JAMES E. GOWDY, Plaintiff - Appellant
MARINE SPILL RESPONSE CORPORATION; OSRV NEW JERSEY RESPONDER, its Apparel, Equipment, Engines, Freight, etc., in rem, Defendants - Appellees
from the United States District Court for the Southern
District of Texas
KING, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
personal injury Jones Act case presents two issues. The first
is whether the district court erred by failing to act on an
allegation that the defendant-appellee provoked the
plaintiff-appellant's attorney to withdraw. The second is
whether the district court erroneously granted summary
judgment to the defendant-appellee because the
plaintiff-appellant lacked expert medical evidence of
causation. On the first issue, we affirm. On the second, we
reverse and remand.
James Earlton Gowdy sued Defendant-Appellee Marine Spill
Response Corporation (MSRC) for unseaworthiness and Jones Act
negligence. Gowdy alleged that he, while employed as a seaman
aboard one of MSRC's vessels, injured his left foot when
he stepped off the last rung of a ladder that was dangerously
raised four feet off the floor. He also claimed that there
was clutter beneath the ladder that required him to jump off
to the left. There were no witnesses to the incident.
by attorney Matthew Shaffer, Gowdy filed a complaint in the
United States District Court for the Southern District of
Texas. Less than three months into the litigation, Shaffer
moved to withdraw as counsel, citing "irreconcilable
differences over issues related to . . . the management of
this litigation." Gowdy opposed the motion. After a
hearing, the district court permitted Shaffer to withdraw.
Gowdy alleged that counsel for MSRC caused Shaffer's
withdrawal by providing Shaffer with "false and
misleading information about another person with a similar
name." Specifically, Gowdy averred that MSRC's
counsel sent Shaffer certain documents from a Mississippi
criminal case against someone named James Edward
Gowdy. According to Gowdy, Shaffer pointed at MSRC's
counsel at the conclusion of the hearing on the motion to
withdraw and said, "Here's the guy who sent us all
this false information about you." Following
Shaffer's withdrawal, Gowdy proceeded (and remains) pro
eventually moved for summary judgment. The motion was filed
electronically on July 31, 2017. Three hours later, a
"Motion to Oppose Summary Judgment" from Gowdy was
electronically entered on the docket. It had been postmarked
July 29, 2017. With due acknowledgement of Gowdy's pro se
status, the district court construed that filing as
Gowdy's response to MSRC's motion or, alternatively,
a cross-motion for summary judgment. We will do the same.
motion began by describing Gowdy's pre-incident medical
history of diabetes and chronic kidney disease, as was
revealed both in Gowdy's deposition and also in the
deposition of his long-time treating physician, Dr. Chad
Clause. Dr. Clause's records reflected that Gowdy had
been receiving treatment for pressure ulcers on his left foot
for about two-and-a-half years preceding the ladder incident.
The records also indicated that Gowdy went to see Dr. Clause
about four days after the ladder incident. Dr. Clause's
notes from that appointment stated, "On boat, hit foot,
the deposition, Dr. Clause described that appointment as
concerning "an injury" that was "something
additional to what we were doing at that time." Dr.
Clause also characterized that injury as a
"trauma." The day after Gowdy's appointment
with Dr. Clause, a CT scan revealed fractures in Gowdy's
Clause's records described Gowdy's foot as having
developed "Charcot changes," which Dr. Clause
described as a "breakdown of certain areas of the
foot." According to Dr. Clause, Charcot is typically
experienced by patients with diabetes and it can be triggered
by "any kind of trauma to the foot." As Dr. Clause
laid out the timeline in this case, "From the trauma
when he had an injury at work, . . . that's when we ended
up treating the fracture. And from the fracture . . . after
that is when he developed the Charcot." According to Dr.
Clause, "the Charcot never arose until after . . . he
had the fracture."
after the incident, Dr. Clause performed foot surgery on
Gowdy. Two months after that, Gowdy underwent a second
surgery to correct complications from the first. Due to
continuing problems, Gowdy's foot was later amputated.
motion for summary judgment highlighted testimony from Dr.
Charles Bain, its designated biomechanical expert. Dr. Bain
explained that he had examined the depositions of Gowdy and
Dr. Clause along with medical records from the seven medical
facilities that had treated Gowdy. He also reviewed
photographs of the accident site. Based on that evidence, Dr.
Bain opined that Gowdy's foot injury "would not have
occurred by Mr. Gowdy stepping off the bottom rung of the
ladder." He specified:
Based on the various imaging studies' reports, Mr. Gowdy
sustained either a high energy impact to his left mid foot or
a crush injury. This type of injury would not occur by
stepping off the bottom (fourth) welded rung on the wall of
the engine room. Stepping off this rung can be made in a
controlled manner. Even coming off the bottom rung in an
uncontrolled manner is unlikely to yield the loading
necessary to cause Mr. Gowdy's injuries. Mr. Gowdy has
described jumping off the bottom rung. Had he done this and
landed solely on his left foot, it is unlikely to see his
injury pattern considering the low energy involved with this
Bain concluded, "[I]t is likely that Mr. Gowdy's
fractures and joint disruptions in his left foot developed
insidiously over time and were not the result of a one-time
motion for summary judgment argued that Gowdy's failure
to designate an expert of his own was "fatal to his
claim" because a Jones Act plaintiff bears the burden of
proving causation by medical expert testimony.
opposition highlighted Dr. Clause's observation that the
Charcot changes had occurred in his left foot only
after the ladder incident. Gowdy also cited three
exam summaries from post-incident medical visits indicating
that Gowdy's left foot evinced Charcot changes while his
right foot had no deformity. He argued, "It is something
anyone can understand; you cannot step off a 48 inch high
ladder rung to a metal floor and expect to not get
hearing, the district court orally granted MSRC's motion
"because [Mr. Gowdy did] not have an expert to testify
to the jury on the issue of medical causation." A
written order followed, which stated that Gowdy's
evidence was insufficient to create a genuine dispute of
material fact ...