Cole v. Oceaneering International, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DARRYL COLE CIVIL ACTION

VERSUS NO. 21-1348

OCEANEERING INTERNATIONAL, INC. SECTION: D (5)

ORDER AND REASONS

Before the Court is a Motion to Dismiss for Failure to State a Claim and for

Lack of Jurisdiction, filed by third-party defendant, Robert Davis, M.D.1 Third-party

plaintiff, Huisman North America Services, LLC, and plaintiff, Darryl Cole, both

oppose the Motion,2 and Dr. Davis has filed a Reply.3

After careful consideration of the parties’ memoranda and the applicable law,

the Motion is DENIED in part and DENIED in part as moot.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts and procedural history of this case have been set forth in great detail

in several orders issued by this Court and, for the sake of brevity, will not be repeated

here.4 On July 15, 2021, Darryl Cole filed this maritime personal injury case against

Oceaneering International, Inc. (“Oceaneering”), seeking damages after suffering a

stroke in February 2021 while working as a crane operator aboard an Oceaneering

vessel.5 Cole alleges that his stroke was caused by a delay in care due to his

1 R. Doc. 116.

2 R. Docs. 117 & 118.

3 R. Doc. 122.

4 See, R. Docs. 189, 205, 223, 224, 225, & 229.

5 R. Doc. 1.

misdiagnosis by Oceaneering’s onboard medic, Keith Thompson.6 Cole asserted

claims against Oceaneering for Jones Act negligence, general maritime law

negligence and unseaworthiness, general maritime law maintenance and cure, and

negligence under Louisiana law.7 In the Complaint, Cole alleged that Huisman

North America Services, LLC (“Huisman”) was his direct employer, but that

Oceaneering was his Jones Act employer at the time of his injuries through the

borrowed employee doctrine.8

On December 20, 2021, Oceaneering filed a Third-Party Complaint against

Huisman, asserting a claim for defense and indemnity and a breach of contract claim

against Huisman based upon a 2021 Purchase Order entered into between the parties

through which Huisman supplied Cole as a crane operator to Oceaneering.9 A week

later, on December 27, 2021, Cole filed an Amended Complaint naming Huisman as

an additional defendant and asserting a claim for maintenance and cure against

Huisman.10

On October 10, 2022, Huisman filed a Third-Party Complaint Against Pharma-

Safe Industrial Services Inc. (“Pharma-Safe”) and Dr. Robert Davis, which is at the

heart of the instant dispute.11 In it, Huisman alleges that Oceaneering contracted

with Pharma-Safe to operate as its “specialized medical management provider,” and

to provide an available physician on a twenty-four hours per day, seven days per week

6 R. Doc. 1.

7 R. Doc. 1 at ¶¶ 20-42.

8 Id. at ¶ 6.

9 R. Doc. 14.

10 R. Doc. 19.

11 R. Doc. 108.

basis “for medical consultation by pager for emergency or non-emergency medical

situations that may present to on duty emergency medical technicians.”12 Huisman

alleges that the on-board medic, Keith Thompson, and the on-shore physician, Dr.

Davis, were employees and/or agents of Pharma-Safe and were acting in the course

and scope of their employment with Pharma-Safe in furtherance of Pharma-Safe’s

obligations under its contract with Oceaneering.13 Huisman further alleges that if

Cole was injured as alleged, his injuries were a result of the negligence, gross

negligence, and/or fault of Thompson and Dr. Davis.14 Huisman asserts a third-party

claim against Dr. Davis and Pharma-Safe pursuant to Fed. R. Civ. P. 14(a), alleging

that it is entitled to contribution and/or indemnity from Pharma-Safe and/or Dr.

Davis to the extent Huisman is ultimately held liable to Cole, including through

defense and indemnity for any claim asserted by Cole against Oceaneering, to the

extent any such injury resulted from the negligence, gross negligence, or fault of

Pharma-Safe, its employees, its agents, and/or Dr. Davis.15 Huisman also asserts

that it is entitled to indemnity from Pharma-Safe and/or Dr. Davis to the extent that

their negligence, gross negligence, or fault gave rise to Cole’s maintenance and cure

claim against Huisman, “which claim was recently settled.”16

12 R. Doc. 108 at ¶ 10 (quoting R. Doc. 108-1 at p. 1, ¶ 1) (internal quotation marks omitted).

13 R. Doc. 108 at ¶ 11.

14 Id. at ¶ 16.

15 Id. at ¶ 17.

16 Id. at ¶ 18. The Court notes that Huisman filed its Third-Party Complaint on October 10, 2022 (R.

Doc. 108), but Cole did not file a motion to dismiss his claims against Huisman based upon the

settlement between the parties until March 21, 2023. See, R. Doc. 179. The Court further notes that

Huisman’s Third-Party Complaint also includes a Rule 14(c) tender of Pharma-Safe and Dr. Davis as

the proper defendants to all claims asserted by Cole, and a Rule 14(c) tender of Pharma-Safe “as the

proper defendant to Oceaneering’s defense and indemnity claim.” Id. at ¶¶ 19-24. During a telephone

status conference with a court reporter held on August 7, 2023, the Court granted Oceaneering’s

On March 22, 2023, at Cole’s request, the Court dismissed with prejudice Cole’s

direct claim against Huisman for maintenance and cure on the basis that Huisman

and Cole had settled the claim.17 On March 31, 2023, the Court granted Huisman

summary judgment on Oceaneering’s third-party claim for defense and indemnity,

and dismissed the claim with prejudice.18 On August 1, 2023, the Court granted

Huisman summary judgment on Oceaneering’s remaining third-party claim for

breach of contract based upon Huisman’s alleged failure to procure sufficient

insurance, and dismissed that claim with prejudice. Thus, all of Oceaneering’s third-

party claims against Huisman have been dismissed.19

In the instant Motion, Dr. Davis moves to dismiss Huisman’s third-party

claims against him and Huisman’s Rule 14(c) tenders for failure to state a claim

under Fed. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction under Rule

12(b)(1).20 Dr. Davis asserts that the medical malpractice claims forming the basis of

the third-party claims and tender against him fall outside of this Court’s admiralty

jurisdiction and are governed by Louisiana state law.21 Specifically, Dr. Davis argues

that the Court lacks admiralty jurisdiction because his alleged medical malpractice

Motion to Strike the Rule 14(c) Tenders of Huisman North America Services, LLC. See, R. Docs. 123

& 248.

17 R. Docs. 179 & 180.

18 R. Doc. 189.

19 See, R. Doc. 14.

20 R. Doc. 116 at p. 1. The Court notes that although Pharma-Safe did not file a motion to formally

adopt Dr. Davis’s Motion, in its Answer to Third-Party Complaint, Cross-Claim and Jury Demand,

“Pharma-Safe adopts, as if copied in extenso, the defense to Huisman’s Rule 14(c) tender and motion

to dismiss the same asserted by defendant Dr. Robert Davis. Rec. Doc. 116.” R. Doc. 125 at p. 5. The

Court further notes that Pharma-Safe did not adopt Dr. Davis’s defenses to Huisman’s Rule 14(a)

third-party claims in its Answer. See, generally, R. Doc. 125.

21 R. Doc. 116-1 at pp. 2-3, 5-12, & 16-18.

does not satisfy the maritime locus or maritime nexus requirements for such

jurisdiction, as set forth by the Fifth Circuit in Miller v. Griffin-Alexander Drilling

Co.22 Alternatively, if the Court determines that it has admiralty jurisdiction over

Huisman’s third-party claims, Dr. Davis asserts that the Louisiana Medical

Malpractice Act (the “LMMA”) applies through maritime supplementation.23 Dr.

Davis argues that, under either scenario, the claims against him are premature for

failure to convene a medical review panel and should be dismissed without

prejudice.24

Huisman argues that the Motion should be denied because its claims against

Dr. Davis fall within the Court’s admiralty jurisdiction, they are not premature, and

dismissal is not warranted under Rule 12(b)(6) for failure to convene a medical review

panel.25 Huisman asserts that the maritime locus requirement for admiralty

jurisdiction is clearly met because Cole suffered a stroke aboard Oceaneering’s vessel

and no part of Cole’ treatment by Dr. Davis or Pharma-Safe occurred on land.26

Huisman asserts that the two requirements for meeting the maritime nexus test are

also met because Cole’s alleged misdiagnosis caused an actual interruption of

maritime commerce and because providing medical services to crew members aboard

a vessel in navigable waters bears a significant relationship to traditional maritime

activity.27 Huisman argues, in the alternative, that if the requirements for admiralty

22 Id. at pp. 5-12 (citing Miller, 873 F.2d 809, 812 (5th Cir. 1989)).

23 R. Doc. 116-1 at pp. 3 & 12-16.

24 Id. at pp. 3 & 4.

25 R. Doc. 117.

26 Id. at pp. 4-9.

27 Id. at pp. 9-12 (citing Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990)).

jurisdiction are not met, the Court should exercise supplemental jurisdiction over

Huisman’s third-party claims against Dr. Davis pursuant to 28 U.S.C. § 1367 because

Dr. Davis’s alleged malpractice forms part of the case and controversy that Cole seeks

to prosecute against Huisman and Oceaneering.28 Huisman further asserts that its

Rule 14(c) tender of Dr. Davis should stand because Huisman’s claims against Dr.

Davis sound in maritime law and because they arise out of the same transaction or

occurrence as Cole’s original claims.29 Huisman also contends that its claims for

contribution and indemnity against Dr. Davis are valid,30 and argues that this Court

should stay, rather than dismiss, its claims against Dr. Davis if the Court determines

that Dr. Davis is entitled to a medical review panel.31

Cole likewise opposes Dr. Davis’s Motion.32 Cole, however, takes no position

regarding Huisman’s Rule 14(c) tender of Dr. Davis as a defendant, explaining that,

“To date, whether Dr. Davis did anything wrong is questionable. The evidence thus

far indicates that the medic, Keith Thompson, is the primary reason that Plaintiff

was not given emergency treatment sooner, thereby causing the major deterioration

of Plaintiff’s condition.”33 Cole maintains that Oceaneering is vicariously liable for

the negligence of the medical professionals it chose to treat its crewmembers, such

that it does not matter whether Dr. Davis is involved in this case as a direct

defendant.34 Cole, however, opposes the Motion to the extent that Dr. Davis asserts

28 R. Doc. 117 at pp. 13-16.

29 Id. at pp. 16-18.

30 Id. at pp. 18-20.

31 Id. at pp. 20-21.

32 R. Doc. 118.

33 Id. at p. 1.

34 Id.

that the Court lacks maritime jurisdiction and/or that the LMMA should supplant or

supplement maritime law. Cole argues that it is undisputed that the maritime

locality prong of the analysis is met, as he was injured at sea by the onboard medic,

and any consulting or treatment by Dr. Davis was provided through the medic for the

benefit of treating a seaman on a vessel at sea.35 Cole contends that the fact that Dr.

Davis provided consultation and/or treatment through the medic for the purpose of

treating a Jones Act seaman on a vessel at sea satisfies the four factors of the

maritime nexus prong of the analysis set forth in Miller v. Griffin-Alexander Drilling

Co., cited by Dr. Davis in his Motion.36 Cole further argues that there is no basis for

supplanting maritime law with the LMMA, as suggested by Dr. Davis.37 Cole asserts

that the Court should deny Dr. Davis’s Motion because maritime law applies to this

case and, “This case is and always has been focused on the negligence of the medic,

Keith Thompson and his employer Pharma-Safe, for whom Oceaneering is vicariously

liable.”38

In response, Dr. Davis reiterates the arguments raised in his Motion,39 and

further asserts that the maritime nexus requirement of the Miller analysis cannot be

met based upon the direct involvement of the onboard medic in this case.40 Dr. Davis

maintains that this Court lacks maritime jurisdiction over Huisman’s third-party

claims against him, that the LMMA clearly applies to the claims, that Huisman’s

35 Id. at pp. 2-3.

36 Id. at pp. 2-5 (citing Miller, 873 F.2d 809, 812 (5th Cir. 1989)).

37 R. Doc. 118 at pp. 6-8.

38 Id. at p. 8.

39 See, generally, R. Doc. 122.

40 R. Doc. 122 at pp. 1-2.

Rule 14(c) tender is improper, and that the Court must dismiss the claims without

prejudice as premature.

II. LEGAL STANDARD

A. Fed. R. Civ. P. 12(b)(1) Motion to Dismiss

Under Fed. R. Civ. P. 12(b)(1), the Court may dismiss a complaint if it lacks

jurisdiction over the subject matter. Motions to dismiss under Rule 12(b)(1), however,

are viewed with disfavor in this Circuit and are rarely granted.41 The Fifth Circuit

has held that when subject matter jurisdiction is challenged, the district court is “free

to weigh the evidence and resolve factual disputes in order to satisfy itself that it has

the power to hear the case.”42 Thus, in reviewing a motion to dismiss for lack of

subject matter jurisdiction, this Court can based its decision on the complaint alone,

the complaint supplemented by undisputed facts, or the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.43 “In short, no

presumptive truthfulness attaches to the plaintiff’s allegations, and the court can

decide disputed issues of material fact in order to determine whether or not it has

jurisdiction to hear the case.”44

The Fifth Circuit has cautioned, however, that when issues of fact are central

both to subject matter jurisdiction and the claim on the merits, the district court must

41 Smith v. Gusman, Civ. A. No. 06-4121, 2007 WL 2407304, at *4 (E.D. La. Aug. 20, 2007) (Engelhardt,

J.) (citing Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 246 (5th Cir. 1997)).

42 Montez v. Department of Navy, 392 F.3d 147, 149 (5th Cir. 2004) (citing Land v. Dollar, 330 U.S.

731, 735 & n.4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947)).

43 Montez, 392 F.3d at 149 (quoting Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904

(5th Cir. 1997)) (internal quotation marks omitted).

44 Montez, 392 F.3d at 149.

assume jurisdiction and proceed on the merits.45 Further, when “‘the defendant’s

challenge to the court’s jurisdiction is also a challenge to the existence of a federal

cause of action, the proper course of action for the district court . . . is to find that

jurisdiction exists and deal with the objection as a direct attack on the merits of the

plaintiff’s case’ under either Rule 12(b)(6) or Rule 56.”46

B. Fed. R. Civ. P. 12(b)(6) Motion to Dismiss.

Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal

of a complaint, or any part of it, for failure to state a claim upon which relief may be

granted.47 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’”48 “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”49 “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant

has acted unlawfully.”50

A court must accept all well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.51 The Court, however, is not bound to accept as true

45 Id. at 150.

46 Id. (quoting Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981)).

47 Fed. R. Civ. P. 12(b)(6).

48 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 173 L.Ed.2d 868 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

49 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Ashcroft, 556 U.S. at 678, 129 S.Ct. at

1949) (quotation marks omitted).

50 Iqbal, 556 U.S. at 679, 129 S.Ct. at 1949 (quotation omitted).

51 Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting In re Katrina Canal Breaches

Litig., 495 F.3d 191, 205 (5th Cir. 2007)).

conclusory allegations, unwarranted factual inferences, or legal conclusions. 52

“Dismissal is appropriate when the complaint on its face shows a bar to relief.”53 In

deciding a Rule 12(b)(6) motion to dismiss, a court is generally prohibited from

considering information outside the pleadings, but may consider documents outside

of the complaint when they are: (1) attached to the motion; (2) referenced in the

complaint; and (3) central to the plaintiff’s claims.54 The Court can also take judicial

notice of matters that are of public record, including pleadings that have been filed

in a federal or state court.55

III. ANALYSIS

During a telephone status conference held with a court reporter on August 7,

2023, the Court issued an oral order granting Oceaneering’s motion to strike

Huisman’s Fed. R. Civ. P. 14(c) tenders of Dr. Davis and Pharma-Safe.56 Thus, to the

extent Dr. Davis seeks to dismiss Huisman’s Rule 14(c) tenders,57 the Motion is

denied as moot. The remainder of this Order will therefore only address Dr. Davis’s

request to dismiss Huisman’s third-party claims asserted against Dr. Davis pursuant

to Fed. R. Civ. P. 14(a).

52 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).

53 Cutrer v. McMillan, 308 Fed.Appx. 819, 820 (5th Cir. 2009) (quotation and internal quotation marks

omitted).

54 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).

55 In re American Intern. Refinery, 402 B.R. 728, 749 (W.D. La. 2008) (citing Cisco Systems, Inc. v.

Alcatel USA, Inc., 301 F. Supp. 2d 599, 602 n.3 (E.D. Tex. 2004).

56 See, R. Docs. 123 & 248.

57 R. Doc. 116-1 at pp. 16-18.

A. Admiralty Jurisdiction

Through 28 U.S.C. § 1333(1), Congress vested federal courts with original and

exclusive jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.”

While the traditional test for admiralty tort jurisdiction asked only whether the tort

occurred on navigable waters, the jurisdictional rule was qualified by three

subsequent Supreme Court opinions “aimed at keeping a different class of odd cases

out.”58 In Executive Jet Aviation, Inc. v. Cleveland, the Supreme Court expanded the

test to require the underlying wrong to bear “a significant relationship to traditional

maritime activity.”59 The Supreme Court further held in Foremost Ins. Co. v.

Richardson that while the collision of two pleasure boats in a navigable river estuary

“had little to do with the maritime commerce lying at the heart of the admiralty

court’s basic work,” the necessary relationship existed based upon the collision’s

potential disruptive impact upon maritime commerce “when coupled with the

traditional concern that admiralty law holds for navigation . . . .”60 Finally, in Sisson

v. Ruby, the Supreme Court elaborated upon Executive Jet and Foremost “by focusing

on two points to determine the relationship of a claim to the objectives of admiralty

jurisdiction.”61 In Sisson, the Supreme Court considered whether the incident

causing the harm “was of a sort likely to disrupt maritime commercial activity,” and

58 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531, 532, 115 S.Ct. 1043,

1047, 1048, 130 L.Ed.2d 1024 (1995).

59 Grubart, 513 U.S. at 532-33, 115 S.Ct. at 1048 (quoting Executive Jet, 409 U.S. 249, 268, 93 S.Ct.

493, 504, 34 L.Ed.2d 454 (1972)) (internal quotation marks omitted).

60 Grubart, 513 U.S. at 533, 115 S.Ct. at 1048 (quoting Foremost, 457 U.S. 668, 675, 102 S.Ct. 2654,

2658, 73 L.Ed.2d 300 (1982)) (internal quotation marks omitted).

61 Grubart, 513 U.S. at 534, 115 S.Ct. at 1048.

whether the activity from which the incident arose had a substantial relationship

with traditional maritime activity. 62

In Grubart, Inc. v. Great Lakes Dredge & Dock Co., which was decided over a

decade after Sisson, the Supreme Court made clear that, “After Sisson, then, a party

seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over

a tort claim must satisfy conditions of both location and of connection with maritime

activity.”63 The Supreme Court explained that the location test is satisfied if the tort

occurred on navigable waters or if the injury occurred on land but was caused by a

vessel on navigable waters.64 For the connection test, courts must: (1) assess the

general features of the type of incident involved to determine whether the incident

has a potentially disruptive impact on maritime commerce; and (2) determine

whether the general character of the activity giving rise to the incident shows a

substantial relationship to traditional maritime activity.65 According to the Supreme

Court, the first prong of the connection test turns “on a description of the incident at

an intermediate level of possible generality.”66 As to the second prong of the

connection test, the Supreme Court held that courts must “ask whether a tortfeasor’s

activity, commercial or noncommercial, on navigable waters is so closely related to

62 Grubart, 513 U.S. at 533-34, 115 S.Ct. at 1048 (quoting Sisson, 497 U.S. 358, 363-67, 110 S.Ct. 2892,

2896-98, 111 L.Ed.2d 292 (1990)) (internal quotation marks omitted).

63 Grubart, 513 U.S. at 534, 115 S.Ct. at 1048.

64 Id. (citing 46 U.S.C. App. § 740). The Court notes that, effective October 6, 2016, 46 U.S.C. App. §

470 is cited as 46 U.S.C. § 30101.

65 Grubart, 513 U.S. at 534, 115 S.Ct. at 1048.

66 Grubart, 513 U.S. at 538, 115 S.Ct. at 1051.

activity traditionally subject to admiralty law that the reasons for applying special

admiralty rules would apply in the suit at hand.”67

The Fifth Circuit has consistently applied Grubart’s location and connection

tests in determining whether a court has admiralty jurisdiction over a tort claim.68

Regarding the location test, the Fifth Circuit has held that the tort “occurred on”

navigable waters if the harm “took effect” there.69 While Dr. Davis urges the Court

to consider four additional factors in determining whether the connection test has

been met, as set forth by the Fifth Circuit in Kelly v. Smith70 and adopted by Miller

v. Griffin-Alexander Drilling Co.,71 the Supreme Court rejected a similar request from

the plaintiff in Grubart to apply the four-factor test where most of the victims, and

one of the tortfeasors, were based on land.72 The Supreme Court explained that, “It

is worth recalling that the Sisson tests are aimed at the same objectives invoked to

support a new multifactor test, the elimination of admiralty jurisdiction where the

rationale for the jurisdiction does not support it.”73 The Supreme Court reasoned

that, “If the tort produces no potential threat to maritime commerce or occurs during

67 Grubart, 513 U.S. at 539-40, 115 S.Ct. at 1051.

68 See, In Re Louisiana Crawfish Producers, 772 F.3d 1026, 1029 (5th Cir. 2014); Barker v. Hercules

Offshore, Inc., 713 F.3d 208, 215 (5th Cir. 2013); In re Bertucci Contracting Co., LLC, 544 Fed.Appx.

308, 315 (5th Cir. 2013); In re Katrina Canal Breaches Litigation, 324 Fed.Appx. 370, 376 (5th Cir.

2009).

69 In Re Louisiana Crawfish Producers, 772 F.3d at 1029 (citing Egorov, Puchinsky, Afanasiev &

Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453, 456 (5th Cir. 1999)).

70 485 F.2d 520, 525 (5th Cir. 1973).

71 R. Doc. 116-1 at pp. 6-10 (citing Miller, 873 F.2d 809, 812 (5th Cir. 1989)). See, Miller, 873 F.2d at

812 (citing Kelly, 485 F.2d at 525).

72 Grubart, 513 U.S. at 544, 115 S.Ct. at 1053 (“Grubart and the city say that the Fifth Circuit has

applied a somewhat similar ‘four-factor test’ looking to ‘the functions and roles of the parties; the types

of vehicles and instrumentalities involved; the causation and the type of injury; and traditional

concepts of the role of admiralty law.’ Kelly v. Smith, 485 F.2d 520, 525 (5th Cir. 1973); . . . .”).

73 Grubart, 513 U.S. at 544-45, 115 S.Ct. at 1053-54.

activity lacking a substantial relationship to traditional maritime activity, Sisson

assumes that the objectives of admiralty jurisdiction probably do not require its

exercise, even if the location test is satisfied.”74 Dr. Davis fails to direct the Court to

any Fifth Circuit authority applying Kelly’s additional four-factor test after the

Supreme Court rendered the Grubart opinion, and the Court is not aware of any.

Moreover, in cases decided after Grubart, the Fifth Circuit has not applied the four-

factor test cited by Dr. Davis to the connection test.75 Thus, this Court will not apply

the four additional Kelly factors cited by Dr. Davis in determining whether the

connection test is met in this case.

1. The location test is met in this case.

The location test is easily satisfied in this case, as Cole suffered his alleged

injuries while working as a Jones Act seaman aboard a vessel in navigable waters.

Dr. Davis seems to assert that the location test is not met because he was “a land-

based physician” who provided a telemedicine consult on-shore and because “the

alleged injury of malpractice as to Dr. Davis occurred on land.”76 The Fifth Circuit

has made clear that a tort “occurred on navigable waters” if that’s where the harm

“took effect.”77 While it is true that Dr. Davis provided a consultation as a shoreside

physician, he did so in his capacity as the vessel’s assigned physician. Additionally,

74 Grubart, 513 U.S. at 545, 115 S.Ct. at 1054.

75 See, supra, note 68.

76 R. Doc. 116-1 at pp. 5-8. The Court notes that Dr. Davis seems to refer to the location test as “the

maritime nexus requirement” in his Motion (Id.), even though he subsequently argues that, “Even if

the maritime locus requirement could be satisfied, the maritime nexus requirement is clearly not

satisfied much like in Miller.” Id. at p. 8.

77 In Re Louisiana Crawfish Producers, 772 F.3d 1026, 1029 (5th Cir. 2014) (citing Egorov, Puchinsky,

Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453, 456 (5th Cir. 1999)).

the harm – the alleged misdiagnosis of Cole’s condition by Dr. Davis and the onboard

medic – occurred while Cole was aboard the Oceaneering vessel on navigable waters.

In his Amended Complaint, Cole alleges that when he was evacuated from the vessel

and taken to the emergency room at West Jefferson Medical Center, “it was then

determined that Plaintiff had experienced a stroke.”78 Thus, Cole seems to allege

that he suffered the stroke while he was aboard the Oceaneering vessel. Based upon

these facts, the Court finds that Huisman’s third-party claims against Dr. Davis for

contribution and/or indemnity satisfy the location test.

The Court finds additional support for its conclusion from Parker v. Gulf City

Fisheries, Inc., a Fifth Circuit case in which a shoreside physician gave advice to the

wife of a ship captain concerning the captain’s condition and treatment while he was

on a voyage as a seaman, and the captain subsequently suffered a stroke after

returning from the voyage.79 The captain asserted a maritime tort claim against the

physician based upon negligence, asserting that his condition worsened while he was

at sea, and the Fifth Circuit held that the claim fell within the court’s admiralty

jurisdiction “at least for the part of the negligence whose impact occurred at sea.”80

Like Dr. Davis, the doctor in Parker contested maritime locality, asserting that “he

engages in a strictly land-based practice and that he rendered his advice to Parker

through Parker’s wife and his treatment to Parker solely on land.”81 The Fifth Circuit

rejected that argument, finding that, “We have long held that ‘so long as the place of

78 R. Doc. 19 at ¶ 17.

79 803 F.2d 808, 828 (5th Cir. 1986).

80 Id. at 829 (citation omitted).

81 Id.

the injury . . . occurs upon navigable waters, the fact that the negligent act may have

occurred on shore is of no relevance.’”82 While the Parker decision, issued pre-

Grubart, applied the four Kelly factors in determining whether the court had

admiralty jurisdiction, the Fifth Circuit concluded that, “Although Dr. Blanks carries

out his practice entirely on land and does not especially seek seamen as patients, he

knew that Parker was serving as a ship’s captain, and he knew that Parker was at

sea when he gave the medical advice.”83 Further, “We have previously recognized []

that injuries to workers aboard ship fall within the admiralty jurisdiction even

though similar injuries to their counterparts on shore do not. Dr. Blanks knew he

was treating a seaman who was aboard ship. That suffices.”84 At least one other

court in this Circuit, citing Parker, has likewise held that, “Since the medical

malpractice alleged by Antoine and Zapata apparently took place, at least in part,

while the deceased was still aboard the vessel, the ‘maritime locality’ requirement of

the Executive Jet test for admiralty subject matter jurisdiction is met for all the

medical care defendants.”85

The Court reaches the same conclusion in this case. It is undisputed that Dr.

Davis knew he was providing a medical consultation to the onboard medic for a crew

member who was aboard an Oceaneering vessel while that vessel was at sea. While

Dr. Davis argues Parker is an “outlier case,” that it is “light on analysis,” and that it

82 Id. at 829-30 (quoting Sperry Rand Corp. v. Radio Corp. of America, 618 F.2d 319, 321 (5th Cir.

1980)).

83 Parker, 803 F.2d at 830 (citations omitted).

84 Id. (citation omitted) (emphasis added).

85 Antoine v. Zapata Haynie Corp., 777 F.Supp. 1360, 1363 (E.D. Tex. 1991) (citing Parker, 803 F.2d

828).

should not apply because it predates the Fifth Circuit’s decision in Miller and the

Supreme Court’s decision in Sisson,86 Parker has not been overruled or abrogated by

the Supreme Court or by an en banc decision from the Fifth Circuit. As such, Parker

remains binding authority on this Court. 87 Additionally, Dr. Davis fails to

acknowledge the facts that distinguish Miller from Parker, namely where the medical

treatment occurred in each case. The Fifth Circuit in Miller found the Parker case

distinguishable because unlike in Parker, where the medical treatment (or lack

thereof) “took place onboard a ship through an intermediary, just as though the

seaman had inquired directly of the landside physician from shipboard,” the

plaintiff’s treatment in Miller “did not take place during the course of a sea voyage,”

he “was not treated in an admiralty situs as in Parker,” and his physician “unlike the

physician in Parker, was not knowingly treating a sea captain and on notice of the

maritime context of the medical advice.”88 While the Miller court commented that

the Parker case was a fact situation “at the extreme edge[]” of admiralty jurisdiction,

it clearly left the ruling in Parker intact. Thus, as in Parker, the Court concludes that

Huisman’s third-party claims against Dr. Davis satisfy Grubart’s location test.

2. The connection test is also met.

As previously discussed, the connection test requires this Court to: (1) assess

the general features of the type of incident involved to determine whether the incident

86 R. Doc. 116-1 at p. 10.

87 Society of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th Cir. 1991) (“In this circuit, one

panel may not overrule the decision, right or wrong, of a prior panel in the absence of an intervening

contrary or superseding decision by the court en banc or the Supreme Court.”) (citing authority).

88 Miller v. Griffin-Alexander Drilling Co., 873 F.2d 809, 811 (5th Cir. 1989) (citation omitted).

has a potentially disruptive impact on maritime commerce; and (2) determine

whether the general character of the activity giving rise to the incident shows a

substantial relationship to traditional maritime activity.89 Instead of addressing

these two factors, Dr. Davis addresses the four Kelly factors that were specifically

rejected by the Supreme Court in Grubart.90 Nonetheless, the Court surmises that

Dr. Davis asserts that neither factor is met because the presence of other crane

operators aboard the vessel “minimize[ed] any impact on maritime commercial

activity” caused by his alleged injuries, and because “there is nothing particularly

maritime about Dr. Davis evaluating medical information he receives and making a

decision or recommendation based off of that information.”91

In contrast, Huisman argues that its claim satisfies the first prong of the

connection test because there was an actual interruption of maritime commerce due

to Cole’s alleged misdiagnosis, as the vessel had to cease all operations associated

with its primary activity, oil production in the Gulf of Mexico, relocate to a nearby

platform, and make arrangements for Cole to be brought onto the platform by basket

transfer.92 Cole similarly asserts that the first prong of the connection test is met

because the Oceaneering vessel “was forced to stop its mission, leave its location, and

travel to a platform where a helicopter would be available to transport Mr. Cole to an

89 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 1048,

130 L.Ed.2d 1024 (1995).

90 513 U.S. at 544, 115 S.Ct. at 1053 (citing Kelly v. Smith, 485 F.2d 520, 525 (5th Cir. 1973). See,

Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1118 (5th Cir. 1995) (“While this circuit formerly applied

a multi-factor approach to determine whether there was a substantial relationship to traditional

maritime activity, see, e.g., Kelly v. Smith, 485 F.2d 520, 525 (5th Cir. 1973), cert. denied, 416 U.S. 969,

94 S.Ct. 1991, 40 L.Ed.2d 558 (1974), that approach was rejected by the Supreme Court in Grubart.”).

91 R. Doc. 116-1 at p. 8.

92 R. Doc. 117 at pp. 10-11 (citing R. Doc. 117-2 at pp. 2-3).

appropriate medical facility.”93 Huisman and Cole both cite Coats v. Penrod Drilling

Corp. for the notion that, “worker injuries . . . can have a disruptive impact on

maritime commerce by stalling or delaying the primary activity of the vessel.”94

Huisman asserts that the second prong of the connection test is met because the

onboard medical care of vessel crew members is a traditional maritime activity.95

Cole likewise asserts that, “there is nothing bearing a more significant relationship

to traditional maritime activity than the provision of medical services to injured

seaman [sic] while they were working at sea, thus easily satisfying the second factor

from Sisson.”96

The Court agrees with Huisman and Cole that both prongs of the connection

test are met in this case. As to the first prong, the Court must determine whether

“the general features of the type of incident involved” had a “potentially disruptive

impact on maritime commerce.”97 The incident in this case was the misdiagnosis of

a crew member aboard a vessel at sea by the vessel’s physician and onboard medic.98

The Court finds that this type of incident is likely to have a disruptive impact on

maritime commerce because an ill or incapacitated crew member whose symptoms

are left untreated or misdiagnosed is likely to require emergency treatment, including

93 R. Doc. 118 at p. 5.

94 See, R. Doc. 117 at p. 10 (quoting Coats, 61 F.3d 1113, 1119 (5th Cir. 1995)) (internal quotation

marks omitted); R. Doc. 118 at p. 5 (quoting Coats, 61 F.3d at 1119) (internal quotation marks omitted).

95 R. Doc. 117 at pp. 11-12.

96 R. Doc. 118 at p. 5 (citing Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990)).

97 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 539, 115 S.Ct. 1043, 130

L.Ed.2d 1024 (1995).

98 The Court previously determined that Oceaneering, as the owner of the M/V OCEAN PATRIOT, had

a non-delegable duty to provide prompt and adequate medical care to its seamen, including Cole, that

Oceaneering delegated that duty to Pharma-Safe, and that Pharma-Safe selected Keith Thompson as

the onboard medic to fulfill its contractual obligation to Oceaneering. R. Doc. 225 at pp. 21-23.

an emergency evacuation of the crew member, which will interrupt the vessel’s

mission. At least one Louisiana court has recognized that, “Faulty medical

evaluations and treatment of seamen would appear to have a direct impact on the

duty of cure, and would thus impact maritime shipping and commerce.”99

That’s exactly what happened in this case. Cole alleges in his Amended

Complaint that his condition deteriorated when he was repeatedly misdiagnosed by

the onboard medic and the shoreside doctor (Dr. Davis), and eventually had to be

evacuated from the Oceaneering vessel to receive medical treatment.100 According to

Cole and Huisman, when Cole was medically evacuated from the Oceaneering vessel,

the vessel had to cease all operations associated with its primary activity (oil

production in the Gulf of Mexico), relocate to a nearby platform, and make

arrangements to transport Cole to the platform by basket transfer, where a helicopter

was available to transport Cole to an appropriate medical facility.101 Dr. Davis does

not contest these allegations in his Reply brief.102 Although Dr. Davis claims that the

presence of other crane operators aboard the Oceaneering vessel minimized “any

impact on maritime commercial activity,”103 his position ignores the potential, and in

this case actual, disruption that a medical misdiagnosis of a vessel crew member can,

and did, have on maritime commerce. As such, the Court finds that the first prong of

the connection test is met.

99 Williams v. Reiss, 94-0672 (La. App. 4 Cir. 9/29/94), 643 So.2d 792, 796.

100 R. Doc. 19 at ¶¶ 9-17.

101 R. Doc. 117 at p. 11 (citing R. Doc. 117-2 at pp. 2-3); R. Doc. 118 at p. 5.

102 R. Doc. 122.

103 R. Doc. 116-1 at p. 8.

Turning to the second prong of the connection test, the Court must determine

whether “the general character” of the activity giving rise to the incident shows a

substantial relationship to traditional maritime activity.104 The Court finds that this

prong is easily met because the alleged misdiagnosis was made by the vessel’s

physician and its onboard medic. As explained by one of our sister courts, “The

relevant activity here is onboard medical care of vessel crew members. The onboard

health care and medical treatment of a vessel’s crew . . . is an activity traditionally

undertaken by vessels.”105 The Court agrees, and finds that the onboard medical

treatment of a vessel’s crew, even if through an intermediary, bears a substantial

relationship to a traditional maritime activity.

In Parker, which involved the medical treatment (or lack thereof) of a ship

captain aboard a vessel by his onshore physician, the Fifth Circuit held that, “It is

difficult to conceive of a tort more intimately related to maritime activities than

causing illness to a seaman during the course of a voyage. The functions and roles of

the parties are maritime.”106 This Court agrees. The Fifth Circuit further held that,

“Although Dr. Blanks carries out his practice entirely on land and does not especially

seek seamen as patients, he knew that Parker was serving as a ship’s captain, and

he knew that Parker was at sea when he gave the medical advice.”107 The same is

true here, where it is undisputed that Dr. Davis knew that Cole was aboard a vessel

104 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 1048,

130 L.Ed.2d 1024 (1995) (quoting Sisson v. Ruby, 497 U.S. 358, 365, 364, and n.2, 110 S.Ct. 2892, 2897,

2896, and n.2, 111 L.Ed.2d 292 (1990)) (internal quotation marks omitted).

105 Antoine v. Zapata Haynie Corp., 777 F.Supp. 1360, 1364 (E.D. Tex. 1991).

106 Parker By and Through Parker v. Gulf City Fisheries, Inc., 803 F.2d 828, 830 (5th Cir. 1986).

107 Id. (internal citation omitted).

at sea when he rendered medical advice in consultation with the vessel’s onboard

medic. The Court concludes that the provision of medical care to crew members

aboard a vessel while the vessel is at sea is a traditional maritime activity.

Additionally, the Fifth Circuit has held that, “Providing compensation for shipboard

injuries is a traditional function of the admiralty laws.”108 As such, the Court finds

that the activity giving rise to Cole’s injuries has a sufficient connection to traditional

maritime activity to support the exercise of this Court’s admiralty tort jurisdiction.

The Court therefore denies the Motion to the extent Dr. Davis seeks dismissal of

Huisman’s third-party claims against it for lack of subject matter jurisdiction under

Fed. R. Civ. P. 12(b)(1).

B. Maritime Supplementation

Dr. Davis argues, in the alternative, that even if the Court has admiralty

jurisdiction over him, the claims should be dismissed through maritime

supplementation due to the lack of traditional maritime regulation of medical

malpractice and the strong state interests in regulating medical malpractice.109 A

court may supplement general maritime law with state law if: (1) it does not conflict

with an applicable act of Congress; (2) it does not work material prejudice to a

characteristic feature of general maritime law; or (3) it does not interfere with the

proper harmony and uniformity of the general maritime law in its international and

108 Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119 (5th Cir. 1995) (citing Sisson 497 U.S. at 368-

75, 110 S.Ct. at 2898-2902 (Scalia, J., concurring) (arguing that all vessel-related torts fall within the

admiralty jurisdiction).

109 R. Doc. 116-1.

interstate relations.110 Dr. Davis asserts that the Louisiana Medical Malpractice Act

(the “LMMA”) does not conflict with any act of Congress, and further claims that,

“Congress has affirmatively indicated that state medical malpractice law should fully

apply if not supplement maritime law thus evidencing a strong state interest in

medical malpractice regulation and a weak interest in maritime uniformity in this

area.”111 Dr. Davis cites 46 U.S.C. § 30510 to support his position, which provides

that:

In a civil action by any person in which the owner or operator of a vessel

or employer of a crewmember is claimed to have vicarious liability for

medical malpractice with regard to a crewmember occurring at a

shoreside facility, and to the extent the damages resulted from the

conduct of any shoreside doctor, hospital, medical facility, or other

health care provider, the owner, operator, or employer is entitled to rely

on any statutory limitations of liability applicable to the doctor, hospital,

medical facility, or other health care provider in the State of the United

States in which the shoreside medical care was provided.112

The Court, however, agrees with Cole that Dr. Davis’s reliance on this statute “is

misplaced,” as it only applies to medical malpractice claims stemming from treatment

that occurred “at a shoreside facility.”113 As previously discussed, the alleged

malpractice in this case did not occur at a shoreside medical facility. Rather, Dr.

Davis’s treatment occurred exclusively while Cole was aboard an Oceaneering vessel

that was at sea. Thus, § 30510 does not apply to the facts of this case.

110 In re Antill Pipeline Const. Co., Inc., 866 F.Supp. 2d 563, 567 (5th Cir. 2011) (citation omitted).

111 R. Doc. 116-1 at pp. 14-15.

112 46 U.S.C. § 30510 (emphasis added).

113 See, Adams v. Liberty Maritime Corp., 560 F. Supp. 3d 698, 724 (E.D.N.Y. 2020) (“However, § 30510

critically applies only to treatment ‘occurring at a shoreside facility’; the provision reiterates this point

by stating that a vessel owner may rely on the statute of limitations in the State ‘in which the shoreside

medical care was provided.’ 46 U.S.C. § 30510 (emphasis added).”).

Dr. Davis further asserts that, “the LMMA does not work prejudice on the

features of general maritime law, nor does it interfere with uniformity” because the

medical review panel requirement “is merely a pre-suit protection.”114 Dr. Davis

contends that a medical review panel also serves a useful purpose in the litigation as

a source of expert evidence on complex issues of medical diagnoses, treatment,

decision making, and ultimately the standard of care.115 Dr. Davis does not cite any

legal authority to support this position. While Dr. Davis asserts that, “Fifth Circuit

precedent establishes that medical malpractice claims are not maritime,”116 the

language quoted by Dr. Davis is merely a district court’s summary of a party’s

argument.117 This citation is misleading.118 Additionally, Dr. Davis follows that

quote by stating that, “Indeed, a survey of case law on medical malpractice claims

allegedly arising under the general maritime law reveals (1) relatively few cases

where this type of claim even arises and (2) no particularized maritime rules,

customs, or traditions for such a claim.”119 Notably, and inexplicably, Dr. Davis does

not cite any case to support this statement.

The Court recognizes that in the foregoing case quoted by Dr. Davis, Derouen

v. Hercules Liftboat Co., LLC, another Section of this Court held that, “Fifth Circuit

114 R. Doc. 116-1 at p. 14.

115 Id.

116 R. Doc. 116-1 at p. 14 (quoting Derouen v. Hercules Liftboat Co., LLC, Civ. A. No. 13-4805, 13-4806,

13-5060, 2016 WL 5869786, at *3 (E.D. La. Oct. 7, 2016) (Fallon, J.)).

117 Derouen, Civ. A. No. 13-4805, 2016 WL 5869786 at *3 (“Hercules acknowledges that Fifth Circuit

precedent establishes that medical malpractice claims are not maritime. (citing Joiner, 677 F.2d at

1035). However, it contends that it is not clear ‘whether the tendered claim itself [in a Rule 14(c)

tender] must be a maritime claim.”) (citing Joiner v. Diamond M Drilling Co., 677 F.2d 1035 (5th Cir.

1982).

118 The Court assumes that counsel did not intend to mislead the Court.

119 R. Doc. 116-1 at p. 14.

law indicates that state law—not maritime law—governs third-party claims

maritime tortfeasors bring against treating physicians.”120 The Derouen court cites

Joiner v. Diamond M. Drilling Co. to support that position, a case involving an

onshore physician who treated a seaman when he was hospitalized at a shoreside

facility after suffering an injury while working on an offshore drilling vessel.121 In

Joiner, the Fifth Circuit held that, “We can find absolutely no support for the

proposition that an ordinary, onshore physician who treats an injured sailor has

thereby submitted himself to the rules of maritime commerce. Rather, it has been

consistently held that it is state law which controls in cases such as this.”122 The

instant case is clearly distinguishable from the facts of Joiner and Derouen because

the alleged harmful acts in both of those cases – the alleged malpractice – occurred

on land at shoreside medical facilities.123 Indeed, the Derouen court made clear that,

“Plaintiffs were not seamen,” and, further, “the alleged harmful acts all occurred on

land.”124 In contrast, Dr. Davis knew at the time of his medical consultation that he

was providing a consultation for an injured seaman who was aboard an Oceaneering

vessel while the vessel was at sea. Thus, unlike in Joiner and Derouen, the Court

120 Derouen, Civ. A. No. 13-4805, 2016 WL 5869786 at *4 (citing Joiner, 677 F.2d at 1038).

121 Joiner, 677 F.2d at 1037.

122 Id. at 1037-38.

123 See, Joiner, 677 F.2d at 1037 (“After the accident, the injured seaman was hospitalized and placed

under the care and treatment of a private physician, Dr. C Babson Fresh. Unfortunately, the patient’s

condition steadily deteriorated and on August 31, 1977, Ronald Joiner died. . . . Diamond M in turn

filed a third-party complaint against C. Babson Fresh, the doctor whose alleged onshore malpractice

was said to have ultimately caused Joiner’s death.”); Derouen, Civ. A. No. 13-4805, 2016 WL 5869786

at *4 (“The tort claim in the present case does not meet either condition of federal admiralty

jurisdiction. The alleged harmful acts all occurred on land. The surgical procedure was not connected

to maritime activity.”).

124 Derouen, Civ. A. No. 13-4805, 2016 WL 5869786 at *1 & 4.

finds that Dr. Davis submitted himself to the Court’s admiralty jurisdiction by acting

as the vessel’s physician and providing medical consultations to seamen aboard a

vessel at sea.

The Court recognizes that at least one court in this Circuit has held that, “it is

nationally recognized that the standards of medical malpractice are a matter of local

and state concern.”125 In that case, Harrison v. Glendel Drilling Co., the district court

cites Joiner for the notion that, “We can find absolutely no support for the proposition

that an ordinary, private, onshore physician who treats an injured sailor has thereby

submitted himself to the rules of maritime commerce. Rather, it has been

consistently held that it is state law which controls in cases such as this.”126 The

Court notes, however, that Harrison, like Joiner and Derouen, is distinguishable from

this case because it involved a plaintiff who “was not working aboard a vessel on

navigable waters at any time while he was receiving treatment from Dr. Blanda,”

and, “the medical treatment, whether negligent or otherwise, took place entirely on

land and the effects of that treatment occurred entirely on land.”127 Additionally, the

Fifth Circuit authority cited in Joiner and relied upon by the court in Harrison

involved claims brough against hospitals128 or against physicians whose treatment

occurred entirely on land.129 As such, this Court agrees with the Harrison court’s

125 Harrison v. Glendel Drilling Co., 679 F.Supp. 1413, 1420 (W.D. La. 1988).

126 Id. (quoting Joiner, 677 F.2d at 1038 (citing authority)) (emphasis in original).

127 Harrison, 679 F.Supp. at 1420.

128 See, Joiner, 677 F.2d at 1038-39 (citing United States Lines, Inc. v. U.S., 470 F.2d 487, 491 (5th Cir.

1972) (hospital located in Texas, Texas state law applied to shipowner’s third-party claim against

hospital); Penn Tanker v. United States, 409 F.2d 514, 519 at n.9 (5th Cir. 1969) (hospital located in

Georgia, Georgia state law applied to shipowner’s third-party claim against hospital)).

129 See, Joiner, 677 F.2d at 1038-39 (citing McCann v. Falgout Boat Co., 44 F.R.D. 34 (S.D. Tex. 1968)

(shipowner’s third-party claim against doctor arises under state law). See, McCann, 44 F.R.D. at 40

contention that, “the facts and authorities establish and recognize the need for local

and state control of medical malpractice claims”130 when the alleged malpractice and

corresponding injuries occur within the state and not on navigable waters. But that

is not the case here, where the alleged malpractice was committed by a shoreside

physician who knew that he was providing a medical consultation to a seaman who

was aboard a vessel at sea. Dr. Davis has failed to direct the Court to any authority

indicating that Louisiana has a special interest in regulating medical malpractice

claims brought against physicians rendering medical treatment to someone aboard a

vessel while the vessel is at sea.

To the extent Dr. Davis cites Williams v. Reiss to support his argument that

the Court should supplement maritime law with the LMMA,131 the facts of that case

are clearly distinguishable from the case at bar. The plaintiff in Williams alleged

that he injured his back while working aboard a tugboat that was on the Mississippi

River because a physician who conducted his pre-employment physical “failed to warn

Williams that he had a back condition.”132 Although the plaintiff argued that his suit

was cognizable in admiralty under the saving to suitors clause, 28 U.S.C. § 1333, the

Louisiana Fourth Circuit Court of Appeal held that, “this case is not within admiralty

jurisdiction, and even if it were, Williams would still be required to proceed before a

& 42 (“Admiralty jurisdiction depends upon the maritime nature of the event out of which the claim

arises. In the case of a tort, such jurisdiction depends upon the locality of the injury. . . . The medical

malpractice tort alleged in the third-party complaint against Dr. Metzner arose in San Antonio, Texas,

and by no stretch of the imagination occurred upon the high seas or upon navigable waters.”) (internal

citation omitted).

130 Harrison, 679 F.Supp. at 1421.

131 R. Doc. 116-1 at p. 16 (citing Williams, 94-0672 (La. App. 4 Cir. 9/29/94), 643 So.2d 792 (1994)).

132 Williams, 94-0672, 643 So.2d at 793-94.

medical review panel in accordance with the Louisiana Medical Malpractice Act.”133

The Williams court held that, “Williams’s claims, which are medical malpractice in

nature and are only fortuitously and incidentally connected to maritime activities,

fail to meet the two-part test of Executive Jet.”134 Although the Williams court

determined that the claims did not fall within federal admiralty jurisdiction, it

nonetheless further held that, “even if this case did fall within admiralty jurisdiction,

application of federal maritime law does not preclude application of state law to

supplement any interstitial gaps in maritime law.”135

The Williams court further stated that, “As mentioned above, regulation of

medical malpractice has traditionally been reserved to the states; consequently there

is no federal legislation or admiralty common law pertaining to recovery in medical

malpractice.”136 In doing so, the court seems to refer back to its citation of Harrison

and Joiner for the notion that “it is nationally recognized that the standards of

medical malpractice are a matter of local and state concern.”137 As the Court

previously explained, however, Harrison and Joiner (like Williams) involved medical

malpractice that allegedly occurred at an onshore facility in Louisiana. The Williams

court also cited Miller v. Griffin-Alexander Drilling Co. to support its position, but

that case is also distinguishable because it involved “physicians who practiced

133 Id. at 794 (citations omitted).

134 Id. at 795 (citing Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 273, 93 S.Ct. 493,

507, 34 L.Ed.2d 454 (1972)).

135 Williams, 94-0672, 643 So.2d at 797.

136 Id.

137 Id. at 796 (quoting Harrison v. Glendel Drilling Co., 679 F.Supp. 1413, 1420-21 (W.D. La. 1988);

citing Joiner v. Diamond M Drilling Co., 677 F.2d 1035, 1038 (5th Cir. 1982)) (internal quotation

marks omitted).

medicine and treated the plaintiff on shore.”138 The Court therefore agrees with Cole

that Williams is not controlling and that the foregoing language in Williams

constitutes mere dicta.139

The Court further finds that there is a national interest in uniformity of law

and remedies for seamen who seek medical treatment while aboard a vessel at sea.

The Court agrees with Cole that subjecting medical malpractice claims like these,

which stem from a shoreside physician rendering a medical consultation to a seaman

aboard a vessel at sea, to the law of whatever state in which the onshore physician

happens to be located at the time of consultation, could result in inconsistent, and

even contradictory, results depending upon the location of the onshore physician.

Moreover, physicians like Dr. Davis, who are contracted to provide medical care to

crew members while they are aboard a vessel at sea, have knowingly submitted

themselves to the Court’s admiralty jurisdiction.140

The Court also finds persuasive a case cited by Cole in his opposition brief,

Adams v. Liberty Maritime Corporation.141 Although Adams is a case from the

Eastern District of New York, it involves medical malpractice claims arising out of a

Louisiana doctor’s provision of telemedicine to a seaman who was aboard the

138 Miller v. Griffin-Alexander Drilling Co., 873 F.2d 809, 812 (5th Cir. 1989).

139 See, R. Doc. 118 at pp. 6-7.

140 See, Parker by and Through Parker v. Gulf City Fisheries, Inc., 803 F.2d 828, 830 (5th Cir. 1986)

(“Dr. Blanks knew he was treating a seaman who was aboard a ship. That suffices [for admiralty

jurisdiction].”); See, Joiner v. Diamond M Drilling Co., 677 F.2d 1035, 1038 (5th Cir. 1982) (“A private

land-locked physician who treats a patient [at a shoreside hospital] who happens to have been injured

at sea, does not thereby enter into an implied maritime contract. We can find absolutely no support

for the proposition that an ordinary, private, onshore physician who treats an injured sailor has

thereby submitted himself to the rules of maritime commerce. Rather it has been consistently held

that it is state law which controls in cases such as this.”).

141 R. Doc. 118 at p. 7 (citing Adams, 560 F. Supp. 3d 698, 724 (E.D.N.Y. 2020)).

defendant’s vessel at sea when the treatment was provided.142 In addressing the

negligence of the doctor, the Adams court held that, “Future Care (and, by extension,

Dr. Bourgeois) clearly provided medical services ‘under contract’ for Liberty ‘as part

of [Liberty’s] operational activities,’ i.e., as a means for Liberty to discharge its duty

to provide medical treatment for its crew.”143 The court explained that, “The proper

standard for malpractice in Jones Act cases ‘is simply whether the physician

exercised the degree of care and skill of the average qualified practitioner of the art

and science of medicine.’”144 The Adams court further held that, “In order to establish

such malpractice, expert testimony is required to establish ‘the proper standard of

medical care against which to measure the defendant’s actions.’”145 The Adams court

ultimately concluded that the Louisiana statute of limitations applicable to medical

malpractice claims did not apply to the plaintiff’s claims, and that the claims were

instead governed by – and fell within – the three-year limitations period for maritime

tort claims.146

The Court reaches the same conclusion here. Dr. Davis has failed to direct

the Court to any controlling legal authority indicating that the LMMA should

supplement the Court’s admiralty jurisdiction in this case, where the alleged medical

malpractice was committed by a shoreside physician who knew that he was providing

ongoing medical consultations for seamen and crew members who were aboard a

142 Adams, 560 F. Supp. 3d at 703-715.

143 Id. at 721 (citations omitted).

144 Id. (quoting Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 680 (2nd Cir. 1971)).

145 Adams, 560 F. Supp. 3d at 721 (quoting Dinnerstein v. United States, 486 F.2d 34, 36 (2nd Cir.

1973)).

146 Adams, 560 F.Supp.3d at 724 (citing 46 U.S.C. § 30106).

vessel at sea. Instead, the controlling authority indicates that this Court should

apply substantive admiralty law to Huisman’s third-party claims against Dr. Davis

for indemnity and/or contribution to the extent Huisman is held liable to Cole and to

the extent that Dr. Davis’s negligence, gross negligence, or fault gave rise to Cole’s

claim for maintenance and cure against Huisman.147 As such, Dr. Davis’s Motion is

denied to the extent that he asks this Court to dismiss Huisman’s third-party claims

on the basis that they are subject to a medical review panel under the LMMA through

maritime supplementation.

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that the Motion to Dismiss for

Failure to State a Claim and for Lack of Jurisdiction, filed by third-party defendant,

Robert Davis, M.D.148 is DENIED in part and DENIED in part as moot. The

147 R. Doc. 108 at ¶¶ 17-18. See, Parker by and Through Parker v. Gulf City Fisheries, Inc., 803 F.2d

828 (5th Cir. 1986); Antoine v. Zapata Haynie Corp., 777 F.Supp. 1360, 1364 (E.D. Tex. 1991)

(concluding that the court has maritime subject matter jurisdiction over the medical malpractice

claims and denying “the defendants/third-party defendants’ Motion to Declare Louisiana Law as the

Rule of Decision . . . .”); Hamm v. TRTB, LLC, Civ. A. No. 08-1710, 2010 WL 4627078, at *9 (W.D. La.

July 30, 2010), report and recommendation adopted, Civ. A. No. 08-1710, 2010 WL 4607529 (W.D. La.

Nov. 5, 2010), aff’d sub nom. Hamm v. Island Operating Co., 450 F. Appx. 365 (5th Cir. 2011) (“It is

true that, ‘[w]ith admiralty jurisdiction comes the application of substantive admiralty law.’ East

River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 2298-2299, 90

L.Ed.2d 865 (1986).”).

148 R. Doc. 116.

Motion is DENIED as moot to the extent that Dr. Davis seeks to dismiss Huisman’s

Fed. R. Civ. P. 14(c) tenders, as they have been stricken by the Court. The Motion is

otherwise DENIED.

New Orleans, Louisiana, August 22, 2023.

( load Voth

WENDY B. VITTER

United States District Judge