White v. Sea Horse Marine, Inc.
Filing
23
ORDER AND REASONS: IT IS ORDERED that the 15 motion is DENIED WITHOUT PREJUDICE as premature. Defendant may reurge its motion for summary judgment after 7/15/2018. Signed by Judge Ivan L.R. Lemelle on 4/17/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES RICKEY WHITE
CIVIL ACTION
VERSUS
NO. 17-9774
SEA HORSE MARINE, INC.
SECTION “B”(5)
ORDER AND REASONS
Defendant Sea Horse Marine, Inc. filed a “Motion for Partial
Summary Judgment on Plaintiff’s Claim for Maintenance and Cure.”
Rec.
Doc.
15.
Plaintiff
James
Rickey
White
timely
filed
an
opposition. Rec. Doc. 17. Defendant sought, and was granted, leave
to file a reply. Rec. Doc. 20. For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 15) is DENIED WITHOUT
PREJUDICE as premature. Defendant may reurge its motion for summary
judgment after July 15, 2018.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff James Rickey White was employed by Defendant Sea
Horse Marine, Inc. as the Captain of the M/V ELISE MARY on May 30,
2017, when he allegedly suffered an accident. See Rec. Doc. 1
¶¶ 3-5; Rec. Doc. 11 ¶ 3. Because of the accident, Plaintiff
allegedly suffered “serious painful injuries to his back and other
parts of his body . . . .” Rec. Doc. 1 ¶ 5. On September 28, 2017,
Plaintiff filed suit against Defendant, bringing negligence and
unseaworthiness claims. See id. ¶¶ 6, 7. As part of his complaint,
Plaintiff sought maintenance and cure. See id. ¶ 8.
1
Plaintiff
applied
for
the
job
with
Defendant
on
September 2, 2016. See Rec. Doc. 15-3. As part of the application
process, Plaintiff filled out a medical history form and underwent
a physical. See Rec. Doc. 15-4. On the medical history form,
Plaintiff indicated that he suffered from high blood pressure and
took medications for that condition. See id. at 1. Plaintiff also
stated that he had previously “pulled muscles [in his] lower
back[,]”
had
received
worker’s
compensation,
and
suffered
an
“[i]njury or illness which required loss time from work[.]” Id.
Plaintiff did not answer a question about whether he currently or
previously suffered from an “[i]njured back/back pain[.]” Id.
Plaintiff answered “no” when asked about whether he had ever
suffered
an
“[i]njured
“[r]uptured/herniated
hip[,]”
disk[,]”
“back
“[r]ecurrent
surgery/injury[,]”
neck/back
pain[,]”
“[a]ny joint problems[,]” “[a]ny other disease/surgery[,]” and
“MRI, CT Scan, Discogram or Myelogram[.]” Id.
The
record
from
Plaintiff’s
physical
includes
a
similar
medical history. See id. at 3-4. The physician’s assistant who
conducted
the
physical
“Spine/Musculoskeletal”
concluded
system
was
that
“Normal[,]”
Plaintiff’s
but
noted
“degenerative change” in an x-ray of Plaintiff’s lumbar spine. Id.
at 6. Because of his high blood pressure, Plaintiff was not
declared “Fit for duty” immediately following his physical. Id. at
7. Plaintiff also appears to have passed a drug test on September
2
2, 2016. See id. at 9. Plaintiff was ultimately hired by Defendant
on September 6, 2016. See Rec. Doc. 15-3 at 4.
Plaintiff’s medical history is actually more extensive than
indicated
on
the
pre-employment
forms.
Plaintiff
admits
that
“[d]uring the eleven year time period preceding [his] September 2,
2016 pre-employment physical, [he] treated with multiple doctors
for low back, hip and leg pain.” Rec. Docs. 15-2 ¶ 23; 17-2 ¶ 23.
Plaintiff
admits
that
“two
days
before
his
pre-employment
physical, plaintiff treated with Dr. Donald Sanders for . . .
degeneration of intervertebral disc of the lumbar region, and was
issued by Dr. Sanders a prescription for a 90 day supple of Norco,”
a painkiller containing acetaminophen and hydrocodone. Rec. Docs.
15-2 ¶ 27; 17-2 ¶ 27. Plaintiff admits that “[o]n March 22, 2017,
[he] was examined by Dr. Roger Setzler . . . for problems with his
left leg and pain radiating down his leg, and assessed with lumbar
degenerative disc disease, bulging lumbar disc and acute left
lumber radiculopathy.” Rec. Docs. 15-2 ¶ 30; 17-2 ¶ 30. After the
alleged accident, on November 8, 2017, Plaintiff underwent an
independent medical examination with Dr. Revels. See Rec. Doc. 155. Dr. Revels concluded that Plaintiff’s “current lumbar spine,
hip and leg complaints are the same as his previous lumber spine,
hip and leg conditions for which he sought treatment for over a
decade.” Id. at 2.
3
Defendant
moved
for
summary
judgment
on
the
issue
of
Plaintiff’s entitlement to maintenance and cure on March 6, 2018.
See Rec. Doc. 15. Plaintiff opposed the substance of Defendant’s
motion and also argued that he needed additional time to complete
discovery
before
adequately
opposing
the
motion
for
summary
judgment. See Rec. Doc. 17. The scheduling conference was not held
until March 20, 2018. See Rec. Doc. 16. The scheduling order set
a discovery deadline of December 10, 2018. See id. at 1.
LAW AND ANALYSIS
Summary
judgment
is
appropriate
when
“the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When
the
movant
bears
the
burden
of
proof,
it
must
“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the
4
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
“Maintenance
and
cure
is
an
obligation
imposed
upon
a
shipowner to provide for a seaman who becomes ill or injured during
his service to the ship.” Boudreaux v. United States, 280 F.3d
461, 468 (5th Cir. 2002). “The duty to provide cure encompasses
not only the obligation to reimburse medical expenses already
incurred, but also to ensure that the seaman receives the proper
treatment and care . . . [until] maximum cure has been reached,
i.e., where it is probable that further treatment will result in
no
betterment
in
the
claimant’s
condition.”
Id.
However,
a
shipowner can assert the McCorpen defense, which applies when an
“injured
seaman
willfully
concealed
from
his
employer
a
preexisting medical condition.” Brown v. Parker Drilling Offshore
Corp., 410 F.3d 166, 171 (5th Cir. 2005) (citing McCorpen v. Cent.
Gulf. S.S. Corp., 396 F.2d 547 (5th Cir. 1968)). “[T]o establish
a 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
5
information and the injury complained of in the lawsuit.” Brown,
410 F.3d at 171 (citing McCorpen, 396 F.2d at 548-59).
Relying on the McCorpen defense, Defendant has moved for
summary
judgment,
seeking
dismissal
of
Plaintiff’s
claim
for
maintenance and cure. See Rec. Doc. 15 at 1-2. But pursuant to
Federal Rule of Civil Procedure 56(d), Plaintiff seeks additional
time to conduct discovery and develop evidence that will create a
genuine issue of material fact with respect to Defendant’s McCorpen
defense.1
See
Rec.
Doc.
17
at
5-7.
“Rule
56(d)
motions
for
additional discovery are broadly favored and should be liberally
granted, [but] parties seeking Rule 56(d) relief may not simply
rely on vague assertions that additional discovery will produce
needed, but unspecified, facts.” Prospect Capital Corp. v. Mut. Of
Omaha Bank, 819 F.3d 754, 757 (5th Cir. 2016). “Instead, a party
must set forth a plausible basis for believing that specified
facts, susceptible of collection within a reasonable time frame,
probably exist and indicate how the emergent facts, if adduced,
1
Federal Rule of Civil Procedure 56(d) states that a court may defer ruling on
a motion for summary judgment or allow additional time for discovery when “a
nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition . . . .” The only
declaration attached to Plaintiff’s Opposition is from the Plaintiff himself,
see Rec. Doc. 17-1, and does not specifically discuss the need for additional
discovery. But the body of the Opposition does identify various pieces of
evidence that Plaintiff aims to elicit during discovery. See Rec. Doc. 17 at 6.
Defendant does not object to the form of Plaintiff’s Rule 56(d) request. See
Rec. Doc. 20. Therefore, in the interest of justice, the Court will analyze the
propriety of delaying consideration of Defendant’s motion for summary judgment.
6
will influence the outcome of the pending summary judgment motion.”
Id.
Given the very early stage of the instant proceedings and
Plaintiff’s
desire
to
conduct
certain
discovery
targeted
at
Defendant’s McCorpen defense, denial of the instant motion pending
further discovery is warranted. See Coleman v. Anco Insulations,
Inc., 196 F. Supp. 3d 608, 611-12 (M.D. La. 2016) (reasoning that
a motion for summary judgment was “simply premature” because it
was filed “prior to the commencement of formal discovery”); Haydell
Indus., LLC v. Petrucci, 702 F. Supp. 2d 688, 697-98 (W.D. La.
2010) (reasoning that a motion for summary judgment was premature
where “discovery in th[e] forum ha[d] not formally commenced, no
scheduling order ha[d] been entered in th[e] matter, and there
[wa]s not any discovery deadline imposed yet”). The Scheduling
Order in this case was issued on March 20, 2018, see Rec. Doc. 16,
fourteen days after Defendant filed the instant motion for summary
judgment, see Rec. Doc. 15. Initial disclosures under Federal Rule
of Civil Procedure 26 were not due until April 4, 2018, see Rec.
Doc. 16 at 1, one week after the instant motion was set for
submission, see Rec. Doc. 15-6. The deadline for discovery is
December 10, 2018, approximately eight months from now. See Rec.
Doc. 15 at 1. Admittedly, Plaintiff had access to medical records
starting in October 2017, see, e.g., Rec. Doc. 20-1, but there is
no indication that any requests for admission or interrogatories
7
have been exchanged, nor any depositions conducted. Discovery has
just barely begun.
Turning to the “specified facts” Plaintiff aims to develop
“within a reasonable time frame,” Plaintiff states that he needs
to take at least three depositions. See Rec. Doc. 17 at 6.
Plaintiff wants to depose Dr. Seltzer, a treating physician, and
Dr. Revels, who conducted the independent medical examination, to
elicit testimony relevant to the third element of the McCorpen
defense,
namely
whether
Plaintiff’s
pre-
and
post-accident
injuries are related. See id. Plaintiff also plans to depose the
physician’s assistant who conducted his pre-employment physical to
ascertain
the
extent
of
Plaintiff’s
disclosure
regarding
his
preexisting back pain. See id. This testimony could be relevant to
the
first
element
of
the
McCorpen
defense,
which
addresses
concealment. See id. Defendant highlights Plaintiff’s need for
additional time to conduct discovery when, for example, it argues
in its reply that “Plaintiff does not dispute Dr. Revels’ opinions,
or present countervailing evidence.” Rec. Doc. 20 at 9. But
Plaintiff has not had an opportunity to depose Dr. Revels about
his medical conclusions or retain his own medical experts. It would
be unfair to penalize Plaintiff for failing to develop sufficient
evidence at this stage of the proceedings when the scheduling order
did not require Plaintiff to do so.
8
That being said, Plaintiff’s request to delay consideration
of the motion for summary judgment is a far closer question than
one would expect given that this case is in its very early stages.
This is because delay is only warranted when new facts would alter
the outcome of a motion for summary judgment. See Prospect Capital,
819 F.3d at 757. As it stands now, the evidence mustered by
Defendant and Plaintiff’s responses to Defendant’s statement of
material facts suggest that Plaintiff did not fully and accurately
disclose
relevant
medical
history
in
response
to
Defendant’s
written medical questionnaire. But Plaintiff and his counsel have
represented in their opposition that discovery may show that (1)
Plaintiff’s current injuries are new, not related to past injuries,
and
(2)
Plaintiff
disclosed
more
medical
history
during
his
physical than the medical history questionnaire indicates. See
Rec. Doc. 17 at 5-7. If developed, such facts could create a
genuine issue of material fact. In that vein, Plaintiff’s counsel
should take seriously their obligation under Federal Rule of Civil
Procedure 11 to ensure that, if Defendant reurges the instant
motion, any opposition “is not . . . presented for any improper
purpose,”
only
includes
“claims,
defenses,
and
other
legal
contentions [that] are warranted by existing law[,]” and relies on
“factual contentions that have evidentiary support . . . .”
The Court is also sensitive to Defendant’s concern that
delaying consideration of its motion for partial summary judgment
9
may require it to make unnecessary maintenance and cure payments.
See Rec. Doc. 20 at 4. Without reaching any conclusions about the
merits
of
Defendant’s
underlying
argument
about
Plaintiff’s
entitlement to maintenance and cure, the Court notes that an
employer does not incur additional liability when it reasonably
declines to make maintenance and cure payments. See Boudreaux v.
Transocean Deepwater, Inc., 721 F.3d 723, 727-728 (5th Cir. 2013)
(citing Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir.
1987)).
New Orleans, Louisiana, this 17th day of April, 2018.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
10
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