Fauver v. Seadrill Americas, Inc.
Filing
52
ORDER granting 43 Motion for Summary Judgment; finding as moot 50 Motion in Limine Signed by Honorable David C. Bramlette, III on 7/28/2016 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
DONALD FAUVER
PLAINTIFF
VS.
CIVIL ACTION NO. 5:15-cv-49(DCB)(MTP)
SEADRILL AMERICAS, INC.
DEFENDANT
MEMORANDUM OPINION AND ORDER
This case is before the Court on the defendant Seadrill
Americas, Inc. (“Seadrill”)’s Motion for Summary Judgment (docket
entry 43).
Also before the Court is a Motion in Limine filed by
Seadrill (docket entry 50).
motions,
the
plaintiff’s
Having carefully considered the
response
to
the
motion
for
summary
judgment, the memoranda of the parties, and the applicable law, the
Court finds as follows:
In this maritime personal injury action under the Jones Act
(46 U.S.C. § 30104)(formerly 46 U.S.C. § 688), the plaintiff,
Donald Fauver (“Fauver”), a former member of the crew of the
offshore drilling rig M/V WEST PEGASUS (“WEST PEGASUS”), seeks
damages for the alleged failure of his employer, Seadrill, to
transport him promptly to shore for medical treatment, after he
reported chest pains and dizziness on the rig.
Seadrill disputes
there was an avoidable delay in taking the plaintiff to the
hospital, and disputes that it was otherwise negligent; however,
that is not the issue raised in its motion for summary judgment.
Rather, the defendant’s motion is based solely on its claim that
there is a complete absence of competent medical evidence that the
defendant’s alleged negligence was in any way a cause of the
plaintiff’s subsequent heart attack and alleged disability.
According
to
the
defendant,
both
the
plaintiff
and
his
treating physician have certified that plaintiff’s condition does
not arise out of his employment with defendant.
Therefore,
Seadrill asserts, in the absence of such causation evidence, the
plaintiff cannot prevail at trial and his claims must be dismissed
with prejudice as a matter of law.
I. Facts
On June 5, 2012, the plaintiff was working as a mechanic
aboard the WEST PEGASUS, a semi-submersible drilling rig which was
then
operating
in
the
territorial
waters
of
Mexico.
At
approximately 8:00 a.m. that day, Fauver reported that he was
having chest pains and had fainted in his quarters.
He was able to
walk under his own power to the rig infirmary where the on-board
medic took his blood pressure and performed the first of a series
of EKGs, all of which were normal.
The medic prepared a written
report which was sent electronically to NuPhysicia – a physician’s
group based in Houston, Texas, contracted by Seadrill to provide
remote medical care and advice.
Shortly thereafter, the medic
consulted by videoconference with NuPhysicia’s Dr. Barry Diner.
Although at that time Fauver was not in any acute distress,
Dr. Diner recommended that he be taken off the rig.
2
Fauver then
walked without assistance from the medic’s office to his quarters
and
packed
his
bags
while
transporting him were made.
the
necessary
arrangements
for
The plaintiff was taken by helicopter
to shore in Mexico, and from there flown by chartered airplane to
Brownsville,
Texas,
then
transported
by
ambulance
to
Valley
Regional Medical Center in Brownsville, Texas, located just over
the Mexican border.
He was accompanied throughout by the rig
medic.
Fauver arrived at Valley Regional at approximately 4:11 p.m.
The rig medic remained with him for approximately one hour after
arrival.
care
was
The plaintiff was stable during that time, so no urgent
provided
by
the
hospital
staff.
Nor
was
Fauver
transferred to the hospital’s cardiac or intensive care unit, but
was simply kept under observation. Six hours after the plaintiff’s
arrival at Valley Regional, during which time he had been in no
acute distress and had been in the exclusive care of hospital
personnel, he inexplicably went into cardiac arrest and had to be
resuscitated.
He was thereafter treated at Valley Regional and
discharged within a few days after insertion of a stent in a
cardiac artery.
The plaintiff was subsequently placed under the care of Dr.
George Reynolds, a cardiologist who had previously treated Fauver
for an earlier heart problem prior to the June 2012 incident on the
rig.
Dr. Reynolds followed the plaintiff’s progress for several
3
months and on December 20, 2012, released him to return to his
normal work without any physical restriction whatsoever.
The
plaintiff
problems.
claims
that
he
continues
to
have
cardiac
In his lawsuit he alleges specifically that the time
which passed between when the decision was made to remove him from
the rig and the time he arrived at Valley Regional in Brownsville
was the cause of his heart attack and of ongoing heart problems
which
the
plaintiff
claims
are
permanently
disabling,
notwithstanding the fact that the ambulance that transported him to
the hospital did so on a non-emergency basis, and notwithstanding
the fact that he was in stable condition in the hospital for six
hours before the attack occurred.
The plaintiff’s employment with the defendant ended in May of
2014.
In late July and early August of 2014, both the plaintiff
and the plaintiff’s treating physician provided statements to the
plaintiff’s disability carrier.
certified
that
Fauver’s
In these statements, they both
condition
did
not
arise
out
of
the
plaintiff’s employment with the defendant.
II. Summary Judgment Standard
Summary judgment is proper where there is no genuine issue as
to any material fact and the moving party is entitled to a judgment
as a matter of law.
U.S. 317 (1986).
Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477
To avoid summary judgment, a plaintiff must
produce evidence of “specific facts showing the existence of a
4
genuine issue for trial.” Foulston Siefkin LLP v. Wells Fargo Bank
of Texas N.A., 465 F.3d 211, 214 (5th Cir. 2006).
A factual issue
is “material” only if its resolution could affect the outcome of
the action.
Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc.,
482 F.3d 408, 411 (5th Cir. 2007).
summary
judgment
with
conclusory
A plaintiff cannot resist
allegations,
assertions, or only a scintilla of evidence.
unsubstantiated
Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc).
III. Causation
In order to prevail on the issue of medical causation in a
Jones Act case, the plaintiff must present expert medical evidence
that
there
relationship
is
more
exists
than
a
between
mere
a
possibility
Jones
Act
negligence and a seaman’s alleged injury.1
that
employer’s
a
causal
alleged
In order to prevail at
trial, the plaintiff must show not only that there was an avoidable
delay, i.e. that Seadrill was negligent, but also that this delay
caused his subsequent heart attack, meaning that without the delay
1
Johnson v. Horizon Offshore Contractors, Inc., 2008 WL 916256,
at *4 (E.D. La. Mar. 31, 2008); Hancock v. Diamond Offshore Drilling,
Inc., 2008 WL 3501015, at *1 (E.D. La. Aug. 8, 2008); Moore v.
Chesapeake & Ohio Ry. Co., 340 U.S. 573, 578 (1951)(“Speculation
cannot supply the place of proof.”); Mayhew v. Bell S.S. Co., 917
F.2d 961, 964 (6th Cir.1990)(holding that in a Jones Act negligence
case, “a medical expert must be able to articulate that it is likely
that the defendant’s negligence, or more than possible that the
defendant’s negligence, had a causal relationship with the injury and
disability for which the plaintiff seeks damages); Young v. Illinois
Cent. R. Co., 941 F.2d 1212 (7th Cir. 1991)(holding that the
possibility of a causal link between the plaintiff’s injuries and
the railroad’s negligence is not probative evidence of causation).
5
it is more likely than not the heart attack would not have
occurred.2
With respect to medical causation in a Jones Act case, the
Fifth Circuit has clearly defined the test: “In a Jones Act case,
a seaman has the burden of proving by medical testimony that his
injuries were due to the defendant’s negligence.” Johnson, 2008 WL
916256 at *4 (citing Ginter v. Sea Support Services L.L.C., 2001 WL
1602154 (E.D. La. Dec. 12, 2001)).
The
Court’s
Scheduling
Order
in
this
case
required
the
plaintiff to designate the experts he will call at trial on or
before December 1, 2015.
In addition, the plaintiff was required
to provide a report from the experts so designated, summarizing the
experts’ views and anticipated testimony.
On December 1, 2015,
plaintiff served on defense counsel a designation of Dr. Lucius M.
Lampton as an expert in this case.
The designation consisted
merely of counsel’s description of Dr. Lampton’s qualifications
(who, notably, is only a “family medicine” physician, not a
cardiologist, and therefore is not per se qualified to opine on
matters within the cardiology specialty), and counsel’s summary of
Dr. Lampton’s anticipated testimony.
2
No report from Dr. Lampton
In a Jones Act case such as this, the plaintiff must show that
(1) a duty was owed by the defendant to the plaintiff; (2) breach of
that duty; and (3) a causative link between that breach and damages
sustained by the plaintiff. Under the Act, an employer is liable if
its negligent breach of duty caused the seaman’s injury. See Moore v.
Omega Protein, Inc., 459 F. App’x 339, 341 (5th Cir. 2012).
6
was ever produced.
In
addition,
even
plaintiff’s
counsel’s
summary
of
the
anticipated testimony from Dr. Lampton (who has never seen the
plaintiff) is not enough to establish causation.
The designation
recites that:
Dr. Lampton will testify that the electrocardiogram and
other laboratory tests available in a hospital setting
should have been provided [plaintiff] promptly, and a
failure to provide prompt and adequate medical care would
typically adversely affect the extent of any damage to
the heart muscle caused by a myocardial infarction.
Designation of Dr. Lampton (Exhibit C to defendant’s motion).
There is no representation by the plaintiff that Dr. Lampton
is of the opinion that the time which passed before Fauver was
delivered to the hospital was the cause of his heart attack six
hours after his arrival.
Rather, Dr. Lampton’s presumed testimony
(as a family doctor and not as a cardiologist), is simply that the
failure to provide prompt medical cared would “typically” adversely
affect
a
heart
patient.
Such
a
generic
statement
does
not
establish a prima facie case of medical causation, without which
the plaintiff cannot recover as a matter of law. Furthermore, this
purported testimony does not even reach the level of speculation or
conjecture, which still would be insufficient.
As noted above, after his heart attack in Texas the plaintiff
returned to the care of Dr. George Reynolds.
timely designated as an expert.
Dr. Reynolds was not
He was, however, so designated by
plaintiff’s counsel on February 5, 2016 although, again, the
7
designation did not include a written report from Dr. Reynolds but
only counsel’s summary of his anticipated testimony.
Designation
of Dr. Reynolds (Exhibit D to defendant’s motion).
Dr.
Reynolds
was
deposed
on
December
questioned on the issue of causation.
4,
2015,3
and
was
Critically, he never
expressed the view that in his professional medical judgment it is
more likely than not that the time which passed in transporting the
plaintiff to the hospital caused the plaintiff’s heart attack
sustained six hours later; nor did Dr. Reynolds opine that any of
Fauver’s alleged injuries were caused by any alleged delay.
Further, by his own admission, Dr. Reynolds did not have the
background information regarding plaintiff’s transportation to the
hospital that would be necessary for him to form a view on the
issue of medical causation:
Q: Okay. One of the allegations in this case,
Reynolds, is that Mr. Fauver was not taken to
hospital promptly enough.
Do you feel that you
enough information right now one way or another to
an opinion about that?
Dr.
the
have
have
A: Well, just in general, if - you know - you know,
coronary diseases are our biggest killer of, especially
males, and that the scenario of severe chest pain and
then true syncope enough that you don’t protect yourself,
you fall and hurt yourself, is usually a sign of
something serious going on. You do not always have to
have EKG changes, but I’m not sure - I don’t have any
access to EKGs or anything like that and - but it’s just
the clinical feel, and it depends upon the communication
3
The defendant does not waive any objection it may have as to
Dr. Reynolds’ trial testimony on grounds that he was not timely
designated and has never produced a written report. The defendant’s
present motion, however, is not based on such objections.
8
between the outlying place and the - and the treating
place, the flavor they get as far as the severity and the
urgency to get from point A to point B and the potential
- potential care that may be given during that time
frame.
Q: Right.
A: You know, if you get a - usually, you know, if there’s
any question something acute cardiac is going on, time is
muscle.
And sometimes, unfortunately, the - and for
later stuff with him, sometimes it’s not always - it
doesn’t - sometimes the muscle stuff shows up later and
not sooner and –
Q: But aside from the generalities, I’m really talking
about this particular patient. Do you feel that you’re
able to render any opinion about how his medical course
might have been impacted by things that happened on the
day of the incident, June 5, 2012, and - and do you know
enough to have an opinion?
A: Well, you know, I was not there, I didn’t know exactly
what he looked like, whether he was sweaty or pale or how
out he went, you know, how long he was out and
symptomology, so it’s difficult to give a specific
recommendation, but in general, it you have something
like this go on, the quicker you get to somebody the
better.
Q: Sure, but you don’t know - from what you just said,
you don’t know the symptoms that he had when he was on
the rig. You don’t know what medical treatment might
have been provided to him on the rig, you don’t know what
the results of EKGs were.
A: No.
Q: You don’t know how long he was in the hospital before
he had the fibrillation event. You don’t know any of
those things?
A: I think he - just glancing through this, I - I’m not
sure if he was still - let’s see - whether he was still
in the emergency room in Brownsville when he fibrillated
or not, but we - in retrospect, you know, this retrospect
is 20/20. Most likely the syncope was an arrhythmia,
but, thankfully, it was a spontaneous - of course, no one
9
can know that being - you know, being fair, nobody would
know that for sure, but it would be something to be very
worrisome, but I’m a cardiologist, and I hear this story
and go uh-oh, you know, that - you know, something is
going on. You’ve got to be monitored and stuff and get
him here as fast as possible.
Q: All right. As you sit here now, do you have any idea
how long he was in the hospital in Brownsville before he
had the fibrillation event?
A: No, sir.
Q: Okay. If I told you that it was six hours that he was
in the hospital before he had the fibrillation event,
would that surprise you?
A: I wouldn’t be surprised by anything at this stage of
the game, but I think he was just very fortunate if he
had had the previous - first episode was Vtach, and then
the - and if he - and which could have correlated, you
know, to a - you know, when a muscle that’s not used to
not having blood, and it doesn’t have blood, it gets
really unhappy, and one of the things that manifest is
rhythm problems, and in retrospect, it’s probably related
to an occlusion, not quite occluded, occlusion that
triggered some of his symptoms and the arrhythmias. And
I’m not - and I think he was just being looked at after,
you know, not by people during that time frame because he
could have fibrillated at any point at that point of a
reclosed artery again, but then when they looked shortly
thereafter, the vessel was opened, but it showed evidence
for a rupture, and it wasn’t as a big a clot burden at
that point. So it’s just - yeah, it’s hard, you know,
three years after the fact without being there or being
on the - on the other end of the telephone or the - or
however - whatever communication they would have.
Q: Well, that’s really my point, and I just - I’m trying
to understand, and so I can help the jury understand,
whether you feel you have enough information to form an
opinion on this issue one way or the other. The issue
being the timeliness of medical care, and I’m hearing you
say that you haven’t had a chance to review all of the
hospital records, and you haven’t had the chance to
review the EKG that was done in the hospital. There was
also an EKG done in the ambulance that took him to the
hospital and an EKG done on the rig, all of which were
10
normal.
A: Okay.
Q: And you have not had the opportunity to view those, as
I appreciate it.
A: Right.
Q: And so I’m understanding you to say that on the basis
of the limited information you have, you’re not in the
position to express an opinion one way or the other about
the timeliness of his care.
A: Again, yeah, I would have to say yes to that because
it depends - you know, if I had been there, I would have
had a better idea about the flavor –
Q: Sure.
A: - and put 30 years of doing this in the thing and say
what I think is going on, I mean, whether or not the time
frame was appropriate.
Deposition of Dr. Reynolds (Exhibit B to defendant’s motion).
Later, when being cross-examined by plaintiff’s counsel, Dr.
Reynolds was asked a long hypothetical question in which he was
asked to assume a number of things.
The defendant contends that
those assumptions are not based on facts in evidence; however, the
issue for purposes of the defendant’s present motion is whether Dr.
Reynolds ever positively expressed the view that the alleged
negligent delay in transporting plaintiff to the hospital played
even a minor part in causing the plaintiff’s subsequent heart
attack.
The pertinent exchange with plaintiff’s counsel was as
follows:
Q: Doctor, I want to ask you to give me an opinion,
please, sir, based on a reasonable degree of medical
11
certainty. Is it your opinion ... that the delay, if any,
that I described to your earlier from the syncopal event
on the morning of June 5th, until the events later that
day at the hospital in Brownsville, the Valley Regional
Medical Center, is it your opinion that any delay
emergently taking my client off the West Pegasus and to
appropriate medical care played any part, even a slight
part, in the condition that you are now treating my
client for?
A: This is - this is difficult to say for sure. The
potential for a catastrophe was there with the delay.
The fact that he did not have a catastrophe during all of
those hours, you know, from the initial event to later
when he - when he manifested for sure what was going on
would have been deadly. Whether - since it was one of
these stuttering type of things, he’s had severe pain off
and on, it’s hard to say, you know, with great certainty
that whether there was enough time of little or no flow
when he was having his pain, and then it would get better
and stuff, that it - that it made him have more patchy
heart damage. The - the longer period of time that he
was having symptoms would maybe have led to perhaps a
little more of this, but it did not manifest much on EKG
or the - or the echoes. But, now, after the fact, it was
some suggestion that there was some damage, but it’s pure
speculation in that regard. But the biggest thing was
that he was at significant risk in retrospect with the
delay of having a fatal arrhythmia, which, thank the
Lord, he did not have. But, again, you know, it’s hard it’s hard to say for sure, and the hard data we’ve got is
real soft data.
You know, we’ve got the filling
pressure, the slow flow, and then we - I will say why
does it look like that, and it’s a territory where a
problem was, so you would have to assume there was
something different about that part of his muscle than
the other parts of his heart, and the most likely thing
is he has some patchy areas of damage out there.
Q: And is it your opinion whether or not that delay that
I’ve described may have played a slight part in the
damage that he has sustained?
A: If we go slight, I can say, you know, it could have
played a role, not did, but could have, but the main
thing was what didn’t happen that was the risk. The going back, what ended up - what they had initially on
their - on their cath when they did him was they showed
12
that the front wash, which was a tip didn’t move this way
(indicating). It moved that way (indicating), so that
part of his heart was definitely stunned at the time of
the cath, and the degree of stunning, it can be related
to the amount of time that even a one continuous, but
intermittent period of time, but that’s - that’s, you
know, just looking at what I had saw on their cath report
and their drawing that helped localize that this was
something going on, but - but, anyway, it’s tough to say,
but it could be a cause and could play in some long-term
act. It has to be - you know, could - could is yes, but
is it - did it for sure, I can’t say for - say that,
because I wasn’t there taking care of him.
Q: (By Mr. Dowdy) And I’m not asking you to say for sure,
but based on what you know, I’m asking you could that
delay that has been described have played a slight part
in the damage that you have described?
A: Yes.
Deposition of Dr. Reynolds (Exhibit B to defendant’s motion).
It is not enough, in order to establish a prima facie case of
medical causation, for Dr. Reynolds to say merely that the alleged
delay in transporting plaintiff to the hospital “... could have
played a role, not did, but could have ....”
At most, Dr.
Reynolds’ testimony establishes that it is “a mere possibility”
that the defendant’s negligence caused the plaintiff’s injury.
This is insufficient to withstand summary judgment.
In Johnson, a seaman-plaintiff asserted a Jones Act negligence
claim against his employer-defendant, claiming that a failure to
provide proper medical care resulted in a heart condition. 2008 WL
916256
(E.D.
cardiologist
La.
was
March
of
the
31,
2008).
opinion
that
The
the
defendant’s
plaintiff’s
expert
heart
condition could not be related to any alleged negligence on the
13
part of the defendant.
Id. at *2.
The plaintiff did not produce
an expert report from a cardiologist to address or contest the
defendant’s expert cardiologist.
Id. at *3.
The Johnson court
stated that the defendant was entitled to summary judgment if the
plaintiff failed to provide any proof of his claim regarding an
alleged failure to provide medical care. Id. at *4. The plaintiff
argued that the defendant’s expert cardiologist noted that there
was a temporal relationship between the plaintiff’s onset of viraltype
symptoms
and
his
heart
condition,
insufficient to survive summary judgment.
but
Id.
even
this
was
The court noted
that the plaintiff had the burden of proving by medical testimony
that his injuries were due to the defendant’s negligence, and that
the
plaintiff
had
provided
no
evidence
to
show
the
causal
connection between his illness and his work for the defendant. Id.
at *5. “Speculation and conjecture” were insufficient to show that
there was more than a mere possibility that a causal relation
existed
between
the
defendant’s
plaintiff’s alleged injury.
Id.
alleged
negligence
and
the
The plaintiff simply failed to
put forth any evidence indicating that his condition was worsened
by any alleged inadequate care.
Id.
There was no expert report or
evidence to support the plaintiff’s claim, and the defendant
provided an expert report from a cardiologist who was of the
opinion that the alleged injuries could not be related to any
alleged negligence of the defendant. Id. Therefore, the plaintiff
14
could not prevail on his Jones Act negligence claim as a matter of
law, and summary judgment was warranted and granted.
Id. at *6.
In Hancock v. Diamond Offshore Drilling, Inc., a seamanplaintiff claimed that his employer-defendant failed to provide
immediate and adequate medical care and that this resulted in
physical injuries. 2008 WL 3501015, at *1 (E.D. La. Aug. 8, 2008).
The Hancock court noted that a seaman has the burden of proving by
medical testimony that his injuries were due to the defendant’s
negligence.
Id. at *4.
Citing Johnson, the Hancock court ruled
that a Jones Act seaman’s medical expert must be able to articulate
that
there
is
more
than
a
mere
possibility
that
a
causal
relationship exists between the defendant’s negligence and the
injury for which the plaintiff seeks damages.
Id.
All of the
plaintiff’s treating physicians were deposed, and each refused to
state affirmatively that the alleged delay between the onset of the
plaintiff’s symptoms and his departure from the defendant’s vessel
played
any
part
in
exacerbating
plaintiff’s
illness
or
necessitating surgery. Id. One of the physicians conceded that he
could not render an opinion to a reasonable degree of medical
probability as to whether the plaintiff’s delay in obtaining
medical attention caused the plaintiff’s need for surgery.
Id.
Another treating physician refused to provide an opinion as to
whether the delay in getting the plaintiff off the drilling rig,
more probably than not, was a cause of plaintiff’s ultimate
15
physical condition.
Id.
That physician also testified that to
render such an opinion would be “pure speculation.”
plaintiff’s
IME
physician
testified
that
any
Id.
delay
The
between
plaintiff’s first becoming symptomatic and his leaving the rig had
no impact on the course of his disease or the necessity of surgery.
Id. Finally, the plaintiff's treating gastroenterologist testified
that he could not, with a degree of reasonable medical probability,
state that plaintiff would not have had to undergo surgery had he
sought treatment earlier and that to render such an opinion would
be “[p]ure speculation.”
Id.
The Hancock court held that there
was no medical evidence that any alleged delay in treatment on
board the vessel had any adverse impact on the course of the
plaintiff’s disease. Id. Because no physician testified as to any
causal relationship between the defendant’s alleged conduct and the
plaintiff’s eventual medical condition, the plaintiff could not
prove causation. Id. Therefore, the defendant was entitled to and
was granted summary judgment.
Id. at *5.
Seadrill contends that the Court should grant its motion for
summary judgment for the same reasons addressed in Johnson and
Hancock.
If the plaintiff has no evidence establishing medical
causation, then it follows necessarily that he cannot establish an
essential part of his claim, and, further, that he cannot present
a prima facie case of liability against the defendant.
Thus,
Seadrill asserts it is entitled to a judgment as a matter of law.
16
IV. Admissions
In addition, the defendant states that both the plaintiff and
his
treating
plaintiff’s
cardiologist,
condition
did
employment with Seadrill.
Employee’s
motion).
Statement
Dr.
not
Reynolds,
arise
out
certified
of
the
that
the
plaintiff’s
Attending Physician’s Statement and
(collectively
Exhibit
E
to
defendant’s
The plaintiff’s employment with Seadrill ended in May of
2014. In late July and early August of 2014, the plaintiff applied
for disability benefits with Sun Life Assurance Company of Canada.
The application process required that both plaintiff and Dr.
Reynolds
provide
certified
statements.
In
the
Attending
Physician’s Statement, Dr. Reynolds affirmatively stated that
plaintiff’s condition was not due to injury or sickness arising out
of his patient’s employment.
signed his statement.
On August 4, 2014, Dr. Reynolds
The following was directly above his
signature line:
“I certify that the above statements are true and
correct.”
the
In
Employee’s
Statement,
the
plaintiff
also
affirmatively stated that his condition was not related to his job.
On July 30, 2014, the plaintiff signed his statement.
Also
directly above his signature line was the following: “I certify
that the above statements are true and correct.”
that
the
certified
statements
lend
further
Seadrill claims
support
for
the
conclusion that the plaintiff cannot claim that his condition
arises out of his employment with Seadrill, and that Seadrill is
17
entitled to summary judgment as a matter of law.
V. The Defendant’s Expert Medical Evidence
Although in order to prevail on its motion for summary
judgment, the defendant need only demonstrate the absence of
evidence supporting an essential element of plaintiff’s claim,
Seadrill also offers affirmative proof that there is no causative
link between its alleged negligence and the plaintiff’s subsequent
heart
problems.
A
board-certified
cardiologist
retained
by
Seadrill, Dr. Antoine Rizk, whose Expert Report was timely provided
to the plaintiff, has stated positively that the time which passed
between Fauver’s initial complaints on the rig and his arrival at
the hospital in Brownsville had nothing to do with his heart attack
six hours later, or with his subsequent cardiac problems.
In his
Report, Dr. Rizk concludes:
... based on my review of the pertinent medical records
and depositions, it is my expert opinion that the time
which passed between Mr. Fauver’s initial complaints on
the rig and his arrival at the hospital in Brownsville
had nothing to do with the ventricular fibrillation he
experienced six hours after arrival or to his subsequent
cardiac problems. The treatment and the attention that
the plaintiff received on the rig and during his transfer
to the hospital was appropriate. His condition was very
stable during the six hours immediately after he arrived
at the hospital. In my opinion, his medical course would
have been precisely the same even if he had arrived at
the hospital hours before he did.
Declaration of Antoine B. Rizk, M.D. (Exhibit A to defendant’s
motion).
Coupled with the absence of causation evidence from the
plaintiff, the report from Dr. Rizk leaves no doubt that the
18
plaintiff cannot prevail on an essential component of his case,
causation.
The law is clear that a plaintiff must present medical
causation evidence that goes beyond mere possibilities.
The
medical causation testimony presented by the plaintiff is merely
that the alleged negligence possibly could have, not that it did,
play a part in causing his injuries.
In
the
negligence
absence
was
a
of
cause
proof
of
the
that
the
defendant’s
plaintiff’s
heart
alleged
attack
and
subsequent medical problems, the plaintiff cannot recover. No such
proof has been tendered and the deadline for doing so has passed.
Furthermore,
the
plaintiff
and
his
treating
physician
have
certified that the plaintiff’s condition does not arise out of his
employment with the defendant.
Since the plaintiff cannot make out a prima facie case of
liability, the Court finds that the defendant is entitled to
summary judgment in its favor, and dismissal of the plaintiff’s
claims with prejudice.
Because the defendant is entitled to summary judgment, the
defendant’s motion in limine is moot.
Accordingly,
IT IS HEREBY ORDERED that defendant Seadrill’s Motion for
Summary Judgment (docket entry 43) is GRANTED;
FURTHER ORDERED that defendant Seadrill’s Motion in Limine
19
(docket entry 50) is MOOT;
A Final Judgment dismissing this action with prejudice shall
follow.
SO ORDERED, this the 28th day of July, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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