As we recently reported, the Fifth Circuit decided the case of Meche v. Doucet, 777 F.3d 237 (5th Cir. Jan. 22, 2015) earlier this year. At issue in the Meche case was a well-founded and widely adopted defense to an employer’s obligation to pay maintenance and cure to an injured seaman – the McCorpen defense. In deciding Meche, the Fifth Circuit applied McCorpen to deny maintenance and cure benefits to a seaman who was injured on the job but failed to disclose prior, similar injuries on his employment application. The twist in Meche was that the Fifth Circuit allowed the employer to rely on its predecessor’s employment application that the plaintiff completed to deny the benefits.
Earlier this month, Willie Meche filed a writ with the United States Supreme Court not only to overturn the Fifth Circuit’s ruling, but eviscerate McCorpen entirely. In support, Meche advances three primary issues which he claims warrant the Supreme Court’s attention:
- Is the 5th Circuit’s McCorpen defense a valid bar to a seaman’s right to maintenance and cure?
- If so, should the 5th Circuit’s objective or the 2nd Circuit’s subjective test apply to determine whether the McCorpen defense is available? Relatedly, should the McCorpen defense require the employer demonstrate that he would not have hired the employee if he had known of the employee’s relevant medical history?
- Should successor employers be afforded the benefit of the McCorpen defense based on medical information not disclosed to the employer’s predecessor?
With respect to these issues, Meche first argues that the McCorpen defense in its entirety is at odds with Supreme Court’s jurisprudence on the available defenses to maintenance and cure claims and legal remedies available to seaman. Meche argues this despite the fact that the McCorpen defense has been cited approvingly by the Courts of Appeal of the 3rd, 6th, 7th, 8th, and 9th Circuits and the district courts of the 11th. Yet Meche asks the Supreme Court to stop the “unauthorized application” of this defense.
Alternatively, Meche argues that even if the Supreme Court supports the McCorpen defense, it must reconcile the alleged circuit split in its application. In the 5th Circuit, a successful McCorpen defense requires three parts: (1) the seaman intentionally misrepresented or concealed medical facts; (2) the non-disclosed facts were material to the employer’s decision to hire the claimant; and (3) a connection exists between the undisclosed facts and the injury complained of.
Meche advocates in favor of the 2nd Circuit’s “subjective test,” as applied in Sammon v. Central Gulf Steamship Corp., 442 F.2d 1028 (2d Cir. 1971), in that a seaman may only be denied maintenance and cure if he concealed medical history that he knew or reasonably should have known would be relevant to his employer. Whether or not applying the 2nd Circuit’s test would have rendered a different outcome for Meche is unknown, but unsurprisingly, Meche argues that the 2nd Circuit’s test should be adopted by the Supreme Court as the uniform maritime rule.
In the further alternative, Meche argues that the McCorpen defense should require an additional showing by the employer, as is required by the courts of the 7th Circuit. In addition to the elements listed above, the 7th Circuit, in Sulentich v. Interlaken S.S. Co., 257 F.2d 316 (7th Cir. 1958), required the employer to also demonstrate that it would not have hired the employee or would have terminated his employment if the relevant medical facts were known. Although the distinction is slight, the 5th Circuit does not require that an employer demonstrate that it would have not hired or fired the employee had it known of his condition; the employer need only demonstrate that the information was material.
Lastly, Meche argues that even if McCorpen is upheld as is, that the Fifth Circuit impermissibly expanded the scope of McCorpen to successive employers who do not complete their own physical examinations or require medical questionnaires. Meche asks the Supreme Court to take up this issue and deny successor employers the benefits of their predecessors’ inquiries into the medical history of its employees.
While there is no guarantee that the Supreme Court will take up these issues – the Supreme Court has never cited to McCorpen – some of Meche’s arguments should concern maritime employers should the Supreme Court decide to do so. Meche’s primary goal appears to be the reversal of almost 50 years of maritime case law applying the McCorpen defense. This is a defense that provides employers with a considerable incentive to inquire about and investigate the medical history of its employees, and it also discourages employees from concealing prior medical conditions. Additionally, adoption of the 2nd Circuit’s subjective test would substantially diminish the effectiveness and usefulness of the McCorpen defense. Not only would the test likely remove any potential success of a dispositive motion based on the McCorpen defense because it would require a showing of the seaman’s intent, but it would also make proving the first element of the defense much more difficult. Oddly, the most significant advancement of the McCorpen defense in Meche, availability of the defense to successor employers, may be the least important issue on the table should the Supreme Court grant Meche’s writ application. Given the potential of this attack, if writs are granted, this may be a call to arms to all Jones Act seaman employers to approach your industry associations about filing an amicus brief on your behalf.