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MDL PRETRIAL CAUSE NO. 2020-79221
HRISTOPHER LEASANT,
LAINTIFF, N THE ISTRICT OURT
V
TH UDICIAL ISTRICT
RANSOCEAN FFSHORE EEPWATER
RILLING ET AL, ARRIS OUNTY EXAS
EFENDANTS
MASTER FILE NO. 2022-36264
N THE ISTRICT OURT
N RE URRICANE ETA ITIGATION
TH UDICIAL ISTRICT
ARRIS OUNTY EXAS
TRANSOCEAN’S MOTION TO COMPEL
MEDICAL TREATMENT, BILLING, AND PAYMENT RECORDS
Plaintiff filed this lawsuit on December 10, 2020, asserting, among other claims, a cause
of action against Transocean for failure to pay cure and seeking compensatory and punitive
damages. Ex. 1 (1st Am. Pet.) at ¶ 28. But in the nearly two years this case has been pending,
Plaintiff has refused to provide even the most basic information to support his claims.
The information Transocean seeks is necessary to assess Plaintiff’s claims for cure and
evaluate his claims for compensatory damages. Transocean takes its cure responsibilities
seriously: it is prepared to pay appropriate cure to all Plaintiffs, and indeed has already paid for
$35,494.85 of Mr. Pleasant’s verifiable and reasonable medical expenses. But Transocean simply
lacks the necessary documentation to evaluate Plaintiff’s numerous other demands. To fulfill—
As used herein, “Transocean” means Defendants Transocean Offshore Deepwater Drilling Inc. and Triton
Voyager Asset Leasing GmbH, sometimes known as Triton Voyager Asset Leasing GmbH, Asgard U.S.
Similar discovery will be required from the other 23 plaintiffs in this MDL, all of whom have similarly
failed to adequately respond to requests related to their cure and damages claims.
As of the date of this filing, Transocean has paid $535,421.40 in cure for the Plaintiffs in this MDL.
or, indeed, to understand—its cure obligation, Transocean must determine (1) what medical costs
Plaintiff “actually incurred,” Manderson v. Chet Morrison Contractors Inc., 666 F.3d 373, 382
(5th Cir. 2012); (2) whether such costs were necessary and reasonable, see Caulfield v. AC & D
Marine, Inc., 633 F.2d 1129, 1133 (5th Cir. 1981); and (3) that the treatment was related to an
injury that occurred in the service of the vessel. Plaintiff was required to provide this
information—much of which is also relevant to his alleged damages on other causes of action—
with his initial disclosures, and Transocean has asked for it many different ways, including through
interrogatories and requests for production.
These efforts have been in vain. Accordingly, Transocean asks the Court to overrule
Plaintiff’s boilerplate and otherwise improper objections, and compel Plaintiff to provide complete
disclosures and to fully respond to the duly propounded discovery requests described below.
I. Plaintiff has the burden of proving he actually incurred the claimed medical expenses
and that the alleged treatment was reasonable and necessary.
A shipowner has an obligation—called “cure”—to pay necessary medical expenses for
seamen injured while in its service. Manderson, 666 F.3d at 380. The obligation to provide cure
is an “implied term of a maritime-employment contract” and “does not depend on any
determination of fault.” Id. (citing Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir.
2006)) (internal quotations omitted). Cure is intended to ensure that “the injured seaman does not
bear out-of-pocket medical expense.” Davis v. Odeco, Inc., 18 F.3d 1237, 1246 (5th Cir. 1994).
Courts hold employers to strict standards regarding their maintenance and cure obligations, e.g.,
Hall v. Noble Drilling, 242 F.3d 582, 586 (5th Cir. 2001), and an employer maliciously refusing
to meet its cure obligations can be subject to fee shifting or even punitive damages. Manderson,
666 F.3d at 382.
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Because cure is purely compensatory, however, it “does not extend beyond the seaman’s
need.” Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531 (1938) (emphasis added). A vessel owner
has no duty to pay cure when the seaman has incurred no expense. Johnson v. United States, 333
U.S. 46, 50 (1948). Accordingly, employers must exercise diligence in considering and assessing
requests for maintenance and cure to ensure seamen receive the compensation they deserve. On
the other hand, employers have a right to: (1) proof that the seaman actually incurred the expense
for the medical care; (2) information sufficient to assess that the care was necessary and the charges
reasonable; and (3) evidence that the treatment was for an injury that occurred on the vessel. In re
4-K Marine, LLC, 914 F.3d 934, 938 (5th Cir. 2019).
II. Plaintiff has refused to provide information to support his claim for cure.
Transocean has been seeking information relevant to Plaintiff’s alleged medical expenses
since Plaintiff filed this lawsuit in December 2020. See Ex. 2 (Transocean 1st Requests). Plaintiff
first failed to provide the required information in his initial disclosures. See Ex. 3 (Resps. to 1st
Requests for Disclosure); see also Ex. 4 (2nd Supp. Resps. to 1st Request for Disclosure). Plaintiff
then interposed baseless objections and obfuscated his responses to Transocean’s many requests
seeking information relevant to these issues. See Ex. 5 (Resps. to 1st Set of Interrogatories); Ex.
6 (Resps. to 1st RFPs). Plaintiff later supplemented his responses and asserted that he had
produced all documents responsive to Transocean’s requests for documents supporting his claim
for cure. Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 3, 4, 5, 6, 12, 21, 25, 26, 27, 28, 29, 30, 43,
44, 45. Yet, the few documents that Plaintiff supplied do not provide information sufficient for
Transocean to exercise its right to assess the alleged charges, and Plaintiff has rejected
Transocean’s many attempts to acquire the additional necessary information.
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A. The documents Plaintiff has supplied do not support his claim for cure.
The entirety of Plaintiff’s claim for cure rests on his production of: (1) terse demands that
Transocean pay for proposed medical procedures accompanied by skeletal invoices that do not
identify who paid for the alleged medical services—much less whether Plaintiff had any obligation
to do so; and (2) Affidavits Concerning Cost and Necessity of Services, which simply authenticate
the skeletal invoices and provide no additional information. Neither of these sources allows
Transocean to assess what, if any, expenses Plaintiff actually incurred; whether those costs were
reasonable and necessary; or whether the alleged injury resulted from service on the vessel at sea.
Plaintiff’s demand for $33,482 to cover a then-unscheduled surgery illustrates the
impossible burden that Transocean bears in calculating its cure obligation. On September 13,
2021, Plaintiff sent a letter to Transocean demanding cure to cover a proposed neck surgery at
Lafayette Surgical Hospital. Ex. 8 (Cure Demand Ltr. dated Sept. 13, 2021). The attached
documentation simply noted the cost estimate of more than $30,000, along with a note that “it is
more likely than not that this patient will need the following procedure as a result of the injury for
which we have evaluated the patient.” Id. The letter did not note any expenses actually incurred
by Plaintiff, nor did it provide a scheduled date for the surgery. Nevertheless, Plaintiff threatened
punitive damages against Transocean if it did not acquiesce to his demand. Id. Transocean
acknowledged the letter and requested, among other documents, “any evidence that Mr. Pleasant
is out of pocket for any medical treatment he has received to date.” Ex. 9 (T. Crawford Ltr. to R.
Christensen dated Oct. 12, 2021). Plaintiff once again ignored the request but sent another demand
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letter for the same proposed surgery a few months later. Ex. 10 (2d Demand for Surgery dated
Dec. 21, 2021).
As a result of Plaintiff’s refusal to produce required information, Transocean’s third-party
medical auditing firm, which assesses medical reimbursement requests, has repeatedly indicated
that it lacks sufficient information to establish a reasonable allowance for the medication and
services provided to Plaintiff. For example, Plaintiff sent Transocean an invoice for medications
in December 2021 that totaled $13,908.91. Ex. 12 (EOR Injury Meds, Dec. 28, 2021). The only
information the invoice provided was a date, drug name/dose, pharmacy/prescriber, quantity, and
amount charged for each medication; Plaintiff provided no insurance information, supporting
documentation, or associated treatment records. With only that invoice, it is impossible for
Transocean to determine whether Plaintiff actually incurred these expenses or that the costs
otherwise qualify for cure reimbursement.
B. Plaintiff has thwarted Transocean’s numerous attempts to acquire the requested
information.
In addition to the discovery Plaintiff has refused to provide, as set out in the next section,
Transocean has made a variety of attempts to secure the necessary information so that it can fulfill
its cure obligation to Plaintiff—all to no avail.
Request Letters to Plaintiff. Transocean sent Plaintiff at least four letters between August
2021 and January 2022 requesting additional information necessary for it to properly investigate
and corroborate Plaintiff’s claims for maintenance and cure. See Ex. 13 (T. Crawford Ltr. to R.
Christensen, Aug. 6, 2021); Ex. 9 (T. Crawford Ltr. to R. Christensen dated Oct. 12, 2021); Ex. 14
Plaintiff appears to have had the proposed surgery on March 4, 2022. Ex. 11 (Lafayette Surgical Specialty
Hospital Operative Report, dictated and transcribed March 7, 2022). Even after the surgery, however,
Plaintiff failed to provide sufficient information for Transocean to determine what expenses he paid out of
pocket, whether the surgery was necessary, and whether the costs were reasonable.
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(T. Crawford Ltr. to R. Christensen dated Jan. 3, 2022); Ex. 15 (T. Crawford Ltr. to C. Boatright
dated Jan. 11, 2021). For example, on August 6, 2021, Transocean sent a letter to Plaintiff
requesting additional documentation, including “documents reflecting actual, out-of-pocket
expenses incurred by Mr. Pleasant for medical treatment.” See Ex. 13 (T. Crawford Ltr. to R.
Christensen dated Aug. 6, 2021). Transocean sent a subsequent letter on October 12, 2021,
reiterating these requests. Ex. 9 (T. Crawford Ltr. to R. Christensen dated Oct. 12, 2021). Plaintiff
never sent the requested information, but he did send at least four more demands for cure to
Transocean in the following months and even threatened punitive damages if Transocean did not
comply. Ex. 16 (Cure Demand Ltr. dated Aug. 8, 2021); Ex. 8 (Cure Demand Ltr. dated Sept. 13,
2021); Ex. 10 (2d Demand for Surgery dated Dec. 21, 2021); Ex. 17 (Cure Demand Ltr. dated Dec.
28, 2021).
Affidavits Concerning Cost and Necessity. The Court’s docket also reflects Plaintiff’s
steadfast refusal to provide required information related to his cure demand. Rather than address
Transocean’s repeated pleas for additional information, Plaintiff has instead filed multiple
Affidavits Concerning Cost and Necessity of Services—which provide no further insight as to who
(if anyone) paid for the services or whether the treatment was necessary and reasonable. See Ex.
18 (Notice of Filing Affidavits Concerning Cost & Necessity, Nov. 29, 2021); Ex. 19 (2d Notice
of Filing Affidavits Concerning Cost & Necessity, Jan. 27, 2022); Ex. 20 (3d Notice of Filing
Affidavits Concerning Cost & Necessity, Feb. 25, 2022). Indeed, Transocean responded to each
of Plaintiff’s filing with its own Medical Billing Records Counter-Affidavit, at least one of which
again expressly informed Plaintiff that he “did not provide sufficient information or documentation
regarding the nature and scope of the medical treatment or medications provided [by InjuryMeds]
in order to evaluate whether the invoiced amount is reasonable under the circumstances.” Ex. 21
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(Medical Expense Affidavit, Feb. 22, 2022); see also Ex. 22 (Amended Medical Expense
Affidavit, Dec. 28, 2021); Ex. 23 (Medical Expense Affidavit, March 9, 2022).
Direct Outreach to Healthcare Providers. After Plaintiff repeatedly refused to disclose
the medical records requested, Transocean unsuccessfully attempted to obtain the necessary
medical information directly from Plaintiff’s healthcare providers. First, Transocean issued
Depositions by Written Questions to four of Plaintiff’s healthcare providers—Dr. Hawks; Allied
Health, LLC; Neurological Solutions of Lafayette, LLC; and Elite Medical Wellness. Only Dr.
Hawks responded and, as explained further below, her response indicates that Arnold & Itkin—
and not Plaintiff—is paying Mr. Pleasant’s medical expenses.
Second, after learning that Access Healthcare paid Plaintiff’s invoices from Elite Medical
Wellness, Transocean contacted Access Healthcare on four separate occasions requesting proof of
payment, including who paid the expenses. Eventually, Access Healthcare employees responded
that they could not provide proof of payment. Third, Transocean requested a W-9 from Dr. Hawks
on six separate occasions and proof of payment on four separate occasions, none of which Dr.
Hawks has provided. Plaintiff’s medical providers simply will not say what they have been paid
(if anything) or by whom (if anyone), even when served a subpoena.
III. Plaintiff has not met his discovery obligations.
Because he asserts a claim for cure, and seeks damages on that and other claims, Mr.
Pleasant is obligated to produce evidence relevant to his medical treatment and payment
arrangements. The Court should compel Plaintiff to meet his discovery obligations.
Transocean will seek enforcement of these subpoenas separately from this motion.
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A. Plaintiff must produce all evidence that he—and not someone else—“actually
incurred” any alleged medical expense.
“[A]n injured seaman may recover maintenance and cure only for those expenses ‘actually
incurred.’” Manderson, 666 F.3d at 382 (citations omitted) (emphasis added). Thus, if an
employee has not incurred an expense, an employer has no duty to pay cure. Johnson, 333 U.S.
at 50 (cure not recoverable where seaman received treatment at his family’s home and thus
incurred no expense or liability for his care).
1. Plaintiff has not produced evidence of his out-of-pocket expenses.
Transocean has repeatedly asked Plaintiff for evidence that he personally incurred medical
expenses related to his alleged injuries, but Plaintiff has never provided any such proof. See Ex.
5 (Resps. to 1st Set of Interrogatories) at No. 18; Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 3, 4,
12, 21, 43, 44, 45. As detailed above, the invoices Plaintiff provided to Transocean simply
document the amounts charged and do not identify the person or entity who paid the bill. Indeed,
Plaintiff in his deposition that he has not paid any out-of-pocket medical expenses in this case,
except for a small medication charge that Plaintiff thereafter submitted for reimbursement. Ex. 24
(Pleasant Dep. Nov. 30, 2021 at 316:2–17). Because this was a documented charge Transocean
could substantiate Plaintiff actually paid, Transocean is currently processing Plaintiff’s
reimbursement for the amount he spent.
Request for Production 12 offers an example of Plaintiff’s refusal to provide discovery
necessary to calculate Plaintiff’s “actually incurred” medical expenses. Transocean takes seriously
the commitment to ensure that its injured employees “do[] not bear out-of-pocket medical
expense.” Davis, 18 F.3d at 1246. Accordingly, Request for Production 12 explicitly asks for
“[a]ny documentation or receipts in support of the out-of-pocket expenses which Plaintiff claims
as a result of the incident.” Ex. 7 (1st Supp. Resps. to 1st RFPs) at No. 12. It is hard to imagine a
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more relevant request, particularly in light of Mr. Pleasant’s deposition testimony suggesting he
has not personally paid for any medical expenses in this case. See Ex. 24 (Pleasant Dep. Nov. 30,
2021 at 316:2–17).
And yet, Plaintiff provided no responsive documents. Instead, he responded that he “has
provided this information through maintenance and cure demands and will continue to provide it
through the course of discovery.” Ex. 7 (1st Supp. Resps. to 1st RFPs) at No. 12. As described
previously, the demand letters Plaintiff has sent to Transocean—along with the skeletal invoices
attached—do not identify what costs Plaintiff has actually incurred, so they are not responsive to
Transocean’s request. Plaintiff has also failed to supplement with any other evidence of his out-
of-pocket expenses.
2. Plaintiff has failed to show that someone else has not covered his medical
expenses.
Because no cure is due where Plaintiff incurred no expense, Transocean is entitled to
information showing who paid for each of Plaintiff’s medical treatments. For example,
Interrogatory 18 asked Plaintiff to disclose an “itemization of charges, the amount paid and by
whom each was paid” for a variety of medical visits and treatments that he may have had since the
incident at issue in this suit. See Ex. 5 (Resps. to 1st Set of Interrogatories) at No. 18 (emphasis
added). Plaintiff responded with a laundry list of baseless boilerplate objections (including that
the request is “overly broad,” “unduly burdensome,” and “duplicative”) before promising to
“itemize his past medical expenses in response to Defendant’s Request for Disclosure.” Plaintiff
also referred Transocean to the “complete listing of medical providers and facilities that have
provided care and treatment to Plaintiff” and “medical and billing records that have and will be
produced.” None of these records include information about who paid which expenses.
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Similarly, Transocean’s Request for Production 3 and 4 requested all documentation
substantiating Plaintiff’s medical charges, hospitalization, and outpatient treatment related to his
alleged injuries, including “the amount paid and who paid.” Ex. 7 (1st Supp. Resps. to 1st RFPs)
at Nos. 3, 4. Plaintiff objected to these requests as duplicative and responded that he “has produced
all billing records currently in his possession.” Again, none of the documents produced by Plaintiff
show who paid which expenses. Without receiving that information, it is impossible for
Transocean to determine the amount of cure that it owes Plaintiff.
Identifying who paid Plaintiff’s medical expenses is even more important in light of some
unusual requests for reimbursement submitted by Plaintiff to Transocean. Specifically, Plaintiff
sent Transocean a letter on December 28, 2021, demanding the following:
Furthermore, a Deposition by Written Questions to Dr. Hawks revealed the following:
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Transocean is not obligated to reimburse Plaintiff for expenses paid by Arnold & Itkin.
Furthermore, any documents related to payment for Plaintiff’s medical treatment that Arnold &
Itkin possesses are also in Plaintiff’s custody and control for discovery purposes. Thus, if
Arnold & Itkin has documents that are responsive to Transocean’s discovery requests, Plaintiff is
obligated to produce them, and the Court should require him to do so.
3. Plaintiff’s refusal to disclose insurance information further obfuscates the
issue of what costs he has actually incurred.
Plaintiff has also refused to disclose information regarding insurance coverage, which is
directly relevant in calculating Plaintiff’s “actually incurred” medical expenses. An employer
generally has no duty to compensate seamen for medical expenses that have already been
reimbursed by another party, including under an insurance plan to which the seaman is not the sole
contributor. Davis, 18 F.3d at 1246. Accordingly, information regarding health insurance policies
and coverage of expenses related to the alleged injuries, see, e.g., Ex. 7 (1st Supp. Resps. to 1st
RFPs) at Nos. 21, 43, 44, 45, are directly relevant to the calculation of “actually incurred” medical
expenses owed as cure.
And yet, Plaintiff has not provided any insurance information requested by Transocean.
For example, Transocean requested “[a]ny individual policies . . . of health insurance,” to which
Plaintiff responded that “Transocean should have this information.” Ex. 7 (1st Supp. Resps. to 1st
RFPs) at No. 21. Transocean also requested “[a]ll Health Insurance Claim Forms for services
received by Plaintiff from any medical providers since the date of the incident.” Ex. 7 (1st Supp.
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Resps. to 1st RFPs) at No. 45. In response, Plaintiff again referred Transocean to documents it
already produced and stated that “Plaintiff has no other responsive documents other than those
coming from his medical providers which have already been produced.” Lastly, Plaintiff alleged
he had no documents responsive to Transocean’s requests for all correspondence and explanations
of benefits related to his alleged injuries received by Plaintiff from his health insurance provider.
Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 43, 44. None of the documents Plaintiff has produced
identify the costs covered by his health insurance provider—or even the basics of his coverage.
This information is critical for Transocean to determine its cure obligation.
Furthermore, Plaintiff’s reliance on the collateral source rule as an attempt to conceal
relevant insurance documents is misplaced. See Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 43,
44. The collateral source rule—which reduces tort damages by the amount of recovery a plaintiff
receives from other sources independent from the tortfeaser—is “incompatible” with cure, and
thus is not strictly applied. Manderson, 666 F.3d at 381; Gauthier v. Crosby Marine Serv., Inc.,
752 F.2d 1085, 1089 (5th Cir. 1985). This Court should not allow plaintiff to dodge his discovery
duties by hiding behind inapplicable law.
4. Plaintiff has not proven the amount paid for medical expenses.
The scope of cure extends only to the amount paid for medical services, not the amount
charged for medical services. See Manderson, 666 F.3d at 382 (district court went beyond the
scope of cure when it awarded Plaintiff the amount charged for medical services rather than the
amount accepted as full payment).
Accordingly, the documents Plaintiff has provided again fail to supply sufficient
information for Transocean to determine whether the requested reimbursements fall under its cure
obligation. For example, Plaintiff has provided invoices evidencing charges of tens of thousands
of dollars, but these documents do not indicate what amount was actually paid by Mr. Pleasant.
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See, e.g., Ex. 8 (Cure Demand Ltr. dated Sept. 13, 2021) (providing an estimate of $33,482 for a
future surgery). The documents provided thus do not give Transocean, or this Court, sufficient
information to determine the amount of cure owed.
Indeed, information acquired by Transocean through other sources demonstrates the
importance of Plaintiff disclosing evidence of what he has actually paid for medical treatment. In
her Deposition by Written Questions, Dr. Hawks stated the following:
A bill for Dr. Hawks’ services—like the ones Plaintiff repeatedly refers to in his discovery
responses—would show medical expenses of $4,180, of which Plaintiff actually paid $0.00 and is
obligated to pay is $0.00. Transocean does not have any cure obligation to cover those expenses
since they are not costs that Plaintiff actually paid. The difference between medical expenses
billed versus paid by Plaintiff is thus critical information for Transocean to determine its cure
obligation. Dr. Hawks’ disclosures clearly demonstrate why Transocean cannot possibly
determine its cure obligation based solely on the documents Plaintiff has heretofore provided.
B. Plaintiff must produce evidence that any alleged medical expense was necessary and
that the cost was reasonable.
Cure only covers expenses that are necessary and reasonable. See Diamond Offshore
Mgmt. Co. v. Cummings, No. 01-08-00647-CV, 2010 WL 1611391, at *3 (Tex. App.—Houston
[1st Dist.] Apr. 22, 2010, pet. denied); Caulfield, 633 F.2d at 1133; Matter of Cooper/T. Smith
13
Stevedoring Co., 942 F.Supp. 267, 269 (E.D. La. 1996) (“A court should scrutinize carefully the
medical expenses incurred to determine whether they are both bonafide and reasonable.”).
Relatedly, plaintiffs have a duty to mitigate the costs of cure. Caulfield, 633 F.2d at 1133.
Transocean has requested, and Plaintiff has refused to provide, a variety of documents
essential to determining which of Plaintiff’s expenses are necessary and reasonable. See, e.g., Ex.
5 (Resps. to 1st Set of Interrogatories) at Nos. 11, 17, 18; Ex. 7 (1st Supp. Resps. to 1st RFPs) at
Nos. 3, 4, 5, 25, 29, 30. For example, Transocean requested documentation regarding medical
treatment sought by Plaintiff after the alleged incident, Ex. 5 (Resps. to 1st Set of Interrogatories)
at No. 11; itemized charges for medical visits, Ex. 5 (Resps. to 1st Set of Interrogatories) at No.
18; and documentation substantiating hospitalizations after the alleged incidents, Ex. 7 (1st Supp.
Resps. to 1st RFPs) at No. 4. Transocean even explicitly asked Plaintiff for “medical bills which
Plaintiff alleges relate to reasonable and necessary treatment for the alleged injuries made the
basis of suit herein.” Ex. 7 (1st Supp. Resps. to 1st RFPs) at No. 25 (emphasis added).
In familiar fashion, Plaintiff responded to these critical requests with a combination of
boilerplate objections, protests that the requests were duplicative, and references to other
documents already produced. But invoices and medical bills produced by plaintiff do not
demonstrate whether his treatment was necessary and the cost was reasonable. Indeed, in the few
instances where Plaintiff has produced sufficient information, an auditor found at least some of
the charges were “excessive.” See Ex. 21 (Medical Expense Affidavit, Feb. 22, 2022). This Court
should compel Plaintiff to fulfill his burden of demonstrating that his reimbursement requests are
reasonable costs for necessary treatment.
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C. Plaintiff must produce evidence that the alleged injuries are the product of the alleged
incident aboard the Deepwater Asgard.
Transocean is only obligated to pay cure for injuries incurred while Plaintiff was “in the
service of a ship.” Noble Drilling (US) LLC v. Deaver, 596 S.W.3d 482, 487 (Tex. App.—Houston
[14th Dist.] 2020, no pet.) (citation and internal quotation marks omitted). Thus, Plaintiff has the
burden to show that any alleged injuries for which he claims reimbursement occurred while he was
on or in the service of the Deepwater Asgard during Hurricane Zeta.
Based on the information produced, Plaintiff cannot even meet that bar. The timeline of
Plaintiff’s injuries simply does not support the requisite causal connection. The incident at issue
in this case occurred on October 28, 2022. Immediately thereafter, Plaintiff denied any injury.
Ex. 25 (Affidavit of Lisa Mullins). Furthermore, even after counsel referred Plaintiff for
psychiatric treatment in November 2020, Plaintiff told his doctor that he “has not been diagnosed
with any injuries” related to the Hurricane Zeta incident and “does not believe he was injured in
the Hurricane Zeta incident.” Ex. 26 (Elite Medical Wellness Records at 3, 16). Only after
Plaintiff filed this lawsuit, and four months after the alleged incident, did Plaintiff allege for the
first time that he was physically injured while onboard the Deepwater Asgard. While the existence
and extent of Plaintiff’s alleged injuries will be the subject of expert testimony, Plaintiff has an
independent and continuing obligation to disclose information relating to the facts underlying his
allegations, including his alleged injury and its connection to his service on the Deepwater Asgard.
Transocean has repeatedly asked Plaintiff to adduce evidence that his injuries were
“causally related to Plaintiff’s service aboard the [Deepwater Asgard].” See Ex. 14 (T. Crawford
Ltr. to R. Christensen dated January 3, 2022); Ex. 15 (T. Crawford Ltr. to C. Boatright dated
January 11, 2021). Plaintiff has produced nothing responsive—leaving Transocean, once again,
unable to determine its cure obligation.
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****
For the foregoing reasons, Transocean respectfully requests an Order: (1) compelling full
and complete responses to Interrogatories 11, 17, 18; and (2) compelling full and complete
responses to Requests for Production 3, 4, 5, 6, 12, 21, 25, 26, 27, 28, 29, 30, 43, 44, 45, including
identifying who has paid for what services and to whom.
Given the volume of discovery requests to which Plaintiff has not fully responded, this motion includes
an appendix listing each request and response verbatim that Transocean asks this court to compel, in
accordance with Judge Collier’s procedures.
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Respectfully submitted,
/s/ Bruce D. Oakley
OGAN OVELLS US LLP
Bruce D. Oakley
State Bar No. 15156900
bruce.oakley@hoganlovells.com
S. Lee Whitesell
State Bar No. 24093356
lee.whitesell@hoganlovells.com
Chloe Warnberg
State Bar No. 24131741
chloe.warnberg@hoganlovells.com
609 Main Street, Suite 4200
Houston, TX 77002
Tel: (713) 632-1400
Fax: (713) 632-1401
HMAD AVITSANOS ENSING
Daryl Moore
State Bar No. 14324720
dmoore@azalaw.com
Shahmeer Halepota
State Bar No. 24109968
shalepota@azalaw.com
Tel: (713) 655-1101
Fax: (713) 655-0062
UGENBUHL HEATON ECK ANKIN UBBARD
Todd G. Crawford
Texas Bar No. 05041050
801 Travis Street, Suite 1800
Houston, Texas 77002
Tel: (713) 222-1990
Fax: (713) 222-1996
tcrawford@lawla.com
Counsel for Transocean
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CERTIFICATE OF CONFERENCE
Transocean has requested the discovery the subject of this motion many times from
Plaintiff as explained above. Transocean also previously filed a motion to compel on the subject,
which Plaintiff opposed and on which the trial court did not rule before these cases were
consolidated in this MDL.
/s/ Bruce D. Oakley
Bruce D. Oakley
CERTIFICATE OF SERVICE
I certify that on November 18, 2022, the foregoing motion was served by on all counsel of
record counsel of record via e-service.
/s/ S. Lee Whitesell
S. Lee Whitesell
18
MDL PRETRIAL CAUSE NO. 2020-79221
HRISTOPHER LEASANT,
LAINTIFF, N THE ISTRICT OURT
V
334TH UDICIAL ISTRICT
RANSOCEAN FFSHORE EEPWATER
RILLING NC., ET AL , ARRIS OUNTY EXAS
EFENDANTS.
****************************************************************************
MASTER FILE NO. 2022-36264
N THE ISTRICT OURT
N RE URRICANE ETA ITIGATION
113TH UDICIAL ISTRICT
ARRIS OUNTY EXAS
APPENDIX A
Plaintiff’s Objections and Answers to Transocean’s First Set of Interrogatories
Interrogatory #11 Answer
Identify any physician, medical practitioner or Plaintiff objects to this interrogatory on grounds
psychologist which you have used subsequent that it is overly broad and unduly burdensome
to the incident, the condition(s) for which you as this interrogatory is duplicative of
sought treatment and the approximate date(s) Defendant’s Request for Disclosure and
of treatment. specific information concerning Plaintiff’s
treatment is best obtained from Plaintiff’s
medical and billing records. Subject to and
without waiving the foregoing objections,
Plaintiff refers Defendant to his Responses to
Request for Disclosure and all supplements for
a complete listing of medical providers and
facilities that have provided care and treatment
to Plaintiff for the injuries made the basis of this
lawsuit. Plaintiff also refers Defendant to the
medical and billing records that have and will
be produced for information concerning the
See Exhibit 5.
A-1
specific information concerning the medical
treatment and care that Plaintiff has received as
a result of the injuries made the subject of this
lawsuit
Interrogatory #17 Answer
If you contend that your employer at the time Plaintiff objects to this interrogatory on grounds
of the incident failed to satisfy any item of that it is vague, overly broad and unduly
cure related to your alleged injuries herein, for burdensome. Subject to and without waiving
each such item of alleged cure, provide the
the foregoing objections, Plaintiff has and will
following:
continue to produce medical records and bills
a. the name of the service provider; which Plaintiff’s employer has a duty to pay.
b. the date(s) of service; and, Plaintiff also refers Defendant to the
c. the date and manner by which you maintenance and cure requests that have been
contend your employer first received and will be served as Plaintiff’s treatment
notice that a payment was due. continues.
Interrogatory #18 Answer
For each doctor, medical practitioner or Plaintiff objects to this interrogatory on grounds
psychologist you have seen and for each that it is overly broad and unduly burdensome
hospitalization or outpatient treatment as this interrogatory is duplicative of
subsequent to the incident which is the basis of Defendant’s Request for Disclosure and
this suit, list an itemization of charges, the specific information concerning Plaintiff’s
amount paid and by whom each was paid treatment is best obtained from Plaintiff’s
medical and billing records. Subject to and
without waiving the foregoing objections,
Plaintiff refers Defendant to his responses to
Request for Disclosure and all supplements for
a complete listing of medical providers and
facilities that have provided care and treatment
to Plaintiff for the injuries made the basis of this
lawsuit. Plaintiff also refers Defendant to the
medical and billing records that have and will
be produced for information concerning the
specific information concerning the medical
treatment and care that Plaintiff has received as
a result of the injuries made the subject of this
lawsuit. Lastly, Plaintiff will itemize his past
medical expenses in response to Defendant’s
Request for Disclosure.
A-2
Plaintiff’s Objections and Responses to Transocean’s Request for Production
Requests for Production #3 Response
All documentation substantiating medical Plaintiff objects to this request on grounds that
charges from each doctor or medical it is duplicative of Defendants’ Request for
practitioner seen by Plaintiff subsequent to the Disclosure. Subject to and without waiving the
incident which is the basis of this suit, showing foregoing objections, Plaintiff has produced all
the itemization of charges, the amount paid and billing records currently in his possession in
who paid.
response to Defendants’ Request for
Disclosure. However, Plaintiff’s treatment is
ongoing so Plaintiff will continue to supplement
this request as counsel for Plaintiff receives
additional billing records.
Requests for Production #4 Response
All documentation substantiating Plaintiff objects that this request is duplicative
hospitalization or outpatient treatment of of the previous request and duplicative of
Plaintiff subsequent to the incident which is Defendants’ Request for Disclosure. Subject to
the basis of this suit, showing an itemization of these objections, Plaintiff has produced all
charges, the amount paid and who paid. billing records currently in his possession in
response to Defendants’ Request for
Disclosure. However, Plaintiff’s treatment is
ongoing so Plaintiff will continue to supplement
this request as counsel for Plaintiff receives
additional billing records.
Request for Production #5 Response
If you contend that your employer has See medical bills responsive to the previous two
failed to satisfy any item of cure, requests and responsive to Defendants’ Request
documentation for Disclosure. Please also see maintenance and
substantiating charges for each item of cure cure demands sent to Defendants.
you claim is owed.
See Exhibit 7.
A-3
Request for Production #6 Response
If you contend that your employer has Plaintiff is unsure all the ways Defendant had or
failed to satisfy any item of cure, did not have notice of each claim for cure.
documentation substantiating that your However, Plaintiff would direct Defendants to
employer had notice that you claimed each the maintenance and cure demands he has
such item was owed. already sent and the medical bills he has already
produced.
Request for Production #12 Response
Any documentation or receipts in support of the Plaintiff has provided this information through
out-of-pocket expenses which Plaintiff claims maintenance and cure demands and will
as a result of the incident. continue to provide it through the course of
discovery.
Request for Production #21 Response
Any individual policies of life and/or health Plaintiff objects that life insurance policies are
insurance. irrelevant to any claims and defenses in this
case. Further, Plaintiff’s health insurance was
provided through Transocean so Transocean
should have this information.
Request for Production #25 Response
A true and correct copy of any and all medical This request is duplicative of multiple previous
bills which Plaintiff alleges relate to reasonable requests about medical bills and is also
and necessary treatment for the alleged injuries duplicative of Defendants’ Requests for
made the basis of suit herein. Disclosure. Please see answers to previous
requests relating to medical bills. Plaintiff has
produced all medical records he has obtained
through any source to date and will continue to
supplement as additional medical bills are
located.
Request for Production #26 Response
A true and correct copy of any and all medical Plaintiff has no responsive documents at this
bills which Plaintiff has obtained via time.
depositions on written questions herein.
A-4
Request for Production #27 Response
A true and correct copy of any and all This request is duplicative of multiple previous
medical bills which Plaintiff has obtained via requests about medical bills and is also
written authorizations herein. duplicative of Defendants’ Requests for
Disclosure. Please see answers to previous
requests relating to medical bills. Plaintiff has
produced all medical records he has obtained
through any source to date and will continue to
supplement as additional medical bills are
located.
Request for Production #28 Response
A true and correct copy of any and all medical Plaintiff does not have any responsive
bills which Plaintiff contends were submitted documents at this time.
to Plaintiff’s employer for payment prior to the
date on which suit was filed herein.
Request for Production #29 Response
A true and correct copy of any and all medical This request is duplicative of multiple previous
bills which Plaintiff contends have been requests about medical bills and is also
submitted to Plaintiff’s employer for payment duplicative of Defendants’ Requests for
since the date on which suit was filed herein. Disclosure. Please see answers to previous
requests relating to medical bills. Plaintiff has
produced all medical records he has obtained
through any source to date and will continue to
supplement as additional medical bills are
located. Please additionally see the records
additionally provided in maintenance and cure
letters.
Request for Production #30 Response
A true and correct copy of any and all medical Plaintiff objects to this request as duplicative of
bills relating to Plaintiff’s medical care for the previous requests. Please see Plaintiff’s answers
injuries alleged herein which Plaintiff and objections to previous requests on the same
contends have not been satisfied by Plaintiff’s topic.
employer, if any
A-5
Request for Production #43 Response
All correspondence received from your health Plaintiff objects to this request on the grounds
insurance provider related to your alleged that it would be a collateral source. Subject to
injuries herein. that objection, Plaintiff has no responsive
documents.
Request for Production #44 Response
All explanation of benefits received from your Plaintiff objects to this request on the grounds
health insurance provider related to your that it would be a collateral source. Subject to
alleged injuries herein. that objection, Plaintiff has no responsive
documents.
Request for Production #45 Response
All Health Insurance Claim Forms for services To the extent responsive documents are in
received by Plaintiff from any medical Plaintiff’s medical and billing records obtained
providers since the date of the incident. from his providers, please see those responsive
documents. Plaintiff has no other responsive
documents other than those coming from his
medical providers which have already been
produced.
A-6
Preview
MDL PRETRIAL CAUSE NO. 2020-79221 HRISTOPHER LEASANT, LAINTIFF, N THE ISTRICT OURT V TH UDICIAL ISTRICT RANSOCEAN FFSHORE EEPWATER RILLING ET AL, ARRIS OUNTY EXAS EFENDANTS MASTER FILE NO. 2022-36264 N THE ISTRICT OURT N RE URRICANE ETA ITIGATION TH UDICIAL ISTRICT ARRIS OUNTY EXAS TRANSOCEAN’S MOTION TO COMPEL MEDICAL TREATMENT, BILLING, AND PAYMENT RECORDS Plaintiff filed this lawsuit on December 10, 2020, asserting, among other claims, a cause of action against Transocean for failure to pay cure and seeking compensatory and punitive damages. Ex. 1 (1st Am. Pet.) at ¶ 28. But in the nearly two years this case has been pending, Plaintiff has refused to provide even the most basic information to support his claims. The information Transocean seeks is necessary to assess Plaintiff’s claims for cure and evaluate his claims for compensatory damages. Transocean takes its cure responsibilities seriously: it is prepared to pay appropriate cure to all Plaintiffs, and indeed has already paid for $35,494.85 of Mr. Pleasant’s verifiable and reasonable medical expenses. But Transocean simply lacks the necessary documentation to evaluate Plaintiff’s numerous other demands. To fulfill— As used herein, “Transocean” means Defendants Transocean Offshore Deepwater Drilling Inc. and Triton Voyager Asset Leasing GmbH, sometimes known as Triton Voyager Asset Leasing GmbH, Asgard U.S. Similar discovery will be required from the other 23 plaintiffs in this MDL, all of whom have similarly failed to adequately respond to requests related to their cure and damages claims. As of the date of this filing, Transocean has paid $535,421.40 in cure for the Plaintiffs in this MDL. or, indeed, to understand—its cure obligation, Transocean must determine (1) what medical costs Plaintiff “actually incurred,” Manderson v. Chet Morrison Contractors Inc., 666 F.3d 373, 382 (5th Cir. 2012); (2) whether such costs were necessary and reasonable, see Caulfield v. AC & D Marine, Inc., 633 F.2d 1129, 1133 (5th Cir. 1981); and (3) that the treatment was related to an injury that occurred in the service of the vessel. Plaintiff was required to provide this information—much of which is also relevant to his alleged damages on other causes of action— with his initial disclosures, and Transocean has asked for it many different ways, including through interrogatories and requests for production. These efforts have been in vain. Accordingly, Transocean asks the Court to overrule Plaintiff’s boilerplate and otherwise improper objections, and compel Plaintiff to provide complete disclosures and to fully respond to the duly propounded discovery requests described below. I. Plaintiff has the burden of proving he actually incurred the claimed medical expenses and that the alleged treatment was reasonable and necessary. A shipowner has an obligation—called “cure”—to pay necessary medical expenses for seamen injured while in its service. Manderson, 666 F.3d at 380. The obligation to provide cure is an “implied term of a maritime-employment contract” and “does not depend on any determination of fault.” Id. (citing Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir. 2006)) (internal quotations omitted). Cure is intended to ensure that “the injured seaman does not bear out-of-pocket medical expense.” Davis v. Odeco, Inc., 18 F.3d 1237, 1246 (5th Cir. 1994). Courts hold employers to strict standards regarding their maintenance and cure obligations, e.g., Hall v. Noble Drilling, 242 F.3d 582, 586 (5th Cir. 2001), and an employer maliciously refusing to meet its cure obligations can be subject to fee shifting or even punitive damages. Manderson, 666 F.3d at 382. 2 Because cure is purely compensatory, however, it “does not extend beyond the seaman’s need.” Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531 (1938) (emphasis added). A vessel owner has no duty to pay cure when the seaman has incurred no expense. Johnson v. United States, 333 U.S. 46, 50 (1948). Accordingly, employers must exercise diligence in considering and assessing requests for maintenance and cure to ensure seamen receive the compensation they deserve. On the other hand, employers have a right to: (1) proof that the seaman actually incurred the expense for the medical care; (2) information sufficient to assess that the care was necessary and the charges reasonable; and (3) evidence that the treatment was for an injury that occurred on the vessel. In re 4-K Marine, LLC, 914 F.3d 934, 938 (5th Cir. 2019). II. Plaintiff has refused to provide information to support his claim for cure. Transocean has been seeking information relevant to Plaintiff’s alleged medical expenses since Plaintiff filed this lawsuit in December 2020. See Ex. 2 (Transocean 1st Requests). Plaintiff first failed to provide the required information in his initial disclosures. See Ex. 3 (Resps. to 1st Requests for Disclosure); see also Ex. 4 (2nd Supp. Resps. to 1st Request for Disclosure). Plaintiff then interposed baseless objections and obfuscated his responses to Transocean’s many requests seeking information relevant to these issues. See Ex. 5 (Resps. to 1st Set of Interrogatories); Ex. 6 (Resps. to 1st RFPs). Plaintiff later supplemented his responses and asserted that he had produced all documents responsive to Transocean’s requests for documents supporting his claim for cure. Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 3, 4, 5, 6, 12, 21, 25, 26, 27, 28, 29, 30, 43, 44, 45. Yet, the few documents that Plaintiff supplied do not provide information sufficient for Transocean to exercise its right to assess the alleged charges, and Plaintiff has rejected Transocean’s many attempts to acquire the additional necessary information. 3 A. The documents Plaintiff has supplied do not support his claim for cure. The entirety of Plaintiff’s claim for cure rests on his production of: (1) terse demands that Transocean pay for proposed medical procedures accompanied by skeletal invoices that do not identify who paid for the alleged medical services—much less whether Plaintiff had any obligation to do so; and (2) Affidavits Concerning Cost and Necessity of Services, which simply authenticate the skeletal invoices and provide no additional information. Neither of these sources allows Transocean to assess what, if any, expenses Plaintiff actually incurred; whether those costs were reasonable and necessary; or whether the alleged injury resulted from service on the vessel at sea. Plaintiff’s demand for $33,482 to cover a then-unscheduled surgery illustrates the impossible burden that Transocean bears in calculating its cure obligation. On September 13, 2021, Plaintiff sent a letter to Transocean demanding cure to cover a proposed neck surgery at Lafayette Surgical Hospital. Ex. 8 (Cure Demand Ltr. dated Sept. 13, 2021). The attached documentation simply noted the cost estimate of more than $30,000, along with a note that “it is more likely than not that this patient will need the following procedure as a result of the injury for which we have evaluated the patient.” Id. The letter did not note any expenses actually incurred by Plaintiff, nor did it provide a scheduled date for the surgery. Nevertheless, Plaintiff threatened punitive damages against Transocean if it did not acquiesce to his demand. Id. Transocean acknowledged the letter and requested, among other documents, “any evidence that Mr. Pleasant is out of pocket for any medical treatment he has received to date.” Ex. 9 (T. Crawford Ltr. to R. Christensen dated Oct. 12, 2021). Plaintiff once again ignored the request but sent another demand 4 letter for the same proposed surgery a few months later. Ex. 10 (2d Demand for Surgery dated Dec. 21, 2021). As a result of Plaintiff’s refusal to produce required information, Transocean’s third-party medical auditing firm, which assesses medical reimbursement requests, has repeatedly indicated that it lacks sufficient information to establish a reasonable allowance for the medication and services provided to Plaintiff. For example, Plaintiff sent Transocean an invoice for medications in December 2021 that totaled $13,908.91. Ex. 12 (EOR Injury Meds, Dec. 28, 2021). The only information the invoice provided was a date, drug name/dose, pharmacy/prescriber, quantity, and amount charged for each medication; Plaintiff provided no insurance information, supporting documentation, or associated treatment records. With only that invoice, it is impossible for Transocean to determine whether Plaintiff actually incurred these expenses or that the costs otherwise qualify for cure reimbursement. B. Plaintiff has thwarted Transocean’s numerous attempts to acquire the requested information. In addition to the discovery Plaintiff has refused to provide, as set out in the next section, Transocean has made a variety of attempts to secure the necessary information so that it can fulfill its cure obligation to Plaintiff—all to no avail. Request Letters to Plaintiff. Transocean sent Plaintiff at least four letters between August 2021 and January 2022 requesting additional information necessary for it to properly investigate and corroborate Plaintiff’s claims for maintenance and cure. See Ex. 13 (T. Crawford Ltr. to R. Christensen, Aug. 6, 2021); Ex. 9 (T. Crawford Ltr. to R. Christensen dated Oct. 12, 2021); Ex. 14 Plaintiff appears to have had the proposed surgery on March 4, 2022. Ex. 11 (Lafayette Surgical Specialty Hospital Operative Report, dictated and transcribed March 7, 2022). Even after the surgery, however, Plaintiff failed to provide sufficient information for Transocean to determine what expenses he paid out of pocket, whether the surgery was necessary, and whether the costs were reasonable. 5 (T. Crawford Ltr. to R. Christensen dated Jan. 3, 2022); Ex. 15 (T. Crawford Ltr. to C. Boatright dated Jan. 11, 2021). For example, on August 6, 2021, Transocean sent a letter to Plaintiff requesting additional documentation, including “documents reflecting actual, out-of-pocket expenses incurred by Mr. Pleasant for medical treatment.” See Ex. 13 (T. Crawford Ltr. to R. Christensen dated Aug. 6, 2021). Transocean sent a subsequent letter on October 12, 2021, reiterating these requests. Ex. 9 (T. Crawford Ltr. to R. Christensen dated Oct. 12, 2021). Plaintiff never sent the requested information, but he did send at least four more demands for cure to Transocean in the following months and even threatened punitive damages if Transocean did not comply. Ex. 16 (Cure Demand Ltr. dated Aug. 8, 2021); Ex. 8 (Cure Demand Ltr. dated Sept. 13, 2021); Ex. 10 (2d Demand for Surgery dated Dec. 21, 2021); Ex. 17 (Cure Demand Ltr. dated Dec. 28, 2021). Affidavits Concerning Cost and Necessity. The Court’s docket also reflects Plaintiff’s steadfast refusal to provide required information related to his cure demand. Rather than address Transocean’s repeated pleas for additional information, Plaintiff has instead filed multiple Affidavits Concerning Cost and Necessity of Services—which provide no further insight as to who (if anyone) paid for the services or whether the treatment was necessary and reasonable. See Ex. 18 (Notice of Filing Affidavits Concerning Cost & Necessity, Nov. 29, 2021); Ex. 19 (2d Notice of Filing Affidavits Concerning Cost & Necessity, Jan. 27, 2022); Ex. 20 (3d Notice of Filing Affidavits Concerning Cost & Necessity, Feb. 25, 2022). Indeed, Transocean responded to each of Plaintiff’s filing with its own Medical Billing Records Counter-Affidavit, at least one of which again expressly informed Plaintiff that he “did not provide sufficient information or documentation regarding the nature and scope of the medical treatment or medications provided [by InjuryMeds] in order to evaluate whether the invoiced amount is reasonable under the circumstances.” Ex. 21 6 (Medical Expense Affidavit, Feb. 22, 2022); see also Ex. 22 (Amended Medical Expense Affidavit, Dec. 28, 2021); Ex. 23 (Medical Expense Affidavit, March 9, 2022). Direct Outreach to Healthcare Providers. After Plaintiff repeatedly refused to disclose the medical records requested, Transocean unsuccessfully attempted to obtain the necessary medical information directly from Plaintiff’s healthcare providers. First, Transocean issued Depositions by Written Questions to four of Plaintiff’s healthcare providers—Dr. Hawks; Allied Health, LLC; Neurological Solutions of Lafayette, LLC; and Elite Medical Wellness. Only Dr. Hawks responded and, as explained further below, her response indicates that Arnold & Itkin— and not Plaintiff—is paying Mr. Pleasant’s medical expenses. Second, after learning that Access Healthcare paid Plaintiff’s invoices from Elite Medical Wellness, Transocean contacted Access Healthcare on four separate occasions requesting proof of payment, including who paid the expenses. Eventually, Access Healthcare employees responded that they could not provide proof of payment. Third, Transocean requested a W-9 from Dr. Hawks on six separate occasions and proof of payment on four separate occasions, none of which Dr. Hawks has provided. Plaintiff’s medical providers simply will not say what they have been paid (if anything) or by whom (if anyone), even when served a subpoena. III. Plaintiff has not met his discovery obligations. Because he asserts a claim for cure, and seeks damages on that and other claims, Mr. Pleasant is obligated to produce evidence relevant to his medical treatment and payment arrangements. The Court should compel Plaintiff to meet his discovery obligations. Transocean will seek enforcement of these subpoenas separately from this motion. 7 A. Plaintiff must produce all evidence that he—and not someone else—“actually incurred” any alleged medical expense. “[A]n injured seaman may recover maintenance and cure only for those expenses ‘actually incurred.’” Manderson, 666 F.3d at 382 (citations omitted) (emphasis added). Thus, if an employee has not incurred an expense, an employer has no duty to pay cure. Johnson, 333 U.S. at 50 (cure not recoverable where seaman received treatment at his family’s home and thus incurred no expense or liability for his care). 1. Plaintiff has not produced evidence of his out-of-pocket expenses. Transocean has repeatedly asked Plaintiff for evidence that he personally incurred medical expenses related to his alleged injuries, but Plaintiff has never provided any such proof. See Ex. 5 (Resps. to 1st Set of Interrogatories) at No. 18; Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 3, 4, 12, 21, 43, 44, 45. As detailed above, the invoices Plaintiff provided to Transocean simply document the amounts charged and do not identify the person or entity who paid the bill. Indeed, Plaintiff in his deposition that he has not paid any out-of-pocket medical expenses in this case, except for a small medication charge that Plaintiff thereafter submitted for reimbursement. Ex. 24 (Pleasant Dep. Nov. 30, 2021 at 316:2–17). Because this was a documented charge Transocean could substantiate Plaintiff actually paid, Transocean is currently processing Plaintiff’s reimbursement for the amount he spent. Request for Production 12 offers an example of Plaintiff’s refusal to provide discovery necessary to calculate Plaintiff’s “actually incurred” medical expenses. Transocean takes seriously the commitment to ensure that its injured employees “do[] not bear out-of-pocket medical expense.” Davis, 18 F.3d at 1246. Accordingly, Request for Production 12 explicitly asks for “[a]ny documentation or receipts in support of the out-of-pocket expenses which Plaintiff claims as a result of the incident.” Ex. 7 (1st Supp. Resps. to 1st RFPs) at No. 12. It is hard to imagine a 8 more relevant request, particularly in light of Mr. Pleasant’s deposition testimony suggesting he has not personally paid for any medical expenses in this case. See Ex. 24 (Pleasant Dep. Nov. 30, 2021 at 316:2–17). And yet, Plaintiff provided no responsive documents. Instead, he responded that he “has provided this information through maintenance and cure demands and will continue to provide it through the course of discovery.” Ex. 7 (1st Supp. Resps. to 1st RFPs) at No. 12. As described previously, the demand letters Plaintiff has sent to Transocean—along with the skeletal invoices attached—do not identify what costs Plaintiff has actually incurred, so they are not responsive to Transocean’s request. Plaintiff has also failed to supplement with any other evidence of his out- of-pocket expenses. 2. Plaintiff has failed to show that someone else has not covered his medical expenses. Because no cure is due where Plaintiff incurred no expense, Transocean is entitled to information showing who paid for each of Plaintiff’s medical treatments. For example, Interrogatory 18 asked Plaintiff to disclose an “itemization of charges, the amount paid and by whom each was paid” for a variety of medical visits and treatments that he may have had since the incident at issue in this suit. See Ex. 5 (Resps. to 1st Set of Interrogatories) at No. 18 (emphasis added). Plaintiff responded with a laundry list of baseless boilerplate objections (including that the request is “overly broad,” “unduly burdensome,” and “duplicative”) before promising to “itemize his past medical expenses in response to Defendant’s Request for Disclosure.” Plaintiff also referred Transocean to the “complete listing of medical providers and facilities that have provided care and treatment to Plaintiff” and “medical and billing records that have and will be produced.” None of these records include information about who paid which expenses. 9 Similarly, Transocean’s Request for Production 3 and 4 requested all documentation substantiating Plaintiff’s medical charges, hospitalization, and outpatient treatment related to his alleged injuries, including “the amount paid and who paid.” Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 3, 4. Plaintiff objected to these requests as duplicative and responded that he “has produced all billing records currently in his possession.” Again, none of the documents produced by Plaintiff show who paid which expenses. Without receiving that information, it is impossible for Transocean to determine the amount of cure that it owes Plaintiff. Identifying who paid Plaintiff’s medical expenses is even more important in light of some unusual requests for reimbursement submitted by Plaintiff to Transocean. Specifically, Plaintiff sent Transocean a letter on December 28, 2021, demanding the following: Furthermore, a Deposition by Written Questions to Dr. Hawks revealed the following: 10 Transocean is not obligated to reimburse Plaintiff for expenses paid by Arnold & Itkin. Furthermore, any documents related to payment for Plaintiff’s medical treatment that Arnold & Itkin possesses are also in Plaintiff’s custody and control for discovery purposes. Thus, if Arnold & Itkin has documents that are responsive to Transocean’s discovery requests, Plaintiff is obligated to produce them, and the Court should require him to do so. 3. Plaintiff’s refusal to disclose insurance information further obfuscates the issue of what costs he has actually incurred. Plaintiff has also refused to disclose information regarding insurance coverage, which is directly relevant in calculating Plaintiff’s “actually incurred” medical expenses. An employer generally has no duty to compensate seamen for medical expenses that have already been reimbursed by another party, including under an insurance plan to which the seaman is not the sole contributor. Davis, 18 F.3d at 1246. Accordingly, information regarding health insurance policies and coverage of expenses related to the alleged injuries, see, e.g., Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 21, 43, 44, 45, are directly relevant to the calculation of “actually incurred” medical expenses owed as cure. And yet, Plaintiff has not provided any insurance information requested by Transocean. For example, Transocean requested “[a]ny individual policies . . . of health insurance,” to which Plaintiff responded that “Transocean should have this information.” Ex. 7 (1st Supp. Resps. to 1st RFPs) at No. 21. Transocean also requested “[a]ll Health Insurance Claim Forms for services received by Plaintiff from any medical providers since the date of the incident.” Ex. 7 (1st Supp. 11 Resps. to 1st RFPs) at No. 45. In response, Plaintiff again referred Transocean to documents it already produced and stated that “Plaintiff has no other responsive documents other than those coming from his medical providers which have already been produced.” Lastly, Plaintiff alleged he had no documents responsive to Transocean’s requests for all correspondence and explanations of benefits related to his alleged injuries received by Plaintiff from his health insurance provider. Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 43, 44. None of the documents Plaintiff has produced identify the costs covered by his health insurance provider—or even the basics of his coverage. This information is critical for Transocean to determine its cure obligation. Furthermore, Plaintiff’s reliance on the collateral source rule as an attempt to conceal relevant insurance documents is misplaced. See Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 43, 44. The collateral source rule—which reduces tort damages by the amount of recovery a plaintiff receives from other sources independent from the tortfeaser—is “incompatible” with cure, and thus is not strictly applied. Manderson, 666 F.3d at 381; Gauthier v. Crosby Marine Serv., Inc., 752 F.2d 1085, 1089 (5th Cir. 1985). This Court should not allow plaintiff to dodge his discovery duties by hiding behind inapplicable law. 4. Plaintiff has not proven the amount paid for medical expenses. The scope of cure extends only to the amount paid for medical services, not the amount charged for medical services. See Manderson, 666 F.3d at 382 (district court went beyond the scope of cure when it awarded Plaintiff the amount charged for medical services rather than the amount accepted as full payment). Accordingly, the documents Plaintiff has provided again fail to supply sufficient information for Transocean to determine whether the requested reimbursements fall under its cure obligation. For example, Plaintiff has provided invoices evidencing charges of tens of thousands of dollars, but these documents do not indicate what amount was actually paid by Mr. Pleasant. 12 See, e.g., Ex. 8 (Cure Demand Ltr. dated Sept. 13, 2021) (providing an estimate of $33,482 for a future surgery). The documents provided thus do not give Transocean, or this Court, sufficient information to determine the amount of cure owed. Indeed, information acquired by Transocean through other sources demonstrates the importance of Plaintiff disclosing evidence of what he has actually paid for medical treatment. In her Deposition by Written Questions, Dr. Hawks stated the following: A bill for Dr. Hawks’ services—like the ones Plaintiff repeatedly refers to in his discovery responses—would show medical expenses of $4,180, of which Plaintiff actually paid $0.00 and is obligated to pay is $0.00. Transocean does not have any cure obligation to cover those expenses since they are not costs that Plaintiff actually paid. The difference between medical expenses billed versus paid by Plaintiff is thus critical information for Transocean to determine its cure obligation. Dr. Hawks’ disclosures clearly demonstrate why Transocean cannot possibly determine its cure obligation based solely on the documents Plaintiff has heretofore provided. B. Plaintiff must produce evidence that any alleged medical expense was necessary and that the cost was reasonable. Cure only covers expenses that are necessary and reasonable. See Diamond Offshore Mgmt. Co. v. Cummings, No. 01-08-00647-CV, 2010 WL 1611391, at *3 (Tex. App.—Houston [1st Dist.] Apr. 22, 2010, pet. denied); Caulfield, 633 F.2d at 1133; Matter of Cooper/T. Smith 13 Stevedoring Co., 942 F.Supp. 267, 269 (E.D. La. 1996) (“A court should scrutinize carefully the medical expenses incurred to determine whether they are both bonafide and reasonable.”). Relatedly, plaintiffs have a duty to mitigate the costs of cure. Caulfield, 633 F.2d at 1133. Transocean has requested, and Plaintiff has refused to provide, a variety of documents essential to determining which of Plaintiff’s expenses are necessary and reasonable. See, e.g., Ex. 5 (Resps. to 1st Set of Interrogatories) at Nos. 11, 17, 18; Ex. 7 (1st Supp. Resps. to 1st RFPs) at Nos. 3, 4, 5, 25, 29, 30. For example, Transocean requested documentation regarding medical treatment sought by Plaintiff after the alleged incident, Ex. 5 (Resps. to 1st Set of Interrogatories) at No. 11; itemized charges for medical visits, Ex. 5 (Resps. to 1st Set of Interrogatories) at No. 18; and documentation substantiating hospitalizations after the alleged incidents, Ex. 7 (1st Supp. Resps. to 1st RFPs) at No. 4. Transocean even explicitly asked Plaintiff for “medical bills which Plaintiff alleges relate to reasonable and necessary treatment for the alleged injuries made the basis of suit herein.” Ex. 7 (1st Supp. Resps. to 1st RFPs) at No. 25 (emphasis added). In familiar fashion, Plaintiff responded to these critical requests with a combination of boilerplate objections, protests that the requests were duplicative, and references to other documents already produced. But invoices and medical bills produced by plaintiff do not demonstrate whether his treatment was necessary and the cost was reasonable. Indeed, in the few instances where Plaintiff has produced sufficient information, an auditor found at least some of the charges were “excessive.” See Ex. 21 (Medical Expense Affidavit, Feb. 22, 2022). This Court should compel Plaintiff to fulfill his burden of demonstrating that his reimbursement requests are reasonable costs for necessary treatment. 14 C. Plaintiff must produce evidence that the alleged injuries are the product of the alleged incident aboard the Deepwater Asgard. Transocean is only obligated to pay cure for injuries incurred while Plaintiff was “in the service of a ship.” Noble Drilling (US) LLC v. Deaver, 596 S.W.3d 482, 487 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (citation and internal quotation marks omitted). Thus, Plaintiff has the burden to show that any alleged injuries for which he claims reimbursement occurred while he was on or in the service of the Deepwater Asgard during Hurricane Zeta. Based on the information produced, Plaintiff cannot even meet that bar. The timeline of Plaintiff’s injuries simply does not support the requisite causal connection. The incident at issue in this case occurred on October 28, 2022. Immediately thereafter, Plaintiff denied any injury. Ex. 25 (Affidavit of Lisa Mullins). Furthermore, even after counsel referred Plaintiff for psychiatric treatment in November 2020, Plaintiff told his doctor that he “has not been diagnosed with any injuries” related to the Hurricane Zeta incident and “does not believe he was injured in the Hurricane Zeta incident.” Ex. 26 (Elite Medical Wellness Records at 3, 16). Only after Plaintiff filed this lawsuit, and four months after the alleged incident, did Plaintiff allege for the first time that he was physically injured while onboard the Deepwater Asgard. While the existence and extent of Plaintiff’s alleged injuries will be the subject of expert testimony, Plaintiff has an independent and continuing obligation to disclose information relating to the facts underlying his allegations, including his alleged injury and its connection to his service on the Deepwater Asgard. Transocean has repeatedly asked Plaintiff to adduce evidence that his injuries were “causally related to Plaintiff’s service aboard the [Deepwater Asgard].” See Ex. 14 (T. Crawford Ltr. to R. Christensen dated January 3, 2022); Ex. 15 (T. Crawford Ltr. to C. Boatright dated January 11, 2021). Plaintiff has produced nothing responsive—leaving Transocean, once again, unable to determine its cure obligation. 15 **** For the foregoing reasons, Transocean respectfully requests an Order: (1) compelling full and complete responses to Interrogatories 11, 17, 18; and (2) compelling full and complete responses to Requests for Production 3, 4, 5, 6, 12, 21, 25, 26, 27, 28, 29, 30, 43, 44, 45, including identifying who has paid for what services and to whom. Given the volume of discovery requests to which Plaintiff has not fully responded, this motion includes an appendix listing each request and response verbatim that Transocean asks this court to compel, in accordance with Judge Collier’s procedures. 16 Respectfully submitted, /s/ Bruce D. Oakley OGAN OVELLS US LLP Bruce D. Oakley State Bar No. 15156900 bruce.oakley@hoganlovells.com S. Lee Whitesell State Bar No. 24093356 lee.whitesell@hoganlovells.com Chloe Warnberg State Bar No. 24131741 chloe.warnberg@hoganlovells.com 609 Main Street, Suite 4200 Houston, TX 77002 Tel: (713) 632-1400 Fax: (713) 632-1401 HMAD AVITSANOS ENSING Daryl Moore State Bar No. 14324720 dmoore@azalaw.com Shahmeer Halepota State Bar No. 24109968 shalepota@azalaw.com Tel: (713) 655-1101 Fax: (713) 655-0062 UGENBUHL HEATON ECK ANKIN UBBARD Todd G. Crawford Texas Bar No. 05041050 801 Travis Street, Suite 1800 Houston, Texas 77002 Tel: (713) 222-1990 Fax: (713) 222-1996 tcrawford@lawla.com Counsel for Transocean 17 CERTIFICATE OF CONFERENCE Transocean has requested the discovery the subject of this motion many times from Plaintiff as explained above. Transocean also previously filed a motion to compel on the subject, which Plaintiff opposed and on which the trial court did not rule before these cases were consolidated in this MDL. /s/ Bruce D. Oakley Bruce D. Oakley CERTIFICATE OF SERVICE I certify that on November 18, 2022, the foregoing motion was served by on all counsel of record counsel of record via e-service. /s/ S. Lee Whitesell S. Lee Whitesell 18 MDL PRETRIAL CAUSE NO. 2020-79221 HRISTOPHER LEASANT, LAINTIFF, N THE ISTRICT OURT V 334TH UDICIAL ISTRICT RANSOCEAN FFSHORE EEPWATER RILLING NC., ET AL , ARRIS OUNTY EXAS EFENDANTS. **************************************************************************** MASTER FILE NO. 2022-36264 N THE ISTRICT OURT N RE URRICANE ETA ITIGATION 113TH UDICIAL ISTRICT ARRIS OUNTY EXAS APPENDIX A Plaintiff’s Objections and Answers to Transocean’s First Set of Interrogatories Interrogatory #11 Answer Identify any physician, medical practitioner or Plaintiff objects to this interrogatory on grounds psychologist which you have used subsequent that it is overly broad and unduly burdensome to the incident, the condition(s) for which you as this interrogatory is duplicative of sought treatment and the approximate date(s) Defendant’s Request for Disclosure and of treatment. specific information concerning Plaintiff’s treatment is best obtained from Plaintiff’s medical and billing records. Subject to and without waiving the foregoing objections, Plaintiff refers Defendant to his Responses to Request for Disclosure and all supplements for a complete listing of medical providers and facilities that have provided care and treatment to Plaintiff for the injuries made the basis of this lawsuit. Plaintiff also refers Defendant to the medical and billing records that have and will be produced for information concerning the See Exhibit 5. A-1 specific information concerning the medical treatment and care that Plaintiff has received as a result of the injuries made the subject of this lawsuit Interrogatory #17 Answer If you contend that your employer at the time Plaintiff objects to this interrogatory on grounds of the incident failed to satisfy any item of that it is vague, overly broad and unduly cure related to your alleged injuries herein, for burdensome. Subject to and without waiving each such item of alleged cure, provide the the foregoing objections, Plaintiff has and will following: continue to produce medical records and bills a. the name of the service provider; which Plaintiff’s employer has a duty to pay. b. the date(s) of service; and, Plaintiff also refers Defendant to the c. the date and manner by which you maintenance and cure requests that have been contend your employer first received and will be served as Plaintiff’s treatment notice that a payment was due. continues. Interrogatory #18 Answer For each doctor, medical practitioner or Plaintiff objects to this interrogatory on grounds psychologist you have seen and for each that it is overly broad and unduly burdensome hospitalization or outpatient treatment as this interrogatory is duplicative of subsequent to the incident which is the basis of Defendant’s Request for Disclosure and this suit, list an itemization of charges, the specific information concerning Plaintiff’s amount paid and by whom each was paid treatment is best obtained from Plaintiff’s medical and billing records. Subject to and without waiving the foregoing objections, Plaintiff refers Defendant to his responses to Request for Disclosure and all supplements for a complete listing of medical providers and facilities that have provided care and treatment to Plaintiff for the injuries made the basis of this lawsuit. Plaintiff also refers Defendant to the medical and billing records that have and will be produced for information concerning the specific information concerning the medical treatment and care that Plaintiff has received as a result of the injuries made the subject of this lawsuit. Lastly, Plaintiff will itemize his past medical expenses in response to Defendant’s Request for Disclosure. A-2 Plaintiff’s Objections and Responses to Transocean’s Request for Production Requests for Production #3 Response All documentation substantiating medical Plaintiff objects to this request on grounds that charges from each doctor or medical it is duplicative of Defendants’ Request for practitioner seen by Plaintiff subsequent to the Disclosure. Subject to and without waiving the incident which is the basis of this suit, showing foregoing objections, Plaintiff has produced all the itemization of charges, the amount paid and billing records currently in his possession in who paid. response to Defendants’ Request for Disclosure. However, Plaintiff’s treatment is ongoing so Plaintiff will continue to supplement this request as counsel for Plaintiff receives additional billing records. Requests for Production #4 Response All documentation substantiating Plaintiff objects that this request is duplicative hospitalization or outpatient treatment of of the previous request and duplicative of Plaintiff subsequent to the incident which is Defendants’ Request for Disclosure. Subject to the basis of this suit, showing an itemization of these objections, Plaintiff has produced all charges, the amount paid and who paid. billing records currently in his possession in response to Defendants’ Request for Disclosure. However, Plaintiff’s treatment is ongoing so Plaintiff will continue to supplement this request as counsel for Plaintiff receives additional billing records. Request for Production #5 Response If you contend that your employer has See medical bills responsive to the previous two failed to satisfy any item of cure, requests and responsive to Defendants’ Request documentation for Disclosure. Please also see maintenance and substantiating charges for each item of cure cure demands sent to Defendants. you claim is owed. See Exhibit 7. A-3 Request for Production #6 Response If you contend that your employer has Plaintiff is unsure all the ways Defendant had or failed to satisfy any item of cure, did not have notice of each claim for cure. documentation substantiating that your However, Plaintiff would direct Defendants to employer had notice that you claimed each the maintenance and cure demands he has such item was owed. already sent and the medical bills he has already produced. Request for Production #12 Response Any documentation or receipts in support of the Plaintiff has provided this information through out-of-pocket expenses which Plaintiff claims maintenance and cure demands and will as a result of the incident. continue to provide it through the course of discovery. Request for Production #21 Response Any individual policies of life and/or health Plaintiff objects that life insurance policies are insurance. irrelevant to any claims and defenses in this case. Further, Plaintiff’s health insurance was provided through Transocean so Transocean should have this information. Request for Production #25 Response A true and correct copy of any and all medical This request is duplicative of multiple previous bills which Plaintiff alleges relate to reasonable requests about medical bills and is also and necessary treatment for the alleged injuries duplicative of Defendants’ Requests for made the basis of suit herein. Disclosure. Please see answers to previous requests relating to medical bills. Plaintiff has produced all medical records he has obtained through any source to date and will continue to supplement as additional medical bills are located. Request for Production #26 Response A true and correct copy of any and all medical Plaintiff has no responsive documents at this bills which Plaintiff has obtained via time. depositions on written questions herein. A-4 Request for Production #27 Response A true and correct copy of any and all This request is duplicative of multiple previous medical bills which Plaintiff has obtained via requests about medical bills and is also written authorizations herein. duplicative of Defendants’ Requests for Disclosure. Please see answers to previous requests relating to medical bills. Plaintiff has produced all medical records he has obtained through any source to date and will continue to supplement as additional medical bills are located. Request for Production #28 Response A true and correct copy of any and all medical Plaintiff does not have any responsive bills which Plaintiff contends were submitted documents at this time. to Plaintiff’s employer for payment prior to the date on which suit was filed herein. Request for Production #29 Response A true and correct copy of any and all medical This request is duplicative of multiple previous bills which Plaintiff contends have been requests about medical bills and is also submitted to Plaintiff’s employer for payment duplicative of Defendants’ Requests for since the date on which suit was filed herein. Disclosure. Please see answers to previous requests relating to medical bills. Plaintiff has produced all medical records he has obtained through any source to date and will continue to supplement as additional medical bills are located. Please additionally see the records additionally provided in maintenance and cure letters. Request for Production #30 Response A true and correct copy of any and all medical Plaintiff objects to this request as duplicative of bills relating to Plaintiff’s medical care for the previous requests. Please see Plaintiff’s answers injuries alleged herein which Plaintiff and objections to previous requests on the same contends have not been satisfied by Plaintiff’s topic. employer, if any A-5 Request for Production #43 Response All correspondence received from your health Plaintiff objects to this request on the grounds insurance provider related to your alleged that it would be a collateral source. Subject to injuries herein. that objection, Plaintiff has no responsive documents. Request for Production #44 Response All explanation of benefits received from your Plaintiff objects to this request on the grounds health insurance provider related to your that it would be a collateral source. Subject to alleged injuries herein. that objection, Plaintiff has no responsive documents. Request for Production #45 Response All Health Insurance Claim Forms for services To the extent responsive documents are in received by Plaintiff from any medical Plaintiff’s medical and billing records obtained providers since the date of the incident. from his providers, please see those responsive documents. Plaintiff has no other responsive documents other than those coming from his medical providers which have already been produced. A-6