Cenac Marine Services, LLC v. Clark

Filing 43

ORDER AND REASONS granting 28 Motion for Partial Summary Judgment. Clark's claims for (1) unseaworthiness, (2) withheld safety bonus, and (3) Jones Act negligence regarding his osteomyelitis are hereby DISMISSED with prejudice. Signed by Judge Martin L.C. Feldman on 4/27/2017. (Reference: 16-15256)(clc)

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

CIVIL ACTION

V.

NO. 16-15029 &
16-15256
REF: 16-15256

JASON CLARK

SECTION "F"
ORDER AND REASONS

Before the Court is Cenac Marine Service’s motion for partial
summary judgment on Jason Clark’s unseaworthiness claim, withheld
safety

bonus

claim,

and

Jones

Act

claim

relating

to

his

osteomyelitis. For the following reasons, the motion is GRANTED.
Background
This is a consolidated case stemming from an injury to a
seaman. The Court has issued an extensive Order and Reasons on
this same matter, and for the sake of brevity assumes familiarity
with the facts. The Court hereby adopts the summary of the facts
in its March 22, 2017 Order and Reasons.
On June 30, 2016 Jason Clark, an employee of Cenac Marine
Services, completed a Cenac incident 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 a deckhand. On
the incident report, Clark answered “no” to questions about whether
the injury was caused by any equipment on the vessel or by another
person. Additionally, Cenac offered a safety reward bonus to

1

employees who had no incidents or accidents during the six-month
period starting on January 1, 2016 until June 30, 2016. Clark’s
accident happened on June 29, 2016 and was reported on June 30,
2016. As a result of Clark’s accident, he was diagnosed with a
back strain. In the course of his treatment following the accident,
his physicians also discovered that Clark had a spinal infection,
osteomyelitis. Cenac paid for Clark’s treatment under protest,
reserving all rights to seek reimbursement.
The Court has previously granted summary judgment in favor of
Cenac, holding that Cenac was not liable for maintenance and cure
payments to Clark because of his intentional concealment of a back
injury.

Cenac

now

moves

for

summary

judgment

as

to

Clark’s

unseaworthiness claim, withheld safety bonus claim, and Jones Act
negligence claim as it relates to Clark’s osteomyelitis.
I.
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

2

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
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.
II.
A. Unseaworthiness Claim

3

Unseaworthiness is a “remedy separate from, independent of,
and additional to other claims against the shipowner, whether
created

by

statute

or

under

general

maritime

law.”

Usner

v.

Luckenbach Overseas Corp., 400 U.S. 494, 498 (1971). Importantly,
“liability based upon unseaworthiness is wholly distinct from
liability based upon negligence.” Id. “The reason, of course, is
that unseaworthiness is a condition, and how that condition came
into

being

–

irrelevant

to

whether
the

by

negligence

owner’s

or

liability

otherwise
for

–

is

personal

quite

injuries

resulting from it.” Id. “A vessel’s condition of unseaworthiness
might arise from any number of circumstances.” Id. at 499. “Her
gear might be defective, her appurtenances in disrepair, her crew
unfit.” Id.

However,

“[t]o

hold

that

[an]

individual

act

of

negligence rendered the ship unseaworthy would be to subvert the
fundamental distinction between unseaworthiness and negligence.”
Id. at 500.
Cenac contends that there was no condition on board the M/V
GENIE

CENAC,

incident,

or

where
with

Clark
any

worked
of

its

at

the

time

appurtenances

of
or

the

alleged

its

crew.

Additionally, Cenac points to Clark’s deposition which provided:
Q: Is there anything that your fellow workers did aboard
the Genie tug, the GENIE CENAC, did any of them do
anything to cause your injury?
A: No.
…
4

Q: Is there any equipment aboard any of the Cenac vessels
that, in your opinion, caused or contributed to your
event?
A: No.
Moreover, in the accident report Clark filled out, he stated that
the accident was not caused by unfit or unreasonable equipment and
that the accident was not anyone’s fault. Thus, Clark reaffirmed
his account of the accident during his deposition.
However, for the first time, Clark submits a newly-prepared
self-serving affidavit in hopes to defeat summary judgment on his
unseaworthiness claim. In his affidavit, Clark states that “the
vessel was unseaworthy in that it did not have a competent crew
having hired Mr. Graythern who takes a lot of breaks, tends to
smoke in the engine room, never gave me help.” Further, Clark now
urges that:
If I said in my deposition that I didn’t know of any
negligence or unseaworthiness on the boat, it was
because I’m not a lawyer and since then I have been
advised that any negligence however slight gives rise to
liability.
This hypocritical attempt to defeat summary judgment must fail.
During his deposition, it was identified that Clark was not
an attorney and, therefore, he was vetted at length to identify
any person or equipment that caused or contributed to his accident.
Additionally, at the time of his accident he denied the same in
his accident report, which was consistent with his deposition

5

testimony. He now, to back away from his original candor, changes
his story. He attempts to blame a deckhand, Stephen Graythern.
However, Clark previously testified that he could have waited until
another deckhand was available to help, but he instead chose to
move the cross-over hose alone without asking for, or seeking any,
assistance. Therefore, these new attempts to blame the deckhand
are irrelevant, as are the whereabouts of Mr. Graythern at the
time of the accident. The Court cannot find that a crewmember was
incompetent, rendering a vessel unseaworthy, when that crewmember
was indisputably not afforded the opportunity to assist.
The

type

of

affidavit

Clark

submits

has

routinely

been

recognized as a baseless attempt to create a genuine issue of
material fact; the Fifth Circuit routinely rejects such attempts.
See BMG Music v. Martinez, 74 F.3d 87, 91 (5th Cir. 2001) (finding
that a party’s self-serving affidavit is insufficient to overcome
a motion for summary judgment). Accordingly, Clark does not defeat
Cenac’s motion for summary judgment as to his unseaworthiness
claim; the record is silent on evidence to suggest Clark has any
merit in establishing that the vessel, including her appurtenances
and crew, were unfit.
B. Withheld Safety Bonus Claim 1

1

In the plaintiff’s complaint against Cenac, this claim is
addressed under the “Jones Act Negligence and Unseaworthiness”
combined causes of action. Because Cenac addresses it separately,
the Court does so also for the sake of clarity.
6

Cenac offered its employees a safety bonus if the employee
had no accident reports within a certain period. The period for
the disputed bonus began on January 1, 2016 and ended June 30,
2016. The underlying accident that is the cause of the lawsuit
happened on June 29, 2016 and was reported to Cenac the next day,
June 30, 2016. Therefore, Cenac argues that Clark’s claim that
Cenac wrongfully withheld his safety is meritless.
Clark admitted in his deposition that the accident which is
the basis of the lawsuit qualifies as an “accident” which would
preclude the safety bonus eligibility. It is undisputed that the
accident on June 29, 2016 occurred before the end of the bonus’
six-month period, which ended on June 30, 2016.
In response, Clark presents misguided arguments. Because it
is unclear exactly what basis Clark presents that the bonus was
wrongfully withheld, the Court interprets the argument with common
sense. The Court believes Clark attempts to defend his claim for
the safety bonus by arguing that because Clark was employed by
Cenac for the duration of the six-month bonus period, he must be
entitled

to

the

bonus.

However,

this

argument

blatantly

misinterprets that guidelines for receipt of the safety bonus. 2 As

2

In fact, Clark’s opposition states that Cenac “fails to consider
. . . that Clark was ‘working’ during the period following his
injury . . . . Whether he was accident free for a 6 month window
is obviously a matter of semantics, disputed facts.” The Court
admonishes counsel for submitting such a groundless, specious
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accepted, the record indicates that Clark’s accident happened
before the end of the six-month period; the type of accident Clark
reported

was

of

the

type

to

preclude

receipt

of

the

bonus;

accordingly, Clark admitted in his deposition that he was not
entitled to the bonus. Clark’s attempt to suggest that because he
was employed during the six-month period he must be entitled to
the bonus fails on its face. By the terms of the bonus promotion,
Clark had an accident report which precluded his eligibility.
Accordingly, Cenac did not wrongfully withhold a safety bonus,
because Clark was ineligible by its clear terms for the bonus once
his accident occurred.
C. Jones Act Negligence Claim
“The Jones Act provides an action in negligence for the death
or injury of a seaman.” Miles v. Apex Marine Corp., 498 U.S. 19,
29 (1990). In the Jones Act, Congress provided that “[l]aws of the
United States regulating recovery for personal injury to [a seaman]
apply.” 46 U.S.C. § 30104. Under the Jones Act, an employer owes
its employees a duty of reasonable care. Verrett v. McDonough
Marine Serv., 705 F.2d 1437, 1441 (5th Cir. 1983). The Jones Act
simultaneously obligates the seaman to act with ordinary care under
the circumstances. Gautreaux v. Scurlock Marine, Inc., 10 F.3d
331, 339 (5th Cir. 1997). The seaman must act with the care, skill,

argument to the Court and to opposing counsel. See 28 U.S.C. §
1927.
8

and ability expected of a reasonable seaman in like circumstances.
Id. Thus, comparative negligence applies under the Jones Act,
“barring an injured party from recovering for the damages sustained
as a result of his own fault.” Miles v. Melrose, 882 F.2d 976, 984
(5th Cir. 1989) aff’d sub nom. Apex Marine, 498 U.S. 19.
Cenac contends that Clark’s Jones Act claim, as it pertains
to his osteomyelitis, must fail because his osteomyelitis was
caused by his own negligence, not negligence attributable to Cenac.
As support, Cenac first points to Dr. Walker’s testimony that
Clark’s condition did not arise in the service of the vessel and
that,

within

a

reasonable

degree

of

medical

certainty,

his

osteomyelitis was not occupationally or traumatically related.
Next, Dr. Murthy repeatedly refused to give an opinion regarding
the causation of the osteomyelitis because she was unable to do so
within a reasonable degree of medical certainty. Dr. Murthy did
testify that that there was a “remote” possibility that Clark had
a bone infection many years ago which might have been reactivated
when he sustained a blunt trauma to the site. Interestingly, Clark
told Dr. Murthy that a beam fell on his back; however, Clark did
not sustain a blunt trauma to his back while working for Cenac and
he never testified as to a beam falling on his back. Clark did not
tell Dr. Murthy that he was dragging a hose at the time of the
alleged incident; and as a result, he was diagnosed with sprain to
his back from this incident. Dr. Murthy testified that she is not
9

aware of a strain causing osteomyelitis, as Clark alleges in this
lawsuit. 3
Instead, Cenac submits that Clark’s past drug use and tattoo
exposure more likely than not caused the spinal osteomyelitis. Dr.
Lutz testified that Clark tested positive for Hepatitis C between
December 2015 and September 2016. Dr. Lutz contends this condition
is consistent with Clark’s admitted history of intravenous drug
use and exposure to tattooing needles. Dr. Murthy confirmed that
Clark tested positive for Hepatitis C, and that that condition can
be transmitted into the body through illicit intravenous drug use.
Ultimately, Dr. Murthy opined that the Hepatitis C and intravenous
drug use present a reasonable explanation for Clark’s spinal
osteomyelitis. Finally, Dr. Murthy testified that “dirty” tattoo
needles could also lead to contracting Hepatitis C and eventually
osteomyelitis; Clark has 17 tattoos. Therefore, Cenac submits that
Clark’s osteomyelitis was more likely than not caused by illicit
intravenous

drug

use

or

tattoo

needles

rather

than

a

sprain

incurred during work on Cenac’s vessel.

3

Cenac presents that questions of fact still exist as to whether
Clark may have aggravated some concealed pre-existing condition
when moving the cross-hose during the June 29, 2016 incident.
Therefore, Cenac submits that whether Clark can collect damages
for Dr. Walker’s post-incident diagnosis of a back sprain and the
related three treatment sessions, for 13 days before being cleared
fit for duty, remains an issue for trial.
10

Clark responds, again in his self-serving affidavit, that the
medical evidence reveals that Clark had “cyst” that “obviously
developed” during his employment with Cenac. The cyst, Clark
argues, “bust” from the strain of dragging a heavy cross-over hose
during the work Clark performed on June 29, 2016. Thus, Clark
speculates that it is “not at all hard to conceive that strain in
the vicinity of a cyst might cause it to leak (or bust) spreading
infection in the vicinity.” Therefore, Clark says that he is
“convinced” a cyst on his spine bust “because of the strain of
pulling on the heavy hose.”
Clark also relies on a medical report from Dr. Chambers which
finds that Clark’s signs and symptoms are causally related to the
accident of June 30, 2016 with a reasonable degree of medical
certainty. Clark, however, speciously presents the report from Dr.
Chambers. He fails to recognize that Dr. Chambers’ report was
prepared

before

osteomyelitis.

Clark

was

Therefore,

it

ever
is

diagnosed

impossible

that

with
Dr.

spinal
Chambers

concluded that the spinal osteomyelitis was caused by his workrelated accident. As stated, Cenac only presents the Jones Act
claim relating to Clark’s osteomyelitis in this motion for summary
judgment. Accordingly, Clark’s reliance on Dr. Chambers’ findings
are irrelevant and fail to create a genuine issue of material fact.
Clark’s self-serving affidavit similarly does not prevent the
Court

from

finding

in

favor

of
11

Cenac

on

Clark’s

Jones

Act

negligence claim as it pertains to his osteomyelitis. Clark merely
stating his hopeful view that he is “convinced” the cyst bust
remains in direct contrast to medical experts’ opinions. Clark
makes this statement in an attempt to create an issue of fact; the
attempt fails. Additionally, Clark’s new position that he blames
his deckhand and Cenac’s hiring for the negligence causing his
back injury is misplaced; as repeatedly mentioned, Cenac only seeks
summary judgment as to the osteomyelitis condition, not the back
sprain. Even so, Clark’s new affidavit, prepared in response to
Cenac’s motion for summary judgment, does not present the type of
evidence required to defeat a motion for summary judgment. See
Celotex Corp., 477 U.S. 317, 324 (1986) (requiring a “nonmoving
party to go beyond the pleadings [and his] own affidavits” to
designate “specific facts showing that there is a genuine issue
for trial”). Accordingly, the Court finds no genuine issue of
material fact as to Clark’s Jones Act claim, as it pertains to his
osteomyelitis.
III.
Accordingly, IT IS ORDERED: that Cenac’s motion for partial
summary

judgment

is

GRANTED.

Clark’s

claims

for

(1)

unseaworthiness, (2) withheld safety bonus, and (3) Jones Act
negligence regarding his osteomyelitis are hereby DISMISSED with
prejudice.

12

New Orleans, Louisiana, April 27, 2017

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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