      Case: 13-30357          Document: 00512460540              Page: 1      Date Filed: 12/04/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                                       United States Court of Appeals
                                                                                                Fifth Circuit

                                                                                              FILED
                                          No. 13-30357                                 December 4, 2013
                                        Summary Calendar
                                                                                         Lyle W. Cayce
                                                                                              Clerk
CLARENCE STOKES,
                                                          Plaintiff–Appellant
v.

ATLANTIC SOUNDING COMPANY, INCORPORATED; WEEKS MARINE,
INCORPORATED,

                                                          Defendants–Appellees
------------------------------------------------------------------------------------------------------------
WEEKS MARINE, INCORPORATED; ATLANTIC SOUNDING COMPANY,
INCORPORATED,
                                                          Plaintiffs—Appellees

v.

CLARENCE STOKES,
                                                          Defendant—Appellant



                      Appeal from the United States District Court
                          for the Eastern District of Louisiana
                                USDC No. 2:11-CV-2366


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*



        *Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-30357
      Plaintiff–Appellant Clarence Stokes (“Stokes”) appeals the district
court’s dismissal of his claims against Defendants–Appellees Atlantic
Sounding Company, Inc. (“Atlantic Sounding”) and Weeks Marine, Inc.
(“Weeks Marine”) following a bench trial. At issue is whether the district court
erred in concluding that Stokes failed to show that he had sustained an injury
necessary to make out his claims for (1) unseaworthiness, (2) maintenance and
cure, and (3) negligence under the Jones Act, 42 U.S.C. § 30104, and the
general maritime and admiralty law. For the reasons below, we affirm.
                                    I. FACTS
      Stokes was an employee of Atlantic Sounding. Weeks Marine owns and
operates a dredge vessel named the Capt Frank to which Stokes was assigned.
On his application for employment with Atlantic Sounding, Stokes omitted any
mention of a previous employment with TODCO during which he suffered an
accident and received a settlement, despite the fact that the application asked
specific questions regarding previous accidents.
      On April 18, 2011, employees aboard the Capt Frank found Stokes
calling for help after an apparent fall from a ladder. Stokes was taken to
Terrebonne General Medical Center where he was initially seen by Dr. Owen
Grossman. Upon his initial examination, Dr. Grossman found no bruises,
abrasion, or lacerations—typical indicators of a fall. After more extensive
testing, the medical team at Terrebonne General Medical Center was unable
to discern the cause of Stokes’s pain and determined that Stokes was probably
malingering.
      The Terrebonne medical team recommended and arranged to transfer
Stokes to East Jefferson General Hospital in New Orleans so that he could
undergo   inpatient   psychiatric    treatment     to   further   investigate   the
malingering. Stokes refused this recommendation and instead was admitted
to Forest General Hospital in Hattiesburg, Mississippi on April 27, 2011.
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                                 No. 13-30357
Doctors again were unable to find any physical explanation for Stokes’s claim
of pain. Upon his discharge, doctors recommended Stokes see an orthopedist
and a psychiatrist. Stokes failed to comply with the recommendation and did
not follow up on his treatment until September 12, 2011. On this date, in
preparation for the present litigation and on the advice of his attorney, Stokes
saw Dr. Troy Beaucoundray, a neurologist and interventional pain
management specialist. In addition, at the behest of the defendants, Stokes
was seen by psychiatrist Dr. Rennie Culver.
      On December 21, 2011, Stokes brought a lawsuit against Atlantic
Sounding and Weeks Marine in the United States District Court for the
Eastern District of Louisiana. Stokes contended that Atlantic Sounding and
Weeks Marine were liable for his injuries under negligence principles and that
he was entitled to maintenance and cure. Following a scheduling conference
and the completion of discovery, the matter proceeded to a bench trial.
      At trial, several of the doctors who had cared for Stokes after his alleged
accident testified that they had been unable to identify the cause of his pain
and that they could not rule out malingering or conversion. Dr. Culver, the
only psychiatrist to see Stokes prior to trial, testified that he believed Stokes
was malingering. Dr. Beaucoundray was the only testifying doctor to state
that, more likely than not, an event on April 18, 2011 had caused Stokes’s pain.
However, Dr. Beaucoundray could not say with certainty that the pain was a
result of a fall from a ladder. He also made clear that at the time he was
treating Stokes, he was unaware of Stokes’s earlier injury while employed with
TODCO in 2006. In addition, Dr. Beaucoundray stated that he would have
liked to see Stokes be more committed to his prescribed physical therapy.
      In its oral reasons for judgment, the trial court identified four issues in
the case: (1) whether Stokes actually had an accident or whether he falsified
the event itself; (2) assuming that he indeed fell from a ladder, whether Stokes
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                                  No. 13-30357
was injured on April 18, 2011; (3) the extent of Stokes’s injuries and resulting
damages; and (4) whether Stokes’s failure to disclose past injuries barred
recovery for maintenance and cure under McCorpen v. Central Gulf Steamship
Corporation, 396 F.2d 547, 548–49 (5th Cir. 1968). After acknowledging the
issues, the court determined that the second issue was dispositive. The trial
judge weighed the opinions of the doctors’ testimony and ruled that Stokes
could not satisfy his burden of proof in showing that he sustained an injury on
April 18, 2011.   In an abundance of caution, the district court also analyzed
the other issues and found that even were it to address them, it would still
dismiss Stokes’s claim. The district court entered a judgment in favor of
Appellees on April 8, 2013 and dismissed Stokes’s claims with prejudice.
Stokes filed a notice of appeal on the same day.
      Stokes raises four issues on appeal. He argues that the district court
erred when it concluded: (1) he was not entitled to maintenance and cure
because he willfully rejected recommended medical care; (2) no accident took
place on April 18th, 2011, despite overwhelming evidence to the contrary; (3)
Atlantic Sounding and Weeks Marine were not negligent under the Jones Act
and that the vessel was seaworthy even though several witnesses testified that
the ladder from which the plaintiff fell was improperly secured; and (4) no
claim to punitive damages existed.
                               II. DISCUSSION
      In a bench-tried admiralty case, a district court’s rulings concerning
negligence and causation are findings of fact, and are reviewed only for clear
error. Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373, 376 (5th
Cir. 2012). We must also give “due regard to the trial court’s opportunity to
judge the witnesses’ credibility.” Id. (quoting Fed. R. Civ. P. 52(a)(6)) (internal
quotation marks omitted). We may not find clear error if the district court’s


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                                 No. 13-30357
finding of fact is plausible in light of the record as a whole, even if the Court
would have weighed the evidence differently. Id.
       Stokes contends that the district court ruled against him in the face of
clear evidence that an injury occurred on this date. To support this contention,
he claims that the testimony of Dr. Culver should be given little to no weight
and that the testimony of Dr. Beaucoundray should be given more. He cites
Fontenot v. Wal-Mart, 08-158 (La. App. 3 Cir. 3/4/09); 5 So. 3d 298, a case in
which a state appellate court discounted Dr. Culver’s testimony because he
was not a treating physician and was used only to examine the plaintiff for
trial purposes. Id. at 307. We are not bound by the state appellate court’s
determination, but, even if we were, we would still find this case
distinguishable. In Fontenot, the appellate court excoriated the trial court for
relying principally on Dr. Culver’s opinion formed on scant interactions with
the patient and only in preparation for the trial. See id. at 303 (describing how
Dr. Culver met with patient for less than two hours and failed to review
pertinent records). Here, however, the district court weighed the opinions of
all of the physicians that treated Stokes, including those of Dr. Beaucoundray
and Dr. Culver. The trial judge stated, “Though Dr. Culver’s analysis might
seem    dispositive,   the   Court   further   carefully   evaluated   Dr.    Troy
Beaucoundray’s testimony.” Therefore, we are not inclined to find clear error
in this case simply because of the state appellate court’s determination about
Dr. Culver’s competence and credibility in a different case that is factually
distinct.
       There is no evidence that the district court’s findings of fact were
implausible in light of the record as a whole. See Manderson, 666 F.3d at 373.
There is no evidence to lead to such a determination. The district court was
apprised that questions of malingering arose early in Stokes’s treatment and
continued throughout his care at several different hospitals.           Only Dr.
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                                  No. 13-30357
Beaucoundray, a physician sought at the direction of Stokes’s attorney,
testified that he believed that more likely than not “something” occurred on
April 18, 2011 that led to Stokes pain. However, even he could not say with
any medical certainty that the pain was the result of a fall from a ladder.
      Giving due regard to the district court’s opportunity and competence in
weighing the witnesses in a bench trial, we cannot conclude that the district
court erred in finding that Stokes had not proven that an event on April 18
caused his injury. Because we agree with the district court that this issue is
dispositive of all Stokes’s claims, we affirm on this ground and need not reach
the other issues Stokes raised.
                                  III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




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