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Giroir v. Cenac Marine Services, LLC

United States District Court, E.D. Louisiana

March 6, 2019

RICKY GIROIR
v.
CENAC MARINE SERVICES, LLC

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court are two motions: (1) the defendant's motion for summary judgment on the plaintiff's Jones Act negligence and unseaworthiness claims; and (2) the defendant's motion for summary judgment on the plaintiff's maintenance and cure claim with respect to his alleged back injury. For the reasons that follow, the motions are GRANTED.

         Background

         This maritime personal injury litigation arises out of a relief captain's claim that he sustained injuries on two separate occasions while working aboard vessels owned by his employer.

         Ricky Giroir began working for Cenac Marine Services, LLC (“CMS”) in November of 2013 as a relief captain and allegedly suffered injuries to his lower back in September of 2015 and his right knee in November of 2017. Prior to working for CMS, Mr. Giroir had worked for several other companies and was experienced in conducting tow operations.[1] He also had an extensive medical and surgical record pre-dating his tenure with CMS; that record features a history of congenital birth defects and countless injuries sustained both on and off-the-job.

         A. Giroir's Pre-Existing Medical Conditions

         As a child, Mr. Giroir underwent bilateral foot surgery to correct his congenital club feet and arthroscopic surgery of his left knee. As an adolescent, he injured his right knee while playing high school football and had an additional arthroscopic surgery. During that time, he also began to experience problems with his congenital lower back condition, for which he underwent lumbar surgery. Suffering from obesity, Giroir closed off his adolescent years with gastric bypass surgery.

         As an adult, Mr. Giroir went on to suffer two on-the-job injuries while working for Settoon Towing. He first injured his neck and right shoulder when a flat boat fell on him during a crew change; these injuries required two different surgeries. He also injured his lower back while “pulling on some hoses” and was diagnosed with lumbar strain. A few years later, in June of 2006, Mr. Giroir reported to Dr. Thomas Donner with complaints of numbness and cramping of his right leg. After disclosing his prior on-the-job back injury, he indicated that his symptoms had progressed to the extent that he could only walk for a few minutes at a time and that the symptoms would improve if he walked bent forward, like he was “over a shopping cart.” Dr. Donner then reviewed an MRI of Giroir's lumbar spine and noted an impression of “severe lumbar stenosis.” Despite initially attempting to treat his lumbar stenosis with steroid epidural injections, Mr. Giroir ultimately elected to undergo a decompressive laminectomy at the L2-L3 level on November 8, 2006.

         Almost two years passed without incident until March of 2008 when Giroir reported to Drs. Larry Haydel and Brandon Brooks with complaints of right knee pain. An MRI of Giroir's right knee performed at that time revealed a torn anterior cruciate ligament, severe loss of cartilage in the posterior aspects of the patella, and large joint effusion. Later, in December of 2011, Giroir was involved in a motor vehicle accident when the car in which he was riding as a passenger was rear ended; he was placed on a spine board at the scene and transported to the hospital by ambulance. The following year, he failed a pre-employment physical when applying for a position with Enterprise Marine Services. As a result, he elected to undergo a cervical fusion surgery, after which he was able to pass a pre-employment physical with LeBeouf Brothers.

         B. The CMS Application Process

         On November 7, 2013, Mr. Giroir completed an application for employment with Cenac Marine Services, LLC, in which he indicated that he did not have any physical or mental condition(s) which may interfere with or hinder the performance of the job for which he wished to be considered. Although he did disclose on the application that he had sustained a prior on-the-job neck and shoulder injury while working for Settoon Towing, he did not disclose his prior on-the-job back injury. In connection with the application process, Mr. Giroir also was required to complete a medical questionnaire and undergo a pre-employment physical exam. When asked whether he had a prior or current back injury, Giroir changed his response on the questionnaire from “yes” to “no;” he signed and dated the form on November 12, 2013. That same day, he reported to Dr. Kirk Dantin for a pre-employment physical exam, during which he indicated that he had hurt his “back or neck” and had surgery. He went on to reveal his history of surgeries on his neck, knees, and feet, as well as his history of bilateral club feet. He did not, however, disclose his back injury, conditions, or surgeries. Based on these representations, Dr. Dantin released Mr. Giroir to “employment without restrictions.” The following year, on December 2, 2014, Giroir indicated on his annual physical form that, at some point in time, he had “hurt [his] back or [] experienced back pain.” He also informed the physician that he had undergone surgery on his lumbar spine at age 19 or 20.

         C. The 2015 and 2017 Incidents

         In September of 2015, Mr. Giroir was working aboard the M/V EUGENIE CENAC when he allegedly sustained disabling injuries to his lower back after retrieving a sixty-to-seventy-pound oil pump from a shelf in the vessel's engine room. Following the incident, Mr. Giroir completed an accident investigation report, in which he explained how the injury occurred: “When getting the oil pump off of shelf felt a pop in lower left side of back.” He further indicated that the engine room was well lit at the time of the incident and that the accident did not involve damage to the hull or equipment. Although he reported that the injury could have been avoided if someone had helped him, he has stated under oath that he elected not to ask for help even though another crewmember was available to assist him; he also has testified that no condition of the EUGENIE CENAC caused his back injury.

         After the alleged 2015 incident, Mr. Giroir continued to work aboard the M/V EUGENIE CENAC until October 30, 2015 when he visited an urgent care clinic in Parkersburg, West Virginia with complaints of lower back pain and weakness in his extremities. An x-ray performed that day revealed degenerative changes in Mr. Giroir's back, particularly at the L1-L2 levels. Giroir then returned home to Louisiana where an MRI of his lumbar spine was completed on November 18, 2015; it showed evidence of spinal canal narrowing and lumbar stenosis at the L1-L5 levels.

         In February of 2016, Dr. Phillip McAllister of Tri-Parish Orthopedics advised Mr. Giroir that he suffered from post-laminectomy syndrome (related to his prior lumbar surgery), intervertebral disc degeneration, and spinal stenosis. Dr. McAllister also recommended a lumbar laminectomy with ITP fusion at the L2-S1 levels. Mr. Giroir elected to undergo surgery for his lumbar stenosis, after which he was out of work for four months; he remained on CMS's payroll during that time and ultimately was released to work in June of 2016.

         Less than six months later, on November 22, 2017, Mr. Giroir allegedly sustained an unrelated on-the-job injury in connection with his assignment as a relief captain aboard the M/V CHRISTINE CENAC when he fell on a flat boat while traveling to shore for a crew change. About three weeks later, on December 15, 2017, Mr. Giroir completed an incident report, in which he described the incident as follows: “While crew changing the flat boat rocked causing me to fall on my right knee and twisting left ankel [sic].” He further clarified in the report that the injury occurred when he “was getting out the flat boat” and that the boat rocked, which caused him to trip. He also reported that the accident could not have been prevented, was not caused by unfit or unreasonable equipment, and was not anyone's fault. Similarly, Mr. Giroir has testified that he believes the 2017 incident could not have been prevented and was not caused by unfit or unreasonable equipment; rather, he has stated under oath: “It ain't nobody's fault. It's an act of Mother of God, an act of nature.” Following the 2017 incident, Giroir visited Terrebone General Hospital, after which he underwent a knee replacement surgery under the care of Dr. William Kinnard.

         On April 4, 2018, Mr. Giroir sued Cenac Marine Services, LLC, alleging that the defendant's negligence under the Jones Act and the unseaworthiness of its vessels under the general maritime law caused his injuries in 2015 and 2017; he also alleges that the defendant owes him maintenance and cure for both incidents. In response, CMS filed a counterclaim on July 26, 2018, seeking to recover payments made to and on behalf of Mr. Giroir for maintenance and cure that are not related to his work activity with the company. CMS now seeks summary judgment in its favor, dismissing the plaintiff's Jones Act and unseaworthiness claims; the defendant also seeks summary dismissal of the plaintiff's maintenance and cure claim insofar as it concerns his alleged back injury.

         I.

         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 reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). “[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal quotation marks and citation omitted). Ultimately, “[i]f the evidence is merely colorable . . . or is not significantly probative, ” summary judgment is appropriate. Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must “resolve factual controversies in favor of the nonmoving party, ” it must do so “only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (internal quotation marks and citation omitted).

         II.

         A.

         Under the Jones Act, 46 U.S.C. § 688, a seaman's employer is liable for damages if the employer's negligence caused the seaman's injury, in whole or in part. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997) (en banc).[2] To prevail in a Jones Act negligence claim,

the plaintiff must present some evidence from which the fact finder can infer that an unsafe condition existed and that the vessel owner either knew, or in the exercise of due care should have known, of the condition.

Martinez v. Offshore Specialty Fabricators, Inc., 481 Fed.Appx. 942, 945, 947 (5th Cir. 2012) (citing Perry v. Morgan Guar. Trust Co. of N.Y., 528 F.2d 1378, 1379 (5th Cir. 1976)).

         A Jones Act employer has the duty to provide his seaman employees with a reasonably safe place to work. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 374 (5th Cir. 1989). The duty to provide a safe place to work is broad in scope, but it is not a form of strict liability; ordinary prudence under the circumstances is the standard for the duty of care owed by an employer to a seaman. Gautreaux, 107 F.3d at 335-36. Likewise, seamen are held to the standard of the reasonable seaman in like circumstances. Id. at 339 (explaining that the circumstances include the employee's reliance on his employer to provide a safe working environment, the seaman's experience, training, or education). And the causation standard is the same for both the employer's negligence and contributory negligence: causation is established if the party's “negligence played any part, even the slightest, in producing the injury.” See Martinez, 481 Fed.Appx. at 947 (quoting Johnson v. Cenac Towing, Inc., 544 F.3d 296, 303 (5th Cir. 2008)). However, more than mere “but for” causation must be established. Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008) (citation omitted).

         B.

         To succeed on his Jones Act negligence claim at trial, Mr. Giroir must prove that CMS's negligent breach of duty caused at least one of his injuries; he must present some evidence from which the fact finder can infer that an unsafe manner of operation or navigation was used (here, the alleged improper method of storing and unloading the oil pump, or of transporting crew members to shore) and that CMS knew or should have known of such danger. CMS seeks judgment as a matter of law on the ground that it is not liable for plaintiff's injuries because he has failed to present any competent evidence to demonstrate that CMS breached a duty owed to him as to either alleged incident.

         As for the 2015 incident, Mr. Giroir indicated on his accident investigation report and confirmed during his deposition that he felt a pop in the lower left side of his back while retrieving an oil pump off of a shelf in the engine room of the M/V EUGENIE CENAC. Advancing a “negligent storage” theory of recovery in his opposition papers, Giroir invokes Martinez v. Offshore Specialty Fabricators, Inc., in which another Section of this Court held that “[r]equiring a Jones Act seaman to work in ‘awkward and confined quarters without adequate help and without suitable tools and equipment' can be negligence under the Jones Act.” Martinez v. Offshore Specialty Fabricators, Inc., No. 08-4224, 2011 U.S. Dist. LEXIS 43641, at *14 (E.D. La. Apr. 19, 2011) (Fallon, J.) (quoting Crador v. La. Dep't of Highways, 625 F.2d 1277, 1230 (1980)). Although Mr. Giroir argues in his opposition papers that the heavy, sixty-to-seventy pound pump he was instructed to use for oil changes was “inappropriately stored in a small, tight, difficult to access overhead shelf, ” he has presented no evidence of record (through testimony or affidavit) regarding the placement of the shelf, the size of the engine room, or the absence of adequate help to assist him in retrieving the pump.

         To the contrary, Mr. Giroir has stated, under oath, that the injury could have been avoided if someone had helped him but that he elected not to ask for assistance.

Q: Could this injury have been avoided? And you circled yes. And what did you explain, how could it have been avoided?
A: Had someone helped me.
Q: All right. So there were personnel aboard the vessel available to you as an operator, that could have helped you?
A: Yes.
Q: And you, as an operator, elected not to have someone help you?
A: Yup.
Q: When you moved this pump in the engine room, was there anyone else besides you in the ...

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