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:

  1. Is the 5th Circuit’s McCorpen defense a valid bar to a seaman’s right to maintenance and cure?
  1. 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?
  1. 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.

The U.S. Department of Justice (DOJ) and U.S. Department of Health and Human Services (HHS) announced on June 18, 2015, that the efforts of the Health Care Fraud Prevention & Enforcement Action Team (HEAT), a joint initiative between the DOJ and HHS to prevent and deter Medicare fraud, resulted in a nationwide Medicare Fraud Strike Force take down with charges against 243 individuals in 17 districts involving $712 million in Medicare fraud claims. In New Orleans alone, eleven individuals were charged in five separate schemes totaling almost $110 million in allegedly fraudulent claim submissions to Medicare.   Grand juries in the Eastern District of Louisiana returned four indictments charging defendants with crimes involving 13 companies in addition to a criminal complaint filed against another defendant. The schemes involved home health care services, psychological testing services, durable medical equipment, and psychotherapy services. The Medicare claims were allegedly submitted between 2007 through 2015 for services and equipment that were either not medically necessary or not provided at all.

HEAT claims that as a result of the Medicare Fraud Strike Force teams work since 2007 more than 2,300 defendants have been charged with defrauding Medicare of more than $7 billion and convictions of approximately 1,800 defendants of felony health care fraud offenses.   The June 18th takedown made history with the most defendants charged and the largest alleged loss amount. It also demonstrates the movement of the Medicare Fraud Strike Force to districts outside of the current nine Medicare Fraud Strike Force locations: Baton Rouge, Louisiana; Brooklyn, New York; Chicago, Illinois; Dallas, Texas; Detroit, Michigan; Houston, Texas; Los Angeles, California; Miami-Dade, Florida; and Tampa Bay, Florida. The expansion of Medicare fraud prevention efforts is attributed to funding provided by the Affordable Care Act, which provides $350 million over ten years for tools such as: advanced predictive modeling technology; enhanced screening for providers who may pose a higher risk of fraud or abuse; and tougher federal sentencing guidelines for health care fraud. Given the success of HEAT and the Medicare Fraud Strike Force teams, it is expected that the government will continue to hotly pursue those individuals engaging in Medicare fraud. For health care providers wanting to stay out of the HEAT, regular Medicare compliance reviews of business and billing practices is the key for staying cool.

The press releases from the U.S. Department of Justice and the U.S. Eastern District of Louisiana detailing the June 18th takedown as well as other enforcement actions can be viewed at http://www.justice.gov/.

Each year, as the calendar changes, the tax collecting divisions of political subdivisions (Parish, City, etc.) gear up for the increased workload that comes along with preparing for tax sales.  In the State of Louisiana, owners of immovable property (real estate) are required to pay property taxes to the parish and/or the city.  In certain instances, some or all of the property tax may be exempt (either due to non-profit status or a homestead exemption).  However, for many residents, at least a portion of the property taxes remain due.  When the property taxes are not paid, the property is subject to a tax sale.

If property is sold at a tax sale, the former assessed owners (tax debtors) have a period of time when they may redeem the property from the tax sale purchaser by paying the delinquent amounts paid by the tax sale purchaser along with applicable penalties, fees, and interest.  Previously, that redemption period was three years for all properties (excluding property in New Orleans).  However, in 2014, Constitutional Amendment Number 10 (Act 436 – HB 256) was proposed to reduce the tax sale redemption period from three years to eighteen months on properties that were considered blighted, hazardous, uninhabitable, or abandoned.  On the November 4, 2014 ballot, the proposed Constitutional Amendment was approved by 54.32% of the voting public.[1]  Louisiana Constitution Article 7, Section 25 (B)(3) now states, in part, “…when such property sold is vacant residential or commercial property which has been declared blighted … or abandoned … it shall be redeemable for eighteen months after the date of recordation of the tax sale …”

The tax sale process involves multiple steps.  The procedure begins by the distribution of tax bills informing the landowner of all amounts due.  In most parishes, including East Baton Rouge Parish, tax bills are sent to homeowners starting in late November or early December and are delinquent by January 1st the following year.  Louisiana law provides that “the tax collector shall seize, advertise, and sell tax sale title to the property or an undivided interest therein upon which delinquent taxes are due, on or before May 1st of the year following the year in which the taxes were assessed, or as soon thereafter as possible.”  LSA R.S. 47:2154

The tax collector must comply with multiple requirements in the tax sale process.  First, the tax collector must provide a delinquency notice in January or February to the tax debtor (and any other party requesting notice) by certified mail informing them of amounts owed.  Thereafter, if the tax bill remains unpaid, there is a mortgage and conveyance record search performed, and an additional notice is sent out.  Finally, the tax collector will publish a notice in the official journal of the political subdivision twice within thirty days and advertise for sale properties with delinquent statutory amounts owed.

After the notice and advertising requirements are met, the tax sale title to the property is sold at a public auction (either in person or online).  At the tax sale, potential purchasers bid on percentage interests in the tax sale title.  The lowest percentage bid will purchase that interest in the tax sale title in exchange for paying 100% of the past-due amounts.

Once the tax title to the property is sold, the tax debtor has either a three year or eighteen month redemption period, depending on the condition of the property.  The property is redeemed by paying the price given, including the amount paid by the tax sale purchaser, five percent penalty thereon, and interest at the rate of one percent per month until redemption.  LSA Const. Art. 7, Section 25 (B)(1)

The above referenced constitutional amendment reducing the redemption period for tax sales of properties which are considered blighted or abandoned became effective January 1, 2015.  It is easy to forget about the amendments and laws passed during different elections when those changes do not necessarily affect our daily lives.  However, property owners should be cognizant of this change to the redemption period for abandoned or blighted properties to avoid their properties being placed in potential jeopardy.  This constitutional amendment may also provide opportunities for investors to focus the properties that they target due to the opportunities afforded by the shortened redemption period.

[1] http://staticresults.sos.la.gov/11042014/11042014_Statewide.html

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Effective July 1, 2015, the net operating loss carryback (NOL) will be eliminated and the carryover will be limited to 72% of the carryover. La. Acts 2015, No. ___( HB No. 624 (Rep. Jackson) amending La. R.S. 47:287.86) and La. Acts 2015, No. ____(HB No. 218 (Rep. Broadwater) amending La. R.S. 47:287.86).

Under the bills, the NOL is curtailed based upon when a taxpayer’s return is filed. All returns claiming a NOL deduction filed on or after July 1, 2015 will be subject to the 72% limit regardless of the taxable year to which the return relates. However, the filing of an amended return on or after July 1, 2015 amending a return filed before July 1, 2015 will receive the full NOL if the NOL was properly claimed on the original return. Thus, a late filed original 2013 return filed after July 1, 2015 will be subject to the reduced NOL deduction even though other taxpayers got full deductions for timely filed 2013 returns. Additionally, 2014 returns under extension will not get the full deduction if the returns are not filed before July 1, 2015. A taxpayer that loses the benefit on a return filed after July 1, 2015 and for which a valid extension to file was granted prior to July 1, 2015 is allowed to proportionally recoup the disallowed NOL deduction for each taxable year beginning during calendar years 2017, 2018, and 2019.

Taxpayers should consider filing income tax returns for 2014 and earlier years before July 1, 2015 claiming the proper amount of the NOL deduction even if the returns will have to be amended after July 1, 2015.

Note: HBs 218 and 624 have not been signed by the Governor; however, it is very likely that HBs 218 and 624 will become law.

The Louisiana Legislature made numerous changes to business exclusions, exemptions, deductions, and credits. Many of these changes are effective July 1, 2015.  This article addresses only two of the major changes enacted by the Louisiana Legislature during the 2015 regular session.

The inventory tax credit is the method used by Louisiana to reimburse taxpayers for the cost of the annual local property taxes paid on the value of inventories. Rather than providing an exemption from local property taxes on inventory, taxpayers pay the local property tax on the value of inventories and are reimbursed by means of a 100% refundable credit on their income and corporation franchise tax returns filed after the inventory tax is paid. If the inventory tax exceeds the income and corporation franchise tax due to the state, the Louisiana Department of Revenue issues a check for the balance of the credit.

Effective July 1, 2015, the refund of inventory taxes for eligible taxpayers whose ad valorem taxes paid to all political subdivisions in the taxable year is $10,000 or more will be limited to 75% of any excess credit instead of 100% of the excess credit. The remaining 25% of the excess credit is carried forward against income and corporation franchise tax for up to 5 years. Smaller taxpayers will continue to receive full refunds of inventory tax paid. La. Acts 2015 No. ___( HB No. 805 (Rep. Adams) amending La. R.S. 47:6006).

Under the bill, the inventory tax credit is curtailed based upon when a taxpayer’s return is filed. All claims for credit on any return filed on or after July 1, 2015 will be subject to the refund limit regardless of the taxable year to which the return relates. However, the filing of an amended return on or after July 1, 2015 amending a return filed before July 1, 2015 will receive the full inventory tax credit if the inventory tax credit was properly claimed on the original return. Thus, a late filed original 2013 return filed on or after July 1, 2015 will be subject to the reduced refund even though other taxpayers got full refunds for timely filed 2013 returns. Additionally, 2014 returns under extension will not get the full refund if the returns are not filed before July 1, 2015.

Taxpayers should consider filing income and corporation franchise tax returns for 2014 and earlier years before July 1, 2015 claiming the proper amount of the inventory tax credit even if the returns will have to be amended after July 1, 2015.

Note: HB 805 has not been signed by the Governor; however, it is very likely that HB 805 will become law prior to July 1, 2015.

The Louisiana Legislature made numerous changes to business exclusions, exemptions, deductions, and credits. Many of these changes are effective July 1, 2015. This article addresses only one of the major changes enacted by the Louisiana Legislature during the 2015 regular session.

In a much-anticipated decision, the Colorado Supreme Court issued a ruling on Monday upholding an employer’s decision to discharge an employee for his off-duty medical marijuana use.

In Coats v. Dish Network, LLC, a quadriplegic employee filed a wrongful termination suit against his former employer, claiming Dish Network violated Colorado’s “lawful activities statute” by terminating his employment after he tested positive for tetrahydrocannabinol (a component of medical marijuana) during a random drug test.  The plaintiff was a registered medical marijuana patient and used medical marijuana at home during non-working hours.  Nevertheless, Dish Network fired the plaintiff for violating the company’s zero tolerance drug policy.

The crux of the case was whether the plaintiff’s termination violated Colorado’s “lawful activities statute.”  As the Colorado Supreme Court explained, that statute generally makes it an “unfair and discriminatory labor practice” to fire an employee based on his “lawful” activities while off duty and outside of work.  Because marijuana use is legal in Colorado, the plaintiff argued that his marijuana use was “lawful” for purposes of the lawful activities statute.  However, marijuana remains an illegal drug listed in Schedule 1 of the federal Controlled Substances Act; thus, marijuana use is illegal under federal law.

The employer argued, and the trial court and court of appeals found, that the plaintiff did not engage in a “lawful activity” within the meaning of Colorado’s lawful activities statute because marijuana use remains illegal under federal law.  The Colorado Supreme Court agreed.   Significantly, the Colorado Supreme Court held that the term “lawful” in the Colorado statute referred only to activities that are lawful under both state and federal law.  Consequently, employees who engage in activities that are permitted by state law but are unlawful under federal law – such as medical marijuana – are not protected by the Colorado lawful activities statute.

As more states move toward some legalization of some marijuana use, the Coats v. Dish Network, LLC case is a significant victory for employers.  Employers should review and update their current drug policies to ensure their policies properly articulate company policy.  For some employers, it may be prudent to acknowledge that some marijuana use may be legal in some states under some circumstances, but to reiterate that any marijuana use is prohibited by federal law and company policy.

A copy of the Colorado Supreme Court’s opinion can be found here.

On June 9, 2015, the OIG issued a new Fraud Alert, cautioning physicians who enter into compensation arrangements such as medical directorships to ensure that the arrangements reflect fair market value for bona fide services that the physicians actually provide. The OIG reiterated that a compensation arrangement could violate the Anti-kickback Statute if even one purpose of the arrangement was to compensate a physician for his or her past or future referrals of Federal health care program business, including Medicare and Medicaid.

The OIG reported that it recently entered into settlements with twelve physicians who had entered into questionable medical directorship and office staff arrangements, in which the OIG alleged the compensation paid to the physicians constituted illegal remuneration under the Anti-Kickback Statute. The OIG alleged the compensation paid to the physicians was illegal remuneration because: a) it took into account the volume or value of referrals by the physicians of Federal health care program business; b) it did not reflect fair market value for the services provided; and c) in some cases, the services were not actually provided by the physicians. Additionally, the OIG alleged that the payment of salaries of the physicians’ front office staff by the contracting entity relieved the physicians of a financial burden they would otherwise have paid and, thus, constituted illegal remuneration to the physicians. The OIG further determined the physicians were an integral part of the scheme and, therefore, subject to liability under the Civil Monetary Penalties Law.

The OIG reiterated that such arrangements that would be considered fraudulent activity could subject the participants to possible criminal, civil, and administrative sanctions. For more information on OIG guidance regarding physician relationships, the OIG referenced its “Compliance Program Guidance for Individual and Small Group Physician Practices” (available at http://oig.hhs.gov/authorities/docs/physician.pdf) and its “Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse” (available at http://oig.hhs.gov/compliance/physician-education/roadmap_web_version.pdf).

Given the OIG’s focus on these types of physician compensation arrangements, included medical directorships, it is important that physicians and entities to these arrangements review them carefully. The parties who have entered or are contemplating entering such arrangements and agreements should consider seeking legal counsel for advice on whether the arrangement and agreement complies with all applicable federal and state laws.

Many employers in the past have offered employees cash to reimburse the purchase of an individual policy from a private insurance carrier or on the Marketplace (aka the Exchange) or for other substantiated medical expenses in place of employer sponsored group health coverage.  However, the federal government has recently taken the position that such an arrangement is itself a group health plan, and as such, it is subject to the market reform provisions of the Affordable Care Act (“ACA”) applicable to group health plans.  According to the IRS, DOL, and HHS, employer payment plan arrangements described above fail to satisfy (1) the ACA’s prohibition against annual limits on the dollar amount of essential health benefits covered under the plan and (2) the ACA’s requirement that non-grandfathered plans cover certain preventative services without imposing any cost sharing.  The market reforms apply to any group health plan offered by an employer, meaning the ACA market reforms apply to employer payment plans by small, non-ALE employers.  It does not matter whether the employer treats the money as pre-tax or post-tax to the employee.

Arrangements that fail to satisfy the ACA market reforms may be subject the employer to a $100/day excise tax per applicable employee (up to $36,500 per year per employee).  If the employer is an applicable large employer under the ACA, this excise tax is in addition to any “pay or play” penalties that could be imposed for not offering employer sponsored group health coverage that provides minimum value and which is affordable.  Small group employers (those having less than 50 full-time/full-time equivalent employees) have until June 30, 2015 to bring their arrangements into compliance without having to self-report these issues and pay the excise tax penalties.

Notwithstanding the above, an employer could avoid these excise tax penalties by offering compensation increases to employees.  The compensation increase cannot be conditioned on the employee using the additional cash to purchase individual health insurance.  IRS Notice 2015-17 confirms that an employer’s increase of an employee’s compensation to assist the employee in purchasing health coverage in the individual market will not be considered an employer payment plan subject to the ACA market reforms as long as the increase is not conditioned on purchasing health coverage and the employer does not otherwise endorse a particular policy, form, or issuer of health insurance.

IRS Notice 2015-17 also confirms that an employer payment plan offered to only a single participant who is a current employee (i.e., a “one-employee health plan”) is exempt from the ACA market reforms and thus is not subject to the excise taxes imposed under the ACA.  However, depending on the reason for such a plan, such an arrangement might violate HIPAA’s prohibition against discrimination based on health status (e.g., it is offered to a high-claims employee to encourage them to opt out of employer-sponsored group health coverage).

The EPA has proposed pretreatment standards for the Oil and Gas Extraction Category (40 CFR Part 435). The regulations would address discharges of wastewater pollutants from onshore Unconventional Oil and Gas (UOG) extraction facilities to Publicly-Owned Treatment Works (POTWs). The EPA contends that “the proposed rule would better protect public health, the environment, and the operations integrity of POTWs by establishing pretreatment standards that would prevent the discharge of pollutants in wastewater from onshore UOG extraction facilities to POTWs. According to the EPA, this proposed prohibition of discharges to POTWs reflects current industry practices; the rule simply codifies this prohibition. The EPA’s Fact Sheet for more background information. Click here for the full language of the Proposed Rule. The Proposed Rule does not change the National Pollution Discharge Elimination Sheet (NPDES) permit regulations under 40 CFR Parts 122-125. Currently, permits for onshore oil and gas facilities must include the requirements in Part 435, including a ban on the discharge of pollutants, except for wastewater that is of good enough quality for use in agricultural and wildlife propagation for those onshore facilities located in the continental United States and west of the 98th meridian. Part 435 does not currently include categorical pretreatment standards for indirect discharges to POTWs for wells located onshore (i.e., PSES or PSNS). This Proposed Rule also does not affect or address the practice of underground injection of wastewater discharges from this sector, since such activity is not subject to the CWA, but rather the Safe Drinking Water Act. The EPA is defining UOG extraction wastewater as sources of wastewater pollutants associated with production, field exploration, drilling, well completion, or well treatment for unconventional oil and gas extraction (e.g., produced water (which includes formation water, injection water, and any chemicals added downhole or during the oil/water separation process); drilling muds, drill cuttings, produced sand). To determine whether your facility would be regulated by this proposed action, you should carefully examine the applicability criteria listed in 40 CFR 435.30 and the definitions in 40 CFR 435.33(b) of the Proposed Rule. The comment period started on April 7, 2015 and originally extended to June 8, 2015. The EPA has extended the comment period to June 17, 2015. The EPA is specifically soliciting comments on:

  1. Its proposed definition of UOG and UOG extraction wastewater and specifically whether the proposed definition of unconventional oil and gas is sufficiently clear to enable oil and gas extraction operators and/or pretreatment authorities to determine whether specific wastewaters are from conventional or unconventional sources. See Section XII.
  2. Whether or not there are any existing onshore UOG extraction facilities that currently discharge UOG extraction wastewater to POTWs in the U.S. See Section XII.E.4. If existing discharges to POTWs are identified, EPA requests comment on whether or not the proposed effective date remains appropriate. See Section XVII.
  3. Costs and benefits to POTWs, states, and localities associated with the proposed rule. See Section VI.C.
  4. Volumes of, and pollutants and concentrations in, wastewater generated from UOG extraction. See Section XII.
  5. The nature and frequency of requests received by POTWs to accept UOG extraction wastewater, and the likelihood that such requests will continue to be submitted in the future. EPA is particularly interested in hearing from POTWs and states on this matter. See Section VI.C. and Section XIV.A.2.
  6. Volumes of, and pollutants and concentrations in, wastewater generated from conventional oil and gas extraction. See Section XIV.A.2.c.
  7. The prevalence of conventional oil and gas wastewater discharges to POTWs, including information on any pretreatment that could be applied, geologic formations the gas or oil is extracted from, and locations within the U.S. See Section XII. and Section XIV.A.2.
  8. Removal and “pass through” of UOG extraction wastewater pollutants at POTWs. See Section XIV. and Section XII.E.4.
  9. The environmental impacts of UOG extraction wastewater discharges to POTWs. See Section XV.

You can submit your comments on the proposed rule, identified by Docket No. EPA-HQ-OW-2014-0598 by one of the following methods:

  • http://www.regulations.gov Follow the on-line instructions for submitting comments.
  • Email: OW-Docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-2014-0598.
  • Mail: Water Docket, U.S. Environmental Protection Agency, Mail code: 4203M, 1200 Pennsylvania Ave. NW., Washington, DC 20460. Attention Docket ID No. EPA-HQ-OW-2014-0598. Please include three copies.
  • Hand Delivery: Water Docket, EPA Docket Center, EPA West Building Room 3334, 1301 Constitution Ave. NW., Washington, DC, Attention Docket ID No. EPA-HQ-OW-2014-0598. Such deliveries are only accepted during the Docket’s normal hours of operation, and you should make special arrangements for deliveries of boxed information by calling 202-566-2426.

On May 18, 2015, the U.S. Supreme Court considered then denied the Writ of Certiorari filed by Petitioner, Haleigh McBride, who sought to have the U.S. 5th Circuit’s En Banc Opinion in favor of Estis Well Service reversed. See McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014). The writ denial solidifies the 5th Circuit’s ruling that bars a Jones Act seaman from recovering punitive damages (or any non-pecuniary damages) based on his/her alleged unseaworthiness claims.

The Supreme Court Rules require 4 out of the 9 Justices to affirmatively vote to accept a case. Interestingly, no Justice voted to accept the writ application. Amicus briefs on behalf of the Petitioner were filed by the American Association for Justice, the International Transport Workers’ Federation, and a group of Maritime Law Professors (including those teaching at both Tulane and Loyola, among others).

For background on the 5th Circuit’s decision, click here.