Dauzat v. Weeks Marine, Inc. et al, No. 2:2014cv03008 - Document 77 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying 34 Motion for Partial Summary Judgment on Plaintiffs maintenance-and-cure claim under the Fifth Circuit's decision in McCorpen v. Central Gulf Steamship Corp. Signed by Judge Susie Morgan. (bwn)
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Dauzat v. Weeks Marine, Inc. et al Doc. 77 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MARVIN D AU ZAT, Pla in tiff CIVIL ACTION VERSU S N o . 14 -3 0 0 8 W EEKS MARIN E, IN C., e t al., D e fe n d an ts SECTION “E” ( 3 ) ORD ER AN D REAS ON S Before the Court is Defendants’ m otion for partial sum m ary judgm ent. 1 Defendants seek sum m ary judgm ent on Plaintiff’s m aintenance-and-cure claim under the Fifth Circuit’s decision in McCorpen v. Central Gulf Steam ship Corp. 2 BACKGROU N D This is a m aritim e personal injury case. Plaintiff Marvin Dauzat (“Dauzat”) alleges that on August 14, 20 14, he was hired by Defendant Atlantic Sounding Co., In c. (“Atlantic”) as an oiler and m em ber of the crew of the cutter dredge G.D. MORGAN, which was owned by Weeks Marine, Inc. (“Weeks”). 3 Dauzat alleges that on August 28, 20 14, while in the course and scope of his em ploym ent and service on the G.D. MORGAN, he slipped while descen ding a stairwell aboard the G.D. MORGAN. 4 Dauzat alleges he injured his leg, back, and hip as a result of the fall. 5 On Decem ber 31, 20 14, Dauzat brought suit against Weeks, Atlantic, 6 and the G.D. MORGAN (collectively, “Defendants”). Dauzat brings claim s for unseaworthiness, 1 R. Doc. 34. 396 F.2d 547 (5th Cir. 1968). 3 R. Doc. 19 at ¶¶ 4– 5; R. Doc. 24 at ¶¶ 4– 5. 4 R. Doc. 19 at ¶¶ 8 – 12. 5 Id. at ¶ 12. 6 Atlantic was nam ed as a defendant in the First Am ended Com plaint. Id. at ¶ 4(B). 2 1 Dockets.Justia.com negligence, and vessel negligence under the general m aritim e law, and alleges he has not received the m aintenance and cure to which he is entitled. 7 On April 4, 20 16, Defendants filed a m otion for partial sum m ary judgm ent on Dauzat’s m aintenance-and-cure claim under the Fifth Circuit’s decision in McCorpen. 8 Dauzat filed a response in opposition to Defendants’ m otion on April 21, 20 16, 9 and a supplem ental opposition on May 12, 20 16. 10 Defendants filed a reply in support of their m otion on May 20 , 20 16. 11 STAN D ARD OF LAW Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”12 “An issue is m aterial if its resolution could affect the outcom e of the action.”13 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the evidence.”14 All reasonable inferences are drawn in favor of the non-m oving party. 15 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 16 7 Id. at ¶¶ 18– 23. R. Doc. 34. 9 R. Doc. 58. 10 R. Doc. 62. 11 R. Doc. 66. 12 Fed. R. Civ. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 13 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 14 Delta & Pin e Land Co. v . N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8 ). See also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 15 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 16 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 8 2 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”17 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 18 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, as in this case, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the nonm ovant’s claim , or (2) affirm atively dem onstrating that there is no evidence in the record to establish an essential elem ent of the non-m ovant’s claim . 19 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 20 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”21 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the 17 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 18 Celotex, 477 U.S. at 322– 24. 19 Id. at 331– 32 (Bren nan, J ., dissentin g). 20 See id. at 332. 21 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 3 precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”22 LAW AN D AN ALYSIS Defendants argue they are entitled to sum m ary judgm ent on Dauzat’s m aintenance-and-cure claim because Dauzat “concealed his extensive m edical history regarding his two prior lower back injuries and m edical treatm ent for sam e,”23 the concealed m edical inform ation was m aterial to Atlantic’s decision to hire Dauzat, and there is a causal connection between the concealed inform ation and the injuries at issue in this case. 24 “Maintenance and cure is a contractual form of com pensation afforded by the general m aritim e law to seam en who fall ill or are injured while in the service of a vessel.”25 A seam an’s em ployer m ay, however, rely on certain legal defenses, such as the “McCorpen defense,” to deny claim s for m aintenance and cure. 26 In McCorpen, the Fifth Circuit concluded that, while m aintenance and cure m ay be awarded to a seam an who has suffered from a preexisting injury, a seam an forfeits his or her right to m ainten ance an d cure when he or she fails to disclose certain m edical facts, or m isrepresents those facts, when asked about them in connection with an em ploym ent application. 27 An em ployer 22 Ragas v. Tenn . Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citation s and internal quotation m arks om itted). 23 R. Doc. 34-1 at 4. 24 Id. at 13– 17. 25 Jauch v. N autical Servs., Inc., 470 F.3d 20 7, 212 (5th Cir. 20 0 6). 26 Brow n v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 20 0 5). See also Lett v. Om ega Protein, Inc., 487 F. App’x 839, 848 (5th Cir. 20 12). 27 McCorpen , 396 F.2d at 549. See also Brow n, 410 F.3d at 170 – 71, 73 (quoting McCorpen, 396 F.2d at 549 (“[W]here the [em ployer] requires a seam an to subm it to a pre-hirin g m edical exam ination or interview and the seam an intentionally m isrepresents or conceals m aterial m edical facts, the disclosure of which is plainly desired, then he is n ot entitled to an award of m aintenance and cure.”)). 4 will prevail on this defense, absolving the em ployer of its maintenance-and-cure obligation to an injured seam an, by establishing three elem ents: (1) the seam an intentionally concealed or m isrepresented inform ation concerning a prior m edical condition or injury; (2) the m isrepresented or concealed inform ation was m aterial to the em ployer’s decision to hire the seam an; and (3) there exists a causal connection between the non-disclosed injury or condition and an injury or condition com plained of in the suit at bar. 28 Defendants have the burden of proving each elem ent of the McCorpen defense by com ing forward with evidence that would entitle them to a directed verdict if the eviden ce went uncontroverted at trial. 29 If Defendants carry this burden, the burden of production shifts to Dauzat to direct the Court’s attention to com petent sum m ary-judgm ent evidence sufficient to establish that a genuine issue of m aterial fact exists. 30 Defendants’ sum m aryjudgm ent burden, as applied to the McCorpen defense, requires Defendants to establish the absence of disputed m aterial facts with respect to each of the three prongs of the defense and that, as a result, Defendants are entitled to judgm ent as a m atter of law on Plaintiff’s m aintenance-and-cure claim . Defendants are unable to do so with respect to the secon d McCorpen prong, and sum m ary judgm ent m ust be denied for that reason. The secon d elem ent of the McCorpen defense requires Defendants to establish that Dauzat’s m isrepresentation or concealm ent was m aterial to Defendants’ hiring decision. Ordin arily, “[t]he fact that an em ployer asks a specific m edical question on an application, and that the inquiry is rationally related to the applicant's physical ability to perform his 28 McCorpen, 396 F.2d at 548– 49. See also Johnson v. Cenac Tow ing, Inc., 544 F.3d 296, 30 1 (5th Cir. 20 0 8) (citations om itted); Brow n , 410 F.3d at 171. 29 Int’l Shortstop, 939 F.2d at 1263– 64. 30 See Celotex, 477 U.S. at 322– 24. 5 job duties, renders the inform ation m aterial for the purpose of this analysis.”31 A genuine issue of m aterial fact exists, however, “when it is unclear whether an em ployer’s hiring decision would be affected by knowledge of a potential em ployee’s previous injuries.”32 In support of their m otion for partial sum m ary judgm ent, Defendants attached an affidavit from Thom as F. Langan, the risk m anagem ent director for Weeks and Atlantic. 33 Weeks’ risk m anagem ent departm ent reviews every Atlantic applicant’s post-offer m edical exam ination. 34 Langan stated in his affidavit that he has “the authority to delay any applicant’s hiring[] and to prevent the placem ent of any applicant in certain positions, based on inform ation contained within the applicant’s post-offer m edical exam ination . . . .”35 Langan also stated that, had Dauzat’s post-offer m edical exam ination revealed that Dauzat received m edical treatm ent for his low back, Dauzat “would not have been em ployed by Atlantic Sounding Co., Inc. in any heavy or m edium duty labor position, which includes the position of oiler or deckhand on any dredge, or any other vessel.”36 Defendants argue they have m et their burden on sum m ary judgm ent with respect to the “m ateriality” prong because the eviden ce is sufficient to establish that the m isrepresentation or concealm ent was m aterial to Defendants’ hirin g decision. 37 The burden thus shifts to Dauzat to direct the Court’s attention to evidence sufficient to show a genuine issue of m aterial fact exists. After the m otion for partial sum m ary judgm ent was filed, Plaintiff deposed Langan and attached excerpts from 31 Brow n , 410 F.3d at 175. Chapm an v. Spartan Offshore Drilling, LLC, No. 15-994, 20 16 WL 1393490 , at *5 (E.D. La. Apr. 8 , 20 16) (Lem elle, J .); Sm ith v. Diam ond Servs. Corp., 133 F. Supp. 3d 846, 851 (E.D. La. 20 15) (Milazzo, J .); Hare v. Graham Gulf, Inc., 22 F. Supp. 3d 648, 654 (E.D. La. 20 14) (Morgan, J .). See also Jauch, 470 F.3d at 212. 33 R. Doc. 34-25. 34 Id. at ¶ 8 . 35 Id. at ¶ 9. 36 Id. at ¶ 11. 37 R. Doc. 34-1 at 15. 32 6 Langan’s deposition to his opposition. 38 Langan testified at his deposition that he m erely m akes recom m endations to “the hiring authority,” and “usually m y recom m en dation is taken into consideration.”39 Langan testified, “[W]hoever is hiring [the prospective em ployee] m akes the final decision. I don’t m ake the final decision. All I do is m ake recom m en dations.”40 Langan also testified that Noel Ram os would likely m ake hiring decisions in the dredging division. 41 If Langan saw som eone with back problem s, he testified that he would “tell Mr. Ram os, ‘This is the situation right now. This is [sic] the risks involved. You m ake the final decision. My recom m endation is this. You m ake the final decision.’”42 Langan’s deposition testim ony controverts his assertion in his affidavit that he has the ability “to prevent the placem ent of any applicant in certain positions.”43 Instead, his deposition testim ony clarifies that this decision is m ade by Ram os. 44 Defendants have not provided any com petent sum m ary-judgm ent eviden ce from Ram os or anyone else with the authority to m ake hiring decisions for Weeks or Atlantic to establish that the m isrepresentation or concealm ent was m aterial to Defendants’ hiring decision. Dauzat has m et his burden of showing a genuine issue of m aterial fact exists with respect to the “m ateriality” prong. 45 Because a genuin e issue of fact exists with respect to the “m ateriality” prong of the McCorpen defense, Defendants are not entitled to sum m ary judgm ent, and the Court need not address the rem ain ing McCorpen prongs. 38 See R. Doc. 62 at 6– 7. Id. at 6. 40 Id. 41 Id. 42 Id. at 7. 43 R. Doc. 34-25 at ¶ 9. 44 R. Doc. 62 at 6. 45 See Chapm an , 20 16 WL 1393490 , at *5; Sm ith, 133 F. Supp. 3d at 851; Hare, 22 F. Supp. 3d at 654; Jauch, 470 F.3d at 212. 39 7 CON CLU SION For the foregoing reasons; IT IS ORD ERED that Defendants’ m otion for partial sum m ary judgm ent is D EN IED . N e w Orle an s , Lo u is ian a, th is 7th d ay o f Ju n e , 2 0 16 . _____ ______ ________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 8
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