Cenac Marine Services, LLC v. Clark

Filing 26

ORDER AND REASONS: ORDERED that Cenac's 16 Motion for partial summary judgment and 13 Motion for Leave to file a counterclaim are hereby GRANTED. The plaintiff's maintenance and cure claims and related punitive damages claims are hereby dismissed with prejudice. Cenac's counterclaim for an offset of maintenance and cure payments against any damages Clark recovers is to be filed in the record and will be tried with plaintiffs remaining Jones Act and unseaworthiness claims. Signed by Judge Martin L.C. Feldman on 3/22/2017. (Reference: 16-15256)(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CENAC MARINE SERVICES, LLC

CIVIL ACTION

V.

NO.
16-15029
C/W 16-15256*
*applies to
16-15256

JASON CLARK

SECTION "F"

ORDER AND REASONS
Before the Court are Cenac Marine Services’ two motions: (1)
motion for summary judgment on the plaintiff’s maintenance and
cure and related punitive damages claims and (2) motion for leave
to file a counterclaim. For the following reasons, both motions
are GRANTED.
Background
This is a consolidated case stemming from an injury to a
seaman.
On June 5, 2015, Jason Clark applied for a position as a
tankerman

with

Cenac

Marine

Services,

LLC.

As

part

of

the

application, Clark underwent a pre-employment physical at Houma
Family Practice, where he answered sixteen questions posed in the
physical form and fifty-two questions posed in a medical history
form. Clark signed the questionnaires and certified that the
information on the forms was correct and truthful. The only medical
history Clark indicated during this physical, both to the screening
1

doctor and on the questionnaires, was a prior hernia with repair.
He certified he had no prior back injuries or back pain.
On June 30, 2016, Clark completed a Cenac accident report
form. He indicated that he injured his back the day before, June
29, 2016, when he was moving a cross-over hose without the help of
his deckhand. The accident report form asked whether the employee
submitting the form had ever hurt the area of the body allegedly
injured in the report, meaning his back. Clark answered “no” to
this question, again certifying that he had never injured his back
before the June 29, 2016 accident.
After Cenac deposed Clark and in the course of discovery
following the filing of Clark’s lawsuit, Cenac obtained medical
records from Dyess Medical Center relating to its years-long
treatment of Clark. From these records Cenac learned that Clark
initially sought treatment from Dr. James Dyess after he was in a
vehicle

accident

that

occurred

in

May

2011.

Clark’s

first

appointment with Dr. Dyess was on August 25, 2011; Clark reported
he experienced low back pain and left shoulder pain since the May
2011 accident. The record indicates that Dr. Dyess treated Clark
from August 25, 2011 until April 28, 2016; Clark attended fiftytwo medical appointments during the four and a half year period.
Over this time Clark continuously complained of neck and back pain.
He received prescriptions for Soma, Norco, Ambien, and Percocet.

2

Notably in this case’s timeline of events, Clark visited Dr.
Dyess on May 19, 2015; less than a month before applying for a job
with Cenac and answering medically-related questions on June 5,
2015. At this May 19 visit, Clark reported no change in his neck,
lower back and hamstring pain; he also reported anxiety, and
insomnia. Dr. Dyess renewed his prescriptions for Soma, Norco,
Ambien, and Percocet. But only three weeks later, Clark represented
to Cenac and the pre-employment physician that he had no previous
neck or back pain and was not under the care of a treating
physician. Clark continued to visit the Dyess Medical Center for
treatment after his employment with Cenac began. On April 28, 2016
Clark had his last visit with Dr. Dyess after Dr. Dyess informed
Clark that he was releasing him from treatment and advised Clark
to see a pain management specialist.
Nearly two months after his last appointment with Dyess
Medical Center, Clark reported his work-related accident to Cenac
and completed the incident report form. In response, Clark was
taken to Houma Family Practice, where he also completed his preemployment exam, and was treated by Dr. Mark Walker. Initially he
was cleared for light duty work and then cleared for duty without
restrictions on July 12, 2016. He purportedly failed to communicate
and report to Cenac for his assigned hitch. On July 13, 2016, Cenac
terminated Clark’s employment for his failure to communicate and

3

report

for

work,

poor

performance

evaluations,

and

various

violations of Cenac’s safety rules during his employment.
In the weeks after his termination, Clark retained counsel,
who arranged for Clark to see Dr. Michael Chambers on September 7,
2016. Clark told Dr. Chambers he hurt himself while working on
Cenac’s vessel and that he did not feel he needed emergency medical
attention at the time of the accident. However, he reported that
he was now experiencing pain and discomfort, mainly in his back.
At this appointment he also informed Dr. Chambers that he had a
history of lower back pain. Dr. Chambers found tenderness in both
the thoracic and lumbar areas of Clark’s spine; Dr. Chambers
prescribed medication, ordered an MRI, and advised Clark not to
work. In response, Cenac arranged for Clark to visit Dr. Walker
again on September 19, 2016; at this time he informed Dr. Walker
for the first time of his history of back pain. Dr. Walker ordered
an MRI immediately. The next day Dr. Walker called Cenac and told
Cenac he believed Clark needed emergency medical attention for a
spinal bone infection, called osteomyelitis at the T9-10 level.
The MRI also revealed an annular disc bulge and disc desiccation
at L3-4 and L4-5 and a disc bulge at L5-S-1; these issues were
also present in a 2013 MRI taken in the course of treatment at
Dyess Medical Center.
Cenac agreed to pay maintenance and cure to avoid punitive
damages, but informed Clark’s counsel that it was doing so “under
4

protest”

with

a

full

reservation

of

all

rights

to

seek

reimbursement. Cenac’s counsel then learned from Dr. Walker that
within a reasonable degree of medical certainty, the osteomyelitis
was not occupationally or trauma related; Dr. Walker reiterated
this medical opinion in depositions taken in the course of this
litigation.
Clark received treatment from different specialists for his
infection. And, on November 4, 2016, Clark’s infectious disease
specialist

determined

that

Clark

achieved

maximum

medical

improvement regarding his spinal infection. Dr. Walker determined
that

Clark

had

reached

maximum

medical

improvement

from

an

occupational physician stand point after conducting a repeat MRI
on November 28, 2016.
Cenac was first to file suit, seeking a declaratory judgment
that Cenac is not obligated to pay Clark maintenance and cure
benefits. Clark then filed a lawsuit against Cenac, alleging Jones
Act and unseaworthiness claims, as well as claims for maintenance
and cure and punitive damages for failure to pay maintenance and
cure. Cenac now moves the Court to grant summary judgment in its
favor on Clark’s maintenance and cure and related punitive damages
claims. Additionally, Cenac moves for leave to file a counterclaim
against Clark for an offset from any recovery he may be awarded
for maintenance and cure payments it made to Clark. The Court first

5

determines whether summary judgment on the maintenance and cure
claims under the McCorpen defense is appropriate.
I.

Motion for Partial Summary Judgment
A. Summary Judgment Standard

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., 475 U.S. 574, 586 (1986). A genuine 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 Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion. See id. Therefore, "[i]f the evidence is merely colorable,
or

is

not

significantly

probative,"

summary

judgment

is

appropriate. Id. at 249-50 (citations omitted). Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). 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
6

646, 649 (5th Cir. 1992). Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claim. Id. 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. Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2). Finally, in evaluating the summary
judgment motion, the Court must read the facts in the light most
favorable to the non-moving party. Anderson, 477 U.S. at 255.
B. Maintenance and Cure
“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.” McCorpen v. Central Gulf S.S. Corp.,
396 F.2d 547, 548 (5th Cir. 1968). It may be awarded “even where
the

seaman

has

suffered

from

an

illness

pre-existing

his

employment.” Id. Notwithstanding this general principle, a court
will

deny

maintenance

fraudulently

conceals

and

cure

when

his

illness

a

from

seaman
the

“knowingly

shipowner.”

Specifically,
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. Of course, the defense that a
seaman knowingly concealed material medical information
will not prevail unless there is a causal link between

7

or
Id.

the pre-existing disability that was concealed and the
disability incurred during the voyage.
Id. at 549 (citations omitted). Accordingly, to determine whether
Clark forfeited his rights to maintenance and cure, the Court
considers

whether:

(1)

he

intentionally

misrepresented

or

concealed medical facts; (2) the nondisclosed facts were material
to Cenac’s decision to hire him; and (3) there is a causal link
between the withheld information and his injury complaint. Brown
v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir.
2005).
i.

Concealment

First, Cenac argues that Clark intentionally misrepresented
or concealed medical facts when he denied having prior back and
neck pain on two medical questionnaires filled out in the course
of his job application. In support, Cenac proffers Clark’s answers
on

the

medical

questionnaire

forms

and

Clark’s

deposition

testimony that the answers supplied were incorrect and inaccurate.
The plaintiff argues that there is a factual issue of his intent
to conceal his prior medical condition. He contends that the
questions were in “very small typeface” and that he “answered
almost all of the questions in the negative, in a rush to get on
board and cleared in what he thought was just a pro-forma step
necessary to the [hiring] process.” Further, in his deposition,
Clark admitted that he did not read all of the questions. He stated

8

he looked for any questions regarding any prior hernia surgery,
answered

that

one

in

the

affirmative,

and

responded

to

the

remaining questions in the negative without reading each one; this
was his admitted usual practice in filling out medical questions
and paperwork.
The intentional concealment prong of the McCorpen test is an
objective inquiry. Brown, 410 F.3d at 174. No genuine issue of
material fact exists where a plaintiff conceals his prior injury,
even if he denies having intentionally withheld the information.
See id.; Bud’s Boat Rental, Inc. v. Wiggins, No. 91-2317, 1992 WL
211453, *2 (E.D. La. Aug. 24, 1992).
[A] seaman may be denied maintenance and cure for failure
to disclose a medical condition only if he has been asked
to reveal it. Failure to disclose medical information in
an interview or questionnaire that is obviously designed
to elicit such information therefore satisfies the
intentional concealment requirement.
Brown, 410 F.3d at 174 (quoting Vitcovich v. Ocean Rover O.N., No.
94-35047, 1997 WL 21205, *3 (9th Cir. Jan. 14, 1997)). Here, Clark
had two objective medical questionnaires to complete, and he
executed each one after responding in the negative to inquiries
regarding existing and prior back and neck pain. The questionnaires
included language that unequivocally conveyed to Clark that his
responses must be truthful to the best of his knowledge. He
certified that the information provided was truthful by signing a
statement that read: The undersigned hereby certify that all the

9

information I have furnished on this form is correct and that I
have been truthful in my responses.
Under this Circuit’s application of the McCorpen defense, the
plaintiff objectively and intentionally concealed parts of his
medical history. The plaintiff admitted in his deposition that he
did not read all of the questions on the medical questionnaire,
yet he still certified that the information was true. He further
failed to reveal his years-long treatment for back and neck pain
related

to

a

2011

injury

on

the

medical

forms

and

in

his

examination with Dr. Walker. Therefore, the plaintiff went beyond
failing to read the questions; he also denied specific questions
that implicated his treatment for back injuries and medications
prescribed in relation to the injuries. And with apparent hypocrisy
seeks to also blame small print. The Court finds no doubt in
whether Clark’s concealment was intentional; no genuine issue of
material fact exists as to his intentional concealment.
ii.

Material to Hiring Decision

Second, Cenac argues that the nondisclosed medical facts were
material.

In

uncontroverted
Manager,

Andrew

support

of

depositions
Soudelier,

this
of

its

and

its

proposition,
Human

Cenac

Resources

examining

cites

Personnel

physician,

Dr.

Walker. Dr. Walker testified that it would be important to know
about prior injuries, including whether the patient experienced a
decreased lumbar thoracic range of motion associated with pain and
10

whether the patient was seeking active treatment at the time of
the pre-employment physical. Mr. Soudelier attested that Cenac
falsely assumed Clark was fit for duty when Cenac hired him because
Cenac had no knowledge of Clark’s medical history of neck and back
pain. Importantly, Mr. Soudelier testified that had Cenac been
aware of Clark’s active treatment for pre-existing back and neck
pain, including the narcotics prescriptions, Cenac would not have
placed Clark on its vessel as a tankerman. 1
This Circuit has established that if the non-disclosed facts
would have either prevented the vessel owner from hiring the
plaintiff, or at least delayed the hiring, the non-disclosed facts
are material. Jauch v. Nautical Servs. Inc., 470 F.3d 207, 212-13
(5th Cir. 2006); Russell v. Seacor Marine, Inc., No. 00-339, 2000
WL 1514712, *3 (E.D. La. Oct. 10, 2000); In Re L.S.K. Towing, Inc.,
No. 94-4134, 1995 WL 350039, at *2 (E.D. La. June 6, 1995). Because
common sense teaches Clark’s concealed medical information could
have materially impacted Cenac’s hiring decision, the Court finds
it to be material. 2 See id.

1

The plaintiff impliedly responds that his concealment was not
material to Cenac’s hiring decision. Clark argues that Cenac
operates on a “good old boy” mentality and that he would call
“Pinky” to testify that “you ain’t getting on if you don’t know
somebody.” Clark contends that he “knew somebody,” which was
material to its hiring decision, not his medical condition.
2 “Good old boy” network notwithstanding.
11

iii. Causal Link
Finally, Cenac correctly argues that there is a causal link
between the withheld information and Clark’s injury complaint. The
Fifth Circuit’s Brown decision highlights the difference between
the

McCorpen

“connection”

analysis

and

standard

causation

analysis. In Brown, the plaintiff argued there was no medical proof
that his new injury was an aggravation of his old injuries, but
the Court found that such proof was unnecessary. See Brown, 410
F.3d at 175-76. In order to establish a “causal link,” it was
enough for the defendant to show that the old and the new injuries
“were to the same location of the [plaintiff’s] lumbar spine.” Id.
at 176. “The inquiry is simply whether the new injury is related
to the old injury, irrespective of their root causes.” Johnson v.
Cenac Towing, Inc., 599 F. Supp. 2d 721, 728-29 (E.D. La. 2009);
see also Jauch, 470 F.3d at 212-13 (finding requisite connection
when new back injury was “virtually identical” to previous back
injury); Noel v. Daybrook Fisheries, 213 F.3d 637, 2000 WL 554455,
at *2 (5th Cir. 2000) (table) (per curium) (finding requisite
connection when both injuries were to the “same disc”); Boatright
v. Raymond Dugat Co., L.C., 2009 WL 138464, at *4 (S.D. Tex. 2009)
(finding requisite connection when plaintiff’s “prior and current
injuries [were] both to his right hip”); Jenkins v. Aries Marine
Corp., 590 F. Supp. 2d 807, 813 (E.D. La. 2008) (“To find the
requisite ‘connection,’ courts have looked to whether the injuries
12

were identical or produced identical or substantially similar
symptoms in the same part of the body.”).
The plaintiff’s medical records from 2013, in connection with
his 2011 accident, indicate issues with his lumbar and cervical
spine as well as levoscoliosis of the thoracic spine. These issues
are consistent with his initial complaints of lower back and
shoulder

pain

to

his

treating

physician

after

his

2011

car

accident. Over the five years the plaintiff was under treatment
for the 2011 accident, his treating physician treated all areas of
the

back,

including

his

thoracic

spine.

After

his

June

2016

accident while working for Cenac, Dr. Walker completed MRIs months
later when the plaintiff began complaining of back pain; these
MRIs were done in September 2016. The results of these MRIs
indicate consistent lumbar spine issues from the plaintiff’s 2013
MRI results. The 2016 MRI also indicated thoracic spine changes,
namely,

T9-10

loss

of

disc

height

that

was

associated

with

osteomyelitis. Dr. Walker testified that the osteomyelitis was
more than likely not an occupational or trauma related condition;
he could not offer any explanation as to what could have caused
the osteomyelitis or when it developed.
The Court recognizes the challenge in parsing this Circuit’s
application of the third McCorpen defense factor. Cenac relies on
the plaintiff’s medical records to indicate that the same parts of
his

lumbar

spine

are

affected
13

months

after

his

work-related

accident as were affected years before Cenac employed him. On this
record, the Court cannot find a genuine issue of material fact as
to whether there is a causal nexus between the concealed injury
and the complained-of injury; both injuries were to the lumbar
spine and the record does not support a finding that the new
injuries to the thoracic spine arose during the time of employment.
Accordingly, Cenac successfully employs the McCorpen defense.
II.

Motion for Leave to File Counterclaim

Under the Court’s scheduling order, the deadline for filing
amendments to pleadings, third-party actions, cross-actions and
counterclaims was January 1, 2017. On February 24, 2017, Cenac
filed this motion for leave to file a counterclaim against the
plaintiff to seek an offset of potential damages the plaintiff
receives for the maintenance and cure it paid “under protest.”
The defendant acknowledges that the legal viability of a
counterclaim

to

recover

maintenance

and

cure

payments

is

an

undecided issue in the Fifth Circuit. See Boudreaux v. Transocean
Deepwater, Inc., 721 F.3d 723 (5th Cir. 2013). The defendant cites
Boudreaux

v.

Transocean

Deepwater

where

Judge

Clement,

in

a

concurring opinion, opined that such a counterclaim could be
permissible. See id. at 728-29 (Clement, J., concurring). It also
calls the attention of the Court to other district court cases
where this counterclaim has been allowed or suggested as a viable
method of recovery. Sharpe v. Bertucci Contracting Co., No. 1314

6101, 2014 WL 4396086 (E.D. La. Sept. 5, 2014) (“This would not,
however, impede Defendant’s right to seek offset of the maintenance
and

cure

payments

against

any

potential

damages

awarded

to

Plaintiff, which right was clearly contemplated by the express
language of the Boudreaux opinion.”); Boudreaux v. Transocean
Deepwater, Inc., No. 08-01686, 2010 WL 2671827, at *3-4 (E.D. La.
June 29, 2010) (Lemelle, J.).
The

issue

presented

in

the

defendant’s

counterclaim

is

undecided in this Circuit. However, the motion for leave to file
the counterclaim will not decide the merits of the counterclaim
itself.

The

plaintiff

intentionally

concealed

a

pre-existing

medical condition that was material to Cenac’s decision to hire
him as a seaman and there is a causal connection between the injury
complained of and the information withheld. For these reasons,
Cenac was not obligated to pay maintenance and cure. See McCorpen,
396 F.2d at 548-51.
The plaintiff attempts to characterize the defendant’s late
filing

of

a

motion

for

leave

to

file

a

counterclaim

as

an

“additional bludgeon for Mr. Clark to have to deal with . . . .”
However, it was the plaintiff’s own act of concealing relevant
medical history that is the root of this motion. There is “good
cause” for allowing this late filing. The trial is over two months
away; the “[p]laintiff will not suffer prejudice by allowing this
purely legal counterclaim to be added.” Boudreaux v. Transocean
15

Deepwater, Inc., No. 08-01686, 2010 WL 2671827, at *4 (E.D. La.
June 29, 2010) (Lemelle, J.).
The Court reiterates that by granting this leave to file a
counterclaim the Court is not ruling on the legal viability of the
counterclaim itself.
III.
Accordingly, IT IS ORDERED that Cenac’s motions for partial
summary judgment and leave to file a counterclaim are hereby
GRANTED. The plaintiff’s maintenance and cure claims and related
punitive

damages

claims

are

hereby

dismissed

with

prejudice.

Cenac’s counterclaim for an offset of maintenance and cure payments
against any damages Clark recovers is to be filed in the record
and

will

be

tried

with

plaintiff’s

remaining

Jones

Act

and

unseaworthiness claims.

New Orleans, Louisiana, March 22, 2017

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

16