Savoie v. Inland Dredging Company LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOSEPH SAVOIE CIVIL ACTION

VERSUS NO. 20-2294

INLAND DREDGING COMPANY LLC SECTION: H(1)

ORDER AND REASONS

Before the Court is Defendant Inland Dredging Company, LLC’s Motion

for Partial Summary Judgment on Maintenance and Cure (Doc. 41). For the

following reasons, this Motion is DENIED.

BACKGROUND

This case arises out of an injury that Plaintiff allegedly suffered while

working on a dredge, the M/V INGENUITY, owned and operated by Defendant

Inland Dredging Company, LLC (“Inland Dredging”). At the time of the

incident, May of 2018, Plaintiff was employed by Inland Dredging as the

dredge captain of the INGENUITY. Plaintiff previously worked for Inland

Dredging from 2002 to 2009 and was rehired in 2015. In May of 2018 the

INGENUITY was located in Port Arthur, Texas, and was assigned to a project

to build a dock. During this project, a bearing on one of the dredge’s pumps

broke and had to be replaced. After completing the repairs, Plaintiff helped put

an impeller back on the main pump. Plaintiff alleges that as a result of

Defendant’s negligence and the INGENUITY’s unseaworthiness, the impeller

“jumped back” and threw him against the wall, causing injuries to his back.1

Plaintiff asserts claims against Inland Dredging under the Jones Act and

general maritime law, seeking damages and benefits in the form of

maintenance and cure.

Now before the Court is Inland Dredging’s Motion for Partial Summary

Judgment on Maintenance and Cure. Inland Dredging asks this Court to

declare that Plaintiff is not entitled to maintenance and cure under the Fifth

Circuit’s decision in McCorpen v. Central Gulf S.S. Corp.2 Plaintiff opposes.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”3 A genuine issue of

fact exists only “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”4

1 See Doc. 14 at ¶ XIII.

2 396 F.2d 547 (5th Cir. 1968).

3 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).

4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether the movant is entitled to summary judgment,

the Court views facts in the light most favorable to the non-movant and draws

all reasonable inferences in her favor.5 “If the moving party meets the initial

burden of showing that there is no genuine issue of material fact, the burden

shifts to the non-moving party to produce evidence or designate specific facts

showing the existence of a genuine issue for trial.”6 Summary judgment is

appropriate if the non-movant “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case.”7 “In response to a

properly supported motion for summary judgment, the non-movant must

identify specific evidence in the record and articulate the manner in which that

evidence supports that party’s claim, and such evidence must be sufficient to

sustain a finding in favor of the non-movant on all issues as to which the non-

movant would bear the burden of proof at trial.”8 “We do not . . . in the absence

of any proof, assume that the nonmoving party could or would prove the

necessary facts.”9 Additionally, “[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion.”10

5 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

6 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

7 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

8 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.

2004) (internal citations omitted).

9 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

10 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

LAW AND ANALYSIS

“An employer owes damages for maintenance and cure to any seaman

who suffers injury during his employment on a vessel, regardless of fault.”11 “A

seaman’s employer may, however, rely on certain legal defenses, such as the

McCorpen defense, to deny claims for maintenance and cure.”12 In McCorpen,

the Fifth Circuit held that an employer is relieved of the obligation to pay

maintenance and cure when the seaman conceals or misrepresents the facts of

a prior condition or injury in connection with an application for employment.13

To prevail on this defense, “an employer must show that (1) the claimant

intentionally misrepresented or concealed medical facts; (2) the non-disclosed

facts were material to the employer’s decision to hire the claimant; and (3) a

connection exists between the withheld information and the injury complained

of in the lawsuit.”

Inland Dredging argues that Plaintiff is not entitled to maintenance and

cure for his alleged back injuries because when he was re-hired in 2015 he

failed to disclose a history of lower back pain.14 Inland Dredging presents

evidence that Plaintiff underwent an MRI in 2005 that revealed “[m]ild disc

11 Foret v. St. June, LLC, No. 13–5111, 2014 WL 4539090, at *2 (citing Johnson v. Cenac

Towing, Inc., 544 F.3d 296, 301 (5th Cir. 2008)).

12 Dauzat v. Weeks Marine, Inc., No. 14-3008, 2016 WL 3167662, at * (E.D. La. June 7, 2016)

(internal quotations omitted).

13 McCorpen, 396 F.2d at 549; see also Brown v. Parker Drilling Offshore Corp., 410 F.3d 166,

170–71, 173 (quoting McCorpen, 396 F.2d at 549 (“[W]here the [employer] 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.”)).

14 See Doc. 41-3 at 3.

bulges . . . present at several levels, with the L1-2 bulge being slightly more

prominent.”15 In 2013 Plaintiff visited Dr. Elizabeth Collins for a checkup, and

one of his complaints was “LBP [lower back pain] for one week.”16 Dr. Collins

prescribed Plaintiff medicine for his lower back pain as a result.17 Then

Plaintiff visited Dr. Collins again in early 2015, before starting with Inland

Dredging, and complained that “LBP started 10 days ago.”18

Inland Dredging contends that Plaintiff misrepresented this history

when completing his pre-employment forms and thus should be barred from

receiving maintenance and cure. Inland Dredging bears the burden of proving

each element of the McCorpen defense by presenting evidence that would

entitle it to a directed verdict if the evidence went uncontroverted at trial.19 If

Inland Dredging is able to do so, then the burden shifts to Plaintiff to identify

competent summary judgment evidence establishing a genuine issue of

material fact.20 Inland Dredging is entitled to summary judgment as to

maintenance and cure only if it can prove an absence of disputed material facts

with respect to each of the three elements of the McCorpen defense. This Court

finds that Inland Dredging is unable to do so for the second and third elements

and addresses each in turn.

15 Doc. 41-7 at 2.

16 Doc. 41-8 at 2.

17 Id. at 3.

18 Doc. 41-9 at 2.

19 See Dauzat, 2016 WL 3167662, at *3 (citing Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d

1257, 1263–64 (5th Cir. 1991)).

20 See id.

I. Materiality

The second prong of the McCorpen defense requires Inland Dredging to

prove that the concealed or misrepresented facts were material to its decision

to hire Plaintiff. Typically, “[t]he fact that an employer asks a specific medical

question on an application, and that question is rationally related to the

applicant’s physical ability to perform his job duties, renders the information

material for the purposes of this analysis.”21 However, “[a] triable issue of fact

exists when it is unclear whether an employer’s hiring decision would be

affected by knowledge of a potential employee’s previous injuries.”22 Inland

Dredging need not establish that it would not have hired Plaintiff had his back

problems come to light—only that, for example, it would have subjected

Plaintiff to additional tests or questions.23

In support of the materiality element, Inland Dredging presents the

declaration of Nathaniel Woods, Jr., Safety Director for Encore Dredging

Partners, LLP.24 Mr. Woods stated that “[i]f the answers to any pre-

employment questionnaire or the pre-employment medical evaluation reveal

any pre-existing condition, the candidate may be referred for further in-depth

medical review.”25 Plaintiff, however, controverts this evidence with

documentation that Mr. Woods joined Inland Dredging in 2017, two years after

21 Brown, 410 F.3d at 175.

22 Hare v. Graham Gulf, Inc., 22 F. Supp. 3d 648, 654 (E.D. La. 2014) (citing Jauch v. Nautical

Servs., Inc., 470 F.3d 207, 212 (5th Cir. 2006)).

23 See Ramirez v. Am. Pollution Control Corp., 418 Fed. Appx. 287, 290–91 (5th Cir. 2011)

(finding no issue of fact as to materiality where employee testified that the plaintiff could

have been eligible for further medical evaluation).

24 Encore acquired Inland Dredging in 2021.

25 Doc. 41-4 at 1 (emphasis added).

Plaintiff was hired. Mr. Woods does not say that the above policy was in effect

at Inland Dredging in 2015. Thus, as it stands, Mr. Woods’s testimony cannot

prove that Inland Dredging’s 2015 hiring decision would have been affected

because Mr. Woods was not affiliated with the organization in 2015.26

Even assuming that Mr. Woods, Jr.’s declaration speaks to Inland

Dredging’s policy in 2015, the Court nevertheless finds that his statement is

not dispositive and that there are material issues of fact as to whether any

further medical review would have taken place. Mr. Woods, Jr. only says that

the candidate may have been referred further. The 2005 MRI revealed

relatively benign injuries and was taken while Plaintiff was employed by

Inland Dredging.27 Plaintiff was apparently able to continue working with

Inland for four years after the scan. As to the other two medical reports from

visits to Dr. Collins, the Court notes that on both occasions back pain was not

the primary reason for the visit but was instead a secondary concern.28

Accordingly, the Court finds material issues of fact as to the materiality

element.

II. Causal Connection

Even if Inland Dredging could present sufficient evidence as to

materiality, the Court would still deny summary judgment because of the third

26 Cf. Dauzat, 2016 WL 3167662, at *3–4 (finding a genuine issue of material fact as to

materiality because the defendants’ affidavit from their risk management director, who said

he had authority to block an applicant’s employment based upon past medical conditions,

was contradicted by his deposition testimony, which referred to his ability to merely make

recommendations to another individual with ultimate authority).

27 See Doc. 41-7.

28 See Docs. 41-8, 41-9.

element—the connection between the withheld information and the injury at

issue. Inland Dredging notes that this connection is presumed when the pre-

employment condition and post-accident injury involve the same body part.29

Indeed, “[c]ausality can be established by showing that the previous injury and

the new injury occurred in the same location on the body.”30 “The present injury

need not be identical to the previous injury.”31 “All that is required is a causal

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

incurred during the voyage.”32 Inland Dredging argues that “the post accident

[sic] condition of [Plaintiff’s] lower back is, if not identical, substantially similar

to the condition of his lower back prior to 2018.”33

The Court is not persuaded by this argument for a number of reasons.

First, the relevant time period to compare with Plaintiff’s current condition is

not prior to 2018 but rather before September of 2015, when he was hired.

Second, as Plaintiff points out, it is not at all clear that his back issues from

before September of 2015 affected the same area as his alleged post-accident

back problems.34 For example, the 2005 MRI mentions a “[m]ild L1-2 disc

bulge,” whereas the 2018 MRI identifies both the mild bulge at L1-2 and

moderate foraminal stenosis at L3-4, L4-5, and L5-S1.35 The sole pathology

29 See Doc. 41-3 at 12.

30 Dennis v. ESS Support Servs. Worldwide, No. 15-1690, 2016 WL 3689999, at *5 (E.D. La.

July 12, 2016) (citing Brown, 410 F.3d at 176).

31 Id.

32 Brown, 410 F.3d at 176 (quoting Quiming v. Int’l Pac. Enters., Ltd., 773 F. Supp. 230, 236

(D. Haw. 1990)).

33 Doc. 41-3 at 13.

34 See Doc. 42 at 12–13.

35 Compare Doc. 41-7, with Doc. 41-19.

reported in the 2005 MRI—the L1-2 mild bulge—remained unchanged in 2018.

Inland Dredging presents no testimony linking Plaintiff’s pre-employment

condition affecting L1-2 to his alleged post-accident injuries to other discs.

Third and finally, Inland Dredging overstates Plaintiff’s complaints of

back pain prior to being hired in 2015. The 2005 MRI specifically notes that

any mild disc bulges identified “are not associated with neural compression”

and reflect “no evidence of spinal stenosis.”36 Besides this MRI, Inland

Dredging presents a record from a 2013 checkup with Dr. Collins, which

mentions back pain only in connection with Plaintiff’s recent job sitting in a

crane for 16 hours a day.37 The last piece of Inland Dredging’s pre-employment

evidence, a 2015 checkup, merely mentions “LBP” and clearly documents

Plaintiff’s other medical issues more extensively.38 Without more, Inland

Dredging has failed to prove a causal connection between Plaintiff’s pre-

existing condition, if any, and his current alleged injuries.39 Accordingly, the

Court denies summary judgment to Inland Dredging.

CONCLUSION

For the foregoing reasons, Inland Dredging’s Motion for Partial

Summary Judgment on Maintenance and Cure (Doc. 41) is DENIED.

36 Doc. 41-7 at 2.

37 See Doc. 41-8.

38 See Doc. 41-9.

39 Cf. Parker v. Noble Drilling Corp., No. CIV. A. 98-1196, 1999 WL 104414, at *2 (E.D. La.

Feb. 19, 1999) (denying summary judgment because employer failed to demonstrate a pre-

existing condition or disability at all, proving only that the plaintiff had complained of back

pain on a prior occasion).

New Orleans, Louisiana this 13th day of May, 2022

g TRICHE MILAZZO

UNITED STATES DISTRICT JUDGE

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