Matthews v. Weeks Marine, Inc.
Filing
22
ORDER & REASONS: denying 16 Motion for Partial Summary Judgment; denying 19 Motion for Partial Summary Judgment. Signed by Judge Carl Barbier on 3/4/16. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRIAN MATTHEWS
CIVIL ACTION
VERSUS
NO: 15-1658
WEEKS MARINE, INC.
SECTION: “J” (2)
ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment
(Rec.
Doc.
16)
filed
by
Defendant,
Weeks
Marine,
Inc.
(“Defendant”), and an opposition thereto (Rec. Doc. 20) filed by
Plaintiff, Brian Matthews (“Plaintiff”). Also before the Court is
a Motion for Partial Summary Judgment (Rec. Doc. 19) filed by
Plaintiff
and
an
opposition
thereto
(Rec.
Doc.
21)
filed
by
Defendant. Having considered the motions and legal memoranda, the
record, and the applicable law, the Court finds that both motions
should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This litigation derives from an injury suffered by Plaintiff
while working for Defendant aboard the dredge RN WEEKS (“the
Vessel”). Defendant hired Plaintiff as a cook in February 2015. On
or about March 21, 2015, Plaintiff injured his right knee while
working on the Vessel. At approximately 4:30 a.m., Plaintiff left
the galley, where he worked, and walked out to the stern deck to
smoke a cigarette. As he walked toward the stern, Plaintiff slipped
1
on what he described as a “slick spot” and twisted his right knee.
(Rec. Doc. 19-2, at 5.) Plaintiff does not know what caused him to
slip, but he is certain that he slipped on something other than
water. Id. at 7-8.
Initially, Plaintiff did not report his injury. Over the next
few days, his pain worsened, and his knee became swollen. Doctors
subsequently diagnosed him with complex tears of the lateral
meniscus, bursitis, and damage to the cartilage of the knee. Dr.
Thomas Lyons performed injections on the knee, but Plaintiff’s
pain and other symptoms persisted. Dr. Lyons then recommended a
right total knee arthroplasty. Plaintiff requested maintenance and
cure from Defendant, including surgery costs. Defendant failed to
comply with these requests.
On May 15, 2015, Plaintiff filed suit, alleging that he was
entitled
to
maintenance
and
cure,
as
well
as
damages
for
Defendant’s negligence and the unseaworthiness of the Vessel.
Defendant filed its Motion for Partial Summary Judgment on February
11, 2016. Plaintiff filed his motion on February 22. Both parties
filed oppositions on March 1.
PARTIES’ ARGUMENTS
A. Defendant’s Motion
Defendant seeks summary judgment on Plaintiff’s Jones Act
negligence and unseaworthiness claims. The parties agree that the
Jones Act applies. However, Defendant attacks the sufficiency of
2
Plaintiff’s evidence, arguing that Plaintiff did not present any
evidence to prove his Jones Act claims. Plaintiff testified that
he slipped on a “slick” spot on the deck and that workers had been
cleaning filters on the deck the day before the accident. According
to Defendant, Plaintiff’s evidence does not show negligence or
that Defendant’s negligence caused his injury. Defendant also
argues that Plaintiff’s evidence is insufficient to show that the
Vessel was not reasonably fit for its intended purposes or that an
unseaworthy condition caused Plaintiff’s injury. Thus, Defendant
claims that it is entitled to summary judgment on Plaintiff’s Jones
Act negligence and unseaworthiness claims.
In his opposition, Plaintiff argues that summary judgment is
inappropriate as to his Jones Act claims. First, Plaintiff argues
that the plaintiff has a light burden of proof in Jones Act
negligence cases. Plaintiff emphasizes that courts rarely grant
summary judgment to defendants in such cases. As to the sufficiency
of the evidence, Plaintiff points out that the crew had been
cleaning the engine room adjacent to the deck where he fell.
According to Plaintiff, the evidence shows that oil or grease may
have caused him to fall. Thus, the evidence creates a genuine issue
of material fact, precluding summary judgment on the negligence
claim. Second, Plaintiff argues that genuine issues exist as to
unseaworthiness. Plaintiff testified that the deck lacked slip
protection,
which
may
have
constituted
3
an
unsafe
condition,
rendering the Vessel unseaworthy. Thus, Plaintiff argues that
Defendant’s motion should be denied.
B. Plaintiff’s Motion
In
his
motion,
Plaintiff
seeks
summary
judgment
on
his
maintenance and cure claim. Plaintiff argues that he is a Jones
Act seaman who injured his knee in the service of Defendant’s
vessel. Plaintiff emphasizes that Dr. Lyons recommended a right
total knee arthroplasty. Plaintiff claims that Defendant has not
paid for the surgery, other medical treatment, or Plaintiff’s
maintenance. According to Plaintiff, Defendant is obligated to pay
because
Plaintiff’s
injury
was
not
caused
by
his
willful
misbehavior or deliberate indiscretion. Also, Plaintiff notes that
he suffered problems with his right knee in the past, but he
reported those problems to Defendant before he was hired.
In its opposition, Defendant first argues that Plaintiff’s
summary judgment evidence is not appropriate for consideration.
Defendant claims that Dr. Lyons’ medical records are not certified
or presented in affidavit form, making them inadmissible. Second,
Defendant argues that the medical evidence creates a genuine issue
of material fact. While Dr. Lyons opined that Plaintiff needed
surgery, Defendant introduced conflicting testimony from another
doctor. Dr. Christopher Cenac testified in an affidavit that
Plaintiff’s injury was nothing more than a temporary aggravation
of a pre-existing condition. According to the doctor, Plaintiff’s
4
condition resolved sometime before October 8, 2015. Dr. Cenac also
opined that Plaintiff was a candidate for knee surgery before
beginning employment with Defendant. According to Defendant, the
conflicting diagnoses create a genuine issue of material fact as
to Plaintiff’s entitlement to maintenance and cure benefits. Thus,
it argues that summary judgment is inappropriate.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing former
Fed. R. Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing
the
evidence.”
Delta
&
Pine
Land
Co.
v.
Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but
a
party
cannot
defeat
summary
judgment
with
conclusory
allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.” Delta, 530
F.3d at 399.
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If the dispositive issue is one on which the moving party
will bear the burden of proof 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.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir.
1991) (citation omitted). The nonmoving party can then defeat the
motion by either countering with sufficient evidence of its own,
or “showing that the moving party’s evidence is so sheer that it
may not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324.
The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial.
See, e.g., id. at 325; Little, 37 F.3d
at 1075.
DISCUSSION
A. Jones Act Negligence
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The Jones Act provides a seaman a cause of action for injuries
sustained as a result of an employer's negligence. Gautreaux v.
Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997) (en banc).
A seaman is entitled to recover under the Jones Act if his
employer's negligence is the cause, in whole or in part, of his
injury. Id. In order to establish causation for a Jones Act claim,
the plaintiff bears a “featherweight” burden of proof. Gavagan v.
United States, 955 F.2d 1016, 1019 (5th Cir. 1992). The plaintiff
need only establish that the actions of the Defendant contributed
to the injury even in the slightest degree. Id.
“Under the Jones Act, a defendant must bear the responsibility
for any negligence, however slight, that played a part in producing
the plaintiff's injury.” In re Cooper/T. Smith, 929 F.2d 1073,
1076-77 (5th Cir. 1991) (citing Landry v. Oceanic Contractors,
Inc., 731 F.2d 299, 302 (5th Cir.1984)). Summary judgment is
appropriate only when “there is a complete absence of proof of an
essential element of the nonmoving party's case.” Id. In a Jones
Act case, a jury may “make permissible inferences from unexplained
events.” Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547,
549 (5th Cir. 1987).
In this case, Plaintiff testified that he slipped and fell on a
slick spot on the deck. He also testified that crew members had
cleaned the adjacent engine room the day before the accident, which
may have left oil mixed with water on the deck. Plaintiff suggests
7
that Defendant possibly was negligent for not adequately cleaning
the deck. The evidence submitted by Plaintiff is uncontroverted by
Defendant. Instead, Defendant argues that the evidence does not
create a genuine issue of material fact. However, Plaintiff has
introduced
evidence
to
show
that
Defendant
may
have
acted
negligently. By failing to clean the deck, Defendant may have
contributed to Plaintiff’s injury. Thus, Plaintiff has introduced
enough evidence to meet his “featherweight” burden of proof under
the Jones Act. Defendant is not entitled to summary judgment on
Plaintiff’s negligence claim.
B. Jones Act Unseaworthiness
Unseaworthiness is a condition of a vessel that presents an
unreasonable risk of harm to the seaman. Park v. Stockstill Boat
Rentals, Inc., 492 F.3d 600, 604 (5th Cir. 2007). The plaintiff
bears the burden of proving unseaworthiness at trial. See Phillips
v. Western Co. of North America, 953 F.2d 923, 928 (5th Cir. 1992).
The vessel owner is not “obligated to furnish an accident-free
ship.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960).
The elements of an unseaworthiness claim are (1) that the defendant
provided a vessel or equipment that was not reasonably fit for its
intended purpose and (2) that “the unseaworthy condition played a
substantial part in bringing about or actually causing the injury
and that the injury was either a direct result or a reasonably
probable consequence of the unseaworthiness.” Id. There is no
8
requirement
that
a
plaintiff
show
negligence,
but
the
“substantial” causation requirement is more stringent than the
causation in a Jones Act negligence claim. Id. When deciding
whether a condition renders a vessel unseaworthy, a court should
consider the following questions: “[W]hat is the vessel to do?
What are the hazards, the perils, the forces likely to be incurred?
Is the vessel or the particular fitting under scrutiny, sufficient
to withstand those anticipated forces?” Walker v. Harris, 335 F.2d
185, 191 (5th Cir. 1964).
In the case at bar, Plaintiff argues that the lack of slip
protection on the deck of the Vessel rendered it unseaworthy. A
vessel will naturally come into contact with water and other
substances. Further, a vessel will be subject to the ebb and flow
of tides, which may cause difficulties in retaining balance while
walking. Thus, a vessel owner should take precautions to reduce
the chance of falls. Here, the evidence shows that the deck lacked
slip protection. Defendant did not contradict this evidence. Thus,
the deck may have been not reasonably fit for its intended purpose.
Several district courts in the Fifth Circuit have held that a
vessel may be rendered unseaworthy by a lack of slip protection.
Cameron v. United States, 135 F. Supp. 2d 775, 777-78 (S.D. Tex.
2001) (Kent, J.); Courville v. Cardinal Wireline Specialists,
Inc., 775 F. Supp. 929, 936 (W.D. La. 1991) (Trimble, J.). Further,
at least one district court held that a vessel was rendered
9
unseaworthy by an accumulation of oil and water on its deck.
Louviere v. Fid. & Cas. Co. of N.Y., 210 F. Supp. 260, 262 (W.D.
La. 1962) (Hunter, J.). Thus, the Vessel may have been unseaworthy
in the case at bar. Defendant is not entitled to summary judgment
on Plaintiff’s unseaworthiness claim.
C. Maintenance and Cure
“Maintenance and cure is an obligation imposed upon a shipowner
to provide for a seaman who becomes ill or injured during his
service to the ship.” Boudreaux v. United States, 280 F.3d 461,
468 (5th Cir. 2002). To receive maintenance and cure, a plaintiff
must prove (1) his employment as a seaman; (2) that his illness or
injury “occurred, was aggravated or manifested itself while in the
ship's service,” (3) the wages to which he may be entitled; and
(4) “the expenditures or liability incurred by him for medicines,
nursing
care,
board
and
lodging.”
Smith
v.
Fla.
Marine
Transporters, Inc., No. 10-889, 2011 WL 2580625, at *2 (E.D. La.
June 29, 2011) (Lemmon, J.). With respect to the evidence required
to prove a claim for maintenance and cure:
[O]n a motion for summary judgment, the evidence
proffered by the plaintiff to satisfy his burden of proof
must be competent and admissible at trial. Unsworn
documents are . . . not appropriate for consideration.
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.
Bosarge v. Cheramie Marine LLC, No. 14-2153, 2015 WL 4645636, at
*2 (E.D. La. Aug. 4, 2015) (Milazzo, J.) (internal citations and
10
quotation marks omitted). Further, “[w]hen 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.” Snyder
v. L & M Botruc Rental, Inc., 924 F. Supp. 2d 728, 734 (E.D. La.
2013) (Brown, J.).
Defendant first argues that Plaintiff’s motion relies on
improper evidence. Plaintiff’s exhibits include medical records
from Dr. Lyons, which are neither sworn nor submitted in an
affidavit.
Thus,
Defendant
correctly
asserts
that
Dr.
Lyons’
records are not appropriate for consideration at the summary
judgment stage.
Second, even if Plaintiff’s medical records were admissible,
Defendant introduced evidence that contradicted Dr. Lyons’ report.
(See Rec. Doc. 21-2.) Defendant’s expert, Dr. Cenac, opined that
Plaintiff’s knee injury pre-dated his employment with Defendant
and
that
Plaintiff
was
a
candidate
for
knee
surgery
before
beginning his employment. Because the parties have introduced
conflicting evidence, a question of fact exists as to Plaintiff’s
entitlement to maintenance and cure benefits. Thus, Plaintiff is
not entitled to summary judgment on his maintenance and cure claim.
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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Partial
Summary Judgment (Rec. Doc. 16) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Partial
Summary Judgment (Rec. Doc. 19) is DENIED.
New Orleans, Louisiana this 4th day of March, 2016.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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