Is the McCorpen Defense Preserved For Subsequent Employers?

Under the doctrine commonly referred to as the McCorpen defense, a seaman can be denied his rights to maintenance and cure. In order to establish the McCorpen defense, an employer must show that: (1) the claimant 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 withheld information and the injury complained of in the lawsuit.

If a company does not subject the seaman to a medical questionnaire or medical examination when he is hired, it will generally not be successful if it asserts the McCorpen defense. However, The United States Fifth Circuit Court of Appeals identified an exception.

In Meche v. Doucet, a successor company bought a vessel division from a predecessor company in an asset sale, and hired all of the predecessor company’s employees. Sometime after the asset sale, one of the newly acquired seaman was allegedly injured while working for the successor company. He filed a claim for maintenance and cure against the successor company. The successor company discovered that the seaman had a preexisting medical condition with a connection to the injury complained of in the lawsuit, and that he intentionally concealed this condition from the predecessor company when he applied for his job.

The successor company argued that it was entitled to the McCorpen defense because it acquired all of the assets and liabilities of the predecessor company, examined protocols and medical examinations of the predecessor company, and retained all of the predecessor company’s employees without subjecting them to updated medical examination. The seaman argued that the intervening asset sale should render the McCorpen defense inapplicable because the successor company did not itself conduct a pre-employment medical examination.

The Court ruled that the successor company fulfilled the requirements under McCorpen and denied maintenance and cure. The Court stated that an intervening asset sale does not automatically relieve a seaman from the consequences of his or her prior intentional concealment of material medical information. However, the Court did not extend the ruling to a seaman who leaves his or her employer for an entirely unrelated company.

The seamen has a pending request to the U.S. Supreme Court to review the ruling of the U.S. Fifth Circuit.

Meche v. Doucet