Rinehart v. National Oilwell Varco L.P., et al

Filing 101

ORDER AND REASONS that Defendant Starfleet's 79 Motion for Partial Summary Judgment is DENIED as stated herein. Signed by Judge Eldon E. Fallon on 5/16/2017. (cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD RINEHART, JR.

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vs.
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NATIONAL OILWELL VARCO L.P., ET AL. *

CIVIL ACTION
NO. 15-6266
SECTION: L

ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment filed by Defendant Starfleet
Marine Transportation, Inc. (R. Doc. 79). Plaintiff opposes the Motion, and, upon leave of the
Court, Defendant filed a reply. (R. Docs. 95, 100). Having considered the parties’ briefs and
applicable law, the Court now issues this Order and Reasons.
I.

BACKGROUND
This case arises out of injuries allegedly sustained by Plaintiff Donald Rinehart

(“Rinehart”) on August 21, 2014, while he was employed as a Jones Act seaman in his capacity as
an engineer aboard the M/V Starfleet Viking (the “Vessel”), a vessel operated by the bareboat
charterer Defendant Starfleet Marine Transportation, Inc. (“Starfleet”). (R. Doc. 1 at 1-2). Plaintiff
invokes jurisdiction of this Court under 28 U.S.C. § 1332. Id. at 2.
Plaintiff alleges that he was ordered by the Vessel’s captain to assist with loading pallets
aboard the ship, which was docked in Port Fourchon, Louisiana. Id. at 2. Defendant National
Oilwell Varco, L.P. (“NOV”) owned the mobile crane and hook used in loading the pallets and
employed the crane operator. Id. Plaintiff claims he was injured when a pallet fork slipped from
the crane’s hook onto the back of his head while loading pallets onto the Vessel’s deck. Id. Plaintiff
was flown by helicopter to the Thibodaux Medical Center for emergency medical treatment and
has since undergone multiple complex surgical procedures with permanent scarring; severe
headaches with substantial neurological deficits, including memory loss and a severely-diminished

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reading ability; and the inability to swallow normal food, so that he must eat through a feeding
tube surgically-implanted into his stomach. Id. at 3. Plaintiff filed suit under the Jones Act and
General Maritime law requesting a jury trial and seeking recovery for the damages he sustained.
Starfleet answers, admitting that it owned the Vessel, and asserts a number of defenses,
including that Plaintiff’s injuries were caused by his own negligence or by third parties, that his
claims are prescribed, and that Starfleet is entitled to limited liability pursuant to 46 U.S.C.
§ 30501, et seq. (R. Doc. 13). NOV answers and asserts a number of defenses, including that
Plaintiff’s injuries were caused by his own negligence or by third parties, that Plaintiff failed to
mitigate his damages, and that his claims are barred by prescription or by either the Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. §901, et seq., or the provisions of the Louisiana
Workers’ Compensation Act, LSA R.S. 23:1021, et seq. (R. Doc. 15).
II.

PRESENT MOTION
Defendant Starfleet filed this Motion for Partial Summary Judgment on Plaintiff’s claims

for maintenance and cure. (R. Doc. 79). Starfleet maintains that Plaintiff had pre-existing back
injuries that he concealed from Starfleet, and therefore is not entitled to maintenance and cure. (R.
Doc. 79-1 at 2). Plaintiff opposes the Motion. (R. Doc. 95). The Court previously denied Starfleet’s
Motion for Partial Summary Judgment on Plaintiff’s claims for maintenance and cure because
Plaintiff had not specifically claimed maintenance and cure in his Complaint. (R. Doc. 73).
Starfleet then asserted a Counterclaim seeking a declaratory judgment that they do not owe
maintenance and cure, and Plaintiff responded with their own Counterclaim, asserting a claim for
maintenance and cure. (R. Docs. 76, 77). Starfleet now maintains that the question of maintenance
and cure is properly before the Court. (R. Doc. 79-1 at 1).

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i.

Starfleet’s Motion

Starfleet seeks partial summary judgment arguing that because Plaintiff failed to disclose
a preexisting condition, Starfleet does not have to pay maintenance and cure. (R. Doc. 79-1 at 1).
Plaintiff claims that the 2014 accident caused him a variety of injuries, which Starfleet paid to
treat. Plaintiff underwent two cervical fusions in June 2016, and was deemed to have reached
maximum medical improvement (“MMI”) at that time. Id. at 3. In August 2016, Plaintiff
underwent a two-level lumbar laminectomy and fusion at L4-S1 to treat posttraumatic lumbar
spine pain, exacerbation of lumbar herniated disk, and lumbar radiculopathy, which Starfleet paid
for under its maintenance and cure obligation. Id. Starfleet maintains that Plaintiff had been
diagnosed with “virtually the exact same diagnosis” in 2007 and had failed to get appropriate
surgery at that time. Id. at 4. Plaintiff allegedly continued to experience lower back pain from 2005
to 2013. Id. at 9-11. On May 31, 2014, Plaintiff completed a medical questionnaire that asked if
he had ever had an injury to his back or if surgery had been recommended by a medical
professional; he denied both. Id. at 12. Additionally, Plaintiff completed a medical questionnaire
on May 28, 2014, denying that he had injured his back or neck or experienced back or neck pain.
Id. at 13. Starfleet avers that the medical questionnaires were crafted to ensure that Plaintiff could
perform his job, and had they known of Plaintiff’s history of back conditions and treatments, they
would not have hired him. Id. at 14.
Starfleet has paid Plaintiff’s maintenance and cure since the accident in 2014, including
$30,320 in maintenance payments and $393,350 in medical payments. Id. at 3 n.3. Because
Plaintiff concealed his medical condition, Starfleet avers they are entitled to a credit and/or
reimbursement for all payments made related to his lumbar injury. Id. at 15. Under McCorpen v.
Central Gulf Steamship Corporation, an employer is relieved from its duty to pay maintenance

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and cure if they can prove: (1) Plaintiff knowingly concealed or intentionally misrepresents a
medical condition; (2) the medical condition was material to the employer’s decision to hire the
Plaintiff; (3) there is a causal link between the pre-existing condition and the injury at issue. 396
F.2d 547, 548-49 (5th Cir. 1968). Starfleet avers that because Plaintiff reached MMI for his
cervical spine injury on June 6, 2016, any further maintenance payments were solely for Plaintiff’s
preexisting lumbar injury. (R. Doc. 79-1 at 15). Accordingly, Starfleet seeks reimbursement and/or
credit for the payments made after June 6, 2016. Id. Further, Starfleet seeks a reimbursement or
credit for its cure payments related to Plaintiff’s lumbar injury in an amount to be determined at
trial. Id. at 15-16.
ii.

Plaintiff’s Opposition

Plaintiff opposes the Motion, arguing that Starfleet’s McCorpen theory should be sent to
the jury because the record supports genuine issues of material fact on that theory. (R. Doc. 95-1
at 1). Further, Plaintiff contends maintenance and cure should not be terminated as he has yet to
reach MMI.
Plaintiff contends that the medical questionnaires he filled out and signed both times he
was hired by Starfleet – in 2010 and in 2014 – contained the following language:
The purpose of this questionnaire is to permit Starfleet Marine
Transportation to ensure no information is withheld by you
regarding injuries or illnesses. The information you disclose on this
questionnaire will not be used to exclude you from employment with
Starfleet Marine Transportation unless you have a disability which
prohibits you from performing the essential functions of the job with
or without a reasonable accommodation.
Id. at 2. He further attested that he has never had an injury or disease to his back and that he had
not injured his back or experienced back pain currently or significantly in the past. Id. His doctor
performed an exam and certified that he was capable to perform duties as a seaman. Id. Plaintiff
attests he has always been able to perform his duties until the accident in question. Id. at 1-3.
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Throughout his opposition, Plaintiff points to medical testimony and evidence that contradicts
Defendant’s Motion and claims for summary judgment. He argues summary judgment on
McCorpen is improper and that the issue should be sent to a jury.
III.

LAW AND ANALYSIS
A. Summary Judgment 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 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).
Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden of
“informing the district court of the basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 322. When the moving party has met its Rule 56(c) burden, “[t]he non-movant cannot
avoid summary judgment . . . by merely making ‘conclusory allegations’ or ‘unsubstantiated
assertions.’” Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir. 2002) (quoting
Little, 37 F.3d at 1075). “The mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the jury could reasonably find for
the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). All reasonable inferences
are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with

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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.
B. Discussion
A Jones Act employer may investigate a seaman’s claim for maintenance and cure. Brown
v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005). An employer may rely on
legal defenses to deny maintenance and cure claims, including the defense that the seaman
willfully concealed a preexisting medical condition. McCorpen v. Central Gulf S. S. Corp., 396
F.2d 547, 548-49 (5th Cir. 1968).
Under McCorpen, an employer is relieved from its duty to pay maintenance and cure if
they can prove: (1) plaintiff knowingly concealed or intentionally misrepresents a medical
condition; (2) the medical condition was material to the employer’s decision to hire the plaintiff;
(3) there is a causal link between the pre-existing condition and the injury at issue. McCorpen, 396
F.2d at 549. Starfleet argues that this case meets all three McCorpen prongs.
First, Starfleet claims that Plaintiff knowingly or intentionally concealed his preexisting
condition when he “failed to disclose medical information in an interview or questionnaire that is
obviously designed to elicit such information.” Meche v. Doucet, 777 F.3d 237, 247 (5th Cir.
2015). Meche v. Doucet holds that if a Plaintiff intentionally provided false information on a preemployment medical questionnaire and certified its truthfulness, they cannot argue the
concealment was unintentional. Id. at 248. According to Starfleet, Plaintiff intentionally withheld
his preexisting back condition on his pre-employment medical questionnaires specifically
inquiring about a history of back problems. (R. Doc. 79-1 at 11). Defendant contends that Plaintiff
signed these forms, attesting to their truthfulness, and now cannot claim that his concealment was

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unintentional. See Meche, 777 F.3d at 248; (R. Doc. 79-1 at 13). Plaintiff disagrees, arguing he
filled out the form truthfully and in a manner consistent with the instructions given him.
Second, Defendant argues that the medical condition was material because it specifically
asked about prior back injuries in its pre-employment interviews and questionnaires because of the
physically demanding nature of the job. (R. Doc. 79-1 at 14-15). As the Fifth Circuit held in Brown
v. Parker Drilling Offshore Corporation, “employers need to be certain that each employee is
physically able to do the work, not only to protect the employer from liability, but also to protect
the employees.” 410 F.3d at 175. Starfleet contends that the medical questionnaire is intended to
ensure that applicants are physically capable of performing the job duties required of a deckhand
engineer, thus satisfying the second prong. See id.; (R. Doc. 79-1 at 15). Plaintiff argues that he
was told the questions only related to his ability to perform his duties on the job. He contends he
filled out those questions honestly and, in fact, was able to perform his duties up until the accident
in question.
Third, Defendant points out that the preexisting injury and the current injury in question
are both to the lumbar region, which satisfied the third McCorpen prong requiring a connection
between the information plaintiff withheld and the injury alleged in the lawsuit. Defendants do not
need to show that the previous injury be the sole cause of the present injury, nor do the two injuries
need to be identical. Brown, 410 F.3d at 176. In this case, however, Starfleet argues that the injuries
are identical and the requisite connection between the two injuries is satisfied. See id.; (R. Doc.
79-1 at 20). Plaintiff, however, points to physician testimony and other evidence suggesting his
prior injury is not the same as the current injury, arguing the issue should be sent to the jury.
Further, he contends that he had a prior history of back pain from laborious work, but not a prior
injury.

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Starfleet avers that because they establish a McCorpen defense, they are not obligated to
pay maintenance and cure and the payments already paid can be recovered by an offset against the
Plaintiff’s damages award. (R. Doc. 79-1 at 21). In Boudreaux v. Transocean Deepwater, Inc., the
Fifth Circuit held that if an employer finds a causal link between an employee’s concealed preexisting condition and the injury alleged in a lawsuit, the employer may sue to terminate their
obligation to pay. 721 F.3d 723, 728 (5th Cir. 2013). If the employer has already paid maintenance
and cure, “it is entitled to recoup them when there are damages to offset.” Id. These payments may
only be offset from a plaintiff’s damage award; the employer may not bring a suit seeking
affirmative recovery. Id. Starfleet contends that because Plaintiff reached MMI for his neck
injuries on June 6, 2016, any subsequent treatment was for the concealed, pre-existing back
injuries. (R. Doc. 79-1 at 21). Starfleet seeks a credit for maintenance payments made after June
6, 2016, which total $8,920. Id. Starfleet also seeks a credit for cure payments made after June 6,
2016; however, because Plaintiff’s treatment is ongoing, Starfleet will ascertain the exact amount
when Plaintiff reaches MMI. Id.
In this case, Plaintiff points to genuine issues of material fact surrounding his prior injuries
and his honesty when filling out pre-employment paperwork. Both parties point to conflicting
medical testimony and evidence. At this stage in the proceeding, the Court must draw all
reasonable inferences in favor of the non-moving party – in this case, the Plaintiff. While this Court
may take all evidence into account, it cannot make the credibility determinations required to
resolve the instant issue. Accordingly, because issues of fact and credibility remain, this issue is
not ripe for summary judgment and must be resolved by a trier of fact.

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IV.

CONCLUSION
For the reasons more fully stated above, it is ordered that Defendant Starfleet’s Motion

for Partial Summary Judgment (R. Doc. 79) is DENIED.
New Orleans, Louisiana, this 16th day of May, 2017.

UNITED STATES DISTRICT JUDGE

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