Bosarge v. Cheramie Marine LLC

Filing 48

ORDER AND REASONS granting in part and denying in part 25 Motion for Partial Summary Judgment. Plaintiff's unseaworthiness claim is DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICHARD BOSARGE

CIVIL ACTION

VERSUS

NO: 14-2153

CHERAMIE MARINE LLC

SECTION "H"(1)

ORDER AND REASONS
Before the Court is Defendant's Motion for Summary Judgment (R. Doc.
25). For the following reasons, the Motion is GRANTED IN PART and DENIED
IN PART.

Plaintiff's unseaworthiness claim is DISMISSED WITH

PREJUDICE.
BACKGROUND
On July 2, 2014, Defendant Cheramie Marine, LLC hired Plaintiff Richard
Bosarge to serve as a relief captain aboard the M/V MR. BENITO, which was
owned and operated by Defendant. On July 18, 2014, during his first hitch,
Plaintiff alleges that he sustained a serious back injury when he was tossed
around in his bunk. Plaintiff specifically contends that the captain of the vessel
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refused to turn back during bad weather with waves ranging from 10 to 14 feet
high. Plaintiff asserts causes of action against Defendant for negligence under
the Jones Act, unseaworthiness, maintenance and cure, and punitive damages
for the arbitrary and capricious denial of maintenance and cure benefits.
Defendant now moves this Court for partial summary judgment on the
issues of unseaworthiness, maintenance and cure, and punitive damages.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."1 A genuine issue of fact exists only
"if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party."2
In determining whether the movant is entitled to summary judgment, the
Court views facts in the light most favorable to the non-movant and draws all
reasonable inferences in his favor.3 "If the moving party meets the initial burden
of showing that there is no genuine issue of material fact, the burden shifts to
the non-moving party to produce evidence or designate specific facts showing the
existence of a genuine issue for trial."4 Summary judgment is appropriate if the
1

Fed. R. Civ. P. 56(c) (2012).

2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

3

Coleman, 113 F.3d at 533.

4

Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

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non-movant "fails to make a showing sufficient to establish the existence of an
element essential to that party’s case."5 "In response to a properly supported
motion for summary judgment, the non-movant must identify specific evidence
in the record and articulate the manner in which that evidence supports that
party’s claim, and such evidence must be sufficient to sustain a finding in favor
of the non-movant on all issues as to which the non-movant would bear the
burden of proof at trial."6 "We do not . . . in the absence of any proof, assume
that the nonmoving party could or would prove the necessary facts."7
Additionally, "[t]he mere argued existence of a factual dispute will not defeat an
otherwise properly supported motion."8
LAW AND ANALYSIS
Defendant seeks summary judgment on the issues of unseaworthiness,
maintenance and cure, and punitive damages. This Court will address each
claim in turn.
A. Unseaworthiness
Plaintiff claims that the the M/V MR. BENITO was unseaworthy for two
reasons. First, Plaintiff argues that the vessel was unseaworthy because it was
not reasonably fit to safely travel in the hazardous weather conditions it
5

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

6

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
7

Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8

Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

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encountered. Second, Plaintiff argues that the crew of the M/V MR. BENITO
was unfit because members of the crew were under the influence of drugs. "One
crew member repeatedly slapped himself in the face. The crew also stored fake
urine on the vessel, presumably since they could not pass surprise drug tests
without the fake urine. . . . [The Captain] presumably did [not turn the boat
around] due to fear of him (or his deckhand) being drug tested."9 In response,
Defendant argues that Plaintiff cannot succeed on an unseaworthiness claim
because he stated in his deposition that the captain of the vessel was the sole
cause of his injury. Defendant argues that a negligent act of a fellow crew
member does not amount to an unseaworthy condition.
"Seaworthiness, as that term has been defined and redefined, is reasonable
fitness to perform or do the work at hand."10

To succeed on a claim of

unseaworthiness, a plaintiff must show "1) a vessel, equipment, or crew not
reasonably fit and safe for the purposes required (i.e., an unseaworthy
condition), 2) that unseaworthiness actually caused or played a substantial role
in causing injury, and 3) that the injury was 'the direct result or reasonably
probable consequence of that unseaworthiness.'"11
As a threshold matter, this Court notes that some of Plaintiff's exhibits are
inadmissible for purposes of this Motion. "[O]n a motion for summary judgment,
the evidence proffered by the plaintiff to satisfy his burden of proof must be
9

R. Doc. 29, p. 7.

10

In re Brown & Root Marine Operators, Inc., 267 F. Supp. 588, 592 (S.D. Tex. 1965)
aff'd sub nom. Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724 (5th
Cir. 1967).
11

Oliver v. Weeks Marine, Inc., 509 F. App'x 353, 355 (5th Cir. 2013).

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competent and admissible at trial."12

"Unsworn documents are . . . not

appropriate for consideration.13 "As a general rule, inadmissible evidence cannot
be relied upon to create an issue of material fact for the purpose of defeating a
summary judgment motion."14
Plaintiff's Exhibit A purports to be a message from a member of the crew
of the M/V MR. BENITO. It has been submitted to this Court, however, in the
body of an email that a unidentified third party sent to herself. The email
contains no verifying information about the writer of the text and is unsworn.
Exhibit B contains first a handwritten account of the events at issue in this case.
The writing is unsigned, and the writer is never identified. Next, Exhibit B
contains the transcript of a recorded interview with Plaintiff. The authenticity
of this transcript is not verified. Both exhibits constitute hearsay. "Hearsay
evidence, because it is inadmissible at trial, is not competent summary judgment
evidence."15 The Court is at a loss as to why Defendant did not object to the
inclusion of these exhibits.
That said, even considering these exhibits, Plaintiff has failed to create a
genuine issue of material fact. Plaintiff relies entirely on Exhibits A and B to
12

Roucher v. Traders & Gen. Ins. Co., 235 F.2d 423, 424 (5th Cir. 1956); Bellard v.
Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
13

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

14

Travland v. Ector Cnty., Texas, 39 F.3d 319 (5th Cir. 1994); ALAN WRIGHT & ARTHUR
MILLER, 10A FED. PRAC. & PROC. CIV. § 2727 (3d ed.) ("Material that is inadmissible will not
be considered on a summary-judgment motion because it would not establish a genuine issue
of material fact if offered at trial and continuing the action would be useless.").
15

Hixson v. Houston Indep. Sch. Dist., No. 4:09-CV-3949, 2011 WL 4860004, at *3 (S.D.
Tex. Oct. 13, 2011).

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support his unseaworthiness claim. Neither of these exhibits show that any
possible drug use or fake urine aboard the vessel were a cause of the Captain's
decision to proceed in bad weather. Further, Defendant correctly argues that the
isolated, personal act of a fellow crew member cannot render a ship
unseaworthy.16 "Instead, there should be evidence of a congeries of acts."17
Plaintiff has not provided any additional evidence to establish an unseaworthy
condition of the M/V MR. BENITO or its crew. Accordingly, this Court holds
that Plaintiff's exhibits, even if admissible, fail to create an issue of fact, and his
unseaworthiness claim is dismissed with prejudice.
B. Maintenance and Cure
Next, Defendants seek to dismiss Plaintiff's claim for maintenance and
cure. Defendant's motion raises the McCorpen defense to argue that it does not
owe Plaintiff maintenance and cure because he concealed a material medical fact
during a pre-hiring medical examination.18 Specifically, Defendant alleges that
Plaintiff suffered a back injury prior to the incident at issue in this case and that
he did not disclose that injury on the medical questionnaire he was provided
prior to his employment with Defendant. The medical records provided to the
Court show that in 2011 Plaintiff visited the Alabama Orthopaedic Clinic
complaining of lower back pain.

Plaintiff was diagnosed with lumbar

degenerative disk disease and given a physical therapy home exercise program
16

Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 500, 91 S. Ct. 514, 518, 27 L. Ed.
2d 562 (1971)
17

Smith v. Basic Marine Servs., Inc., 964 F. Supp. 2d 597, 606-07 (E.D. La. 2013) aff'd,
571 F. App'x 342 (5th Cir. 2014).
18

See McCorpen v. Cent. Gulf S. S. Corp., 396 F.2d 547 (5th Cir. 1968).

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and pain medicine. This is the only time that Plaintiff visited a doctor for back
pain, but he did seek additional pain medication twice after his original visit.
Plaintiff admitted in his deposition that he had "pulled a muscle or something
at one time" but stated that the pain did not last longer than six months.
Defendant alleges that his failure to disclose his 2011 back injury absolves it of
liability for maintenance and cure for his 2014 back injury.
To prevail on the McCorpen defense, "an employer must show that (1) the
claimant intentionally 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."19
At the outset, the Court notes that Plaintiff's opposition to this Motion
initially argued that Defendant had waived the McCorpen defense by failing to
plead it in its answer. Defendant was subsequently granted leave to amend its
Answer to assert this defense. Accordingly, this argument is mooted.
Plaintiff next argues that Defendant is unable to satisfy the second
element of the McCorpen defense—that Plaintiff's prior back trouble was
material to Defendant's decision to hire him. The Fifth Circuit has stated that
"[t]he fact that an employer asks a specific medical question on an application,
and that the inquiry is rationally related to the applicant's physical ability to
perform his job duties, renders the information material for the purpose of this
analysis."20 However, "[i]f the vessel owner would have employed the seaman
19

Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005).

20

Id. at 175.

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even had the requested disclosure been made, concealment will not bar the
seaman's recovery of maintenance and cure."21 "A triable issue of fact exists
when it is unclear whether an employer's hiring decision would be affected by
knowledge of a potential employee's previous injuries."22
Here, it is clear that Plaintiff's undisclosed back injury was material
because Defendant specifically inquired as to his past back injuries and such an
injury is rationally related to the duties of a vessel captain. "The fact that the
questions were asked makes the answers material for McCorpen purposes."23
What is less clear, however, is whether this information would have
affected Defendant's decision to hire Plaintiff. Plaintiff argues that Defendant
would have hired him even if he had disclosed his prior injury because the injury
was extremely minor and Plaintiff had subsequently been cleared for full work
duty by a prior employer. Indeed, Plaintiff submits records revealing that he
underwent a lumbar spine MRI in 2013 prior to beginning work with Parker
Drilling. The MRI results were normal, and he was recommended to work
without restriction or accommodation.24

Plaintiff also passed a functional

capacity evaluation at this time, requiring him to lift 100 pounds and carry 50
pounds for 15 feet.25 These facts, in addition to the minimal treatment required
for the injury, create a genuine dispute of material fact as to whether Plaintiff's
21

Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir. 2006).

22

Hare v. Graham Gulf, Inc., 22 F. Supp. 3d 648, 654 (E.D. La. 2014).

23

Id.

24

R. Doc. 29-12, 29-14.

25

R. Doc. 29-13.

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prior back injury would have changed Defendant's decision to hire him. Indeed,
Defendant admits in its Motion that if it had known of Plaintiff's past injury, it
would have required that he receive clearance from his prior treating physician
before it hired him. Plaintiff's clearance from Parker Drilling in 2013 indicates
that he likely would have received clearance, and Defendant would have hired
him anyway.

While this disclosure may have created a delay in hiring,

Defendant has not submitted any evidence to establish that such a delay would
have prevented Plaintiff from being aboard the M/V MR. BENITO at the time
of his injury.26 Accordingly, this Court holds that there is a genuine issue of
material fact as to whether Plaintiff's past injury would have affected
Defendant's hiring decision.

Accordingly, Defendant is denied summary

judgment on this issue.
C. Punitive Damages
Defendant next seeks to dismiss Plaintiff's claims for punitive damages for
the arbitrary and capricious denial of maintenance and cure. "It is well-settled
that a shipowner who arbitrarily and capriciously denies maintenance and cure
to an injured seaman is liable to him for punitive damages and attorney's fees."27
An injured seaman is entitled to maintenance and cure benefits until such time
as he reaches maximum medical improvement ("MMI"), "which is the point at

26

Jauch, 470 F.3d at 212–13 ("Jauch concealed numerous instances of back injury and
mental health problems, disclosure of which would have either prevented his employment, or
at least delayed it, preventing his having been present on the M/V LA MADONNA at the time
of the accident.").
27

Breese v. AWI, Inc., 823 F.2d 100, 103 (5th Cir. 1987) (internal quotations omitted).

9

which further treatment will probably not improve his condition."28

The

Supreme Court has stated that "when there are ambiguities or doubts [as to a
seaman's right to receive maintenance and cure], they are to be resolved in favor
of the seaman."29

"A determination to terminate a seaman's right to

maintenance and cure must be unequivocal."30
Defendant contends that Dr. Christopher Cenac, Jr., Defendant's company
doctor, began treating Plaintiff for his back injury immediately following the
accident at issue in this matter. Defendant began paying Plaintiff maintenance
and cure at that time. On September 25, 2014, Dr. Cenac indicated that
Plaintiff had reached MMI, and Defendant ceased paying Plaintiff maintenance
and cure benefits.
Plaintiff claims that Defendant willfully and wantonly terminated his
maintenance and cure benefits for several reasons. First, Plaintiff notes that Dr.
Cenac's MMI opinion came within a week of Plaintiff filing this suit, despite the
fact that on September 3, 2015 Dr. Cenac had ordered additional diagnostic
testing of Plaintiff. Second, Plaintiff began seeing Dr. Paul Fenn on September
9, 2015, and he issued an opinion stating that Plaintiff had not yet reached MMI.
Defendant refused to reinstate maintenance and cure despite Dr. Fenn's opinion
and despite Plaintiff's repeated demands. Defendant claims that Dr. Fenn's
opinion letter does not raise a material issue of fact because Dr. Fenn is only
28

Snyder v. L & M Botruc Rental, Inc., 924 F. Supp. 2d 728, 734 (E.D. La. 2013);
Vaughan v. Atkinson, 369 U.S. 527, 531 (1962).
29

Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990) (quoting Vaughan, 369
U.S. at 532 (1962)).
30

Id.

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treating Plaintiff for pain and thus Plaintiff is not entitled to cure benefits.
The Fifth Circuit, however, has stated that "where a shipowner had relied
on the opinion of its own physician (who had examined the seaman) to terminate
maintenance payments in the face of conflicting medical opinions on the issue
of whether maximum cure had been reached, a jury question was raised as to
whether such behavior would entitle the seaman to punitive damages."31 It
further stated that while this behavior may not be arbitrary and capricious,
"there is sufficient evidence entitling [the seaman] to have the jury resolve his
arbitrary and capricious claim."32 In addition, the Fifth Circuit has stated that
one behavior that could merit punitive damages against the employer is the
termination of benefits in response to the seaman's retention of counsel or
refusal of a settlement offer.33 Here, Plaintiff has submitted evidence that he
received conflicting prognoses from Drs. Cenac and Fenn and that Defendant
arbitrarily chose to follow the recommendation of its company doctor—which
was opined just days after Plaintiff filed suit. "When there are conflicting
diagnoses and prognoses from various physicians, there is a question of fact to
be determined by the trier of fact as to a plaintiff's entitlement to maintenance
and cure benefits and as to whether an employer's termination of maintenance
and cure benefits was arbitrary or capricious."34 Accordingly, this Court holds
that Plaintiff has established a material issue of fact as to whether Defendant's
31

Breese, 823 F.2d at 104 (discussing Tullos v. Res. Drilling, Inc., 750 F.2d 380 (5th Cir.

32

Id.

33

Tullos, 750 F.2d at 388.

34

Snyder, 924 F. Supp. 2d at 734.

1985)).

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termination of maintenance and cure was arbitrary and capricious. Defendant's
request for summary judgment on this matter is denied.
CONCLUSION
For the foregoing reasons, Defendant's Motion is GRANTED IN PART and
DENIED IN PART. Plaintiff's unseaworthiness claim is DISMISSED WITH
PREJUDICE.

New Orleans, Louisiana, this 27th day of July, 2015.

___________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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