The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN THE MATTER OF ADRIATIC CIVIL ACTION
MARINE, LLC, AS THE OWNER
OF THE M/V CARIBOU,
PETITIONING FOR NO: 20-1488
EXONERATION FROM AND/OR
LIMITATION OF LIABILITY
SECTION: J(4)
ORDER & REASONS
Before the Court is a Motion for Partial Summary Judgment (Rec. Doc. 86)
filed by Adriatic Marine, LLC (“Adriatic Marine”); an opposition (Rec. Doc. 102) filed
by Third-Party Plaintiff, Dontrelle Davis; a reply (Rec. Doc. 107) filed by Adriatic
Marine; a sur-reply (Rec. Doc. 121) filed by Davis; and a sur-reply (Rec. Doc. 124) filed
by Adriatic Marine. Having considered the motion and legal memoranda, the record,
and the applicable law, the Court finds that the motion should be granted.
FACTS AND PROCEDURAL BACKGROUND
This case arises out of an incident that took place on or about November 24,
2019 aboard the M/V CARIBOU, which is owned by Adriatic Marine. While unloading
cargo to the Horn Mountain SPAR in the Gulf of Mexico, Davis, a deckhand employed
by Adriatic Marine at the time, allegedly suffered injuries to his left knee, left
shoulder, cervical spine, and lumbar spine. Adriatic Marine received a letter from
Davis’ counsel on or about December 9, 2019, notifying them of Davis’s potential
claim. In May of 2020, Adriatic Marine filed a Complaint of Limitation seeking to
exonerate itself from, or limit, liability for Davis’ injuries. (Rec. Doc. 1). Davis filed an
answer and claim to complaint in response to the Limitation, (Rec. Doc. 10), and in
October of 2020, Davis filed a Third-Party Complaint alleging Jones Act claims
against Adriatic Marine; M/V CARIBOU; Blake International Rigs, LLC; Pioneer
Production Services, Inc.; and Oxy, Inc, (Rec. Doc. 29). The instant motion for
summary judgment is related to Davis’ claim for maintenance and cure against his
employer, Adriatic Marine. The motion was initially set for submission on March 23,
2022. Davis filed a motion to continue the submission date in order to depose Adriatic
Marine’s Vice President of QHSE/ HR, Barret Grabert, and the physician(s) at
Adriatic Marine’s clinic. (Rec. Doc. 100). Adriatic Marine opposed this motion (Rec.
Doc. 105). The Court subsequently granted the motion, and the new submission date
was set for July 13, 2022. (Rec. Doc. 112). The motion is now ripe for review.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56); see Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a
dispute as to any material fact exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but
a party cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be
satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
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). The nonmoving
party can then defeat the motion by either countering with sufficient evidence of its
own, or “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.
DISCUSSION
As an initial note, it is undisputed that Davis suffered multiple injuries prior
to beginning his employment with Adriatic Marine. In March 2005, Davis was
involved in a motor vehicle accident, and he was diagnosed with a sprain of his
cervical spine. (Rec. Doc. 86-1, at 5). In December 2010, Davis was involved in another
motor vehicle accident. (Id.). After the 2010 accident, Davis was diagnosed with
patella tendonitis, low back pain, and a shoulder injury. (Id. at 6). Additionally, after
x-rays were taken of his left shoulder, left knee, and back, the doctor observed slight
degenerative disc disease at L5-S1. (Id.). Subsequently, Davis underwent an MRI of
his left shoulder, his left knee, and his lumbar spine. (Id.). From these MRI’s Davis
was diagnosed with an injury to the AC joint of his left shoulder, which was later
described as a labral tear; with a medial collateral ligament tear of his left knee; and
an L5-S1 protrusion of about 2-3 millimeters of his lumbar spine. (Id. at 6–7). In June
2017, Davis sustained injuries while playing tackle football, and he presented to the
hospital complaining of back pain stemming from the tackle football injury as well as
intermittent back pain since the 2010 accident. (Id. at 7–8). In December 2017, Davis
presented to the hospital for treatment of an anxiety attack, and, while there, he told
the medical providers that the anxiety stemmed from telling his supervisor that he
was experiencing back pain. (Id. at 7). Additionally, Davis reported that he had a
history of three bulging discs. (Id.). The medical providers restricted Davis from
heavy lifting greater than fifteen pounds. (Id.). In June 2018, Davis presented to the
hospital with chest pain after taking ecstasy. (Id.). The “past medical history” section
of the note prepared in connection with this treatment revealed that Davis reported
that he had three bulging discs. (Id.). Based upon Davis’s medical history, Adriatic
Marine argues that Davis had preexisting medical conditions to his left knee, left
shoulder, cervical spine, and lumbar spine. (Id. at 8). Because Davis failed to report
any of these conditions on his pre-employment physical, Adriatic Marine contends
that it is entitled to summary judgment on Davis’ maintenance and cure claims
pursuant to the McCorpen Defense. (Id.).
Generally, a Jones Act employer/vessel owner has an obligation to provide
maintenance and cure for any seaman employee if they suffer injuries or become ill
while in the service of a vessel. The Osceola, 189 U.S. 158, 175 (1903). The Fifth
Circuit has explained that, “[t]he vessel owner’s obligation to provide this
compensation does not depend on any determination of fault, but rather is treated as
an implied term of any contract for maritime employment.” Jauch v. Nautical Servs.,
470 F.3d 207, 212 (5th Cir. 2006). Nonetheless, maintenance and cure will not be
owed if it is determined that the seaman “knowingly or fraudulently concealed his
condition from the vessel owner at the time he was employed.” Id. (citing McCorpen
v. Cent. Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968)).
It is well-settled that, “where the shipowner requires the seaman to submit to
a pre-hiring medical examination or interview and the seaman intentionally
misrepresents or conceals material medical facts, disclosure of which is plainly
desired, then he is not entitled to an award of maintenance and cure.” McCorpen, 396
F.2d at 549. In order to succeed on a McCorpen defense, a Jones Act employer/vessel
owner 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.” Brown v. Parker Drilling Offshore Corp., 410
F.3d 166, 171 (5th Cir. 2005) (citing McCorpen, 396 F.2d at 548–49). Here, Plaintiff
focuses his argument solely on his contention that the allegedly concealed medical
facts were not material to Adriatic Marine’s decision to hire him. Thus, the Court will
not address the first and third prongs, and it will deem them waived.
Under the second prong of McCorpen, “[t]he fact that an employer asks a
specific medical question on an application, and that the inquiry is rationally related
to the applicant's physical ability to perform his job duties, renders the information
material for the purpose of this analysis.” Brown, 410 F.3d at 175. A seaman's “history
of back injuries is the exact type of information sought by employers.” Id. Moreover,
courts have granted summary judgment on the materiality prong “when the evidence
establishes that full disclosure of the plaintiff's medical condition would have
prompted his employer to conduct further medical evaluation prior to making a hiring
decision.” White v. Sea Horse Marine, Inc., No. 17-9774, 2018 WL 3756475, at *3 (E.D.
La. Aug. 8, 2018). “However, if an employee can show that, even if undisclosed facts
were material, he or she would have been hired regardless, the employer is not
entitled to the McCorpen defense to evade its maintenance and cure obligation.” Hare
v. Graham Gulf, Inc., 22 F. Supp. 3d 648, 654 (E.D. La. 2014) (citing McCorpen, 396
F.2d at 551–52). A triable issue of fact remains when it is unclear whether an
employer’s hiring decision would be affected by knowledge of a potential employee’s
previous injuries. Id. (citing Jauch, 470 F.3d at 212). The principal inquiry becomes
whether disclosure of the allegedly concealed medical information would have
prevented the employee from being onboard the vessel at the time of the accident,
and thus avoiding the accident and complained of injuries. Jauch, 470 F.3d at 212–
13.
Here, it is undisputed that Adriatic Marine asked certain questions of Davis
about his prior medical conditions in the employment application, and Davis does not
appear to dispute that these questions were reasonably related to his ability to do the
job for which he applied. The fact that these questions were asked makes the answers
material for McCorpen purposes. The issue arises as to whether Adriatic Marine still
would have hired Davis regardless of any previous injuries or medical conditions and
whether Davis’ disclosure would have prevented him from being present on the M/V
CARIBOU at the time of the incident at issue.
Here, Davis underwent a physical examination, Adriatic Marine contends,
specifically to elicit any information as to Davis’s preexisting conditions to determine
and confirm his physical capability to perform the work for which he was being hired.
(Rec. Doc. 86-1, at 18–19). Adriatic Marine cites to the declaration of its Vice
President of Quality, Health, Safety, and Environment/ HR, Barrett Grabert, who
states that
[i]f a prospective employee reports and/or notes any preexisting
conditions in the course of completing paperwork related to the pre-
employment physical, Adriatic Marine . . . will seek further consultation
and information, including but not limited to inquiring regarding prior
incidents, injuries and treatment, requesting documentation related to
prior incidents, injuries and treatment, additional testing or evaluation
in order to determine whether, despite these preexisting conditions, the
employee can safely perform the work for which he or she is hired and
that the employee does not pose a danger to himself, herself, or other
crewmembers.
(Rec. Doc. 86-11, at 3). Because Davis was hired as a deckhand, which is considered
a heavy manual labor position that requires certain physical capabilities, including
lifting requirements, Adriatic Marine asserts that it materially relied upon Davis’
representations that he had not suffered prior injuries in making its decision to hire
him as a deckhand. (Id. at 4–5). Adriatic Marine avers that questions related to an
applicant’s history of back injuries and treatment are directly related to the heavy
manual labor position for which Davis was hired. (Rec. Doc. 86-1, at 19). Therefore,
Adriatic Marine argues that Davis’s non-disclosure of his prior injuries was material
to its decision to hire Davis. (Id. at 18).
In opposition, Davis contends that even if his alleged undisclosed prior medical
conditions were material to Adriatic Marine’s hiring of him, he would have been hired
regardless. (Rec. Doc. 102, at 10). As part of his employment application with Adriatic
Marine, Davis asserts that he indicated that he would be willing to, and in fact did,
submit to a pre-employment physical examination. (Rec. Doc. 102, at 3). On June 21,
2018, Adriatic Marine sent Davis out for a physical examination, the U.S. Coast
Guard physical and agility test, at their clinic to determine his fitness for work. (Id.).
The physician who examined him found that he was able to complete all requirements
tested for the position as a deckhand, and that he was able to safely perform the
critical tasks tested. (Id.). After this examination, Davis argues, he was cleared for
duty and found that he could meet heavy duty demands. (Id.).
Adriatic Marine argues that if it had known of Davis’s preexisting medical
conditions, there would have been an additional evaluation in order to determine
whether he could safely perform the essential functions of his job. (Rec. Doc. 86-1, at
19). However, Davis asserts that he did undergo such an examination and evaluation
of whether he could safely perform his work on June 20, 2018, and Adriatic Marine’s
clinic found that he could safely perform. (Rec. Doc. 102, at 4). Adriatic Marine, Davis
contends, already had the very information they claim they would have sought. (Id.).
Thus, Davis avers that his alleged concealment was not material to Adriatic Marine’s
hiring decision. (Id.). Moreover, about two months after Davis’ employment began, he
suffered a lumbar strain during work. (Id. at 5). Adriatic Marine sent him again to
its clinic for examination and evaluation. (Id.). Davis asserts that the clinic tested
and evaluated him, and he was subsequently released to full duty with no limitation.
(Id.). Despite Adriatic Marine knowing about this prior lumbar strain, he was
released to work onboard the M/V CARIBOU. (Id.). Therefore, Davis argues that at
the time of the subject incident, Adriatic Marine had knowledge that he had at least
some prior issue with his lumbar spine, and Adriatic Marine continued to employ him
and assigned him to the M/V CARIBOU. (Id.).
Moreover, Davis argues that the Fifth Circuit cases of Jauch v. Nautical
Services, Inc. and Ramirez v. American Pollution Control Corp. that Adriatic Marine
relies upon are significantly distinguishable for one main reason: timing. (Rec. Doc.
102, at 12). In Jauch, the employee was required to undergo a pre-employment
physical examination and a complete medical history questionnaire. 470 F.3d at 210.
On that questionnaire, the employee indicated that he had never had back, neck, or
spine trouble when, in fact, he had injured his back several times Id. The employer
testified it typically investigates further before hiring an applicant with a history of
medical problems. Id. at 211. Because the employee did not disclose his prior medical
conditions, no further investigation occurred, and the employee was cleared to join
the crew of a vessel. Id. Just one week later, the employee was injured aboard said
vessel. Id. The court found that the employer met the McCorpen defense, in part,
because the disclosure of the employee’s concealed medical conditions “would have
either prevented his employment, or at least delayed it, preventing his having being
present on the [vessel] at the time of the accident.” Id. at 212–13.
In Ramirez, the court held that there was no genuine issue of material fact
regarding whether the employer would have hired the employee even if he had
disclosed his preexisting medical conditions. 418 F. App’x 287, 290 (5th Cir. 2011).
The employee pointed to testimony in which the person in charge of hiring and firing
deckhands stated that it the captain of the vessel had wanted to hire the employee,
the employer would have conducted further medical evaluations. Id. The Fifth Circuit
reasoned that this testimony did not create a genuine issue of material fact regarding
materiality because the person in charge of hiring did not state that the employer
would have hired the employee, but rather that the employee could have been subject
to further medical examination. Id. Therefore, the Fifth Circuit found no genuine
dispute over materiality where the employee’s preexisting medical conditions would
have led to further medical examinations before the employer made an employment
decision. Id. at 290–91.
In contrast, another section of this court found that there was a genuine issue
of material fact regarding whether the employer would have hired the employee when
the person in charge of hiring stated that the employee may have been referred for
further medical review. Savoie v. Inland Dredging Co. LLC, No. 20-2294, 2022 WL
1540585, at *3 (E.D. La. May 16, 2022); see also Cal Dive Int'l, Inc. v. Grant, No. 11-
1657, 2013 WL 1099157, at *5 (E.D. La. Mar. 15, 2013) (finding a genuine issue of
material fact when the employer stated that it may have hired the employee even if
she did disclose her back injuries). Moreover, while employed by the employer, the
employee underwent an MRI that revelated relatively benign injuries, and the
employee continued to work for the employer four years after the MRI. Id. Therefore,
the court found material issues of fact as to the materiality element of McCorpen. Id.
Here, Davis argues that because of the immediacy of the injuries in Jauch and
Ramirez, had the respective employer companies subjected each employee to
additional testing, they would not have been aboard their respective vessels at the
time of the injury. (Rec. Doc. 102, at 12–13). The facts in this case, Davis contends,
are materially different. (Id. at 13). On June 21, 2018, Davis applied for a deckhand/
rigger position with Adriatic Marine. (Rec. Doc. 86-1, at 8). It was on this date that
Davis underwent a pre-employment physical examination with Adriatic Marine’s
clinic and allegedly concealed his prior medical conditions. (Rec. Doc. 102-2, at 3);
(Rec. Doc. 102-6, at 70–72). At this physical examination, Davis was cleared for heavy
duty work, and it was noted that Davis “was able to complete all requirements tested
for his position.” (Rec. Doc. 102-6, at 71). On August 4, 2018, Davis underwent
another physical examination by Adriatic Marine’s clinic after suffering a lumbar
strain during work. (Rec. Doc. 102-2, at 3); (Rec. Doc. 102-6, at 31). After this
examination, he was released to full duty with no limitation on August 13, 2018. (Rec.
Doc. 102-6, at 31–32). It was not until over a year later on November 24, 2019 that
Davis suffered the injury at issue in this case. (Rec. Doc. 102-2, at 2). During this
period between his lumbar strain and the incident at issue, Davis received salary
increases and a promotion. (Id. at 3); (Rec. Doc. 102-6, at 3–5).
However, Adriatic Marine asserts that if it had known about Davis’s
preexisting medical conditions, the general policy, like the policy in Juach and
Ramirez, is to “seek further consultation and information, including but not limited
to . . . additional testing or evaluation in order to determine whether, despite these
preexisting conditions, the employee can safely perform the work for which he or she
is hired . . .” (Rec. Doc. 86-11, at 3). Grabert testified at his deposition that if Davis
had disclosed any preexisting injuries to his knees, shoulder, neck, and back, Adriatic
Marine’s clinic would have notified Grabert to tell him they were not passing Davis
immediately, but instead following up with his personal care providers to get release
documentation. (Rec. Doc. 121-5, at 103). The timeline to get this information varies
based upon the individual’s clinic and how quickly that clinic responds to requests so
it could take a day or weeks. (Id. at 105). Once Adriatic Marine’s clinic gets the
requested information, they determine whether the individual can safely perform the
U.S. Coast Guard strength and agility test. (Id.). These are the same tests that every
individual must take before Adriatic Marine makes the decision to hire a person. (Id.
at 98). Grabert testified that the ultimate decision to hire someone is based upon the
medical opinions from Adriatic Marine’s clinic because the operative employment
question is whether the person can safely perform the task required of them. (Id. at
115).
However, Grabert made it clear that despite this “operative question,” after
passing the medical tests, the individual will only be eligible for hire. (Id. at 117). The
ultimate hiring decision, which is made solely by Grabert, is not just simply whether
the individual can safely perform the work. (Id. at 137). There are other factors
considered, such as Grabert’s personal determination of the severity of preexisting
medical conditions. (Id. at 137–38). Grabert testified that despite Davis passing the
physical and agility tests, if Davis had disclosed all of his preexisting medical
conditions, Adriatic Marine would not have hired him. (Id. at 134–37). “I don’t want
to take a risk on a chance of him being able to safely perform the work.” (Id. at 134).
Someone with preexisting medical conditions, Grabert testified, is going to “[b]e more
subject to be quickly injured while they’re [on a vessel].” (Id.). “[W]hat I’m looking for
are previous lower back, shoulder, something with his spine injuries . . .[b]ecause they
don’t go away . . . and so he’s always going to seek treatment for it.” (Id. at 135–36).
Moreover, because of the severity of Davis’s preexisting medical conditions, Grabert
testified that if Davis had answered truthfully when asked by Grabert about his prior
medical history, he would never have offered him employment or even asked Adriatic
Marine’s clinic for their opinion because he didn’t “want to take a risk on a chance of
him being able to safely perform the work.” (Id. at 133–34).
As the moving party with the burden of proof at trial, Adriatic Marine has the
burden of coming forward with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial, and Davis, as the nonmoving party, can
then defeat the motion by countering with sufficient evidence of his own. The question
is whether Davis’s disclosure of his preexisting medical conditions would have
delayed his employment or prevented it entirely. First, unlike the employer in Savoie
v. Inland Dredging Co. LLC who stated that the plaintiff may have been referred for
further medical review, Grabert testified that Adriatic Marine’s clinic would have
notified Grabert to tell him they were not passing Davis immediately, but instead
following up with his personal care providers to get release documentation. This
single word created a genuine issue of fact in Savoie, but, unfortunately, is not
present here. Next, like the employers in Juach and Ramirez, Grabert stated that the
protocol when a prospective employee has preexisting medical conditions is to seek
further medical evaluation. However, unlike the plaintiffs in Juach and Ramirez who
were both injured soon after they were hired, Davis was injured over a year after his
hire by Adriatic Marine. In each case, the Fifth Circuit focused it’s reasoning on the
fact that each plaintiff’s employer said a medical evaluation would have delayed, at
the very least, the plaintiffs’ hire such that they each would not have been present on
the vessel at the time of the accident. Therefore, any delay in hiring Davis caused by
further medical evaluation by Adriatic Marine would likely not have prevented his
presence on the M/V CARIBOU. However, this reasoning is contingent on the fact
that, despite his preexisting medical conditions, Adriatic Marine would have
eventually hired Davis after he passed further medical evaluations. Adriatic Marine’s
Vice President of HR/QHSE unequivocally stated that “[h]ad I known about [his
preexisting conditions]. I would have never hired him.” (Id. at 137). Therefore, the
Court finds that no genuine issue of material fact exists as to the materiality of
Davis’s preexisting medical conditions on Adriatic Marine’s decision to hire him.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Adriatic Marine, LLC’s Motion for Partial
Summary Judgment (Rec. Doc. 86) is GRANTED.
IT IS FURTHER ORDERED that Dontrelle Davis's claims for maintenance
and cure are DISMISSED.
New Orleans, Louisiana, this lst day of August, 2022.
Kf □□□□
LALXEAC
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
15