Lopez v. Harvey Gulf International Marine, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ELVIS LOPEZ CIVIL ACTION

VERSUS NO. 23-6348

HARVEY GULF INTERNATIONAL MARINE, LLC SECTION “L” (3)

ORDER& REASONS

Before the Court is Defendant Harvey Gulf International Marine, LLC’s (“Harvey Gulf”)

Motion for Partial Summary Judgment on Maintenance and Cure. R. Doc. 15. Plaintiff Elvis Lopez

(“Lopez”) opposes the motion. R. Doc. 16. Harvey Gulf replied, R. Doc. 18, and Lopez filed a

supplemental memo, R. Doc. 22. After considering the record, the parties’ briefing, and applicable

law, the Court now rules as follows.

I. BACKGROUND

This case arises from an incident that occurred aboard the M/V Harvey Intervention when

Lopez was working for Harvey Gulf. R. Doc. 1 at 2. Lopez filed suit in this Court pursuant to the

Jones Act. Id. at 1; 28 U.S.C. § 1333; 46 U.S.C. § 30104.

On August 2, 2023, Lopez was offloading cargo from the vessel when he alleges that he

tripped on the vessel’s stairs and injured himself. R. Doc. 1 at 3. He contends that the accident

occurred because the stairs were not braced and secured to the vessel. Id. As a result of his fall,

Lopez tore the medial meniscus in his right knee and had to undergo surgery with the company

doctor. Id. He also states that Harvey Gulf did not perform neck and back MRIs on him despite

his complaints of pain in those areas. Id. According to Lopez, Harvey Gulf released him to return

to work without obtaining a fit for duty release from the doctor. Id.

Lopez states three causes of action in this case: (1) Jones Act negligence; and (2) general

maritime negligence and unseaworthiness and (3) a claim for maintenance and cure. Id. at 3-4.

First, Lopez contends that Harvey Gulf breached its duty under the Jones Act by failing to provide

a safe place for him to work. Id. at 4. Specifically, Lopez states that Harvey Gulf did not provide

safe and sufficient gear, properly secured stairways, proper safety equipment, and training, among

other missteps. Id. Lopez avers that these oversights were the proximate cause of his injuries. Id.

Second, Lopez argues that Harvey Gulf is liable to him for general maritime negligence

and unseaworthiness. Id. Lopez contends that Harvey Gulf breached its duties in several ways,

including, but not limited to failing to maintain a safe place to work, failing to shut down its

operations due to unsafe conditions, failing to properly supervise its employees’ work, and failing

to adequately train its crew. Id. at 5. In addition, Lopez asserts a claim for maintenance and cure.

Id. at 6.

In response, Harvey Gulf generally denies Lopez’s allegations. R. Doc. 9. Additionally,

Harvey Gulf asserts several affirmative defenses, including, but not limited to lack of control,

contributory negligence, lack of proximate cause, force majeure, preexisting medical conditions,

failure to mitigate damages, and open and obvious condition. Id. at 1-13.

II. PRESENT MOTION

Harvey Gulf filed a motion for partial summary judgment urging this Court to dismiss

Lopez’s claims for maintenance and cure. R. Doc. 15. It argues that Lopez did not disclose prior

medical issues with his right knee, neck, and back and therefore he is precluded from receiving

maintenance and cure under Fifth Circuit precedent. R. Doc. 15-5 at 1 (citing McCorpen v. Central

Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968)). First, Harvey Gulf contends that Mr. Lopez

intentionally concealed these injuries during his hiring process because he filled out a medical

questionnaire in which he falsely denied ever having neck, back and knee issues or undergoing

various tests such as MRIs and CT scans. R. Doc. 15-5 at 12-14. Second, it argues that these

injuries would have been material to its decision to hire Lopez. Id. at 15. Finally, it argues that

there is a causal relationship between Lopez’s prior injuries and those that form the basis of his

present claim. Id. at 16. It notes that his prior injuries were to the neck, back, and right knee, which

are the same areas to which he alleges injury in the present case. Id. In addition to its request that

Lopez not receive any further maintenance and cure benefits, Harvey Gulf seeks a credit against

any damages award Lopez might receive reimbursing it for the maintenance and cure benefits it

has paid thus far. Id .at 16-17.

In opposition, Lopez argues that his non-disclosure of prior medical issues does not

preclude him from receiving maintenance and cure. R. Doc. 16 at 1-2. First, he contends that his

non-disclosure was not intentional, as he misunderstood the questionnaire about his medical

background which he filled out at hiring. R. Doc. 16 at 5. He contends that the questionnaire’s use

of the term “in the past” was confusing, and he believed he was only being asked about present

conditions. Id. Second, he argues that Harvey Gulf would not have passed on his employment even

if they had known about his prior medical issues because he had a good employment record at

Harvey Gulf. Id. at 6. Finally, he avers that there is no causal connection between his past injuries

and the injuries underlying this suit. Id.

III. APPLICABLE LAW

a. Summary Judgment

Summary judgment is proper when “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must view

the evidence in the light most favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist.,

113 F.3d 528, 533 (5th Cir. 1997). Initially, the movant bears the burden of presenting the basis

for the motion; that is, the absence of a genuine issue as to any material fact or facts. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to come forward

with specific facts showing there is a genuine dispute for trial. See Fed. R. Civ. P. 56(c); Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “A dispute about a material

fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation

omitted). If the nonmovant fails to respond to the motion, a court may not “enter a ‘default’

summary judgment” for the movant, however a court is permitted “to accept [movant’s] evidence

as undisputed.” Preston v. Hertz Corp., 2003 WL 22938921, at *1 (N.D. Tex. Nov. 26, 2003);

Thorn v. RaceTrac Petroleum Inc., 2022 WL 965095, at *1 (5th Cir. Mar. 30, 2022) (“After

[plaintiff] failed to file a timely response, the district court was entitled to accept as undisputed the

facts offered in support of [defendant’s] summary-judgment motion.”).

b. Maintenance and Cure

Under general maritime law, a shipowner has a duty to provide maintenance and cure to a

seaman who becomes ill or injured while in the service of the ship. Pelotto v. L & N Towing Co.,

604 F.2d 396, 400 (5th Cir. 1979); Lovell v. Master Braxton, LLC, No. 15-3978, 2016 WL

6819043, at *5 (E.D. La. Nov. 18, 2016). “Cure” is the payment of medical services until the

seaman reaches maximum medical improvement. Pelotto, 604 F.2d at 400. “Maintenance”

provides a seaman with “food and lodging of the kind and quality he would have received aboard

the ship.” Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002). “To establish a claim for

maintenance and cure, a seaman need only show that his injuries occurred while in the service of

the vessel.” Lovell, No. 15-3978, 2016 WL 6819043, at *5; Boudreaux, 280 F.3d at 468.

c. The McCorpen Defense

Recovery for maintenance and cure is permitted for injuries or illnesses that predate the

seaman’s employment “unless that seaman knowingly or fraudulently concealed [their] condition

from the vessel owner.” Jauch v. Nautical Services, Inc., 470 F.3d 207, 212 (5th Cir. 2006). An

employer may rely on the legal defense that the seaman willfully concealed a preexisting medical

condition to deny a maintenance and cure claim. McCorpen v. Central Gulf S. S. Corp., 396 F.2d

547, 548-49 (5th Cir. 1968). An employer successfully asserts a McCorpen defense and is relieved

from its duty to pay maintenance and cure if it can prove that: (1) the plaintiff knowingly concealed

or intentionally misrepresents a medical condition; (2) the medical condition was material to the

employer’s decision to hire the plaintiff; and (3) there is a causal link between the pre-existing

condition and the injury at issue. Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th

Cir. 2005).

IV. DISCUSSION

Here, Harvey Gulf asserts the McCorpen defense, arguing that Mr. Lopez’s non-disclosure

of certain prior injuries and medical procedures on his employment questionnaire prohibits him

from recovering maintenance and cure.

a. Mr. Lopez Knowingly Concealed Prior Medical Conditions From Harvey

Gulf.

The first element of the McCorpen defense is that the plaintiff knowingly or intentionally

concealed a medical condition from their employer. 396 F.2d at 548. In Brown v. Parker Drilling

Offshore Corp., the Fifth Circuit explained that “[t]he ‘intentional concealment’ element does not

require a finding of subjective intent” and that “[f]ailure to disclose medical information in an

interview or questionnaire that is obviously designed to elicit such information therefore satisfies

the ‘intentional concealment’ requirement.” Id. at 173-74 (quoting Vitcovich v. Ocean Rover O.N.,

No. 94-35047, 1997 WL 21205, at *3 (9th Cir. Jan. 14, 1997)). Similarly, this Court, applying

McCorpen, has held that failing “to truthfully answer medical questions or expound upon a

condition when requested by the employer in a medical questionnaire test can forfeit a seaman’s

right to maintenance and cure.” Wimberly v. Harvey Gulf International Marine, LLC, 126 F. Supp.

3d 725, 732 (E.D. La. 2015) (citing Lett v. Omega Protein, Inc., 487 F. App’x 839, 848-49 (5th

Cir. 2012)). Because the question of knowing concealment is an objective inquiry, not a credibility

determination, this question is properly decided on summary judgment. See Brown, 410 F.3d at

174-75.

Here, Mr. Lopez objectively concealed his prior injuries. The questionnaire Harvey Gulf

administered to Mr. Lopez during the hiring process was plainly designed to elicit information

about prior back, knee, and joint issues. R. Doc. 15-10. For example, it asked, “Have you ever

been diagnosed with or had any of the following medical conditions?” such as “back trouble,”

“knee injuries” and “neck trouble.” Id. at 2. It separately asks, “Have you ever been seen by a

Chiropractor, Doctor, or other healthcare provider for treatment to your back, neck, or spine?” Id.

at 2. These questions are clearly worded, and the Court finds that the questionnaire was “obviously

designed to elicit” information about prior knee, back, and neck injuries. Brown, 410 F.3d at 174.

Mr. Lopez answered “no” as to all of these questions despite having an extensive history of neck,

back and knee injuries spanning over twenty years and resulting from at least two prior work

accidents.1 Furthermore, the questionnaire clearly asked, “Have you ever had any of the following

1 See R. Doc 15-7 and 15-8 (a past questionnaire dated November 8, 2000 where Mr. Lopez reported a

“trick knee”); R. Doc. 15-11 (medical records diagnosing Mr. Lopez with “right knee pain/trauma” in 2014); R.

Doc. 15-12 and 15-13 (medical records from 2016 where Mr. Lopez reported that had experienced a work accident

in which he fell “onto his back” after which he had “progressive issues in his lumbar spine and cervical spine” and

“a popping with his neck if he flexes or extends his head”); R. Doc. 15-14 (medical records from 2017 explaining

that Mr. Lopez’s work van was rear-ended, after which he experienced “a headache since the time of the accident

and neck pain and back pain” described as a “burning sensation.”).

Plaintiff contends that he disclosed his tricked knee to Harvey Gulf and cites Plaintiff’s Exhibit 6. R. Doc.

16 at 5. However, this exhibit is a prior employment questionnaire administered by Mr. Lopez’s former employer,

tests?” including “back or neck X-ray,” “other X-ray” “MRI Scan” and “CT Scan.” R. Doc. 15-10

at 3. Mr. Lopez marked “no” for each of these questions. Id. However, Harvey Gulf submits

evidence showing that he had, if fact, undergone at least five of these tests at the time.2 The Court

therefore finds that Mr. Lopez intentionally concealed this medical history from Harvey Gulf.

b. The Information Mr. Lopez Did Not Disclose Would Have Been Material to

Harvey Gulf’s Hiring Decision.

Courts have construed the McCorpen materiality element broadly and have explained that

“[t]he fact that an employer asks a specific medical question on an application, and that the inquiry

is rationally related to the applicant’s physical ability to perform his job duties, renders the

information material for the purpose of this analysis.” Brown, 410 F.3d at 175.

Here, prior knee, neck, and back injuries are rationally related to Lopez’s ability to do the

job of a seaman. Harvey Gulf provides an affidavit of its Executive Vice President confirming that

such injuries would, in fact, have mattered to their hiring decision. R. Doc. 15-18 at 3.

Furthermore, the affidavit describes that the duties of a seaman include “performing manual labor

duties aboard vessels” and “loading and unloading cargo from decks.” R. Doc. 15-18 at 2. Lopez

himself alleges in his complaint that his present injury occurred when he tripped while “off-

loading” a vessel. R. Doc. 1 at 3. Prior back, neck, and knee injuries are thus rationally related to

a person’s ability to perform manual labor and load cargo.

Lopez contends that the materiality factor is not met because he performed well in his job.

R. Doc. 16 at 6. However, Lopez’s post-hire performance is simply not relevant to whether Harvey

Job Corps, and dated to November 8, 2000. Mr. Lopez’s employment questionnaire submitted to Harvey Gulf does

not disclose the tricked knee. R. Doc. 15-10.

2 See R. Doc. 15-11 (right knee X-ray taken in 2014); R. Doc. 15-13 (three MRIs of the spine taken on

August 31, 2016); R. Doc. 15-14 (CT Scan of the head taken on December 13, 2017).

Gulf would have made the same hiring decision. Accordingly, Harvey Gulf has established this

element.

c. Mr. Lopez’s Prior Undisclosed Injuries are Causally Connected to His Present

Injuries.

Last, courts require a “connection between the withheld information and the injury which

is eventually sustained” to show the causation element. Brown, 410 F.3d at 175-76. While the

injury need not be identical, courts have found that an injury to the same body part is sufficient to

show a causal link. Id. at 176 (finding that a history of lumbar injuries were causally connected to

the plaintiff’s back injury); Weatherford v. Nabors Offshore Corp., No. CIV.A. 03-0478, 2004 WL

414948, at *3 (E.D. La. Mar. 3, 2004) (finding a causal link where the past injury was to plaintiff’s

lower back and present injury was also to his back); Matter of L.S.K. Towing, Inc., No. CIV. A.

94-4134, 1995 WL 350039, at *2 (E.D. La. June 6, 1995) (holding that “the causal link seems

clear” where “plaintiff’s prior injury was also to the left knee”). Here, Mr. Lopez’s prior injuries

were to the same three areas of the body as his present injuries: the right knee, neck, and back.3

Accordingly, this element is met.

d. Harvey Gulf is Entitled to Offset of Previously Paid Maintenance and Cure

Benefits Should Mr. Lopez Make a Damages Recovery.

The Fifth Circuit has held that an employer who raises a successful McCorpen defense

cannot bring an independent suit for affirmative recovery for previously made maintenance and

cure damages. Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 728 (5th Cir. 2013).

3 See R. Docs. 15-7, 15-8, and 15-11 (injuries to the right knee); R. Docs. 15-13 and 15-14 (injuries to

neck); R. Doc. 15-13 and 15-14 (injuries to back). Plaintiff’s complaint mentions three areas of the body: the “right

knee,” “neck” and “back.” R. Doc. 1 at 3.

However, “the payments can be recovered [by] offset against the seaman’s damages award.” Id.

According, Harvey Gulf will be entitled to an offset in the amount of paid maintenance and cure

benefits should Mr. Lopez recover any damages.

New Orleans, Louisiana, this Ist day of July, 2024.

HONORABLE ELDON E. FALLON