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Alliance Marine Services, LP v. Youman

United States District Court, E.D. Louisiana

December 12, 2018


         SECTION "F"



         Before the Court are two motions by Alliance Marine Services, LP: (1) motion for partial summary judgment on the McCorpen defense to the maintenance and cure claims; and (2) motion for partial summary judgment on punitive damages claims. For the reasons that follow, both motions are GRANTED.


          This lawsuit arises from a seaman's claim that he injured his lower back during a rescue drill operation.

         In the summer of 2015, Gary Youman was hired several days after applying for employment with Alliance Marine Services, LP. In his employment application, Mr. Youman denied having any “physical handicap” or illness that may affect his work. As part of the hiring process, AMS sent Mr. Youman for a United States Coast Guard Pre-Employment Physical. In completing a medical history form as part of this examination, Mr. Youman denied any history of back injuries or back pain. AMS submits that it relied upon the medical history form in hiring Mr. Youman.[1] Mr. Youman admits that some of his representations on the medical history form were false (for example, Mr. Youman indicated that he did not have prior back injuries).

         About one year into his employment, on July 29, 2016, Mr. Youman asserted that he was injured during a Fast Response Craft drill, claiming that he hurt his back when he was thrown to the deck of the vessel during the drill.[2] The alleged injury happened while Gary Youman was employed by AMS as a Jones Act seaman aboard the FPSO TURRITELLA, a vessel owned and operated by SBM Stones Operations, LLC. Because Mr. Youman claimed he was injured while in the service of a vessel, AMS removed him from the vessel and transported him for medical treatment.

         On August 5, 2016, Mr. Youman was diagnosed with a lumbar sprain. AMS retained Aucoin Claims Service, Inc. to investigate Mr. Youman's alleged injury and administer any necessary maintenance and cure benefits.

         AMS was in frequent contact with Mr. Youman after the alleged injury. AMS attempted to have a claims adjuster meet with Mr. Youman to help determine his financial situation and assess what happened on board the Fast Response Craft. The claims adjuster, Patrick Aucoin, spoke with Mr. Youman on the telephone and a meeting was scheduled for August 26, 2016. The day before the meeting, Mr. Youman cancelled the appointment. On August 29, 2016, Mr. Youman retained an attorney. AMS informed Mr. Youman's attorney that its authorization for Mr. Youman to treat with Dr. Amy Thompson was “under protest, ” but still agreed to provide prompt payment for his treatment.

         After the alleged incident, AMS began maintenance payments of $35.00/day and funded Mr. Youman's medical care. During its investigation, AMS learned that Mr. Youman began having back pain, starting in late 2012 (after presenting to the emergency room after an injury at work) and lasting through at least 2013 or mid-2014.[3]Mr. Youman initially claimed that he injured his back lifting a heavy pipe while working for Mearsk. As a result of this prior injury, Dr. Amy Berstein treated Mr. Youman's complaints of left thoracic paraspinal spasms; Dr. Michael Scharf at Jacksonville Orthopedic diagnosed Mr. Youman with “low back pain, resolving.”

         On May 21, 2013, Mr. Youman slipped on the galley deck of a Maersk vessel, claiming to injure his back again. On July 1, 2013, Maersk sent Mr. Youman to George Washington Hospital, where he reported constant pain since May 21 at ¶ 9/10 level and that “nothing help[s].” The doctors at George Washington believed Mr. Youman had a “low back strain, ” and opined that “he cannot return to work at this time given his level of discomfort.” On July 3, 2013, Mr. Youman was admitted to the emergency room at Orange Park Medical Center in Jacksonville, complaining of abdominal pain; he reported chest pain and shortness of breath, which he attributed to his back pain.

         On July 24, 2013, Mr. Youman was treated for the first time at Southern Orthopedic by Dr. Heekin. He claimed to have pain at the level of 10/10, and he described the pain as persistent and radiating into his upper back, and aggravated by climbing stairs, bending, lifting, lying/rest, sitting, standing, and straining. Dr. Heekin's diagnosis was “lumbar spondylosis without myelopathy: likely facetogenic versus annular tear.

         On August 30, 2013, Mr. Youman was examined by Dr. Heekin for his low back pain; he complained of lumbar spine pain on an 8/10 level, describing the pain as persistent and included ache and discomfort. He noted that physical therapy was not helping, and he requested the doctor's prognosis to assist with “ongoing litigation issues.”

         In December 2013 and January 2014, a few weeks after joining Liberty Maritime, Mr. Youman complained of pain in his left thigh; he was diagnosed with an ACL tear in early 2014, leading to arthroscopic knee surgery in November 2014. Mr. Youman admitted to concealing a prior 2001 knee injury in college and his later knee injury at Crowley on his Seaman's Declaration of Health, and the Crowley injury was discovered by Liberty, which sought reimbursement and recommended that Mr. Youman be permanently suspended from sailing with Liberty Maritime.

         On July 14, 2014, Mr. Houman completed a medical history questionnaire to secure a “declaration of fitness for duty” for employment by Overseas Ship Management, Inc. On the fitness for duty form, Mr. Youman denied having back or neck pain, and he denied ever having any injury or illness for which he received medical treatment exceeding seven days.

         On August 3, 2014, Jacksonville Fire and Rescue was called to Mr. Youman's house where Mr. Youman appeared to be having a panic attack or emotional breakdown. The EMT records indicate that “the patient states the [sic] he has had chest and back pain for three years[, ]” but the EMT on scene could not confirm whether Mr. Youman was having back pain on that date. The next day, Mr. Youman was admitted for treatment at TBJ Behavior Center a/k/a River Point Behavioral. The River Point Discharge Summary indicates excessive alcohol consumption had initiated Mr. Youman's breakdown, and that “[t]he patient endorsed all symptoms of depression[.]” His treatment included medication management and group therapy, and he was prescribed 500 mg of Tylenol three times per day as needed for pain. Among the discharge diagnoses indicated by Dr. Thomas Thommi, Mr. Youman was diagnosed with “low back pain, ” “major depressive disorder, ” and “alcohol abuse.” However, Dr. Thommi testified in this litigation that he listed “low back pain” as a past history complaint, not a present diagnosis.

         On August 21, 2014, Mr. Youman completed a merchant mariner medical history form in which it appears that he wrote “injury lower back resolved.” On a December 10, 2014 Merchant Mariner Credential Medical Evaluation Report, used to determine whether an applicant seeking to renew a credential is physically capable of performing their duties, Mr. Youman denied a history of chest pain, limitation of any major joint, joint surgery, recurrent back pain, depression, anxiety, alcohol or substance abuse, and any psychiatric disease or counseling. He acknowledged a back injury in July 2013, but he noted “no treatment (p.t.) since 8/2013 for lower back.”

         After the alleged injury on the rescue boat while working for AMS on July 29, 2016, Mr. Youman came under the care of Dr. Donald Dietze, who made a medical causation determination in his first meeting with Mr. Youman that his low back and intermittent leg pain was attributable to his alleged work injury on July 29, 2016; Dr. Dietze recommended surgery. During his deposition testimony, Dr. Dietze admitted that he made the medical causation determination without having viewed the video of the incident, but stated that he was shown the video prior to his deposition testimony. Dr. Dietze admitted that he made the medical causation determination without having been informed of Mr. Youman's prior lower back injury lawsuit against Maersk and his orthopedic lawsuit against Crowley. Dr. Dietze admitted that Mr. Youman never informed him that he had suffered a prior work-related injury while employed by AMS while pulling a strap from under a crate. Dr. Dietze admitted that he made no effort to inquire into Mr. Youman's past prescription history related to prior injuries. Dr. Dietze testified that he did not view the MRI results from Mr. Youman's prior back injuries in 2012 and 2013, but that he instead relied on the radiologist's report. Dr. Dietze admitted that he made the medical causation determination based in part on the assumption that Mr. Youman's 2012-2013 back injuries had resolved based in part on Mr. Youman's statements and in part on the MRI scan.

         Dr. Gabriel Tender, a board-certified neurosurgeon, conducted an independent medical exam on Mr. Youman. Dr. Tender reviewed Mr. Youman's medical history, including past MRIs, and issued a report dated May 3, 2017. Dr. Tender “do[es] not believe that [Mr. Youman] has a primary pain generator in the lumbar spine[, and that] [t]here is no objective evidence of acute traumatic injury to [Mr. Youman's] lumbar spine related to the July 29, 2016 accident.” Dr. Tender does not believe that the surgery recommended (and ultimately performed) by Dr. Dietze was warranted.

         On October 10, 2017, Mr. Youman underwent an L4-5 anterior lumbar discectomy and artificial disc replacement performed by Dr. Dietze. Prior to the surgery, Mr. Youman's attorney requested authorization from AMS and, following the surgery, he requested reimbursement for the surgery as well as the discogram and post-discogram CT. AMS declined to fund the surgery pending its ongoing investigation of Mr. Youman's claim for maintenance and cure.

         AMS retained a radiologist, Dr. David Fakier, to review Mr. Youman's pre-incident and post-incident MRI images. Dr. Fakier reviewed the images, and opined that there were no changes in Mr. Youman's lumbar spine between the pre-incident and post-incident images. AMS declined to fund the surgery ultimately performed by Dr. Dietze in light of: its assessment of the video footage of Mr. Youman's alleged accident; Mr. Youman's abrupt refusal to be interviewed after the incident, which hindered its investigation; Mr. Youman's significant history of chronic back pain, which Mr. Youman failed to disclose; Mr. Youman's history of suing prior maritime employers for alleged injuries; the lack of evidence that Mr. Youman's back pain complaints in 2012 and 2013 were ever fully resolved; Dr. Tender's opinion that Mr. Youman suffered no traumatic injury and is not a candidate for surgery; and Dr. Fakier's opinion that there is no change in Mr. Youman's lumbar spine after comparing the pre- and post-incident MRIs.

         Dr. Tender issued an Addendum Report in October 2018 in which he confirmed his initial opinion that no surgery was warranted and that Youman did not suffer any traumatic spinal injury on July 29, 2016. Dr. Tender also agreed with Dr. Fakier's interpretation of the pre-incident and post-incident MRI studies. Dr. Tender further noted that the surgery ultimately performed by Dr. Dietze did not resolve Youman's pain complaints.

         Meanwhile -- after Youman filed two separate lawsuits, one which he dismissed and one which was stayed[4] -- on August 22, 2017, AMS filed this lawsuit in this Court, seeking a declaration that AMS is not liable for Youman's accident and does not owe Youman maintenance and cure. Youman answered, counter-claimed (alleging Jones Act negligence and maintenance and cure claims), and then filed a third-party complaint against SBM (alleging the same unseaworthiness and maritime claims he previously advanced in both prior lawsuits). AMS now moves for partial summary relief regarding whether it has a valid McCorpen defense against Mr. Youman's claim for maintenance and cure and whether AMS may be held liable for punitive damages for its refusal to fund certain medical treatments.


         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No. genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a ...

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