Vo et al v. Chevron USA Inc et al

Filing 106

ORDER and REASONS - IT IS ORDERED that ExxonMobil's Motion for Partial Summary Judgment on Medical Causation (Rec. Doc. 75) is hereby GRANTED, and the claims of Nga Vo for medical expenses and general damages related to his Chiari Malformation and Syringomyelia are hereby DISMISSED WITH PREJUDICE, as stated within document. Signed by Judge Kurt D. Engelhardt on 7/11/2014. (Reference: 13-1794)(cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANH NGOC VO, ET AL

CIVIL ACTION

VERSUS

NO. 12-1341
c/w 13-1794

CHEVRON U.S.A., INC., ET AL

SECTION "N" (3)

ORDER AND REASONS
Before the Court is ExxonMobil's Motion for Partial Summary Judgment on Medical
Causation (Rec. Doc. 75), filed by defendants ExxonMobil Oil Corporation, ExxonMobil Pipeline
Company, and ExxonMobil Production Company (collectively, "ExxonMobil"). The plaintiffs have
filed an opposition memorandum ( Rec. Doc. 87). ExxonMobil has filed a reply memorandum
(Rec. Doc. 91) and a supplemental memorandum (Rec. Doc. 105).
I. BACKGROUND:
Plaintiffs, Anh Ngoc Vo and Nga Vo, bring this action seeking damages relating to an
allision on April 21, 2009, in which the plaintiffs’ commercial fishing vessel (the F/V Miss
Kimberly) allegedly struck an unmarked, submerged, unburied pipeline and sank near the end of
Empire Canal in Plaquemines Parish, Louisiana.

The plaintiffs allege that ExxonMobil is liable

because it owned, operated, or had custody of the pipeline in question. ExxonMobil now seeks
partial summary judgment dismissing the claims of Nga Vo for medical expenses and general
damages related to his spinal and skull conditions (Chiari Malformation and Syringomyelia) on
grounds that he cannot prove that the conditions were caused and/or worsened by the accident.

II. LAW AND ANALYSIS:
“The Court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[T]he burden on the moving party may be discharged by ‘showing’ — that is,
pointing out to the district court — that there is an absence of evidence to support the nonmoving
party’s case.” Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir. 2010)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party has carried
this burden, the nonmoving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)).

“[T]he nonmoving party must come forward with specific facts showing

that there is a genuine issue for trial.” Id. (quoting Matsushita, 475 U.S. at 587). “[T]here is no
issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
Although the Court must draw in favor of the nonmoving party all reasonable inferences that may
be drawn from the evidence submitted, “a party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’ “ Turner v. Baylor
Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir.1994)); Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). If the
nonmoving party cannot produce admissible evidence sufficient to establish an essential element as
to which the nonmoving party would bear the burden at trial, entry of summary judgment is
mandated. Celotex Corp., 477 U.S. at 322-23.

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The following facts are undisputed: Captain Nga Vo has a condition known as a Chiari
malformation, which entails a displacement of the brain at the base of the skull and which is
congenital in nature. Individuals with Chiari malformation may experience a chronic, progressive
fluid build-up in their spine, a neurological condition known as Syringomyelia. Captain Vo did not
seek medical treatment after the April 21, 2009 allision. The first time he sought medical treatment
after the accident was about three weeks later, on May 13, 2009, when he visited the emergency
room with complaints of a rib injury caused by a later slip-and-fall accident. About ten weeks
thereafter, Captain Vo went to his family doctor, Dr. Rebecca Nguyen, with complaints of back pain
and numbness in his hand. She referred him to a neurologist, Dr. John Steck, who found that the
complaints of back pain and hand numbness were incidental to his congenital Chiari Malformation.
To relieve the Syringomyelia build-up of fluids related to the malformation in his skull, Dr. Steck
performed surgeries in 2010 and 2013. Captain Vo underwent an independent medical examination
with neurosurgeon Dr. Najeeb Thomas, who opines that Vo's condition is congenital by nature and
was not traumatically induced by the April 21, 2009 incident.
In cases such as this one, where the question of medical causation is complex and not within
the knowledge of an ordinary lay person, expert testimony is required to establish the element of
causation. Seaman v. Seacor Marine L.L.C., 326 Fed. App'x 721, 723 (5th Cir. 2009); Lassiegne v.
Taco Bell Corp., 202 F. Supp. 2d 512, 524 (E.D. La. 2002). No medical doctor who has examined
Vo has concluded that his neurological conditions were caused by trauma in the allision. Thus, Vo
is unable to produce any expert medical testimony to support his claim.
Recognizing that he is without medical evidence, Vo argues for the application of the
Housley presumption, which may apply where each of the following factors are met: (1) the person
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was in good health before the accident; (2) commencing with the accident, the symptoms of the
condition appear and continuously manifest themselves afterwards; and (3) medical evidence shows
there to be a reasonable possibility of causal connection between the accident and the disabling
condition. Housley v. Cerise, 579 So. 2d 973, 980 (La. 1991). The plaintiff here fails to meet even
one of these factors. First, although not symptomatic, Vo was not "in good health" before the
accident; he suffered from a congenital condition. Second, Vo's symptoms did not commence with
the accident, but rather, appeared several months later. And, third, the medical evidence shows no
possibility of a causal connection between the symptoms and the accident. Thus, the Housley
presumption has no application here.
On the basis of this record, no reasonable jury could find for Nga Vo on the issue of medical
causation. Thus, ExxonMobil is entitled to judgment as a matter of law dismissing his personal
injury claims. Accordingly;
IT IS ORDERED that ExxonMobil's Motion for Partial Summary Judgment on Medical
Causation (Rec. Doc. 75) is hereby GRANTED, and the claims of Nga Vo for medical expenses
and general damages related to his Chiari Malformation and Syringomyelia are hereby DISMISSED
WITH PREJUDICE.
New Orleans, Louisiana, this 11th day of July, 2014.

____________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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