Fifth Circuit Affirms Summary Judgment on Seaman’s Negligence, Unseaworthiness and Maintenance and Cure Claims

In a recent unpublished opinion, the United States Fifth Court of Appeals reviewed a district court’s grant of summary judgment dismissing a plaintiff’s negligence, unseaworthiness and maintenance and cure claims.  Plaintiff, James Lett, worked for Omega Protein, Inc. (“Omega”) from 2007 to 2009 on several fishing vessels.  Lett alleged that in September 2008 he spent several hours chipping rust off an engine room floor with a needle gun.  This task allegedly forced him maintain an awkward bodily position that caused injury to his back and neck.  These injuries were not reported to Omega.  Lett sought medical treatment for his injuries in January 2009 and was prescribed medication for his pain.

In March 2009, Lett underwent a pre-employment physical for the upcoming fishing season.  Lett did not advise the physician of his prior injuries or the medication he was taking.  After being cleared, Lett hired on as a second engineer.  Part of his duties required repetitive heavy lifting of hatch covers that Lett claimed caused an aggravation of his prior injuries.

Lett filed suit in September 2010 alleging that Omega was negligent, that the vessels he worked on were unseaworthy, and that he was owed maintenance and cure for his injuries.  Omega moved for summary judgment on all of Lett’s claims.  With respect to the 2008 injury, Omega presented evidence that using a needle gun was a routine, safe and simple task that required no training and Lett’s own testimony that the needle gun was working properly.

With respect to the 2009 injury, Omega presented evidence of its policy that employees should ask for assistance if something was too heavy to lift and one of Lett’s own expert’s determination that it took only 45 pounds of force to lift the covers.  Omega also argued that Lett was not entitled to maintenance and cure for his 2009 injuries under McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968) because he intentionally concealed medical facts during his pre-employment physical, the facts were material to Omega’s hiring decision, and his non-disclosure and 2009 injuries were causally connected.  The district court granted Omega’s motion for summary judgment and Lett appealed.

On appeal, Lett argued that he created genuine factual disputes with respect to all of his claims.  First, he argued that Omega was negligent because it failed to perform a job hazard analysis on the use of needle gun as required by OSHA.  However, the court noted that the OSHA guidance cited by Lett only required job hazard analyses for jobs with high injury rates or those having potential to cause severe or disabling injury.  Here, Lett never presented any evidence to rebut Omega’s evidence that the use of a needle gun was a routine, safe and straightforward task.

Lett also argued that his liability expert, Captain Michael Stoller, opined that Omega breached its standard of care by failing to protect its employees from vibration-caused injuries.  The court found the safety standards cited by Stoller inapplicable as Lett did not claim injury from the vibration of the needle gun but, rather, from the awkward position his body was in while he chipped rust from the floor.  The court also held that Lett’s evidence of safer rust-removing equipment did not create a genuine factual dispute in light of Fifth Circuit precedent holding that simply pointing to safer methods or equipment without showing the equipment or method used by the employer is unsafe does not demonstrate an employer’s negligence.

With respect to his 2009 injury, Lett again relied on Stoller in arguing there was a genuine factual dispute for trial.  Stoller opined that Omega was negligent in failing to perform a job hazard analysis on repetitive lifting requirements, failing to train employees to observe lifting limits and failing to replace heavy hatch covers.  The Fifth Circuit was unconvinced, finding that one of Lett’s other experts contradicted Stoller’s conclusions as to the amount of Lett’s maximum lifts and that Lett only produced inadmissible hearsay evidence to support his allegations of having to personally lift 60-to-90 pound hatch covers off the deck.  The court also affirmed summary judgment as to Lett’s unseaworthiness claims for both injuries based on the same evidence it relied on in sustaining summary judgment on his negligence claims.

Lett also challenged the district court’s grant of summary judgment on his maintenance and cure claims.  Lett contended that a genuine factual dispute existed as to whether he intentionally concealed medical information because the examination form he filled out was not specifically designed to elicit information about his prior injuries.  He also argued that Omega’s claim that it would not have hired him had he disclosed his injury was not dispositive of the issue.  The court rejected Lett’s arguments and affirmed the district court’s ruling.  The inquiry on the examination form was obviously designed to elicit information about his prior injuries and the fact that the question asked and was rationally related to Lett’s physical ability to perform the job requirements rendered the information material.

Lett v. Omega Protein, Inc., 2012 WL 3205550 (5th Cir. 8/6/12)

Trevor Cutaiar

Trevor Cutaiar

Trevor Cutaiar represents employers and insurance carriers in the areas of Admiralty & Maritime Law, federal workers' compensation and General Casualty & Insurance Defense. He can be contacted at (504) 595-3000 or tcutaiar@mblb.com.
Trevor Cutaiar