A McCorpen Defense Successfully Lodged

Plaintiff was hired to work aboard a tug boat.  Prior to his hiring, plaintiff chose not to disclose a prior hip replacement surgery.  Not surprisingly, his hip displaced during the course of his employment and plaintiff claimed injury as a result.  Defendant pled a McCorpen defense, stating it was not liable to plaintiff for maintenance and cure benefits because the prior hip surgery was not disclosed and because defendant would not have hired plaintiff had it known of the prior surgery.  The district court granted defendant’s motion and plaintiff appealed.

On appeal, plaintiff contended that there was no evidence he would not have been hired if he disclosed the prior surgery. Alternatively, plaintiff disputed the finding of concealment, claiming he told two co-workers about his injury and informed the Coast Guard about his hip replacement during a prior physical examination he underwent when upgrading his seaman’s license.

The Fifth Circuit rejected plaintiff’s arguments in toto.  It was undisputed that defendant’s managers did not know of plaintiff’s prior surgery, the Coast Guard physical, or the statements to his co-workers until after plaintiff had re-injured his hip on the job. Furthermore, the district court correctly found that the concealment was material to defendant’s decision to hire plaintiff.  The district court’s decision was affirmed.

Atl. Sounding Co., Inc. v. Petrey, 2010 WL 4746907 (5th Cir. 2010).