Gowdy v. Marine Spill Response Corporation et al

Filing 39

ORDER re: Motion for Summary Judgment(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JAMES E. GOWDY,
Plaintiff,
VS.
MARINE SPILL RESPONSE
CORPORATION, et al,
Defendants.

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October 27, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 3:16-CV-169

ORDER
Plaintiff, James Gowdy, has sued Marine Spill Response Corporation alleging that
he injured his left foot while he was working as a temporary worker aboard the NEW
JERSEY RESPONDER in August 2013. When this lawsuit was filed on June 29, 2016,
Gowdy was represented by counsel. His counsel withdrew shortly thereafter, and Gowdy
has appeared pro se for the majority of this lawsuit.
APPLICABLE LAW
The Jones Act creates a cause of action for a seaman who is injured in the course
of employment due to the negligence of his employer. 46 U.S.C. § 30103. “A seaman is
entitled to recovery under the Jones Act, therefore, if his employer's negligence is
the cause, in whole or in part, of his injury.” Gautreaux v. Scurlock Marine, Inc., 107
F.3d 331, 335 (5th Cir.1997).1 A Jones Act employer is held to the duty of care required

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Of course, not every “maritime worker on a ship at sea ... is automatically a member of the
crew of the vessel within the meaning of the statutory terms.” Chandris, Inc. v. Latis, 515 U.S.
347, 363, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). To qualify as a seaman, a party must show:
(1) that the employee's duties contributed to the function of a navigable vessel; and (2) a
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under ordinary negligence law. Id. at 339. However, “[a] defendant must bear the
responsibility for any negligence, however slight, that played a part in producing the
plaintiff‟s injury.” In re Cooper/T. Smith, 929 F.2d 1073, 1076 (5th Cir. 1991).
Nonetheless, there must still be some evidence that an act or omission by the
defendant caused the harm alleged. “Although in Jones Act cases a „jury is entitled to
make permissible inferences from unexplained events,‟ summary judgment is
nevertheless warranted when there is a complete absence of proof of an essential element
of the nonmoving party‟s case.” Id. at 1077 (5th Cir. 1991).
In contrast, a claim for unseaworthiness requires proof of proximate cause. Brister
v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991). Plaintiff must show that the
“unseaworthy condition played a substantial part in bringing about or actually causing the
injury and that the injury was either a direct result or a reasonably probable consequence
of the unseaworthiness.” Id. at 1354. An unseaworthiness claim may only be brought by
a vessel‟s crew member who was injured on the vessel. Speer v. Taira Lynn Marine, Ltd.,
Inc., 116 F. Supp. 2d 826, 829, 830 (S.D. Tex. 2000). As other courts have noted, if a
plaintiff‟s Jones Act claim fails, “so does his claim for unseaworthiness under general
maritime law.” Johnson v. Horizon Offshore Contractors, Inc., CIV.A. 06-10689, 2008
WL 916256, at *6 (E.D. La. Mar. 31, 2008).

connection to the vessel in navigation (or to an identifiable group of vessels) that was substantial
in terms of both its duration and nature. Id. at 368. This test is meant to “separate the sea-based
maritime employees who are entitled to Jones Act protection from those land based workers who
have only a transitory or sporadic connection to a vessel in navigation, and therefore whose
employment does not regularly expose them to the perils of the sea. Id.
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ANALYSIS
Defendant has filed a motion for summary judgment, Dkt. 28, alleging that Gowdy
had a pre-existing medical condition, i.e., serious medical complications from diabetes,
and that he cannot establish medical causation as a matter of law. In support of its motion
for summary judgment, Defendant presented a medical opinion from a biomechanical
expert certified in accident reconstruction, who stated that he had reviewed evidence and
discovery, including the pleadings, Gowdy‟s statements about the accident, records of
Gowdy‟s medical treatment, and photographs of the worksite, and that it was his medical
opinion that Gowdy‟s alleged injury to his foot “would not” have occurred from the chain
of events that Gowdy described, and the problems Gowdy experienced with his left foot
were instead the result of diabetes. Accordingly, Defendant contends that there is no
evidence that Gowdy was injured by any acts, omissions, or possible negligence on the
part of Defendant.
Defendant‟s motion for summary judgment was filed electronically at 1:56 PM on
July 31, 2017. Dkt. 28. Three hours later, a “Motion to Oppose Summary Judgment” was
entered on the docket of this case by the Clerk‟s Office. Dkt. 29. That document was
received by the Clerk‟s Office on July 31, 2017, but it was postmarked on July 29, 2017.
Out of an abundance of caution, the Court will consider this filing as Gowdy‟s response
to Defendant‟s motion, or alternatively, as a cross-motion for summary judgment. Gowdy
challenges the expert opinion that Defendant relies upon, contending the expert must
have been misled as to the height at issue and that the expert “had not personally visited
the accident site.” Gowdy also submits documents that appear to be summaries from
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recent doctor visits to challenge the expert‟s opinion. However, the Court notes that those
summaries are incomplete, they are redacted, and they are unauthenticated and not
accompanied by a business records affidavit. Further, these summaries are not
accompanied by any expert explanation or opinion, and thus without the required context
needed to challenge Defendant‟s expert‟s opinion. Similarly, although Gowdy presents
the deposition testimony of one of his treating physicians, in an attempt to contradict the
Defendant‟s expert, this testimony is also redacted and, again, lacks sufficient context to
challenge Defendant‟s expert‟s opinion. Gowdy does not explain how this testimony
contradicts the Defendant‟s expert or how it raises a genuine dispute of material fact as to
whether damage to his left foot, if any, was caused by Defendant‟s negligence. Given the
facts in this case as presented by the summary judgment evidence, the Court finds that
Gowdy has failed to raise a genuine dispute of material fact and that Defendant is entitled
to summary judgment in its favor. See, e.g., Johnson v. Horizon Offshore Contractors,
Inc., CIV.A. 06-10689, 2008 WL 916256, at *4 (E.D. La. Mar. 31, 2008) (“the 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.”); Anh Ngoc Vo v. Chevron U.S.A., Inc., No. 12-1341, 2014 WL
3401095, at *2 (E.D. La. July 11, 2014) (citations omitted)(“No medical doctor who has
examined Vo has concluded that his neurological conditions were caused by trauma in
the allision;” rather, a neurologist and a neurosurgeon opined that Vo‟s condition was
incidental to his congenital Chiari Malformation).

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CONCLUSION
Accordingly, after a review of the summary judgment evidence, even applying the
applicable summary judgment standards and construing Gowdy‟s briefing with some
leniency, the Court finds that Gowdy has failed to raise a genuine dispute of material fact
on his claims against Defendant, and that summary judgment is therefore appropriate for
Defendant. A separate final judgment will be entered.
SIGNED at Galveston, Texas, this 27th day of October, 2017.
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George C. Hanks Jr.
United States District Judge

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