Donahue

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ADAM DONAHUE CIVIL ACTION

VERSUS NO: 25-527

GNOTS-RESERVE, INC. SECTION “H”

ORDER AND REASONS

Before the Court are Defendant Gnot-Reserve Inc’s Motion for Partial

Summary Judgment on Maintenance and Cure Claims (Doc. 21); Motion for

Partial Summary Judgment on Liability (Doc. 24); and Motion to File

Counterclaim (Doc. 22). For the following reasons, the Motions are DENIED.

BACKGROUND

Plaintiff Adam Donahue is a Jones Act seaman employed by Defendant

Gnots-Reserve, Inc. aboard the M/V WISE ONE, a vessel owned and operated

by Defendant. Plaintiff alleges that, on August 24, 2024, he was injured aboard

the M/V WISE ONE while lifting a cable wire that became unraveled and

pinned him between the wire and the vessel, injuring his right hand and wrist.

Plaintiff was diagnosed with a hematoma on his right hand. Plaintiff brings

claims for Jones Act negligence, unseaworthiness, and maintenance and cure.

Now before the Court are three motions filed by Defendant. First,

Defendant moves for summary judgment on Plaintiff’s maintenance and cure

claim, asserting a McCorpen defense. Next, Defendant moves for partial

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summary judgment dismissal of Plaintiff’s Jones Act negligence and

unseaworthiness claims, arguing that Plaintiff cannot establish causation or

damages because his injury predated the accident at issue. Finally, Defendant

seeks to bring a counterclaim against Plaintiff for the recoupment of

maintenance and cure amounts paid to Plaintiff in light of his intentional

concealment of a prior injury. Plaintiff has opposed all of Defendant’s Motions.

This Court will consider each Motion in turn.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”1 A genuine issue

of fact exists only “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”2

In determining whether the movant is entitled to summary judgment,

the Court views facts in the light most favorable to the non-movant and draws

all reasonable inferences in his favor.3 “If the moving party meets the initial

burden of showing that there is no genuine issue of material fact, the burden

shifts to the non-moving party to produce evidence or designate specific facts

showing the existence of a genuine issue for trial.”4 Summary judgment is

appropriate if the non-movant “fails to make a showing sufficient to establish

1 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).

2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

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the existence of an element essential to that party’s case.”5 “In response to a

properly supported motion for summary judgment, the non-movant must

identify specific evidence in the record and articulate the manner in which that

evidence supports that party’s claim, and such evidence must be sufficient to

sustain a finding in favor of the non-movant on all issues as to which the non-

movant would bear the burden of proof at trial.”6 “We do not . . . in the absence

of any proof, assume that the nonmoving party could or would prove the

necessary facts.”7 Additionally, “[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion.”8

LAW AND ANALYSIS

A. Motion for Summary Judgment on Maintenance and Cure

Defendant moves for summary judgment dismissal of Plaintiff’s

maintenance and cure claim. “An employer owes damages for maintenance and

cure to any seaman who suffers injury during his employment on a vessel,

regardless of fault.”9 “A seaman’s employer may, however, rely on certain legal

defenses, such as the ‘McCorpen defense,’ to deny claims for maintenance and

cure.”10 In McCorpen v. Cent. Gulf S. S. Corp., the Fifth Circuit held that an

5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

6 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th

Cir. 2004) (citations modified).

7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

9 Foret v. St. June, LLC, No. 13–5111, 2014 WL 4539090, at *2 (citing Johnson v.

Cenac Towing, Inc., 544 F.3d 296, 301 (5th Cir. 2008)).

10 Dauzat v. Weeks Marine, Inc., No. 14-3008, 2016 WL 3167662, at *2 (E.D. La. June

7, 2016).

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employer is relieved of the obligation to pay maintenance and cure when the

seaman conceals or misrepresents the facts of a prior condition or injury in

connection with an application for employment.11 To prevail on this defense,

“an employer must show that (1) the claimant intentionally misrepresented or

concealed medical facts; (2) the non-disclosed facts were material to the

employer’s decision to hire the claimant; and (3) a connection exists between

the withheld information and the injury complained of in the lawsuit.”12 This

Court finds that material issues of fact regarding the first prong of the

McCorpen defense prevent entry of summary judgment on this issue.

To satisfy the “intentional concealment” prong of the McCorpen defense,

the Court need not make a finding of subjective intent.13 “[A] prospective

employee’s ‘[f]ailure to disclose medical information in an interview or

questionnaire that is obviously designed to elicit such information . . . satisfies

the intentional concealment requirement.’”14 Defendant argues that Plaintiff

11 McCorpen v. Cent. Gulf S. S. Corp., 396 F.2d 547, 549 (5th Cir. 1968); see also Brown

v. Parker Drilling Offshore Corp., 410 F.3d 166, 170–71, 173 (5th Cir. 2005) (quoting

McCorpen, 396 F.2d at 549 (“[W]here the [employer] requires a seaman to submit to a pre-

hiring medical examination or interview and the seaman intentionally misrepresents or

conceals material medical facts, the disclosure of which is plainly desired, then he is not

entitled to an award of maintenance and cure.”)).

12 Brown, 410 F.3d at 171.

13 Id. at 174.

14 Martinez v. Crosby Dredging, LLC, 686 F. Supp. 3d 479, 485 (E.D. La. 2023) (citing

Brown, 410 F.3d at 174 (quoting Vitcovich v. Ocean Rover O.N., No. 94-35047, 1997 WL

21205, at *3 (9th Cir. Jan. 14, 1997))).

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intentionally concealed an abnormal growth on his hand at his pre-

employment physical.15

Defendant presents evidence that Plaintiff sought emergency medical

care on April 7, 2023 for pain and swelling of the thenar region of his right

hand—the same region he alleges was injured aboard Defendant’s vessel. At

his hospital visit on April 7, 2023, doctors noted swelling and tenderness, but

no deformity. The radiologist reviewing an ultrasound of the area indicated

that the mass was “most consistent with a complex abscess or phlegmon.”16 A

CT scan noted a complex fluid collection in the soft tissue near the base of the

thumb measuring 2.1 x 1.3 x 3.7 cm and indicated a possible soft tissue

infection.17 Plaintiff was discharged with an antibiotic and told to follow up

with hand surgery. The final diagnosis noted by the emergency department

was “Hand pain, right-- Abscess vs phlegmon (Primary).”

On June 3, 2024, Plaintiff underwent a pre-employment physical

examination and completed a questionnaire. Defendant argues that Plaintiff

concealed his prior hand injury at this time when he answered “no” to a

question on the questionnaire that asked if he had ever had “Cancer, Tumor,

or Abnormal Growth.” Defendant contends that the April 7, 2023 injury was

an “abnormal growth” and that Plaintiff should have answered “yes.” The

Court finds that there is a material issue of fact regarding whether the April

7, 2023 injury constitutes an “abnormal growth.” Although the Plaintiff

15 Defendant also argues that Plaintiff concealed psychiatric/emotional problems.

However, Plaintiff acknowledged that he is not claiming any psychiatric injury in this matter,

so these issues are irrelevant. Doc. 26 at 4.

16 Doc. 21-4 at 5.

17 Doc. 21-4 at 7.

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undisputedly had a large mass on his hand, Plaintiff was not diagnosed with

an abnormal growth. Accordingly, a material issue of fact exists regarding

whether Plaintiff intentionally concealed his prior hand injury. Summary

judgment on Plaintiff’s maintenance and cure claim is therefore inappropriate.

B. Motion for Partial Summary Judgment on Liability

Next, Defendant moves for partial summary judgment on Plaintiff’s

Jones Act negligence and unseaworthiness claims, arguing that he cannot

show causation because his injury pre-existed his employment with Defendant.

“The standard of causation in Jones Act cases is not demanding.”18 A seaman

need only show that “employer negligence played any part, even the slightest,

in producing the injury.”19 “Although in Jones Act cases a ‘jury is entitled to

make permissible inferences from unexplained events,’ summary judgment is

nevertheless warranted when there is a complete absence of proof of an

essential element of the nonmoving party’s case.”20 Similarly, to succeed on an

unseaworthiness claim, the plaintiff need only prove that the alleged

unseaworthy condition “played a substantial part in bringing about or actually

causing the injury and that the injury was either a direct result of a reasonably

probable consequence of the unseaworthiness.”21

Defendant argues that Plaintiff cannot prove that his hand was injured

while handling a cable aboard Defendant’s vessel because his hand injury

predated his employment with Defendant and was present as late as the day

18 Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008).

19 Johnson v. Horizon Offshore Contractors, Inc., No. 06-10689, 2008 WL 916256, at

*4 (E.D. La. Mar. 31, 2008).

20 Id.

21 Braxton Thorngate v. Legacy Offshore, LLC, No. 17-03002, 2018 WL 2010124, at

*6 (E.D. La. Apr. 30, 2018).

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before the incident. In support, Defendant presents evidence that the accident

was unwitnessed, a picture taken of Plaintiff’s hand the day before the injury

reveals a swollen mass already present, Plaintiff denied to doctors that the

injury was caused by trauma (instead stating that it had developed over days

or had been there for several months), and Plaintiff visited the emergency room

in April 2023 for the same injury. In response, Plaintiff presents evidence that

no mass or abnormality of his right hand was noted at his pre-employment

physical just three months prior to the alleged injury, Plaintiff testified that

he had no problems with his hand prior to the alleged injury, photographs

taken of his hand on the date of the injury show bruising that was not present

in the photographs from the prior day, and the captain of the vessel

acknowledged that his hand appeared injured after the unwitnessed incident

and got him off the vessel to receive medical treatment. The Court finds that

from the facts presented by Plaintiff, a jury could reasonably infer that

Plaintiff’s hand was injured while moving a cable on the M/V WISE ONE.

Defendant’s view that Plaintiff is lying about the condition of his hand before

the alleged incident is a credibility determination best left to the jury. The facts

presented by Plaintiff are sufficient to create a material issue of fact as to the

cause of his injury. This is not a situation where there is a “complete absence

of proof” of causation such that summary judgment is warranted.22 Defendant

has not presented any other argument for the entry of summary judgment.

Defendant’s motion is therefore denied.

22 Horizon Offshore Contractors, Inc., 2008 WL 916256, at *4.

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C. Motion to File Counterclaim

Defendant moves for leave to file a counterclaim against Plaintiff to

recover the amounts it paid him in maintenance and cure benefits on the basis

that Plaintiff intentionally concealed his prior injury and fraudulently asserted

that he was injured aboard Defendant’s vessel. Defendant’s proposed

counterclaim requests relief in two forms: (1) a setoff against any judgment

awarded to Plaintiff on his other claims, and (2) recovery of the amounts paid

in maintenance and cure to Plaintiff pursuant to Louisiana Civil Code article

2299, which provides for recovery of a thing not due. Defendant’s counterclaim

also seeks attorney’s fees, costs, expenses, and interest.

As Plaintiff points out, however, the Fifth Circuit has expressly held that

“once a shipowner pays maintenance and cure to the injured seaman, the

payments can be recovered only by offset against the seaman’s damages

award—not by an independent suit seeking affirmative recovery.”23

Accordingly, Defendant is not entitled to bring a claim for recovery of

maintenance and cure payments or attorney’s fees.24 Defendant’s proposed

23 Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 728 (5th Cir. 2013); Crowe

v. Marquette Transportation Co. Gulf-Inland, LLC, No. CV 14-1130, 2015 WL 13529959, at

*1 (E.D. La. Mar. 10, 2015) (“For reasons passing understanding, however, Marquette

apparently feels compelled to pursue a remedy here that it must by now know is clearly

unavailable to it, i.e., a counterclaim against the plaintiff/Jones Act seaman for restitution of

maintenance and cure payments it claims were induced by fraud and attorneys’ fees and costs

associated with its defense of what it claims is a fabricated claim. Both of these species of

claims against seamen have been disallowed in this District and Circuit, yet Marquette

persists in its attempt to counterclaim against Crowe, without distinguishing any of the cases

that disallowed these claims.”).

24 Crowe, 2015 WL 13529959, at *2.

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counterclaim brings claims that are improper as a matter of law, and its motion

for leave to file it is therefore denied.

At most, Defendant may seek an offset of amounts paid in maintenance

and cure to Plaintiff against any judgment awarded to Plaintiff. The Court will,

therefore, “notwithstanding the expiration of the deadline for amendments to

pleadings, allow [Defendant] to amend its answer to assert a defense of set-off

for the payment of maintenance and cure which it believes Plaintiff was not

entitled to.”25

CONCLUSION

For the foregoing reasons, Defendant’s Motions are DENIED. Defendant

may amend its Answer within 14 days of this Order to assert the affirmative

defense of offset.

New Orleans, Louisiana this 20th day of April, 2026.

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g TRICHE LL 3

UNITED STATES DISTRICT JUDGE

25 Id. at *4, See Giles v. Gen. Elec. Co., 245 F.3d 474, 494 (Sth Cir. 2001) (holding that

offset is an affirmative defense). But see Sharpe v. Bertucci Contracting Co. LLC, No. CIV.A.

13-6101, 2014 WL 4396086, at *2 (E.D. La. Sept. 5, 2014) (‘It is important to note that the

Boudreaux opinion does not speak to the procedural aspects of the employer's ability to offset

past maintenance and cure payments against a seaman’s future damages award. Whether

such entitlement is to be asserted in the form of an affirmative defense in the defendant’s

Answer or by way of a post-Answer motion is not addressed.”).