Kidd v. Candy Fleet, LLC, No. 2:2016cv00071 - Document 51 (E.D. La. 2016)

Court Description: ORDER & REASONS granting 19 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 11/23/2016. (mmm)

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Kidd v. Candy Fleet, LLC Doc. 51 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DERMORIS KIDD CIVIL ACTION VERSUS NO. 16-71 CANDY FLEET, LLC SECTION “R” (3) ORD ER AN D REASON S Before the Court is defendant Candy Fleet, LLC’s m otion for sum m ary judgm ent on the issue of m aintenance and cure. Because the Court finds that defendant has established its defense under McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968), the Court GRANTS defendant’s m otion. I. BACKGROU N D A. In ju ry Plaintiff Derm oris Kidd began working as a deckhand for defendant Candy Fleet, LLC in March, 20 14. 1 On Novem ber 1, 20 14 Kidd was working aboard one of Candy Fleet’s vessels, the M/ V CANDY STRIPE, under Captain J osiah Boudreaux. 2 1 2 Boudreaux assigned Kidd the task of cleaning the R. Doc. 23-1 at 5. Id. at 1. Dockets.Justia.com CANDY STRIPE’s engine room using Alum a Brite, a cleaning solvent. 3 Boudreaux helped clean the engine room for a period of tim e, and then left Kidd, who continued cleaning on his own. 4 After several hours in the engine room , Kidd reported to Boudreaux that he felt ill. 5 The following day, Kidd visited Urgent Care of Morgan City in Morgan City, Louisiana. 6 A doctor at Urgent Care diagnosed Kidd with (1) “Respiratory Conditions due to Fum es and Vapors,” (2) Asthm a, and (3) Asthm a with “Acute Exacerbation.”7 Following treatm ent, Kidd was cleared to “return to work with no restrictions.”8 On February 19, 20 15, approxim ately three m onths after the Alum a Brite incident, Kidd was working on the M/ V CANDY MACHINE, another Candy Fleet vessel. 9 Kidd alleges that, shortly after accidentally inhaling diesel fum es produced by the vessel’s engine, he was instructed to pull a rope. 10 According to Kidd, he began pulling the rope, but quickly felt weak and unable to breathe. 11 The following day, Kidd was treated at Teche 3 4 5 6 7 8 9 10 11 Id. at 2. Id. Id. at 3. Id.; R. Doc. 19-5 at 21. R. Doc. 19-5 at 22. Id. at 23. R. Doc. 23-1 at 3. R. Doc. 23-4 at 50 . Id. 2 Regional Medical Center, diagnosed with bronchospasm and bronchitis, and prescribed albuterol, prednisone, and zithrom ax. 12 Two days later, Kidd was adm itted as a patient at the Em ergency Departm ent of Providence Hospital in Mobile, Alabam a. 13 Kidd was diagnosed with Asthm a and Expiratory Wheezing, and advised to continue taking albuterol and zithrom ax. 14 Following his treatm ent at Teche Regional and Providence, Candy Fleet referred Kidd to Dr. William Schulte, a pulm onologist. 15 In his initial report, Dr. Schulte stated: I am not sure what is going on, whether he has asthm a or not. The inhalation injury does not sound severe enough to have caused this problem . I cannot explain the difficulty with the rope this far out from the inhalation injury without problem s in between. The nocturnal coughing could be asthm a. I have told him I am not sure whether he has reflux or asthm a or both. 16 On May 6, 20 15, Dr. Schulte stated that he felt Kidd had achieved m axim um m edical im provem ent and did not need any further treatm ent. 17 Som etim e after receiving this diagnosis from Dr. Schulte, Kidd visited Dr. J ohn Ham ilton, a practitioner in the field of occupational m edicine. 18 12 13 14 15 16 17 18 R. Doc. 19-5 at 29. R. Doc. 19-7 at 20 -25 Id. at 21-22. R. Doc. 23-1 at 4. R. Doc. 19-6 at 8. Id. at 23. R. Doc. 23-3 at 2. 3 Dr. Ham ilton disagreed with Schulte’s diagnoses, and instead diagnosed Kidd with reactive airway dysfunction syndrom e (RADS), a form of chronic asthm a caused by Kidd’s exposure to Alum a Brite. 19 On J anuary 7, 20 16, Kidd filed this suit. 20 In his J ones Act com plaint, Kidd alleges negligence, unseaworthiness, wrongful denial of m aintenance and cure, and wrongful term ination. 21 Kidd seeks dam ages for bodily injury and disfigurem ent, pain and suffering, and m edical expenses. 22 B. Kid d ’s Me d ical H is to ry Before being hired by Candy Fleet, Kidd filled out a job application form and a m edical questionnaire. 23 In response to questions on the application form , Kidd stated that he had com pleted the twelfth grade, had graduated from high school, and had never received worker’s com pensation benefits. 24 These statem ents were false. 25 In fact, Kidd left school after com pleting the ninth grade, and received workers com pensation benefits after suffering a back injury at an earlier job. 26 19 20 21 22 23 24 25 26 Id. at 4,8. R. Doc. 2. Id. at 4-5. Id. at 6. R. Doc. 23-1 at 6; R. Doc. 19-4 at 1,2. R. Doc. 23-1 at 6; R. Doc. 19-4 at 1,2. R. Doc. 23-1 at 6 Id.; R. Doc. 23-4 at 22. 4 On his m edical questionnaire, Kidd was asked whether he had “ever had injury or disease” to his chest or lungs. 27 He was also asked whether he had ever had or experienced “respiratory diseases” or bronchitis. 28 Finally, Kidd was asked whether he had “ever sustained any type of disability, injury, or disease,” “ever had or experienced any other injuries or diseases not discussed above,” or “ever been a patient in a hospital.”29 Kidd answered “no” to all of these questions. 30 The parties dispute whether these answers were truthful. In support of its contention that Kidd withheld m edical inform ation, Candy Fleet points to Kidd’s m edical records from doctors visits in 20 0 9, 20 10 , and 20 15. In 20 0 9, Kidd was treated at the Em ergency Departm ent of Providence Hospital. 31 According to the associated records, Kidd com plained of a cough, a sore throat, and chest pain. 32 Kidd rated his pain as a five on a one-to-ten scale. 33 Under “clinical im pression” the treating 27 28 29 30 31 32 33 R. Doc. 19-4 at 3. Id. Id. at 4-5 Id. at 3-5. R. Doc. 19-7 at 16-19. Id. at 19. Id. 5 physician wrote “URI,” which the parties agree indicates a diagnosis of Upper Respiratory Infection. 34 Medical records from Springhill Medical Center, another Mobile hospital, show that in 20 10 Kidd presented at the Em ergency Room with “m oderate severe [sic] interm ittent shortness of breath beginning several days prior to arrival.”35 The doctor noted that Kidd’s condition was “aggravated by anxiety.”36 The records further state that Kidd’s “chief com plaint” was “difficulty breathing” and that Kidd “state[d] he has [sic] trouble with this for the past couple years.”37 A doctor at Springhill Medical diagnosed Kidd with dyspnea, 38 and prescribed lorazepam for anxiety. 39 Finally, Candy Fleet calls attention to records from Kidd’s postincident visit to Providence Hospital on February 22, 20 15. The “clinician history” section of the Em ergency Departm ent records for this visit state that Kidd “has a prior history of asthm a,” “[h]ad asthm a as a child but ‘outgrew’ 34 Id. at 18. Id. at 1. 36 Id. 37 Id. at 4. 38 “Shortness of breath, a subjective difficulty or distress in breathing, usually associated with disease of the heart or lungs; occurs norm ally during intense physical exertion or at high altitude.” Stedm an’s Medical Dictionary 274360 (Nov. 20 14). 39 R. Doc. 19-7 at 3. 6 35 it,” and “presents with a history of m ild shortness of breath at rest.”40 The records further suggest that, upon discharge, Kidd received “Easy- to- Read” discharge instructions explaining asthm a and its care. 41 Kidd denies that these m edical records dem onstrate that he falsified his m edical questionnaire. Kidd describes the 20 0 9 illness as “like the com m on cold” and the 20 10 illness as “an episode of shortness of breath associated with holiday anxiety.”42 Kidd further denies ever being diagnosed with asthm a prior to the Alum a Brite incident and m aintains that any notation in his records of childhood asthm a are a m istake. 43 Candy Fleet now m oves to dism iss Kidd’s claim s for wrongful denial of m aintenance and cure. 44 Candy Fleet argues that Kidd intentionally withheld m aterial m edical inform ation with a causal connection to his current injury and that, under McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968), this concealm ent excuses Candy Fleet from its m aintenance and cure obligation. 40 41 42 43 44 Id. at 21. Id. at 24-25 R. Doc. 23 at 1. R. Doc. 23-2 at 1. R. Doc. 19-3. 7 II. LEGAL STAN D ARD Sum m ary judgm ent is warranted when “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.” 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 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgm ent.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 198 5); see also Little, 37 F.3d at 10 75. “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-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof 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 8 uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent 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)). 9 III. D ISCU SSION Seam en have a right to m aintenance and cure for injuries that they suffer in the course of their service on a vessel, regardless of whether the shipowner was at fault or the vessel was unseaworthy. See O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 41-42 (1943). “Maintenance” is the right of a seam an to food and lodging if he becom es injured during the course of fulfilling his duties to the ship. See Atl. Sounding Co. v. Tow nsend, 557 U.S. 40 4, 413 (20 0 9). “Cure” is the right to necessary m edical services. Id. Before a plaintiff can recover m aintenance and cure, he bears the burden of alleging and proving the following facts: (a) his engagem ent as a seam an; (b) that his illness or injury occurred, was aggravated, or m anifested itself while in the ship’s service; (c) the wages to which he m ay be entitled; and (d) the expenditures or liability incurred by him for m edicines, nursing care, board, and lodging. See Foster v. Brian’s Trans. Serv., et al., 1993 WL 114528, at *2 (E.D. La. 1993) (citing Martin Norris, 2 The Law of Seam en § 26.21 at 53 (Supp. 1992)). Maintenance and cure m ay be awarded “even where the seam an has suffered from an illness pre-existing his em ploym ent.” McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d at 548. Yet, there is a “general principle that it will be denied where he knowingly or fraudulently conceals his illness from the 10 shipowner.” Id.; see also Bodden v. Prof’l Divers of N ew Orleans, Inc., 20 0 1 WL 1223589, at *2 (E.D. La. 20 0 1) (discussing McCorpen defense). Specifically, if the shipowner requires a prospective seam an to undergo a pre-hiring m edical evaluation, and the seam an either intentionally m isrepresents or conceals m aterial m edical facts, then the seam an is not entitled to an award of m aintenance and cure. See McCorpen, 396 F.2d at 549. For a shipowner or em ployer to rely on the McCorpen defense to deny a seam an’s m aintenance and cure claim , the em ployer m ust establish: (1) that the seam an has intentionally m isrepresented or concealed m edical facts; (2) the m isrepresented or concealed facts were m aterial to the em ployer’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 Brow n v. Parker Offshore Drilling, 410 F.3d 166, 171 (5th Cir. 20 0 5) (finding McCorpen defense established). Here, the Court finds that Candy Fleet has established each elem ent of its defense under McCorpen. i. Intent to Conceal As noted above, Kidd com pleted a pre-em ploym ent m edical questionnaire before he was hired by Candy Fleet. On the questionnaire, Kidd was asked: (1) “Have you ever had injury or disease to your. . . Chest or Lungs?”; (2) “Have you ever had or experienced . . . Respiratory Diseases?”; 11 (3) “Have you ever been a patient in a hospital?”; and (4) “Have you ever sustained any type of disability, injury, or disease?”45 Kidd answered “no” to each of these questions. 46 Discovery in this case reveals that all of the above declarations were untrue. Kidd m aintains that the detailed description of his childhood asthm a diagnosis in the Providence Hospital records is a m istake. But even taking Kidd at his word, it rem ains undisputed that Kidd sought em ergency room care for breathing problem s on two separate occasions. He was, therefore, indisputably a patient in a hospital. He was also, on both occasions, diagnosed with a disease or injury and prescribed m edication as treatm ent. Furtherm ore, the notation in the Springhill records that Kidd had experienced sim ilar issues for several years, which Kidd does not dispute, suggests that these visits were not isolated incidents. Critically, the Fifth Circuit has held that “the ‘intentional concealm ent’ elem ent does not require a finding of subjective intent.” Brow n, 410 F.3d at 174. Rather, “[f]ailure to disclose m edical inform ation in an interview or questionnaire that is obviously designed to elicit such inform ation [] satisfies the ‘intentional concealm ent’ requirem ent.” Id. Intentional concealm ent can 45 46 R. Doc. 19-4 at 3-4. Id. 12 thus be established as a m atter of law. Id. Because Candy Fleet has dem onstrated that Kidd withheld pertinent m edical inform ation requested as part of its application process, Candy Fleet has satisfied the first prong of its McCorpen defense. ii. Materiality If an em ployer asks a specific m edical question on an application, and the inquiry is rationally related to the applicant’s physical ability to perform his job duties, the inform ation is m aterial for the purpose of the McCorpen analysis. Id. at 175. Here, Candy Fleet’s m edical questions were both specific and rationally related to Kidd’s position as a deckhand. Candy Fleet has therefore satisfied that m ateriality prong. iii. Causal Link Under the causal relationship prong, the present injury need not be identical to a previous injury. “All that is required is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage.” Brow n, 410 F.3d at 176 (quoting Quim ing v. Int’l Pac. Enters., Ltd., 773 F. Supp. 230 , 236 (D. Haw. 1990 )). The test applied is “not a causation analysis in the ordinary sense.” Johnson v. Cenac Tow ing, Inc., 599 F. Supp. 2d 721, 728 (E.D. La. 20 0 9). Rather, “the McCorpen defense will succeed if the defendant can prove that the old injury and the new injury 13 affected the sam e body part.” Id. (citing Brow n, 410 F.3d at 176); see also W eatherford v. N abors Offshore Corp., No. 0 3-0 478, 20 0 4 WL 414948, at *3 (E.D. La. Mar. 3, 20 0 4). In this case, the causal link between Kidd’s injuries is clear. His prim ary sym ptom s, shortness of breath and trouble breathing, are identical in 20 0 9, 20 10 , and today. Even if his 20 10 illness exhibited a psychological com ponent, the disease or injury in all three cases plainly affected Kidd’s chest and lungs. Candy Fleet has therefore m et the causal link prong. IV. CON CLU SION Candy Fleet has dem onstrated that there exists no genuine dispute as to any fact m aterial to the three prongs of its McCorpen defense. Candy Fleet’s m otion for partial sum m ary judgm ent as to claim s for m aintenance and cure is therefore GRANTED. New Orleans, Louisiana, this _ 23rd _ day of Novem ber, 20 16. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 14

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