Wheeler v. Transocean Offshore, USA, Inc. et al

Filing 44

ORDER AND REASONS granting 33 Motion for Partial Summary Judgment. Defendant may cease maintenance payments to Plaintiff. IT IS FURTHER ORDERED that Plaintiff's claims, including punitive damages, and attorney's fees related to his claims for maintenance and cure benefits are DISMISSED WITHPREJUDICE. Signed by Judge Jay C. Zainey on 10/2/2017. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT WHEELER

CIVIL ACTION

VERSUS

NO. 16-8141

TRANSOCEAN OFFSHORE, USA. INC., ET AL.

SECTION A(2)

ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment (Rec. Doc. 33) submitted
by Defendants: Schlumberger Technology Corporation (“Schlumberger”), Freeport-McMoran Oil
& Gas LLC (“Freeport”), and Transocean Offshore Deepwater Drilling, Inc. (“Transocean”)
(collectively referred to as “Defendants”). Plaintiff Robert Wheeler opposes this motion (Rec.
Doc. 35) and Defendants have replied (Rec. Doc. 39). The motion, set for submission on August
23, 2017, is before the Court on the briefs without oral argument. Having considered the motion
and memoranda of counsel, the record, and the applicable law, the Court finds that the Defendants’
motion should be GRANTED for the reasons set forth below.
I.

Background

This case arises out of injuries allegedly sustained by Plaintiff Robert Wheeler on July 7,
2014. At the time, Plaintiff was employed with Schlumberger as a Jones Act seaman in his
capacity as a compliance engineer aboard the drill ship M/V Deepwater Champion (“Deepwater
Champion”). The Deepwater Champion, owned and operated by Transocean, was performing
mining operations for Freeport. (Rec. Doc. 1).
According to his complaint, Plaintiff sustained injuries to his neck and left shoulder when
he slipped and fell in a shower of the Deepwater Champion. Following the accident, Plaintiff

stayed aboard the Deepwater Champion to finish his hitch and returned to shore approximately
two days later. As a result of the shower incident, Plaintiff alleges he suffered a torn left rotator
cuff requiring multiple surgeries, as well as injuries to his neck. Plaintiff contends that the accident
was the result of negligence attributable to the Defendants, and asserts causes of action for Jones
Act negligence, unseaworthiness, and maintenance and cure.
Defendants have filed the current motion pursuant to Federal Rule of Civil Procedure 56
asking that partial summary judgment be granted as to Plaintiff’s maintenance and cure claims.
Defendants assert that Plaintiff is not entitled to maintenance and cure benefits, related claims for
punitive damages, or attorney’s fees pursuant to the doctrine set forth in McCorpen v. Central Gulf
S.S. Corp., 396 F.2d 547 (5th Cir. 1968).
According to Defendants, the Court should grant this motion because: (1) Plaintiff
concealed medical information at the time of his hiring and physical examination; (2) the withheld
information was material to Schlumberger’s decision to hire Plaintiff; (3) a nexus exists between
Plaintiff’s pre-existing conditions and the alleged injuries that make the basis of this lawsuit; and
(4) there are no genuine issues of material fact which would preclude the Court from granting
summary judgment.
II.

Legal Standard

Summary judgment is appropriate only if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” when viewed in the
light most favorable to the non-movant, “show that there is no genuine issue as to any material
fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material fact is “genuine” if
the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id.

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(citing Anderson, 477 U.S. at 248). The court must draw all justifiable inferences in favor of the
non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the moving party has initially
shown “that there is an absence of evidence to support the non-moving party’s cause,” Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with “specific
facts” showing a genuine factual issue for trial. Id. (citing Fed. R. Civ. P. 56(e); Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile,
10 F.3d 1093, 1097 (5th Cir. 1993)).
III.

Law and Analysis

Defendants contend that Plaintiff’s shoulder and neck injuries allegedly caused by the
shower incident were in fact pre-existing his employment. Moreover, Defendants assert that
Plaintiff failed to reveal these pre-existing conditions because he believed revealing such injuries
would deter his employer from hiring him. In support of this position, Defendants refer to several
procedures, complaints, accidents, injuries, doctor’s visits, and diagnoses that attempt to show
Plaintiff had pre-existing injuries to his neck and left shoulder. In particular, Defendants show
that several months before submitting his employment application, Plaintiff underwent a left
shoulder injection. Moreover, several weeks before the application process, Plaintiff complained
to his physician of neck problems. The record shows that Plaintiff had several ailments affecting
different parts of his body, including his neck and left shoulder, prior to his employment with
Schlumberger. (See Rec. Doc. 33-3, pp. 10-12 (referencing Plaintiff’s relevant medical history)).

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A. Application of the McCorpen Defense
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. McCorpen, 396
F.2d at 548. The vessel owner’s obligation to provide this compensation does not depend on any
determination of fault, but rather is treated as an implied term of any contract for maritime
employment. Id. A seaman may recover maintenance and cure even for injuries or illnesses preexisting the seaman’s employment unless that seaman knowingly or fraudulently concealed his
condition from the vessel owner at the time he was employed. Id.
A Jones Act employer is entitled to investigate a seaman’s claim for maintenance and cure
benefits. Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005) (citing
Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir. 1987)). An employer is allowed to rely
on certain legal defenses to deny these claims, such as the defense that the injured seaman willfully
concealed a pre-existing medical condition from his employer. Id. (citing McCorpen, 396 F.2d
547 (5th Cir. 1968)). “[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.” Id. at 173 (citing McCorpen, 396 F.2d at 549).
To prevail on the McCorpen defense, “an employer must show that (1) the claimant
intentionally misrepresented or concealed medical facts; (2) the non-disclosed facts were material
to the employer’s decision to hire the claimant; and (3) a connection exists between the withheld
information and the injury complained of in the lawsuit.” Brown, 410 F.3d at 171 (citing
McCorpen, 396 F.2d at 548-49).

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1. Intentional Concealment
In cases involving a pre-existing illness or other disability, the courts have made a
distinction between nondisclosure and concealment. McCorpen, 396 F.2d at 548-49. On one hand,
where the shipowner does not require a pre-employment medical examination or interview, the
rule is that a seaman must disclose a past illness or injury only when in his own opinion the
shipowner would consider it a matter of importance. Id. On the other hand, where the shipowner
requires a seaman to submit to a pre-hiring medical examination or interview and the seaman
intentionally misrepresents or conceals medical facts, the disclosure of which is plainly desired,
then he is not entitled to an award of maintenance and cure. Id.
This case falls within the latter category. According to their corporate representative, Cesar
Guiterrez, Schlumberger’s pre-hiring medical examination was extensive.

Specifically, it

involved “a series of questions that the [candidate] will have to answer to the physician that is
conducting the testing, including any medical conditions at the time.” (Rec. Doc. 35-6, p. 41).
Plaintiff relies on the fact that his employment application did not contain any questions
regarding his medical condition. (Rec. Doc. 35, p. 10). However, the record shows that the
employment application was only the first step in a multi-step hiring process. In particular,
Plaintiff underwent a Physical Examination. (Rec. Doc. 33-4, p. 27). During this examination,
Plaintiff denied any significant past medical history. Id. Moreover, the physician’s assistant who
conducted the examination, Michael Benoit, swore by affidavit that “[Plaintiff] denied any medical
issues for which he had been treated medically.” (Rec. Doc. 33-4, p. 68). Benoit also stated that
Plaintiff particularly denied any past ailments regarding his neck, back, extremities, and spine. Id.
Plaintiff argues that he does not recall Benoit asking questions about his conditions. When
questioned about the incident during his deposition, Plaintiff states the following:

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Q: [D]o you remember [Benoit] asking you questions about . . . your condition?
A: I don’t remember. No.
Q: I mean, it did happen?
A: Well yeah. I mean, obviously it happened. I don’t remember.
(Rec. Doc. 35-1, pp. 34-35).
Plaintiff relies on his vague recollection of the event to combat the notion that he concealed preexisting conditions. However, as shown above, Plaintiff concedes that he was asked questions
about his pre-existing conditions. On the other hand, Defendants provide medical records and a
sworn affidavit detailing the particular injuries that were asked about as well as Benoit’s note that
Plaintiff “denied any other significant [prior medical history].” (Rec. Doc. 33-4).
Plaintiff’s final argument is that he subjectively believed he did not have any significant
past medical history because he was not experiencing any ailments on the day of the exam.
Plaintiff relies heavily on the fact that he excelled in his pre-employment physical examinations
and the Functional Capacity Examination. He also argues that while he had been seen irregularly
for generalized back, neck, and shoulder soreness, none of these visits resulted in surgery
recommendations. However, this Court has previously noted that the intentional concealment
prong “neither turns on credibility nor requires a subjective determination.” Hardison v. Abdon
Callais Offshore, LLC, No. 11-2053 (E.D. La. 2012), 2012 WL 2878636 (citing Brown, 410 F.3d
at 175). Rather, the inquiry is essentially objective. Therefore, failing to disclose medical
information in an interview that is designed to elicit such information is enough to meet the
“intentional concealment” prong. Id. (citing Brown, 410 F.3d at 174).

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The record reveals that Plaintiff had pre-existing medical conditions and concealed such
conditions during the hiring process. The Court finds that Plaintiff intentionally concealed medical
information from his employer during the hiring process.
2. Materiality
Defendants contend that Plaintiff’s misrepresentations were material to his hiring decision.
According to the Fifth Circuit, “[t]he fact that an employer asks a specific medical question on an
application, and that inquiry is rationally related to the applicant’s physical ability to perform his
job duties, renders the information material for the purposes of the analysis.” Brown, 410 F.3d at
175.
According to the affidavit of Ed Devoltz, QHSE (quality, health, safety, and environment)
Specialist for Schlumberger, the company “has a strict hiring policy that only those individuals
who are capable of unrestricted full-duty capacity can be considered for such employment.” (Rec.
Doc. 33-4, p. 87). Devoltz also states that “if the company was aware of any individual who had
been undergoing medical treatment for any back, neck, and/or other spinal condition for a period
of several years, then the company would not consider that individual eligible for offshore duty.”
Id.
Plaintiff relies heavily on the fact that he passed all physical tests on the day of the
examination. This argument is irrelevant. The Fifth Circuit discredited the same argument in
Brown when the Plaintiff in that case argued that his concealment was not material because he
could perform heavy labor tasks for his first few months on the job. Brown, 410 F.3d at 175.
Schlumberger based its hiring decision (at least, in part) upon whether the applicant had significant
previous medical issues, not solely on whether the applicant could complete difficult manual labor
tasks at the time of hiring. Id.

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The Court finds that the second factor of the McCorpen test is met. Plaintiff’s history of
medically-treated physical ailments are rationally related to his physical ability to perform his job
duties.

Moreover, Plaintiff’s truthful disclosure of his pre-existing conditions would have

materially affected Defendant’s decision to hire him.
3. Connection Between Injuries
The final requirement under the McCorpen defense involves the connection between the
withheld medical information and the injury that is eventually sustained. Brown, 410 F.3d at 175.
In establishing the requisite causal relationship, “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.” Id. at 176.
To assess the connection between injuries, the Court must first analyze which conditions
existed before the accident. Medical records show that Plaintiff suffered “significant left AC joint
arthritis and inflammation” on June 17, 2013, which resulted in an injection to his left shoulder.
(Rec. Doc. 33-4, p. 42). Additional medical records show that on October 21, 2013, Plaintiff was
suffering from a “one-year history of neck pain as well as some interscapular pain and numbness
in his left arm.” (Rec. Doc. 33-4, p. 43). Moreover, the deposition of Dr. Rahul Vohra, one of
Plaintiff’s treating physicians, shows that Plaintiff had been treated for neck pain since 2010. (Rec.
Doc. 33-4). Dr. Vohra’s deposition also noted that Plaintiff’s neck, back, and shoulder pains had
been progressively worsening at the time Dr. Vohras met with Plaintiff in October of 2013. Id.
Plaintiff alleges the accident aboard the Deepwater Champion resulted in injuries to two
different body parts. He claims to have suffered an injury to his neck and a torn rotator cuff in his
left shoulder. (Rec. Doc. 33-4, pp. 3-18). Plaintiff contends that the shoulder ailments he suffered
before starting with Schlumberger have no causal connection with the torn rotator cuff caused by

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the alleged accident. The Court disagrees. Plaintiff argues that there is no causal connection
between his pre-employment shoulder injuries and his post-accident shoulder injuries because
“[Plaintiff] had never suffered a torn rotator cuff prior to the injury on the rig.” (Rec. Doc. 35, p.
18). However, the law does not require that the pre-accident injuries and the post-accident injuries
mirror each other. Such a standard would be impracticable. The law only requires that “the
previous injury and the new injury occurred in the same location on the body.” Brown, 410 F.3d
at 176.
The same is true of Plaintiff’s neck injury. Medical records specifically show that Plaintiff
complained of and was being treated for neck pains approximately two weeks before he was hired.
Moreover, Dr. Vohra specifically noted that Plaintiff visited his office on October 21, 2013
complaining of “a one-year history of neck pain.” (Rec. Doc. 33-4, p. 13). Therefore, a connection
exists between Plaintiff’s concealed medical information and the neck and shoulder injuries that
the Plaintiff sustained during the alleged accident. Accordingly, this Court finds that the third
McCorpen prong is satisfied by the neck and shoulder injuries pre-existing Plaintiff’s employment
with Schlumberger.
IV.

Conclusion

Defendants have mounted a successful McCorpen defense. The Court finds that Plaintiff
intended to conceal his medical conditions, that the concealed medical conditions were material to
Schlumberger’s decision to hire Plaintiff, and that a connection existed between the withheld
medical information and the injury complained of in the lawsuit.

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Accordingly;
IT IS ORDERED that Defendant’s Motion for Partial Summary Judgment (Rec. Doc.
33) is hereby GRANTED. Defendant may cease maintenance payments to Plaintiff.
IT IS FURTHER ORDERED that Plaintiff’s claims, including punitive damages, and
attorney’s fees related to his claims for maintenance and cure benefits are DISMISSED WITH
PREJUDICE.
, 2017
__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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