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,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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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,
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”).