United States District Court, E.D. Louisiana
ORDER AND REASONS
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,
BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
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
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.
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).
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. 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.”
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,