In Re: The Matter of FMT Industries, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN RE: THE MATTER OF CIVIL ACTION

FMT INDUSTRIES, LLC ET AL.

No. 23-2388

c/w 23-2426

REF: ALL CASES

SECTION I

ORDER & REASONS

Before the Court are two motions1 for partial summary judgment filed by

Ingram Barge Company, LLC (“Ingram”) and a motion2 for partial summary

judgment filed by FMT Industries, LLC, Florida Marine Transporters, LLC, Florida

Marine, LLC, and PBC Management, LLC (collectively, “Florida Marine” and with

Ingram “petitioners”). Claimant Dustin Harris (“Harris”) filed an opposition3 to

Ingram’s motion for summary judgment with respect to his claims and filed an

opposition4 to Florida Marine’s motion for summary judgment with respect to his

claims. Ingram and Florida Marine filed replies.5 Claimant Robert Flynt (“Flynt”)

filed an opposition6 to Ingram’s motion for partial summary judgment with respect

to his claim for maintenance and cure. Ingram filed a reply.7

1 R. Doc. Nos. 73, 76.

2 R. Doc. No. 74.

3 R. Doc. No. 82.

4 R. Doc. No. 74.

5 R. Doc. No. 92 (Ingram’s reply); R. Doc. No. 94 (Florida Marine’s reply).

6 R. Doc. No. 85.

7 R. Doc. No. 93.

Also before the Court is Harris’s motion8 in limine to exclude or limit the expert

testimony of two individuals identified as expert witnesses for both petitioners.

Ingram and Florida Marine both oppose Harris’s motion to exclude.9

For the reasons that follow, the Court grants in part and denies in part Harris’s

motion to exclude, grants Ingram’s motions for partial summary judgment, and

grants Florida Marine’s motion for partial summary judgment.

I. BACKGROUND

This matter arises out of a collision between the M/V CAROL MCMANUS, a

vessel owned and operated by Ingram, and the M/V BIG D, a vessel owned by FMT

Industries, L.L.C. and operated by Florida Marine, LLC. The collision occurred on

January 9, 2023.

Harris was employed by PBC Management, LLC as a deckhand onboard the

M/V BIG D at the time of the collision.10 Harris’s complaint alleges that he was

seriously injured after suffering a fall caused by the collision.11 Harris alleges that

his injuries were caused by the negligence of Ingram and Florida Marine, as well as

the unseaworthiness of the M/V BIG D.12 In addition to seeking damages from Ingram

and Florida Marine, Harris claims that he is entitled to maintenance and cure

benefits from Florida Marine.13

8 R. Doc. No. 70.

9 R. Doc. No. 84 (Florida Marine’s response); R. Doc. No. 83 (Ingram’s response).

10 R. Doc. No. 10, ¶ VI; R. Doc. No. 74-2, ¶ 1.

11 R. Doc. No. 10, ¶ IX.

12 Id. ¶ XI.

13 Id. ¶ XVII.

At the time of the collision, Flynt was employed by Ingram as a cook on the

M/V CAROL MCMANUS.14 Flynt alleges that, during the collision, he was knocked

from his bunk.15 He alleges that he suffered injuries which were caused by the

negligence of Ingram and Florida Marine.16 Flynt also alleges the unseaworthiness

of the M/V BIG D caused his injuries.17

Both Florida Marine and Ingram filed complaints for exoneration from and/or

limitation of liability.18 Harris and Flynt filed claims against both Florida Marine

and Ingram.19 Florida Marine and Ingram also filed claims against each other.20 On

November 7, 2023, the Court granted a motion to consolidate the limitation actions.21

Ingram’s first motion for partial summary judgment argues that Ingram is

entitled to summary judgment on Flynt’s claims for maintenance and cure and

related damages pursuant to McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 548–

49 (5th Cir. 1968).22 More specifically, Ingram argues that Flynt is not entitled to

maintenance and cure because he intentionally concealed a medical history of back

14 R. Doc. No. 85, at 3; R. Doc. No. 73-1, at 3.

15 R. Doc. No. 10, ¶ VII.

16 Id. ¶ VIII.

17 Id.

18 R. Doc. No. 1 (Florida Marine’s complaint); E.D. La. Case No. 23-2426, R. Doc. No.

1 (Ingram’s complaint).

19 R. Doc. No. 5 (Flynt’s complaint against Florida Marine); R. Doc. No. 10 (Harris’s

complaint against Florida Marine); E.D. La. Case No. 23-2426, R. Doc. No. 8 (Flynt’s

complaint against Ingram); E.D. La. Case No. 23-2426, R. Doc. No. 13 (Harris’s

complaint against Ingram).

20 R. Doc. No. 47 (Ingram’s complaint against Florida Marine); E.D. La. Case No. 23-

2426, R. Doc. No. 15 (Florida Marine’s complaint against Ingram).

21 R. Doc. No. 14.

22 R. Doc. No. 73-1, at 1.

pain when completing his pre-employment medical questionnaires.23 Ingram argues

that Flynt’s concealment was material to its decision to hire him and the prior injuries

are causally connected to the alleged present injuries.24 Accordingly, Ingram argues

that it is entitled to the McCorpen defense and that Flynt’s claims should be

dismissed.25

In response, Flynt argues that the only prior evidence of Flynt having lower

back issues was a single August 2020 record showing that Flynt called in to obtain a

prescription for cyclobenzaprine due to feeling “spasms” after planting trees.26 Flynt

asserts that there is no evidence that a January 2021 lumbar X-ray, which was

performed during a pre-employment physical, or its results were ever provided to

him.27 Additionally, Flynt highlights that Ingram performed a rigorous physical

examination of Flynt prior to hiring him and it was satisfied that he was capable of

performing his duties as a cook.28

Ingram’s second motion for partial summary judgment argues that Ingram is

entitled to partial summary judgment with respect to Harris’s claims.29 Ingram

argues that “Harris specifically claims that he was in the deck locker of the BIG D

when the collision occurred, and that the resulting movement of the BIG D caused

him to hit his head on a pipe and fall down a set of stairs into the lower hold of the

23 Id. at 8–11.

24 Id. at 11–13.

25 Id. at 14.

26 R. Doc. No. 85, at 10.

27 Id.

28 Id.

29 See generally R. Doc. No. 76-1.

vessel.”30 Ingram claims that “irrefutable video evidence” shows that Harris’s

allegations are untrue because he was in the galley during the collision, he did not

hit his head on a pipe, and he did not fall down any stairs.31 Based on this video

evidence, Ingram argues that Harris’s claims should be dismissed.32

Florida Marine also argues that it is entitled to summary judgment with

respect to Harris’s claims.33 Florida Marine relies on the same video evidence from

the M/V BIG D to argue that Harris’s claims are fabricated and should be dismissed

as baseless.34

In response to both motions, Harris argues that he was injured when the

captain of the M/V BIG D attempted to avoid the collision.35 As a novice deckhand,

Harris argues that he cannot be faulted for mistaking the evasive maneuver for the

collision.36 Harris also asserts that the Court should not consider Florida Marine’s

transcript of Harris’s recorded statements because Florida Marine has refused to

produce the recording, making the transcript inadmissible.37 Additionally, Harris

argues that the Court should not consider the report from the petitioners’ maritime

safety expert Captain Ronald Campana (“Captain Campana”) for the reasons set

forth in Harris’s motion to exclude Captain Campana’s testimony.38 Finally, Harris

30 Id. at 1.

31 Id.

32 Id. at 17.

33 R. Doc. No. 74, at 1.

34 R. Doc. No. 74-1, at 18–19.

35 R. Doc. No. 81, at 20; R. Doc. No. 82, at 19.

36 R. Doc. No. 81, at 19; R. Doc. No. 82, at 18.

37 R. Doc. No. 81, at 16.

38 Id. at 17; R. Doc. No. 82, at 16; see also R. Doc. No.70 (Harris’s motion to exclude).

argues that, because he has stated a claim against Florida Marine, he is entitled to

maintenance and cure from Florida Marine.39

In Harris’s motion in limine, Harris argues that Captain Campana’s testimony

should be excluded because Captain Campana’s commentary is not necessary to

understand the video evidence, he offers opinions outside his area of expertise, and

he invades the province of the jury.40 Harris also argues that the testimony of

orthopedic surgeon Dr. Neil Duplantier (“Dr. Duplantier”) should be excluded because

Dr. Duplantier seeks to testify about Harris’s “head injury, concussion, and traumatic

brain injury,” which Harris argues that, as an orthopedic surgeon, he is not qualified

to do so.41

II. STANDARD OF LAW

a. Daubert Standard

Federal Rule of Evidence 702 governs the admissibility of expert testimony.

Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will

help the trier of fact to understand the evidence or to determine a fact

in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

39 R. Doc. No. 81, at 22. Harris also asserts that Florida Marine provided incomplete

video evidence because the video includes only 1 minute and 24 seconds of the footage.

Id. at 9. Harris notes that other video evidence produced will provide the Court with

a better understanding of the incident. The Court has reviewed the video evidence

submitted by Harris and both petitioners.

40 See generally R. Doc. No. 70-1.

41 Id. at 8–11.

(d) the expert has reliably applied the principles and methods to the facts

of the case.

“To qualify as an expert, the witness must have such knowledge or experience in [his]

field or calling as to make it appear that his opinion or inference will probably aid the

trier in his search for truth.” United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004)

(quotations omitted).

The U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579, 588 (1993) “provides the analytical framework for determining whether

expert testimony is admissible under Rule 702.” Pipitone v. Biomatrix, Inc., 288 F.3d

239, 243 (5th Cir. 2002). The Daubert framework requires trial courts to make a

preliminary assessment to “determine whether the expert testimony is both reliable

and relevant.” Burleson v. Tex. Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004).

A number of nonexclusive factors may be relevant to the reliability inquiry,

including: (1) whether the technique has been tested, (2) whether the technique has

been subjected to peer review and publication, (3) the potential error rate, (4) the

existence and maintenance of standards controlling the technique’s operation, and

(5) whether the technique is generally accepted in the relevant scientific community.

Burleson, 393 F.3d at 584. The reliability inquiry must remain flexible, however, as

“not every Daubert factor will be applicable in every situation; and a court has

discretion to consider other factors it deems relevant.” Guy v. Crown Equip. Corp.,

394 F.3d 320, 325 (5th Cir. 2004). “Both the determination of reliability itself and the

factors taken into account are left to the discretion of the district court consistent

with its gatekeeping function under [Rule] 702.” Munoz v. Orr, 200 F.3d 291, 301 (5th

Cir. 2000).

As a general rule, “[q]uestions relating to the bases and sources of an expert’s

opinions affecting the weight to be assigned that opinion rather than its admissibility

should be left for the jury’s consideration.” Smith v. Starr Indem. & Liab. Co., 807 F.

App'x 299, 302 (5th Cir. 2020) (citing Viterbo v. Dow Chem. Co., 826 F.2d 420, 422

(5th Cir. 1987)). “Vigorous cross-examination, presentation of contrary evidence, and

careful instruction on the burden of proof are the traditional and appropriate means

of attacking shaky but admissible evidence.” Daubert, 509 U.S. 579, 596 (1993).

With respect to determining the relevance of an expert’s testimony pursuant

to Rule 702 and Daubert, the proposed testimony must be relevant “not simply in the

way all testimony must be relevant [pursuant to Rule 402], but also in the sense that

the expert’s proposed opinion would assist the trier of fact to understand or determine

a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).

When ruling on the admissibility of expert opinion evidence, “[t]he district court

should, initially, approach its inquiry with the proper deference to the jury's role as

the arbiter of disputes between conflicting opinions.” Viterbo, 826 F.2d at 422.

“[W]hen expert testimony is challenged under Rule 702 and Daubert, the

burden of proof rests with the party seeking to present the testimony.” Kennedy v.

Magnolia Marine Transp. Co., 189 F. Supp. 3d 610, 615 (E.D. La. 2016) (Africk, J.)

(citing Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.1998)). “The

admissibility of expert testimony is governed by the same rules, whether at trial or

on summary judgment.” First United Fin. Corp. v. U.S. Fid. & Guar. Co., 96 F.3d 135,

136–37 (5th Cir. 1996).

In bench trials, [s]trict evidentiary rules of admissibility are generally

relaxed.” Moorhead v. Mitsubishi Aircraft Int’l, Inc., 828 F.2d 278, 287 (5th Cir. 1987).

“Additionally, ‘the trial court's gate-keeper function role is significantly diminished

in bench trials. . .because, there being no jury, there is no risk of tainting the trial by

exposing a jury to unreliable evidence.’” McCuller v. Nautical Ventures, LLC, No. CV

05-1195, 2012 WL 12986715, at *4 (E.D. La. June 6, 2012) (Fallon, J.) (quoting Marin

v. Falgout Offshore, LLC, No. CIV.A. 11-428, 2011 WL 6000848, at *3 (E.D. La. Nov

30, 2011) (Fallon, J.)).

b. Summary Judgment Standard

Summary judgment is proper when, after reviewing the materials in the

record, a court determines that there is no genuine dispute of material fact and the

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “[A] party

seeking summary judgment always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of [the record]

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need

not produce evidence negating the existence of a material fact; it need only point out

the absence of evidence supporting the other party’s case. Id.; see also Fontenot v.

Upjohn Co., 780 F.2d 1190, 1195–96 (5th Cir. 1986) (“There is no sound reason why

conclusory allegations should suffice to require a trial when there is no evidence to

support them even if the movant lacks contrary evidence.”).

Once the party seeking summary judgment carries that burden, the

nonmoving party must come forward with specific facts showing that there is a

genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by

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

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a

genuine issue of material fact exists when the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

If the movant’s story is “blatantly contradicted by the record”—including a

videotape—such that “no reasonable jury could believe it,” the court should “view[]

the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 380–

81 (2007). If the nonmovant fails to meet its burden of showing a genuine issue for

trial that could support a judgment in favor of the nonmovant, summary judgment

must be granted. See Little, 37 F.3d at 1075–76.

The party responding to the motion for summary judgment may not rest upon

the pleadings but must identify specific facts that establish a genuine issue.

Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be

believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]

favor.” Id. at 255. “Although the substance or content of the evidence submitted to

support or dispute a fact on summary judgment must be admissible . . . the material

may be presented in a form that would not, in itself, be admissible at trial.” JW Dev.,

LLC v. Indep. Specialty Ins. Co., No. CV 22-390, 2022 WL 3139133, at *1 (E.D. La.

Aug. 5, 2022) (Africk, J.) (quoting Lee v. Offshore Logistical & Transp., LLC, 859 F.3d

353, 355 (5th Cir. 2017)).

III. ANALYSIS

a. Expert Opinions

Because Ingram’s and Florida Marine’s motions for summary judgment rely in

part on Captain Campana’s testimony, the Court will first address Harris’s motion in

limine which argues Captain Campana’s and Dr. Duplantier’s testimony should be

excluded. As mentioned, “[t]he admissibility of expert testimony is governed by the

same rules, whether at trial or on summary judgment.” First United Fin. Corp. v.

U.S. Fid. & Guar. Co., 96 F.3d 135, 136–37 (5th Cir. 1996).

i. Captain Campana

Harris’s first argument with respect to Captain Campana’s report is that it

primarily offers “director’s commentary” of the video footage from the M/V BIG D.

Harris argues that this video footage is self-explanatory and does not need an expert

explanation.42 However, as noted by the petitioners,43 Federal Rule of Civil Procedure

42 R. Doc. No. 70-1, at 6.

43 R. Doc. No. 83 (Ingram’s response), at 6; R. Doc. No. 84 (Florida Marine’s response

adopting Ingram’s arguments with respect to the admissibility of Captain Campana’s

testimony), at 3.

26(a)(2)(B) requires that an expert report contain “a complete statement of all

opinions the witness will express and the basis and reasons for them” and “a complete

statement of all opinions the witness will express and the basis and reasons for them.”

Accordingly, Rule 26 required Captain Camapana to explain the basis for his opinion,

which he did in part through explaining what he observed in the video.

Harris next objects to Captain Campana’s testimony because Captain

Campana is not an expert in accident reconstruction or biomechanics yet his report

includes testimony about whether the movement of the vessel would cause someone

to stumble or lose their balance.44 In response, petitioners argue that Captain

Campana is qualified to testify based on his substantial experience in navigating

vessels, his expertise in accident reconstruction, and his experience with vessel

movements.45 Additionally, petitioners argue that Badeaux v. Eymard Bros. Towing

Co., Inc., which Harris relies on, is not applicable because it addressed an opinion

concerning the physics of a fall, which they argue is not at issue here.46 No. CV 19-

13427, 2021 WL 4860300, at *5 (E.D. La. Oct. 19, 2021).

As noted by the petitioners, Captain Campana appears to have extensive

expertise sailing vessels as well as investigating vessel accidents.47 Harris provides

no support for the suggestion that this expertise is not sufficient to testify about the

way a vessel would move and how this might affect someone on the vessel. Harris’s

44 R. Doc. No. 70-1, at 6.

45 R. Doc. No. 83, at 7–9.

46 Id. at 10.

47 R. Doc. No. 83, at 7; see also R. Doc. No 70-3 (Captain Campana’s curriculum vitae),

at 2.

motion also does not address Captain Campana’s experience with accident

reconstruction and investigating vessel accidents.

With respect to the case Harris relies on, the Badeaux court explained that

Captain Campana was not qualified to conduct a biomechanical analysis regarding

the physics of the plaintiff’s fall (whether it was possible for plaintiff to land in the

position seen in photographs if he fell in the manner alleged). 2021 WL 4860300, at

*5. To the extent Captain Campana attempts to testify regarding the physics of

Harris’s fall, Harris may object at trial. However, with respect to the statements in

his report about the acceleration and deceleration of the vessel and how such

movement might affect individuals on a vessel, nothing in Harris’s objection indicates

that such testimony should be excluded.

Harris argues that whether he fell or injured himself is an issue for the trier

of fact to decide.48 However, Harris does not point to any statements suggesting that

Captain Campana would testify that Harris did not fall. Rather, the statements

Harris is referencing discuss whether the movement of the vessel would cause a fall,

not whether the fall occurred.49 Accordingly, the Court finds no basis for sustaining

Harris’s objection on this basis at this time.

48 R. Doc. No. 70-1, at 7.

49 Id. at 6. The statements that Harris references are: “there was no rapid

deacceleration or sudden motion that would cause anyone to lose their balance[;]” “the

motion of the vessel slowing down would not cause someone to lose their balance or

stumble[;]” and “the video footage during this time confirms the motion of the vessel

slowing down did not cause any sudden movement that would affect anyone’s ability

to stand up.”

Harris also contends that Captain Campana’s opinion stating that Harris’s

testimony is “not corroborated by the galley video” is not helpful and invades the

province of the factfinder. The Court agrees. “[A]n expert cannot make ‘legal

conclusions reserved for the court,’ credit or discredit witness testimony, or ‘otherwise

make factual determinations reserved for the trier of fact.’” Meaux v. Cooper Consol.,

LLC, No. CV 19-10628, 2021 WL 3553537, at *2 (E.D. La. Apr. 22, 2021) (Ashe, J.).

“An expert ‘opinion’ stating that [the] plaintiff’s testimony is inconsistent with other

parts of the record is both unhelpful to the factfinder [ ] and also risks impermissibly

invading the factfinding province of the Court.” Badeaux, 2021 WL 4860300, at *5

(citing Fed. R. Evid. 702(a) and Skidmore v. Precision Printing & Pkg., Inc., 188 F.3d

606, 618 (5th Cir. 1999)). Accordingly, the Court will exclude Captain Campana’s

opinion that Harris’s testimony is not corroborated by the video.

Harris’s final objection to Captain Campana’s testimony is that Captain

Campana’s opinion that the work performed after the accident to secure loose barges

is “a very strenuous task requiring strength and endurance” does not reflect any

expertise and is not helpful to the trier fact.50 In response, petitioners argue that,

because it is not within common knowledge to know “how strenuous the work hauling

rigging and reconnecting broken loose barges is,” Captain Campana’s testimony will

be helpful to the trier of fact.51 The Court agrees with the petitioners that Captain

50 Id. at 7.

51 R. Doc. No. 83, at 10.

Campana’s testimony is relevant and helpful as it speaks to less obvious matters

concerning the work performed onboard a vessel.

ii. Dr. Duplantier

Harris also seeks to exclude Dr. Duplantier’s testimony regarding Harris’s

head injury because Dr. Duplantier is an orthopedist and not a neurologist. In

response, Florida Marine explains that it “does not intend to introduce Dr. Duplantier

as an expert in the specialty of neurology, and “[t]o the extent his testimony touches

upon neurological issues, such testimony can be categorized as an observation made

by a qualified orthopedist in his treatment of Mr. Harris as a whole.”52 Florida Marine

states that “Dr. Duplantier’s evaluation of Mr. Harris was predominantly for lower

back pain” but he “also evaluated the CT scan of Mr. Harris’[s] head and an MRI of

Mr. Harris’[s] brain as part of his review of the pertinent medical documentation.”53

“The Fifth Circuit has held [ ] that a physician’s knowledge, training, and

education in the fields of medicine will generally be sufficient predicate to allow the

physician to testify as to fields outside his area of specialty.” McCuller, 2012 WL

12986715, at *3. Accordingly, considering the more relaxed evidentiary standards

because this matter is set for a bench trial, Harris’s ability to cross-examine Dr.

52 R. Doc. No. 84, at 2. Ingram notes that it “does not object to the [m]otion in [l]imine

to the extent it seeks to preclude Dr. Duplantier, who performed an IME on Harris,

from testifying as to his opinions regarding Harris’[s] alleged head injury.” R. Doc.

No. 83, at 1. “Ingram however intends to offer Dr. Duplantier’s testimony regarding

all issues in his [r]eport other than the head injury.” Id. at 2.

53 Id. at 1–2.

Duplantier as to his neurological expertise, and Harris’s ability to present contrary

evidence, the Court will not exclude his opinion at this time.

b. Flynt’s Claims

As discussed, Ingram argues that it is entitled to summary judgment on Flynt’s

claims for maintenance and cure pursuant to McCorpen, 396 F.2d at 548–49. The

duty of maintenance and cure “obligates [maritime employers] to pay for the lost

wages, medical care, food, lodging, and other incidental expenses of a mariner who

falls ill or is injured while in the service of the vessel.” Johnson v. Cenac Towing, Inc.,

599 F. Supp. 2d 721, 726 (E.D. La. 2009) (Vance, J.). “The duty is practically absolute.”

Id. “Unlike an employer’s duties under the Jones Act, for example, liability for

maintenance and cure is ‘in no sense . . . predicated on the fault or negligence of the

shipowner.’” Id. (quoting Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730

(1943)).

Pursuant to McCorpen, “[w]here 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.” 396 F.2d at

548. “To establish the McCorpen defense, an employer must show that (1) the seaman

intentionally misrepresented or concealed medical facts; (2) the nondisclosed facts

were material to the employer’s decision to hire the seaman; and (3) a causal link

exists between the withheld information and the injury that is the subject of the

complaint.” Marroquin v. Crosby Dredging, LLC, No. CV 23-1836, 2024 WL 863888,

at *2 (E.D. La. Feb. 29, 2024) (Barbier, J.) (citing McCorpen, 396 F.2d at 548–49).

With respect to the first element, Ingram argues that Flynt responded “no” to

questions regarding whether he had ever been treated for back pain or back injuries

on multiple pre-employment questions when he did in fact have a history of back pain

that he should have disclosed.54 In support of its argument that Flynt had a medical

history that he should have disclosed, Ingram cites to multiple medical records and a

statement made by Flynt. The medical history, as argued by Ingram, is as follows:

“On August 25, 2020, for example, Flynt called Bethesda Free Clinic

complaining of ‘spasms in lower back after planting trees in his yard.’”55

“At this time, Flynt requested a refill of cyclobenzaprine 10mg and

stated that he saw a Dr. Krueger in November 2019 for the same

issue.”56 “Flynt returned to the Bethesda Free Health Clinic in October

2020 still complaining of back discomfort, among other ailments [and] [

] was diagnosed with low back pain and again prescribed

cyclobenzaprine.”57 “Similarly, Flynt was also a patient at EXCELth,

Inc. in 2014 and 2015, and the EXCELth records show Flynt reported a

history of backaches.”58

Additionally, according to Ingram, Flynt had “a lumbar spine x-ray taken on January

19, 2021, 11 months before Flynt completed Ingram’s pre-employment

questionnaires,” and the radiologist stated that Flynt’s lumbar spine “demonstrated

severe L5-S1 degenerative disc disease with grade 1/2 anterolisthesis of L5 on S1

54 R. Doc. No. 73-1, at 5.

55 Id.

56 Id.

57 Id. at 6.

58 Id.

which may be degenerative or related to spondylosis.”59 Ingram also argues that Flynt

admitted to having lower back pain before the incident.60

In response, Flynt argues that the only record related to Flynt’s low back pain,

which is what he allegedly injured during the collision between the M/V CAROL

MCMANUS and the M/V BIG D,61 is the August 25, 2020 medical record.62 Flynt

explains that the November 2019 visit to Dr. Krueger referenced in the August 25,

2020 medical record was regarding cervical neck pain, not low back pain.63 Flynt

highlights that neither of these records show that any physical examination or

diagnostic testing was conducted.64

With respect to the records from EXCELth, Inc., Flynt states that these records

include computer generated printouts listing numerous items “including ‘history of

BACKACHE’ as ‘Active’ with a date of 11/11/2015 and another similar listing with

the same date.”65 However, Flynt argues that none of the records show that Flynt had

any complaints of low back issues and the only reference to an actual examination of

Flynt’s back says “Back: normal inspection, full range of motion, painless range of

motion.”66 Finally, Flynt argues that, with respect to the lumbar X-ray conducted in

January 2021, there is no evidence whatsoever that Flynt was aware of the results of

59 Id. at 7 (emphasis in original).

60 Id.

61 R. Doc. No. 85, at 3.

62 R. Doc. No. 85, at 6.

63 Id.

64 Id. at 7.

65 Id.

66 Id.

this X-ray as it was part of a pre-employment physical exam and not associated with

any complaints of back pain.67

“The intentional concealment prong of the McCorpen defense does not require

subjective intent to conceal.” Meche v. Doucet, 777 F.3d 237, 247 (5th Cir. 2015). “The

employer need only show that the seaman ‘[f]ail[ed] to disclose medical information

in an interview or questionnaire that is obviously designed to elicit such

information.’” Id. (quoting Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 174

(5th Cir. 2005)). Accordingly, when Flynt answered “no” to the question regarding

whether he had ever been treated for back pain, he intentionally concealed medical

information because he had been treated for back pain.

The second McCorpen element considers whether “the nondisclosed facts were

material to the employer’s decision to hire the seaman.” Marroquin, No. CV 23-1836,

2024 WL 863888, at *2. “The 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.

Ingram has provided a statement from its Director of Human Resources, Kelly

Clapp,68 stating that, if Ingram had known about Flynt’s history of back pain,

“Ingram would have required additional medical information, including medical

67 Id.

68 The affidavit states that Kelly Clapp is responsible for making Ingram’s hiring

decisions. R. Doc. No. 73-5.

records, and further evaluation of his ability to perform the duties of the job before

making a decision whether to hire him.”69 Kelly Clapp further explains that, because

Flynt’s medical history of back pain was material to his ability to safely perform his

job duties, it “would have materially impacted Ingram’s decision to hire him.”70

Additionally, Flynt “has not come forward with any evidence to show that he would

have been hired even if he had fully disclosed his [back pain].” Ladnier v. REC Marine

Logistics, L.L.C., No. CIV.A. 14-1278, 2015 WL 3824382, at *5 (E.D. La. June 19,

2015) (Morgan, J.).

Accordingly, because Ingram has demonstrated that its knowledge of Flynt’s

history of back pain would have affected his hiring, it is clear to the Court that Flynt’s

failure to disclose was material.71

69 Id. at 2.

70 Id.

71 See Marroquin, No. CV 23-1836, 2024 WL 863888, at *3 (“Plaintiff argues that a

genuine issue of material of fact remains as to the materiality element because

Defendants did not provide any type of declaration or affidavit stating that [the

claimant’s] previous injury would have affected their hiring decision.

However, . . . [t]he mere fact that [the employer] asked about [the claimant’s] history

with back and neck pain indicates that this information would have been material to

their hiring decision.”); Daggs v. Gulf Offshore Logistics, LLC, No. CV 19-00071, 2019

WL 5693058 (E.D. La. Nov. 4, 2019) (Ashe, J.) (explaining that is irrelevant to the

materiality analysis that the claimant passed the employer’s physical examination

and worked for a period without incident); All. Marine Servs., LP v. Youman, No. CV

17-8124, 2018 WL 6523134, at *8 (E.D. La. Dec. 12, 2018) (“[T]here is no genuine

dispute that the medical questionnaire was specifically designed to elicit information

concerning past back injuries, that such inquiries were rationally related to the job

applicant's physical ability to perform job duties, and that [the claimant] concealed

his prior lower back injuries; accordingly, the concealed prior back injuries were

material to [the employer’s] decision to hire [the claimant].”); Soileau v. Baywater

Drilling, LLC, No. 6:17-CV-00710, 2018 WL 3637934 (W.D. La. July 31, 2018) (stating

that “[t]he type, duration or severity of the prior back problems is not the issue” where

an employer asks specific medical questions related to the applicant’s ability to

The final McCorpen element requires the Court to consider the causal link

between the withheld information and the information that is the subject of the

inquiry. “A party seeking to employ a McCorpen defense is not required to show that

the plaintiff’s preexisting injuries were the sole cause of the present injury claimed.”

Marroquin, No. CV 23-1836, 2024 WL 863888, at *3. Instead, “[a]ll that is required

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

disability incurred during the voyage.” McCorpen, 396 F.2d at 549. “To establish this

connection, it is sufficient to show that the previous injury and the new injury

occurred in the same location on the body.” Hare v. Graham Gulf, Inc., 22 F. Supp. 3d

648, 654 (E.D. La. 2014) (Morgan, J.).

Courts in this district have “held that when both a plaintiff’s prior injuries and

present injuries concern the lower back, the causal link has been met and summary

judgment on the issue of the McCorpen defense is appropriate.” Marroquin, No. CV

23-1836, 2024 WL 863888, at *3 (citing Flowers v. Magnolia Marine Transp. Co., No.

CV 22-1209, 2023 WL 5831714, at *4 (E.D. La. Sept. 8, 2023) (Barbier, J.) and Foret

v. St. June, LLC, No. CIV.A. 13-5111, 2014 WL 4539090, at *5 (E.D. La. Sept. 11,

2014) (Barbier, J.)). Plaintiff failed to disclose that he sought treatment for lower back

pain and now complains of an injury to his lower back.72 Accordingly, Ingram is

perform his duties); see also Savoie v. Inland Dredging Co. LLC, No. CV 20-2294,

2022 WL 1540585, at *3 (E.D. La. May 16, 2022) (explaining that material issues of

fact existed with respect to materiality when the employer’s affidavit suggested that

the claimant may have been referred for additional medical review).

72 While plaintiff disputes whether some of the medical records related to lower back

pain, he does admit that the August 25, 2020 medical report concerned Harris’s

complaint of lower back spasms. R. Doc. No. 85, at 8. Because it is undisputed that

entitled to the application of the McCorpen defense, and the Court will grant Ingram’s

motion for summary judgment with respect to Flynt’s claims.

c. Harris’s Claims

As noted, Harris argues that the Court should not consider Captain Campana’s

report for the reasons set forth in the motion in limine to exclude his testimony.73 The

Court has already addressed Harris’s objections with respect to Captain Campana.

Therefore, with the exception of the opinion that the Court will exclude, the Court

will consider Captain Campana’s report for purposes of deciding the summary

judgment motions.

Harris also argues that the Court should not consider the transcript of Harris’s

recorded statement, which was taken on the day of the accident, because Florida

Marine has not produced the recording.74 Harris relies on one case, Rivera v.

Robinson, which addressed call recordings that a plaintiff sought to introduce at trial.

464 F. Supp. 3d 847, 854 (E.D. La. 2020) (Lemmon, J.). The defendants in that case

objected to the transcript because it was incomplete since “certain items which were

audible on the tape are noted as inaudible.” Id. In resolving this objection, the court

explained that either the parties must reach an agreement about the contents of the

transcript or the transcript would be excluded and the audiotape admitted in its

place. Id. Unlike in Rivera, Harris does not provide any indication that he disagrees

the August 25, 2020 medical record concerned lower back pain, the Court need not

address the arguments that the other records did not concern lower back pain or that

Harris did not know about the records.

73 R. Doc. No. 81, at 16–17.

74 Id.

with the contents of the transcript and the Court will therefore consider it and give

it the appropriate weight.75

i. Jones Act Claim

“A seaman is entitled to recovery under the Jones Act . . . if his employer’s

negligence is the cause, in whole or in part, of his injury.” Gowdy v. Marine Spill

Response Corp., 925 F.3d 200, 205 (5th Cir. 2019) (quoting Randle v. Crosby Tugs,

L.L.C., 911 F.3d 280, 283 (5th Cir. 2018)). “The standard of causation in Jones Act

cases is not demanding.” Id. (quoting Johnson v. Cenac Towing, Inc., 544 F.3d 296,

302 (5th Cir. 2008)). “Indeed, a claim under the Jones Act requires only that employer

negligence ‘played any part, even the slightest, in producing the injury.’” Id. (quoting

Johnson, 544 F.3d at 335).

As discussed, both petitioners argue that they are entitled to summary

judgment with respect to Harris’s Jones Act negligence claims because “irrefutable

video evidence” from the M/V BIG D shows that Harris was in the galley at the time

of the collision, not in the deck locker where he claims that he hit his head on a pipe

and fell down a set of stairs. Petitioners argue that, because Harris’s testimony is

contradicted by the video evidence, Harris has not demonstrated that he has suffered

an injury. In response, Harris argues that the accident happened in the deck locker

as alleged, but that he was mistaken about the accident happening during the

75 To the extent that Florida Marine is refusing to produce the audio recording to

Harris, the proper remedy is to file a motion to compel.

collision and that it actually happened during the evasive maneuver before the

collision.

In addressing Harris’s counsel’s suggestion that Harris was mistaken about

the timing of his accident, Ingram argues that “[a]rgument of counsel is not evidence

capable of defeating a motion for summary judgment.”76 Additionally, Ingram points

out that “[i]n situations where the non-movant in a motion for summary judgment

submits an affidavit which directly contradicts an earlier deposition and the movant

has relied upon and based its motion on the prior deposition, courts may disregard

the later affidavit.” Hyde v. Stanley Tools, 107 F. Supp. 2d 992, 993 (E.D. La. 2000)

(Barbier, J.) (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.

1996)). Florida Marine argues that the Fifth Circuit has held that when a plaintiff

changes his recollection “to include comments on an issue that is central to an

element of her claim,” the Court should strike the affidavit.77

While this Court has discretion to strike the inconsistent affidavit, “courts have

allowed a contradictory or inconsistent affidavit to nonetheless be admitted if it is

accompanied by a reasonable explanation.” Id.; see also Free, 815 F. App’x at 767

(“Notably, courts typically require some explanation for an inconsistency between a

deposition and affidavit.”). Harris’s response explains that Harris was an

inexperienced deckhand as he completed orientation with Florida Marine on

November 23, 2022, the M/V BIG D was the only boat that Harris worked on, he never

76 R. Doc. No. 76-2, at 15.

77 R. Doc. No. 94, at 2 (citing Free v. Wal-Mart La., L.L.C., 815 F. App’x 765, 766–67

(5th Cir. 2020)).

worked in the maritime industry before working for Florida Marine, and the January

9, 2023 accident occurred on his second hitch.78 His response also explains that there

are no windows in the deck locker and he did not hear the general alarm go off.79

Accordingly, while the Court is mindful of its discretion to exclude Harris’s

inconsistent affidavit, Harris has offered a reasonable explanation for the affidavit’s

inconsistency with his earlier testimony regarding the timing of his accident.

Notwithstanding, Ingram highlights that, even if the Court accepts Harris’s

changed allegation that his accident occurred before the collision, there are less than

twenty seconds between which the BIG D was put in reverse and the time at which

Harris can be seen returning to the galley.80 Harris agrees with this assertion and

argues that approximately 19 seconds is “more than enough time” for Harris’s

accident to have occurred.81 Harris also states that he heard a creaking sound just

before his accident.82

As Ingram notes,83 if Harris heard the creaking sound, which is recorded on

the overwatch video beginning at 1:52.06,84 before his accident as he testified, then

there were only eight seconds between his fall (assuming his fall occurred

immediately as the creaking sound began) and his entry into the galley at 1:52.14.85

78 R. Doc. No. 82, at 5.

79 Id. at 6.

80 R. Doc. No. 76-1, at 15.

81 R. Doc. No. 82, at 19.

82 Id. at 9.

83 R. Doc. No. 92, at 2.

84 R. Doc. No. 81-5 (Ex. 4) (M/V BIG D overwatch video).

85 R. Doc. No. 81-4 (Ex. 3) (M/V BIG D galley video).

During those eight seconds, he would have needed to lose his balance, strike his head,

fall down a flight of stairs, get up, walk back up the stairs, and walk approximately

15 feet to the galley.86 While Harris’s response suggests that “he quickly ran up the

stairs, out of the deck locker, and into the galley,”87 Harris previously testified in a

deposition that he “tried to make his way up the stairs” and could only do so by

“leaning on the wall.”88 He also testified that, after making it up the stairs, he

“stumbled around to the galley.”89

Ingram also argues that the reversing of the BIG D did not cause the boat to

rock, tip, or otherwise cause Harris to fall.90 In support of this argument, Ingram

relies on deposition testimony from Captain Jackie Burns (“Captain Burns”) stating

that the slowing of the M/V BIG D did not cause the boat to tip, video from the galley

showing that the slowing down did not cause objects in the galley to move, and video

showing that Deckhand Isaiah Marquez, who was standing at the stove in the galley,

was not jostled.91

Florida Marine makes many of the same arguments as Ingram, which the

Court need not restate. Florida Marine also points to Captain Campana’s written

86 Id.; see also R. Doc. No. 82 (Harris’s response explaining that Captain Burns

testified that it is 15 to 20 feet from the deck locker to the galley), at 4.

87 R. Doc. No. 82, at 6.

88 R. Doc. No. 76-7, at 48.

89 Id. The Court notes that Harris has offered no reasonable explanation for the

inconsistency between his response that “he quickly ran up the stairs, out of the deck

locker, and into the galley” and his deposition testimony that “tried to make his way

up the stairs” and could only do so by “leaning on the wall.” R. Doc. No. 82, at 6; R.

Doc. No. 76-7, at 48. See Hyde, 107 F. Supp. 2d at 993.

90 R. Doc. No. 76-1, at 15.

91 Id. at 15–16.

report which explains that there was no rapid deceleration or sudden motion that

would have caused anyone to lose their balance.92 Additionally, Florida Marine

argues that Harris’s walking into the galley without any indicia of an accident or

injury does not comport with an individual who has fallen down a set of stairs and

struck his head.93

In response, Harris argues that the overwatch video confirms a loud creaking

noise occurring when Captain Burns attempted to avoid the collision which confirms

his testimony that he heard a creak, felt a vibration, and felt the boat tip when his

accident occurred.94 Harris also highlights that there is no video evidence from the

M/V BIG D’s deck locker where the accident occurred.95 Harris also states that the

port aft video shows Harris disembarking the for medical treatment after the collision

and walking with a noticeable limp.96 Additionally, Harris argues that his medical

records demonstrate that the accident actually occurred. This is because his treating

orthopedic spine surgeon’s opinion is that the barge accident was the likely cause of

his injuries and he had no history of medical treatment or injury to his low back or

neck prior to the accident.97

The Court has reviewed all the video evidence and exhibits submitted by the

parties. The Court is also mindful that “in bench-trial cases the district court has

92 R. Doc. No. 74-1, at 7.

93 Id. at 8.

94 R. Doc. No. 82, at 18.

95 Id. at 10.

96 Id. at 9–10.

97 Id. at 13.

greater discretion to grant summary judgment.” Jones v. United States, 936 F.3d 318,

323 (5th Cir. 2019). The Court may “decide that the same evidence, presented to him

or her as a trier of fact in a plenary trial, could not possibly lead to a different result.”

Id. (quoting Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir.

2010)).

Accordingly, the Court finds that the petitioners are entitled to summary

judgment with respect to Harris’s Jones Act claims. While the Court is mindful of the

reasons that Harris might have been mistaken about the timing of the accident, the

Court notes that Harris has changed his allegations based on the video evidence

presented. Aside from seeking to recant his original testimony and providing evidence

that he suffered an injury at some point, Harris has provided no evidence that his

injuries occurred during or right before the collision. As Ingram and Florida Marine

note,98 the temporal connection of the injury to the accident alone is not sufficient to

sustain a Jones Act claim. See Johnson v. Horizon Offshore Contractors, Inc., No.

CIV.A. 06-10689, 2008 WL 916256, at *5 (E.D. La. Mar. 31, 2008) (Engelhardt, J.)

(explaining that a temporal relationship “is insufficient to show that there is more

than a mere possibility that a causal relationship exists between [the employer’s

alleged negligence and [claimant’s] injury”).

The Court also recognizes the extremely short time period during which the

evasive maneuver began and the moment at which Harris can be seen in the galley,

presenting with no visible signs of an injury. Harris’s suggestion that he was able to

98 R. Doc. No. 92 (Ingram’s reply), at 4; R. Doc. No. 94 (Florida Marine’s reply), at 2.

run back up the stairs and into the galley is plainly contradicted by his previous

deposition testimony. Furthermore, the video evidence during the evasive maneuver,

the statements by Captain Burns, and Captain Campana’s report contradict Harris’s

assertion that the vessel tipped or rocked in any manner that would cause someone

to lose their balance.

ii. Unseaworthiness Claim

Harris also alleges a claim for unseaworthiness against Florida Marine, as the

owner and operator of the M/V BIG D.99 “Unseaworthiness is a claim under general

maritime law based on the vessel owner's duty to ensure that the vessel is reasonably

fit to be at sea.” Gowdy, at 205 (quoting Beech v. Hercules Drilling Co., L.L.C., 691

F.3d 566, 570 (5th Cir. 2012)). “For a vessel to be found unseaworthy, the injured

seaman must prove that the owner has failed to provide a vessel, including her

equipment and crew, which is reasonably fit and safe for the purposes for which it is

to be used.” Jackson v. OMI Corp., 245 F.3d 525, 527 (5th Cir. 2001).

Harris “concedes that the [M/V] B[IG] D was not unseaworthy at the time of

the January 9, 2023 accident because Captain Burns’[s] negligence in causing the

accident was isolated.”100 Because unseaworthiness cannot be based on an “isolated,

personal negligent act,” the petitioners’ motions for summary judgment will be

granted with respect to the unseaworthiness claim. Usner v. Luckenbach Overseas

Corp., 400 U.S. 494, 500 (1971).

99 R. Doc. No. 10, ¶ XII.

100 R. Doc. No. 81, at 24.

iii. Maintenance and Cure Claim

The Court previously described the duty of maritime employers to pay

maintenance and cure. As mentioned, “liability for maintenance and cure is ‘in no

sense . . . predicated on the fault or negligence of the shipowner.’” Johnson, 599 F.

Supp. 2d at 726 (quoting Aguilar, 318 U.S. at 730).

In addition to his claims for negligence and unseaworthiness, Harris has also

asserted claims for maintenance and cure against Florida Marine.101 Harris’s

response to Florida Marine’s motion for summary judgment correctly notes that

Florida Marine did not address Harris’s claim for maintenance and cure. Florida

Marine agrees that maintenance and cure was not raised in its motion.102

Accordingly, the Court will not address this claim.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Harris’s motion in limine to exclude the expert opinions

of Captain Campana and Dr. Duplantier is GRANTED IN PART and DENIED IN

PART. The motion is GRANTED to the extent it seeks to exclude Captain

Campana’s opinion that Harris’s testimony is not corroborated by the video and

DENIED in all other respects.

101 R. Doc. No. 10, ¶ XVII.

102 R. Doc. No. 94, at 3.

IT IS FURTHER ORDERED that Ingram’s motion for summary judgment

with respect to Flynt’s claim for maintenance and cure is GRANTED. Flynt’s claim

for maintenance and cure is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Ingram’s and Florida Marine’s motions for

partial summary judgment with respect to Harris’s claims are GRANTED. Harris's

Jones Act negligence claims against Ingram and Florida Marine are DISMISSED

WITH PREJUDICE. Harris’s claim for unseaworthiness against Florida Marine is

also DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, May 30, 2024.

UNITED STATES DISTRICT JUDGE

31