United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITE JUDGE
the Court is a Motion for Partial Summary Judgment
(Rec. Doc. 54) filed by the Defendant B&J
Martin, Inc. (“B&J Martin”). B&J Martin
seeks to dismiss the Plaintiff Allen Taylor's claims for
maintenance and cure and punitive damages on the following
grounds: (1) Taylor has reached maximum medical improvement
(“MMI”) and (2) Taylor willfully concealed and/or
misrepresented preexisting injuries to his back on his
pre-employment medical history questionnaires. (Rec. Doc.
54-1, p. 1, B&J Martin's Memorandum in Support).
Taylor opposes the motion (Rec. Doc. 59), and B&J Martin
has replied. (Rec. Doc. 62). The motion, submitted for
consideration on August 21, 2019, is before the Court on the
briefs without oral argument.
General Facts and Procedural History
of 2009, B&J Martin employed Taylor as a seaman as part
of a work release program. (Rec. Doc. 54-1, p. 2, B&J
Martin's Memorandum in Support). Upon that program's
completion, B&J Martin later rehired Taylor in July of
2011. Id. Taylor remained employed by B&J Martin
up until the day that the alleged incident occurred.
Id. Before beginning employment on either occasion,
B&J Martin required Taylor to fill out and complete a
medical information questionnaire supplied by B&J Martin.
Id.; (Rec. Doc. 54-1, B&J Martin's
Memorandum in Support). Although Taylor fully completed
B&J Martin's 2009 questionnaire, he only partially
filled out B&J Martin's 2011 questionnaire. (Rec.
Doc. 54-2, B&J Martin's 2009 Questionnaire); (Rec.
Doc. 54-3, B&J Martin's 2011 Questionnaire).
working aboard the F/V DUSTY DAWN on October 14, 2015, Taylor
was descending a flight of stairs one morning when he stepped
on a cigarette lighter which caused him to slip and fall to
the vessel's deck. (Rec. Doc. 1, ¶ 5-6,
Plaintiff's Complaint). This fall allegedly caused lumbar
spine damage, specifically to his L5-S1 disc, which required
three successive surgeries to correct. (Rec. Doc. 54-1, p.
6-8, B&J Martin's Memorandum in Support). However,
B&J Martin now moves this Court to grant partial summary
judgment finding that: (1) Taylor has reached MMI, (2) Taylor
is not entitled to any maintenance and cure damages because
of B&J Martin's valid McCorpen defense, and
(3) Taylor cannot claim punitive damages because B&J
Martin dutifully fulfilled its maintenance and cure
obligations to date. Id. at 1.
Medical Testing, Diagnosis, and Treatment
after the fall occurred, Taylor went to Dr. Ralph Katz who
recommended an MRI on Taylor's lumbar spine and
prescribed pain medication. Id. at 6. After
reviewing the MRI results, Dr. Katz administered an epidural
steroid injection on November 10, 2015. Id. However,
Taylor still complained of back pain, so Dr. Katz performed a
microscopic laminectomy discectomy right L5-S1 surgery on
September 6, 2016. (Rec. Doc. 54-11, p. 2, Dr. Katz's
Taylor failed to receive any relief from this first surgery,
so he decided to visit a second doctor, Dr. Manish Singh.
(Rec. Doc. 54-11, p. 1, Dr. Singh Operative Note). Dr. Singh
then recommended that Taylor undergo a second surgery which
occurred on September 6, 2016. Id. This consisted of
a re-exploration of the previous LS-Sl discectomy with
right-sided LS laminotomy and microdiscectomy of the
recurrent disc herniation. Id.
failing to find relief from either of the two previous
surgeries, Taylor next visited Dr. David Ferachi on August
15, 2017. (Rec. Doc. 54-12, p. 16, Dr. Ferachi Procedure
Report). Dr. Ferachi diagnosed him with lumbar degenerative
disc disease, spondylosis, and lumbar radiculopathy.
Id. at 13. Dr. Ferachi subsequently performed a
one-level lumbar fusion on November 10, 2017. Id. at
p. 49. But, like the previous surgeries, this third procedure
failed to provide Taylor with any permanent relief from his
pain. Id. Dr. Ferachi even informed Taylor at a
subsequent follow-up appointment that he had no further
treatment options to offer and placed Taylor at MMI on March
19, 2019. (Rec. Doc. 54-13, p. 4, Dr. Ferachi's Note). In
the hope of finding some type of enduring solution, Taylor
then visited Dr. Andrew Todd on April 29, 2019 for a second
opinion. (Rec. Doc. 54-14, p. 2, Dr. Todd's Report). Dr.
Todd reviewed Taylor's MRI and, on May 20, 2019,
I see nothing to address, from a spine surgery point of view.
He has attempted a spinal cord stimulator and unfortunately
he has not gained relief from that. The only other modality
that I believe could be helpful for him would be to consider
an intrathecal pump and that is something he can certainly
discuss with his pain management physician in Georgia.
Unfortunately, I have nothing to offer him from a surgical
point of view and this is something he will have to continue
to pursue via pain management. (Rec. Doc. 54-15, Dr.
as a result of Dr. Ferachi and Dr. Todd's statements,
B&J Martin stopped making maintenance and cure payments
to Taylor on May 23, 2019. (Rec. Doc. 54-8, April Foret's
Declaration). Before that day, B&J Martin paid for all of
Taylor's maintenance and cure expenses which included
three surgeries, pain management, physical therapy, and other
medical expenses starting since October 14, 2015.
judgment is appropriate only if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any," when viewed
in the light most favorable to the non-movant, "show
that there is no genuine issue as to any material fact."
TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759
(5th Cir. 2002) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a
material fact is "genuine" if the evidence is such
that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477