Andrews et al v. Lomar Corp. Ltd. et al
ORDER AND REASONS granting 15 Motion for Summary Judgment and to exclude the medical causation opinion of Dr. Bourgeois. Plaintiffs' claims are hereby dismissed. Signed by Judge Martin L.C. Feldman on 6/19/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CRAIG C. ANDREWS, ET AL.
LOMAR CORP. LTD., ET AL.
ORDER AND REASONS
Before the Court is a motion for summary judgment and motion
to exclude Dr. Bourgeois’s medical causation opinion, filed by
defendants MS Maine Trader GMBH & Co. and Lomar Shipping LTD.
the reasons that follow, the motion is GRANTED.
This litigation arises out of a Mississippi River pilot’s
allegations that he suffered a career-ending hip injury climbing
an unsafe ladder while boarding the MARINE TRADER to take over
Craig C. Andrews worked as a river pilot from 1990 until he
retired in June or July 2016.
Throughout his 25 year career, he
regularly climbed ladders to board thousands of ships.
In 2009, Dr. Chad Millet performed bilateral hip replacements
on Mr. Andrews. 1
Mr. Andrews continued working as a full-time
pilot with his artificial hips.
When Dr. Millet saw Mr. Andrews
on August 24, 2010, x-rays showed that the acetabular component of
the left hip replacement (the socket portion made up of a metal
shell and a polyethylene liner) had some verticality to it.
Millet was concerned about possible polyethylene wear.
polyethylene liner wears, Dr. Millet has opined, this can cause
metal rubbing on metal, which can lead to a fracture of the
Sometime in December 2015, Mr. Andrews called to schedule an
appointment with Dr. Millett; the appointment was scheduled for
January 28, 2016.
Four days before his pre-scheduled appointment
with Dr. Millet, on January 24, 2016, Mr. Andrews was assigned to
pilot the M/V TRADER in Pilottown, Louisiana in Plaquemines Parish
to the Port of New Orleans.
Mr. Andrews boarded the MAINE TRADER
midstream using an industry-standard combination ladder, which
employed both a pilot ladder (also known as a Jacob’s ladder) and
the ship’s accommodation ladder.
He stepped from the pilot boat
Mr. Andrews first saw Dr. Millet, a board-certified orthopedist,
in late 2008 for avascular necrosis of the right hip.
successful right hip replacement surgery in January 2009. He then
underwent left hip replacement surgery in September 2009 to address
the avascular necrosis he developed in his left hip.
onto the ship’s pilot ladder and started climbing up.
climbed up the pilot ladder, he reached a point where he had to
transition from the top of the pilot ladder onto the ship’s
accommodation ladder by stepping with his right foot onto the
accommodation ladder’s lower platform.
After he stepped onto the
accommodation ladder platform and started walking up the steps of
the accommodation ladder, he says he heard clicking in his left
He did not feel any pain at that time.
to the ship’s crew.
Nor did he complain
He never requested that an accident report be
Instead, he continued working without complaint.
Mr. Andrews safely piloted the vessel for seven hours before
he left the ship by climbing down the same combination ladder
midstream at Poydras.
Mr. Andrews did not seek medical treatment
when he left the ship.
But four days later, he did go to his
previously-scheduled January 28, 2016 appointment with Dr. Millet.
On the sign-in sheet for his January 28 appointment with Dr.
Millet, Mr. Andrews indicated that his visit was not the result of
As described in the state court petition: Mr. Andrews had to
maneuver through the hole in the platform and then continue up the
side of the vessel using an accommodation ladder or gangway. As
he climbed from the top rung of the pilot ladder through the hole
in the platform, he was forced to reach out his right foot and
make an extended reach/split from the ladder to the side of the
platform, which he alleges created abnormal stress on his left
hip. Mr. Andrews alleges that his hip then felt “loose” and that
his hip “clicked.”
an injury, it was not work-related, and that his symptoms had begun
two months earlier. When he saw Dr. Millet, Mr. Andrews complained
of clicking and triggering in his left hip, which he stated had
begun gradually, without injury, about two months earlier. 3
Andrews did not advise Dr. Millet that the onset of his symptoms
had occurred while boarding a ship earlier that week. 4
Left hip x-rays taken on January 28, 2016 show significant
wear of the polyethylene liner with some superior migration of the
head and some subluxation (in layman’s terms, the head was not
located in the middle of the socket).
As a result, almost one
month later on February 24, 2016, Dr. Millet performed left hip
revision surgery, which involved replacing the socket and ball in
the left hip.
During the surgery, Dr. Millet observed that the
superior portion of the polyethylene liner was fractured; such a
fracture could be caused by a high-impact injury, or steady wear
Dr. Millet could not tell what caused the fracture by
observing it during the surgery, but Dr. Millet has opined that he
believes that the fracture caused Mr. Andrews’s left hip clicking
The chart note dated February 2, 2016 states: “The patient is a
55 year old male who presents with complaints of painful clicking
or triggering in the left hip that occurs intermittently.
onset was gradual without injury about two months ago.”
4 Dr. Millet testified that, if Mr. Andrews had attributed his hip
issue to a specific event, he would have documented that in his
and pain that Mr. Andrews had told him had begun two months before
his late January 2016 appointment.
Dr. Millet saw Mr. Andrews twice more in 2016: on March 22
and on May 24.
When Mr. Andrews again completed a sign-in sheet
for the May 24 visit, he stated on that form (again) that his visit
was not due to an injury and was not work-related.
made no determination as to Mr. Andrews’s physical limitations or
whether he could resume work.
To determine if he could be released back to work after his
hip revision surgery, Mr. Andrews had an appointment on March 25,
2016 with Dr. Bourgeois, who was trained in general surgery and
currently practices occupational medicine and dive medicine.
Bourgeois did not believe that Mr. Andrews could return to work at
A few weeks later on April 13, 2016, Dr. Bourgeois
completed a disability packet for Sun Life Assurance Company of
Canada, Mr. Andrews’s disability insurer, stating that Mr. Andrews
was permanently disabled from working in his previous position as
a river pilot.
Dr. Bourgeois sent a letter to the insurance
company the next day, stating that Mr. Andrews is not fit for duty
as a river pilot and that this status is “more likely than not”
Nine days later, however -- when Mr. Andrews returned
to see Dr. Bourgeois on April 22, 2016 to undergo a Coast Guard
physical examination -- Dr. Bourgeois declared to the Coast Guard
That same day, Dr. Bourgeois declared that Mr.
Andrews passed all aspects of a functional capacity evaluation
with no restrictions. Dr. Bourgeois has not seen Mr. Andrews since
April 22, 2016.
A couple months later, Mr. Andrews retired from
On August 22, 2016, Mr. Andrews and his wife, Beverly R.
Andrews, sued Lomar Corp. Ltd., Lomar Shipping Ltd., and HapagLloyd, AG in state court, seeking to recover damages for his
allegedly career-ending hip injury.
The plaintiffs allege that
the pilot ladder of the MAINE TRADER was rigged in violation of
federal laws and regulations; the defendants were negligent in
rigging the ladder in violation of safety standards; the defendants
negligently failed to warn him of the ladder’s unsafe condition;
and the MAINE TRADER was unseaworthy. Mr. Andrews seeks to recover
damages for his loss of wages, disability, disfigurement, and
future pain and suffering, and his wife seeks to recover for loss
Invoking the Court’s diversity jurisdiction, the
Dr. Bourgeois’s opinions were based on his examination of Mr.
Andrews on March 25, 2016 and his review of Dr. Millet’s records.
case was removed to this Court.
On September 29, 2016, the
plaintiffs amended the complaint to name the correct entities as
defendants, MS MAINE TRADER GMBH & Co. (as owner of the MAINE
TRADER) and Lomar Shipping LTD. and, thereafter, moved for and was
granted dismissal of Hapag-Lloyd AG.
On January 24, 2017, Mr. Andrews saw Dr. Millet, who opined
that Mr. Andrews was “doing fine with his hip” such that he could
resume the same activities he was able to do after his first hip
Dr. Kevin Watson, an orthopedist, performed an independent
medical examination of Mr. Andrews at the defendants’ request on
January 26, 2017.
Dr. Watson has opined that Mr. Andrews’s left
hip revision surgery was due to significant polyethylene wear “that
is not related to any injury at work...I do not see medical
causation for his left hip problem due to work injury.”
Dr. Millet’s deposition was taken on February 22, 2017.
Dr. Watson, Dr. Millet testified that the left revision surgery he
performed was necessary due to polyethylene wear rather than a
Dr. Millet has stated that he expected that
Mr. Andrews would need a revision surgery following his 2009 hip
replacements because he was young when he had his hips replaced,
he was active, and he was overweight.
That Mr. Andrews was
component in the left hip to accelerate wear, Dr. Millet has
opined, the seven-year period between the left hip replacement
surgery and the revision surgery was within the time range he would
expect to see.
Dr. Millet has specifically testified that he
cannot causally relate Mr. Andrews’s left hip revision to the
alleged incident boarding the MAINE TRADER on January 24, 2016. 6
During his deposition on March 7, 2017, Dr. Bourgeois admitted
that he is not familiar with Mr. Andrews’s condition before he
climbed the ladder and, therefore, he has no opinion on whether
climbing the ship’s ladder necessitated Mr. Andrews’s left hip
Dr. Bourgeois admitted that because Dr. Millet
performed the left hip revision surgery, he is in a better position
to render an opinion on medical causation, and Dr. Bourgeois
deferred to Dr. Millet on the medical causation issue.
As to whether the condition he observed on Mr. Andrews’s prerevision surgery x-ray could be “the result of an acute, one-time
type of event,” Dr. Millet stated “It’s unusual, but I’ve seen it
happen before.” When asked whether it was more probable than not
in Mr. Andrews’s case that it was not the result of a single
incident, Dr. Millet answered: “That’s hard to answer. I would say
more likely than not [the significant wear of the polyethylene
liner] was from repetitive wear, but this may be something where
it’s worn down, and one episode can fracture it, and, you know, in
my eyes, that seems a little more likely.” Asked again later what
caused the need for hip revision surgery, Dr. Millet responded “I
think it was more the polyethylene wear.”
Dr. Bourgeois testified:
Q. Do you have any opinions in this case about medical
causation, in other words, what caused his hip to be in
the condition it was when you saw him in March and April
I don’t have enough information to do that.
Q. Would you defer to Dr. Millet on the issue of medical
causation considering that Dr. Millet has treated Mr.
Andrews since 2009, saw him both before and after the
revision surgery in 2016?
Counsel for plaintiff then gave Dr. Bourgeois a scenario [about a
person ascending a ladder through a “platform like a trap door”
transferring the weight”]:
Q. And that type of motion could cause that hip to break
and to damage that collar?
I think it could.
And then upon walking immediately thereafter, the
individual heard a clicking or felt a clicking in his
That would be a consistent thing if that would
I would say so.
When defense counsel re-examined Dr. Bourgeois:
Q. You were given a scenario by counsel...but in this
particular case you don’t have an opinion on medical
causation as to whether this climbing of the ladder had
anything to do with the need for the revision surgery,
I don’t have that knowledge.
Q. Because you don’t know what his condition was before
he climbed that ladder?
I didn’t see him immediately after he
climbed the ladder or, let’s say, prior to his second
revision. So I don’t know what scenario happened.
Q. [Y]ou would
Almost three weeks after giving his deposition, Dr. Bourgeois
wrote a letter to Mr. Andrews’s counsel.
In this March 24, 2017
“report,” as plaintiff characterizes it, Dr. Bourgeois opined that
climbing the pilot ladder “could have” injured Mr. Andrews’s left
At your request I have reviewed that (sic) depositions
of Dr. Chad Millet, Mr. Craig Andrews, and the
photographs submitted of the worksite in question. The
fracture of the acetabular component of Mr. Andrew’s
artificial hip was noted to involve the superior portion
of the ‘socket’ by Dr. Millet. Mr. Andrew’s left leg
position as noted in the photograph showed full
extension and a requirement for him to push off with
this leg to complete the step up and onto the platform.
This mechanism provided significant force and axial
loading of the hip arthroplasty that could have resulted
in fracture of the antero-superior aspect of the
‘socket’ of the left hip arthroplasty.
This type of
difficult and compromised physical position and demand
speaks to the reason why I have not cleared him to return
to full duty as a Mississippi River pilot. This also
coincides with Mr. Andrews’ testimony regarding the
onset of clicking in the left hip that eventually
prompted his return to Dr. Millet.
The defendants now move for summary judgment dismissing the
plaintiffs’ claims on the ground that medical causation cannot be
Bourgeois’s recent medical causation opinion.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.
In this regard,
the non-moving party must do more than simply deny the allegations
raised by the moving party.
See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.
Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
scintilla of evidence."
Hathaway v. Bazany, 507 F.3d 312, 319
(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, "[i]f the evidence is merely colorable . . . or is not
significantly probative," summary judgment is appropriate.
249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994) (“Unauthenticated documents are improper as summary judgment
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).
the Court must "resolve factual controversies in favor of the
nonmoving party," it must do so "only where there is an actual
controversy, that is, when both parties have submitted evidence of
Antoine v. First Student, Inc., 713 F.3d
824, 830 (5th Cir. 2013)(internal quotation marks and citation
The parties agree that an essential element of Mr. Andrews’s
negligence and unseaworthiness claims against the defendants is
The defendants submit that they are entitled
to judgment as a matter of law because the plaintiff has no
evidence that his left hip injury was, more probably than not,
caused when he boarded the MAINE TRADER on January 24, 2016.
(presumably the unsworn letter dated March 24, 2017 that postdates Dr. Bourgeois’s sworn deposition) creates a genuine dispute
combination ladder on the MAINE TRADER because Dr. Bourgeois states
that the climbing maneuver “could have” resulted in fracture of
his hip replacement hardware.
The defendants urge the Court to
exclude Dr. Bourgeois’s opinion that Mr. Andrews’s “left leg
position as noted in the photograph [supplied by plaintiff’s
counsel] could have resulted” in the left hip fracture on the
grounds that Dr. Bourgeois lacks the expertise to render a medical
causation opinion and his opinion is unreliable and irrelevant.
The only issue for this Court to resolve 7 is whether the plaintiffs
have submitted competent medical evidence that it is more probable
than not that Mr. Andrews’s injuries were caused by the ladder
They have not.
When medical causation issues are not within the common
relationship between an accident and the subsequent injury is
“whether the plaintiff proved through medical testimony that it is
more probable than not that the subsequent injuries were caused by
Monsanto v. Goodyear Tire & Rubber Co., 650 So.2d
In their opposition papers, the plaintiffs attempt to invoke a
presumption dissolving their obligation to prove medical causation
and even inaccurately characterize the record by suggesting that
“[i]t is an uncontested fact that the accommodation ladder violated
regulations regarding the rigging of a pilot ladder and failed to
comply with applicable safety standards.” The Pennsylvania Rule
applies to transform this allegedly “uncontested” violation, the
plaintiffs suggest, into a presumption that the violations caused
Mr. Andrews’s injury. This issue is not only inadequately briefed
on the law, but the plaintiffs fail to persuade the Court that an
uncontroverted factual predicate exists to apply the Pennsylvania
Rule. The plaintiffs likewise fail to persuade the Court that it
is necessary to indulge a presumption where, as here, “the parties
have introduced evidence to dispel the mysteries that gave rise to
the presumptions.” In re Mid-South Towing Co., 418 F.3d 526, 531
(5th Cir. 2005).
Because no party moves for or is entitled to
judgment as a matter of law regarding the applicability of the
Pennsylvania Rule here, the Court need not resolve whether it would
757, 759 (La. 2/20/95); Chavers v. Travis, 902 So.2d 389, 394
(La.App. 4 Cir. 2005)(expert medical testimony is necessary, and
lay testimony is insufficient, “when the conclusion regarding
medical causation is not within common knowledge.”).
plaintiffs do not appear to dispute that determining whether an
artificial hip fracture was caused by the normal progression or
wear of an artificial hip or instead caused by a trauma presents
complex legal and medical issues.
The medical evidence in the summary judgment record supports
the defendants’ causation theory, that is, that the plaintiff’s
hip surgery was not necessitated from a trauma he suffered in
climbing the accommodation ladder, but, rather, caused by normal
wear of his artificial hip.
To create a genuine issue for trial
competent admissible medical evidence that his hip surgery was
caused by the injury he says he suffered climbing the accommodation
ladder on the MAINE TRADER.
In support of their causation theory,
the plaintiffs submit an unsworn letter from a previously-deposed
description of his leg position in climbing and maneuvering the
ladder “could have resulted in fracture of the antero-superior
aspect of the ‘socket’ of the left hip arthroplasty.”
It is helpful to consider the record timeline leading up to
Dr. Bourgeois’s March 2017 letter “opinion.”
Taking the record in
the light most favorable to Mr. Andrews:
Mr. Andrews had hip replacement surgeries in 2009.
Mr. Andrews scheduled an appointment with Dr. Millet at least
a month before the alleged January 24 incident.
On August 24, 2010, when Dr. Millet saw Mr. Andrews, x-rays
replacement (the socket portion made up of a metal shell and
a polyethylene liner) had some verticality to it.
was concerned about possible polyethylene wear.
following his piloting duty on the MAINE TRADER.
appeared for his previously-scheduled appointment with Dr.
Millet four days after he piloted the MAINE TRADER; there is
nothing in the sign-in sheet or medical chart to suggest that
Mr. Andrews’s complaints regarding his hip were attributed to
climbing the MAINE TRADER’s accommodation ladder.
Neither Dr. Watson nor Dr. Millet attribute Mr. Andrews’s
need for hip revision surgery to a specific incident; rather,
both have opined that the left revision surgery he performed
was necessary due to polyethylene wear.
Dr. Bourgeois deferred to Dr. Millet’s opinion on medical
Now, the plaintiffs offer a new “opinion” by Dr. Bourgeois in an
attempt to create a genuine dispute as to the material fact of
The Court need not consider whether this
“opinion” should be excluded under the Federal Rules of Evidence,
inadmissible under Rule 56. 8
dispute of fact must be supported by materials in the record.
Although “[a] formal affidavit is not required,” Rule 56 still
verification, or statement subscribed in proper form as true under
penalty of perjury to substitute for an affidavit.”
Advisory Committee Notes to Rule 56(c)(4).
Here, in an attempt to
support a fact on which they will bear the burden of proof at
trial, the plaintiffs submit an unsworn letter by a doctor who
previously offered testimony under oath during a deposition.
It is this Court’s practice to consider motions to exclude expert
testimony when such testimony is offered during trial, outside the
The Court will not advise counsel as to the
potential admissibility of Dr. Bourgeois’s testimony where, as
here, there is no competent summary judgment evidence in the record
memorializing Dr. Bourgeois’s purported opinion on medical
plaintiffs fail to suggest how an unsworn letter directed to
plaintiffs’ counsel that is offered for the truth of the matters
asserted could be presented in a form that would be admissible in
The unsworn letter is not admissible summary judgment
evidence and the Court will disregard it. 10
Thus, with no medical evidence suggesting that Mr. Andrews’s
latest hip surgery was prompted by his work on the MAINE TRANDER,
absent from the record is a genuine dispute concerning medical
This case is distinguishable from those in which each
evidence of what caused the plaintiff’s injury.
Here, no medical
doctor has concluded that Mr. Andrews’s hip fracture was caused by
trauma climbing the accommodation ladder. 11
The only evidence on
Presumably, the plaintiffs will offer Dr. Bourgeois as a witness
at trial, but the Court need not speculate. It is the obligation
of counsel to comply with the clear summary judgment procedure.
See Fed. R. Civ. P. 56(c)(2). Insofar as the plaintiffs expect
the Court to consider incompetent and inadmissible summary
judgment evidence as a mere placeholder for trial testimony, the
Court declines. To indulge a wait-and-see approach would undermine
the summary judgment process, which demands that the non-moving
party do more than simply deny the allegations raised by the moving
The plaintiffs, who have supplemented their opposition papers,
have had ample opportunity to submit competent admissible evidence
in support of their burden to prove medical causation.
11 The Court observes that the proffered “opinion” that the incident
“could have resulted” in the fracture of the artificial hip is
rather equivocal. However, it is unnecessary (indeed, it would be
advisory) for the Court to decide whether the proffered opinion,
medical causation are two doctors suggesting that the hip revision
surgery was necessary due to wear and tear of the hip replacement
and one doctor’s (incidentally, Dr. Bourgeois’s) testimony that he
lacks sufficient information to render a medical causation opinion
and therefore defers to Dr. Millet’s opinion on medical causation.
Because there is no medical expert opining that Mr. Andrews’s left
hip injury was, more likely than not, caused by the MAINE TRADER’s
judgment burden by showing its entitlement to relief based on a
complete absence of record evidence to support the mandatory
element of medical causation.
Nothing submitted by plaintiff
trumps the mandate of Rule 56 regarding a “genuine” dispute as to
a “material fact.”
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendants’ motion for summary judgment and to exclude the
medical causation opinion of Dr. Bourgeois is hereby GRANTED.
Because the plaintiffs have failed to submit admissible evidence
entitled to judgment as a matter of law, and the plaintiffs’ claims
if competent and admissible, would satisfy the plaintiff’s
preponderance burden, that is, whether the opinion is evidence
that persuades the fact finder that the plaintiffs’ claim is more
likely true than not true.
are hereby dismissed.
All counsel should be mindful of 28 U.S.C.
§ 1927. 12
New Orleans, Louisiana, June 19, 2017
MARTIN L.C. FELDMAN
U.S. DISTRICT JUDGE
The Court may not and has not made any credibility determinations
Nevertheless, the Court is compelled to articulate its concern
that one or more of the parties or witnesses to this case fails to
appreciate the criminal consequences of lying under oath. Counsel
should be aware that this Court will not hesitate to refer anyone
suspected of perjury to the United States Attorney’s Office and
related agencies for investigation.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?