Provost v. Cheramie Marine, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHRISTIAN PROVOST CIVIL ACTION

VERSUS NO. 24-1735

CHERAMIE MARINE, LLC SECTION “R” (1)

ORDER AND REASONS

Before the Court is defendant Cheramie Marine, LLC’s (“Cheramie

Marine”) opposed1 motion for partial summary judgment.2 For the following

reasons, the Court grants the motion.

I. BACKGROUND

This case arises from injuries that plaintiff Christian Provost allegedly

suffered while working for defendant Cheramie Marine. In November 2023,

Provost applied for a job as a deckhand aboard the M/V MARIE

CHERAMIE.3 As part of the required pre-employment physical, Provost

filled out a medical questionnaire and marked that he did not have, nor

previously had, various medical conditions including “depression,” a “history

of suicide attempts,” “anxiety,” “other psychiatric disease,” or “any

1 R. Doc. 11.

2 R. Doc. 8.

3 R. Doc. 18-15 ¶ 15.

hospitalization.”4 But in fact, Provost had an extensive history of depression,

anxiety, concussions, bipolar disorder, and suicidality, including a suicide

attempt that resulted in his psychiatric hospitalization.5

On January 26, 2024, Provost allegedly crushed his right hand in an

accident while disentangling chains between two ship fenders.6 Provost

asserts that this accident caused him further physical injuries to his neck,

back, shoulder, and knee, as well as psychological injuries including post-

traumatic stress disorder (“PTSD”), depression, anxiety, and complex

regional pain syndrome.7 On July 11, 2024, Provost sued Cheramie Marine

under the Jones Act and general maritime law, asserting claims of

negligence, unseaworthiness, and maintenance and cure.8

Cheramie Marine now moves for partial summary judgment and seeks

dismissal of Provost’s claim for maintenance and cure as it relates to his

alleged psychological injuries under McCorpen v. Central Gulf Corp.,

396 F.2d 547 (5th Cir. 1968).9 Provost opposes the motion.10 The Court

considers the parties’ arguments below.

4 R. Doc. 8-15 ¶¶ 17-19.

5 Id. ¶¶ 1-11, 13-14.

6 R. Doc. 1 ¶ 4.

7 Id. ¶ 8.

8 See id.

9 See R. Doc. 8.

10 See R. Doc. 11.

II. LEGAL STANDARD

Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

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

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

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). All reasonable

inferences are drawn in favor of the nonmoving party, but “unsupported

allegations or affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a motion for

summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216

(5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075

(noting that the moving party’s “burden is not satisfied with ‘some

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

‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence” (citations

omitted)). “No genuine dispute of fact exists if the record taken as a whole

could not lead a rational trier of fact to find for the non-moving party.” EEOC

v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

III. DISCUSSION

Seamen have a right to maintenance and cure for injuries that they

suffer in the course of their service on a vessel, regardless of whether the

shipowner was at fault or the vessel was unseaworthy. See O’Donnell v.

Great Lakes Dredge & Dock Co., 318 U.S. 36, 41-43 (1943). “Maintenance”

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

course of fulfilling his duties to the ship. See Atl. Sounding Co. v. Townsend,

557 U.S. 404, 413 (2009). “Cure” is the right to necessary medical services.

Id. Before a plaintiff can recover maintenance and cure, he bears the burden

of proving the following facts: (1) he was working as a seaman, (2) he became

ill or was injured while in the vessel’s service, and (3) he lost wages or

incurred expenses stemming from treatment or injury. Thomas J.

Schoenbaum, 1 Admiralty & Mar. Law, § 6:28 (6th ed.).

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

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

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

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

also Bodden v. Prof’l Divers of New Orleans Inc., No. 01-795, 2001 WL

1223589, at *2 (E.D. La. Oct. 12, 2001) (discussing the McCorpen defense).

Specifically, if the shipowner requires a prospective seaman to undergo a

pre-hiring medical evaluation, and the seaman either intentionally

misrepresents or conceals material medical facts, then the seaman is not

entitled to an award of maintenance and cure. See McCorpen, 396 F.2d at

549. For a shipowner to establish the McCorpen defense to deny a seaman’s

maintenance and cure claim, the employer must show that: (1) the seaman

intentionally misrepresented or concealed medical facts, (2) the

misrepresented or concealed facts were material to the employer’s hiring

decision, and (3) there exists a causal link between the pre-existing disability

that was concealed and the disability suffered during the voyage. Id.; see also

Brown v. Parker Offshore Drilling, 410 F.3d 166, 11 (5th Cir. 2005) (finding

the McCorpen defense established).

Plaintiff does not contest that he intentionally concealed his pre-

existing psychological conditions and admits that he had a history of

suicidality, depression, anxiety, and psychiatric hospitalization, which he

failed to disclose on his pre-employment questionnaire.11 See Meche v.

Doucet, 777 F.3d 237, 248 (5th Cir. 2015) (holding that because plaintiff

“‘knew that the information on the application was not correct,’ [he]

intentionally concealed his prior injuries as a matter of law” (quoting

Caulfield v. Kathryn Rae Towing, No. 88-5329, 1989 WL 121586, at *2

(E.D. La. June 6, 1989)). Plaintiff also does not contest that these concealed

11 R. Doc. 8-15 ¶¶ 1-11 (describing plaintiff’s history of mental illness),

¶¶ 15-19 (describing plaintiff’s misrepresentation of history of mental

illness during pre-employment physical); see R. Doc. 11-8 ¶¶ 1-11, 13-19

(admitting to defendant’s statements of uncontested material facts).

conditions were material to defendant’s decision to hire him and admits that

Cheramie Marine would not have cleared him for duty if he had disclosed his

history of anxiety and depression, nor hired him if he had disclosed his prior

suicide attempt.12 See Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th

Cir. 2006) (per curiam) (holding that seaman’s nondisclosure of medical

history is material when disclosure “would have either prevented his

employment, or at least delayed it”). The Court therefore finds that

defendant has established that it is entitled to summary judgment on the first

two prongs of the McCorpen test.

The only remaining question for the Court is whether defendant has

shown a “causal link between the pre-existing disability that was concealed,

and the disability incurred during the voyage.” Brown, 410 F.3d at 176

(citation omitted). The Fifth Circuit finds a causal link when the injuries at

issue involve the same body part. See id. In Brown v. Parker Drilling

Offshore Corp., 410 F.3d 166 (5th Cir. 2005), the Fifth Circuit found there to

be a sufficient causal link when the plaintiff’s “prior back strains were to the

same lumbar-spine region as his current back problem.” Id. at 176. In doing

12 R. Doc. 8-15 ¶¶ 20-24 (describing how personnel manager and nurse

practitioner would not have hired plaintiff if history of mental illness

was known); see R. Doc. 11-8 ¶¶ 20-24 (admitting to defendant’s

statements of uncontested material facts).

so, the Fifth Circuit held that that the defendant “need not prove that the

prior injuries are the sole cause[]” of plaintiff’s current condition. Id.; see

also Jauch, 470 F.3d at 212-13 (finding requisite connection when new back

injury was “virtually identical” to previous back injury). Following Brown,

courts in the Fifth Circuit will therefore find that “the new injury is related to

the old injury, irrespective of their root causes,” when “the old injury and the

new injury affected the same body part.” Johnson v. Cenac Towing, Inc.,

599 F. Supp. 2d 721, 728-29 (E.D. La. 2009) (surveying the application of the

causality requirement in the Fifth Circuit); see also Boatright v. Raymond

Dugat Co., L.C., 2009 WL 138464, at *4 (S.D. Tex. 2009) (finding requisite

connection when plaintiff’s “prior and current injuries [were] both to his

right hip”); Bergeron v. B & J Martin, Inc., 2005 WL 3542898, at *4 (E.D.

La. 2005) (finding requisite connection when plaintiff experienced the “same

breathing difficulties” before employment and aboard the vessel).

Defendant contends that this ‘same body part’ test applies equally to

psychological conditions and physical injuries, and therefore that plaintiff’s

psychiatric history should preclude maintenance and cure for any

psychological injuries he allegedly incurred while working.13 Plaintiff’s brief

concedes the clear causal link between his pre-existing anxiety and

13 R. Doc. 8-1 at 17-18.

depression and the anxiety and depression that he alleges to have sustained

in the accident, precluding his claims for maintenance and cure for these

conditions.14 Therefore, defendant is entitled to the McCorpen defense for

plaintiff’s maintenance and cure claims for anxiety and depression. But

plaintiff argues that the other psychological ailments he allegedly incurred in

the accident are distinct from and unrelated to his pre-existing psychological

conditions.15 Specifically, he identifies several diagnoses for which he claims

to be entitled to maintenance and cure, including complex regional pain

syndrome (“CRPS”), neurogenic thoracic outlet syndrome (“TOS”) of his

right brachial plexus, and PTSD.16 Defendant acknowledges that CRPS and

TOS are physical pain conditions, and they are not the subject of its motion

for partial summary judgment.17 Therefore, the Court must consider only

whether there is a causal link between plaintiff’s pre-existing anxiety and

depression and the PTSD that he allegedly suffered in the accident.

Few courts have considered McCorpen in the context of mental illness.

In Kaminaga v. Bisso Marine, No. 13-616, 2013 WL 6858701 (E.D. La. Dec.

14 R. Doc. 11 at 14 (arguing only that the McCorpen defense “does not

preclude his psychological treatment” for conditions that are

“independent and different diagnoses from depression and anxiety”

and “hav[e] no relation to depression and anxiety”).

15 R. Doc. 11 at 14-15.

16 Id. at 9-13.

17 R. Doc. 12-1 at 1.

30, 2013), this Court found a sufficient “causal link” to grant defendant’s

unopposed motion for summary judgment when evidence established that

the “PTSD [plaintiff] incurred after [an] explosion” was “related to his pre-

existing PTSD.” Id. at *1-2. And in Collins v. Cenac Marine Services, LLC,

No. 16-1662, 2017 WL 5625873 (E.D. La. Nov. 22, 2017) (Africk, J.), a

different section of the Eastern District of Louisiana held that plaintiff could

not “recover maintenance and cure for mental health conditions preexisting

[his] employment” when “both parties agree[d]” that plaintiff’s “various pre-

existing injuries to his mind and/or psyche affect the same area of his body

that he claims he injured/re-aggravated while working” for defendant. Id.

at *5.

This Court is uneasy about applying the “same body part” test to

disqualify any two conditions that fall under the rubric of psychiatric

conditions. The Diagnostic and Statistical Manual of Mental Disorders

(“DSM-5-TR”) identifies a broad range of well over 250 psychiatric disorders

ranging from eating disorders to schizophrenia to agoraphobia and

narcolepsy.18 This diversity suggests that facile application of the same body

18 American Psychiatric Association (2022); see also Alina Suris, et al.,

The Evolution of the Classification of Psychiatric Disorders,

6 Behavioral Sci. 5, 12 (2016) (describing the historical evolution of

psychiatric diagnostic categories and criteria in DSM editions).

part test in the context of psychological conditions could result in the linkage

of conditions that have no rational connection. But nevertheless, because

there is sufficient evidence here to demonstrate a relationship between

plaintiff’s history of anxiety and depression and his alleged PTSD, the Court

need not determine whether the “same body part” test forecloses

maintenance and cure for all psychological injuries when a plaintiff fails to

disclose pre-existing psychological conditions. The testimony of plaintiff’s

own experts demonstrates the substantial likelihood that his undisclosed and

asserted psychological conditions are interrelated.

Dr. John Thompson, plaintiff’s expert psychiatrist, describes the

plaintiff experiencing “fear,” “anxiety,” “intrusive thoughts,” and “distressing

recollections,” which form the basis of his PTSD diagnosis.19 But Dr.

Thompson opines that plaintiff’s “preexisting psychiatric issues including a

brief hospitalization after a breakup as well as physical and sexual abuse as

a child . . . coupled with plaintiff’s accident . . . likely results in his present

functioning.”20 See, e.g., Meche, 777 F.3d at 249 (finding that a “connection

exists between the withheld information and the injury complained of in the

lawsuit” when defendant “aggravated his pre-existing lumbar illness” while

19 R. Doc. 8-3 at 3-7.

20 Id. at 8.

lifting a hatch cover on board); Luwisch v. Am. Marine Corp., No. 17-3241,

2019 WL 1435932, at *7-10 (E.D. La. March 31, 2019) (holding that

defendant was “entitled to the McCorpen defense and [was] relieved of its

duty to provide maintenance and cure” for accident that “exacerbated

Plaintiff’s [undisclosed] pre-existing” condition), aff’d, 956 F.3d 320 (5th

Cir. 2020). Likewise, Dr. John Macgregor, plaintiff’s other expert

psychiatrist, opined that plaintiff’s PTSD, panic disorder, and major

depressive disorder “were interrelated.”21 There is no genuine dispute of

material fact that defendant’s incurred psychological injuries related to the

pre-existing psychiatric conditions that he failed to disclose. Therefore, the

Court finds that defendant satisfies its burden as to the third prong of the

McCorpen test. Defendant is entitled to summary judgment for plaintiff’s

claim to maintenance and cure for anxiety, depression, and PTSD.

21 R. Doc. 11-5 at 5.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS defendant’s motion for

partial summary judgment and DISMISSES plaintiffs claims for

maintenance and cure for anxiety, depression, and PTSD WITH

PREJUDICE.

New Orleans, Louisiana, this__2nd__ day of January, 2025.

bern Viren

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

13