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Gowdy v. Marine Spill Response Corp.

United States Court of Appeals, Fifth Circuit

May 23, 2019

JAMES E. GOWDY, Plaintiff - Appellant
v.
MARINE SPILL RESPONSE CORPORATION; OSRV NEW JERSEY RESPONDER, its Apparel, Equipment, Engines, Freight, etc., in rem, Defendants - Appellees

          Appeal from the United States District Court for the Southern District of Texas

          Before KING, HIGGINSON, and COSTA, Circuit Judges.

          STEPHEN A. HIGGINSON, CIRCUIT JUDGE.

         This 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.

         BACKGROUND

         Plaintiff-Appellant 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.

         Represented 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 se.

         MSRC 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.

         MSRC's 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, painful, red."

         During 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 left foot.

         Dr. 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."

         A month 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.

         MSRC's 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 maneuver.

         Dr. 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 loading event."

         MSRC's 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.

         Gowdy's 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 injured."

         After a 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 ...


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