Rekart v. Osage Marine Services
Filing
89
OPINION: Defendant's Motion for Partial Summary Judgment 70 , is DENIED. The Final Pretrial Conference remains scheduled for January 27, 2014 at 2:00 p.m. The parties are advised to comply with Local Rule 16.1(E) and (F). In addition, the parties shall submit the proposed Final Pretrial Order, including the agreed set of findings of fact and conclusions of law, by noon on January 24, 2014. Entered by Judge Sue E. Myerscough on 12/11/2013. (ME, ilcd)
E-FILED
Wednesday, 11 December, 2013 04:52:06 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JASON REKART,
Plaintiff,
v.
OSAGE MARINE SERVICES, INC.,
and the M/V Deborah Ann,
Defendants.
)
)
)
)
)
)
)
)
)
)
No. 11-3231
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Defendant Osage Marine Services,
Inc.’s Motion for Partial Summary Judgment (d/e 70). Because genuine
issues of material fact exist, the Motion is DENIED.
I. INTRODUCTION
In September 2011, Plaintiff Jason Rekart filed an Amended
Complaint in Admiralty and Withdrawal of Jury Demand (d/e 7). In the
Amended Complaint, Plaintiff alleges causes of action sounding in general
maritime law (unseaworthiness and maintenance and cure) and the Jones
Act, 46 U.S.C. § 30104.
Defendant filed an Answer raising several affirmative defenses. See
d/e 10. One of the defenses raised was that Plaintiff was not entitled to
maintenance and cure because Plaintiff intentionally concealed and/or
misrepresented material medical facts prior to his employment with
Defendant. Defendant now seeks partial summary judgment on the
maintenance and cure claim.
II. JURISDICTION AND VENUE
This Court has subject matter jurisdiction because Plaintiff’s claims
are based on federal law. See 28 U.S.C. § 1331 (“The district courts shall
have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States”). Venue is proper because the events
giving rise to the claim occurred in Scott County, Illinois. See 28 U.S.C. §
1391(b)(2) (venue is proper in a judicial district in which a substantial part
of the events giving rise to the claim occurred); CDIL-LR 40.1 (complaints
arising in Scott County shall be filed in the Springfield division).
III. LEGAL STANDARD
Summary judgment is appropriate when the pleadings and
submissions in the record demonstrate there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.
Page 2 of 17
Mercatus Group, LLC v. Lake Forest Hosp., 641 F.3d 834, 839 (7th Cir.
2011). A genuine issue of material fact exists when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant
bears the burden of establishing that there is no genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant
meets this burden, the non-movant must set forth specific facts
demonstrating that there is a genuine issue for trial. Stephens v. Erickson,
569 F.3d 779, 786 (7th Cir. 2009). Facts must be viewed in the light most
favorable to the non-moving party, and all reasonable inferences must be
drawn in favor of the non-movant. See Trentadue v. Redmon, 619 F.3d
648, 652 (7th Cir. 2010).
IV. FACTS
The Court sets forth only those facts that Defendant included in its
Undisputed Material Facts and that Plaintiff set forth in his Additional
Material Facts, taking into account each party’s objections thereto.
Defendant’s motion to strike Plaintiff’s Additional Material Fact No. 1 on
the basis that it contains argument is denied.
Page 3 of 17
On October 25, 2009, an incident occurred while Plaintiff was
working for Logsdon Tug Service, Inc. Defendant asserts that Plaintiff
injured his low back on that date. Plaintiff contends that the documents
cited to by Defendant do not establish an injury to Plaintiff’s low back. The
documents Defendant submitted in support show that Plaintiff “yanked
[his] back out” while trying to pull a wire. Def. Mot., d/e 70, Exhibit C.
On November 5, 2009, Plaintiff consulted with Dr. Matthew F.
Gornet at the Orthopedic Center of St. Louis. Dr. Gornet diagnosed
Plaintiff with, among other conditions, a low back abnormality at L4-L5,
large central disc herniation at L4-L5, and an annular tear at L5-S1. See
Stedman’s Medical Dictionary 94 (32nd Ed. 2012) (defining annular as
“shaped like a ring”). Plaintiff testified that he thought that Dr. Gornet told
him he had spondylolisthesis, a back condition dating to his birth, and that
Plaintiff had merely irritated that condition. Dr. Gornet classified Plaintiff
as unable to work from November 5, 2009 through January 5, 2010.
In January 2010, Plaintiff completed an application for employment
with Defendant. See d/e 79 Ex. B. On September 17, 2010, as a required
condition of starting his employment with Defendant, Plaintiff submitted a
Confidential Medical History. The “Notice to Employee” portion of the
Page 4 of 17
Confidential Medical History form explicitly required Plaintiff to supply full
and complete information and warned that any concealment could
jeopardize future benefits of maintenance and cure:
Your past medical history is important to the examining
physician in trying to determine whether you are fit to perform
the essential elements of the job you have been offered.
Disclosure of information about your past medical history is
voluntary on your part. However, if you do not supply full
complete information, this could cause the examining physician
to make an erroneous determination, which could be
detrimental to the health or safety of you or your co-workers.
Also, if you conceal information about a prior injury, physical
problem[,] or other condition, which you might experience
during the course of your employment, and [sic] could also
jeopardize your right to receive maintenance payments during
your medical recover[y]. We therefore urge you to supply full
and complete information on this form. The furnishing of false
or misleading information may be grounds for immediate
discharge.
All information supplied on this form will be kept
confidential by Osage Marine and will be used by the examining
physician alone in determin[ing] whether you are fit to perform
the essential elements of the job you have been offered.
Def. Mem., d/e 71-8, Ex. H (emphasis in original). Plaintiff acknowledged
and signed the “Notice to Employee,” indicating that he decided to
voluntarily complete the Confidential Medical History form.
The first question on the Confidential Medical History form asked,
“Have you ever been injured?” to which Plaintiff answered, “No.” Question
Page 5 of 17
3 on the medical history form asked, “Do you have any physical, mental, or
other medical impairment, condition, or disability that might limit your
performance of the job offered?” to which Plaintiff answered, “No.”
As part of Defendant’s hiring process, Dr. Chris Wagoner, a physician
hired by Defendant, performed a physical examination of Plaintiff to
determine whether he was capable of performing the essential elements of a
deckhand, the job for which Plaintiff applied. Plaintiff completed the
Health History portion of the pre-employment Medical Examination
Report for Commercial Driver Fitness Determination. Plaintiff placed an
“X” in the box signifying “No” next to the line that read, “Spinal injury or
disease” and “Chronic low back pain.”
The physical examination included back X-rays. Three views of the
lumbar spine were obtained. The X-ray report reflects the following:
There is no fracture. Vertebral body heights are well
maintained. There is mild retrolisthesis at the L3-4 Level and
mild anterolisthesis at the L4-5 level. Probable pars defects at
the L4 level. Oblique views or a CT could be obtained to
definitively evaluate this. There is significant loss of the
intervertebral disk space height at the L4-5 level. There is
minimal retrolisthesis at the L5-S1 level.
IMPRESSION: Degenerative changes at the L4-5 level with
listhesis at the L3-4 and L4-5 level, possibly secondary to pars
defects at the L4 level.
Page 6 of 17
See Dorland’s Illustrated Medical Dictionary 1636 (32nd Ed. 2012)
(wherein retrolisthesis is defined as retrospondylolisthesis, which is in turn
defined as the “posterior displacement of one vertebral body on the
subjacent body”); Dorland’s Illustrated Medical Dictionary 98, 1754 (32nd
Ed. 2012) (wherein anterolisthesis is defined as spondylolisthesis, which is
in turn defined as the “forward displacement (olisthy) of one vertebra over
another, usually of the fifth lumbar over the body of the sacrum, or of the
fourth lumbar over the fifth, usually due to a developmental defect in the
pars interarticularis”).
On September 17, 2010, Dr. Wagoner completed a Report of PrePlacement Physical Examination finding Plaintiff was “probably fit to
perform the essential elements of the job.”
On July 6, 2011, Plaintiff was working on the Illinois River aboard the
Motor Vessel (M/V) Deborah Ann. Plaintiff claims that while he was
carrying a wire from a loaded barge to an unloaded barge, the barges
suddenly shifted. Plaintiff felt immediate pain in his lower back. Plaintiff
did not seek medical care until July 8, 2011.
In August 2011, Plaintiff saw Dr. Gornet. Plaintiff asserts that Dr.
Gornet diagnosed Plaintiff with an injury that was not present in 2009. Dr.
Page 7 of 17
Gornet noted that Plaintiff’s new MRI showed a new disc herniation that
was not on Plaintiff’s first MRI. See Medical Record dated October 6, 2011,
Exhibit C, d/e 79, p. 16 (“The large disc herniation was in no way present on
his previous films of 10/31/2009 and his increasing severe symptoms
correlate with this”).
On September 9, 2011, Defendant terminated the employment of
Plaintiff and withheld payments of maintenance and cure.
V. ANALYSIS
Defendant Osage Marine Services, Inc. seeks summary judgment only
on Plaintiff’s maintenance and cure claim. Defendant raises the affirmative
defense that a seaman who knowingly or fraudulently concealed his illness
from the ship owner is not entitled to maintenance and cure. Defendant
also asserts that Plaintiff provides no basis for seeking punitive damages
against Defendant on the maintenance and cure claim.
A seaman who becomes ill or is injured while in the service of the ship
may bring a claim for maintenance and cure against the ship owner. Vella
v. Ford Motor Co., 421 U.S. 1, 3 (1975). The duty to provide maintenance
and cure arises regardless of the negligence, or lack thereof, of the ship
Page 8 of 17
owner or seaman and regardless of whether the illness or injury is suffered
in the course of the seaman’s employment. Vella, 421 U.S. at 4.
Maintenance includes wages, food, and lodging. Atlantic Sounding
Co., Inc. v. Townsend, 557 U.S. 404, 413 (2009); see also Fitzgerald v.
United States Lines Co., 374 U.S. 16, 20 n. 7 (1963) (under maintenance
and cure, the seaman can recover wages to the end of the voyage on which
the seaman was injured or became ill). Cure refers to medical expenses.
Townsend, 557 U.S. at 413; see also Fitzgerald, 374 U.S. at 20 n. 7 (the
seaman can recover medical expenses up to the point at which the seaman
becomes incurable). The seaman does not have to recover under his Jones
Act or unseaworthiness claims to receive maintenance and cure. West v.
Midland Enterprises, Inc., 227 F.3d 613, 616 (6th Cir. 2000).
Although the maintenance and cure doctrine is broad, most of the
Circuits recognize some type of affirmative defense to a maintenance and
cure claim when the seaman intentionally misrepresented or concealed
material medical facts. See, e.g., Sammon v. Cent. Gulf S.S. Corp., 442 F.2d
1028, 1029 (2d Cir. 1971); Deisler v. McCormack Aggregates, Co., 54 F.3d
1074, 1080 (3rd Cir. 1995); Evans v. Blidberg Rothchild Co., 382 F.2d 637,
639 (4th Cir. 1967); McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 548
Page 9 of 17
(5th Cir. 1968); West v. Midland Enters., Inc., 227 F.3d 613, 617 (6th Cir.
2000); Sulentich v. Interlake S.S. Co., 257 F.2d 316, 320 (7th Cir. 1958);
Wactor v. Spartan Transp. Corp., 27 F.3d 347, 352 (8th Cir. 1994);
Vitcovich v. Ocean Rover O.N., 106 F.3d 411 (9th Cir. 1997) (unpublished).
Generally, when a ship owner requires a seaman submit to a pre-hiring
medical examination or interview, and the seaman intentionally
misrepresents or conceals material medical facts, the seaman is not entitled
to maintenance and cure if the injury is causally linked to the concealed
medical condition. See Smith v. Apex Towing Co., 949 F. Supp. 667, 671
(N.D. Ill. 1987), citing Wactor, 27 F.3d at 352. In the Seventh Circuit, the
defendant must prove, by a preponderance of the evidence, that the
plaintiff (1) knowingly misrepresented or concealed his prior injury from
the examining physician; (2) the misrepresentation or concealment was
material; (3) the misrepresentation or concealment was relied upon by the
defendant; and (4) the plaintiff would not have been hired or permitted to
continue to work and remain on the vessel if the true facts had been
disclosed. Sulentich, 257 F.2d at 320; but see also, e.g., McCorpen, 396
F.2d at 548 (identifying three elements to the affirmative defense:
intentional misrepresentation or concealment of fact; the fact as material to
Page 10 of 17
the employer’s decision to hire the plaintiff; and a connection exists
between the withheld information and the injury complained of in the
lawsuit); Sammon, 442 F.2d at 1029 (applying a subjective test and holding
that the concealment of a pre-existing condition during a pre-hiring
interview “is fraudulent only if the seaman knows or reasonably should
know that the concealed condition is relevant”).
Defendant asserts that it is undisputed that Plaintiff concealed his
prior low back injuries; that the concealed low back injuries were material
to Defendant’s employment decision; and that a nexus exists between the
previously concealed low back injury and the subsequently alleged low back
injury.
Plaintiff responds that questions of fact remain. First, Plaintiff
asserts that his subjective belief of his physical condition and ability to
perform the job prevents a finding that he intentionally concealed or
misrepresented his physical condition. Second, Plaintiff asserts that his
failure to mention any earlier back pain cannot be considered material.
Plaintiff argues the X-ray report that was part of the pre-employment
physical showed listhesis, a probable pars defect, and a significant loss of
intervertebral disk height and Defendant still hired him. Finally, Plaintiff
Page 11 of 17
asserts that Defendant has not shown how the possible earlier back injury
was the cause of the 2011 injury.
Defendant’s Undisputed Material Facts contained no facts pertaining
to whether Defendant would have hired Plaintiff had Defendant known of
Plaintiff’s prior back condition. Defendant relies on Brown v. Parker
Drilling Offshore Corp., 410 F. 3d 166, 175 (5th Cir. 2005) for the
proposition that the information is material if the employer asks a specific
medical question on the application and that inquiry is rationally related to
the applicant’s physical ability to perform the job duties.
However, the Brown court followed the defense articulated in
McCorpen, which does not require that the ship owner demonstrate that
the seaman would not have been employed if the requested disclosure had
been made. See also Atlantic Sounding Co., Inc. v. Petrey, 402 Fed. Appx.
939, 941-42 (5th Cir. 2010) (unpublished) (rejecting the argument that the
McCorpen defense includes a fourth element requiring that the ship owner
show that the company would not have employed the seaman if the
disclosure had been made but noting that the ship owner must show that
the non-disclosed facts were material to the company’s decision to hire
him).
Page 12 of 17
Moreover, the Seventh Circuit requires that the defendant
demonstrate that the plaintiff would not have been hired or remained
employed had the information been known. See Sulentich, 257 F.2d at 320
(wherein the examining physician testified that had the plaintiff disclosed
his back problems, he would have been immediately terminated and
removed from the ship); see also Smith, 949 F. Supp. at 672 (finding a
question of fact remained whether the plaintiff, who was a cook on the ship,
would not have been hired had she disclosed her prior back problems
where a pre-employment physical and spinal X-ray had been performed;
the examining physician testified that he would have performed a more
complete examination and recommended limitations had he known the
information and the defendant’s dispatcher testified she would not have
hired the plaintiff had the information been disclosed).
In this case, questions of fact remain whether Defendant would have
hired Plaintiff had the disclosure been made. Therefore, the Court does not
address the other elements of the defense.
In the Reply, Defendant points to the testimony of Dr. Wagoner, the
examining physician, who testified that if Plaintiff had disclosed his prior
back condition, further workup would have been warranted:
Page 13 of 17
Q. All right. Is it fair to say, Doctor, that if Mr. Rekart had
provided you with a history that included having back pain,
numbness in his legs, chronic low back pain, prior injuries to
his back, that type of thing, that it would have raised real
concern for you with regard to clearing him as you did to work
in a heavy manual labor job?
A. I think it would have at least warranted further workup. Yes,
it probably would have delayed until I had at least some further
workup clearing him at that time. Yeah, I mean if there had
been symptoms, if there had been problems with that, I think it
would at least warrant further workup.
Def. Reply, d/e 85-1, Exhibit M, p. 24-25; see also p. 49 (testifying that a
pars defect was not necessarily something that would give him cause for
concern). Dr. Wagoner was also asked the following question and gave the
following answer:
Q. (By Mr. Fox) All right. So I guess what I’m getting at,
Doctor, is the fact that he had this significant history of back
injury[,] that he actually saw an orthopedic surgeon for who
[sic] described him as having ruptured disks or bulging disks at
two levels in his lumbar lumbosacral spine, those would create
significant medical concerns for you with regard to feeling
comfortable as a physician saying that this man can go do heavy
manual labor, correct? You certainly wouldn’t have cleared him
on the date that you saw him?
A. Yes, that’s a true statement.
Id. p. 59.
However, the evidence also shows that, as part of his pre-employment
screening, Plaintiff underwent a medical exam that included a back X-ray.
Page 14 of 17
The X-ray noted degenerative changes, listhesis, and pars defect. The X-ray
report specifically notes that oblique views or a CT could be obtained to
definitively evaluate the findings, but no further evaluation was performed.
Taking the evidence in the light most favorable to Plaintiff, the Court
finds summary judgment is not warranted. Defendant has not
demonstrated that the hypothetical question presented to Dr. Wagoner was
accurate. Moreover, Dr. Wagoner’s responses are equivocal as to whether
Plaintiff would have been cleared for employment. There are also questions
of fact regarding what Defendant knew based on the X-ray taken as part of
the employment screening.
Defendant bears the burden of proof on the affirmative defense and
must show, for purposes of summary judgment, that no genuine issue of
material fact remains. Defendant simply has not provided sufficient
evidence to demonstrate, as a matter of law, that Defendant would not have
hired Plaintiff had he disclosed the prior information about his back. The
evidence provided shows a genuine issue of material fact remains.
Defendant also argues that, notwithstanding Plaintiff’s total bar to
recovering maintenance and cure under the McCorpen defense, Plaintiff’s
claim for punitive damages must fail because a ship owner’s reasonable
Page 15 of 17
withholding of maintenance and cure cannot serve as a basis for punitive
damages. Def. Motion, d/e 71, p. 14, citing Brown, 410 F. 3d at 177 (noting
that punitive damages are warranted where a ship owner does not have a
reasonable defense and exhibited callousness and indifference to the
seaman).
Punitive damages are available in a maintenance and cure claim for
the ship owner’s willful and wanton disregard of the maintenance and cure
obligations. Townsend, 557 U.S. at 424. Defendant asserts that Plaintiff
has no evidence of willful or wanton conduct sufficient to award punitive
damages.
Plaintiff did not specifically respond to this argument, although
Plaintiff asked the Court to deny the Motion for Partial Summary
Judgment. Nonetheless, on this record, the Court cannot find, as a matter
of law, that Plaintiff is not entitled to punitive damages.
VI. CONCLUSION
For the reasons stated, Defendant’s Motion for Partial Summary
Judgment (d/e 70), is DENIED. The Final Pretrial Conference remains
scheduled for January 27, 2014 at 2:00 p.m. The parties are advised to
comply with Local Rule 16.1(E) and (F). In addition, the parties shall
Page 16 of 17
submit the proposed Final Pretrial Order, including the agreed set of
findings of fact and conclusions of law, by noon on January 24, 2014.
ENTER: December 11, 2013
FOR THE COURT:
s/Sue E Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 17 of 17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?