ORDER AND REASONS
MARTIN L.C. FELDMAN, District Judge.
Before the Court is the plaintiffs' motion to reconsider or for new trial. For the reasons that follow, the motion is DENIED.
This litigation arises out of a Mississippi River pilot's allegations that he suffered a career-ending hip injury climbing an unsafe ladder while boarding the MARINE TRADER to take over piloting duties.
The Court assumes familiarity with the facts of the case as summarized in the Court's June 19, 2017 Order and Reasons. Craig C. Andrews worked as a river pilot for 25 years, regularly climbing ladders to board thousands of ships. During his career as a river pilot, in 2009, Mr. Andrews underwent bilateral hip replacements. Dr. Chad Millet performed the surgeries. Mr. Andrews continued working as a full-time pilot with his artificial hips.
Years later in December 2015, Mr. Andrews called to schedule an appointment with Dr. Millett; the appointment was scheduled for January 28, 2016. Four days before his pre-scheduled appointment with Dr. Millet, on January 24, 2016, Mr. Andrews was assigned to pilot the M/V TRADER in Pilottown, Louisiana in Plaquemines Parish to the Port of New Orleans. Mr. Andrews boarded the MAINE TRADER midstream using an industry-standard combination ladder, which employed both a pilot ladder (also known as a Jacob's ladder) and the ship's accommodation ladder. He stepped from the pilot boat onto the ship's pilot ladder and started climbing up. As he climbed up the pilot ladder, he reached a point where he had to transition from the top of the pilot ladder onto the ship's accommodation ladder by stepping with his right foot onto the accommodation ladder's lower platform. After he stepped onto the accommodation ladder platform and started walking up the steps of the accommodation ladder, he says he heard clicking in his left hip. He did not feel any pain at that time. Nor did he complain to the ship's crew. He never requested that an accident report be completed. Instead, he continued working without complaint.
Mr. Andrews safely piloted the vessel for seven hours before he left the ship by climbing down the same combination ladder midstream at Poydras. Mr. Andrews did not seek medical treatment when he left the ship. But four days later, he did attend the previously-scheduled January 28, 2016 appointment with Dr. Millet. On the sign-in sheet for his January 28 appointment with Dr. Millet, Mr. Andrews indicated that his visit was not the result of an injury, it was not work-related, and that his symptoms had begun two months earlier. When he saw Dr. Millet, Mr. Andrews complained of clicking and triggering in his left hip, which he stated had begun gradually, without injury, about two months earlier.
Left hip x-rays taken on January 28, 2016 show significant wear of the polyethylene liner with some superior migration of the head and some subluxation (in layman's terms, the head was not located in the middle of the socket). As a result, almost one month later on February 24, 2016, Dr. Millet performed left hip revision surgery, which involved replacing the socket and ball in the left hip. During the surgery, Dr. Millet observed that the superior portion of the polyethylene liner was fractured; such a fracture could be caused by a high-impact injury, or steady wear over time. Dr. Millet could not tell what caused the fracture by observing it during the surgery, but Dr. Millet has opined that he believes that the fracture caused Mr. Andrews's left hip clicking and pain that Mr. Andrews had told him had begun two months before his late January 2016 appointment.
Dr. Millet saw Mr. Andrews twice more in 2016: on March 22 and on May 24. When Mr. Andrews again completed a sign-in sheet for the May 24 visit, he stated on that form (again) that his visit was not due to an injury and was not work-related. Dr. Millet made no determination as to Mr. Andrews's physical limitations or whether he could resume work.
To determine if he could be released back to work after his hip revision surgery, Mr. Andrews had an appointment on March 25, 2016 with Dr. Bourgeois. Dr. Bourgeois did not believe that Mr. Andrews could return to work at that time. A few weeks later on April 13, 2016, Dr. Bourgeois completed a disability packet for Sun Life Assurance Company of Canada, Mr. Andrews's disability insurer, stating that Mr. Andrews was permanently disabled from working in his previous position as a river pilot. Dr. Bourgeois sent a letter to the insurance company the next day, stating that Mr. Andrews is not fit for duty as a river pilot and that this status is "more likely than not" permanent. Nine days later, however — when Mr. Andrews returned to see Dr. Bourgeois on April 22, 2016 to undergo a Coast Guard physical examination — Dr. Bourgeois declared to the Coast Guard that Mr. Andrews "passed all aspects of the USCG physical requirements." That same day, Dr. Bourgeois declared that Mr. Andrews passed all aspects of a functional capacity evaluation with no restrictions. Dr. Bourgeois has not seen Mr. Andrews since April 22, 2016. A couple months later, Mr. Andrews retired from river piloting.
On August 22, 2016, Mr. Andrews and his wife, Beverly R. Andrews, sued Lomar Corp. Ltd., Lomar Shipping Ltd., and Hapag-Lloyd, AG in state court, seeking to recover damages for his allegedly career-ending hip injury.
On January 24, 2017, Mr. Andrews saw Dr. Millet, who opined that Mr. Andrews was "doing fine with his hip" such that he could resume the same activities he was able to do after his first hip replacement surgery. Dr. Millet's deposition was taken on February 22, 2017. Like Dr. Watson,
During his deposition on March 7, 2017, Dr. Bourgeois admitted that he is not familiar with Mr. Andrews's condition before he climbed the ladder and, therefore, he has no opinion on whether climbing the ship's ladder necessitated Mr. Andrews's left hip revision surgery. Dr. Bourgeois admitted that because Dr. Millet performed the left hip revision surgery, he is in a better position to render an opinion on medical causation, and Dr. Bourgeois deferred to Dr. Millet on the medical causation issue.
Almost three weeks after giving his deposition, Dr. Bourgeois wrote a letter to Mr. Andrews's counsel. In this March 24, 2017 "report," as plaintiff characterizes it, Dr. Bourgeois opined that climbing the pilot ladder "could have" injured Mr. Andrews's left hip. He states:
The defendants moved for summary judgment dismissing the plaintiffs' claims on the ground that medical causation cannot be proved, and they simultaneously moved to exclude Dr. Bourgeois's medical causation opinion. On June 19, 2017, the Court granted the motion, finding that the plaintiffs failed to submit competent medical evidence that it is more probable than not that Mr. Andrews's injuries were caused by the ladder incident. A judgment in favor of defendants issued on June 21, 2017. The plaintiffs now move for a new trial or reconsideration of the Court's June 19 Order and Reasons and June 21 Judgment in favor of the defendants.
Rule 59(e) allows a court to alter or amend a judgment if the movant establishes a manifest error of law or presents newly discovered evidence. Fed. R. Civ. P. 59(e).
"A Rule 59(e) motion `calls into question the correctness of a judgment.'"
The plaintiffs urge the Court to reconsider its June 19, 2017 Order and Reasons granting summary judgment in favor of the defendants, noting these "alleged errors": there are genuine issues of material fact as to causation of the injury; the Court failed to consider the totality of the evidence, including Dr. Bourgeois's "expert report"; the Court failed to apply
On June 19, 2017, the Court granted the defendants' motion for summary judgment after determining that the plaintiffs had failed to submit competent evidence to satisfy their burden of proving (or identifying a genuine dispute of material fact regarding) medical causation. Although the plaintiffs now ask the Court to reconsider its ruling, they fail to identify or submit any evidence that would satisfy their burden on medical causation; there is still no medical opinion in the record that the ladder more likely than not caused Mr. Andrews's hip condition necessitating revision surgery. Instead, the plaintiffs simply re-urge their arguments, which the Court rejected.
First, the plaintiffs argue that Dr. Bourgeois's unsworn letter opining that the ladder "could have" caused a hip fracture, if considered, would carry the plaintiffs' burden of identifying a genuine dispute of material fact concerning medical causation. The Court disagrees. Even assuming that the plaintiffs put Dr. Bourgeois's unsworn letter in admissible form, which they still have not done, Dr. Bourgeois's opinion falls short of meeting the plaintiffs' preponderance burden on medical causation. Dr. Bourgeois's equivocation — that the ladder incident "could have" caused Mr. Andrews's hip condition — suggests a mere possibility. In suggesting that the probabilities are at best evenly balanced, the opinion is no better than speculation or guesswork, which is insufficient to meet the plaintiffs' burden.
Second, the plaintiffs contend that reconsideration is warranted because the Court failed to apply
Finally, for the first time, the plaintiffs advance arguments regarding the defendants' liability for aggravating Mr. Andrews's preexisting hip trouble. Also for the first time, the plaintiffs urge the Court to apply a different presumption regarding causation, the so-called
Accordingly, the plaintiffs' motion to reconsider or for new trial is hereby DENIED.