Williams v. Magnolia Marine Transport Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CARLOS L. WILLIAMS CIVIL ACTION

VERSUS NO. 20-196

MAGNOLIA MARINE TRANSPORT SECTION “R” (2)

CO., ET AL.

ORDER AND REASONS

Before the Court is defendant Magnolia Marine’s motion for partial

summary judgment.1 Because defendant has met its burden of proving the

McCorpen defense, the Court grants the motion.

I. BACKGROUND

This case arises from an incident that allegedly occurred while plaintiff

Carlos Williams was employed by defendant Magnolia Marine as a Jones Act

Seaman aboard the M/V JODY MCMINN.2 On May 22, 2019, defendants

Big River Shipbuilders were allegedly transporting the M/V JODY MCMINN

into one of its shipyards when the lumber supporting the vessel broke,

1 R. Doc. 21.

2 R. Doc. 1 at 2, ¶ IV.

causing the vessel to list to one side. 3 As a result, plaintiff allegedly fell and

suffered an injury to his left shoulder.4

Plaintiff testified that he applied to work at Magnolia Marine in 2012

and stayed there for five years. During that tenure, he worked as a deckhand

and as a relief mate.5 Plaintiff temporarily left Magnolia Marine in 2017,6

but he reapplied in the same year.7 Upon return, plaintiff worked as a

tankerman and relief mate.8 Both times plaintiff applied for employment

with Magnolia Marine, he filled out a “pre-employment medical

information” form and a “medical history questionnaire.”9 In all four forms,

plaintiff indicated that he had no history of shoulder injuries and did not

disclose any surgeries.10 Plaintiff also certified that that his answers in the

forms were “true and complete.”11

But plaintiff later testified that he suffered a shoulder injury while

playing football in 2008.12 Plaintiff also stated that he underwent surgery to

3 Id.at ¶ VI.

4 Id. at ¶ VII.

5 R. Doc. 21-2 at 17-18, 23 (Williams Deposition at 63:21-64:23-25, 74:7-

9).

6 Id. at 19 (Williams Deposition at 65:1-12).

7 Id. at 21-24 (Williams Deposition at 69:22-70:25, 74:11, 75:11-12).

8 Id. at 21, 23 (Williams Deposition at 69:23-25, 75:5-11).

9 R. Doc. 21-2 at 42-47.

10 Id.

11 Id.

12 R. Doc. 21-2 at 3-4 (Williams Deposition at 33:18-34:7)

treat the shoulder injury.13 Defendant now moves for partial summary

judgment, raising a McCorpen defense.

II. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter 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 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

13 Id. at 4-5 (Williams Deposition at 34:21-35:13).

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

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.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp.

948, 951 (D. Colo. 1991)). The nonmoving party can then defeat the motion

by either countering with 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.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element 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

(emphasis added))).

III. DISCUSSION

Seamen have a right to maintenance 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 seaman to food and lodging if he becomes injured during the

course of fulfilling his duties to the ship. See Atl. Sounding Co. v. Townsend,

557 U.S. 404, 413 (2009). “Cure” is the right to necessary medical services.

Id. Before a plaintiff can recover maintenance and cure, he bears the burden

of proving the following facts: (1) he was working as a seaman; (2) he became

ill or was injured while in the vessel's service; and (3) he lost wages or

incurred expenses stemming from treatment of the illness or injury. Thomas

J. Schoenbaum, 1 Admiralty & Mar. Law § 6:28 (6th ed.).

Maintenance and cure may be awarded “even where the seaman has

suffered from an illness pre-existing his employment.” 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 New Orleans, Inc., No. 01-795, 2001 WL 1223589, at *2 (E.D. La. Oct. 12,

2001) (discussing the McCorpen defense). Specifically, if the shipowner

requires a prospective seaman to undergo a pre-hiring medical evaluation,

and the seaman either intentionally misrepresents or conceals material

medical facts, then the seaman is not entitled to an award of maintenance

and cure. See McCorpen, 396 F.2d at 549. For a shipowner or employer to

rely on the McCorpen defense to deny a seaman’s maintenance and cure

claim, the employer 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 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 Brown v. Parker

Offshore Drilling, 410 F.3d 166, 171 (5th Cir. 2005) (finding the McCorpen

defense established).

Defendant argues that plaintiff’s failure to disclose his 2008 shoulder

injury and the subsequent surgery for that injury allows defendant to deny

him maintenance and cure under McCorpen. For the reasons that follow,

the Court finds that defendant has carried its burden of proving all three

components of the McCorpen defense, and plaintiff failed to create an issue

of material fact on any of those elements.

A. Concealment

Plaintiff intentionally concealed or misrepresented medical facts when

he stated in his medical history forms that he had never experienced any

shoulder trouble and failed to reveal his shoulder surgery.14 The Fifth Circuit

has held that intentional concealment does not require a finding of subjective

intent. Brown, 410 F.3d at 174. Rather, “[f]ailure to disclose medical

information in an interview or questionnaire that is obviously designed to

elicit such information . . . satisfies the ‘intentional concealment’

requirement.” Id. Here, plaintiff testified that he injured his shoulder

playing football, underwent “[l]eft shoulder surgery, had two postoperative

14 R. Doc. 21-2 at 42-44 (failing to disclose in 2012); id. at 45-47 (failing

to disclose in 2017).

visits, and underwent physical therapy for his shoulder.”15 The Court finds

that plaintiff’s failure to disclose the shoulder injury and subsequent

treatment constitutes concealment of medical facts.

Plaintiff argues that a fact issue remains on the concealment

question.16 In his opposition to defendant’s motion, plaintiff asserts that he

suffers from a learning disability that affects his reading comprehension.17

But there is no evidence that plaintiff could not read or understand the forms.

Indeed, at his deposition he demonstrated that he could read and understand

the forms. And he did not assert that a learning disability was an impediment

to his understanding. When asked about one of the questions at issue, he

testified that he understood its meaning. 18 Reading the form, plaintiff stated

that it asked for “medical history,” listed “[s]houlder trouble,” and asked

whether he had “any illness or injury not listed.”19 Plaintiff also confirmed

his understanding of the term “medical history,” agreeing that the form was

asking whether he “ever” had any of the listed conditions.20

15 Id. at 4-7 (Williams Deposition at 34:3-12, 35:12-13, 36:6-37:23).

16 R. Doc. 22 at 9-10.

17 Id.; see also R. Doc. 22-1 at 9 (Williams Deposition at 166:2-8).

18 R. Doc. 22-1 at 9 (Williams Deposition at 167:19-168:14).

19 Id.

20 Id. (Williams Deposition at 167:22-168:7).

After reading the form, plaintiff surmised that he “must not have

comprehended it at the time because [he] checked no.”21 He explained that

he was thinking about the present when he did not “have anything going

on.”22 But plaintiff’s rationalizations for why he failed to list his preexisting

shoulder injury do not support his argument that he could not understand

the questions because of a learning disability. There is no evidence that

plaintiff’s learning disability prevented him from reading and understanding

the questions on the form.23

In essence, plaintiff contends that he did not subjectively intend to

conceal his shoulder issues. But in Brown, the Fifth Circuit expressly found

that concealment is an objective inquiry and, as a matter of law, failing to

21 Id. (Williams Deposition at 168:15-25).

22 Id. (Williams Deposition at 168:19-25).

23 The Court also notes that plaintiff testified he could read and write in

English, R. Doc. 27-1 at 2 (Williams Deposition at 48:1-3); stated that he

never told anyone at Magnolia Marine of his alleged learning disability, or

asked anyone to read the preemployment forms to him, id. at 9 (Williams

Deposition at 167:9-15); read the relevant portions of the forms out loud at

his deposition and stated that he understood them, id. at 9-10 (Williams

Deposition at 167:16-168:14); stated that he understood a “Mississippi

Athletic Participation Form” when he filled it out four months before

completing his preemployment forms for Magnolia Marine in 2012, and

listed his shoulder injury on that form, id. at 13-15 (Williams Deposition at

179:16-181:16); see also id. at 16 (Mississippi Athletic Participation Form);

and stated that he could read and understand football playbooks, job safety

analysis forms, and the U.S. Coast Guard’s test for a tankerman license,

which he passed on his first attempt, id. at 11 (Williams Deposition at 170:6-

171:6).

disclose medical information in a preemployment questionnaire satisfies the

concealment requirement. Brown, 410 F.3d at 174. The Court finds that

defendant has carried its burden of proving concealment, and that plaintiff

has failed to create an issue of material fact on this question.

B. Materiality

If an employer asks a specific medical question on an application, and

the inquiry is rationally related to the applicant’s physical ability to perform

his job duties, the information is material for the purpose of the McCorpen

analysis. Id. at 175; see also McCorpen, 396 F.2d at 549 (“[W]here 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.”).

In pre-employment questionnaires that plaintiff completed in 201224

and again in 2017,25 Magnolia Marine specifically asked plaintiff whether he

had any preexisting shoulder conditions. This inquiry is rationally related

to plaintiff’s physical ability to perform the duties of a deckhand, tankerman,

and relief mate, because these positions “require physical activity over

24 R. Doc. 21-2 at 42-44.

25 Id. at 45-47.

extended periods of time.”26 It is reasonable for Magnolia Marine to inquire

about preexisting conditions because they might hinder an applicant’s ability

to perform physical tasks. Plaintiff’s omission of his shoulder injury and

surgery was therefore material to Magnolia Marine’s hiring decision under

Fifth Circuit law. See Brown, 410 F.3d at 175 (noting that a seaman’s “history

of back injuries is the exact type of information sought by employers.”).

Luwisch v. American Marine Corporation, No. 17-3241, 2018 WL

3111931 (E.D. La. June 25, 2018), on which plaintiff relies to argue that

Magnolia Marine has not met its burden, is clearly distinguishable from the

facts of this case. The employer in Luwisch hired the plaintiff even though

he did not complete a medical history questionnaire. Id. at *2 (“[T]he Court

finds it significant that AMC hired Luwisch without having obtained the

complete [medical history] packet.”). Courts generally “assume[] a

connection between the specific medical question being asked and the

employer’s decision to hire,” but that presumption does not apply when an

employer hires an employee without requiring the employee to complete that

portion of the application. Id. Here, Magnolia Marine required plaintiff to

answer a specific medical question that was clearly relevant to his ability to

perform his job duties. Under McCorpen, the information is therefore

26 R. Doc. 21-3 at 2-3, ¶ 13 (Harris Declaration).

material. See Brown, 410 F.3d at 175. The Court finds that defendant has

carried its burden of introducing evidence to show materiality, and that

plaintiff has failed to create an issue of fact on the materiality element.

C. Causal Link

Finally, to succeed on its McCorpen defense, a defendant must show “a

causal link between the pre-existing disability that was concealed and the

disability incurred during the voyage.” Brown, 410 F.3d at 176 (quoting

Quiming 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 Towing, Inc., 599 F. Supp. 2d 721, 728 (E.D. La. 2009).

Rather, “the McCorpen defense will succeed if the defendant can prove that

the old injury and the new injury affected the same body part.” Id. (citing

Brown, 410 F.3d at 176); see also Weatherford v. Nabors Offshore Corp.,

No. 03-478, 2004 WL 414948, at *7 (E.D. La. Mar. 3, 2004). Indeed, “there

is no requirement that a present injury be identical to a previous injury.”

Brown, 410 F.3d at 176 (quoting Quiming, 773 F. Supp. at 236). Here,

plaintiff’s previous shoulder issues and his injury while employed by

Magnolia Marine both affected his left shoulder. The Court also notes that

plaintiff did not contest the causation element in his response to defendant’s

motion. Because both injuries affected the same body part, and plaintiff

offers no evidence in rebuttal, the Court finds that defendant carried its

burden of showing causation.

In sum, defendant has carried its burden of proving all three elements

of the McCorpen defense. The Court must grant defendant Magnolia

Marine’s motion for partial summary judgment.

IV. CONCLUSION

For the foregoing reasons, defendant’s motion for partial summary

judgment is GRANTED. Plaintiffs claims for maintenance and cure are

DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 30th _ day of December, 2020.

hernk Varese

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

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