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Thorngate v. Legacy Offshore, LLC

United States District Court, E.D. Louisiana

April 30, 2018


         SECTION: T'(5)



         Before the Court is the motion for partial summary judgment filed by Defendant, Legacy Offshore, LLC ("Legacy"). (Rec. doc. 22). The motion is opposed by Plaintiff, Braxton Thorngate ("Thorngate"). (Rec. doc. 26). Legacy's motion seeks dismissal of Thorngate's claims for Jones Act negligence and unseaworthiness on the basis that the undisputed material facts do not support a finding of medical causation. For the reasons that follow, the motion is hereby granted.

         A. FACTS

         The following are the unchallenged facts, taken primarily from Legacy's Statement of Uncontested Facts. (Rec. doc. 22-5). Plaintiff did not file "a separate and concise statement of the material facts which the opponent contends present a genuine issue" as required by Federal Rule 56.2. He did, however, file a "response" to Legacy's statement of uncontested facts (rec. doc. 26-1), in which he admitted every one of Legacy's facts, save one: "Complainant denies in part that on February 25, 2017, he went to the Ohio Valley Medical Center complaining of chest pain which he had been experiencing for four to five days." [Id.). As will be addressed below, that mere denial is insufficient to establish a disputed material fact, as Legacy's statement to that effect is supported completely by the medical records attached to its Motion. (Rec. doc. 22-9 at p. 4).

         Accordingly and pursuant to Local Rule 56.2 and Rule 56(e)(2) of the Federal Rules of Civil Procedure, the Court deems the facts in Legacy's statement to be true.

         Thorngate was employed by Legacy as a tender aboard the DSV SUN RIVER from February 2, 2017 to February 7, 2017. He performed one dive on February 3, 2017 and one dive on February 4, 2017. Prior to both dives, Thorngate underwent a pre-dive neurological examination and after each dive, he underwent proper surface decompression protocol. After his last dive on February 4, 2017, Thorngate remained aboard the DSV SUN RIVER, performing normal deck duties without incident or complaint, never exhibiting any symptoms of decompression sickness, never requesting any medical treatment, and never complaining of any symptoms consistent with decompression sickness. He left the vessel on February 7, 2017 without incident.

         On February 10, 2017, Thorngate slept for 15 hours, during which time he urinated on himself. Once he woke up, he had difficulty hearing right shoulder pain, and right-sided weakness. He went to Teche Regional Medical Center ("Teche Regional") via ambulance, where he tested positive for amphetamines and opiates and incorrectly reported that his last dive had been on February 8, 2017.[1] Based on this inaccurate history, he was transferred to West Jefferson Medical Center for hyperbaric treatments.

         Thorngate arrived at West Jefferson Medical Center ("WJMC") on February 10, 2017. He once again incorrectly reported the date of his last dive, this time stating that it was on February 6, 2017; he also admitted to taking illegal drugs the weekend of February 3-5, 2017.

         At WJMC, Thorngate tested positive for amphetamine/methamphetamine, cannabinoid, cocaine, and opiates. He was diagnosed with (1) rhabdomyolysis, (2) NSTEMI (non-ST-elevation myocardial infarction), (3) hyperglycemia, (4) acute kidney injury, (5) acute liver injury, (6) polysubstance abuse, (7) leukocytosis, (8) hearing loss and possible decompression sickness, and (9) VTE prophylaxis. He received hyperbaric treatments for decompression sickness and was monitored for conditions possibly resulting from his serious drug and alcohol binge. He was discharged on February 17, 2017.

         On February 25, 2017, Thorngate went to the Ohio Valley Medical Center ("Ohio Valley") complaining of chest pain that he had been experiencing for four to five days.[2] He again distorted his recent medical and work history, reporting correctly that he completed a dive on February 4, 2017 but reporting incorrectly that he had been diagnosed with decompression sickness two days later on February 6, 2017, when he had not made his first visit to Teche Regional until February 10, 2017. He again tested positive for opiates and cannabinoids. The emergency room physicians found that Thorngate was not suffering from complications of decompression sickness. The doctors at that facility went so far as to consult a hyperbaric specialist at the Divers Alert Network in reaching that conclusion. Thorngate was discharged on February 25, 2017 in a stable condition.

         On March 12, 2017, Thorngate returned to Ohio Valley complaining of memory loss and confusion. He tested positive for opiates and cannabinoids and admitted snorting heroin. He was treated for altered mental status, encephalopathy, tobacco abuse, and decompression sickness. The emergency room physician found the most likely cause of his altered mental status to be his illicit drug use, finding Thorngate was suffering from a drug overdose. Thorngate was discharged on March 13, 2017 and advised to attend drug rehabilitation at a mental-health facility.

         Thorngate then went to the J.W. Ruby Memorial Hospital on March 15, 2017 complaining of altered mental status. He was hospitalized until April 14, 2017, requiring almost daily sedation, feeding tubes, and a brief period of intubation. His diagnosis at discharge was leukoencephalopathy, drug abuse, sympathetic storming hypoxic brain damage, and decompression sickness sequela. He was referred to Peterson Rehabilitation Hospital.

         Thorngate was admitted to Peterson Rehabilitation Hospital on April 14, 2017 and remained there until June 10, 2017. Based upon the medical history provided by Thorngate, Dr. Margaret Graynovsky opined his illness resulted from decompression sickness and polysubstance abuse, further stating that "[i]t is difficult to determine prognosis at this time given the extent of patient's injuries." (Rec. doc. 22-12).


         Legacy retained two experts who executed declarations that are attached to its Motion. Thorngate offers no expert opinion(s) in support of his position.

         1. Dr. Ian R. Grover

         Dr. Ian R. Grover is a Professor in Clinical Emergency Medicine at the University of California San Diego (UCSD).[3] He is also the Medical Director of Hyperbaric Medicine and Wound Care Centers at the UCSD Medical Center. He is board certified in Emergency Medicine and Undersea Hyperbaric Medicine.

         Dr. Grover reviewed Thorngate's February 2, 2017 pre-dive Neurological Sheet; the February 3, 2017 and February 4, 2017 Dive Sheets; and the February 3, 2017 and February 4, 2017 Daily Offshore Paperwork. He also reviewed Thorngate's February 15, 2017 statement and his medical records from Teche Regional, WJMC, and WVU Hospitals and University Health Associates (W.J. Ruby Memorial Hospital). It is undisputed that these records indicated that Thorngate performed dives on February 3, 2017 and February 4, 2017 using a 50/50 Nitrox mixture during each dive and undergoing conservative surface decompression following each dive. The Nitrox gas mixture is an added safely measure to prevent decompression sickness according to Dr. Grover.

         The records further indicated there were no significant issues with either of the dives and there was no record of any problems suggesting decompression sickness. Thorngate then left the vessel on February 7, 2017.

         Dr. Grover opines "[b]ased on Thorngate's diving history, personal statement, and emergency department records, it is almost impossible that his symptoms were due to decompression sickness." (Rec. doc. 22-13). Rather, "[t]he most likely cause ...

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