United States District Court, E.D. Louisiana
CRAIG C. ANDREWS, ET AL.
LOMAR CORP. LTD., ET AK.
ORDER AND REASONS
L.C. FELDMAN U.S. DISTRICT JUDGE.
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
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.
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.
2009, Dr. Chad Millet performed bilateral hip replacements on
Mr. Andrews. 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.
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. 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.
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. Mr. Andrews did not advise Dr. Millet that
the onset of his symptoms had occurred while boarding a ship
earlier that week.
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.
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.
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. 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.
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
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.
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.
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.
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 ...