Opinion
CIVIL ACTION NO. 12-1291
04-02-2013
EMMETT R. CUTCHALL, JR. v. CAL DIVE INTERNATIONAL, INC.
ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment (Rec. Doc. 27), filed by defendant Cal Dive International, Inc.
Defendant does not contend that plaintiff did not suffer any disability as a result of his injury while working as a Jones Act seaman. Rather, defendant's contention is that plaintiff became unemployable for a different, non-employment related reason — lung cancer — just a few short months after the injury. Based upon deposition testimony of plaintiff's treating oncologist stating that he doesn't think the plaintiff will work again due to lung cancer, defendant seeks to dismiss (1) plaintiff's claim for past lost wages from September 26, 2011 (the start of plaintiff's treatment with the oncologist) to the date of trial, and (2) all future lost wages. Although the defendant is "entitled to have the plaintiff's damages discounted to reflect that proportion of damages that would have been suffered even in the absence of the subsequent injury," the burden of proof "is upon the defendant to prove the extent of the damages that the preexisting condition would inevitably have caused." See Laakso v. Mitsui & Co. USA, Inc., 1989 WL 149186 *10 (E.D. La. 1989) (McNamara, J.) (quoting Maurer v. United States, 668 F.2d 98, 100 (2d Cir. 1981)). Based upon the showing made here, the Court does not find that the defendant has carried its burden of establishing that no genuine dispute exists in this regard such that it would be entitled to judgment as a matter of law on the issue.
Accordingly, for the foregoing reasons;
IT IS ORDERED that the defendant's Motion for Partial Summary Judgment (Rec. Doc. 27) is hereby DENIED.
New Orleans, Louisiana, this 2nd day of April, 2013.
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KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE