Sharpe et al v. Bertucci Contracting Company LLC
Filing
67
ORDER AND REASONS granting 55 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 6/28/2014. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHAYLON SHARPE
CIVIL ACTION
VERSUS
NO. 13-6101
BERTUCCI CONTRACTING COMPANY LLC
SECTION "B"(2)
ORDER AND REASONS
NATURE OF MOTION AND RELIEF SOUGHT:
Before the Court is Plaintiff's, Shaylon Sharpe, unopposed
Motion for Partial Summary Judgment (Rec. Doc. No. 55). Plaintiff
seeks to have the court rule that there are no genuine issues of
material fact and that he is entitled to judgment as a matter of
law under Fed. R. Civ. P. 56 on Defendant's, Bertucci Contracting
Company, affirmative defense of willful concealment of a preexisting injury under McCorpen v. Central Gulf Steamship Corp., 396
F.2d 547 (5th Cir. 1968).
(See Rec. Doc. No. 51).
IT IS ORDERED that Plaintiff's Motion for Partial Summary
Judgment is GRANTED as unopposed.
FACTS AND CAUSE OF ACTION:
Plaintiff asserts a cause of action under the Jones Act and
general maritime law for an injury sustained to his left shoulder
while employed on Defendant’s barge on or about February 28, 2013.
(Rec. Doc. No. 1 at ¶ 2). Defendant filed an Answer to Plaintiff's
original
Complaint
on
November
7,
2013
(Rec.
Doc.
No.
5).
Thereafter, both parties sought and were granted leave to file a
series
of
amended
pleadings,
culminating
in
the
filing
of
Defendant's Amended Answer and Affirmative Defenses on July 9, 2014
(Rec. Doc. 51). It was in this last pleading that Defendant raised
the affirmative defense to liability for maintenance and cure
payments under the McCorpen rule based on Plaintiff's alleged
knowing and fraudulent concealment of a pre-existing injury.
Plaintiff moves this Court to grant partial summary judgment
in his favor on the issue of the McCorpen defense. (Rec. Doc. No.
55). Plaintiff's Motion for Partial Summary Judgment is set for
submission on September 3, 2014. No opposition has been filed by
Defendant.
CONTENTIONS OF MOVANT:
Plaintiff seeks summary judgment under Fed. R. Civ. P. 56 on
two grounds. First, Plaintiff argues that Defendant's affirmative
defense is procedurally barred because it was not raised in the
"first responsive pleading" filed by Defendant, pursuant to Fed. R.
Civ. P. 8(c)(1). (Rec. Doc. No. 55 at 6). Instead, the defense was
not asserted until the later filing of Defendant's Amended Answer
and, according to Plaintiff, was therefore waived as untimely.
(Rec. Doc. No. 55 at 6).
Next, Plaintiff argues that he is entitled to summary judgment
on the merits of the McCorpen defense. According to Plaintiff,
Defendant relies upon a doctor's visit by Plaintiff relating to a
sore clavicle in July of 2011 as the basis for raising the defense.
(Rec. Doc. 55 at 11). However, Plaintiff argues that this visit did
2
not reveal any history of prior injury and did not occur until
nearly one year after Plaintiff began his employment with Defendant
in August of 2010. (Rec. Doc. No. 55 at 11). Plaintiff asserts that
the
nature
of
this
injury
(as
distinct
from
the
shoulder
dislocation and complications that are the subject of Plaintiff's
action here) as well as its timing (occurring at such time that it
could not have been intentionally concealed by Plaintiff at the
time of his hiring, nor material to Defendant's employment decision
at that time) compel a finding that Defendant cannot make out the
elements of the affirmative McCorpen defense.(Rec. Doc. No. 55).
DISCUSSION:
The
following
discussion
will
address
both
Plaintiff's
procedural and substantive arguments. As set out fully below,
Plaintiff's procedural argument is meritless, while Plaintiff has
established his entitlement to the relief sought on the merits
issue.
Plaintiff's Procedural Argument
As a preliminary matter, Plaintiff's first contention is
without merit. Although Fed. R. Civ. P. 8(c)(1) stands for the
general
proposition
that
a
defense
not
raised
in
the
first
responsive pleading is waived, it is well-recognized that an
affirmative defense later asserted in an amended pleading will
satisfy the standards of Rule 8. See, e.g., 5 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1278 (3d ed.
3
1998) ("it has been concluded in many cases that the defendant may
amend an answer to assert an omitted affirmative defense on the
written consent of the adverse party or by leave of the district
court") (citing, inter alia, Jones v. Dist. of Columbia Dep't of
Corrections, 429 F.3d 276,
378 (D.C. Cir. 2005); Burnett v. State
Farm Fire and Cas. Co., 2010 WL 4627727, *4-5 (M.D. La. 2010)).
Although such defenses may be precluded where undue prejudice will
result
to
the
claimant,
Chief
Magistrate
Judge
Wilkinson
specifically found in his order granting Defendant leave to amend
its Answer that the standard of "good cause" was met under Fed. R.
Civ. P. 16 and further that no undue prejudice would result to
Plaintiff given the amount of time remaining before trial. Thus,
Plaintiff's arguments with respect to timeliness of the assertion
of the McCorpen defense are meritless. (Rec. Doc. No. 50 at 2).
Nevertheless, Plaintiff's arguments on the merits of his summary
judgment motion are persuasive and, given that Plaintiff's Motion
remains unopposed, there appear to be sufficient grounds to grant
it.
Plaintiff's Arguments on the Merits
Summary judgment is proper if the pleadings, depositions,
interrogatory
answers,
and
admissions,
together
with
any
affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
4
477 U.S. 317, 327 (1986). A genuine issue exists if the evidence
would
allow
a
reasonable
jury
to
return
a
verdict
for
the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
(1986). As to issues for which the non-moving party has the burden
of proof at trial, the moving party may satisfy its burden by
demonstrating the absence of evidence supporting the non-moving
party's claim. Celotex v. Catrett, 477 U.S. 317, 323 (1986). Once
the movant makes this showing, the burden shifts to the nonmovant
to set forth specific facts showing that there is a genuine issue
for trial. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247
(5th Cir. 2003).
The nonmovant must go beyond the pleadings and
use affidavits, depositions, interrogatory responses, admissions,
or other evidence to establish a genuine issue. Id.
Although the Court is to consider the full record in ruling on
a motion for summary judgment, Rule 56 does not obligate it to
search for evidence to support a party's opposition to summary
judgment. Malacara v. Garber, 353 F.3d 393, 403 (5th Cir. 2003).
Accordingly, conclusory rebuttals of the pleadings are insufficient
to avoid summary judgment. Travelers Ins. Co. v. Liljeberg Enter.,
Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
In the present case, Plaintiff, as the moving party, alleges
that Defendant will not be able to adequately prove the elements of
its McCorpen defense. To establish this defense, the employer must
show
that
(1)
the
claimant
intentionally
5
misrepresented
or
concealed medical facts; (2) the non-disclosed facts were material
to
the
employer's
decision
to
hire
the
claimant;
and
(3)
a
connection exists between the withheld information and the injury
complained of in the lawsuit. Brown v. Parker Drilling Offshore
Corp., 410 F.3d 166, 171 (5th Cir. 2005).
(1) Intentional Concealment
With respect to the first element, courts recognize that this
prong entails what is essentially an objective inquiry, which
"neither necessarily turns on credibility nor requires a subjective
determination." Brown, 410 F.3d at 174. As such, the issue is wellsuited to resolution by summary judgment. See, e.g., Bud's Boat
Rental, Inc. v. wiggins, No. 91-2317, 1192 WL 211453, *2 (E.D.La.
Aug 24, 1992); In re L.S.K. Towing, Inc., No. 94-4134, 1995 WL
3500939 (E.D.La. Jun 6, 1995).
On this issue, Plaintiff argues that there can have been no
intentional
concealment
in
light
of
Plaintiff's
having
satisfactorily passed a pre-employment physical examination.(Rec.
Doc. No. 55 at 9). Furthermore, Plaintiff cites to the affidavit of
the physician who treated Plaintiff for his clavicle pain for the
proposition that there was no evidence of injury to Plaintiff's
shoulder (the injury at issue in Plaintiff's claim in the instant
action) at the time of his presenting with clavicle issues. (Rec.
Doc. No. 55 at 10-11). Finally, Plaintiff argues that because he
did not present to the physician complaining of clavicle pain until
6
nearly one year after his being hired by Defendant, there can have
been no pre-existing condition to conceal from Defendant in the
first instance. (Rec. Doc. No. 55 at 11). To the extent that there
does not appear to be anything in the record controverting the
timing with respect to this issue, Plaintiff's contention has
merit.
(2) Materiality
Next, the materiality element turns on the extent to which the
plaintiff's allegedly concealed injury or condition is rationally
related to the applicant's physical ability to perform his job
duties. See, e.g.,
Hardison v. Abdon Callais Offshore, LLC, No.
11-2053, 2012 WL 2878636, at *4 (E.D. La. Jul. 31, 2012) (citing,
Brown, supra). On this element, Plaintiff argues that there was no
relationship between the instance of clavicle pain and his physical
ability to perform his duties. In support of this contention,
Plaintiff relies on the fact that the clavicle pain arose nearly
one year after he was hired by Defendant as well as the fact that
his physician did not recommend, nor did Plaintiff request, any
work restrictions at the time of his visit relative to the clavicle
issue. (Rec. Doc. No. 55 at 12). Here again, because there is no
evidence to suggest that Plaintiff was specifically asked about
injuries to the area including his clavicle, nor that such an
injury did, in fact, exist at the time of Defendant's decision to
hire him, Plaintiff has satisfied his burden of coming forward with
7
record evidence sufficient to establish that this issue cannot
genuinely be disputed for purposes of summary judgment under the
standards of Fed. R. Civ. P. 56. The burden thereafter shifted to
Defendant to establish a disputed issue for trial.
(3) Causality
Finally,
the
McCorpen
analysis
turns
to
the
issue
of
causality, which looks to the connection between the allegedly
withheld information and the injury complained of in the subsequent
lawsuit. Brown, 410 F. 3d at 177. With respect to this element,
courts tend to focus on the degree of correspondence between the
two injuries or conditions in terms of their physical location on
the body.1
Here, Plaintiff argues that the requisite causal link is not
satisfied because the pain in his clavicle experienced in 2011
cannot be proven to relate to his ultimate shoulder dislocation and
ensuing complications in 2013. (Rec. Doc. No. 55 at 14). To this
end, Plaintiff quotes deposition testimony of the physician who
treated him for his clavicle issue:
Q: . . . Doctor, as we sit here today, do you,
as a medical doctor see any relationship
1
See Brown, 410 F.3d at 176 (citing Weatherford v. Nabors Offshore
Corp., No. 03-0478, 2004 WL 414948 (E.D. La. Mar. 3, 2004) (plaintiff injured
in exact same area of back); Fox v. Plaquemines Parish Gov't, No. 92-0140,
1993 WL 1243065, **2-3 (E.D. La. Dec. 17, 1999) (prior and present back
problems in same spine segment); Guillory v. Northbank Towing Corp., No. 920140, 1993 WL 731991, *3 (W.D. La. Jun. 25, 1993) (injury to same spinal
segment supported causation and materiality); Keys v. Halliburton Co., No. 881523, 1989 WL 54224, **3-4 (E.D. La. May 17, 1989) (both injuries affected low
back)).
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between what he came to you for with the pain
in the collarbone to a dislocation or a labral
tear of the left shoulder?
A: I can't link the two together.
(Rec. Doc. No. 55 at 11 (citing Rec. Doc. No. 55-2 at 5)).
In light of the foregoing, Plaintiff has pointed to
record
evidence that would potentially support a finding that, from a
medical perspective, there is no causal link between the clavicle
issue in 2011 and his subsequent injury in 2013 for purposes of the
final McCorpen element. He has therefore additionally established
the likelihood that Defendant will be unable to prove this element
of its affirmative defense.
Taking
Plaintiff's
arguments
and
cited
evidence
in
conjunction, he has satisfied his burden under Fed. R. Civ. P. 56.
In the context of an affirmative defense such as the McCorpen rule,
Defendant, the non-moving party, bears the burden of proof at
trial. As such, Plaintiff may satisfy his burden under the summary
judgment standard by pointing to the absence of evidence supporting
Defendant's claim with respect to any element as well as the lack
of issues of material fact for trial. The Court's accepting
Plaintiff's contentions with respect to any of the above elements
shifts the burden to Defendant to come forward with specific facts
showing that there is a genuine issue for trial. Rivera v. Houston
Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003). Defendant,
however,
has
not
filed
any
opposition
9
to
the
motion
under
consideration. Local Rule 7.5E of the Eastern District of Louisiana
requires that memoranda in opposition to a motion be filed and a
copy delivered to chambers eight days prior to the date set for
hearing of the motion, which, in this case, is September 3, 2014.
By the time of this writing, any opposition to be filed by
Defendant would be untimely and Defendant has failed to come
forward with facts sufficient to preclude summary judgment .
Accordingly, Plaintiff's motion is deemed unopposed, and,
further, it appearing that the motion has merit,
IT IS ORDERED that the motion is GRANTED.
New Orleans, Louisiana, this 28th day of August, 2014.
UNITED STATES DISTRICT JUDGE
A motion for reconsideration of this order based on the appropriate
Federal Rule of Civil Procedure, if any, must be filed within
thirty (30) days.
The motion must be accompanied by an opposition
memorandum to the original motion. Because such a motion would not
have been necessary had a timely opposition memorandum been filed,
the
costs
incurred
in
connection
with
the
motion,
including
attorney's fees, will be assessed against the party moving for
reconsideration.
See Fed. R. Civ. P. 16, 83.
A statement of costs
conforming to L.R. 54.3 shall be submitted by all parties desiring
to be awarded costs and attorney's fees no later than eight (8)
10
days prior to the hearing of the motion for reconsideration.
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