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White v. Sea Horse Marine, Inc.

United States District Court, E.D. Louisiana

April 17, 2018


         SECTION “B” (5)


         Defendant Sea Horse Marine, Inc. filed a “Motion for Partial Summary Judgment on Plaintiff's Claim for Maintenance and Cure.” Rec. Doc. 15. Plaintiff James Rickey White timely filed an opposition. Rec. Doc. 17. Defendant sought, and was granted, leave to file a reply. Rec. Doc. 20. For the reasons discussed below, IT IS ORDERED that the motion (Rec. Doc. 15) is DENIED WITHOUT PREJUDICE as premature. Defendant may reurge its motion for summary judgment after July 15, 2018.


         Plaintiff James Rickey White was employed by Defendant Sea Horse Marine, Inc. as the Captain of the M/V ELISE MARY on May 30, 2017, when he allegedly suffered an accident. See Rec. Doc. 1 ¶¶ 3-5; Rec. Doc. 11 ¶ 3. Because of the accident, Plaintiff allegedly suffered “serious painful injuries to his back and other parts of his body . . . .” Rec. Doc. 1 ¶ 5. On September 28, 2017, Plaintiff filed suit against Defendant, bringing negligence and unseaworthiness claims. See Id. ¶¶ 6, 7. As part of his complaint, Plaintiff sought maintenance and cure. See Id. ¶ 8.

         Plaintiff applied for the job with Defendant on September 2, 2016. See Rec. Doc. 15-3. As part of the application process, Plaintiff filled out a medical history form and underwent a physical. See Rec. Doc. 15-4. On the medical history form, Plaintiff indicated that he suffered from high blood pressure and took medications for that condition. See Id. at 1. Plaintiff also stated that he had previously “pulled muscles [in his] lower back[, ]” had received worker's compensation, and suffered an “[i]njury or illness which required loss time from work[.]” Id. Plaintiff did not answer a question about whether he currently or previously suffered from an “[i]njured back/back pain[.]” Id. Plaintiff answered “no” when asked about whether he had ever suffered an “[i]njured hip[, ]” “back surgery/injury[, ]” “[r]uptured/herniated disk[, ]” “[r]ecurrent neck/back pain[, ]” “[a]ny joint problems[, ]” “[a]ny other disease/surgery[, ]” and “MRI, CT Scan, Discogram or Myelogram[.]” Id.

         The record from Plaintiff's physical includes a similar medical history. See Id. at 3-4. The physician's assistant who conducted the physical concluded that Plaintiff's “Spine/Musculoskeletal” system was “Normal[, ]” but noted “degenerative change” in an x-ray of Plaintiff's lumbar spine. Id. at 6. Because of his high blood pressure, Plaintiff was not declared “Fit for duty” immediately following his physical. Id. at 7. Plaintiff also appears to have passed a drug test on September 2, 2016. See Id. at 9. Plaintiff was ultimately hired by Defendant on September 6, 2016. See Rec. Doc. 15-3 at 4.

         Plaintiff's medical history is actually more extensive than indicated on the pre-employment forms. Plaintiff admits that “[d]uring the eleven year time period preceding [his] September 2, 2016 pre-employment physical, [he] treated with multiple doctors for low back, hip and leg pain.” Rec. Docs. 15-2 ¶ 23; 17-2 ¶ 23. Plaintiff admits that “two days before his pre-employment physical, plaintiff treated with Dr. Donald Sanders for . . . degeneration of intervertebral disc of the lumbar region, and was issued by Dr. Sanders a prescription for a 90 day supple of Norco, ” a painkiller containing acetaminophen and hydrocodone. Rec. Docs. 15-2 ¶ 27; 17-2 ¶ 27. Plaintiff admits that “[o]n March 22, 2017, [he] was examined by Dr. Roger Setzler . . . for problems with his left leg and pain radiating down his leg, and assessed with lumbar degenerative disc disease, bulging lumbar disc and acute left lumber radiculopathy.” Rec. Docs. 15-2 ¶ 30; 17-2 ¶ 30. After the alleged accident, on November 8, 2017, Plaintiff underwent an independent medical examination with Dr. Revels. See Rec. Doc. 15-5. Dr. Revels concluded that Plaintiff's “current lumbar spine, hip and leg complaints are the same as his previous lumber spine, hip and leg conditions for which he sought treatment for over a decade.” Id. at 2.

         Defendant moved for summary judgment on the issue of Plaintiff's entitlement to maintenance and cure on March 6, 2018. See Rec. Doc. 15. Plaintiff opposed the substance of Defendant's motion and also argued that he needed additional time to complete discovery before adequately opposing the motion for summary judgment. See Rec. Doc. 17. The scheduling conference was not held until March 20, 2018. See Rec. Doc. 16. The scheduling order set a discovery deadline of December 10, 2018. See Id. at 1.


         Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         When the movant bears the burden of proof, it must “demonstrate the absence of a genuine issue of material fact” using competent summary judgment evidence. Celotex, 477 U.S. at 323. But “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the movant meets its burden, the burden shifts to the non-movant, who must show by “competent summary judgment evidence” that there is a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16 F.3d at 618.

         “Maintenance and cure is an obligation imposed upon a shipowner to provide for a seaman who becomes ill or injured during his service to the ship.” Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002). “The duty to provide cure encompasses not only the obligation to reimburse medical expenses already incurred, but also to ensure that the seaman receives the proper treatment and care . . . [until] maximum cure has been reached, i.e., where it is probable that further treatment will result in no betterment in the claimant's condition.” Id. However, a shipowner can assert the McCorpen defense, which applies when an “injured seaman willfully concealed from his employer a preexisting medical condition.” Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005) (citing McCorpen v. Cent. Gulf. S.S. Corp., 396 F.2d 547 (5th Cir. 1968)). “[T]o establish a McCorpen 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.” Brown, 410 F.3d at 171 (citing McCorpen, 396 F.2d at 548-59).

         Relying on the McCorpen defense, Defendant has moved for summary judgment, seeking dismissal of Plaintiff's claim for maintenance and cure. See Rec. Doc. 15 at 1-2. But pursuant to Federal Rule of Civil Procedure 56(d), Plaintiff seeks additional time to conduct discovery and develop evidence that will create a genuine issue of material fact with respect to Defendant's McCorpen defense.[1] See Rec. Doc. 17 at 5-7. “Rule 56(d) motions for additional discovery are broadly favored and should be liberally granted, [but] parties seeking Rule 56(d) relief may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts.” Prospect Capital Corp. v. Mut. Of Omaha Bank, 819 F.3d 754, 757 (5th Cir. 2016). “Instead, a party must set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion.” Id.

         Given the very early stage of the instant proceedings and Plaintiff's desire to conduct certain discovery targeted at Defendant's McCorpen defense, denial of the instant motion pending further discovery is warranted. See Coleman v. Anco Insulations, Inc., 196 F.Supp.3d 608, 611-12 (M.D. La. 2016) (reasoning that a motion for summary judgment was “simply premature” because it was filed “prior to the commencement of formal discovery”); Haydell Indus., LLC v. Petrucci, 702 F.Supp.2d 688, 697-98 (W.D. La. 2010) (reasoning that a motion for summary judgment was premature where “discovery in th[e] forum ha[d] not formally commenced, no scheduling order ha[d] been entered in th[e] matter, and there [wa]s not any discovery deadline imposed yet”). The Scheduling Order in this case was issued on March 20, 2018, see Rec. Doc. 16, fourteen days after Defendant filed the instant motion for summary judgment, see Rec. Doc. 15. Initial disclosures under Federal Rule of Civil Procedure 26 were not due until April 4, 2018, see Rec. Doc. 16 at 1, one week after the instant motion was set for submission, see Rec. Doc. 15-6. The deadline for discovery is December 10, 2018, ...

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