The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ADRIATIC MARINE, LLC CIVIL ACTION
VERSUS NO. 19-2440-WBV-KWR
ROLAND HARRINGTON SECTION: D (4)
ORDER and REASONS
Before the Court is a Motion for Partial Summary Judgment on McCorpen
Defense, filed by Adriatic Marine, LLC.1 Adriatic Marine seeks to dismiss the
maintenance and cure claims of defendant, Roland Harrington, claiming that
Defendant willfully concealed and/or misrepresented his pre-existing injuries.
Defendant filed an Opposition to the Motion,2 and Adriatic Marine has filed a Reply.3
After reviewing the briefs submitted by the parties and applicable law, Adriatic
Marine’s Motion for Partial Summary Judgment on McCorpen Defense is
GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is an action for declaratory judgment pursuant to 28 U.S.C. §§ 2201 and
2202, regarding maintenance and cure benefits requested by Roland Harrington, who
claims he was injured while working aboard the M/V ADRIATIC, which is a vessel
owned and operated by plaintiff, Adriatic Marine, LLC.4 Harrington alleges that on
1 R. Doc. 27.
2 R. Doc. 31.
3 R. Doc. 44.
4 R. Doc. 1.
or about March 18, 2018, while working as an unlicensed engineer for Adriatic
Marine aboard the vessel, he sustained personal injuries to his lower back. 5
Harrington claims he was cleaning inside the bilge around the port main engine and,
upon finishing cleaning, he stepped out of the bilge and lost his footing, causing him
to fall and hit his lower back on an angle iron.6 There were no witnesses to the alleged
accident. Harrington did not report the injury until March 26, 2018, when he
completed an incident report.7
Adriatic Marine alleges that when the vessel returned to shore on March 27,
2018, Harrington was brought to Complete Occupational Health Services, where he
was diagnosed with a lumbar contusion.8 Adriatic Marine asserts that Harrington
returned to the vessel that same day and worked without incident or injury until
April 12, 2018, when he departed the vessel for a normal crew change.9 Adriatic
Marine alleges that Harrington returned to the M/V ADRIATIC from April 25, 2018
through May 25, 2018, and worked without any restrictions and without incident or
injury.10 Harrington failed to return to work for his scheduled crew change on June
6, 2018.11 Adriatic Marine asserts that on May 30, 2018, more than two months after
his alleged injury, Harrington went to Abbeville General Hospital and complained of
lower back pain.12 Harrington was diagnosed with “acute low back pain” and “lumbar
5 Id.
6 Id. at ¶ 8.
7 Id. at ¶ 9.
8 Id. at ¶ 10.
9 Id.
10 Id. at ¶ 11.
11 Id. at ¶ 13.
12 Id. at ¶ 12.
radicular pain.”13 One week later, on June 5, 2018, Harrington went to Southstar
Urgent Care with complaints of “back pain,” and was referred to an orthopedist and
advised to return to the clinic in three days if the pain persisted.14 The next day,
June 6, 2018, Harrington applied for a job at On-Time Crew Changes.15 In
completing a Medical Examination Report Form as part of the application,
Harrington was asked if he had or has ever had “neck or back problems.” Harrington
bubbled in “No.”16 Harrington continued receiving medical care and underwent an
MRI in August 2018, which indicated significant disc degeneration with mild
narrowing at L4-5, as well as disc degeneration at L5-S1 with severe L5-S1 canal and
lateral recess stenosis with probable S1 nerve root impingement, and mild disc bulge
of L3-4.17
Adriatic Marine claims that on June 12, 2018, it received correspondence from
Defendant’s counsel, asserting that Harrington had been injured aboard the M/V
ADRIATIC on March 18, 2018, and requesting maintenance and cure benefits for
Harrington.18 Adriatic Marine alleges that it immediately initiated maintenance and
cure payments in good faith and began an investigation into the alleged incident. As
part of its investigation, Adriatic Marine learned that Harrington presented to the
emergency room at Abrom Kaplan Memorial Hospital on November 13, 2009,
complaining of lower back pain that had been present for several days.19 He was
13 R. Doc. 27-6 at p. 9.
14 R. Doc. 27-8 at p. 3.
15 R. Doc. 27-9.
16 Id. at p. 6.
17 R. Doc. 27-10 at p. 3.
18 R. Doc. 1 at ¶ 14.
19 R. Doc. 27-12.
diagnosed at that time with a lumbar strain and provided pain medication. Several
days later, on November 17, 2009, Harrington visited Dr. Powlin Manuel regarding
his back pain.20 On March 19, 2010, Harrington returned to Dr. Manuel with
complaints of back pain, and Dr. Manuel advised Harrington to undergo an x-ray of
his lumbar spine.21 Harrington returned to Dr. Manuel on March 24, 2010 to discuss
the results of that x-ray.22 Dr. Manuel opined that Harrington suffered from “back
pain with a degenerative disc [sic] disease and obesity.”23 Dr. Manuel recommended
further consultation with a specialist in spine disease. Approximately one year later,
in May 2011, Harrington visited the Primary Care Clinic at Abrom Kaplan Medical
Hospital complaining of lower back pain.24 Harrington was diagnosed with lumbago
and prescribed pain medication and muscle relaxers.25 Harrington returned to the
Primary Care Clinic for a follow-up visit on May 26, 2011.26
Harrington applied for a deckhand position with Adriatic Marine in September
2017. He was asked if he would submit to a pre-employment physical examination
to determine his capacity for the job, and Harrington agreed to an examination. The
pre-employment physical took place on September 13, 2017.27 Prior to the physical,
Harrington completed a medical questionnaire. The questionnaire instructions read,
“ATTENTION: YOU MUST ANSWER TRUTHFULLY REGARDING THE BELOW
20 R. Doc. 27-13 at pp. 3-4; R. Doc. 27-14.
21 R. Doc. 27-13 at p. 4.
22 Id. at p. 5.
23 Id.
24 R. Doc. 27-16, at p. 2.
25 Id. at p. 3.
26 Id. at pp. 4-5.
27 R. Doc. 27-17.
MEDICAL CONDITIONS. FAILURE TO ANSWER TRUTHFULLY WILL RESULT
IN IMMEDIATE TERMINATION AND FORFEITURE OF WORKERS
COMPENSATION BENEFITS AND FORFEITURE OF MAINTENANCE AND
CURE.”28 Harrington circled, “No,” indicating that he did not currently have, nor had
he previously had, “Injured back/back pain,” “Back surgery/injury,” or “Recurrent
neck/back pain.”29 Adriatic Marine contends that none of Harrington’s prior
complaints or medical care related to back pain were disclosed to Adriatic Marine
until the parties engaged in discovery in this lawsuit.
Adriatic Marine further contends that, in light of its investigation, it believes
Harrington was not involved in any accident aboard the M/V ADRIATIC on March
18, 2018, and/or that Harrington did not sustain any injury while in service aboard
the vessel. 30 Further, Adriatic Marine alleges that Harrington willfully and
knowingly concealed his pre-existing medical conditions and/or failed to disclose them
to Adriatic Marine, including but not limited to prior issues and injuries to his back.31
As a result, Adriatic Marine claims that Harrington is not entitled to maintenance
and cure benefits.32 On March 18, 2019, Adriatic Marine filed a Complaint for
Declaratory Judgment in this Court, seeking a declaration from this Court that it is
not responsible for maintenance or cure or, conversely, a determination regarding
past and future liability for maintenance and cure generally.33
28 R. Doc. 27-17 at p. 3.
29 Id.
30 R. Doc. 1 at ¶ 18.
31 Id. at ¶ 19.
32 Id.
33 Id. at ¶ 22.
On April 11, 2019, Harrington filed an Answer and Counter-Claim to Adriatic
Marine’s Complaint, asserting that his accident and injuries were caused solely by
Adriatic Marine’s negligence and/or the unseaworthiness of the vessel.34 Harrington
also asserted a claim for maintenance and cure benefits from the date of his injury
until he reaches full recovery or maximum medical improvement.35 Harrington
asserts that Adriatic Marine is liable to him under the Jones Act, 46 U.S.C. § 30104,
because Harrington was performing his duty as a seaman aboard the M/V ADRIATIC
at the time of the accident.36 Harrington also included a claim for punitive
damages.37
On December 30, 2019, Adriatic Marine filed the instant Motion for Partial
Summary Judgment on McCorpen Defense.38 Harrington filed an Opposition to the
Motion,39 and Adriatic Marine filed a Reply in response.40
II. LEGAL STANDARD
A. Summary Judgment Standard
Summary judgment is appropriate where there is no genuine disputed issue as
to any material fact, and the moving party is entitled to judgment as a matter of
law.41 When assessing whether a dispute regarding any material fact exists, the
34 R. Doc. 7.
35 Id.
36 Id.
37 Id.
38 R. Doc. 27.
39 R. Doc. 31.
40 R. Doc. 44.
41 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202
(1986).
Court considers “all of the evidence in the record but refrain[s] from making
credibility determinations or weighing the evidence.” 42 While all reasonable
inferences must be drawn in favor of the nonmoving party, a party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions or “only
a scintilla of evidence.”43 Instead, summary judgment is appropriate if a reasonable
jury could not return a verdict for the nonmoving party.44
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.”45 The
non-moving party can then defeat summary judgment by either submitting evidence
sufficient to demonstrate the existence of a genuine dispute of material fact, or by
“showing that the moving party’s evidence is so sheer that it may not persuade the
reasonable fact-finder to return a verdict in favor of the moving party.”46 If, however,
the nonmoving party will bear the burden of proof at trial on the dispositive issue,
the moving party may satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element of the nonmoving
party’s claim.47 The burden then shifts to the nonmoving party who must go beyond
the pleadings and, “by her own affidavits, or by the ‘depositions, answers to
42 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)
(citations omitted).
43 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
44 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
45 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).
46 Id. at 1265.
47 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’”48
Additionally, in a nonjury case, such as this case, “a district court has
somewhat greater discretion to consider what weight it will accord the evidence.”49
“When deciding a motion for summary judgment prior to a bench trial, the district
court ‘has the limited discretion to decide that the same evidence, presented to him
or her as a trier of fact in a plenary trial, could not possibly lead to a different
result.’”50
III. ANALYSIS
“From its dawn, the maritime law has recognized the seaman’s right to
maintenance and cure for injuries suffered in the course of his service to his vessel,
whether occurring on sea or on land.”51 The rule applies whether the shipowner was
at fault or the vessel unseaworthy.52 “Maintenance may be awarded by courts even
where the seaman has suffered from an illness pre-existing his employment, but there
is a general principle that it will be denied where he knowingly or fraudulently
conceals his illness from the shipowner.”53 For a vessel owner to rely on the
McCorpen defense to deny maintenance and cure to a seaman, the vessel owner must
establish that: (1) the seaman intentionally misrepresented or concealed medical
facts; (2) the misrepresented or concealed facts were material to the employer’s hiring
48 Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed. R. Civ. P. 56(e)).
49 Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010) (quotation omitted).
50 Id. (quoting In re Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991)).
51 O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63. S.Ct. 488, 87 L.Ed. 596 (1943).
52 Id.
53 McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968).
decision; and (3) there exists a causal link between the pre-existing disability that
was concealed and the disability incurred during the voyage.54 Further, when the
vessel owner requires a seaman to submit to a pre-hiring medical examination or
interview and the seaman intentionally misrepresents or conceals material medical
facts, the disclosure of which is plainly desired, then he is not entitled to an award of
maintenance and cure.55 “Of course, the defense that a seaman knowingly concealed
material medical information will not prevail unless there is a causal link between
the pre-existing disability that was concealed and the disability incurred during the
voyage.”56
Here, Adriatic Marine contends that Harrington willfully and knowingly
concealed pre-existing medical conditions related to his back injuries and pain.57
Adriatic Marine further asserts that it would have considered these withheld facts in
making its hiring decision had they been disclosed.58 Adriatic Marine notes that the
concealed information is causally connected to Harrington’s current alleged injuries,
as they all relate to the same area of the body (the back).59 To support its position
that Harrington “willfully and knowingly” concealed these facts, Adriatic Marine
points to Harrington’s responses to written discovery requests, wherein Harrington
answered affirmatively that he “read in full and understood the contents” of the
medical questionnaire prior to signing it.60 Adriatic Marine further points out that
54 Id.
55 Id.
56 Id. at 549 (citation omitted).
57 R. Doc. 1 at ¶ 19.
58 Id. at ¶ 20.
59 Id. at ¶ 21.
60 R. Doc. 27-1 at pp. 18-19.
Harrington read various documents when presented to him by counsel during his
deposition, and that Harrington testified in his deposition that he could read other
documents.61
In his Opposition brief, Harrington points out that he also testified during his
deposition that he did not fully understand the medical questionnaire when he
completed it.62 While he admits to circling the columns which indicated “No” to
various ailments, including prior back or neck injuries or pain, Harrington testified
that he, “Didn’t understand it,” and, “Because I didn’t have no back pain and no—and
I didn’t understand.”63 Harrington argues that his non-disclosure was due to a lack
of understanding, rather than an intent to conceal. As to the second McCorpen prong,
which requires proof that the concealed information would have been material to the
hiring decision, Harrington argues that Adriatic Marine’s Declaration on the issue is
self-serving.64 Harrington further asserts that the information would not have been
material to the hiring decision because Adriatic Marine’s independent medical
examiner reviewed Harrington’s x-ray films from March 2010, and opined that the
films showed “no evidence of acute injury.”65 Additionally, Harrington argues that
Adriatic Marine’s reliance on McCorpen ignores a glaring defect in their position,
namely, that there is no evidence that any prior lumbar condition caused or
contributed in any manner to Harrington’s injury on the vessel, nor did any pre-
61 Id.
62 R. Doc. 31 at pp. 6-9.
63 Id.
64 R. Doc. 31 at pp. 9-10 (citing R. Doc. 27-11).
65 Id.
existing condition interfere with his prior work for Adriatic Marine. Finally,
Harrington argues that Adriatic Marine has failed to sustain its burden in meeting
the third prong of McCorpen, showing a causal connection between the alleged
withheld information and any injury. Harrington argues that, “Even if Adriatic was
successful in proving the first two prongs of the McCorpen doctrine, the third prong
is insurmountable in this instance since there is no proof that Harrington’s slipping
and striking his back on an angle iron in the bilge was in any way connected to a pre-
existing degenerative lumbar condition.”66 Harrington further argues that Fifth
Circuit jurisprudence requires Adriatic Marine to prove a prior injury, or at least
significant treatment, to the same body part in order to prove a causal connection,
and Adriatic Marine has failed to prove a prior injury.67
In its Reply brief, Adriatic Marine argues that Harrington’s assertion that his
prior back issues were not evidenced during his employment with Adriatic Marine
are irrelevant to a McCorpen analysis.68 Citing Brown v. Parker Drilling Offshore
Corp., Adriatic Marine asserts “that Harrington ‘worked successfully and without
incident for the entire time period in question’ is similarly irrelevant to the
‘materiality’ prong of McCorpen.” 69 Adriatic Marine also points out that its
Declaration regarding how and whether it would have considered Harrington’s prior
medical conditions, had they been disclosed, is unrebutted.70 Finally, Adriatic
66 Id. at p. 11.
67 Id. at pp. 11-18.
68 R. Doc. 44.
69 Id. at p. 6 (citing Brown, 410 F.3d 166 (5th Cir. 2005)).
70 R. Doc. 44 at p. 6.
Marine argues that the undisclosed medical information is causally connected to
Harrington’s treatment for his current injury, since both involve claims of back pain.
Adriatic Marine argues that it is sufficient to show that the previous injury and the
new injury occurred in the same location on the body to establish this causal
connection.71
The record in this matter reflects that Harrington failed to disclose medical
information to Adriatic Marine in its pre-employment questionnaire. Harrington has
argued that he did not fully understand the questions put to him when he circled “no”
to several questions regarding neck and back pain or injuries. However, his
deposition testimony and conduct at the deposition, in reading and understanding
other documents put before him, belie this argument. The record also reflects that
Harrington answered “no” when asked whether he currently had or has ever had
“neck or back problems” in an employment questionnaire that he completed three
months after this alleged injury and only one day following a visit to an emergency
room with a complaint of back pain.72 In light of the evidence in the record, the Court
is satisfied that the first prong of McCorpen has been met.
With respect to the second prong of McCorpen, Harrington has not provided
any evidence to contradict Adriatic Marine’s Declaration that the withheld medical
information would have been important and considered by Adriatic Marine in making
a determination about his fitness for employment. While Harrington asserts that
71 R. Doc. 44 (citing Brown, 410 F.3d at 176; Johnson v. Cenac Towing, Inc., 599 F. Supp. 2d 721, 728-
29 (E.D. La. 2009); Chapman v. Spartan Offshore Drilling, LLC, Civ. A. No. 15-CV-994, 2016 WL
1393490, at *5 (E.D. La. Apr. 8, 2016)).
72 See R. Doc. 27-9.
Adriatic Marine’s Declaration is self-serving, this could be said about any Declaration
or Affidavit in support of one’s position. Further, regarding the materiality prong of
McCorpen, the Court adheres to the jurisprudence that “…where the shipowner
requires a seaman to submit to a pre-hiring medical examination or interview and
the seaman intentionally misrepresents or conceals material medical facts, the
disclosure of which is plainly desired, then he is not entitled to an award of
maintenance and cure.”73 The record supports that Defendant’s employment with
Adriatic Marine was dependent on a medical examination and the truthful
completion of the medical questionnaire. The Court finds that Adriatic Marine’s
Declaration in this regard is uncontradicted and satisfies the second prong of the
McCorpen analysis.
Finally, the Court is satisfied that the third prong of McCorpen, whether the
concealed medical information is causally connected to the alleged injury or
treatment for the injury, has been met in this case. The concealed medical
information concerned recurring issues involving Harrington’s back pain, and
included a prior diagnosis of degenerative disc disease and lumbar strain. The Court
finds that the medical records attached to Adriatic Marine’s Motion are sufficient to
satisfy that causal connection between the concealed medical information and
Harrington’s current injury and treatment.
73 McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968) (citing Evans v. Blidberg
Rothchild Co., 382 F.2d 637 (4th Cir. 1967)).
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Adriatic Marine, LLC’s
Motion for Partial Summary Judgment on McCorpen Defense™ is GRANTED, and
Roland Harrington’s claims for maintenance and cure are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, March 3, 2020.
(lend _ & Vitter
WENDY B./VITTER
United States District Judge
R. Doc. 27.