United States District Court, W.D. Louisiana, Lafayette Division
RICHARD T. HAIK, Sr., District Judge.
Before the Court is a Motion for Partial Summary Judgment filed by defendant Triton Diving Services, LLC ("Triton") [Rec.Doc.21], plaintiff Jeremiah D. Gildea's ("Gildea") Opposition [Rec. Doc. 28], and Triton's Reply thereto [Rec. Doc. 34]. For the following reasons, Triton's motion will be denied.
Plaintiff was a commercial diver employed by Triton. In September 2009 Gildea was assigned to Triton's DSV MR. JOE, which was performing a subsurface platform inspection job for Devon Energy in West Cameron, Block 165 in the Gulf of Mexico. Plaintiff boarded the vessel on the evening of September 9, 2009 and retired to his bunk. The next morning plaintiff made a dive for approximately one hour. He then returned to the vessel and after spending 1½ to 2 hours in the decompression chamber, plaintiff ate a meal and returned to his bunk for a nap. Upon waking, plaintiff notice what looked like an insect bite on his right thigh. He reported the bite to his dive supervisor, Lee Wallmark, who said they would have to keep an eye on it. Upon returning to his bunk area, plaintiff found that at the foot of his bunk, an 18 inch by 18 inch section of the interior wall was missing leaving a space open to the cavity of vessel. When he asked a deck mate about the space, he was told a panel was being replaced or other work was being done in that area.
A few hours later, plaintiff noticed the bite appeared to have worsened significantly and was red and tender to the touch. By the next day, the bite had worsened and plaintiff could not put weight on his right leg without pain. Plaintiff showed the bite to the medical technician aboard the vessel, who noted it appeared to be a spider bite and photographed the area.
The vessel returned to shore on September 11 and plaintiff communicated with his superiors at Triton who instructed him to proceed to Houston and seek medical care. Plaintiff went directly to the Emergency Room a Memorial Hermann Hospital in Houston. The ER physician lanced and drained the abscess, took cultures and sent plaintiff home with antibiotics and pain medication. Two days later, plaintiff's condition had worsened and plaintiff had developed a high fever. He returned to the emergency room where he was admitted to the hospital. On September 14, the ER physicians informed plaintiff that the lab results indicated he had an MRSA(Methicillin Resistant Staphylococcus aureus ) "Staph" infection, which plaintiff reported to Triton. Plaintiff was administered intravenous antibiotics and morphine for three days and was discharged from the hospital on September 17. Plaintiff continued with an infectious disease expert on an outpatient basis. He treated the wound and continued on the antibiotic medication. A final culture of the would on October 21, 2009 found the would was no longer infected. Because he continued to experience soreness and pain in his right leg, plaintiff began treating with a pain management specialist who gave him a TENS devise to manage his leg pain. An MRI and ultrasound performed by the pain specialist revealed scar tissue at certain nerve bases in his leg.
Plaintiff filed this action seeking remedies pursuant to the Jones Act and the General Maritime Law.
II. Summary Judgment Standard
Summary judgment is warranted under Rule 56(c) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The movant must inform the court of the basis for its motion and identify those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323d 265 (1986). The non-moving party must then go beyond the pleadings and "identify specific evidence in the record and... articulate the precise manner in which that evidence supports his or her claim." Fuentes v. Postmaster Gen. of U.S. Postal Serv., 282 F.App'x 296, 300 (5th Cir.2008). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002).
Triton moves the Court to dismiss plaintiff's claims of negligence and unseaworthiness of the vessel, DSV MR. JOE. Jones Act negligence and unseaworthiness claims are separate causes of action and are treated as such. See Brunner v. Maritime Overseas Corp., 779 F.2d 296, 298 (5th Cir.1986). In this case, the basis of both the negligence and unseaworthiness claims by Gildea against Triton is that he was injured as a result of a spider bite while he was working aboard Triton's vessel.
Under the Jones Act, 46 U.S.C. § 30101, et. seq, a seaman's employer is liable for damages if the employer's negligence caused the seaman's injury. See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir.1997) ( en banc ). The employer is held to a standard of ordinary prudence under the circumstances. Id. "An employer has a continuing duty to provide a reasonably safe place to work and to use ordinary care to maintain the vessel in a reasonably safe condition.'" Lett v. Omega Protein, Inc., 487 Fed.Appx. 839, 843 (5th Cir.2012).
Triton contends that plaintiff cannot meet his burden of proving that the event leading to his MRSA infection at issue was reasonably foreseeable by Triton, and thus preventable. That is, "that Triton knew or should have known of the conditions that caused [the infection] and failed to take measure to prevent that event." In particular, Triton asserts that plaintiff cannot identify what specifically caused his infection, initially surmising it was a spider bite but later being ...