Jackson v. Murphy Exploration and Production Company et al

Filing 39

ORDER & REASONS granting in part and denying in part 20 Defendant Murphy Expro-USA's Motion to Dismiss Certain Claims Pursuant to Rule 12(b)(6). Signed by Judge Carl Barbier on 12/3/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACKSON

CIVIL ACTION

VERSUS

NO: 13-5864

MURPHY EXPLORATION &
PRODUCTION CO., ET AL

SECTION: "J" (3)

ORDER & REASONS
Before the Court is Defendant Murphy Expro-USA ("Murphy")'s
Motion to Dismiss Certain Claims Pursuant to Rule 12(b)(6) (Rec.
Doc. 20), Plaintiff Veressa Jackson ("Ms. Jackson")'s opposition
thereto (Rec. Doc. 23), and Murphy's reply to the same (Rec. Doc.
27). Defendant's motion was set for hearing on November 6, 2013,
on

the

briefs.

The

Court,

having

considered

the

motions

and

memoranda of counsel, the record, and the applicable law, finds
that Defendant's motion should be GRANTED IN PART AND DENIED PART
for the reasons set forth more fully below.

FACTS & PROCEDURAL HISTORY
This matter arises from claims of unseaworthiness and for
maintenance and cure under general maritime law as well as a
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negligence claim under the Jones Act. Ms. Jackson brings these
claims on behalf of the decedent, Franklin Ronald Jackson, Sr.
("Mr. Jackson"), who passed away on September 19, 2012 after
having

been

diagnosed

with

("leukemia") in April 2011.

Chronic

Lymphocytic

Leukemia

Ms. Jackson alleges that Mr. Jackson

was exposed to benzene during his employment with the various
named defendants between the years of 1961 and 2006. Pertinent to
the instant motion, Ms. Jackson alleges that Mr. Jackson was
exposed to benzene while working on various vessels in the Ocean
Drilling and Exploration Company ("ODECO") Fleet between 1964 and
1968.1 As a result of this exposure, Plaintiff argues that she is
entitled to recover damages and to an award of maintenance and
cure. Murphy filed the instant motion to dismiss on October 15,
2013.

PARTIES' ARGUMENTS
Murphy only requests dismissal of certain claims.

First,

Murphy argues that Ms. Jackson's maintenance and cure claim fails
as a matter of law because Mr. Jackson worked on their vessels
over

forty

years

ago,

thus

the

claim

is

not

made

within

a

reasonable time after the his service to any ODECO vessel; and,

1

Murphy is the successor-in-interest to ODECO. (Rec. Doc. 20, p. 1)

2

even if there is a viable maintenance and cure claim, plaintiff
cannot recover attorney's fees or punitive damages for failure to
pay

because

Murphy

was

never

notified

of

the

illness.

Additionally, Murphy argues that Plaintiff is not entitled to
damages related to future losses because such damages are not
available after the decedent's death.

LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

FED. R. CIV. P. 8(a)(2).

The

complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.”
Broudo, 544 U.S. 336, 346 (2005).
simple, concise, and direct.”

Dura Pharm., Inc. v.

The allegations “must be

FED. R. CIV. P. 8(d)(1).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)).

A claim is facially plausible when the plaintiff pleads

facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Id.

A

court must accept all well-pleaded facts as true and must draw
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all reasonable inferences in favor of the plaintiff.

Lormand v.

U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

The court is not,

however, bound to accept as true legal conclusions couched as
factual allegations.

Iqbal, 556 U.S. at 678.

DISCUSSION
A. Maintenance and Cure Claim
"A seaman injured in the course of employment has a claim
for maintenance and cure." Kendrick v. Maersk Line, Ltd., No. 041147, 2006 WL 2662996 *4 (E.D. La. Sept. 15, 2006) (Fallon, J.).
A claim for maintenance and cure, however, "has no basis in the
absence of a showing that the [illness] began while [the seaman]
was in the service of the [defendant]." Miller v. Lykes Bros.Ripley S.S. Co., 98 F.2d 185, 186 (5th Cir. 1938). Further, once
it is established that a seaman is entitled to maintenance and
cure, he is only entitled to receive such benefits from the time
that he is rendered unfit for duty until he is either fit for
duty or until he has reached maximum cure. See Kendrick, 2006 WL
2662996 at *4-*5. "Maximum cure is the point at which it is
probable that further treatment will not result in betterment of
the seaman's condition." Id. at *5.
Here,

there

are

several

issues
4

surrounding

an

award

of

maintenance and cure that are best resolved at a later time in
the proceeding. These issues include: (1) whether
illness

existed

at

the

time

of

his

service

Mr. Jackson's
on

defendant's

vessel,2 (2) when Mr. Jackson became unfit for duty, and (3) when
Mr. Jackson reached maximum cure prior to his death. Despite
these different hurdles that will have to be overcome, dismissal
at this early stage in litigation would be improper because,
taking

the

allegations

in

a

light

most

favorable

to

the

plaintiff, plaintiff has stated a potential claim for maintenance
and cure from the time that Mr. Jackson became unfit for duty
until either the time he reached maximum cure or until his death,
whichever

came

first.

Therefore,

Defendant's

motion

must

be

denied as to this issue.
B.
Attorney's
Fees
Maintenance and Cure

and

Punitive

Damages

Relating

to

Defendant's request to dismiss all claims for attorney's
fees and punitive damages is premature. As Plaintiff aptly points
out, the opinions to which Defendant cites were all rendered at a
2

While it seems counterintuitive to even consider finding that Mr.
Jackson's leukemia "existed" over forty years ago while he worked for
Defendant, few courts have analyzed the right to maintenance and cure with
regard to asymptomatic illnesses. See Messier v. Bouchard, 688 F.3d 78, 84 (2d
Cir. 2012) as amended (Aug. 15, 2012), cert. denied, 133 S. Ct. 1586 (U.S.
2013). In the only circuit court opinion addressing this issue, the Second
Circuit urged courts to recognize that "[t]he concept that a slow-growing,
symptomless disease might lurk inside a human body for years or decades [...]
is a well-known reality today." Messier, 688 F. 3d. at 87 (internal citations
omitted). Therefore, the Court will heed this advice and withhold ruling on
this issue until the record is more fully developed.

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late

stage

in

litigation

when

the

record

was

more

fully

developed. Therefore, the request is denied without prejudice to
re-assert the same arguments at a later date in the proceedings.
C. Claims for Future Damages
Plaintiff
future
physical

pain

agrees

and

therapy,

in

her

suffering,
future

opposition
future

that

medical

medication

her

claims

expenses,

expenses,

and

for

future
future

disability should be dismissed. Therefore, the motion must be
granted on these grounds. The parties dispute, however, whether
Ms. Jackson's claims for future-earnings related damages should
be

dismissed.

As

was

the

case

with

punitive

damages

and

attorney's fees, the Court finds that the discussion of damages
is premature and will deny defendant's motion without prejudice
to

re-assert

the

same

arguments

at

a

later

date

in

the

proceedings.
Accordingly,
IT IS ORDERED that Murphy's Motion to Dismiss Certain Claims
Pursuant to Rule 12(b)(6) (Rec. Doc. 20) is GRANTED inasmuch as
it seeks to dismiss claims for future pain and suffering, future
medical

expenses,

future

physical

therapy,

future

medication

expenses, and future disability. Murphy's motion is DENIED in all
other respects.

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New Orleans, Louisiana this 3rd day of December, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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