# Savoie v. Inland Dredging Company LLC

> District Court, E.D. Louisiana · May 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10187793

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10187793

## How later opinions describe it (automated extraction)

- finding no issue of fact as to materiality where employee testified that the plaintiff could have been eligible for further medical evaluation

## Opinion text

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

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187793. Public record. Not legal advice.