United States Court of Appeals
Fifth Circuit
REVISED APRIL 11, 2006 FILED
March 28, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
__________________________ Clerk
No. 03-30782
__________________________
RICKEY BROWN,
Plaintiff-Appellee,
versus
PARKER DRILLING OFFSHORE CORPORATION,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
___________________________________________________
ON PETITION FOR REHEARING EN BANC
(Opinion 5/17/05, 5th Cir., Brown v. Parker Drilling Offshore Corp., 410 F.3d 166)
Before DeMOSS, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:
Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition
for Panel Rehearing is DENIED. The court having been polled at the request of one of its members,
and a majority of the judges who are in active service not having voted in favor (FED. R. APP. P. and
5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.
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CARL E. STEWART, Circuit Judge, with whom KING, HIGGINBOTHAM, WIENER,
BENAVIDES, and DENNIS, Circuit Judges, join dissenting from the denial of rehearing en banc.
I respectfully dissent from the court’s denial of rehearing en banc in this case in which
the panel majority reversed the district court’s denial of Parker Drilling’s motions for judgment as a
matter of law and for a new trial, thereby reversing the jury’s grant of maintenance and cure to
seaman Brown. Today, the full court countenances the panel majority’s usurpation of the jury’s
constitutionally defined role as fact-finder, irreparably harming the jury system in this circuit.
To be clear, the crux of my disagreement with the panel majority is not about what
the outcome might have been had I been on the jury, nor about all of the legal components of the
McCorpen defense.1 Having carefully read the full trial record, my primary disagreement with the
panel majority rests on my understanding of the jury’s role as fact-finder and of our limited role as
appellate court judges. Brown, a seaman, alleged he was injured while working on an offshore drilling
rig and brought suit against his employer seeking, inter alia, maintenance and cure. Following a three-
day jury trial before an experienced trial judge, the jury deliberated for five hours and returned a
verdict in favor of Brown on some, but not all of his claims. Parker Drilling then filed a Motion for
1
Nevertheless, I wholeheartedlyagree with Judge Wiener’s special concurrence, which
thoroughly explains the panel majority’s errors with regard to McCorpen v. Cent. Gulf S.S. Corp.,
396 F.2d 547 (5th Cir. 1968).
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Judgment as a Matter of Law and a Motion for a New Trial. As I explained in my dissent from the
panel’s decision, Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 184-85 (2005) (Stewart,
J., concurring in part and dissenting in part), the district court carefully considered these motions,
and, in a twenty-five page, detailed and lucid opinion, ultimately concluded that there was a legally
sufficient basis for a reasonable jury to find in favor of Brown and that the jury’s verdict was not
against the great weight of the evidence. Contrary to the intimation of the panel majority, the trial
judge was not “asleep at the switch.”
The Seventh Amendment guarantees litigants a right to a trial by jury and the Supreme
Court has repeatedly admonished us not to substitute our judgments for those of the jury, see, e.g.,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 151 (2000), yet the panel majority’s decision can only be understood as such. The
jury accepted Brown’s version of the events and rejected Parker Drilling’s and, as the district court
correctly determined, taken in the light most favorable to Brown, there is sufficient evidence in the
record to support the jury’s verdict. Even though Parker Drilling’s counsel more than adequately
placed the issue of Brown’s credibility before the jury, the panel majority initially reversed the verdict
in favor of Brown concluding that the jury had clearly erred. On panel rehearing, apparently in
response to enlightened skepticism, it re-characterized the case as turning on an issue of law, laying
the purported reversible error at the feet of the trial judge rather than the jury. But despite the panel
majority’s protestations to the contrary, this case remains exactly what it was when the panel first
heard it–a vigorously tried case by experienced counsel on both sides before a seasoned trial judge,
after which the jury returned a verdict that is (or should be) insulated from appellate fact-finding. And
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regardless of which chameleonic legalisms the panel majority uses to explain it, the panel majority’s
decision remains what it was from the beginning–an audacious exercise in violating the Seventh
Amendment.
The panel majority, under the guise of correcting errors of law, usurped the jury’s
Seventh Amendment function, replacing the jury’s verdict with a verdict of its own. Brown’s petition
for rehearing en banc was not an invitation for the full court to re-try this case for a third time, but
an opportunity to correct the lamentable message that the panel majority’s decision sent to the bench
and bar throughout the Fifth Circuit–no jury verdict is invulnerable before this court. The panel
majority’s decision commandeered the jury’s role as fact-finder and it is principally for this reason that
I vehemently dissent from the full court’s refusal to rehear this case en banc.
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JACQUES L. WIENER, JR., Circuit Judge, Specially concurring in Judge Stewart’s Dissent
from Denial of Rehearing En Banc**
I concur in Judge Stewart’s opinion dissenting from this court’s refusal to grant a
rehearing en banc. I do not disagree with Judge Stewart’s dissent in any way, nor do I disagree with
either of his earlier panel dissents; indeed, I wholeheartedly agree with them all. Rather, I write only
to supplement Judge Stewart’s latest dissent with a more detailed explication of where, with respect,
I perceive my colleagues of the panel majority (and those who failed to vote to rehear it en banc) to
have violated our venerable precedent, thereby —— unintentionally, I am sure —— doing damage
to the federal courts’ civil jury system and thus to the Seventh Amendment to the United States
Constitution.
I. Framework
In this maritime jury trial case, Brown, a seaman, claimed maintenance and cure for
injuries incurred in a witnessed and documented traumatic accident on an offshore petroleum platform
during the course and scope of his employment. Parker Drilling, the employer or “vessel owner,”
defended against payment of maintenance and cure to Seaman Brown. Parker Drilling did so based
on Brown’s omission, from a pre-hiring job application, of information about previous “back trouble”
that he had experienced while working for prior employers. Specifically, Parker Drilling contended
that it would not have hired Brown if he had not intentionally concealed that information, which ——
**
Judges King, Higginbotham, Benavides, Stewart, and Dennis concur in this Special
Concurrence.
according to Parker Drilling —— would have revealed prior medical problems that had a nexus with
his present injury. Parker Drilling characterized Brown’s conceded omissions as intentional
misrepresentation or concealment of medical facts. Despite extensive and brutally zealous cross-
examination by counsel for Parker Drilling, however, Brown stuck to his simplistic but
straightforward explanation: Although he knowingly (i.e., not negligently or inadvertently) left out
references to prior muscle-pulls and back sprains he had experienced while working at previous
manual labor jobs, he did so in the belief that the questionnaire was not asking about such relatively
minor problems but only about serious “back trouble.” Specifically, Brown testified that he thought
that the questionnaire was referring only to “...disc and all that, you know, broke back, a disc, neck
being broke or something, the injury a real one instead of a pulled muscle.”
After hearing this and much more testimony from (and cross-examination of) Brown,
as well as from his treating physician and other doctors, from Parker Drilling’s medical experts, and
from eyewitnesses, the jury (1) credited Brown’s explanation, viz., that his knowing omission of prior
back sprain information was not an intentional misrepresentation or concealment of medical facts; and
(2) rejected Parker Drilling’s claim of a connection between, on the one hand, those prior pulls and
strains, caused by over-exertion or heavy lifting on previous jobs, and, on the other hand, the
distinguishable violent and more serious injury suffered on Parker Drilling’s offshore rig, caused by
a sudden and violent “kick” of the equipment. After the jury found for Brown and awarded, inter alia,
maintenance and cure (as well as finding bad faith denial by Parker Drilling), the district court, in a
lengthy and well-reasoned ruling, denied Parker Drilling’s post-verdict motions to have the jury’s
verdict overturned.
II. Controlling Law
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All agree that the almost-conclusive presumption that every injured seaman is entitled
to maintenance and cure is subject to one —— but only one —— exception that would let the vessel
owner off the maintenance-and-cure hook. For more than thirty-five years, a vessel owner in this
circuit could avoid liability for maintenance and cure in only one way: proving, by a preponderance
of the evidence, all three prongs of the conjunctive test set forth in the landmark McCorpen case.1
Under that test, the vessel owner has always had the burden of proving to the trier of fact (here, the
jury) that:
1. The claimant intentionally misrepresented or concealed
medical facts [first prong],
2. The non-disclosed facts were material to the
employer’s decision to hire the claimant [second
prong], and
3. A connection exists between the withheld information
and the injury complained of in a lawsuit [third
prong].2
The second prong of the McCorpen test —— that Parker Drilling would have not
hired Brown had it known that he had previously experienced job-related muscle pulls and back
sprains —— went largely uncontested. I thus assume for today’s purposes that Parker Drilling met
its burden on the second (hiring nexus) prong of McCorpen, i.e., a nexus between hiring Brown and
the muscle-pull information that he omitted. As for the first and third prongs, however, I respectfully
but strenuously disagree with the panel majority’s determinations —— and thus with the implied
1
McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547 (5th Cir.
1968).
2
Id. at 48-49 (Bracketed information added).
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determinations of those of my colleagues who declined to support rehearing this case en banc ——
that, despite the jury’s determination on the basis of a significant quantity of admittedly disputed fact
evidence, (1) Brown’s omission of back sprain information on his employment questionnaire
constituted intentional misrepresentation or concealment of medical facts (McCorpen’s first prong),
and (2) that there was a nexus between the omitted back-sprain information and the traumatic injury
suffered on Parker Drilling’s offshore platform, the one for which Brown sought maintenance and
cure (McCorpen’s third prong). I remain convinced that this was legal error in the face of the jury’s
determinations reached at the end of a trial flawlessly conducted by the district court, that Parker
Drilling had failed to meet its preponderance burden on these two of the three McCorpen prongs
—— the failure on either of which should have doomed Parker Drilling’s resistance to paying Brown
maintenance and cure.
Yet the panel majority, which in its first opinion had reversed the jury’s fact-intensive,
hotly-contested, credibility-dependent verdict, withdrew that opinion and granted panel rehearing,
only to reach essentially the same result. The second time, though, it did so by, of all things,
reversing the district court’s refusal to reverse the jury and enter judgment in favor of Parker Drilling.
I read the panel majority’s opinion on rehearing as confusing or conflating intentional
omission of medical evidence (which the panel majority stated to be an objective inquiry) with
McCorpen’s “intentionallymisrepresent[ing] or conceal[ing] medical facts,” a subjective inquiry. The
panel majority obviously re-weighed the evidence, then faulted the district judge for not having done
what the panel majority did in its initial appellate opinion, viz., reverse the jury by conducting a
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constitutionally impermissible appellate review of the facts. And it did so despite our long-settled and
well-established standard of appellate review under these circumstances:
We review de novo the district court’s denial of a motion for
judgment as a matter of law, applying the same standard as the district
court.3 But, when a case is tried by a jury, a Rule 50(a) motion is a
challenge to the legal sufficiency of the evidence.4 In resolving such
challenges, we draw reasonable inferences and resolve all credibility
determinations in the light most favorable to the nonmoving party.5
Thus, we will reverse the denial of a Rule 50(a) motion only if the
evidence points so strongly and so overwhelmingly in favor of the
nonmoving party that no reasonable juror could return a contrary
verdict.6 A jury verdict must be upheld unless ‘there is no legally
sufficient evidentiary basis for a reasonable jury to find’ as the jury
did.7
The record contains a plethora of evidence, much on both sides of the various fact
issues, and considerably more than just Brown’s putatively self-serving explanation. But, drawing
all inferences and resolving all credibility determinations in favor of Brown (the nonmoving party and
the victor before the jury), an appellate court simply cannot say, as a matter of law, that the evidence
pointed so strongly and overwhelmingly against Brown and in favor of Parker Drilling that “no
reasonable juror could return a contrary verdict.”8 Mischaracterizing intention to omit a fact as
3
Cozzo v. Tangipahoa Parish Council-President Gov’t., 279 F.3d 273, 280 (5th Cir.
2002).
4
Brown v. Bryan County, 219 F.3d 450, 456 (5th Cir. 2000).
5
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
6
Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir. 2001).
7
Fed. R. Civ. P. 50(a)(1); Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir. 1995).
8
Cousin v. Trans Union Corp., 246 F.3d at 366.
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intention to misrepresent or conceal a fact undoubtedly contributed to the impermissible reversal of
the trial judge’s refusal to supplant the jury verdict with Parker Drilling’s view of the evidence.
The core problem that results from denying en banc rehearing and thereby allowing
this case to stand lies in the recognition that it matters not whether federal district judges (much less
federal appellate judges) can bring themselves to credit Brown’s simplistic, uneducated explanation
that he did not think that back sprains and muscle pulls amounted to the kind of “back trouble” about
which Parker Drilling’s questionnaire was inquiring. What does matter so critically to the civil jury
law of this circuit, however, is that a jury of Brown’s peers (who obviously understood and identified
with the common kind of blue-collar, physically strenuous, manual labor regularly encountered in the
“oilpatch”) recognized the truism that workers like Brown go home every night bone-weary, muscle-
sore, and bodily-bruised —— and think nothing of it! These jurors, who observed Brown’s
demeanor, heard his treating physician’s testimony about the earlier muscle strains, listened to the
extensive cross-examination of Brown, and considered all the other evidence, concluded that, yes,
Brown did (as he admitted) intentionally omit the earlier information, but, no, he did not do so with
the intention of concealing or misrepresenting anything.
Parker Drilling’s failure to bear its burden of proving the first prong of McCorpen was
all that should have been necessary to insulate the jury verdict against this vessel owner’s post-verdict
efforts to get the district court to overrule the jury. This is true “in spades” on appeal. Unlike the
district judge (who, like the jury, observed Brown and all other witnesses firsthand), the two appellate
judges of the panel majority overruled the district court —— and thus the jury’s verdict for Brown
—— on nothing more than the “cold record.”9
9
We also should have reheard this case to correct the panel majority’s equally
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III. Conclusion
This is precisely the kind of civil jury case in which the verdict (and the refusal of the
district court to supplant it) should not have been overturned on appeal. Otherwise, as Judge Stewart
pointed out in his panel dissents and again in his dissent from denial of rehearing en banc, we do
irreparable harm to the civil jury system in this circuit when we allow the panel majority’s jury
reversal to stand. We simply cannot sit in our remote, monastic chambers, look only at the record
on appeal, then say that these cold facts point so strongly in favor of the vessel owner that reasonable
jurors could not have arrived at a verdict for the seaman. This is especially true when, as here, the
vessel owner’s only legally recognized avenue of escape from its virtually automatic obligation to pay
maintenance and cure was to prove all three prongs of McCorpen’s conjunctive test to the satisfaction
of the jury. To repeat, I concur in Judge Stewart’s Dissent from Denial of Rehearing En Banc and,
despite my genuine respect for mycolleagues who voted otherwise, offer the foregoing to supplement
Judge Stewart’s reasons for concluding that, indeed, this case cried out to be reheard en banc.
erroneous treatment of McCorpen’s third prong, viz., the nexus between Brown’s prior “back
problems” and his instant, trauma-caused and uncontested injuries. Here again, I respectfully disagree
with the panel majority’s confusing or conflating the second prong’s required nexus between prior
medical conditions and a decision to hire with the third prong’s required nexus between prior medical
conditions and the current injury. That erroneous treatment of McCorpen’s third prong should have
been reheard and corrected en banc as well.
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