Opinion
CIVIL ACTION NO: 01-3224, SECTION: "J" (5)
September 20, 2002
MINUTE ENTRY
Before the Court is the Motion for Summary Judgment filed by defendant. Rec. Doc. 25. Plaintiff opposes the motion. The motion, set for hearing on August 28, 2002, is before the Court on briefs without oral argument. For the reasons which follow, the Court finds the motion should be granted in part and denied in part.
BACKGROUND
Plaintiff's Complaint, brought under the Jones Act and General Maritime Law, alleges that she suffered emotional injuries as result of harassment by her supervisor and co-employees, and a physical injury as the result of a slip and fall on the deck of defendant's vessel, the S.S. SGT. MATEJ KOCAK ("KOCAK"), while working for the defendant during the periods spanning September 24 — November 20, 2000, and January 23 — May 2, 2001. Plaintiff also seeks maintenance and cure.
Defendant has filed the instant motion for summary judgment based on two arguments: (1) plaintiff has failed to present any evidence of physical injury while working about the KOCAK; and (2) plaintiff is not entitled to maintenance and cure because she intentionally concealed the fact that she was taking certain medications from her employer. The Court addresses each argument in turn.
DISCUSSION
First Argument: No evidence of physical injury
Defendant's first argument is belied by the very exhibits attached to its motion. Despite defendant's insistence that plaintiff has submitted no evidence of physical injury, plaintiff has submitted her own sworn deposition, which, while confusing, does contain her testimony that she hurt her back and legs when she slipped and fell on ice on the deck of the KOCAK, and was directed by a physician to treat her injuries with ibuprofen (as she had been following a previous fall). Deposition of Kim Gardner, Jan. 29, 2002 ("Gardner Depo."), at 266. While the Court grants that this evidence may not be overwhelming to a jury or translate into huge damages, it does represent a material fact issue which precludes summary judgment on the question whether plaintiff suffered a physical injury as a result of a slip and fall on defendant's vessel.
In light of the fact that defendant attached to its motion portions of the very deposition containing the sworn testimony that plaintiff did suffer an injury from a slip and fall, the Court notes that defendant's inclusion of the statement that "Plaintiff has failed to present any evidence that she sustained any physical injury while working aboard the S.S. SGT. MATEJ KOCAK" in its statement of uncontested material facts is a patent misrepresentation bordering on the sanctionable. See FED. R. Civ. P. 11(b)(3).
On the question of plaintiff's claims for damages due to injuries suffered as a result of harassment on defendant's vessel, plaintiff concedes that the injuries she suffered were solely emotional injuries, but argues that the Fifth Circuit permits recovery under the Jones Act for purely emotional injuries, citing Plaisance v. Texaco, 937 F.2d 1004, 1009 (5th Cir. 1991) ("a claim for an emotional injury caused by emotional distress negligently inflicted, even without an accompanying physical injury or physical contact, is cognizable under the FELA."). However, plaintiff's brief neglects to mention that this holding inPlaisance was revisited by the Fifth Circuit en banc, in which it held that because the Plaisance plaintiff's injury was not "a reasonably foreseeable consequence of the defendant's negligence" he was not entitled to recover any damages, and further, that the facts of that case did not permit the court "to decide whether or under what circumstances we might permit recovery of damages for purely emotional injuries."Plaisance v. Texaco, Inc., 966 F.2d 166, 168-69 (5th Cir. 1991) (en banc). More recently, in considering a Jones Act claim for emotional injuries as a result of sexual harassment, the Fifth Circuit has stated that if a plaintiff "cannot prove she suffered physical manifestations of emotional injury. . . ., she cannot recover her claims of emotional harm." Martinez v. Bally's Louisiana, Inc., 244 F.3d 474, 478 (5th Cir. 2001) (emphasis added). While the Court tends to agree with the observation of the Plaisance I court that "an emotional injury can be every bit as harmful, debilitating and destructive of the quality of one's life as a physical injury," 937 F.2d at 1009, under controlling law, absent evidence of a physical manifestation of her emotional injuries, plaintiff cannot recover under the Jones Act for damages due to harassment on defendant's vessel. Accordingly, her Jones Act claim for compensatory damages for harassment must be dismissed. However, this finding does not require dismissal of plaintiff's claims for maintenance and cure related to her emotional injuries, as discussed more fully below.
Second Argument: Plaintiff's eligibility for maintenance cure:
"When a seaman becomes ill or injured while in the service of his ship, the shipowner must pay him maintenance and cure regardless of whether the shipowner was at fault or whether the ship was unsweaworthy."Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir. 1995) (en banc). This is true even when the seaman's illness is purely psychological. Harrell v. Air Logistics, Inc., 805 F.2d 1173, 1174 (5th Cir. 1986); see also, In re Gulf South Marine Transp., Inc., 2002 WL 83643, *2 (E.D. La., Jan. 17, 2002).
Defendant argues that under the rule of McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968), plaintiff is not entitled to maintenance and cure benefits because (1) she intentionally misrepresented or concealed material facts which (2) were material to defendant's decision to hire her, and (3) that a connection exists between the withheld information and the injury complained of in the instant suit.
Specifically, defendant argues that plaintiff was taking psychotropic medication at the time of her hire, that she declined to name the medication on her pre-employment health form, and that if Waterman had known plaintiff was taking such medication, it would not have hired her. Defendant also argues that the emotional injury she claims to have suffered is connected to the condition for which she was receiving the psychotropic medication.
While it is true that in response to the question on defendant's pre-employrnent physical form as to whether she was taking any prescription medication plaintiff checked off the "yes" box, but then failed to mention that she was taking Zoloft in the space provided to list which prescription medications she was taking, plaintiff testified that she failed to specifically list her medication because she had brought them with her and personally showed them to the nurse doing the physical. Gardner Depo., 210. Given this, the Court simply does not find that there was any intentional concealment or misrepresentation by plaintiff as to the medication she was taking, and thus defendant has failed to satisfy the requirements of McCorpen to deny her maintenance and cure.
A note on civility, or the lack of it
Prior to the due date for the opposition, plaintiff's counsel contacted defense counsel to request a two-week continuance of this motion because his wife was scheduled to undergo surgery the week before the opposition was due. Defense counsel declined to agree to a two-week continuance; accordingly, the Court granted plaintiff's counsel's request for an extension of time to file its opposition, and maintained the August 28 hearing date. Nonetheless, defense counsel devoted a significant portion of its reply brief to its objection to the late-filed opposition.
The Code of Professionalism for the Eastern District of Louisiana provides in part: "I will consult with other counsel whenever scheduling procedures are required and will be cooperative in scheduling . . . hearings . . . and in the handling of the entire course of any legal matter." Similarly, the ABA Guidelines for Litigation Conduct provide,inter alia: "We will not time the filing or service of motions or pleadings in any way that unfairly limits another party's opportunity to respond;" (Lawyers' Duties to Other Counsel, ¶ 12); "We will endeavor to accommodate previously scheduled dates for hearings, depositions, meetings, conferences, vacations, seminars, or other functions that produce good faith calendar conflicts on the part of other counsel;" (Id., ¶ 15); "We will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided our clients' legitimate rights will not be materially or adversely affected."Id., ¶ 17. The Court considers defense counsel's behavior with respect to the requested two-week continuance violative of all of the quoted civility guidelines. Defense counsel are admonished to avoid such unprofessional conduct in the future and are ordered to write a letter of apology to opposing counsel, with a copy to the Court.
IT IS ORDERED that Waterman's Motion for Summary Judgment (Rec. Doc. 25) should be GRANTED in PART, and plaintiff's Jones Act claim for emotional injuries suffered as a result of harassment are DISMISSED; in all other respects, the motion is DENIED.