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Andrews v. Lomar Corp. Ltd.

United States District Court, E.D. Louisiana

June 19, 2017


         SECTION F



         Before the Court is a motion for summary judgment and motion to exclude Dr. Bourgeois's medical causation opinion, filed by defendants MS Maine Trader GMBH & Co. and Lomar Shipping LTD. For the reasons that follow, the motion is GRANTED.


         This litigation arises out of a Mississippi River pilot's allegations that he suffered a career-ending hip injury climbing an unsafe ladder while boarding the MARINE TRADER to take over piloting duties.

         Craig C. Andrews worked as a river pilot from 1990 until he retired in June or July 2016. Throughout his 25 year career, he regularly climbed ladders to board thousands of ships.

         In 2009, Dr. Chad Millet performed bilateral hip replacements on Mr. Andrews.[1] Mr. Andrews continued working as a full-time pilot with his artificial hips. When Dr. Millet saw Mr. Andrews on August 24, 2010, x-rays showed that the acetabular component of the left hip replacement (the socket portion made up of a metal shell and a polyethylene liner) had some verticality to it. Dr. Millet was concerned about possible polyethylene wear. If the polyethylene liner wears, Dr. Millet has opined, this can cause metal rubbing on metal, which can lead to a fracture of the acetabular component.

         Sometime in December 2015, Mr. Andrews called to schedule an appointment with Dr. Millett; the appointment was scheduled for January 28, 2016. Four days before his pre-scheduled appointment with Dr. Millet, on January 24, 2016, Mr. Andrews was assigned to pilot the M/V TRADER in Pilottown, Louisiana in Plaquemines Parish to the Port of New Orleans. Mr. Andrews boarded the MAINE TRADER midstream using an industry-standard combination ladder, which employed both a pilot ladder (also known as a Jacob's ladder) and the ship's accommodation ladder. He stepped from the pilot boat onto the ship's pilot ladder and started climbing up. As he climbed up the pilot ladder, he reached a point where he had to transition from the top of the pilot ladder onto the ship's accommodation ladder by stepping with his right foot onto the accommodation ladder's lower platform. After he stepped onto the accommodation ladder platform and started walking up the steps of the accommodation ladder, he says he heard clicking in his left hip.[2] He did not feel any pain at that time. Nor did he complain to the ship's crew. He never requested that an accident report be completed. Instead, he continued working without complaint.

         Mr. Andrews safely piloted the vessel for seven hours before he left the ship by climbing down the same combination ladder midstream at Poydras. Mr. Andrews did not seek medical treatment when he left the ship. But four days later, he did go to his previously-scheduled January 28, 2016 appointment with Dr. Millet. On the sign-in sheet for his January 28 appointment with Dr. Millet, Mr. Andrews indicated that his visit was not the result of an injury, it was not work-related, and that his symptoms had begun two months earlier. When he saw Dr. Millet, Mr. Andrews complained of clicking and triggering in his left hip, which he stated had begun gradually, without injury, about two months earlier.[3] Mr. Andrews did not advise Dr. Millet that the onset of his symptoms had occurred while boarding a ship earlier that week.[4]

         Left hip x-rays taken on January 28, 2016 show significant wear of the polyethylene liner with some superior migration of the head and some subluxation (in layman's terms, the head was not located in the middle of the socket). As a result, almost one month later on February 24, 2016, Dr. Millet performed left hip revision surgery, which involved replacing the socket and ball in the left hip. During the surgery, Dr. Millet observed that the superior portion of the polyethylene liner was fractured; such a fracture could be caused by a high-impact injury, or steady wear over time. Dr. Millet could not tell what caused the fracture by observing it during the surgery, but Dr. Millet has opined that he believes that the fracture caused Mr. Andrews's left hip clicking and pain that Mr. Andrews had told him had begun two months before his late January 2016 appointment.

         Dr. Millet saw Mr. Andrews twice more in 2016: on March 22 and on May 24. When Mr. Andrews again completed a sign-in sheet for the May 24 visit, he stated on that form (again) that his visit was not due to an injury and was not work-related. Dr. Millet made no determination as to Mr. Andrews's physical limitations or whether he could resume work.

         To determine if he could be released back to work after his hip revision surgery, Mr. Andrews had an appointment on March 25, 2016 with Dr. Bourgeois, who was trained in general surgery and currently practices occupational medicine and dive medicine. Dr. Bourgeois did not believe that Mr. Andrews could return to work at that time. A few weeks later on April 13, 2016, Dr. Bourgeois completed a disability packet for Sun Life Assurance Company of Canada, Mr. Andrews's disability insurer, stating that Mr. Andrews was permanently disabled from working in his previous position as a river pilot. Dr. Bourgeois sent a letter to the insurance company the next day, stating that Mr. Andrews is not fit for duty as a river pilot and that this status is “more likely than not” permanent.[5] Nine days later, however -- when Mr. Andrews returned to see Dr. Bourgeois on April 22, 2016 to undergo a Coast Guard physical examination -- Dr. Bourgeois declared to the Coast Guard that Mr. Andrews “passed all aspects of the USCG physical requirements.” That same day, Dr. Bourgeois declared that Mr. Andrews passed all aspects of a functional capacity evaluation with no restrictions. Dr. Bourgeois has not seen Mr. Andrews since April 22, 2016. A couple months later, Mr. Andrews retired from river piloting.

         On August 22, 2016, Mr. Andrews and his wife, Beverly R. Andrews, sued Lomar Corp. Ltd., Lomar Shipping Ltd., and Hapag-Lloyd, AG in state court, seeking to recover damages for his allegedly career-ending hip injury. The plaintiffs allege that the pilot ladder of the MAINE TRADER was rigged in violation of federal laws and regulations; the defendants were negligent in rigging the ladder in violation of safety standards; the defendants negligently failed to warn him of the ladder's unsafe condition; and the MAINE TRADER was unseaworthy. Mr. Andrews seeks to recover damages for his loss of wages, disability, disfigurement, and future pain and suffering, and his wife seeks to recover for loss of consortium. Invoking the Court's diversity jurisdiction, the case was removed to this Court. On September 29, 2016, the plaintiffs amended the complaint to name the correct entities as defendants, MS MAINE TRADER GMBH & Co. (as owner of the MAINE TRADER) and Lomar Shipping LTD. and, thereafter, moved for and was granted dismissal of Hapag-Lloyd AG.

         On January 24, 2017, Mr. Andrews saw Dr. Millet, who opined that Mr. Andrews was “doing fine with his hip” such that he could resume the same activities he was able to do after his first hip replacement surgery.

         Dr. Kevin Watson, an orthopedist, performed an independent medical examination of Mr. Andrews at the defendants' request on January 26, 2017. Dr. Watson has opined that Mr. Andrews's left hip revision surgery was due to significant polyethylene wear “that is not related to any injury at work...I do not see medical causation for his left hip problem due to work injury.” Dr. Millet's deposition was taken on February 22, 2017. Like Dr. Watson, Dr. Millet testified that the left revision surgery he performed was necessary due to polyethylene wear rather than a specific accident. Dr. Millet has stated that he expected that Mr. Andrews would need a revision surgery following his 2009 hip replacements because he was young when he had his hips replaced, he was active, and he was overweight. That Mr. Andrews was overweight, combined with the verticality of the acetabular component in the left hip to accelerate wear, Dr. Millet has opined, the seven-year period between the left hip replacement surgery and the revision surgery was within the time range he would expect to see. Dr. Millet has specifically testified that he cannot causally relate Mr. Andrews's left hip revision to the alleged incident boarding the MAINE TRADER on January 24, 2016.[6]

         During his deposition on March 7, 2017, Dr. Bourgeois admitted that he is not familiar with Mr. Andrews's condition before he climbed the ladder and, therefore, he has no opinion on whether climbing the ship's ladder necessitated Mr. Andrews's left hip revision surgery. Dr. Bourgeois admitted that because Dr. Millet performed the left hip revision surgery, he is in a better position to render an opinion on medical causation, and Dr. Bourgeois deferred to Dr. Millet on the medical causation issue.

         Dr. Bourgeois testified:

Q. Do you have any opinions in this case about medical causation, in other words, what caused his hip to be in the condition it was when you saw him in March and April 2016?
A. I don't have enough information to do that.
Q. Would you defer to Dr. Millet on the issue of medical causation considering that Dr. Millet has treated Mr. Andrews since 2009, saw him both before and ...

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