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Thibodeaux v. Ensco Offshore Co.

United States District Court, W.D. Louisiana, Lafayette Division

December 28, 2017

JOSEPH C. THIBODEAUX
v.
ENSCO OFFSHORE CO.

          CAROL WHITEHURST, MAG. JUDGE.

          RULING

          DEE D. DRELL JUDGE.

         This matter involves claims brought by the plaintiff, Joseph C. Thibodeaux ("Thibodeaux"), against the defendant, Ensco Offshore Company ("Ensco"), under the Jones Act and General Maritime Law of the United States. Thibodeaux seeks damages for injuries he sustained on October 1, 2011, while serving as a deck foreman aboard the Mobile Offshore Drilling Unit Ensco Rig 90 ("Ensco 90").[1] Thibodeaux asserts negligence and unseaworthiness claims under the Jones Act and a claim for maintenance and cure under general maritime law and designates his claims as admiralty or maritime claims pursuant to Federal Rule of Civil Procedure 9(h). Jurisdiction is proper pursuant to 28 U.S.C. §1333.

         I. PROCEDURAL HISTORY

         On October 1, 2013, Thibodeaux filed a complaint against Ensco seeking damages for injuries he sustained while aboard the Ensco 90. Thibodeaux alleged he was injured as a result of Ensco's negligence and/or the unseaworthiness of the Ensco 90. On May 18, 2015, Thibodeaux amended his complaint to add a claim for maintenance and cure.

         The non-jury trial of this case commenced before the undersigned on September 12, 2016. The matter was taken under advisement on September 14, 2016. The parties were ordered to file post-trial briefs which they submitted timely.

         After due consideration of the facts and evidence presented by the parties at the trial of this matter through live witnesses, exhibits, and depositions testimony, and having had the opportunity to assess the demeanor of the live witnesses and review and weigh the evidence, the Court hereby makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, which the Court finds and holds were established by a preponderance of the evidence, and rules as follows.[2]

         II. STIPULATIONS AND ADMISSIONS

         The parties stipulated to the following prior to trial:

1) Ensco Offshore Company was the owner pro hac vice and operator of the Ensco Rig 90 at all times pertinent to this litigation. As such, Ensco Offshore Company is responsible for any claim of negligence and/or unseaworthiness of the Ensco 90 in this litigation. Ensco Offshore Company will be responsible for any Judgment rendered in this matter.
2) Joseph Thibodeaux was a Jones Act seaman.
3) Joseph Thibodeaux was employed by Ensco Offshore Company as a deck foreman aboard the Ensco Rig 90, a vessel in navigation, at the pertinent time.
4) The authenticity of every document produced by Ensco Offshore Company during the pendency of this claim and lawsuit.

         III. FINDINGS OF FACTS

         On October 1, 2011, crew members aboard the Ensco 90[3] worked to prepare the rig for its move to another location. Thibodeaux was a deck foreman with the crane crew which also included three roustabouts, David Biggs, Aaron Allen, Bob Degner, and a crane operator by the name of Jay Puckett. The crane crew's task was lifting and storing four to five take-on hoses attached to a manifold on the port aft side of the rig. Each hose was 3 to 5 inches in diameter, weighed approximately 300 pounds, and spanned 100 to 150 feet in length. This same crane crew performed this very task together on several prior occasions, but this was the first time they conducted it on this hitch.

         The crane crew met for a verbal, pre-job safety meeting and discussed the task at hand as well as the role each man played. The roustabouts rigged each hose, one at a time, to the crane line; Thibodeaux used standard hand signals to flag Puckett so he would know how and where to lift and maneuver each hose to the brackets that hung on the outside of the port aft handrail until the brackets reached capacity. Any remaining hose was laid on deck, as close to the handrail as possible so the roustabouts could tie the hose to the handrail and maintain a path on the walkway.

         The crane crew neared completion of this task when the load swung left toward the port aft leg jack house. As it did so, the load came into contact with the port side navigational light assembly[4] that hung on the jack house. Within seconds of the load's hitting the light assembly, angle irons holding the assembly fell, followed by the light assembly itself. The safety cable attached to the navigational light failed to hold the entire light assembly. In falling, it struck Thibodeaux on his left hip and left knee.

         Thibodeaux sustained a significant hematoma, known as a Morel-Lavallee lesion, to his hip. Though he then denied being hurt, the injury site continued to swell over the evening, so he was returned to shore for examination. Pre-employment and post-injury MRIs revealed no change to Thibodeaux's back, but he complained of pain in his neck, left hip, knee and back. Within days of the accident, Thibodeaux reported his neck and knee pain had resolved and his treating physician, Dr. Franklin, noted the bruising to his hip was resolving. Other than degenerative changes, Thibodeaux's back remained unchanged for more than a year post-accident. Even when an MRI revealed that a disc bulge had herniated and a Lafayette, Louisiana orthopedist, Dr. Blanda, recommended surgery, the surgical recommendation was based on Thibodeaux's subjective complaints of pain rather than objective physical symptoms.

         Post-surgery, Thibodeaux did extremely well; however, within months he began again to complain of significant pain. The court notes the timing of those complaints of pain correlated with the realization that he would no longer receive narcotic medication, upon which, according to his girlfriend, Fabian Hardy, he had become reliant. [As we will explain later, the court finds Thibodeaux's testimony as a whole to be self-serving and unsupported by record evidence.]

         Regarding the accident, Thibodeaux admits he had no idea how the light assembly fell or what happened when it did. In fact, there was only one eye witness with the details needed to explain how the accident occurred, the roustabout, Biggs.[5]

         Biggs testified that he maintained a good view of the load the entire time it was in motion. He saw the load barely hit the light assembly, the support irons begin to fall, followed by the light assembly. He recalled seeing Thibodeaux looking at the hoses inside the handrail with Thibodeaux's back to him, but he did not recall seeing Thibodeaux signal to Puckett in advance of the falling assembly. Although Thibodeaux claimed he never lost eye contact with the load and/or Puckett and was always facing the bow, Biggs' testimony explains why that would be the case. It further explains how the light assembly hit Thibodeaux on his left hip and knee as the jackhouse and light would have been on his left as he faced the stern of the boat. Thus, the court finds Thibodeaux was distracted by the hose that was falling into the walkway. According to the credible evidence here, he turned his back to the load and crane operator without calling a stop order and without giving any further signal after an initial slack off sign. Accordingly, Thibodeaux was unable to see the load swing into the light assembly and was unaware that it was falling.

         The medical evidence establishes Thibodeaux sustained an abrasion on his left knee and severe bruising to his hip during the October 1, 2011, accident. An MRI conducted October 15, 2011, revealed the Morel-Lavallee lesion over his left lateral pelvis and hip. However, there was no change at L4-5, where he had a pre-existing, pre-employment, asymptomatic degenerative lumbar spine condition.

         While Thibodeaux's knee injury and the bruising to his hip resolved within weeks of the accident, his back and hip pain continued. Accordingly, in May 2012, Dr. Louis Blanda, Thibodeaux's treating orthopedist, ordered another MRI. That MRI revealed the disc at L4-5 that previously appeared to be bulging was now herniated. The herniation was confirmed again by an MRI conducted in January 2013. Based this objective evidence and Thibodeaux's continued complaints of pain, Dr. Blanda recommended a decompression and fusion at L4-5.

         At Ensco's request, Thibodeaux underwent an examination by an independent medical examiner, Dr. Neil Romero, who specialized in orthopedic spine surgery. In a report dated May 17, 2013, noted Thibodeaux denied any injuries to his back since the October 1, 2011 accident. Dr. Romero opined the worsening of the pre-existing condition of Thibodeaux's spine at L4-5 was a result of the accident. While Dr. Romero believed that Thibodeaux should undergo an epidural injection in an attempt to avoid surgery, he agreed with Dr. Blanda's recommendation for a decompression and fusion if the pain continued. However, Dr. Romero noted the surgery would not address the hip pain as that pain was consistent with the shearing injury to his hip and the Morel-Lavallee lesion he developed.

         All conservative treatments prescribed by both Dr. Blanda and Dr. Romero failed to provide lasting relief for Thibodeaux's pain. Accordingly, he underwent the decompression and fusion on July 29, 2015. However, Dr. Blanda did not perform an aspiration of the Morel-Lavallee lesion as he concurred with Dr. Romero that it appeared the fluid collection had resolved and nothing more could be done.

         Based on the evidence presented, the court finds Thibodeaux reached maximum medical improvement as to his knee and bruising of his hip by October 18, 2011, the Morel-Lavallee lesion by May 17, 2013, and his back by September 13, 2016.

         While the court finds Thibodeaux sustained significant injuries to his hip and back as a result of the accident, we do not find his complaints of pain and the extent of his disability to be genuine. He claimed his pain was constant and unrelenting over the course of five years and he was homebound and unable to work. Yet, he admitted to driving and/or riding in a car for long distances and he continued to visit casinos for fun. Fabian Hardy, who helped care for Thibodeaux, testified he received great results from a first facet injection, good results from the second, and did "extremely well" post-surgery, but Thibodeaux claimed he received little if any relief from the injections and reported a pain level of 7/10 after surgery and about the time Dr. Blanda was going to release him from his care.

         Thibodeaux's complaints of pain to various physicians during similar time frames also support the court's finding. Though he told Dr. Franklin his neck and knee pain resolved, he reported to Dr. Blanda within the month and stated he experienced pain in those areas, at a level of 8 out of 10. He complained to Dr. Romero that his hip pain was more severe than his back pain, but complained of terrible back pain to Dr. Blanda. He also reported to Dr. Romero and his treating psychologist Dr. LeCorgne that drinking beer and alcohol eased his pain but he continued to obtain narcotic medication from Dr. Blanda. He complained of unrelenting back pain yet sought a prescription for Viagra for erectile dysfunction. Even at trial, Thibodeaux wore his back brace for one day despite Dr. Blanda's order that he discontinue use in order to build the muscles in his back.

         Finally, the court turns to findings regarding Thibodeaux's emotional and mental state. The only evidence presented was from Thibodeaux's treating psychologist, Dr. LeCorgne. Dr. LeCorgne began treating Thibodeaux on March 3, 2015, nearly two and a half years after the accident and approximately six months prior to the trial date pending at that time. Though Dr. Blanda suggested that Thibodeaux speak to someone about his reported depressed mood, Thibodeaux failed to follow that advice until his attorney set up an appointment. Dr. LeCorgne was selected by Thibodeaux's attorney, and he saw Thibodeaux a total of 24 times (prior to trial). He diagnosed Thibodeaux with Post Traumatic Stress Disorder and depression related to the October 1, 2012 accident. He considered Thibodeaux's emotional state to be "stable" and his prognosis to be fair as it was tied to his "variable" physical state. As of the trial date, he thought an additional six to nine months of therapy on a once a month basis would benefit Thibodeaux in his continued recovery.

         IV. CONCLUSIONS OF LAW

         A. ...


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