seaworthy ship.” Ribitzki, 111

F.3d at 664. To be seaworthy, a vessel must be “reasonably fit for its intended use.” Id. 

“[T]here is no presumption that a ship is unseaworthy merely because an accident has

occurred on it . . . .” Villers Seafood Co., Inc. v. Vest, 813 F.2d 339, 342 (11th Cir.

1987). An owner is not obligated to furnish an accident free ship: “The standard is not

perfection, but reasonable fitness . . . .” Mitchell v. Trawler Racer, Inc., 362 U.S. 539,

550 (1960). “In other words, a seaman is not absolutely entitled to a deck that is not

slippery. He is absolutely entitled to a deck that is not unreasonably slippery.” 

Lieberman v. Matson Navigation Co., 300 F.2d 661 (9th Cir. 1962) (quotation marks and

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ORDER – 12

citation omitted). Ice in a freezer, or the slight list created by a vessel offload are

conditions with which seamen must cope when they make their livelihoods in the fishing

industry. See Connorton v. Harbor Towing Corp., 237 F. Supp. 63, 65 (D. Md. 1964);

Colon v. Trinidad Corp., 188 F. Supp. 97, 100 (S.D.N.Y. 1960).

6. To succeed on a claim of unseaworthiness, a plaintiff must prove: “(1) the

warranty of seaworthiness extended to him and his duties; (2) his injury was caused by a

piece of the ship's equipment or an appurtenant appliance; (3) the equipment used was not

reasonably fit for its intended use; and (4) the unseaworthy condition proximately caused

his injuries.” Ribitski, 111 F.3d at 664. To show causation, a plaintiff must prove, “that

the unseaworthy condition was a substantial factor in causing the injury.” Id. at 665. Mr.

Le failed to establish by a preponderance of the evidence, how the alleged accident

occurred. He failed to establish that the boxilator (as designed and operated), ice on the

deck, or the vessel’s list were substantial factors in causing his injury. Mr. Le also failed

to establish that ASC did not provide him with a safe work environment. Mr. Le has,

therefore, failed to meet his burden of proving that the JAEGER was unseaworthy.

7. Mr. Le’s claim for unseaworthiness is dismissed with prejudice.

8. Mr. Le has received all of the maritime benefits of maintenance and cure to which

he is entitled. Based on the records of Dr. Peterson and the testimony of Drs. Palaskas

and Zietak, Mr. Le reached maximum medical improvement in December 2005.

9 ASC contends that Mr. Le committed fraud by filing suit for total left ear hearing

loss, tinnitus, vertigo, and balance issues, all of which he claimed were caused by falling

aboard the JAEGER on February 17, 2005. To recover for fraud under the federal

common law, the following elements must be proven by clear and convincing evidence:

“(1) a false representation (2) in reference to a material fact (3) made with knowledge of

its falsity (4) and with the intent to deceive (5) with action taken in reliance upon the

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representation.” Pence v. United States, 316 U.S. 332, 338 (1942); Barr Rubber Prods.

Co. v. Sun Rubber Co., 425 F.2d 1114, 1120 (2d Cir. 1970); Graham v. Renbrook School,

692 F. Supp. 102, 107 (D. Conn. 1988). To recover for fraud under Washington law, the

following elements must be proven by clear, cogent and convincing evidence: (1) a

representation; (2) its materiality; (3) its falsity; (4) the speaker's knowledge of its falsity

or ignorance of its truth; (5) an intent that it be acted on by the person to whom it is

made; (6) the hearer’s ignorance of its falsity; (7) reliance on its truth; (8) the right to rely

thereon; and (9) consequent damage. Markov v. ABC Transfer & Storage Co., 457 P.2d

535, 539 (1969). “Failure to prove any one of the nine stated elements is fatal to

recovery. Fraud, therefore, is never presumed; to be clear, cogent and convincing, the

evidence must be greater than a mere preponderance.” Id. (citations omitted).

10. ASC has not met this high burden of proof on its counterclaim for fraud. Contrary

to ASC’s assertion, the medical records from North Bay Hospital does not establish that

Mr. Le suffered profound hearing loss in 2001 as the result of a perforated tympanic

membrane. The intake form noted that Mr. Le presented with pain in his ear, nausea, and

dizziness but that he “denies any drainage + hearing [loss].” Ex. 56, at 4 (emphasis

added). The doctor’s discharge notes provided simply that he “take meds as ordered.” 

Id. at 10. Although it was disingenuous for Mr. Le to suggest in his answers to

interrogatories that he had been treated only for an “ear infection” rather than for a

perforated eardrum, the statement allowed ASC to investigate his loss of hearing claim

more closely and was not necessarily false. A perforated ear drum may lead to an ear

infection, and either condition may or may not lead to hearing loss. Although the 2004

industrial screening exam suggested that Mr. Le had moderately severe to severe hearing

loss, Drs. Chinn and Palaskas agreed that many people with congenital or early-childhood

hearing loss compensate so well for their disability that they do not realize their own

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partial or even complete deafness in one ear. Dr. Palaskas opined that Mr. Le’s tinnitus

might actually be a symptom of Mr. Le’s shoulder injury due to tension in his muscles. 

A layperson might not suspect that a symptom experienced in his or her ear would result

from an injury to another part of the body, particularly given an otolaryngologist’s

opinion that the condition was related to one’s ear. And though Mr. Le may have

suggested to Ms. O’Dell that he suffered some hearing loss as the result of a 2002

incident involving pan liners aboard the JAEGER, any such concerns did not affect his

ability to work and did not cause him to seek medical attention. When it was his burden

of proof, Mr. Le could not show by a preponderance of the evidence that his left ear

symptoms were the result of the February 17, 2005 incident aboard the JAEGER. With

the burden of proof shifted, ASC cannot show by clear, cogent and convincing evidence

that Mr. Le knowingly misrepresented his ear problems. 

11. ASC also seeks recovery on the basis of unjust enrichment for the expenses

involved with Mr. Le’s left-ear claim. A person has been unjustly enriched when he or

she, contrary to equity, has profited or enriched himself at the expense of another. See

Farwest Steel Corp. v. Mainline Metal Works, Inc., 741 P.2d 58, 64 (Wash. Ct. App.

1987). “Three elements must be established for unjust enrichment: (1) there must be a

benefit conferred on one party by another; (2) the party receiving the benefit must have

an appreciation or knowledge of the benefit; and (3) the receiving party must accept or

retain the benefit under circumstances that make it inequitable for the receiving party to

retain the benefit without paying its value.” Dragt v. Dragt/DeTray, LLC, 161 P.3d 473,

482 (Wash. Ct. App. 2007). Courts have broad discretion when fashioning equitable

remedies. King County v. Seawest Inv. Assoc., LLC, 170 P.3d 53, 58 (Wash. Ct. App.

2007).

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12. The court found Mr. Le’s testimony to be not credible. Nevertheless, it is

undisputed that Mr. Le injured his shoulder on February 17, 2005, and that injury,

according to ASC’s expert witness Dr. Palaskas, is a likely cause of Mr. Le’s tinnitus. 

Because it paid maintenance for Mr. Le’s shoulder injury, ASC did not occur additional

maintenance expenses based on his ear claim. Under these circumstances, ASC has

failed to show that it would be inequitable for Mr. Le to retain the $3,765.37 that ASC

spent in curative treatment for his ear. The court also declines to order Mr. Le to

reimburse ASC for its expenses in defending the ear claim. The most damning evidence

against Mr. Le’s left ear claim, the 2004 audiogram, was an easily discoverable screening

exam conducted at ASC’s behest. Furthermore, ASC obtained the 2001 North Bay

Hospital records because Mr. Le revealed his treatment there for an ear condition.

13. ASC’s counterclaims for fraud and unjust enrichment are dismissed with

prejudice.

14. Mr. Le’s complaint is dismissed with prejudice and without costs to either party.

Dated this 21st day of December, 2007.

A JAMES L. ROBART

United States District Judge

Case 2:06-cv-00130-JLR Document 144 Filed 12/21/07 Page 15 of 15