Lebrun v. Baker Hughes Inc et al

Filing 130

MEMORANDUM RULING re 83 MOTION for Summary Judgment filed by Transocean Offshore Deepwater Drilling Inc. Signed by Magistrate Judge Carol B Whitehurst on 11/14/2017. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Lebrun

Civil Action No. 15-01828

versus

Magistrate Judge Carol B. Whitehurst

Baker Hughes Inc et al

By Consent of the Parties

MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment filed by Defendant,
Transocean Offshore Deepwater Drilling, Inc. (“Transocean”) [Rec. Doc. 83] and
Transocean’s Supplemental Memorandum in Support, [Rec. Doc. 127], Plaintiff,
Jonathan Lebrun’s, Memorandum in Opposition [Rec. Doc. 92] and Plaintiff’s
Supplemental Memorandum in Opposition [Rec. Doc. 126]. For the reasons that
follow, the Motion will be granted.
I. Background
Plaintiff, Jonathan Lebrun, worked for Baker Hughes Oilfield Operations, Inc.
(“BHOOI”) from December 2005 until April 24, 2015. According to Karen Johnson,
a Risk Management Analyst II for Transocean, Plaintiff was assigned to work aboard
Transocean’s drillship, DEEPWATER CHAMPION, for eighty-one (81) days in
2013 through 2014. R. 83-7, Decl. Of Johnson. His last hitch was from March 13,
2015 until April 24, 2015. Johnson further states that Plaintiff worked a total of 104

days on the DEEPWATER CHAMPION. Id.
Plaintiff alleges that while he was aboard the DEEPWATER CHAMPION he
collected geological samples from the drilling mud returns inside an enclosed “shaker
shack” located above the main deck.1 He further alleges that, as part of his duties as
a mud sampler, he had to enter and exit the shaker shack via the room’s “vacuum
sealed, 1/4 inch steel blast-proof shaker house door” multiple times per day. Plaintiff
contends he injured his lower back by having to repeatedly pry open the shaker house
door using his foot against the wall during his 12-hour shifts.2
Plaintiff was terminated by Baker Hughes on April 24, 2015, due to a
company-wide Reduction in Force caused by the downturn in the oilfield in 20142015. R. 83-8, Decl of Guidry. Plaintiff filed this action alleging claims under the
Jones Act. R. 1. On June 14, 2016, this Court found that Plaintiff was not a Jones Act
seaman. R. 44. In his Second Amended Complaint, Plaintiff alleged a claim for
unseaworthiness as a Sieracki seaman as well as for negligence and gross negligence
under the general maritime law; alternatively, Plaintiff alleged his action arises under
the Longshore and Harbor Workers Compensation Act (“LHWCA”) and the general

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Plaintiff’s job duties were to collect mud samples from shale shakers and deliver the mud
samples to on-site data engineers and geologists for analysis. R. 44.
2

The record provides that Plaintiff underwent surgery on May 18, 2015, in which his
neurological surgeon performed a lumbar laminectomy. R. 80-7, Exh. 22.
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maritime law. R. 56. On August 18, 2017, the Court denied Plaintiff’s Motion for
Summary Judgment for Sieracki Seaman status. R. 109. Thus, as a Longshoreman,
Plaintiff retained a negligence claim against Transocean, the operator of the
DEEPWATER CHAMPION.
In its Motion for Summary Judgment, Transocean seeks dismissal of Plaintiff’s
negligence action with prejudice, at plaintiff’s costs. Transocean contends that it had
no “turnover duty” to Plaintiff related to the condition of the shaker shack door that
Plaintiff alleged caused his back injury because the door was an “open and obvious”
condition which is not encompassed in the “turnover duty.” Plaintiff filed an
Opposition Memorandum reiterating that his back injury was caused by Transocean’s
negligence based on the vacuum seal on the shaker shack door.
On October 18, 2017, the Court conducted a hearing with oral argument on the
Motion.3 During the hearing, for the first time, counsel for Plaintiff argued there was
no issue of “turnover duty’ in this case because Plaintiff had no control over any
aspect of the DEEPWATER CHAMPION; he worked in the shaker shack with

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The parties consented to the undersigned Magistrate Judge on August 24, 2017. Plaintiff
filed its Opposition Memorandum to Transocean’s Motion at issue four (4) days after consenting
to this Court. R. 92. At that time, Plaintiff’s Motion for Summary Judgment as to Sieracki
Seaman status and Transocean’s Opposition, both filed in December, 2016, remained pending.
R. 59; 61. The Court denied Plaintiff’s Motion as to Sieracki Seaman on September 18, 2017. R.
108; 109. Because a large portion of Plaintiff’s Opposition Memorandum was directed toward
his Sieracki Seaman argument, the Court conducted the hearing with oral argument.
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Transocean shaker hands; and, Transocean never gave up any responsibility over the
shaker shack. Unofficial Hearing Transcript, 10/18/2017. Rather, Plaintiff argued
that the real issue in this case is whether or not Transocean breached the “active
control” duty by maintaining control over the venting system and thereby control of
the vacuum door through which Plaintiff had to enter and exit the shaker shack. Id.
Plaintiff conceded that there was no question that the door was an open and obvious
condition, but argued, presumably in the alternative, that the “no alternative”
exception to the open and obvious condition excluded any such issue. Id. Following
conclusion of the arguments, the Court ordered the parties to separately file
Supplemental Memoranda related to Plaintiff’s argument as to the “no alternative”
exception and Transocean’s “active control” duty. The parties complied with the
Court’s order. R. 126, 127.
II. Summary Judgment Standard
Summary judgment is appropriate if no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under
Rule 56(c), the moving party bears the initial burden of “informing the district court
of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986); see Stahl v. Novartis Pharms. Corp., 283 F.3d

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254, 263 (5th Cir.2002). The party moving for summary judgment must demonstrate
the absence of a genuine issue of material fact but need not negate the elements of the
nonmovant’s case. Exxon Corp. v. Oxxford Clothes XX, Inc., 109 F.3d 1070, 1074 (5th
Cir.1997). When the moving party, has met its Rule 56(c) burden, the nonmoving
party, cannot survive a summary judgment motion by resting on the mere allegations
of its pleadings. “[T]he nonmovant must identify specific evidence in the record and
articulate the manner in which that evidence supports that party’s claim.” Johnson v.
Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir.2004).
III. Legal Analysis
Section 905(b) of the LHWCA grants covered maritime workers an exclusive
remedy against a “vessel” for injuries caused by the vessel's negligence. See 33
U.S.C. § 905(b). The Act defines “vessel” broadly to include both the physical vessel
on which the worker was injured and “said vessel’s owner, owner pro hac vice, agent,
operator, charter or bare boat charterer, master, officer, or crew member.” 33 U.S.C.
§ 902(21). As the operator of the DEEPWATER CHAMPION, Transocean moves
the Court to find that there is no genuine dispute as to any material fact that
Transocean’s negligence did not substantially cause and/or contribute to Plaintiff’s
lumbar injuries and resulting surgery.

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In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981), the
U.S. Supreme Court articulated the scope of a vessel’s duties to longshoremen and
harbor workers under § 905(b). The Scindia Court explained that a stevedore was
required to provide “a reasonably safe” place to work and to take such safeguards
with respect to equipment and working conditions as necessary to avoid injury to
longshoremen, but the ship owes no such duty to them, and a vessel may rightfully
expect that a stevedore would perform his task properly without supervision by the
ship. Id. at 170. Transocean also relies on Helaire v. Mobil Oil Co., 709 F.2d 1031,
1036 (5th Cir.1983), in which the Fifth Circuit stated that “[t]he most basic principle
which emerges from Scindia is that the primary responsibility for the safety of the
longshoremen rests upon the stevedore.” Therefore, Transocean argues that the
Supreme Court and the Fifth Circuit have consistently recognized that the
responsibility for the safety of a maritime worker lies with the employer, such as
Baker Hughes, and not the vessel operator, in this case Transocean.
Nonetheless, the Supreme Court has outlined three general duties that vessel
owners/operators owe to covered workers under section 905(b):
The first, which courts have come to call the “turnover duty,” relates to
the condition of the ship upon the commencement of stevedoring
operations. The second duty, applicable once stevedoring operations
have begun, provides that a shipowner must exercise reasonable care to
prevent injuries to longshoremen in areas that remain under the “active
control of the vessel.” The third duty, called the “duty to intervene,”
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concerns the vessel's obligations with regard to cargo operations in areas
under the principal control of the independent stevedore.
Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 98 (1994). Although the principal
cases discussing these duties arose in the context of stevedoring operations, the Fifth
Circuit has held that the rationale of those cases “clearly applies to any independent
contractor and its harborworker employees covered by the LHWCA and working
aboard ship.” Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir.1982).
In its Motion, Transocean asserts that Plaintiff cannot prove Transocean
breached its “turnover duty” because the condition of the shaker shack door at issue
was open and obvious to Plaintiff and his co-workers.
A. Turnover Duty
A vessel owner has two distinct duties relating to the condition of the vessel at
the time it is turned over to the stevedore. First, the vessel owner must “exercise
ordinary care under the circumstances” to ensure that the vessel and its equipment are
“in such condition that an expert stevedore can carry on stevedoring operations with
reasonable safety.” Kirksey v. Tonghai Maritime, 535 F.3d 388, 392 (5th Cir.2008).
Second, “the owner owes a duty to warn the stevedore of latent or hidden dangers
which are known to the vessel owner or should have been known to it....” Id. Neither
duty encompasses dangers: “(1) [that are] open and obvious or (2) [that] a reasonably
competent stevedore should anticipate encountering.” Id.
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Plaintiff alleges he was injured by the repetitive opening of the vacuum sealed
shaker shack door on the DEEPWATER CHAMPION, a requirement of his job as a
mud sampler. Transocean contends it can only be held liable for negligence if the
injury-causing condition was latent or hidden, and not one that a reasonably competent
longshoreman such as Plaintiff should expect to encounter. Transocean asserts that
Plaintiff’s allegations that the shaker shack door was the mechanism of his injury, was
neither a latent nor hidden condition, but rather encompassed dangers that were open
and obvious that Plaintiff should have anticipated. Transocean cites the depositions
and declarations of Plaintiff as well as his co-workers on the DEEPWATER
CHAMPION, contending that the facts are not in dispute as to Plaintiff’s competence
and knowledge of the condition of the door at issue.
First, citing the deposition of Plaintiff’s co-workers, Matt McDonald and Jessica
Raines, Transocean contends that while both of these individuals were “smaller” than
Plaintiff4 and they opened the door on a regular basis and/or as many times as Plaintiff,
neither was injured opening the door. R. 83-4; 83-5. Plaintiff conceded in his
deposition that he had worked at least one hundred and eighteen (118) days since 2010
on other drilling rigs which were configured with an enclosed shaker room vented via

4

It is undisputed that Plaintiff was 6"4' and 280 pounds. Transocean describes McDonald as a
“much smaller man” and Raines as a “whisper-thin woman.” R. 83-2.
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a vacuum system. R. 83-11, Supp. Depo of LeBrun, pp. 13-16; 83-10.
Transocean also cites the “START Cards” which it encouraged all workers
aboard the rig to identify, report and mitigate safety hazards. R. 83-7. The record
indicates that Plaintiff regularly reported various minor safety concerns and then
reported those concerns were satisfactorily addressed and resolved. Id., pp.2-93. None
of the forty-six (46) Start Cards Plaintiff completed while on his final hitch aboard the
DEEPWATER CHAMPION made any mention of the shaker room door. Moreover,
Transocean asserts, no one aboard the DEEPWATER CHAMPION from the first year
of operation until the present, ever reported being injured by the shaker room door. Id.,
pp. 94-95.
Transocean contends Plaintiff cannot reasonably argue that he was incapable
of avoiding the alleged hazard when he and others had successfully avoided it for at
least 81 days prior to his injury; Nor can Plaintiff reasonably argue that he couldn’t
safely operate the door when he and others had done so thousands of times before his
alleged injury. Finally, Transocean contends that Plaintiff never reported concerns
related to the safety of the shaker shack door or any alleged injury caused by it.
Transocean argues that because the door at issue was open and obvious and Plaintiff
was fully aware of it, there is no duty upon Transocean as the operator of the vessel
in this case.

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In his Opposition Memorandum, Plaintiff focuses on disputing Transocean’s
statement in its Memorandum that it “had an impeccable safety culture.” R. 83-2, p.
7. Plaintiff cites the United States Coast Guard’s Report of Investigation in the
Circumstances Surrounding the Explosion, Fire Sinking, and the Loss of Eleven Crew
Members Aboard the MOBILE OFFSHORE DRILLING UNIT DEEPWATER
HORIZON. R. 79-4. He contends that the document provides that maintenance
deficiencies were found on the “DEEPWATER HORIZON and other vessels”
including that “Watertight doors were inoperable” and “Watertight hatches needed
replacement.” Id. He asserts that the document demonstrates that Transocean had a
history of poor maintenance on its vessels. Plaintiff, however, provides nothing to
support that the Report applies in any way to the DEEPWATER CHAMPION.
Plaintiff next contends that contrary to Transocean’s contentions, his coworkers confirmed that the shaker door was difficult to open and often could not be
opened at all. Plaintiff’s co-worker, Jamison Lookofsky stated in her deposition,
Q. Did it ever come to your attention that the doors leading to the shaker
shack could be difficult to open due to a vacuum created by the venting
or purging of gases
A. Yes.
Q. How did that come to your attention?
A. If I had to go out there and get into the shaker house or if any of the
sample catchers were to come in and say that the purge is too much on
the door and they can’t get in.
Q. They could not get in at all?
A. Right.
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Q. How many times did that happen?
A. In a week? In a day? Like -- it was rare --it's rarely a daily event,
but it's often times maybe once or twice a week, they would have the
purge pretty high. And there's also -- it also depends on what we're doing
as far as rig operations go.
R. 83-9, p. 22. In his deposition, co-worker Jacob Godin stated that it wasn’t hard for
him to open the shaker door because he works out, Jessica Raines “had a hard time
with it.” Godin explained that he had watched “her try to open it and she was just
having a hard time, so I would just do it for her.” R. 80-5, pp. 12-13. Jared Martin,
Transocean’s drilling superintendent acknowledged that he knew the shaker shack
venting system made opening the door difficult. R. 80-7, Exh. 19, p.39. He also
confirmed that at times the door could not be opened at all. Id. at pp 40-41. Martin
stated that if the shaker shack door was inoperable, a worker could tell the Transocean
“shaker hand” who in turn would call the driller - who would then call the vessel’s
bridge to dial down the venting system. Id.
During the October 18, 2017 hearing on oral argument and in his Supplemental
Memorandum in Opposition to the instant motion, R. 126, Plaintiff contends that
despite Transocean’s argument, the “turnover duty” is not at issue because “Plaintiff
never assumed custody or control over the shaker shack. Transocean never ‘turned
over’ the shaker shack to Plaintiff or his co-workers.” R. 125, p. 3. Plaintiff concedes
that the shaker shack door is an open and obvious condition and is excluded under the
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turnover duty. Despite the above contentions/concessions, Plaintiff argues that even
if the open and obvious defense is applicable, the “no alternative” exception applies
to exclude the defense.
1. No Alternative Exception
The Fifth Circuit has “long held that when an independent contractor has actual
knowledge of a remediable hazardous condition[,] the vessel owner’s turnover duty
is not implicated unless the contractor’s ‘only alternatives would be to leave his job
or face trouble for delaying work.’” Manuel v. Cameron Offshore Boats, Inc., 103 F.3d
31, 34 (5th Cir.1997). Plaintiff agrees that “the inoperable condition of the shaker
shack vacuum sealed door was open and obvious,” but argues that he had no
alternative to “wrestling” with the door other than quitting his job.
Plaintiff made no allegation related to the “no alternative” exception in his
Complaint, and the Court has found no evidence in the record to suggest that Plaintiff
had no alternative to a problem opening the door other than quit. Nor is there any
evidence that Plaintiff, or any co-worker, faced trouble for delaying work because of
any instance involving the shaker shack door. In fact, Plaintiff has admitted that he and
other BHOOI employees routinely asked co-workers for assistance in opening the door
and/or that the vacuum system be turned down temporarily in order to relieve the
pressure on the door to make it easier to open. While Plaintiff suggests the available
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alternative of turning down the vacuum system was so complex and convoluted that
it was an “unduly impracticable or time-consuming alternative,” the record indicates
that Transocean had no issues with such a request from any BHOOI worker. R. 80-7,
Depo. Of Martin, Exh. 19, pp. 40-41.
The Court has considered all of the evidence and the parties’ memoranda and
applicable jurisprudence, in particular Plaintiff’s Supplemental Memorandum
conceding that the “turnover duty” does not apply in this case. The Court finds there
are no genuine issues in dispute that Transocean did not breach its turnover duty. But
even assuming arguendo that the duty does apply, the Court finds it is undisputed that
the condition of the shaker shack door was open and obvious and the “no alternative”
exception does not apply in this case.
B. Active Control Duty
In his Supplemental Memorandum, Plaintiff also asserted that Transocean’s
duty to Plaintiff was under the “active control” duty. Under this duty, a vessel owner
may be liable if it actively involves itself in the contractor's operations and negligently
injures an employee, or fails to exercise due care to protect the contractor and its
employees from hazards in the areas of the vessel still under the owner's control.
Fontenot v. McCall's Boat Rentals, Inc., 227 Fed.Appx. 397, 403, (5th Cir. 2007)
“[T]he owner has no general duty by way of supervision or inspection to discover
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dangerous conditions that develop in the area assigned to the stevedore.” Helaire v.
Mobile Oil Corp., 709 F .2d 1031, 1036 (5th Cir.1983) But a vessel owner may be
liable if it fails “to exercise due care to avoid exposing longshoremen to harm from
hazards they may encounter in areas, or from equipment, under the active control of
the vessel during the stevedoring operation.” Pimental v. LTD Canadian Pac. Bul, 965
F.2d 13, 16 (5th Cir.1992).
“To determine whether a vessel owner retains active control over a contractor’s
work, courts consider “whether the area in question is within the contractor’s work
area, whether the work area has been turned over to the contractor, and whether the
vessel owner controls the methods and operative details of the stevedore’s work.”
Hudson v. Schlumberger Tech. Corp., 452 F. App'x 528, 532–33 (5th Cir.2011)
(quoting Dow v. Oldendorff Carriers GMBH & Co., 387 Fed. App'x 504, 507 (5th
Cir.2010)). “[A]lthough a vessel owner no longer retains the primary responsibility for
safety in a work area turned over to an independent contractor, no such cession results
as relates to areas or equipment over which the vessel's crew retains operational
control.” Manuel v. Cameron Offshore Boats, Inc., 103 F.3d 31, 34 (5th Cir.1997).
Transocean asserts that it “did not in any way direct or control the manner in
which the plaintiff performed his job duties, nor ... have any supervisory authority of
the plaintiff or any of his co-workers in the shaker room.” R. 127, p. Neither
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Transocean’s motion nor its Supplemental Memorandum address the “active control”
duty raised by Plaintiff in oral argument and in his Supplemental Memoranda.
Plaintiff never alleges in his Complaint that Transocean breached the “turnover duty.”
Rather Plaintiff broadly contends that his “injuries stemmed from the negligence of
... Transocean.” R. 1, ¶ 12. It is axiomatic that a summary judgment may be rendered
or affirmed only as to those issues set forth in the motion under consideration by the
court at that time. Accordingly, the Court will grant Transocean’s Motion as to the
“turnover duty” but will not dismiss this case in light of Plaintiff’s assertion that
Transocean breached the “active control” duty.
IV. Conclusion
Based on the foregoing Transocean Offshore Deepwater Drilling, Inc.’s Motion
For Summary Judgment [Rec. Doc. 83] will be GRANTED.
THUS DONE AND SIGNED this 14th day of November, 2017, at Lafayette,
Louisiana.

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