Andrews et al v. Lomar Corp. Ltd. et al

Filing 54

ORDER AND REASONS denying 46 Motion to reconsider or for New Trial. Signed by Judge Martin L.C. Feldman on 8/9/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CRAIG C. ANDREWS, ET AL.

CIVIL ACTION

V.

NO. 16-14842

LOMAR CORP. LTD., ET AL.

SECTION F

ORDER AND REASONS
Before the Court is the plaintiffs’ motion to reconsider or
for new trial.

For the reasons that follow, the motion is

DENIED.

Background
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
piloting duties.
The Court assumes familiarity with the facts of the case as
summarized in the Court’s June 19, 2017 Order and Reasons.

Craig

C. Andrews worked as a river pilot for 25 years, regularly climbing
ladders to board thousands of ships.

During his career as a river

pilot, in 2009, Mr. Andrews underwent bilateral hip replacements.
1

Dr. Chad Millet performed the surgeries.

Mr. Andrews continued

working as a full-time pilot with his artificial hips.
Years later 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

onto the ship’s pilot ladder and started climbing up.

As he

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
hip.

He did not feel any pain at that time.

to the ship’s crew.
completed.

Nor did he complain

He never requested that an accident report be

Instead, he continued working without complaint.

2

Mr. Andrews safely piloted the vessel for seven hours before
he left the ship by climbing down the same combination ladder
midstream at Poydras.
when he left the ship.

Mr. Andrews did not seek medical treatment
But four days later, he did attend the

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
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.
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
over time.

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
3

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.

Dr. Millet

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.

Dr. Bourgeois did not believe that Mr.

Andrews could return to work at that time.

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” permanent.

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 Mr. Andrews “passed all
4

aspects of the USCG physical requirements.”
Bourgeois declared
functional

capacity

that

Mr.

Andrews

evaluation

That same day, Dr.

passed

with

no

all

aspects

restrictions.

Bourgeois has not seen Mr. Andrews since April 22, 2016.

of

a

Dr.

A couple

months later, Mr. Andrews retired from river piloting.
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. 1

The plaintiffs alleged 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.

The case was removed to

this Court.
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
replacement surgery. Dr. Millet’s deposition was taken on February

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.
5
1

22, 2017.

Like Dr. Watson, 2 Dr. Millet testified that the left

revision surgery he performed was necessary due to polyethylene
wear rather than a specific accident.
he

expected

that

Mr.

Andrews

would

Dr. Millet has stated that
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 overweight, combined with the verticality of the
acetabular 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.
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
revision surgery.

Dr. Bourgeois admitted that because Dr. Millet

performed the left hip revision surgery, he is in a better position

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.”
6
2

to render an opinion on medical causation, and Dr. Bourgeois
deferred to Dr. Millet on the medical causation issue.
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
hip.

He states:
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 moved for summary judgment dismissing the
plaintiffs’ claims on the ground that medical causation cannot be
proved, and they simultaneously moved to exclude Dr. Bourgeois’s
medical causation opinion.

On June 19, 2017, the Court granted

the motion, finding that the plaintiffs failed to submit competent
7

medical evidence that it is more probable than not that Mr.
Andrews’s injuries were caused by the ladder incident.
in favor of defendants issued on June 21, 2017.

A judgment

The plaintiffs

now move for a new trial or reconsideration of the Court’s June 19
Order and Reasons and June 21 Judgment in favor of the defendants.
I.
Rule 59(e) allows a court to alter or amend a judgment if the
movant establishes a manifest error of law or presents newly
discovered evidence.

Fed. R. Civ. P. 59(e). 3 Rule 59(e) “serve[s]

the narrow purpose of allowing a party to correct manifest errors
of law or fact to present newly discovered evidence[;]” it is “an
extraordinary remedy that should be used sparingly.”

Austin v.

Kroger Texas, L.P.,--- F.3d ---, No. 16-10502, 2017 WL 1379453, at
*8 (5th Cir. Apr. 14, 2017)(quoting Templet v. HydroChem Inc., 367
F.3d 473, 479 (5th Cir. 2004)).
“A Rule 59(e) motion ‘calls into question the correctness of
a judgment.’”

Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th

A motion seeking reconsideration or revision of a district court
ruling is analyzed under Rule 59(e), if it seeks to alter or amend
a final judgment, or Rule 54(b), if it seeks to revise an
interlocutory order.
See Cabral v. Brennan, 853 F.3d 763, 766
(5th Cir. 2017)(determining that the district court’s erroneous
application of the “more exacting” Rule 59(e) standard to a motion
granting partial summary judgment was harmless error given that
the appellant was not harmed by the procedural error).
8
3

Cir. 2004)(quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)).

Because of the interest in finality, Rule 59(e)

motions may only be granted if the moving party shows there was a
mistake of law or fact or presents newly discovered evidence that
could not have been discovered previously.

Id. at 478-79.

Rule

59 motions should not be used to relitigate old matters, raise new
arguments, or submit evidence that could have been presented
earlier in the proceedings.

See id. at 479; Rosenblatt v. United

Way of Greater Houston, 607 F.3d 413, 419 (5th Cir. 2010)(“a motion
to alter or amend the judgment under Rule 59(e) ‘must clearly
establish either a manifest error of law or fact or must present
newly discovered evidence’ and ‘cannot be used to raise arguments
which

could,

and

should,

have

been

made

before

the

judgment

issued’”)(citing Rosenzweig v. Azurix Corp., 332 F.3d 854, 864
(5th Cir. 2003)(quoting Simon v. United States, 891 F.2d 1154,
1159 (5th Cir. 1990)).
II.

The plaintiffs urge the Court to reconsider its June 19, 2017
Order

and

defendants,

Reasons
noting

granting
these

summary

“alleged

judgment
errors”:

in
there

favor
are

of

the

genuine

issues of material fact as to causation of the injury; the Court
failed to consider the totality of the evidence, including Dr.
9

Bourgeois’s

“expert

report”;

the

Court

failed

to

apply

The

Pennsylvania Rule; and the Court failed to apply the Housley
presumption.

The defendants counter that the plaintiffs fail to

identify a mistake of law or fact and, instead, simply rehash prior
arguments and prior evidence, making reconsideration unwarranted.
The Court agrees.
On June 19, 2017, the Court granted the defendants’ motion
for summary judgment after determining that the plaintiffs had
failed to submit competent evidence to satisfy their burden of
proving

(or

identifying

a

regarding) medical causation.

genuine

dispute

of

material

fact

Although the plaintiffs now ask the

Court to reconsider its ruling, they fail to identify or submit
any evidence that would satisfy their burden on medical causation;
there is still no medical opinion in the record that the ladder
more

likely

than

not

caused

necessitating revision surgery.

Mr.

Andrews’s

hip

condition

Instead, the plaintiffs simply

re-urge their arguments, which the Court rejected.
First, the plaintiffs argue that Dr. Bourgeois’s unsworn
letter opining that the ladder “could have” caused a hip fracture,
if considered, would carry the plaintiffs’ burden of identifying
a genuine dispute of material fact concerning medical causation.
The Court disagrees.

Even assuming that the plaintiffs put Dr.
10

Bourgeois’s unsworn letter in admissible form, which they still
have not done, Dr. Bourgeois’s opinion falls short of meeting the
plaintiffs’

preponderance

burden

on

medical

causation.

Dr.

Bourgeois’s equivocation -- that the ladder incident “could have”
caused Mr. Andrews’s hip condition -- suggests a mere possibility.
In suggesting that the probabilities are at best evenly balanced,
the opinion is no better than speculation or guesswork, which is
insufficient to meet the plaintiffs’ burden.

Cf., e.g., Rooney v.

Nuta, 267 F.2d 142, 147 (5th Cir. 1959)(“The evidence relied upon
established nothing more than a possibility that the recurring
discharge of the batteries was caused by a short circuit in the
wiring of the vessel.
facts

is

warranted

in

It is not sufficient that the finder of
concluding

that

the

alleged

negligent

condition could possibly have caused the damage claimed. It is
necessary that the proof go further and establish the conclusion
as

a

reasonable

probability.”);

Hancock

v.

Diamond

Offshore

Drilling, Inc., No. 07-3200, 2008 WL 3501015, at *4 (E.D. La. Aug.
8, 2008); Johnson v. Horizon Offshore Contractors, Inc., No. 0610689, 2008 WL 916256, at *5 (E.D. La. Mar. 31, 2008)(the plaintiff
“has presented no evidence whatsoever to show a causal connection
between his illness and his work for [the defendant].

Speculation

and conjecture...is insufficient to show that there is more than
a mere possibility that a causal relationship exists between [the
11

defendant’s] alleged negligence and [the plaintiff’s] injury.”);
Fournier v. Petroleum Helicopters, Inc., 665 F. Supp. 483, 486
(E.D. La. 1987)(citing W. Page Keeton, Prosser and Keeton on Torts,
263, 269 (5th ed. 1984)0; Moss v. Technology Ins. Co., No. 14-165,
2015 WL 4167493, at *2 (W.D. La. July 9, 2015)(testimony that
trauma could cause an aneurysm “is not the same as testimony that
the motor vehicle in this case caused the [plaintiff’s] aneurysm.
The medical testimony in this matter is insufficient to show that
it was more likely than not that [the plaintiff’s] aneurysm was
caused by the accident.”).

As before, there is no medical expert

opining that Mr. Andrews’s left hip injury was, more likely than
not, caused by the MAINE TRADER’s accommodation ladder; thus, the
defendants

carried

their

summary

judgment

burden

based

on

a

complete absence of record evidence to support the mandatory
element of medical causation.
Second,

the

plaintiffs

Reconsideration is not warranted.
contend

that

reconsideration

is

warranted because the Court failed to apply The Pennsylvania Rule,
which would have shifted the burden of disproving medical causation
to

the

defendants.

The

plaintiffs

simply

recycle

the

same

arguments that this Court considered and rejected when summary
judgment was granted in favor of the defendants.

12

The plaintiffs

fail to persuade the Court that it erred in declining to apply The
Pennsylvania Rule. 4
Finally, for the first time, the plaintiffs advance arguments
regarding the defendants’ liability for aggravating Mr. Andrews’s
preexisting hip trouble.
urge

the

Court

to

Also for the first time, the plaintiffs

apply

a

different

presumption

causation, the so-called Housley presumption.

regarding

In Housley v.

Cerise, the Louisiana Supreme Court held that the fact finder in
a tort case may presume a causal relationship between an incident
and an injury if the plaintiff proves: (1) before the incident, he
was in good health; (2) after the incident symptoms of the injury
appeared and continuously manifested themselves; and (3) based on
medical evidence, circumstantial evidence, or common knowledge,
there is a reasonable possibility of causation between the incident
and the injury.

579 So. 2d 973, 980 (La. 1991)(citation omitted).

The plaintiffs could have advanced these arguments previously, but

The Court does not quarrel with the general principle invoked by
the plaintiffs, that is, that The Pennsylvania Rule, which
originally applied only to collisions between ships, now applies
to a variety of maritime accidents.
But the plaintiffs again
invoke case literature concerning whether to apply the rule in
allision cases, or in cases in which objects in navigable waters
were not properly marked.
The plaintiffs fail to invoke any
analogous case in which the rule was applied on facts similar to
those of record in this case, or when the rule (an evidentiary
presumption) was applied in spite of the fact that the parties
have presented evidence regarding causation.
Again, the
plaintiffs make the same unpersuasive arguments.
13
4

failed to do so.

Even if the Court was inclined to consider these

tardy and inconsistent arguments, the plaintiffs appear to concede
that the factual predicate for applying the Housley presumption is
not met on the summary judgment record in light of Mr. Andrews’s
preexisting hip condition.

And, insofar as the plaintiffs invoke

the settled legal principle that a defendant must compensate a
victim for the full extent of the aggravation when the defendant’s
tortious conduct aggravates the plaintiff’s preexisting condition,
the Court declines to consider this tardy argument.

The principle

of law advanced is sound, but the plaintiffs nevertheless failed
not only to advance this argument in their original papers, but
likewise failed to support it; the plaintiffs failed to submit
competent medical evidence establishing (or raising a fact issue
regarding) whether the ladder incident more probably than not
aggravated Mr. Andrews’s preexisting hip condition.
Accordingly, the plaintiffs’ motion to reconsider or for new
trial is hereby DENIED.
New Orleans, Louisiana, August __, 2017
9

________________________
MARTIN L.C. FELDMAN
U.S. DISTRICT JUDGE
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