                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 99-30385
                             Summary Calendar
                          _____________________



WILLIAM NOEL, III,

                                          Plaintiff-Appellee-Appellant,

                                 versus

JACQUELINE NOEL,

                                                  Intervenor-Appellant,

                                 versus

DAYBROOK FISHERIES, INC.; ET AL.,

                                                            Defendants,

DAYBROOK FISHERIES, INC.

                                              Defendant-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
                  Eastern District of Louisiana
                      USDC No. 97-CV-3985-F
_________________________________________________________________
                          April 12, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     The issue presented by this appeal is whether the district

court correctly entered a judgment as a matter of law for the

defendant,     Daybrook    Fisheries,     Incorporated,   denying   the


     *
      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this opinion should not be published and is not precedent except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.
plaintiff’s,    William   Noel,   claim   for   maintenance   and   cure.1

Finding no error on the part of the district court, we affirm.

     As an initial matter, Noel has failed to demonstrate that the

district court abused its discretion in preventing him from arguing

that the questions asked by Daybrook regarding his prior medical

history ran afoul of the American with Disabilities Act.              See

Flannery v. Carroll, 676 F.2d 126, 130 (5th Cir. 1982)(stating that

“unless the [district] has abused its discretion, its ruling

concerning the [pre-trial] order will not be disturbed on appeal”).

The district court, holding that Noel had waived any claim of

illegality pursuant to the ADA because such a claim was not

included in the pre-trial order, stated:

     This business about the American with Disabilities Act is
     not an issue that has been raised properly. . . [The
     plaintiff’s] pretrial memorandum fails to raise it. . . .
     So if, indeed, there was an American with Disabilities
     Act issue, it has not been properly raised, it is not
     before this Court, and it has been waived.

     After reviewing the pre-trial order, it is apparent that Noel

did not raise the issue of the legality of the questions asked by

Daybrook.      As we have noted on numerous occasions: “Once the

[pre-trial] order is entered, it controls the scope and course of

the trial.     If a claim or issue is omitted from the order, it is


     1
      ”Maintenance and cure is a contractual form of compensation
given by maritime law to a seaman who falls ill while in the
service of his vessel. The shipowner’s obligation is deep-rooted
in maritime law and is an incident or implied term of a contract
for maritime employment.”    McCorpen v. Central Gulf Steamship
Corp., 396 F.2d 547, 548 (5th Cir. 1968).




                                    2
waived.”   Flannery, 676 F.2d at 129 (citing Fed.R.Civ.P. 16); see

also Allen v. United States Steel Corp., 665 F.2d 689, 696 (5th

Cir. 1982).   Thus, because Noel has failed to demonstrate that the

district court abused its discretion in preventing him from raising

the issue of the illegality of the questions asked by Daybrook, the

judgment of the district court in this respect is affirmed.2

     Focusing on the merits of Noel’s maintenance and cure claim,

it is clear that he has failed to demonstrate that the district

court erred in granting a judgment as a matter of law for Daybrook.

An employer may deny maintenance and cure if he can establish that:


    2
     It should be noted, that the district court, in its Order and
Reasons denying Noel’s motion for a new trial, addressed and
rejected Noel’s claim that the questions posed by Daybrook during
the physical examination regarding his past medical history were
forbidden by the ADA. The district court held:
     First, [Noel] has not shown that the questions asked were
     illegal under the ADA. The ADA expressly allows ‘pre-
     employment inquiries into the ability of an applicant to
     perform    job-related    functions.’       42   U.S.C.A.
     § 12112(d)(2)(B). It also allows an employer to require
     a medical examination after an offer of employment has
     been made, and allows inquire into medical history and
     possible disability, if the inquire is ‘job-related and
     consistent with business necessity.’         42 U.S.C.A.
     § 12112(d)(3),(4)(A).
Thus, the district court concluded, “[t]he question at issue seems
proper and necessary.”
     We find the reasoning of the district court to be sound and
well reasoned in the light of 42 U.S.C. § 12112. See, e.g., EEOC
v. Texas Bus Lines, 923 F.Supp. 965, 981 (S.D. Tex. 1996)(stating
that “the basic medical inquiries made by Texas Bus Lines are
reasonably related to the position of bus driver; . . . [thus,] the
Court finds that Texas Bus Lines’ pre-offer, pre-employment medical
inquiries do not constitute a per se violation of the ADA”). Thus,
even if Noel had not waived the issue of the legality of the
questions posed by Daybrook, his claim would nonetheless have
failed.




                                 3
(1)   the   seaman,   during   a   required   medical   examination,

“intentionally misrepresents or conceals material medical facts,

the disclosure of which is plainly desired”; (2) the undisclosed

facts are material to the employer’s decision to hire the seaman;

and (3) “there is a causal link between the pre-existing disability

that was concealed and the disability incurred during the voyage.”

McCorpen, 396 F.2d at 549; see also Wactor v. Spartan Transp.

Corp., 27 F.3d 347, 352 (8th Cir. 1994)(adopting McCorpen and

stating that “the McCorpen standard had been adopted by the Fourth

Circuit, the Seventh Circuit, and by the Ninth Circuit”)(citations

omitted).

      Turning to the facts of this case, Noel admits that he

intentionally concealed from Daybook the fact that he suffered

extensive injuries, including an injury to his L4-L5 disc, in 1992

while working for AMPRO Fisheries.3     Noel argues, however, that

Daybrook has failed to establish that this information was material

because he argues that prior to accepting the job with Daybrook, he

had fully recovered from these injuries. Additionally, Noel argues

that Daybrook has failed to offer sufficient proof to establish

that there is a causal connection between the prior injury and the

injury that forms the basis of this claim.

       3
        Noel answered “No” to the following questions posed by
Daybrook during his physical examination: “Do you now have or have
you ever had at any time in the past: . . . Backache or Back Pain
_________; Neck Pain ________ ;. . . Hospitalization________ . . ..
Have you had any previous accidents or illnesses? If so, please
explain________________________.”




                                   4
     Focusing on the issue of materiality, the district court held:

     All of the evidence in this case establishes without
     dispute and without contradiction that the job of a
     menhaden fisherman is dangerous.     It involves highly
     physical work.    Captain Ripley, whose testimony was
     extremely impressive, testified that he is the one who
     does the hiring and he is the one who reviews the
     applications and the paperwork and that he would not have
     hired Mr. Noel had the information been disclosed. The
     plaintiff’s physical condition was certainly material to
     the job for which he was applying. . . .

     After reviewing the record, it is clear that the district

court’s conclusion on the issue of materiality is correct.                   The

uncontested testimony of Captain Arnold Ripley established that

Noel’s prior injury was material.                 Further, Noel’s own expert

witness, Dr. Robert S. Roberts, admitted on cross-examination that

given Noel’s medical history, he would not have recommended that

Daybrook hire him to work as a fisherman.               Thus, the undisputed

evidence    at   trial   established       that    Noel’s   prior   injury   was

material.

     Finally, turning to the issue of the causal link between

Noel’s prior injury and the injury sustained while working for

Daybrook, the district court held:

     Again, the evidence is undisputed that the 1992 injury
     involved the same disk, L4-L5, as the injury presently
     complained of in this case. Moreover, the plaintiff’s
     own witness, vocational witness, Dr. Roberts, testified
     that a 25 pound lifting restriction would, indeed,
     prevent the plaintiff from doing the work that he did.

Thus, the district court concluded that the evidence established

that there was a “causal link” between the two injuries.




                                       5
     The undisputed facts in the record support the conclusion of

the district court.        The injury sustained by Noel, which is the

basis of this suit, was to the L4-L5 disc.                This is the same disc

that Noel injured in 1992 while working as a fisherman for AMPRO

Fisheries.    Further, the evidence at trial established that Noel

has incurred the same pain and side effects for the present injury

as he incurred as a result of the 1992 injury.                  Thus, the evidence

clearly established a causal connection between the present injury

and the injury that Noel suffered in 1992.                       See Guillory v.

Northbank Towing Corp., 1994 A.M.C. 1971 (W.D. La. 1993)(stating

that “plaintiff’s claim for maintenance and cure benefits for

continued medical attention to his back are for the exact same area

of the back [as he received prior treatment for;]. . . therefore,

there clearly is a causal connection and materiality between and of

that which was concealed and his present medical condition”);

Lancaster Towing, Inc. v. Davis, 681 F.Supp. 387, 389 (N.D. Miss.

1988)(denying     the    plaintiff    maintenance         and    cure    because   he

“intentionally      misrepresented         his    back     condition       [to     the

defendant], the misrepresentation was material to the company’s

decision     to   hire   him,   and    the       injury     complained       of    was

substantially the same as the one he concealed”).

     In short, Noel has failed to point to any evidence in the

record that supports his assertion that his prior injuries were

immaterial to Daybrook’s decision to hire him.                          Further, the

evidence adduced at trial clearly established a causal connection




                                       6
between the injuries Noel suffered in 1992 while working for AMPRO

Fisheries and the injuries he suffered while working for Daybrook.

Therefore, the judgment of the district court is

                                                   A F F I R M E D.4




      4
       The judgment of the district court dismissing Jacqueline
Noel’s motion for intervention as a matter of law is likewise
AFFIRMED. See Broussard v. Broussard, 340 So.2d 1309, 1312 (La.
1977)(stating that “[s]ince the [Louisiana] Code classifies as
separate property actions for damages resulting from injuries to a
husband, living separate from his wife by reason of her fault,
La.C.C. art. 2334, it seems clearly intended that an unmarried man
would be entitled to treat such an action for damages [under the
Jones Act for injuries suffered prior to the marriage] as his
separate property”).




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