Kelley Sevin and Tripp DuBose recently obtained summary judgment before Judge Jane Triche Milazzo of the Eastern District of Louisiana on behalf of a Jones Act employer dismissing a seaman’s claims for maintenance and cure pursuant to the McCorpen doctrine. Under McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968) and its progeny, a Jones Act employer may not be held liable for maintenance and cure for a seaman’s injury, where: 1. the seaman intentionally concealed a pre-existing injury at the time he or she was hired; 2. The preexisting injury would have been material to the employer’s hiring decision; and 3. The new injury is to the same area of the seaman’s body as the prior injury.

In Smith v. Diamond Services Corp., et al, C/A 14-1011, 2015 WL 5559820 (E.D.La. Sept. 21, 2015), the Plaintiff alleged serious neck and back injuries after he fell while holding the tagline on a personnel basket transfer between a derrick barge and an offshore supply vessel in the Gulf of Mexico. The Plaintiff underwent a cervical disc replacement shortly after suit was filed and was later scheduled to undergo a second cervical surgery. Before the Plaintiff was hired he was required to pass a pre-employment physical. During the physical the Plaintiff failed to disclose that he had injured his back in an auto accident six years prior and his neck in another accident just six months prior. The plaintiff filed lawsuits as a result of both accidents. Kelley and Tripp developed critical evidence on the prior injuries through targeted discovery before filing a Motion for Partial Summary Judgment on McCorpen.

In opposing the Motion the Plaintiff downplayed the severity of the prior neck injury, relying on a decision Judge Milazzo had just rendered the month prior denying summary judgment on McCorpen based in part on fact questions as to whether a minor prior accident could really be material to an employer’s hiring decision. Kelley and Tripp were able to distinguish the case from Judge Milazzo’ s recent ruling and succeeded in obtaining dismissal of the Plaintiff’s maintenance and cure claim on summary judgment. The full text of Judge Milazzo’s decision in Smith v. Diamond Services Corp. is available here.

Author: Tripp Dubose