White v. Sea Horse Marine, Inc.
Filing
31
ORDER AND REASONS: IT IS ORDERED that the 24 motion is GRANTED and Plaintiffs claim for maintenance and cure is dismissed with prejudice, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 8/8/2018. (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 its “Re-Urged Motion
for Partial Summary Judgment on Plaintiff’s Claim for Maintenance
and Cure.” Rec. Doc. 24. Plaintiff James Rickey White timely filed
an opposition. Rec. Doc. 27. Defendant then sought, and was
granted, leave to file a reply. Rec. Doc. 30. For the reasons
discussed below,
IT IS ORDERED that the motion (Rec. Doc. 24) is GRANTED and
Plaintiff’s claim for maintenance and cure is dismissed with
prejudice.
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,
3017, 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
1
unseaworthiness claims. See id. ¶¶ 6, 7. As part of his complaint,
Plaintiff sought maintenance and cure. See id. ¶ 8.
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
2
declared “Fit for duty” immediately following his physical. Id. at
7. But Plaintiff was considered to have “the physical strength,
agility, and flexibility to perform all of the items listed in the
instruction table.” Rec. Doc. 15-4 at 7. Plaintiff also appears to
have passed a drug test on September 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. 24-2 ¶ 23; 27-1 ¶ 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 supply of Norco,”
a painkiller containing acetaminophen and hydrocodone. Rec. Docs.
24-2 ¶ 27; 27-1 ¶ 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. 24-2 ¶ 30; 27-1 ¶ 30.
After the
alleged accident, on November 8, 2017, Plaintiff underwent an
independent medical examination with Dr. Revels. See Rec. Doc. 153
5. 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.
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. The Court
denied Defendant’s motion for partial summary judgment and allowed
Defendant to reurge the motion after July 15, 2018—providing time
for Plaintiff to conduct discovery about Plaintiff’s entitlement
to maintenance and cure. See Rec. Doc. 23. Defendant timely reurged
its motion for partial summary judgment. See Rec. Doc. 27.
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
4
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
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.
5
However, a shipowner can assert the McCorpen defense to avoid
making maintenance and cure payments; the defense 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
information and the injury complained of in the lawsuit.” Brown,
410 F.3d at 171 (citing McCorpen, 396 F.2d at 548-59). Defendant
is entitled to summary judgment on the McCorpen defense because
there is no genuine issue of material fact about whether Plaintiff
hid extensive medical history related to the injuries presently at
issue in this lawsuit.
First, there is no genuine issue of material fact with respect
to concealment. “Failure to disclose medical information in an
interview or questionnaire that is obviously designed to elicit
such
information
. . .
satisfies
the
intentional
concealment
requirement.” Brown, 410 F.3d at 174. Plaintiff admits that he
failed to disclose eleven years of treatment for back, hip, and
leg conditions when asked questions about those topics during the
6
pre-hiring medical examination. See Rec. Docs. 15-4 at 2-7; 24-2
¶¶ 9-21, 23-27; 27-1 ¶¶ 9-21, 23-27.
Plaintiff’s current opposition memorandum does not discuss
the
concealment
prong
of
the
McCorpen
test.
Plaintiff
previously argued that there was a genuine issue of material fact
with respect to concealment because Plaintiff disclosed that he
previously strained muscles in his back and received workers
compensation for that injury. See Rec. Doc. 17 at 8; 17-1 ¶¶ 1213. Partial disclosure does not create a genuine issue of material
fact
regarding
characterization
concealment,
minimizes
especially
the
severity
when
and
the
plaintiff’s
duration
of
the
medical condition. See Ladnier v. REC Marine Logistics, LLC, No.
14-1278, 2015
WL 3824382, at *2-3 (E.D. La. June 19, 2015)
(concluding that there was no genuine issue of material fact about
the concealment prong because plaintiff’s disclosure about his
shoulder condition was incomplete and failed to include discussion
of past treatment). Moreover, Plaintiff disclosed no details about
his history of hip and leg problems. See Rec. Doc. 15-4 at 2-7.
Second, there is no genuine issue of material fact about
whether the conditions that Plaintiff failed to disclose are
related to the injuries complained of in the instant lawsuit. “The
inquiry [for the connection prong] 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.
7
La. 2009). This test is satisfied where, for example, “the old and
the new injuries ‘were to the same location of the plaintiff’s
lumbar
spine.’”
Id.
at
728
(citing
Brown,
410
F.3d
at
176)
(alteration omitted).
The evidence in the record demonstrates that Plaintiff’s new
injuries are related to Plaintiff’s old injuries; Plaintiff has
offered no evidence that would raise a genuine issue of material
fact,
after
individuals
being
and
who completed
a
afforded
three
conduct
additional
medical
examination
months
to
discovery.
of
depose
Dr.
Plaintiff
Tim
and
relevant
Revels,
reviewed
Plaintiff’s medical records, declared that Plaintiff’s “current
lumbar spine, hip and leg complaints are the same as his previous
lumbar spine, hip and leg conditions for which he sought treatment
for over a decade.” Rec. Doc. 15-5 at 2. Medical records attached
to Defendant’s first motion for summary judgment document years of
treatment for lumbar pain, leg pain, and leg weakness—the same
injuries that Plaintiff seeks damages for in the instant lawsuit.
See, e.g., Rec. Doc. 15-5 at 169-76, 193-202, 229-32,
251-54, 292-95.
Finally, there is no genuine issue of material fact with
respect to the materiality prong of the McCorpen defense. “The
8
fact that an employer asks a specific medical question on an
application, and that the inquiry is rationally related to the
applicant’s physical ability to perform his job duties, renders
the information material for the purpose of this analysis.” Brown,
410 F.3d at 175. But “[i]f the vessel owner would have employed
the seaman even had the requested disclosure been made, concealment
will not bar the seaman’s recovery of maintenance and cure.” Jauch
v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir. 2006) (per
curiam). “A triable issue of fact exists when it is unclear whether
an employer’s hiring decision would be affected by knowledge of a
potential employee’s previous injuries.” Hare v. Graham Gulf,
Inc., 22 F. Supp. 3d 648, 654 (E.D. La. 2014). Courts in this
Circuit have repeatedly granted summary judgment, dismissing a
plaintiff’s claim for maintenance and cure, when the evidence
establishes
that
full
disclosure
of
the
plaintiff’s
medical
condition would have prompted his employer to conduct further
medical evaluation prior to making a hiring decision.1
1
See Thomas v. Hercules Offshore Servs., LLC, 713 F. App’x 382,
387-88 (5th Cir. 2018) (per curiam) (affirming grant of summary
judgment on McCorpen defense where Defendant “would have inquired
further concerning . . . [the plaintiff’s] medical history prior
to hiring her” if the plaintiff had thoroughly disclosed previous
injuries); Dennis v. ESS Support Servs. Worldwide, No. 15-690,
2016 WL 3689999, at *4-5 (E.D. La. July 12, 2016) (finding no
genuine issue of material fact on materiality prong of McCorpen
defense where defendant declared that it “would have required [the
plaintiff] to undergo further evaluation and testing, before
reaching a decision to hire him”); Chapman v. Spartan Offshore
Drilling, LLC, No. 15-994, 2016 WL 1393490, at *5 (E.D. La. Apr.
9
Plaintiff does not dispute that the information he withheld
from
Defendant
was
material
insofar
as
defendant
“ask[ed]
a
specific medical question on [the] application, and that the
inquiry
[wa]s
rationally
related
to
the
applicant’s
physical
ability to perform his job duties.” See Brown, 410 F.3d at 175;
Rec. Doc. 27 at 5-8. Defendant’s Human Resources Manager, Scott
Plaisance, declared that “[t]he position of a captain,” which
Plaintiff applied for, “requires physical activities over extended
periods of time, and the ability to safely operate vessels.”
Rec.
Doc.
15-3
Plaintiff’s
suffering
operate
ability
from
back
vessels
medication
at
are
Unquestionably,
2.
to
engage
pain
while
in
and
Plaintiff’s
under
rationally
physical
the
related.
information
activities
ability
influence
of
to
about
while
safely
narcotic
See Brown, 410 F.3d at 175.
Rather, Plaintiff argues that it is unclear whether Defendant
would have changed its hiring decision if Plaintiff had been
truthful. See Rec. Doc. 27 at 5-8. Defendant’s HR Manager declared
that
Defendant
“would
have
inquired
further
to
determine
8, 2016) (granting summary judgment on McCorpen defense where the
defendant’s “examining physicians stated that, had the full extent
of [the plaintiff’s] medical history been revealed, they would not
have released him to work and would have referred him for
additional testing”); see also Brown, 410 F.3d at 175 (reasoning
that omission of medical history was material even though it did
not initially interfere with the plaintiff’s ability to perform
job because the defendant “based its hiring decision (at least, in
part) upon” plaintiff’s reported medical history).
10
[Plaintiff’s] employability” if Plaintiff had disclosed his true
medical history. See Rec. Doc. 15-3 at 2. As discussed previously,
such a declaration, supported by the factual record, supports
granting a motion for summary judgment on the materiality prong of
the McCorpen defense. See Thomas, 713 F. App’x at 387-88; Dennis,
2016
WL
3689999,
at
*4-5;
Chapman,
2016
WL
1393490,
at
*5.
Plaintiff argues that there is a genuine issue of material fact
because (1) the record from his pre-employment physical documents
some
medical
problems
and
(2)
he
did
not
sign
the
Medical
Certificate that was produced from the pre-employment physical.
See Rec. Doc. 27 at 7.
Plaintiff’s conclusory arguments do not create a genuine
issue of material fact. While the Medical Certificate included a
medical hold for further evaluation regarding Plaintiff’s high
blood pressure, the Certificate indicates that Plaintiff “has the
physical strength, agility, and flexibility to perform all of the
items listed in the instruction table.” Rec. Doc. 15-4 at 7. Though
the
Medical
Certificate
notes
some
“degenerative
changes”
in
Plaintiff’s spine, the Certificate concluded that Plaintiff’s
“Spine/Musculoskeletal” system was “Normal.” Id. at 6. Plaintiff
did not sign the Medical Certificate, but he does not dispute the
facts contained therein. See id. at 7. Moreover, Plaintiff filled
out
a
form
containing
almost
identical
information,
further
supporting the accuracy of the Medical Certificate. See id. at 2.
11
Viewed in the light most favorable to Plaintiff, the Medical
Certificate demonstrates that Defendant was willing to extend an
offer of employment even when the applicant had some level of prior
back injury. But, notably, the Medical Certificate still indicated
that
Plaintiff’s
health
was
within
normal
ranges
(with
the
exception of his blood pressure, which Defendant followed-up on
prior to making an offer of employment). See id. at 7.
Plaintiff primarily relies on Luwisch v. Am. Marine Corp. to
support his argument that there is a genuine issue of material
fact. See Rec. Doc. 27 at 7-8. In Luwisch, summary judgment on the
McCorpen defense was inappropriate because the defendant (1) never
specifically asked about the relevant medical history and (2) did
not rely on the pre-employment physical when making its hiring
decision. Luwisch
v. Am. Marine Corp., No. 17-3241, 2018 WL
3111931, at *2-3 (E.D. La. June 25, 2018). Neither factor is
present
here.
Defendant
repeatedly
asked
Plaintiff
about
the
relevant medical history, see Rec. Doc. 15-4 at 2-7, and relied on
the pre-employment physical when deciding to hire Plaintiff, see
Rec. Doc. 15-3 ¶¶ 24-26, including previously noted follow up.
The instant case is therefore more analogous to Dennis and
Chapman. In those cases, the plaintiffs provided partial answers
about their medical histories before being hired. See Dennis, 2016
WL 3689999, at *4-5; Chapman, 2016 WL 1393490, at *5. Their
employers provided evidence that, had they been provided with
12
complete information, they would have required additional medical
evaluation. See Dennis, 2016 WL 3689999, at *4-5; Chapman, 2016 WL
1393490, at *5. In both cases, the employers won summary judgment
on the McCorpen defense because there was no evidence that the
employers would have hired the plaintiffs had the plaintiffs been
truthful. See Dennis, 2016 WL 3689999, at *4-5; Chapman, 2016 WL
1393490, at *5. The plaintiffs’ arguments were speculative because
the uncontested evidence in each case showed that the employers
would
have
requested
additional
medical
information
prior
to
making a hiring decision. See Dennis, 2016 WL 3689999, at *4-5;
Chapman, 2016 WL 1393490, at *5. The same is true here.
Defendant
has
offered
uncontested
evidence
that,
had
Plaintiff fully disclosed his decade-long treatment for back and
leg
pain,
Defendant
would
have
required
additional
medical
inquiry prior to extending an offer of employment. There is no
genuine
issue
Plaintiff’s
physical.
claims
for
of
material
extensive
Summary
fact
deceptions
judgment
is
about
during
the
his
appropriate
materiality
of
pre-employment
on
instant
maintenance and cure.
New Orleans, Louisiana, this 8th day of August, 2018.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
13
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