Dennis v. ESS Support Services Worldwide et al

Filing 63

ORDER AND REASONS denying 40 Motion for Partial Summary Judgment. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORDON DENNIS,
Plaintiff

CIVIL ACTION

VERSUS

No. 15-690

ESS SUPPORT SERVICES
WORLDWIDE, ET AL
Defendants

SECTION "E"(4)

ORDER AND REASONS
Before the Court is a motion for partial summary judgment filed by Defendant,
S.H.R.M. Catering Services, Inc. d/b/a/ Eurest Support Services (“ESS”).1 ESS seeks
summary judgment on Plaintiff Geordon Dennis’ maintenance-and-cure claim under the
Fifth Circuit’s decision in McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th
Cir. 1968).2 The motion is opposed.3 The Court deferred its consideration of the motion
pursuant to Rule 56(d) to permit plaintiff to conduct certain additional discovery.4 ESS
timely re-urged the motion pursuant to the Court’s orders, Plaintiff timely responded, and
the motion is now before the Court on the briefs and without oral argument.5 For the
reasons that follow, the Court denies ESS’ motion.
BACKGROUND
This is a maritime personal injury case. Plaintiff Geordon Dennis (“Dennis”) claims
that, on or about September 21, 2014, he suffered injuries while working for ESS on board
a vessel owned and maintained by Seadrill Americas, Inc.6 While Plaintiff’s complaint

R. Doc. 40.
See R. Docs. 40-1, 52 & 55.
3 R. Docs. 42, 48, & 60.
4 R. Doc. 53.
5 R. Docs. 55 & 60.
6 R. Doc. 1.
1

2

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does not make it explicit, the parties apparently agree that Dennis worked aboard the rig
SEVAN LOUISIANA as a utility hand and that his claims against Defendants center on
the allegation that he fell out of his top bunk, which Dennis asserts should have had a
guard rail.7 Dennis initially alleged injuries to his head, neck, and back and later claimed
injuries to his right ankle.8 Dennis has made maintenance and cure claims against ESS.9
Dennis filed the instant lawsuit on March 4, 2015, asserting causes of action for
negligence, unseaworthiness, and maintenance and cure, as well as punitive damages for
the willful and wanton failure to pay maintenance and cure.10
ESS originally filed this motion for partial summary judgment on Dennis’
maintenance and cure claims on March 7, 2016. ESS argues Dennis is not entitled to
maintenance and cure, because recovery for his alleged ankle injury is precluded under
McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968) and because he
has reached maximum medical cure on his other alleged injuries.11 ESS argues that
Dennis intentionally concealed evidence of a significant pre-existing injury to his ankle,
the disclosure of which would have materially impacted ESS’ decision to hire Dennis and
which is causally related to his current alleged ankle injury. With ESS’ liability for Dennis’
alleged ankle injury precluded by a McCorpen defense, ESS argues that Dennis is wholly
precluded from bring a maintenance and cure claim, because has achieved maximum
medical cure on his other alleged injuries.12 Furthermore, ESS seeks a ruling that Dennis
R. Docs. 40-2 at 2, 40-4 at 5, & 42-2 at 1.; see also generally R. Doc. 44.
Id.
9 Id.
10 R. Doc. 1.
11 See R. Doc. 40-1 at 12–16.
12 See id. at 17–18; see also R. Doc. 55 at 15. ESS initially sought a determination that Dennis has also
reached medical maximum cure on his ankle injury; however, ESS’ supplemental memorandum re-urging
summary judgment apparently concedes that “plaintiff may be able to argue that Dr. Bostick has done
enough to create confusion over whether plaintiff is at the point of maximum medical cure with respect to
his alleged right ankle injury.” R. Doc. 55 at 15.
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may not seek punitive damages related to Defendant’s payment of maintenance and cure
or lack thereof, because ESS has paid Dennis maintenance payments and has reasonably
relied on treating physicians in determining that Dennis has no cure issue.13
On April 28, 2016, the Court denied ESS’ motion for summary judgment without
prejudice, finding that pertinent discovery was still on-going as to the relation between
Dennis’ prior ankle injury and his alleged ankle injury.14
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “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.”15 “An issue is material if its resolution could affect the outcome of the action.”16
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”17 All reasonable inferences are drawn in favor of the non-moving party.18
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.19
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”20 If the
R. Docs. 40-1 at 18–19 & 55 at 16.
R. Doc. 53.
15 Fed. R. Civ. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
16 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
17 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). See also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
18 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
19 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
20 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
13

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moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the non-moving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.21
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, as in this case, the moving party may satisfy its burden of production
by either (1) submitting affirmative evidence that negates an essential element of the nonmovant’s claim, or (2) affirmatively demonstrating that there is no evidence in the record
to establish an essential element of the non-movant’s claim.22 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied.23 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.”24 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”25
Celotex, 477 U.S. at 322–24.
Id. at 331–32 (Brennan, J., dissenting).
23 See id. at 332.
24 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
25 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citations and internal quotation marks
omitted).
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LAW AND ANALYSIS
I. McCorpen Defense
ESS maintains, under the Fifth Circuit’s decision in McCorpen, that Dennis is not
entitled to be paid maintenance and cure with regard to his alleged right ankle injury
because he concealed a prior right ankle fracture from ESS.26 “Maintenance and cure is a
contractual form of compensation afforded by the general maritime law to seamen who
fall ill or are injured while in the service of a vessel.”27 A seaman’s employer may, however,
rely on certain legal defenses, such as the “McCorpen defense,” to deny claims for
maintenance and cure.28
In McCorpen, the Fifth Circuit concluded that, while maintenance and cure may
be awarded to a seaman who has suffered from a pre-existing injury, a seaman forfeits his
or her right to maintenance and cure when he or she fails to disclose certain medical facts,
or misrepresents those facts, when asked about them in connection with an employment
application.29 An employer will prevail on this defense, absolving the employer of its
obligation to an injured seaman, by establishing: (1) the seaman intentionally concealed
or misrepresented information concerning a prior medical condition or injury; (2) the
misrepresented or concealed information was material to the employer’s decision to hire

See generally R. Docs. 40-1 & 55.
Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir. 2006).
28 Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005). See also Lett v. Omega
Protein, Inc., 487 F. App’x 839, 848 (5th Cir. 2012).
29 McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 549 (5th Cir.), cert. denied, 393 U.S. 894
(1968). See also Brown, 410 F.3d at 170–71, 73 (quoting McCorpen, 396 F.2d at 549 (“[W]here the
[employer] requires a seaman to submit to a pre-hiring medical examination or interview and the seaman
intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired,
then he is not entitled to an award of maintenance and cure.”)).
26
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the seaman; and (3) a causal connection between the non-disclosed injury or condition
and an injury or condition complained of in the suit at bar.30
ESS, as the party seeking summary judgment, has the burden of establishing there
are no material facts in dispute and, therefore, ESS is entitled to judgment as a matter of
law on Dennis’ maintenance-and-cure claim. ESS’ summary-judgment burden, as applied
to the McCorpen defense, requires ESS to establish the absence of disputed material facts
with respect to each of the three prongs of the defense. ESS is unable to do so with respect
to McCorpen’s third prong, meaning summary judgment must be denied.
A. Concealment
The first prong of the McCorpen defense—the “intentional concealment” prong—
is “an essentially objective inquiry,” and does not require a finding of subjective intent to
conceal or misrepresent medical information on the part of the seaman.31 “McCorpen’s
intentional concealment prong neither necessarily turns on credibility nor requires a
subjective determination.”32 “Failure to disclose medical information in an interview or
questionnaire that is obviously designed to elicit such information satisfies the
‘intentional concealment’ requirement.”33 In this case, the parties disagree on the
application of this prong of the McCorpen defense.
ESS points to an April 24, 2013, medical report, signed and initialed by Dennis that
clearly diagnoses a “fracture right fibula (lateral malleolar fracture) (with subluxation).”34

McCorpen, 396 F.2d at 548–49. See also Johnson v. Cenac Towing, Inc., 544 F.3d 296, 301 (5th Cir.
2008) (citations omitted); Brown, 410 F.3d at 171.
31 Brown, 410 F.3d at 174.
32 Id. at 175.
33 Id. at 174 (citing Vitcovich v. OCEAN ROVER, O.N., 106 F.3d 411 (9th Cir. 1997)).
34 See generally R. Doc. 48-1. The Court notes that the details of Dennis’ past medical treatment were not
detailed in the parties’ statement of uncontested facts; however, Dennis submitted the April 24, 2013,
medical report, apparently conceding their authenticity and accuracy. See Rec. Doc. 48 at 2.
30

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The report includes a “General Instructions” document also initialed by Dennis that
clearly

states

“You

have

been

given

the

following

additional

information:

FRACTURE:ANKLE” and includes a “follow-up” instruction for Dennis to see an
orthopedist.35 ESS also points to the testimony of Dennis’ treating doctors for his current
injury, who note that the previous fracture did not heal properly and should have been
surgically repaired.36 ESS then points to medical questionnaires Dennis completed when
seeking employment with ESS roughly fifteen months later, which asked Dennis to swear
that the information he supplied was true “as in a court of law” and informed him that
failure to respond truthfully could result in the loss of medical treatment and benefits.37
Dennis marked “No” next to the question asking whether he had ever had “Broken Bones
/ Fractures /Dislocations.”38 On another questionnaire, Dennis denied ever having an
injury to his feet or legs and generally denied having any type of prior injury.39 ESS further
argues that Dennis denied he had ever suffered an ankle fracture when asked by his
treating physician, Dr. Robert Bostick (“Dr. Bostick”).40 Asserting that the concealment
prong is an objective inquiry, ESS argues that Dennis clearly concealed his prior ankle
fracture.41
Dennis argues that, regardless of what the medical report says, he believed at the
time he suffered only an ankle sprain, and points to testimony of the doctors who have
treated his current ankle injury supporting the conclusion that Dennis likely suffered both

Id. at 12–13. The parties apparently agree that Dennis did not seek follow-up treatment with the
orthopedist.
36 R. Docs. 40-5 at 6–8 & 55-2 at 16
37 See R. Doc. 40-4 at 28–31.
38 Id. at 28.
39 Id. at 30–30.
40 R. Doc. 55-2 at 13–14.
41 R. Doc. 55 at 11–12.
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a high ankle sprain and a fracture.42 Dennis asserts that the doctors’ testimony also
reveals that Dennis was forthcoming about the prior injury in general.43 Dennis further
argues that ESS has pointed to no evidence indicating his mobility was in any way limited
while he worked for ESS or that he had intent to conceal his ankle fracture.44
The Court finds ESS has established that Dennis intentionally concealed or
misrepresented the pre-existing injury to his ankle. ESS is correct that the intentional
concealment prong of a McCorpen defense “is an essentially objective inquiry.”45 The
Fifth Circuit has held that the “[f]ailure to disclose medical information in an interview
or questionnaire that is obviously designed to elicit such information satisfies the
‘intentional concealment’ requirement.”46 Dennis does not deny having previously
received medical treatment for his right ankle or signing and initialing various portions
of the medical report and general instructions clearly indicating that he had been
diagnosed with a fracture. Dennis’ failure to disclose the fracture when questionnaires he
completed for ESS clearly elicited such information satisfies the intentional concealment
requirement. The Court is not persuaded that Dennis’ subjective belief he suffered only a
sprain or his argument that he lacked actual intent to conceal is relevant to the Court’s
analysis, as the intentional concealment prong does not require an inquiry into subjective
intent of the employee.47

See R. Doc. 48 at 2; see also R. Doc. 60-1 at 4–5; R. Doc. 60-2 at 11.
Id.
44 R. Doc. 60 at 9.
45 See Ladnier v. REC Marine Logistics, L.L.C, Civ. A. No. 14-1278, 2015 WL 3824382 at *2 (E.D.La. Jun.
19, 2015) (Morgan, J.).
46 See Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 174 (5th Cir. 2005).
47 Id.
42
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B. Materiality
The Court therefore moves to the second prong of McCorpen. ESS must show
Dennis’ misrepresentation or concealment was material to ESS’ hiring decision.
Information is considered material for purposes of the McCorpen defense when “an
employer asks a specific medical question on an application, and . . . the inquiry is
rationally related to the applicant’s physical ability to perform his job duties.”48 If,
however, a plaintiff shows he would have been hired regardless of whether the
concealment was material, the employer losses on the second prong. The materiality
prong of a McCorpen defense is an issue of fact.49
Dennis apparently concedes materiality, but argues he would have been hired
despite the materiality of the questionnaire’s inquiry about his past medical history.50
Indeed, the record is clear that ESS specifically asked questions on the pre-employment
questionnaires relating to broken bones and injuries to Dennis’ feet and legs.
Furthermore, ESS has provided a declaration of its HSEQ Coordinator, establishing that
Dennis’ utility hand position required extensive standing and walking and frequent
climbing, balancing, stooping, kneeling and lifting.51 It is clear that the questionnaire
sought information about Dennis’ medical history and health that was rationally related
to Dennis’ physical ability to serve as a utility hand. The declaration of ESS’ HSEQ
Coordinator states that, had Dennis disclosed his prior right ankle injury, ESS would have
required Dennis to provide further medical information, such as medical records
associated with the injury, which would have made clear that Dennis had previously

Id. at 175.
See Cal Dive Intern., Inc. v. Grant, Civ. A. No. 11-1657, 2013 WL 1099157 (Mar. 15, 2013) (Morgan, J.).
50 See R. Doc. 60 at 11.
51 R. Doc. 40-10.
48
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suffered a fracture.52 The declaration further states that ESS also would have required
Dennis to undergo further evaluation and testing, before reaching a decision to hire him.53
Despite apparent materiality, Dennis argues that ESS would have hired him
regardless of the past ankle injury, pointing to a statement in his conditional offer of
employment and a statement in one of the questionnaires that ESS would have denied
employment only if it was not possible for Dennis to perform the job with reasonable
accommodations.54 Dennis argues that ESS would have hired Dennis even if he had
disclosed the past fracture, because he was still able to (and did) perform the essential
functions of a utility hand up until the time of his alleged injury.55
The Court is not persuaded that Dennis has produced sufficient evidence to prove
ESS would have hired him even if he had disclosed the prior fracture. The evidence is clear
that Dennis not only previously fractured his ankle, but that the fracture healed
improperly and should have been surgically repaired.56 Dennis’ argument that ESS would
have made a reasonable accommodation based on representations in the questionnaire
and conditional offer of employment is too speculative, particularly given that ESS has
come forward with sufficient evidence demonstrating that it would have sought Dennis’
medical records from the fracture and would have investigated and tested the improperly
healed ankle further. As such, the Court concludes that ESS has satisfied the second prong
of its McCorpen defense.

See id.; R. Doc. 48-1.
R. Doc. 40-10.
54 See R. Doc. 40-4 at 28–31.
55 See R. Doc. 60 at 12.
52
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C. Causality
To establish the third element of a McCorpen defense, ESS must establish a
connection between the concealed medical fact and the injury that led to the claim for
maintenance and cure benefits. The present injury need not be identical to the previous
injury. Instead, “[a]ll that is required is a causal link between the pre-existing disability
that was concealed and the disability incurred during the voyage.”57 Causality can be
established by showing that the previous injury and the new injury occurred in the same
location on the body.58 The inquiry is “whether the new injury is related to the old injury,
irrespective of their root causes.”59
In this case, the dispute boils down to whether Dennis’ “high ankle” fracture relates
to Dennis’ current alleged “low ankle” injury. The Court is confronted with conflicting
opinions regarding Dennis’ current ankle injury. Dennis’ first treating physician, Dr.
David Rabalais (“Dr. Rabalais”), has testified that Dennis’ fall irritated the prior fracture
and “didn’t cause the major problem [Dennis] has in his ankle.”60 Dr. Bostick, Dennis’
currently treating physician, has testified it is his opinion that the two injuries are
unrelated.61 ESS would have the Court question the credibility of Dr. Bostick’s medical
opinion and Dennis’ underlying statements to Dr. Bostick about his condition and thereby
rely exclusively upon the testimony of Dr. Rabalais,62 but ESS offers no support to show
such a credibility determination—related to a genuine dispute of material fact—would be
appropriate at the summary judgment phase. Without any clear authority for the Court

Brown, 410 F.3d at 176 (internal quotation marks and citation omitted).
Id.
59 Ladnier, 2015 WL 3824382 at *5 (quoting Johnson v. Cenac Towing, Inc., 410 F.3d 166, 176 (5th Cir.
2005)).
60 R. Doc. 40-5 at 13.
61 R. Doc. 60-2 at 6–8.
62 R. Doc. 55 at 9–10
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to conclude that the ankle generally is a singular location on the body and faced with
conflicting evidence regarding whether Dennis’ low-ankle injury resulted from the past
ankle fracture, the Court cannot conclude that ESS has established that there is no
genuine dispute of material fact regarding causality in this case. As such, the Court cannot
conclude that ESS has established a valid McCorpen defense as a matter of law.
II. Maximum Medical Cure
The right to maintenance and cure terminates when a seaman reaches “maximum
possible cure,” meaning it is probable that further treatment will not better the seaman’s
condition.63 As ESS apparently concedes,64 ESS’ argument that it is no longer obligated
to pay Dennis further maintenance and cure depends upon a finding that ESS is entitled
to a McCorpen defense regarding Dennis’ alleged ankle injury.65 The Court has concluded
that ESS is not entitled to summary judgment on its McCorpen defense regarding Dennis’
alleged ankle. Furthermore, while the parties do not appear to dispute that Dr. Rand
Voorhies (“Dr. Voorhies”)—the doctor treating Dennis for his neck and back—has not
recommended surgery,66 the record is unclear on whether either Dr. Voorhies or Dr.
Bostick has actually cleared Dennis to return to work.67 As such, genuine disputes of
material fact preclude the Court from ruling that ESS is no longer obligated to pay Dennis
further maintenance and cure.
III. Punitive Damages
ESS argues that Dennis cannot state a claim for punitive damages related to ESS’
alleged failure to provide maintenance and cure, because Dr. Rabalais concluded Dennis

Boudreaux v. U.S., 280 F.3d 461, 468 (5th Cir. 2002).
R. Doc. 55 at 15.
65 See R. Doc. 55 at 15.
66 See R. Doc. 55 at 15; R. Doc. 60 at 19–20.
67 See R. Doc. 40-6.
63

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had reached maximum medical cure and because ESS reasonably concluded that it has a
viable McCorpen defense on Dennis’ alleged ankle injury and has otherwise provided
maintenance and cure. Each claim for punitive damages “is to be evaluated on its own
facts,” though there is precedent supporting punitive damages where an employer was lax
in investigating the seaman’s maintenance and cure claim or where the employer failed
to reinstate benefits following the diagnosis of an ailment previously not determined
medically.68 ESS principally supports its argument by reference to an unpublished, per
curiam Fifth Circuit decision, MNM Boats, Inc. v. Johnson, 248 F.3d 1139, 2001 WL
85860 (5th Cir. 2001). The decision, at most, establishes that a seaman does not have a
per se right to punitive damages when an employer decides not to pay benefits in light of
a dispute between physicians over the seaman’s condition.69
The Court concludes that the record is not sufficiently clear that ESS conducted a
sufficient investigation of Dennis’ maintenance and cure claim before deciding not to pay
benefits related to Dennis’ alleged ankle injury. The record does not make clear the extent
to which ESS investigated Dennis’ claim in light of the medical evaluation and surgery
recommendation of Dr. Bostick, but rather indicates that ESS made its decision not to pay
benefits for Dennis’ alleged ankle injury solely on Dr. Rabalais’ earlier determination that
Dennis had reached medical maximum cure.70 On this record, the Court cannot conclude
as a matter of law that Dennis is not entitled to punitive damages.
Accordingly,

See Breese, 823 F.2d 100, 103 (5th Cir. 1987).
See MNM Boats, 2001 WL 85860 at *1.
70 See R. Doc. 55 at 8.
68
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IT IS ORDERED that ESS’ motion for partial summary judgment71 be and hereby
is DENIED.
New Orleans, Louisiana, this ____ day of July, 2016.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

71

R. Doc. 40
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