United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
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.
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
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. 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.
Giroir's Pre-Existing Medical Conditions
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
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.
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.
The CMS Application Process
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.
The 2015 and 2017 Incidents
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
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.
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.
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.
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.
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).
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.”).
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
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). To prevail in a Jones Act negligence
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)).
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).
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.
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.
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
A: Had someone helped me.
Q: All right. So there were personnel aboard
the vessel available to you as an operator, that could have
Q: And you, as an operator, elected not to
have someone help you?
Q: When you moved this pump in the engine
room, was there anyone else besides you in the ...