# In Re: The Matter of FMT Industries, LLC

> District Court, E.D. Louisiana · May 31, 2024

URL: https://www.frixlaw.com/law-library/cases/10190898

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 31, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10190898. Public record. Not legal advice.