Recently, Will Bland, Beth Bernstein, and paralegal Meredith Foster of Mouledoux, Bland, Legrand & Brackett, LLC, successfully invoked the McCorpen defense for their client, St. June, LLC, resulting in Judge Barbier granting St. June’s motion for summary judgment and dismissing plaintiff’s claims for maintenance and cure with prejudice. See Eldon P. Foret, Jr. v. St. June, LLC, No. 13-5111 (E.D. LA. 2014).
On January 11, 2011, Eldon Foret sustained injuries to his neck and back while employed as the captain of the M/V ST. JUNE. Foret filed suit against St. June, LLC on July 18, 2013, asserting claims under the Jones Act, maintenance and cure, as well as punitive damages. St. June filed a counterclaim on May 14, 2014, seeking reimbursement for all money paid to Foret regarding maintenance and cure and associated legal fees.
St. June’s counterclaim relied on the McCorpen defense. Specifically, it alleged that Foret had failed to disclose the existence and extent of injuries to his neck and lower back, and that the failure to disclose these facts was material to St. June’s decision to hire Foret.
St. June filed its motion for Summary Judgment before Judge Carl Barbier of the Eastern District on August 26, 2014.
To succeed on the McCorpen defense, an employer must show: (1) The seaman intentionally misrepresented or concealed medical facts; (2) The non-disclosed facts were material to the employer’s decision to hire the seaman; and (3) A causal link exists between the pre-existing injury and the injury incurred during employment.
Whether or not the seaman intentionally misrepresented facts depends on whether or not the employer requests a pre-employment examination. If the employer requests an examination, the seaman must disclose those medical facts that are plainly desired. On the other hand, if the employer does not request an examination, the seaman must disclose medical facts that, in the seaman’s own opinion, would be considered important by the ship-owner.
In determining what facts a seaman should consider important to his employer, courts consider the seaman’s employment history. For instance, an extensive work history over a long period of time familiarizes seamen with what employers expect to uncover regarding their employees’ medical history. In this case, Foret had worked on shrimp boats for 42 years and acknowledged that several boating companies as well as every oilfield company he had ever worked for had inquired into medical problems with his neck and back. Further, Foret failed to disclose an injury he sustained to his neck and back on July 2012, or that he was taking pain medication during his employment with St. June.
Regarding materiality, the Fifth Circuit has routinely held that back injuries are precisely the type of information employers consider material in deciding to hire a seaman. See Brown v. Parker Drilling Offshore, Corp., 410 F.3d 166 (5th Cir. 2005); see also Jauch v. Nautical Servs., Inc., 470 F.3d 207 (5th Cir. 2006).
Finally, courts have regularly found causal links between pre-existing and post-employment injuries where these injuries arise in the same area of the body. Brown v. Parker Drilling Offshore, Corp., 410 F.3d 166 (5th Cir. 2005). Here, the record showed that multiple doctors had treated Foret’s lumbar-spine region years before his employment with St. June. Thus, the court found a causal link between the pre and post-employment injuries based on their extreme similarities.