Martinez v. Crosby Dredging, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JUAN MARTINEZ CIVIL ACTION

VERSUS NO. 22-4271

CROSBY DREDGING, LLC SECTION “R” (4)

ORDER AND REASONS

Before the Court is defendant Crosby Dredging, LLC’s unopposed

motion for partial summary judgment.1 For the following reasons, the Court

grants the motion.

I. BACKGROUND

This case arises from injuries that plaintiff Juan Martinez allegedly

suffered while working as a Dredge Field Engineer aboard a vessel owned

and operated by defendant.2 In August 2022, plaintiff allegedly was walking

on an elevated walkway when it flipped over, knocking plaintiff to the ground

and falling on top of him.3 As a result, plaintiff allegedly suffered injuries to

1 R. Doc. 21.

2 R. Doc. 1 ¶ 6; R. Doc. 21-5.

3 R. Doc. 1 ¶ 6.

his legs, knees, and back.4 Plaintiff then filed this lawsuit alleging four

claims: (1) negligence under the Jones Act, 46 U.S.C. § 30101; (2) negligence

under general maritime law; (3) unseaworthiness under general maritime

law; and (4) maintenance and cure under general maritime law.5 He also

seeks attorneys’ fees and compensatory and punitive damages arising out of

defendant’s denial or unreasonable delay of maintenance and cure.6

Plaintiff started to work for defendant at the end of June 2022.7 When

he applied for the job, he completed and signed a pre-employment medical

history questionnaire, in which he indicated that he has or previously had

the following conditions: hearing problems, high blood pressure, diabetes,

and an injury to his left shoulder.8 Plaintiff denied any history of “injured

back/back pain,” “injured leg,” “back surgery/injury,” “ruptured/herniated

disc,” “recurrent neck/back pain,” “any other disease/surgery,” and “MRI.”9

Plaintiff stated that he understood he was to answer this questionnaire

truthfully and honestly.10

4 Id.

5 Id. ¶¶ 6-17.

6 Id. at 3-4.

7 R. Doc. 21-3 at 14.

8 R. Doc. 21-4.

9 Id.

10 R. Doc. 21-3 at 11-12.

Plaintiff later admitted to several undisclosed injuries that occurred

before his employment with defendant. Specifically, plaintiff stated that he

suffered an earlier workplace injury that caused him to undergo surgery on

his right knee to repair a torn meniscus.11 He also admitted that he claimed

previous injuries to his finger, low back, and rib cage when he was hit by a

car and carried six feet on the hood in 2021.12 Plaintiff confirmed that he was

also involved in a 2018 car accident,13 after which he received chiropractic

treatment for “severe” pain in his neck, low back, and mid back.14

Additionally, plaintiff stated that he was treated for neuropathy and low-

back pain for at least three years beginning in 2013.15 Further, plaintiff’s

medical records indicate that he received two MRIs of his lumbar spine, the

first in October 2013, which found “posterior disc protrusions,”16 and the

second in November 2018, which found “bilateral foraminal disc bulges.”17

Because plaintiff failed to report any of these conditions on his pre-

employment medical questionnaire, defendant contends that it is entitled to

summary judgment on his maintenance and cure claims under McCorpen v.

11 Id. at 8.

12 Id. at 18-20.

13 Id. at 21.

14 Id. at 22; R. Doc. 21-6.

15 R. Doc. 21-3 at 6.

16 R. Doc. 21-7.

17 R. Doc. 21-8.

Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968). Plaintiff does

not oppose the motion.

The Court considers the motion below.

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., 530 F.3d 395, 398-99 (5th Cir. 2008) (first citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); and then citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 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 (noting that the moving party’s “burden is not satisfied with

‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of

evidence” (citations omitted)). “No genuine dispute of fact exists if the

record taken as a whole could not lead a rational trier of fact to find for the

nonmoving 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 put forth evidence that 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. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)

(internal quotation marks omitted)). “[T]he nonmoving party can 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)).

In the Fifth Circuit, a district court may not grant a “default” summary

judgment on the ground that it is unopposed. Morgan v. Fed. Express Corp.,

114 F. Supp. 3d 434, 437 (S.D. Tex. 2015) (collecting cases). Even in the

context of unopposed motions for summary judgment, the movant must

show that there is no genuine issue of material fact, and that it is entitled to

summary judgment as a matter of law. Hetzel v. Bethlehem Steel Corp., 50

F.3d 360, 362 n.3 (5th Cir. 1995) (quoting Hibernia Nat. Bank v.

Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.

1985)). If the moving party fails to meet its burden, the Court must deny its

motion for summary judgment. Id. In determining whether the movant has

met its burden, the Court may accept its evidence as undisputed. Morgan,

114 F. Supp. 3d at 437 (quoting UNUM Life Ins. Co. of Am. v. Long, 227 F.

Supp. 2d 609 (N.D. Tex. 2002)).

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, 41-43 (1943). “Maintenance”

is the right of a seaman to food and lodging if he becomes injured while

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. To

recover maintenance and cure, plaintiff must prove 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 &

Maritime Law § 6:28 (6th ed. 2022).

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

suffered from an illness pre-existing his employment.” McCorpen, 396 F.2d

at 548. But as a “general principle,” the benefits “will be denied where he

knowingly or fraudulently conceals his illness from the shipowner.” Id.; see

also Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir. 2006) (“A

seaman may recover maintenance and cure even for injuries or illnesses pre-

existing the seaman’s employment unless that seaman knowingly or

fraudulently concealed his condition from the vessel owner at the time he

was employed.”). 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 an employer to deny a seaman’s

maintenance and cure claim under McCorpen, 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).

Here, it is undisputed that defendant paid plaintiff maintenance from

the date he ceased working.18 But plaintiff has since made written demand

on defendant for cure to cover the costs of surgery to his right knee and an

anterior lumbar interbody fusion surgery.19 Defendant argues that plaintiff’s

failure to disclose his earlier injuries and medical history entitles it to deny

cure under McCorpen.20 For the reasons that follow, the Court finds that

defendant has proved all three components of the McCorpen defense, and

plaintiff has 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 questionnaire that he had never experienced

any back pain or injuries, leg injuries, back injuries, herniated discs, or

recurrent neck or back pain, and that he never had an MRI or other surgery.

The Fifth Circuit has held that intentional concealment does not require a

finding of subjective intent. Brown, 410 F.3d at 174; Meche v. Doucet, 777

F.3d 237, 247 (5th Cir. 2015). Rather, a prospective employee’s “[f]ailure to

disclose medical information in an interview or questionnaire that is

18 R. Doc. 21-1 ¶ 14; R. Doc. 21-3 at 23.

19 R. Docs. 21-9 & 21-10.

20 R. Doc. 21-2 at 8.

obviously designed to elicit such information . . . satisfies the intentional

concealment requirement.” Brown, 410 F.3d at 174 (quoting Vitcovich v.

Ocean Rover O.N., No. 94-35047, 1997 WL 21205, at *3 (9th Cir. Jan. 14,

1997) (internal quotation marks omitted)). Here, plaintiff testified about

three injuries and continued medical treatment for back and neck pain, all of

which occurred before he applied to work for defendant. It is undisputed

that plaintiff was aware of these preexisting conditions at the time of his

application.

In his questionnaire, plaintiff falsely states that he had not previously

suffered injuries or pain in his back, legs, or neck, had no history of herniated

discs, and never had an MRI or other surgery.21 Plaintiff signed the

questionnaire, which specified that his “failure to answer truthfully will

result in immediate termination and . . . forfeiture of maintenance and

care.”22 Because plaintiff “‘knew that the information on the application was

not correct,’ [he] intentionally concealed his prior injuries as a matter of

law.” Meche, 777 F.3d at 248 (quoting Caulfield v. Kathryn Rae Towing, No.

88-5329, 1989 WL 121586, at *2 (E.D. La. June 6, 1989)).

21 R. Doc. 21-4.

22 Id.

The Court recognizes that the failure of a seaman to disclose his

medical history on the pre-employment questionnaire “does not necessarily

amount to intentional concealment when [he] lacks the requisite literacy

skills to understand and complete the questionnaire.” Id. (collecting cases).

But plaintiff testified that he understood, when filling out the questionnaire,

that he was being asked about certain health conditions and further

understood that he was to answer truthfully.23 And plaintiff does not dispute

that he had the requisite literacy to understand the questions on the form.

The Court thus finds that defendant has carried its burden of proving

concealment.

B. Materiality

The second element of the McCorpen defense requires defendant to

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

to hire plaintiff. 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. Brown, 410 F.3d at 175; see also McCorpen, 396

F.2d at 549 (“[W]here the shipowner requires a seaman to submit to a pre-

23 R. Docs. 21-3 & 21-4 ¶¶ 5, 7.

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.”). If plaintiff’s disclosure of his previous injuries “would have either

prevented his employment, or at least delayed it, preventing his having been

present . . . at the time of the accident,” his nondisclosure is deemed to be

material. Jauch, 470 F.3d at 212-13.

In support of the materiality element, defendant refers to the job

description for the Dredge Field Engineer position that plaintiff ultimately

filled. This description states that the job involves a “heavy” physical

demand level, requiring the employee to “occasionally lift 51-100 pounds,

frequently lift 26-50 pounds and constantly lift 11-25 pounds.”24 It is

apparent that an applicant’s history of back injuries and treatment, knee

surgery, and back and leg pain would be rationally related to his physical

ability to perform the duties of this heavy-labor job. See Brown, 410 F.3d at

175 (finding that a plaintiff’s history of back injuries was “the exact type of

information sought by employers” for a heavy-labor position). And it is

undisputed that the purpose of the questionnaire was for defendant to

discover which conditions plaintiff may have had before hiring him as a

24 R. Doc. 21-5.

Dredge Field Engineer.25 Defendant’s inquiry as to these injuries are thus

material to its decision to hire plaintiff for this position. See id. (finding

materiality where employer “based its hiring decision (at least, in part) upon

whether applicants had [preexisting back and neck injuries], not whether

they could, on the date of their application, complete difficult manual labor

tasks”).

C. Causal Link

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

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

disability incurred during the voyage.” Id. at 176 (quoting Quiming v. Int’l

Pac. Enters., Ltd., 773 F. Supp. 230, 236 (D. Haw. 1990) (internal quotation

marks omitted)). The relevant inquiry is “not a causation analysis in the

ordinary sense,” and the defendant “need not submit any proof that the

plaintiff’s omission caused the injury.” Johnson v. Cenac Towing, Inc., 599

F. Supp. 2d 721, 728 (E.D. La. 2009); see also Brown, 410 F.3d at 176

(“[Defendant] need not prove that the prior injuries are the sole causes of the

[new injury].”). “Rather, the McCorpen defense will succeed if the defendant

can prove that the old injury and the new injury affected the same body

25 R. Doc. 21-1 ¶ 5.

part[,] . . . irrespective of their root causes.” Johnson, 599 F. Supp. 2d at 728-

29 (collecting cases); see also Weatherford v. Nabors Offshore Corp., No.

03-478, 2004 WL 414948, at *7 (E.D. La. Mar. 3, 2004) (finding “an obvious

causal connection” between plaintiff’s old low-back injury and his new injury

affecting “the same region he previously injured”). Indeed, “[t]here 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 (internal quotation

marks omitted)).

Here, plaintiff seeks cure for two surgical procedures. The first is for a

right knee arthroplasty.26 The uncontested evidence establishes that plaintiff

previously underwent surgery on this same knee to repair a torn meniscus.27

The second procedure is an anterior lumbar interbody fusion at the L4-5

spinal level—the same level where the 2013 MRI found a posterior disc

protrusion.28 The evidence further indicates that plaintiff injured his low

back in two accidents in 2018 and 2021, and received ongoing treatment for

chronic low-back pain beginning in 2013.29 Because plaintiff’s newly alleged

injuries are to the same areas of his body as the earlier ones, defendant has

26 R. Doc. 21-9.

27 Id. at 8.

28 R. Doc. 21-8.

29 R. Doc. 21-3 at 6, 18-22; R. Doc. 21-6.

established the requisite causal connection and satisfied the third element of

the McCorpen defense. See Johnson, 599 F. Supp. 2d at 728-29.

Accordingly, because the Court has found as a matter of law that

defendant has carried its burden of proving all three elements of the

McCorpen defense, plaintiff may not recover cure for the knee and lumbar

surgeries.

IV. CONCLUSION

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

judgment is GRANTED. Plaintiffs claims for cure are DISMISSED WITH

PREJUDICE.

New Orleans, Louisiana, this 14th _ day of August, 2023.

7” SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

15