Dukes v. Crosby Tugs, L.L.C., No. 2:2018cv00564 - Document 45 (E.D. La. 2019)
Court Description: ORDER AND REASONS granting 14 Motion by defendant for Partial Summary Judgment. Signed by Judge Sarah S. Vance on 2/15/19. (jjs)
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Dukes v. Crosby Tugs, L.L.C. Doc. 45 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J OSEPH DUKES CIVIL ACTION VERSUS NO. 18-564 CROSBY TUGS, LLC SECTION “R” (1) ORD ER AN D REASON S Before the Court is defendant Crosby Tugs’s m otion for partial sum m ary judgm ent. Because defendant has m et its burden under the McCorpen defense, the Court grants the m otion. I. BACKGROU N D This case arises from an accident that allegedly occurred while plaintiff J oseph Dukes was em ployed by Crosby Tugs as a J ones Act Seam an. 1 On October 30 , 20 17, plaintiff allegedly injured his back and other areas of his body in an accident working aboard the vessel M/ V MISS KORI.2 Afterward, plaintiff was diagnosed with an L4-5 intervertebral disc extrusion.3 He 1 2 3 R. Doc. 14-5 at 1 ¶ 2; R. Doc. 17-2 at 1 ¶ 2. R. Doc. 14-5 at 1 ¶ 3; R. Doc. 17-2 at 1 ¶ 3. R. Doc. 14-5 at 5 ¶ 30 ; R. Doc. 17-2 at 3 ¶ 30 . Dockets.Justia.com underwent surgery but continued to suffer pain in his lower back and left leg after the procedure.4 At the tim e of the accident, plaintiff had been em ployed by Crosby Tugs for eight years.5 As part of plaintiff’s original em ploym ent application for his position at Crosby Tugs, plaintiff underwent a physical exam ination and filled out a m edical history.6 In his m edical history, plaintiff stated that he had never suffered from a back injury and did not suffer from “recurrent neck or back pain.”7 Plaintiff certified on his em ploym ent application, including the m edical history, that he did not “knowingly om it[] to report any m aterial inform ation relevant to this form .”8 But plaintiff later testified that he sprained his back m uscles in a parachuting accident while serving in the United States Arm y in 1978.9 He received two weeks of treatm ent and light duty restrictions for this injury. 10 Then, in 1985, plaintiff received a screening for acute m edical care after com plaining of low back pain.11 The m edical notes indicate that plaintiff 4 5 6 7 8 9 10 11 R. Doc. 14-5 at R. Doc. 14-5 at R. Doc. 14-5 at R. Doc. 14-5 at R. Doc. 14-5 at R. Doc. 14-5 at Id. R. Doc. 15-3. 5 ¶¶ 31-34; R. Doc. 17-2 at 3 ¶¶ 31-34. 2 ¶ 5; R. Doc. 17-2 at 1 ¶ 5. 2 ¶¶ 8, 10 ; R. Doc. 17-2 at 1 ¶¶ 8, 10 . 2-3 ¶ 13; R. Doc. 17-2 at 2 ¶ 13; R. Doc. 14-2 at 5. 3 ¶ 15; R. Doc. 17-2 at 2 ¶ 15. 4 ¶¶ 19-20 ; R. Doc. 17-2 at 2 ¶ 19. 2 suffered from “direct back traum a,” and “recurrent back pain,” and they indicate that the pain was in plaintiff’s low back.12 Plaintiff also testified that he has visited a chiropractor fifteen tim es since the age of forty for low back pain.13 Plaintiff was fifty-one years old when he com pleted Crosby Tugs’ em ploym ent questionnaire.14 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 12 Id. at 1-3 (indicating lower back with a downward arrow and the abbreviation “L.B.P.”). 13 R. Doc. 14-5 at 4 ¶¶ 21-23, 31; R. Doc. 17-2 at 3 ¶¶ 21-23, 31; R. Doc. 143 at 10 . 14 R. Doc. 14-2 at 1. 3 ‘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. A dispute about a m aterial fact is genuine “if the evidence is such that a reasonable [factfinder] could return a verdict for the nonm oving party.” Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (198 6). 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 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, 4 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)). 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 proving the following facts: (1) he was working as a seam an; (2) he becam e ill or was injured while in the vessel’s service; and (3) he lost wages or 5 incurred expenses stem m ing from treatm ent of the illness or injury. 1 Adm iralty & Mar. Law § 6:28 (6th ed.). 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 547, 548 (5th Cir. 1968). But as a “general principle,” the benefits “will be denied where he knowingly or fraudulently conceals his illness from the shipowner.” Id.; see also Bodden v. Prof’l Divers of N ew Orleans, Inc., No. 0 1-795, 20 0 1 WL 1223589, at *2 (E.D. La. Oct. 12, 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 that: (1) the seam an 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 6 Offshore Drilling, 410 F.3d 166, 171 (5th Cir. 20 0 5) (finding McCorpen defense established). Defendant argues that plaintiff’s failure to disclose his earlier back injury from the parachuting accident while serving in the United States Arm y, and his recurrent back pain for which he received m ultiple treatm ents over a decade, allows defendant to deny him m aintenance and cure under McCorpen. For the reasons that follow, the Court finds that defendant has shown all three com ponents of the McCorpen defense. A. Co n ce alm e n t Plaintiff intentionally concealed or m isrepresented m edical facts when he stated in his m edical history that he had never suffered from a back injury or from recurrent back pain.15 The Fifth Circuit has held that intentional concealm 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. Not only did plaintiff testify that he injured his back in a parachuting accident,16 but his m edical form s from the m id-1980 s also state that he suffered from “direct 15 16 See R. Doc. 14-2 at 5. R. Doc. 14-3 at 5. 7 back traum a”17 and “recurrent back pain.”18 Plaintiff’s failure to disclose the accident and resulting pain constitutes concealm ent of m edical facts. B. Mate ria lity 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; see also McCorpen, 396 F.2d at 549 (“[W]here the shipowner requires a seam an to subm it to a pre-hiring 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 not entitled to an award of m aintenance and cure.”). Crosby Tugs specifically asked plaintiff whether he had suffered a back injury and recurring back pain.19 This inquiry is rationally related to plaintiff’s physical ability to perform the duties of a deckhand, because “[t]he position of a deckhand requires physical activity over extended periods of tim e.”20 It is reasonable for Crosby Tugs to inquire about a back condition because it m ight have hindered an applicant’s ability to perform physical tasks such as pulling a 17 18 19 20 R. Doc. 15-3 at 1. Id. at 2. R. Doc. 14-2 at 5. Id. at 2. 8 rope up to the barge, the task in which plaintiff was engaged when he allegedly injured him self.21 Plaintiff’s om ission of his back injury and recurring back pain was therefore m aterial to Crosby Tugs’s hiring decision under Fifth Circuit law. See Brow n, 410 F.3d at 175 (noting that a seam an’s “history of back injuries is the exact type of inform ation sought by em ployers.”). Luw isch v. Am erican Marine Corporation, on which plaintiff relies to argue that Crosby Tugs has not m et its burden, is clearly distinguishable from the facts of this case. No. 17-3241, 20 18 WL 3111931 (E.D. La. J une 25, 20 18). The em ployer in Luw isch hired the plaintiff even though he did not com plete a m edical history questionnaire. Id. at *2 (“[T]he Court finds it significant that AMC hired Luwisch without having obtained the com plete [m edical history] packet.”). Courts generally “assum e[] a connection between the specific m edical question being asked and the em ployer’s decision to hire,” but that presum ption does not apply when an em ployer hires an em ployee without requiring the em ployee to com plete that portion of the application. Id. Here, Crosby Tugs required plaintiff to com plete the m edical history form . Thus, the presum ption that it then relied on the inform ation in the form applies. 21 See R. Doc. 17-1 at 12-13. 9 C. Cau s al Lin k Under the causal relationship prong, a defendant m ust show “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 )). But 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 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 3-478, 20 0 4 WL 414948, at *7 (E.D. La. Mar. 3, 20 0 4). Indeed, “there is no requirem ent that a present injury be identical to a previous injury.” Brow n, 410 F.3d at 176 (quoting Quim ing, 773 F. Supp. at 236). Here, the parties agree that plaintiff’s previous back issues and his injury while em ployed by Crosby Tugs both affected his low back.22 Plaintiff contends that this is not enough to establish a causal connection between his prior “m echanical” back pain and his current disc injury, because he was never diagnosed with an L4-5 disc herniation before this accident.23 It is true 22 23 R. Doc. 14-5 at 4 ¶ 31; R. Doc. 17-2 at 3 ¶ 31. R. Doc. 17 at 10 -11. 10 there is no evidence of an injury to the L4-5 disc before this accident. Indeed, an x-ray from a m edical exam ination in 20 12 revealed that plaintiff’s L4-5 disc space was “fairly well m aintained” at that tim e, although the L3-4 disc showed “m oderately prom inent narrowing . . . with spurring.”24 Causation in this case is a closer question than the first two McCorpen elem ents. If this elem ent of the McCorpen defense required traditional tort causation, the Court would agree that it has not been established. But a faithful reading of the legal precedents seem s to indicate that a previous lum bar strain or pulled m uscle is causally linked to a later disc herniation, even without m edical testim ony establishing that the current injury was the product of a previous, som ewhat different, injury to the sam e area of the back. Id.; W eatherford, 20 0 4 WL 414948, at *3. In Brow n, the plaintiff’s failure to disclose “lum bar strain” was causally related to a later “herniated disc in his lum bar region,” even though there was no evidence that the herniation preexisted plaintiff’s em ploym ent, because the injuries were “to the sam e lum bar-spine region.” Brow n, 410 F.3d at 176, 185. Sim ilarly, in W eatherford, J udge Stanwood Duval held that a “lower lum bar strain” and “pulled m uscle” in the lower back were causally related to “injuries to [the 24 R. Doc. 17-1 at 8. 11 plaintiff’s] lum bar discs,”25 because [w]here plaintiff claim s an injury in the . . . sam e area of the back as was previously injured, the causal connection is clear.” W eatherford, 20 0 4 WL 414948, at *3. The Court concludes that the sam e result is required here. Plaintiff suffered an L4-5 disc herniation as a result of his accident, which is an injury to a disc in the lum bar spine.26 His recurring back pain docum ented in the 1985 m edical exam ination was also in his lum bar region, as were the chiropractic treatm ents he received for ten years before his em ploym ent with Crosby Tugs. Plaintiff’s x-ray from 20 12 does not change this result, because plaintiff m akes no showing that a “fairly well m aintained” disc space, as shown on an x-ray, reveals the state of his discs, which are not m ade of bone. In addition, even if plaintiff’s back were x-rayed in 20 12 or even at the tim e he was hired without a finding at L4-5, he is not relieved of his duty to report prior injuries in order to receive m aintenance and cure. See Johnson v . Cenac Tow ing, Inc., 468 F. Supp. 2d 815 (E.D. La. 20 0 6), vacated in part on other grounds, 544 F.3d 296, 833 (5th Cir. 20 0 8) (plaintiff twice underwent preem ploym ent x-rays and exam inations and was cleared for em ploym ent with defendant, but defendant still prevailed on its McCorpen defense). 25 26 See R. Doc. 52 (Case No. 0 3-478). R. Doc. 15-3 at 1; R. Doc. 14-3 at 10 . 12 Defendant has therefore shown a causal connection because plaintiff’s undisclosed pain and injury were to the sam e region of plaintiff’s back as his current herniation. IV. CON CLU SION For the foregoing reasons, defendant’s m otion for sum m ary judgm ent is GRANTED. New Orleans, Louisiana, this _ 15th _ _ _ _ day of February, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 13
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