Provost v. Cheramie Marine, LLC

Filing 15

ORDER AND REASONS granting 8 Motion for Partial Summary Judgment. The Court GRANTS defendant's motion for partial summary judgment and DISMISSES plaintiff's claims for maintenance and cure for anxiety, depression, and PTSD WITH PREJUDICE. Signed by Judge Sarah S Vance on 1/2/2025. (meb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTIAN PROVOST
VERSUS

CIVIL ACTION
NO. 24-1735

CHERAMIE MARINE, LLC

SECTION “R” (1)

ORDER AND REASONS
Before the Court is defendant Cheramie Marine, LLC’s (“Cheramie
Marine”) opposed1 motion for partial summary judgment.2 For the following
reasons, the Court grants the motion.
I.

BACKGROUND
This case arises from injuries that plaintiff Christian Provost allegedly

suffered while working for defendant Cheramie Marine. In November 2023,
Provost applied for a job as a deckhand aboard the M/V MARIE
CHERAMIE.3 As part of the required pre-employment physical, Provost
filled out a medical questionnaire and marked that he did not have, nor
previously had, various medical conditions including “depression,” a “history
of suicide attempts,” “anxiety,” “other psychiatric disease,” or “any

1
2
3

R. Doc. 11.
R. Doc. 8.
R. Doc. 18-15 ¶ 15.

hospitalization.”4 But in fact, Provost had an extensive history of depression,
anxiety, concussions, bipolar disorder, and suicidality, including a suicide
attempt that resulted in his psychiatric hospitalization.5
On January 26, 2024, Provost allegedly crushed his right hand in an
accident while disentangling chains between two ship fenders.6 Provost
asserts that this accident caused him further physical injuries to his neck,
back, shoulder, and knee, as well as psychological injuries including posttraumatic stress disorder (“PTSD”), depression, anxiety, and complex
regional pain syndrome.7 On July 11, 2024, Provost sued Cheramie Marine
under the Jones Act and general maritime law, asserting claims of
negligence, unseaworthiness, and maintenance and cure.8
Cheramie Marine now moves for partial summary judgment and seeks
dismissal of Provost’s claim for maintenance and cure as it relates to his
alleged psychological injuries under McCorpen v. Central Gulf Corp.,
396 F.2d 547 (5th Cir. 1968).9 Provost opposes the motion.10 The Court
considers the parties’ arguments below.

4
5
6
7
8
9
10

R. Doc. 8-15 ¶¶ 17-19.
Id. ¶¶ 1-11, 13-14.
R. Doc. 1 ¶ 4.
Id. ¶ 8.
See id.
See R. Doc. 8.
See R. Doc. 11.
2

II.

LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins., 530 F.3d 395, 398-99 (5th Cir. 2008) (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); and Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). All reasonable
inferences are drawn in favor of the nonmoving party, but “unsupported
allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for
summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
(5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075
(noting that the moving party’s “burden is not satisfied with ‘some
metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by
3

‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence” (citations
omitted)). “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.” EEOC
v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325.

The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings but must identify specific facts that establish a genuine issue for
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).
III. DISCUSSION
Seamen have a right to maintenance and cure for injuries that they
suffer in the course of their service on a vessel, regardless of whether the
4

shipowner was at fault or the vessel was unseaworthy. See O’Donnell v.
Great Lakes Dredge & Dock Co., 318 U.S. 36, 41-43 (1943). “Maintenance”
is the right of a seaman to food and lodging if he becomes injured during the
course of fulfilling his duties to the ship. See Atl. Sounding Co. v. Townsend,
557 U.S. 404, 413 (2009). “Cure” is the right to necessary medical services.
Id. Before a plaintiff can recover maintenance and cure, he bears the burden
of proving the following facts: (1) he was working as a seaman, (2) he became
ill or was injured while in the vessel’s service, and (3) he lost wages or
incurred expenses stemming from treatment or injury.

Thomas J.

Schoenbaum, 1 Admiralty & Mar. Law, § 6:28 (6th ed.).
Maintenance and cure may be awarded “even where the seaman has
suffered from an illness pre-existing his employment.” McCorpen, 396 F.2d
at 548. But as a “general principle,” the benefits “will be denied where he
knowingly or fraudulently conceals his illness from the shipowner.” Id.; see
also Bodden v. Prof’l Divers of New Orleans Inc., No. 01-795, 2001 WL
1223589, at *2 (E.D. La. Oct. 12, 2001) (discussing the McCorpen defense).
Specifically, if the shipowner requires a prospective seaman to undergo a
pre-hiring medical evaluation, and the seaman either intentionally
misrepresents or conceals material medical facts, then the seaman is not
entitled to an award of maintenance and cure. See McCorpen, 396 F.2d at
5

549. For a shipowner to establish the McCorpen defense to deny a seaman’s
maintenance and cure claim, the employer must show that: (1) the seaman
intentionally

misrepresented

or

concealed

medical

facts,

(2)

the

misrepresented or concealed facts were material to the employer’s hiring
decision, and (3) there exists a causal link between the pre-existing disability
that was concealed and the disability suffered during the voyage. Id.; see also
Brown v. Parker Offshore Drilling, 410 F.3d 166, 11 (5th Cir. 2005) (finding
the McCorpen defense established).
Plaintiff does not contest that he intentionally concealed his preexisting psychological conditions and admits that he had a history of
suicidality, depression, anxiety, and psychiatric hospitalization, which he
failed to disclose on his pre-employment questionnaire.11 See Meche v.
Doucet, 777 F.3d 237, 248 (5th Cir. 2015) (holding that because plaintiff
“‘knew that the information on the application was not correct,’ [he]
intentionally concealed his prior injuries as a matter of law” (quoting
Caulfield v. Kathryn Rae Towing, No. 88-5329, 1989 WL 121586, at *2
(E.D. La. June 6, 1989)). Plaintiff also does not contest that these concealed

11

R. Doc. 8-15 ¶¶ 1-11 (describing plaintiff’s history of mental illness),
¶¶ 15-19 (describing plaintiff’s misrepresentation of history of mental
illness during pre-employment physical); see R. Doc. 11-8 ¶¶ 1-11, 13-19
(admitting to defendant’s statements of uncontested material facts).
6

conditions were material to defendant’s decision to hire him and admits that
Cheramie Marine would not have cleared him for duty if he had disclosed his
history of anxiety and depression, nor hired him if he had disclosed his prior
suicide attempt.12 See Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th
Cir. 2006) (per curiam) (holding that seaman’s nondisclosure of medical
history is material when disclosure “would have either prevented his
employment, or at least delayed it”).

The Court therefore finds that

defendant has established that it is entitled to summary judgment on the first
two prongs of the McCorpen test.
The only remaining question for the Court is whether defendant has
shown a “causal link between the pre-existing disability that was concealed,
and the disability incurred during the voyage.” Brown, 410 F.3d at 176
(citation omitted). The Fifth Circuit finds a causal link when the injuries at
issue involve the same body part. See id. In Brown v. Parker Drilling
Offshore Corp., 410 F.3d 166 (5th Cir. 2005), the Fifth Circuit found there to
be a sufficient causal link when the plaintiff’s “prior back strains were to the
same lumbar-spine region as his current back problem.” Id. at 176. In doing

12

R. Doc. 8-15 ¶¶ 20-24 (describing how personnel manager and nurse
practitioner would not have hired plaintiff if history of mental illness
was known); see R. Doc. 11-8 ¶¶ 20-24 (admitting to defendant’s
statements of uncontested material facts).
7

so, the Fifth Circuit held that that the defendant “need not prove that the
prior injuries are the sole cause[]” of plaintiff’s current condition. Id.; see
also Jauch, 470 F.3d at 212-13 (finding requisite connection when new back
injury was “virtually identical” to previous back injury). Following Brown,
courts in the Fifth Circuit will therefore find that “the new injury is related to
the old injury, irrespective of their root causes,” when “the old injury and the
new injury affected the same body part.” Johnson v. Cenac Towing, Inc.,
599 F. Supp. 2d 721, 728-29 (E.D. La. 2009) (surveying the application of the
causality requirement in the Fifth Circuit); see also 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”); Bergeron v. B & J Martin, Inc., 2005 WL 3542898, at *4 (E.D.
La. 2005) (finding requisite connection when plaintiff experienced the “same
breathing difficulties” before employment and aboard the vessel).
Defendant contends that this ‘same body part’ test applies equally to
psychological conditions and physical injuries, and therefore that plaintiff’s
psychiatric history should preclude maintenance and cure for any
psychological injuries he allegedly incurred while working.13 Plaintiff’s brief
concedes the clear causal link between his pre-existing anxiety and

13

R. Doc. 8-1 at 17-18.
8

depression and the anxiety and depression that he alleges to have sustained
in the accident, precluding his claims for maintenance and cure for these
conditions.14 Therefore, defendant is entitled to the McCorpen defense for
plaintiff’s maintenance and cure claims for anxiety and depression. But
plaintiff argues that the other psychological ailments he allegedly incurred in
the accident are distinct from and unrelated to his pre-existing psychological
conditions.15 Specifically, he identifies several diagnoses for which he claims
to be entitled to maintenance and cure, including complex regional pain
syndrome (“CRPS”), neurogenic thoracic outlet syndrome (“TOS”) of his
right brachial plexus, and PTSD.16 Defendant acknowledges that CRPS and
TOS are physical pain conditions, and they are not the subject of its motion
for partial summary judgment.17 Therefore, the Court must consider only
whether there is a causal link between plaintiff’s pre-existing anxiety and
depression and the PTSD that he allegedly suffered in the accident.
Few courts have considered McCorpen in the context of mental illness.
In Kaminaga v. Bisso Marine, No. 13-616, 2013 WL 6858701 (E.D. La. Dec.

14

15
16
17

R. Doc. 11 at 14 (arguing only that the McCorpen defense “does not
preclude his psychological treatment” for conditions that are
“independent and different diagnoses from depression and anxiety”
and “hav[e] no relation to depression and anxiety”).
R. Doc. 11 at 14-15.
Id. at 9-13.
R. Doc. 12-1 at 1.
9

30, 2013), this Court found a sufficient “causal link” to grant defendant’s
unopposed motion for summary judgment when evidence established that
the “PTSD [plaintiff] incurred after [an] explosion” was “related to his preexisting PTSD.” Id. at *1-2. And in Collins v. Cenac Marine Services, LLC,
No. 16-1662, 2017 WL 5625873 (E.D. La. Nov. 22, 2017) (Africk, J.), a
different section of the Eastern District of Louisiana held that plaintiff could
not “recover maintenance and cure for mental health conditions preexisting
[his] employment” when “both parties agree[d]” that plaintiff’s “various preexisting injuries to his mind and/or psyche affect the same area of his body
that he claims he injured/re-aggravated while working” for defendant. Id.
at *5.
This Court is uneasy about applying the “same body part” test to
disqualify any two conditions that fall under the rubric of psychiatric
conditions. The Diagnostic and Statistical Manual of Mental Disorders
(“DSM-5-TR”) identifies a broad range of well over 250 psychiatric disorders
ranging from eating disorders to schizophrenia to agoraphobia and
narcolepsy.18 This diversity suggests that facile application of the same body

18

American Psychiatric Association (2022); see also Alina Suris, et al.,
The Evolution of the Classification of Psychiatric Disorders,
6 Behavioral Sci. 5, 12 (2016) (describing the historical evolution of
psychiatric diagnostic categories and criteria in DSM editions).
10

part test in the context of psychological conditions could result in the linkage
of conditions that have no rational connection. But nevertheless, because
there is sufficient evidence here to demonstrate a relationship between
plaintiff’s history of anxiety and depression and his alleged PTSD, the Court
need not determine whether the “same body part” test forecloses
maintenance and cure for all psychological injuries when a plaintiff fails to
disclose pre-existing psychological conditions. The testimony of plaintiff’s
own experts demonstrates the substantial likelihood that his undisclosed and
asserted psychological conditions are interrelated.
Dr. John Thompson, plaintiff’s expert psychiatrist, describes the
plaintiff experiencing “fear,” “anxiety,” “intrusive thoughts,” and “distressing
recollections,” which form the basis of his PTSD diagnosis.19

But Dr.

Thompson opines that plaintiff’s “preexisting psychiatric issues including a
brief hospitalization after a breakup as well as physical and sexual abuse as
a child . . . coupled with plaintiff’s accident . . . likely results in his present
functioning.”20 See, e.g., Meche, 777 F.3d at 249 (finding that a “connection
exists between the withheld information and the injury complained of in the
lawsuit” when defendant “aggravated his pre-existing lumbar illness” while

19
20

R. Doc. 8-3 at 3-7.
Id. at 8.
11

lifting a hatch cover on board); Luwisch v. Am. Marine Corp., No. 17-3241,
2019 WL 1435932, at *7-10 (E.D. La. March 31, 2019) (holding that
defendant was “entitled to the McCorpen defense and [was] relieved of its
duty to provide maintenance and cure” for accident that “exacerbated
Plaintiff’s [undisclosed] pre-existing” condition), aff’d, 956 F.3d 320 (5th
Cir. 2020).

Likewise, Dr. John Macgregor, plaintiff’s other expert

psychiatrist, opined that plaintiff’s PTSD, panic disorder, and major
depressive disorder “were interrelated.”21 There is no genuine dispute of
material fact that defendant’s incurred psychological injuries related to the
pre-existing psychiatric conditions that he failed to disclose. Therefore, the
Court finds that defendant satisfies its burden as to the third prong of the
McCorpen test. Defendant is entitled to summary judgment for plaintiff’s
claim to maintenance and cure for anxiety, depression, and PTSD.

21

R. Doc. 11-5 at 5.
12

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion for

partial summary judgment and DISMISSES plaintiff’s claims for
maintenance and cure for anxiety, depression, and PTSD WITH
PREJUDICE.

New Orleans, Louisiana, this _____
2nd day of January, 2025.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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