In the Matter of M&M Wireline & Offshore Services, LLC

Filing 55

ORDER granting 22 Motion for Partial Summary Judgment filed by M&M Wireline. Signed by Judge Nannette Jolivette Brown. (Reference: as listed)(jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF M&M WIRELINE &
OFFSHORE SERVICES, LLC

CIVIL ACTION
NO. 15-4999
C/W NO. 15-5338
SECTION: “G”(5)

ORDER
In this litigation, Plaintiff Beaux Cormier (“Cormier”) alleges that he is entitled to damages
from Defendant Saratoga Resources, Inc. and M&M Wireline & Offshore Services, L.L.C.
(“M&M Wireline) (collectively “Defendants”) as a result of Defendants’ negligence and the
unseaworthiness of Defendants’ vessels that allegedly caused Cormier’s accident. 1 Pending before
the Court is M&M Wireline’s “Motion for Partial Summary Judgment.” 2 Having reviewed the
motion, the memoranda in support, the memorandum in opposition, the record, and the applicable
law, the Court will grant the motion.
I. Background
In the complaint, Cormier alleges that he was employed by M&M Wireline as a Jones Act
seaman on the M/V M&M 102. 3 Cormier alleges that on November 30, 2014, he was transported
from a platform in the Grand Bay Field to the nearby M/V M&M 102 by a “Jon Boat” owned
and/or operated by Saratoga. 4 According to Cormier, the operator of the Jon Boat positioned the

1

Rec. Doc. 1.

2

Rec. Doc. 22.

3

Rec. Doc. 1 at 2.

4

Id. at 3.

1

boat so that the front of the Jon Boat was near and/or pushed up against the side of the M/V M&M
102. 5 When Cormier attempted to step up onto the deck, he alleges that the Jon Boat backed away
from the M/V M&M 102, requiring Cormier to jump back onto the Jon Boat, resulting in Cormier
losing his balance and landing partially on the Jon Boat and partially in the water. 6 Cormier
contends that the Jon Boat was not connected or secured to the M/V M&M 102 in any way, nor
were there other mechanisms in place to allow for safe ingress and egress to the M/V M&M 102. 7
Cormier alleges that at the time of his accident, the M/V M&M 102 was a vessel owned and
operated by M&M Wireline & Offshore Services, L.L.C. and engaged in operations by Defendant
Saratoga Resources, Inc. (“Saratoga”). 8 Cormier alleges that Defendants are liable to him for
negligence and for failing to provide seaworthy vessels. 9 Furthermore, Cormier alleges that M&M
Wireline has a duty to provide him maintenance and cure. 10
Cormier filed a complaint on October 21, 2015. 11 M&M Wireline, L.L.C. filed the instant
motion on July 19, 2016. 12 Cormier filed an opposition on July 26, 2016. 13 M&M Wireline, L.L.C.
filed a reply, with leave of Court, on July 29, 2016. 14

5

Id. at 3.

6

Id. at 4.

7

Id.

8

Id.

9

Id. at 4–5.

10

Id. at 7.

11

Rec. Doc. 1.

12

Rec. Doc. 22.

13

Rec. Doc. 28.

14

Rec. Doc. 38.

2

II. Parties’ Arguments
A.

M&M Wireline’s Arguments in Support of Partial Summary Judgment
M&M Wireline moves for partial summary judgment regarding its obligation to provide

maintenance and cure benefits to Cormier on the grounds that Cormier concealed and intentionally
withheld information regarding previous back injuries that was material to the decision to hire
him. 15 M&M Wireline contends that Cormier’s back injuries are substantially the same injuries he
seeks damages for in this case. 16 M&M Wireline asserts that when Cormier was hired in November
2014, he underwent a physical examination as part of the employment process during which he
answered “No” to whether he had ever had a back injury. 17 However, M&M Wireline avers that
Cormier, in fact, had a long and well-documented history of lower back problems. 18
M&M Wireline asserts that it is well-settled that a seaman’s failure to disclose a prior
illness or disability when he had no good faith belief that he was fit for duty will bar a seaman’s
claim for maintenance and cure. 19 According to M&M Wireline, the Fifth Circuit in McCorpen v.
Central Gulf Steamship Corp. established a three-part test to determine whether a seaman has
forfeited his contractual right to maintenance and cure: (1) the plaintiff intentionally
misrepresented or concealed medical facts; (2) the undisclosed facts were material to the
employer’s decision to hire the plaintiff; and (3) a connection exists between the withheld

15

Rec. Doc. 22-1 at 1.

16

Id.

17

Id. at 2.

18

Id.

19

Id. at 4 (citing McCorpen v. Cent. Gulf Steamship Corp., 396 F.2d 547, 548 (5th Cir. 1968)).

3

information and the injury complained of in the instant suit. 20 M&M Wireline contends that the
Fifth Circuit in McCorpen stated that “where the shipowner requires a seaman to submit to a prehiring 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.” 21 According to M&M Wireline, the “[f]ailure to disclose medical
information in an interview or questionnaire that is obviously designed to elicit such information
therefore satisfies the ‘intentional concealment’ requirement.” 22 M&M Wireline asserts that
Cormier filled out a questionnaire that specifically referenced back injuries and did not inform the
doctor performing the examination of any previous back injuries. 23 M&M Wireline contends that
whether or not the seaman thought his prior back injury was significant is irrelevant. 24 Therefore,
M&M Wireline asserts that the first McCorpen prong is satisfied. 25
As for the second McCorpen prong, whether the concealed facts were material, M&M
Wireline contends that the fact that an employer asks a specific medical question, and that inquiry
is rationally related to the applicant’s physical ability to perform his job duties renders the
information material. 26 According to M&M Wireline, the Fifth Circuit has previously held that
questions regarding whether an applicant had prior injuries are material to determining the

20

Id. at 4 (citing McCorpen, 396 F.2d at 548–49).

21

Id. at 5 (quoting McCorpen, 396 F.2d at 549).

22

Id. (quoting Luce v. C&E Boat Rental, LLC, No. 10-1334, 2010 WL 4553509, at *2 (E.D. La. Nov. 2,

23

Id.

24

Id. at 6.

25

Id.

26

Id. at 7.

2010)).

4

applicant’s ability to perform the physically demanding work of a deck hand. 27 M&M Wireline
asserts that Cormier was being considered for the same physically demanding job in this case and
that the President of M&M Wireline asserts in his affidavit that prior back injuries are grounds for
refusal of employment. 28
Turning to the third McCorpen prong, whether a connection exists between the withheld
information and the injury complained of in the instant suit, M&M Wireline contends that when
the pre-existing condition and the alleged injuries involve the same body part, there is a
presumption that the two are related. 29 M&M Wireline asserts that the inquiry on this prong is
“simply whether the new injury is related to the old injury, irrespective of their root causes.”30
M&M Wireline asserts that the injuries complained of by Cormier substantially coincide with the
injuries documented in his prior medical history. 31 Therefore, M&M Wireline argues that the third
McCorpen prong is satisfied. 32 M&M Wireline argues that it is entitled to summary judgment
because all three prongs of the McCorpen test are satisfied. 33

27

Id. (citing Ramirez v. Am. Pollution Control Corp., 418 F. App’x 287, 290 (5th Cir. 2011)).

28

Id. at 7–8.

29

Id. at 8 (citing In re Rene Cross Constr., Inc., No. 02-2153, 2003 WL 359936, at *2 (E.D. La. Feb. 14,

30

Id. (quoting Luce v. C&E Boat Rental, LLC, No. 10-1334, 2010 WL 4553509, at *6 (E.D. La. Nov. 2,

31

Id. at 8–9.

32

Id. at 9.

33

Id. at 10.

2003)).

2010)).

5

B.

Cormier’s Arguments in Opposition to Partial Summary Judgment
In opposition, Cormier asserts that M&M Wireline fired him without conducting any

investigation into his injuries, medical treatment, or its maintenance and cure obligation. 34 Cormier
contends that these facts also create credibility questions concerning the affidavit of M&M
Wireline’s President and Owner, Martin Quiram (“Quiram”), and because this affidavit is central
to the case, summary judgment is not appropriate. 35 Cormier asserts that a genuine issue of
material fact exists regarding the “intentional concealment or misrepresentation” prong of
McCorpen. 36 Cormier avers that there is a factual dispute regarding the “ambiguous and
misleading phraseology in the medical history items contained in Claimant’s pre-employment
physical with M&M [Wireline].” 37 Cormier contends that there are two medical records in which
a nurse or nurse practitioner used the word “injury”; however, the medical history forms were
unclear regarding what type of medical history was required to be reported. 38 Cormier also
contends that M&M Wireline has mischaracterized Cormier’s medical history as there are only
two isolated instances where Cormier had any complaint of low back pain. 39 Cormier avers that
although he underwent a prior lumbar MRI in 2005, it was not necessitated by any symptoms or
problems, but rather was part of a pre-employment screening. 40 Cormier asserts that although

34

Rec. Doc. 28 at 3.

35

Id. at 4 (citing S. United States Trade Ass’n v. Unidentified Parties, No. 10-1669, 2012 WL 579439 (E.D.
La. Feb. 22, 2012)).
36

Id. at 8.

37

Id. at 9.

38

Id. at 10–11.

39

Id. at 12.

40

Id. at 13.

6

M&M Wireline cites the opinions of its retained medical experts who opine that no change
occurred between Cormier’s 2005 and 2015 MRIs, those opinions are “vehemently disputed” by
Cormier’s treating doctors. 41 Cormier also contends that he has asserted that his answers to his
medical history questions were truthful and this creates a genuine issue of material fact. 42
Next, Cormier argues that a genuine issue of material fact exists regarding the “materiality”
prong of McCorpen. 43 Cormier asserts that Quiram’s affidavit offers no evidence that M&M
Wireline would not have hired him if the alleged “concealment” had been disclosed as he states
only that Cormier’s back injuries are “potentially grounds for refusing employment.” 44 Cormier
contends that a genuine issue of material fact exists when it is unclear whether an employer’s
hiring decision would be affected by the knowledge of a potential employee’s previous injuries.45
Cormier also argues that there is a genuine issue of material fact regarding the “connection”
prong of McCorpen. 46 Cormier assert that the injuries he sustained are “symptomatic disc injuries
that resulted in numbness and tingling into both of [his] legs,” but the two medical records relied
upon by M&M Wireline are “nothing more than soft tissue type injuries that have nothing to do
with [his] disc injuries following this accident.” 47 Cormier also contends that there is a genuine

41

Id.

42

Id. at 16.

43

Id. at 7.

44

Id. (citing Rec. Doc. 22-12 at 1).

45

Id. (citing Dauzat v. Weeks Marine, Inc., No. 14-3008, 2016 WL 3167662 (E.D. La. June 7, 2016); Cal
Dive Int’l, Inc. v. Grant, No. 11-1657, 2013 WL 1099157 (E.D. La. Mar. 15, 2013)).
46

Id.

47

Id. at 16–17.

7

issue of material fact regarding whether M&M Wireline’s actions in denying him maintenance and
cure benefits were arbitrary and capricious and therefore warrant penalties and an award of
attorney’s fees. 48
Finally, Cormier lodges several objections to M&M Wireline’s exhibits. 49 Cormier asserts
that Record Document 21-20, which he contends is a blank application for Merchant Mariner
Medical Certificate, is irrelevant and Record Documents 21-12 and 21-13, which he contends are
the expert reports of Dr. Fakier and Dr. Cenac, are not sworn statements and therefore the reports
are not admissible at trial. 50
C.

M&M Wireline’s Arguments in Further Support of Partial Summary Judgment
In reply, M&M Wireline first contends that whether it denied Cormier maintenance and

cure without investigation is not an issue relevant to the McCorpen analysis. 51 M&M Wireline
contends that although Cormier alleges that he was injured on November 30, 2014, after his initial
treatment in the emergency room, he did not seek any medical treatment for four months.52
Furthermore, M&M Wireline asserts that Cormier did not give it any reason to believe that Cormier
was suffering significant back pain stemming from the November 30 incident. 53 M&M Wireline
asserts that, contrary to Cormier’s assertions, Cormier was fired for not showing up to work. 54 In

48

Id. at 17.

49

Id.

50

Id. at 17–18.

51

Rec. Doc. 38 at 2.

52

Id.

53

Id. at 5.

54

Id. at 7–8.

8

response to Cormier’s argument that there is a credibility issue regarding Quiram’s affidavit,
M&M Wireline contends that there is nothing in the record to contradict Quiram’s statements.55
M&M Wireline also asserts that Cormier has serious credibility issues as well. 56
Turning to the McCorpen analysis, M&M Wireline asserts that although Cormier argues
that he did not intentionally conceal any prior back injury because he did not understand the
questions on the “General Physical Form” to be asking him for his complete medical history,
Cormier does not cite any case law to support his argument that the questions posed must be more
specific than the questions at issue in this case. 57 M&M Wireline contends that in McCorpen v.
Central Gulf Steamship Corp., the Fifth Circuit held that the plaintiff was of sufficient intelligence
and could understand English so he should have understood that “illness” encompassed his
diabetes, even though the plaintiff asserted that his diabetes was under control. 58 M&M Wireline
asserts that Cormier can read, write, and speak English and therefore has no excuse to not
comprehend that “frequent backaches” and “back injury” would encompass a prior work injury
that resulted in pain lasting over a month and ending with a visit to an emergency room, as well as
an “ongoing problem” producing back pain lasting for at least a month. 59
As for the second prong, materiality, M&M Wireline asserts that the law does not require
the employer to show definitively that it would not have hired the plaintiff, but states that

55

Id. at 8.

56

Id.

57

Id. at 9.

58

Id. at 9–10 (citing 396 F.2d 547, 550 (5th Cir. 1968)).

59

Id. at 10.

9

materiality is established if “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.”60
M&M Wireline cites McNabb v. Bertucci Contracting, a case from another section of the Eastern
District of Louisiana, where, M&M Wireline contends, the court held that language in an affidavit
from the safety director that the company would not have approved the plaintiff without further
medical information regarding his prior accident and appropriate clearance to return to work was
sufficient to satisfy the materiality prong. 61 M&M Wireline also cites the Fifth Circuit case
Ramirez v. American Pollution Control, where, it contends, the court evaluated an affidavit stating
not that the company would not hire the plaintiff, but rather that the plaintiff might be required to
undergo further medical examinations. 62 According to M&M Wireline, the Fifth Circuit noted that
the additional medical examinations would have at least delayed the hiring of the plaintiff, likely
preventing him from being aboard the vessel at the time of the accident, and noted that the affidavit
submitted by the company represented that a misrepresentation of pre-existing injuries would have
resulted in termination. 63 M&M Wireline argues that Quiram’s affidavit states that “falsification
of medical background, or nondisclosure of a pre-existing condition, in the physical review process
is ground for termination” and back injuries are potentially grounds for refusing employment. 64

60

Id. at 10–11 (quoting Brown v. Parker Drilling Offshore, 410 F.3d 166, 175 (5th Cir. 2005)).

61

Id. at 11 (citing No. 12-1342, 2013 WL 1099156, at *6 (E.D. La. Mar. 15, 2013).

62

Id. at 11–12 (citing 418 F. App’x 287, 291 (5th Cir. 2011)).

63

Id. at 12 (citing 418 F. App’x at 290–91).

64

Id.

10

Furthermore, M&M Wireline asserts that at the time of the incident, Cormier had only been
working for M&M Wireline for eighteen days. 65
Turning to the third prong, the connection between the old and new injuries, M&M
Wireline asserts that there is no requirement that the injuries be identical, only that they are to the
same location on the body. 66 M&M Wireline contends that although Cormier repeatedly refers to
his prior injuries as “low back pain” or a “pulled muscle” unrelated to his current disc injuries,
Cormier ignores the results of his 2005 MRI that show that he had significant disc injuries. 67 M&M
Wireline cites McNabb, where, it contends, the district court held that the “causally related” prong
was met where an MRI demonstrated a ruptured disc at the L5-S1 level and a post-accident MRI
showed disc herniations at L3-4, L4-5, and L5-S1 levels. 68 M&M Wireline asserts that it is not
relevant to this prong whether Cormier knew that the injuries were related. 69 Therefore, M&M
Wireline argues that it is entitled to summary judgment because all three prongs of the McCorpen
test are satisfied. 70

65

Id. at 12–13.

66

Id. at 13.

67

Id.

68

Id. at 13–14 (citing 2013 WL 1099156, at *9).

69

Id.

70

Id. at 14.

11

III. Law and Analysis
A.

Legal Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 71 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.” 72 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” 73
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law. 74 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial. 75
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes

71

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
72

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

73

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

74

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

75

See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

12

demonstrate the absence of a genuine issue of material fact. 76 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.77 To withstand a motion for summary judgment, a plaintiff must show that
there is a genuine issue for trial by presenting evidence of specific facts. 78 The nonmovant’s burden
of demonstrating a genuine issue of material fact is not satisfied merely by creating “some
metaphysical doubt as to the material facts,” “by conclusory allegations,” by “unsubstantiated
assertions,” or “by only a scintilla of evidence.” 79 Rather, a factual dispute precludes a grant of
summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for
the nonmoving party. Hearsay evidence and unsworn documents that cannot be presented in a form
that would be admissible in evidence at trial do not qualify as competent opposing evidence. 80
B.

Analysis
M&M Wireline moves for summary judgment on Cormier’s claim for maintenance and

cure benefits pursuant to McCorpen v. Central Gulf Steamship Corp. because, it asserts, Cormier
“concealed and intentionally withheld information regarding prior back injuries” that are
substantially the same injuries as those claimed in this lawsuit. 81 In opposition, Cormier contends

76

Celotex, 477 U.S. at 323.

77

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).

78

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–
49 (1996)).
79

Little, 37 F.3d at 1075.

80

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).

81

Rec. Doc. 22-1 at 1 (citing 396 F.2d 547 (5th Cir. 1968)).

13

that the Court should not grant summary judgment because there are genuine issues of material
fact regarding each of the three McCorpen elements. 82
“Maintenance and cure is a contractual form of compensation given by general maritime
law to a seaman who falls ill while in the service of his vessel.” 83 However, an employer may deny
a claim for maintenance and cure benefits if it can show that an injured seaman willfully concealed
a preexisting medical condition from his employer. 84 In order to establish such a defense, pursuant
to McCorpen, 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.” 85 The Court will address each of these elements in turn.
1.

Cormier’s Objections to Evidence

As an initial matter, the Court notes that Cormier objects to three of M&M Wireless’
exhibits submitted in support of its motion for summary judgment: (1) Record Document 21-10, a
blank application for Merchant Mariner Medical Certificate; (2) Record Document 21-12, an
“Expert IME Report of Dr. Fakier”; and (3) Record Document 21-13, an “Expert IME Report of
Dr. Cenac.” 86 Pursuant to Federal Rule of Civil Procedure 56(c)(2), a party may object that the
material cited to support or dispute a fact on a motion for summary judgment cannot be presented

82

Rec. Doc. 28 at 7–17.

83

McCorpen, 396 F.2d at 548.

84

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

85

Brown, 410 F.3d at 171 (citing McCorpen, 396 F.2d at 548–49).

86

Rec. Doc. 28 at 17–18.

14

in a form that would be admissible in evidence. Cormier asserts that the blank application is
irrelevant and the two expert reports are not sworn statements and therefore are inadmissible at
trial. 87 M&M Wireline does not respond to Cormier’s objections.
Federal Rule of Evidence 401 provides that evidence is relevant if “it has any tendency to
make a fact more or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” M&M Wireline cites to the “Application for Merchant
Mariner Medical Certificate” in support of its contention that the job of a deck hand is physically
demanding; 88 however, it provides no further explanation of how this document is related to this
case. The application states that the Coast Guard requires a physical examination and certification
to be completed to ensure that mariners are healthy, have no physical limitations that would hinder
or prevent performance of their duties, and are free of medical conditions that pose a risk of sudden
incapacitation which could affect operating or working on vessels. 89 The form also contains a list
of tasks “considered necessary for performing ordinary and emergency response shipboard
functions.” 90 At issue in this case is whether M&M Wireline’s questions on its General Physical
Form were rationally related to the applicant’s physical ability to perform his duties.91
Accordingly, evidence regarding ordinary shipboard tasks in an emergency is relevant and
Cormier’s objection is overruled.

87

Id. at 18.

88

Rec. Doc. 22-1 at 7.

89

Rec. Doc. 22-11 at 1.

90

Id. at 2.

91

See Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 172 (5th Cir. 2005).

15

Next, Cormier argues that the expert reports of Drs. Fakier and Cenac are not proper
summary judgment evidence. In the Fifth Circuit, “[u]nsworn expert reports . . . do not qualify as
affidavits or otherwise admissible evidence for [the] purpose of Rule 56, and may be disregarded
by the court when ruling on a motion for summary judgment.” 92 These expert reports are unsworn
letters that are not admissible summary judgment evidence. Accordingly, the Court sustains
Cormier’s objections to the expert reports of Drs. Fakier and Cenac and will not consider them in
analyzing the instant motion.
2.

Intentional Misrepresentation or Concealment of Medical Facts

M&M Wireline contends that the first McCorpen prong is met because Cormier was
required to fill out a questionnaire that made specific reference to previous injuries, including back
injuries, but Cormier failed to reveal that he had a “long history of back pain and back injuries,
including a work related injury.” 93 In opposition, Cormier asserts that the “General Physical Form”
that Cormier filled out contained no actual questions regarding Cormier’s medical history, but
instead listed three categories relating to the back: “[f]requent backaches,” “[b]ack injury (upper)”;
and “[b]ack injury (lower).” 94 Cormier asserts that these categories are subjective and ambiguous
because an applicant and health care provider may each believe that the word “injury” covers
different things. 95

92

Provident Life and Accident Ins. Co., 274 F.3d 984, 1000 (5th Cir. 2001) (quoting 11 James Wm. Moore
et. al., Moore's Federal Practice ¶ 56.41[3][c] (3d ed. 1997)) (internal quotations omitted).
93

Rec. Doc. 22-1 at 6.

94

Rec. Doc. 28 at 9.

95

Id. at 10.

16

The Fifth Circuit in Brown v. Parker Drilling Offshore Corp. determined that the
intentional concealment prong of the McCorpen defense does not require a finding of subjective
intent. 96 The court stated that “Seamen must not be allowed to blatantly misrepresent their medical
history on questionnaires and then plead ignorance before a jury.” 97 In Brown, the court concluded
that the defendant had established as a matter of law that the plaintiff had knowingly concealed
material medical information, rejecting the plaintiff’s argument that he did not intend to conceal
his medical condition and did not understand that his back injuries constituted back “trouble.” 98 In
Brown, the Fifth Circuit, quoting McCorpen, stated that “where the shipowner 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.” 99
Cormier argues that the “plainly desired” requirement is significant in this case as there is
a “clear material factual issue in dispute regarding the ambiguous and misleading phraseology in
the medical history items contained in [Cormier’s] pre-employment physical with M&M
[Wireline].” 100 On the “General Physical Form,” M&M Wireline asked Cormier to complete a
medical history in which there was a list of conditions and Cormier was to circle either “Y” for

96

Brown, 410 F.3d at 173.

97

Id. at 175.

98

Id. at 172–74.

99
Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 173 (5th Cir. 2005) (quoting McCorpen v.
Central Gulf S.S. Corp., 396 F.2d 547, 549 (5th Cir. 1968)).
100

Id. at 9.

17

yes or “N” for no. 101 Cormier circled “N” regarding “Back injury (lower).” 102 M&M Wireline has
submitted medical records for Cormier indicating that in 2005, Cormier went to the emergency
room complaining of lower back pain that he stated he had suffered for the previous month after
he was injured pushing a pipe. 103 M&M Wireline has also submitted medical records from
February 2013 in which Cormier reported that he was suffering back pain shooting down his left
leg. 104 Cormier argues that there were no inquiries or questions regarding topics such as prior back
sprains or muscle pulls that would make it clear to an applicant that he or she needed to identify
all back problems, no matter how slight, and the fact that the General Physical Form references
“frequent” back aches implies that an applicant need not list all back problems. 105
Although Cormier asserts in his affidavit that he answered all the questions regarding his
past medical history truthfully and that he did not write the words “injured” or “injury” in his
medical records, 106 the intentional concealment prong “does not require a finding of subjective
intent.” 107 In Brown, the plaintiff argued that he did not understand that his back injuries, consisting
of a “sore back” and “pulled muscle” constituted back “trouble” because he interpreted “trouble”
to indicate serious injuries such as a broken back or neck. 108 The Fifth Circuit, stating that the

101

Rec. Doc. 22-5 at 1.

102

Id.

103

Rec. Doc. 22-6.

104

Rec. Doc. 22-8.

105

Rec. Doc. 28 at 10.

106

Rec. Doc. 28-5 at 3.

107

Brown, 410 F.3d at 174.

108

410 F.3d 166, 172 (5th Cir. 2005).

18

intentional concealment prong of McCorpen is an “essentially objective inquiry,” concluded that
the defendant had established as a matter of law that the plaintiff had intentionally concealed his
prior back injuries. 109 In this case, Cormier failed to disclose on the General Physical Form that he
had previously suffered a lower back injury. His argument that he did not understand his previous
incidents with this back to constitute “injuries” is unavailing in light of Brown. Accordingly, the
Court concludes that Cormier intentionally misrepresented or concealed medical facts to satisfy
the first prong of the McCorpen defense.
3.

Materiality of the Non-Disclosed Facts to the Employer’s Decision to Hire
Cormier

Next, the Court turns to the materiality prong of the McCorpen defense. Cormier asserts
that there is no evidence that M&M Wireline would not have hired Cormier if the alleged
“concealment” had not been disclosed. 110 The Fifth Circuit in Brown held 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 duties, renders the information material
for the purpose of [the materiality] analysis.” 111 In this case, it is undisputed that M&M Wireline
asked Cormier to disclose his medical history, including whether he had previously suffered any
injuries to his lower back. Furthermore, the Fifth Circuit has acknowledged that the work of a
deckhand is physically demanding and thus questions regarding medical history are rationally
related to an applicant’s ability to perform his duties. 112

109

Id. at 174–75.

110

Rec. Doc. 28 at 7.

111

410 F.3d at 175.

112

Ramirez v. Am. Pollution Control Corp., 418 F. App’x 287, 290 (5th Cir. 2011).

19

Citing Dauzat v. Weeks Marine, Inc. and Cal Dive International, Inc. v. Grant, Cormier
argues that courts in the Eastern District of Louisiana have concluded that a genuine issue of
material fact exists when it is “unclear whether an employer’s hiring decision would be affected
by the knowledge of a potential employee’s previous injuries.” 113 The Fifth Circuit determined in
Jauch v. Nautical Services, Inc. that if the vessel owners would have employed the seaman even
had the requested disclosure been made, concealment will not bar the seaman’s recovery of
maintenance and cure. 114 However, the cases cited by Cormier, which are not binding on this
Court, are nevertheless distinguishable. In Cal Dive International, Inc., the court, in concluding
that there was a genuine issue of material fact regarding whether the plaintiff’s non-disclosure of
her back injuries was material, noted that there was evidence in an affidavit that the company may
have hired the plaintiff even if she had disclosed her back injuries. 115 In Dauzat, the court
concluded that there was a genuine issue of material fact regarding the materiality prong because
the affidavit submitted by the defendants from the risk management director, who asserted that he
had the authority to prevent an applicant’s placement based upon information contained in a
medical information, was contradicted by the director’s deposition testimony, in which he said that
he merely made recommendations to another individual who ultimately made the final decision.116
Therefore, the court in Dauzat concluded that the defendants had not presented any competent

113

Rec. Doc. 28 at 7–8 (citing Dauzat v. Weeks Marine, Inc., No. 14-3008, 2016 WL 3167662 (E.D. La.
June 7, 2016); Cal Dive Int’l, Inc. v. Grant, No. 11-1657, 2013 WL 1099157 (E.D. La. Mar. 15, 2013)).
114

470 F.3d 207, 212 (5 Cir. 2006) (per curiam).

115

2013 WL 1099157, at *5.

116

2016 WL 3167662, at *3.

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summary judgment evidence from someone with authority to make hiring decisions to establish
that the misrepresentation or concealment was material. 117
In the Fifth Circuit case Ramirez v. American Pollution Control Corp., the plaintiff argued
that there was a genuine issue of material fact regarding whether the defendant would have hired
him even if he had disclosed his preexisting injuries. 118 In support, the plaintiff pointed to
testimony in which the employee in charge of hiring and firing deckhands stated that if the captain
of the vessel had wanted to hire the plaintiff, the company would have conducted further medical
evaluations. 119 The Fifth Circuit concluded that this testimony did not create a genuine issue of
material fact regarding materiality because the employee did not state that the company would
have hired the plaintiff, but rather that the plaintiff could have been subject to further medical
examination. 120 In addition, the court noted that the employee had testified that the plaintiff would
have been terminated if he had learned that the plaintiff had misrepresented his preexisting
injuries. 121 Here, M&M Wireline has presented evidence that it asked Cormier to disclose his
medical history, including whether he had suffered any injuries to his lower back in particular, and
that any concerns about a candidate’s physical injuries are brought to the immediate attention of
the President of M&M Wireline Martin Quiram, who maintains review and advisory authority
over the crew hiring process. 122 Quiram states in his affidavit that back injuries are potentially

117

Id. at *3.

118

418 F. App’x 287, 290 (5th Cir. 2011).

119

Id.

120

Id.

121

Id. at 291.

122

Rec. Doc. 22-12.

21

grounds for refusing employment and that falsification of medical background, or nondisclosure
of a pre-existing condition, is grounds for immediate termination. 123
Cormier argues that the Court should deny the motion for summary judgment because the
credibility issues regarding Quiram’s affidavit create a genuine issue of material fact. 124 In support,
Cormier cites Southern United States Trade Association v. Unidentified Parties, a case from
another section of the Eastern District of Louisiana. 125 In Southern United States Trade
Association, the court denied the defendant’s motion for summary judgment on the grounds that
the defendant relied solely upon his self-serving affidavits for support and because his credibility
was a fact issue to be decided by the jury. 126 In that case, the plaintiff alleged that the defendant
had posted numerous defamatory statements about the defendant on several websites and on the
motion for summary judgment, the defendant submitted an affidavit in which he asserted that he
did not make the alleged statements, as well as an affidavit from the defendant’s employee who
asserted that the employee had posted the statements. 127 The court denied the motion, stating that
the Constitution guarantees a trial by jury, not trial by affidavit. 128
On motions for summary judgment, courts must refrain from making credibility
determinations or weighing the evidence. 129 Moreover, Cormier only generally asserts that there

123

Id.

124

Rec. Doc. 28 at 4.

125

Id. at 5 (citing S. U.S. Trade Ass’n v. Unidentified Parties, No. 10-1669, 2012 WL 579439 (E.D. La.
Feb. 22, 2012)).
126

2012 WL 579439, at *2.

127

Id.

128

Id.

129

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

22

are credibility issues with Quiram because Cormier’s claim for maintenance and cure was denied
without investigation. 130 Cormier does not point to any evidence before the Court on the motion
for summary judgment to specifically contest Quiram’s statements regarding hiring practices, or
demonstrate why Quiram specifically is not a credible witness. Furthermore, as stated above, “[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 duties, renders the information
material for the purpose of [the materiality] analysis.” 131 Therefore, as in Ramirez, Cormier has
failed to raise a genuine issue of material fact regarding the second McCorpen prong, the
materiality of the plaintiff’s non-disclosure.
4.

Causality

The Court now turns to the third prong of the McCorpen defense: whether a connection
exists between the withheld information and the injury complained of in the lawsuit. 132 “[E]ven an
intentional misrepresentation of medical facts which would have been material to the employer’s
hiring decision is insufficient to overcome an obligation of maintenance and cure, barring a
connection between the withheld information and the injury which is eventually sustained.” 133
The Fifth Circuit in Brown determined that because the injuries the plaintiff suffered while
working aboard the vessel were in the same location of the lumbar spine as his previous injuries,

130

Rec. Doc. 28 at 2–4.

131

Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 175 (5th Cir. 2005).

132

Id. at 171 (5th Cir. 2005) (citing McCorpen, 396 F.2d at 548–49).

133

Id. at 175 (internal quotations omitted) (quoting Howard v. A.S.W. Well Serv. Inc., No. 89-2455-L, 1991
WL 365060, at *2 (W.D. La. Dec. 5, 1991)).

23

the causal link between the concealed information and the new injury had been established. 134 In
support, the court in Brown cited a case from another section of the Eastern District of Louisiana,
Weatherford v. Nabors Offshore Corp., where the court stated that “[w]here plaintiff claims an
injury in the exact same area of the back as was previously injured, the causal connection is
clear.” 135 In Weatherford, the court determined that there was an “obvious causal connection”
between the plaintiff’s previous and current injuries because the plaintiff had admitted to
concealing a prior injury to his lower back and, in his instant claim, included an allegation of a
“sharp, stabbing pain” in his lower back. 136
Cormier asserts that the injuries he complains of in this lawsuit are unconnected to any past
medical records and any previous injuries “were nothing more than soft tissue type issues that have
nothing to do with Claimant’s disc injuries following this accident.” 137 In support, Cormier cites
the deposition testimony of Dr. John Sledge (“Dr. Sledge”) who asserts that there is a “new
herniation that wasn’t there on the 2005 images” at the L4-L5 level and it was a “new herniation
superimposed on top of the old herniation.” 138 Dr. Sledge also asserts that Cormier had “substantial
complaints of low back pain into his legs with numbness and tingling in both of his legs that
persisted throughout the entirety of [Dr. Sledge’s] treatment before . . . surgery.” 139 Cormier also

134

Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 176 (5th Cir. 2005).

135

Id. (citing No. Civ. A. 03-0478, 2004 WL 414948, at *3 (E.D. La. Mar. 3, 2004) (Duval, J.))

136

2004 WL 414948, at *3.

137

Rec. Doc. 28 at 17.

138

Rec. Doc. 28-6 at 7.

139

Id. at 14–15.

24

cites to Dr. Sledge’s testimony in which he states that the occurrence of the two incidents in
Cormier’s medical history are not indicative of signs of instability or symptomatic structural
problems in his back. 140
The Fifth Circuit has stated that “there is no requirement that a present injury be identical
to a previous injury. All that is required is a causal link between the pre-existing disability that was
concealed and the disability incurred during the voyage.” 141 In Brown, the plaintiff argued that the
defendant had not established causality because there was no proof that he had suffered a previous
disc herniation and there was no indication from the expert reports that any herniated disc
preexisted his employment. 142 The Fifth Circuit in Brown held that because the plaintiff’s injuries
were to the same location of the lumbar spine, the causal link between the concealed information
and the new injury was established. 143 In Hare v. Graham Gulf, Inc., another section of the Eastern
District of Louisiana held the defendant had clearly satisfied the third prong of the McCorpen
defense because the plaintiff’s spinal injury was at the “same spinal level as the injury giving rise
to this suit.” 144 In this case, the evidence presented shows not only that the injuries complained of
in this case are both to the lower back, as in Brown, but here, Cormier’s expert has testified that
the injuries are to the exact same portion of the spine. Therefore, Cormier has failed to raise a
genuine issue of material fact regarding the third prong of the McCorpen defense.

140

Id. at 18.

141

Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 176 (5th Cir. 2005) (quoting Quiming v. Int’l
Pac. Enters., Ltd., 773 F. Supp. 230, 236 (D. Haw. 1990)) (internal quotations omitted).
142

Id.

143

Id.

144

22 F. Supp. 3d 648, 654–55 (E.D. La. 2014).

25

IV. Conclusion
Based on the foregoing, the Court concludes that Cormier has failed to raise a genuine issue
of material fact regarding any of the three prongs of the McCorpen defense. Accordingly,
IT IS HEREBY ORDERED that Defendant’s “Motion for Partial Summary Judgment”145
is GRANTED.
NEW ORLEANS, LOUISIANA, this 29th day of August, 2016.
____

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

145

Rec. Doc. 9.

26