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MASTER FILE NO. 2022-36264
§ IN THE DISTRICT COURT OF
IN RE HURRICANE ZETA LITIGATION §
§ HARRIS COUNTY, TEXAS
MDL NO. 22-0300
§ 113th JUDICIAL DISTRICT
**************************************************************************
MDL PRETRIAL CAUSE NO. 2020-79221
CHRISTOPHER PLEASANT, § IN THE DISTRICT COURT OF
Plaintiff
v. § HARRIS COUNTY, TEXAS
§
TRANSOCEAN OFFSHORE
DEEPWATER DRILLING INC., et al., §
Defendants § 334th JUDICIAL DISTRICT
PLAINTIFF S RESPONSE TO TRANSOCEAN’S MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING PLAINTIFF CHRISTOPHER
PLEASANT’S DEEPWATER HORIZON RELEASE
The Court should deny Transocean’s motion for partial summary judgment regarding
Plaintiff Chris Pleasant’s Deepwater Horizon release for the following reasons:
Chris Pleasant, a Jones Act seaman, sued Transocean under the Jones
Act and general maritime law for injuries he suffered during
Hurricane Zeta while working aboard Transocean’s Deepwater
Asgard Mr. Pleasant’s experience on the Asgard is particularly of
note because this is the second time a Transocean drillship he worked
on has been the site of a tragic and traumatic incident. Previous to the
events on the Asgard Mr. Pleasant worked on the Deepwater
Horizon when the well blew out and the rig exploded. During that
event, the Deepwater Horizon became a floating fireball engulfed in
flames from the explosion. Numerous crewmembers were killed, and
the rest, including Mr. Pleasant, had to evacuate.
Following the Deepwater Horizon incident, Mr. Pleasant kept
working for Transocean and even stayed at the site to help in the
aftermath of the explosion In fact, Transocean chose Mr. Pleasant to
testify on Transocean’s behalf in front of Congress and in litigation
arising out of the Deepwater Horizonincident.
Rather than sue Transocean for the mental anguish and emotional
injuries he sustained as a result of Deepwater Horizon Mr. Pleasant
decided to keep working at Transocean. He signed a release that was
meant to settle any claims against Transocean for the Horizon
incident. Now, Transocean is trying to use that release against Mr.
Pleasantto extinguish his claims from the Asgard incident.
Because urricane Zeta and Transocean’s failures to properly
evacuate the crew, Mr. Pleasant suffered various physical and mental
injuries. Understandably, the Asgard incident dredged up memories
of Deepwater Horizon. But his Asgard injuries are not a continuation
of his Horizon experience, rather, they constitute new injuries
specifically tied to the Asgard. Transocean does not want the Court
to see it that way. Instead, Transocean wants the Court to grant
summary judgment on any claims from the Asgard that relate in any
way to Chris’s experience on the Deepwater Horizon Transocean’s
request is improper for two reasons.
First, seamen’s releases are subject to careful court scrutiny. Seamen
like Mr. Pleasant are afforded broad protections. There are fact issues
not only as to whether the Deepwater Horizon release applies here
but also as to whether the release is valid in the first place.
Second, the evidence shows that all of Mr. Pleasant’s Asgard injuries
are separate from his Deepwater Horizonexperience. Mr. Pleasant ’s
wife testified unequivocally that Chris had recovered from
Deepwater Horizon. She explained that the symptoms Chris has
experienced since the Asgardincluding the nightmares about
Deepwater Horizonstarted after the hurricane event. In short, the
fact that the Asgard incident caused Chris to flash back to the
Deepwater Horizon explosion is of no moment. And it certainly is
not justification for summary judgment on any of Chris’s claims
arising from the Asgard
ELEVANT ACTS
In October 2020, Plaintiff Chris Pleasant, a Jones Act seam as employed by
Transocean, and assigned to the Deepwater Asgardan ultra deep water drillship. At the
time, Transocean and Triton had a contract with Beacon to perform offshore drilling in the
Gulf of Mexico. Early in October, the Deepwater Asgard avoided Hurricane Delta by taking
the proper steps to secure the well and sail away. But after reconnecting from Hurricane Delta,
the Deepwater Asgardencountered mechanical difficulties and had substantial downtime.
Just as Hurricane Zeta was forming, the Deepwater Asgard was beginning to get ready
to drill again. But rather than shut down the operations, as Transocean’s policies require,
Transocean and Beacon decided that the Deepwater Asgard should continue to prepare to drill
rather than evacuate the storm. Because Transocean and Beacon put profits over safety, the
crew of the Deepwater Asgard was stuck in the eyewall of Hurricane Zeta. Mr. Pleasant and
the other crewmembers were injured while the Asgardrode out t he storm.
RGUMENT
The Deepwater Horizon release does not apply to Mr. Pleasant’s claims from the
Asgardincident
“Historically, seam n have enjoyed a special status in our judicial system.” Castillo v.
Spiliada Mar. Corp., 937 F.2d 240, 243 (5th Cir. 1991). Indeed, by virtue of the “great
inequality in bargaining position between large shipowners and unsophisticated seam n,”
Jones Act seam n “occupy a unique position” and are thus entitled to exclusive protections
when determining the validity of a seaman’s release. Id. Almost two centuries ago, Justice
Story explained:
[Seamen] are emphatically the wards of admiralty; and though
not technically incapable of entering into a valid contract, they
are treated in the same manner, as courts of equity are accustomed
to treat young heirs, dealing with their expectancies, wards with
their guardians, and cestuis que trust with their trustees. . . . If
there is any undue inequality in the terms, any disproportion in
the bargain, any sacrifice of rights on one side, which are not
compensated by extraordinary benefits on the other, the judicial
interpretation of the transaction, is that the bargain is unjust and
unreasonable, that advantage has been taken of the situation of
the weaker party, and that protanto the bargain ought to be set
aside as inequitable.
Garrett v. Moore McCormack Co., 317 U.S. 239, 246 (1942) (quoting Harden v. Gordon, 11
F. Cas. 480, 485 (C.C.D. Me. 1823)).
Thus, seaman’s releases are “subject to careful scrutiny.” Id. at 248. When challenged,
the “burden of proof in establishing the validity of a seaman’s release is on the shipowner.”
Castillo, 937 F.2d at 244. Accordingly, the “shipowner must show that the seaman’s release
‘was executed freely, without deception or coercion, and that it was made by the seaman with
full understanding of his rights.’” Id.A shipowner’s burden is particularly heavy on summary
judgment because the “shipowner must conclusively demonstrate the absence of a genuine
issue of material fact.” Id.
Courts in the Fifth Circuit have identified several factors that are relevant to an analysis
of the validity of a seaman’s release. These factors include “the nature of the legal advice
available to the seaman at the time of signing the release, the adequacy of the consideration,
whether the parties negotiated at arm’s length and in good faith, and whether there was the
appearance of fraud or coercion.” Transocean Offshore USA Inc. v. Catrette, 256 Fed. Appx.
672, 673 (5th Cir. 2007).
In this case, Mr. Pleasant signed a release after the Deepwater Horizon explosion that
included the following language:
APPEARER . . . hereby releases, acquits and forever discharges
all parties having anything to do with these claims, it being fully
understood and agreed that APPEARER retains no claims against
anyone as a result of the Horizon Incident
Ex. 1: Release, at 1(emphasis added).
There is no evidence that Mr. Pleasant received independent legal counsel before
signing the agreement. And Mrs. Pleasant testified that Chris did not seek any treatment for
his injuries after the Horizonincident.
Q. How would you describe, from your perspective, Chris’s
mental state in the months and the few years after Deepwater
Horizon?
A. Deepwater Horizon, Chris, he was functioning, but definitely
there was some fear, but the type of person he is, he’s able to work
through it. He never got counseling that he should have got or
any kind of other assistance that he I feel like he should
have gotHe just kept moving
Ex. 2: Sharon Pleasant Dep., at 41:3 (emphasis added).
Courts faced with similar facts have declined to enforce seamen releases. For example,
in Transocean Offshore USA Inc. v. Catrette, 256 Fed. Appx. 672 (5th Cir. 2007), the plaintiff
suffered work related injuries while employed by Transocean as a Jones Act seaman. Id. at
672. The plaintiff received some medical treatment but the doctor did not share with the
plaintiff the results of the tests he performed or his recommendations for treatment. Id. at 673.
Without the benefit of that knowledge, a year later the plaintiff signed a release of all of his
rights against Transocean in exchange for $4000. Id.
The district court found that the release was invalid because:
the plaintiff was not fully informed of his condition or future
prognosis; and
the plaintiff was not fully advised of his legal rights at the time
he executed the release. Id.
Importantly, the findings of the court included facts that showed that the plaintiff did
not have legal counsel when he executed the release, Transocean’s attorney simply read the
contract to the plaintiff without explaining it, only a small portion of the release was explained
in laymen’s terms to the plaintiff, and there was no explanation of maintenance and cure,
indemnity, or other rights. Id. If the release was invalid in Catrette, the “releases” here are also
surely invalid, especially when Mr. Pleasant’s injuries come from a separate incident
Likewise, in In re Cardinal Services, Inc., 304 Fed. Appx. 247 (5th Cir. 2008), two
vessels collided several miles south of Intracoastal City, Louisiana. The plaintiff was working
in the galley of one of the vessels when the collision occurred. Id.at 250. He suffered injuries
to his leg. Id. He was examined the next day and the doctor determined that the injuries were
not serious. Id. Shortly thereafter, the plaintiff signed a release of potential claims for $500
and then returned to work. Id. After working for several days, the plaintiff experienced pain
and left the vessel. Id. A different doctor diagnosed him with a two level disc herniation. Id.
The court found that the original misdiagnosis made it impossible for the plaintiff to
understand what he was signing away and noted that the $500 the plaintiff received was “an
egregious undervaluation” of his claims. Id. at 251. Additionally, the plaintiff’s limited
education made it difficult for him to understand the rights he was signing away, specifically,
his right to maintenance and cure. Id. at 254. Again, if the release was invalid in Cardinal
Services, the “release” here also surely invalidor at the least there are fact issues about its
validity
Finally, in Durley v. Offshore Drilling Co., CIV.A. 06 5681, 2009 WL 799977 (E.D.
La. Mar. 24, 2009), a Jones Act seaman suffered severe knee and spine injuries while employed
as a floorhand on an inland drilling barge. Id. at *1. About ten days after the accident, the
seaman signed a $3000 releasean amount that represented roughly the pay the seaman would
have received for the days of work he missed up to that point. Id. The following facts were
significant to the court’s findings that the release was invalid:
at no time in the creation or signing of the release was the
seaman represented by counsel;
the adjuster knew that the seaman was in financial trouble and
was in need of money;
the seaman was worried about his job and was told prior to
signing that there would not be a job waiting for him unless
he signed and returned to work;
at the time of the execution of the release, the seaman had no
idea what he was signing and only knew that he was receiving
money.
Id.at *2.
Additionally, the court found that the settlement amountwas not adequate
compensation considering the severity of the seaman’s injuries. Id. at *4. Thus, in the absence
of legal advice, and in light of the other factors, the court deemed the release invalid. Id
The release at issue herethe Horizon releaseshould not bar any of Mr. Pleasant’s
claims. The languagewhich must be carefully scrutinized does not bar claims from the
Asgard incident or claims that aggravate Horizon injuries. Further still, under established
caselaw, the release may not be valid at all.
Importantly, there is no evidence to support Transocean’s arguments that the release
applies to future incidents like this one. To argue that Chris Pleasant released his claims for an
incident that would happen years into the future is a frivolous argument (to put it nicely).
Accordingly, Transocean’s motion should be denied.
Mr. Pleasant’s Asgard injuries are separate from his Deepwater Horizoninjuries.
But even if the release is valid, the release is only for the Deepwater Horizon, not for
the Asgard incident that would happen years in the future. This is especially true given Mr.
Pleasant’s injuries he sustained in the Asgard incident.
In its motion, Transocean argues that Chris cannot recover for his emotional injuries if
they “arise out of, relate to, or result from the Deepwater Horizon[.]” Def.’s Mot., at 6. This
argument stems from a single quote in Chris’s deposition where he mentioned that his
experience aboard the Asgard has given him nightmares and flashbacks about the Deepwater
Horizonincident. Transocean essentially wants to use Chris’s Deepwater Horizon experience
to negate its liability for Chris’s injuries from the Asgard But the evidence on record shows
that Chris was able to work through any issues from the Deepwater Horizon incident nd that
the injuries he is currently suffering from (even the flashbacks to Deepwater Horizon) stem
from the Asgard experience. In short, Transocean cannot dodge liability for Chris’s Asgard
injuries simply because his experience there dredges up bad memories of Deepwater Horizon
During her deposition, Transocean’s lawyers asked Chris’s wife several questions
about Chris’s Deepwater experience. Mrs. Pleasant explained that after the Horizon incident,
Chris suffered from nightmares. See Ex. 2: Sharon Pleasant Dep., at 43:23 But she also
explained that even though Chris likely suffered injuries from Horizon, he did not seek
treatment
Q. Sure. And in your opinion, what why didn’t he get that
treatment?
A. He kept going. He kept working. They needed him to be out
to make sure that, you know, he was a part of the he was a
supervisor, so he had to be there to make sure things were to
watch over what was going on.
I can’t remember everything at that time, but I know that
he had to be a part of the team as they watched the still the fire,
and things were being brought you know, I think he had to make
sure if it was his equipment and all this stuff. So he had to keep
going eve, you know, regardless.
Ex. 2: Sharon Pleasant Dep., at 42:7
She noted that after Deepwater Horizon, Chris was not suffering from any back, neck,
or shoulder pain.
Q. Okay. Did you know him to complain about any back pain
between 2010 and 2020?
A. No.
Q. What about any neck pain?
A. No.
Q. What about any left shoulder pain?
A. No.
Ex. 2: Sharon Pleasant Dep., at 54:11
Mrs. Pleasant did observe, however, that Chris had several injuries after the Asgard
Q. Did you notice any physical injuries or any difference in Chris
when he got back on shore after Hurricane Zeta?
A. Yeah, I observed some things that were different.
Q. What did you observe?
A. Not sleeping at night, pain, complaining of pain.
Q. Anything more specific on the pain?
Sorry to interrupt.
A. Well, he did start having the back pain and some -- you know,
he would say he had he thought a crook or something in his neck
but, you know, some neck pain. Just irritable.
Q. And did you notice these changes in Chris immediately after
getting back or did it take some time to develop that?
A. He was still there during so, yeah, the first couple of nights I
did.
Ex. 2: Sharon Pleasant Dep., at 64:8 65:1
Further, Mrs. Pleasant testified that Chris’s mental and physical state has changed
significantly since the Asgard. She discussed how Chris had been able to work through and
overcome any mental or emotional anguish after Deepwater Horizon. All of that changed after
the Asgard
Q. Yeah. Now, obviously we’ve had an opportunity to discuss
with Chris all of his treatment, at least up to that point with his
mental health professionals and his doctors.
He talked a lot about, and in the records it discussed, how
Hurricane -- his experience with Hurricane Zeta has really
triggered a lot of Deepwater Horizon stuff, the nightmares and his
experience on the Deepwater Horizon.
Is that consistent with what you’ve been seeing in Chris?
A. What I observed with Chris, that he worked through with the
Deepwater Horizon because we were able to go -- to continue his
life, you know. It took a little bit, but we were able to continue
life and to move past it to where it wasn’t anything about him --
I’ve seen him sleep and, you know, get the rest and not just -- you
know, the loss of family members wasn’t on his mind, wasn’t a
topic of the conversation.
But with the Asgard, it’s different. I feel like he’s more
broken with this than he was with Deepwater Horizon. And just
because of the way he’s not able, you know, to I feel like pride
with the Deepwater Horizon, he was like, I’m going to fight
through this.
But with the Asgard, I don’t see him -- he’s stuck and
wasn’t able to move. And with the fear you know, like he kept
talking about the waters and talking about, you know, how the
boat was -- how the rig was moving, that I’m sure it did re he
was triggered from it, but I fell like the nightmares were worse
than even with the Deepwater Horizon.
Ex. 2: Sharon Pleasant Dep., at 73:23 75:6
Chris was even more socially active before the Asgard. But that too changed after Chris
had to suffer through the hurricane.
Q. Was he more socially active before Hurricane Zeta?
A. Yea. We did we traveled. So he was -- before Zeta, he was
back to normal doing everything as far as out and about. People’s
person.
So, yeah, he’s more anxious now. He has to -- you know,
sometimes you tell him you tell him something, he’s kind of
forgetful. Even before -- even after the stroke he wasn’t
cognitively he never lost anything. But now I feel like that he’s
so -- he’s uncertain because in his mind, he was going to retire
from Transocean, and now it’s like he doesn’t have anything to
Ex. 2: Sharon Pleasant Dep., at 70:13 71:2
The situation aboard the Asgard was traumatizing for Chris. Not only was he physically
injured, but he also suffered mental injuries that reminded him of the Horizonincident.
Q. And why did you include that statement, sir? Did somebody
tell you to?
A. My statement? Yes. I was actually pretty much forced to give
a statement because I didn’t want to.
Q. Why didn’t you want to, sir?
A. Like I told them, I wasn’t in my right mind to give a statement
because I had been triggered -- this was just like the Deepwater
Horizon. This was a death situation. I was out there. I was in the
moon pool. I know what was going on. I know what was going to
happen if if that end barrel wouldn’t have locked in. We was
we was going to hit the BOPs, LMRPs. Riser was going hit up
against the other one like it was doing, and we was going to sink.
I actually told a guy, we going to die, we going to die here. But
glory to God we didn’t, and I thank God every day for that.
Ex. 3: Chris Pleasant Vol. I. Dep., at 69:7
After the Asgard incident, Chris was able to seek medical treatment for his mental and
emotional injuries. The visit notes from a two hour session from May 11, 2021, reveal that
Chris “went into more detail about his involvement on the Deep ater Horizon and talked
about how well he had been able to put those memories out of his mind over the past several
years . . . [but] they are all very activated since this recent incident.” Ex. 4: Pleasant Records,
at 6
In sum, there are fact issues as to whether Chris’s Asgard injuries relate to or arise from
his experience on the Deepwater Horizon. The factstaken in Chris’s favor show that not a
single injury he claims, physical or mental, is the result of his Horizon experience. Thus, not a
single one of Chris’s Asgardinjury claims should be dismissed. Moreover, any claims that go
to damagesi.e., whether and how extensively Chris was injuredshould be decided by the
jury, not dismissed on summary judgment.
Of note, Transocean does not cite a single maritime case that justifies the relief it seeks.
In its motion, Transocean leans heavily on Stafford v. Allstate Life Ins. Co., 175 S.W.3d 537
(Tex. App.Texarkana 2005, no pet.). Putting aside the fact that Stafford cannot apply to this
Jones Act case because it is not Jones Act or General Maritime law, Stafford is not instructive
and should be ignored for other factual reasons. There, a mother of a minor son injured in a
car accident brought a class action on her son’s behalf against an insurer and some affiliated
companies. The mother alleged that during settlement negotiations for the car accident the
companies conspired to force her to accept an annuity from the insurer’s affiliate. The mother
argued that the settlement agreement did not apply to bar her conspiracy, unjust enrichment,
conversion, and statutory claims. The court disagreed with her argument where the release
language covered all claims (tort, contract, etc.) arising out of the car accident.
But that is hardly the situation here. In this case, Transocean argues that Chris’s release
from Deepwater Horizon absolves Transocean of any liability for any injuries from the Asgard
that are in any way related, similar, or compounding. But again, Transocean does not cite a
single case that supports that proposition. Indeed, Transocean cannot contract away future
liability for a separate incident based on the release from Deepwater Horizon. It would be as
if a plaintiff who was burned or otherwise physically hurt at work, settled with the company,
signed a release, and continued working for the company. But then later, in a separate,
unrelated incident, the plaintiff was hurt again in a similar way. The company cannot claim
as Transocean does herethat the “new” injuries are “old” injuries related t o the first incident.
Said differently, Chris’s injuries from the Asgard are separate and apart from his injuries from
Deepwater Horizonthey do not arise out of a single incident like the contract claims in
Stafford
ONCLUSION
The Court should deny Transocean’smotion for partial summary judgment
Respectfully submitted,
ARNOLD & ITKIN LLP
/s/ Kurt Arnold
_______________________________
Kurt Arnold
SBN: 24036150
karnold@arnolditkin.com
Caj Boatright
SBN: 24036237
cboatright@arnolditkin.com
Roland Christensen
SBN: 24101222
rchristensen@arnolditkin.com
6009 Memorial Drive
Houston, Texas 77007
Tel: 713.222.3800
Fax: 713.222.3850
service@arnolditkin.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing has been forwarded to the following counsel
of record on this the day of October
s/ Roland Christensen
Roland Christensen
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MASTER FILE NO. 2022-36264 § IN THE DISTRICT COURT OF IN RE HURRICANE ZETA LITIGATION § § HARRIS COUNTY, TEXAS MDL NO. 22-0300 § 113th JUDICIAL DISTRICT ************************************************************************** MDL PRETRIAL CAUSE NO. 2020-79221 CHRISTOPHER PLEASANT, § IN THE DISTRICT COURT OF Plaintiff v. § HARRIS COUNTY, TEXAS § TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC., et al., § Defendants § 334th JUDICIAL DISTRICT PLAINTIFF S RESPONSE TO TRANSOCEAN’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING PLAINTIFF CHRISTOPHER PLEASANT’S DEEPWATER HORIZON RELEASE The Court should deny Transocean’s motion for partial summary judgment regarding Plaintiff Chris Pleasant’s Deepwater Horizon release for the following reasons: Chris Pleasant, a Jones Act seaman, sued Transocean under the Jones Act and general maritime law for injuries he suffered during Hurricane Zeta while working aboard Transocean’s Deepwater Asgard Mr. Pleasant’s experience on the Asgard is particularly of note because this is the second time a Transocean drillship he worked on has been the site of a tragic and traumatic incident. Previous to the events on the Asgard Mr. Pleasant worked on the Deepwater Horizon when the well blew out and the rig exploded. During that event, the Deepwater Horizon became a floating fireball engulfed in flames from the explosion. Numerous crewmembers were killed, and the rest, including Mr. Pleasant, had to evacuate. Following the Deepwater Horizon incident, Mr. Pleasant kept working for Transocean and even stayed at the site to help in the aftermath of the explosion In fact, Transocean chose Mr. Pleasant to testify on Transocean’s behalf in front of Congress and in litigation arising out of the Deepwater Horizonincident. Rather than sue Transocean for the mental anguish and emotional injuries he sustained as a result of Deepwater Horizon Mr. Pleasant decided to keep working at Transocean. He signed a release that was meant to settle any claims against Transocean for the Horizon incident. Now, Transocean is trying to use that release against Mr. Pleasantto extinguish his claims from the Asgard incident. Because urricane Zeta and Transocean’s failures to properly evacuate the crew, Mr. Pleasant suffered various physical and mental injuries. Understandably, the Asgard incident dredged up memories of Deepwater Horizon. But his Asgard injuries are not a continuation of his Horizon experience, rather, they constitute new injuries specifically tied to the Asgard. Transocean does not want the Court to see it that way. Instead, Transocean wants the Court to grant summary judgment on any claims from the Asgard that relate in any way to Chris’s experience on the Deepwater Horizon Transocean’s request is improper for two reasons. First, seamen’s releases are subject to careful court scrutiny. Seamen like Mr. Pleasant are afforded broad protections. There are fact issues not only as to whether the Deepwater Horizon release applies here but also as to whether the release is valid in the first place. Second, the evidence shows that all of Mr. Pleasant’s Asgard injuries are separate from his Deepwater Horizonexperience. Mr. Pleasant ’s wife testified unequivocally that Chris had recovered from Deepwater Horizon. She explained that the symptoms Chris has experienced since the Asgardincluding the nightmares about Deepwater Horizonstarted after the hurricane event. In short, the fact that the Asgard incident caused Chris to flash back to the Deepwater Horizon explosion is of no moment. And it certainly is not justification for summary judgment on any of Chris’s claims arising from the Asgard ELEVANT ACTS In October 2020, Plaintiff Chris Pleasant, a Jones Act seam as employed by Transocean, and assigned to the Deepwater Asgardan ultra deep water drillship. At the time, Transocean and Triton had a contract with Beacon to perform offshore drilling in the Gulf of Mexico. Early in October, the Deepwater Asgard avoided Hurricane Delta by taking the proper steps to secure the well and sail away. But after reconnecting from Hurricane Delta, the Deepwater Asgardencountered mechanical difficulties and had substantial downtime. Just as Hurricane Zeta was forming, the Deepwater Asgard was beginning to get ready to drill again. But rather than shut down the operations, as Transocean’s policies require, Transocean and Beacon decided that the Deepwater Asgard should continue to prepare to drill rather than evacuate the storm. Because Transocean and Beacon put profits over safety, the crew of the Deepwater Asgard was stuck in the eyewall of Hurricane Zeta. Mr. Pleasant and the other crewmembers were injured while the Asgardrode out t he storm. RGUMENT The Deepwater Horizon release does not apply to Mr. Pleasant’s claims from the Asgardincident “Historically, seam n have enjoyed a special status in our judicial system.” Castillo v. Spiliada Mar. Corp., 937 F.2d 240, 243 (5th Cir. 1991). Indeed, by virtue of the “great inequality in bargaining position between large shipowners and unsophisticated seam n,” Jones Act seam n “occupy a unique position” and are thus entitled to exclusive protections when determining the validity of a seaman’s release. Id. Almost two centuries ago, Justice Story explained: [Seamen] are emphatically the wards of admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner, as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and cestuis que trust with their trustees. . . . If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side, which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that protanto the bargain ought to be set aside as inequitable. Garrett v. Moore McCormack Co., 317 U.S. 239, 246 (1942) (quoting Harden v. Gordon, 11 F. Cas. 480, 485 (C.C.D. Me. 1823)). Thus, seaman’s releases are “subject to careful scrutiny.” Id. at 248. When challenged, the “burden of proof in establishing the validity of a seaman’s release is on the shipowner.” Castillo, 937 F.2d at 244. Accordingly, the “shipowner must show that the seaman’s release ‘was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights.’” Id.A shipowner’s burden is particularly heavy on summary judgment because the “shipowner must conclusively demonstrate the absence of a genuine issue of material fact.” Id. Courts in the Fifth Circuit have identified several factors that are relevant to an analysis of the validity of a seaman’s release. These factors include “the nature of the legal advice available to the seaman at the time of signing the release, the adequacy of the consideration, whether the parties negotiated at arm’s length and in good faith, and whether there was the appearance of fraud or coercion.” Transocean Offshore USA Inc. v. Catrette, 256 Fed. Appx. 672, 673 (5th Cir. 2007). In this case, Mr. Pleasant signed a release after the Deepwater Horizon explosion that included the following language: APPEARER . . . hereby releases, acquits and forever discharges all parties having anything to do with these claims, it being fully understood and agreed that APPEARER retains no claims against anyone as a result of the Horizon Incident Ex. 1: Release, at 1(emphasis added). There is no evidence that Mr. Pleasant received independent legal counsel before signing the agreement. And Mrs. Pleasant testified that Chris did not seek any treatment for his injuries after the Horizonincident. Q. How would you describe, from your perspective, Chris’s mental state in the months and the few years after Deepwater Horizon? A. Deepwater Horizon, Chris, he was functioning, but definitely there was some fear, but the type of person he is, he’s able to work through it. He never got counseling that he should have got or any kind of other assistance that he I feel like he should have gotHe just kept moving Ex. 2: Sharon Pleasant Dep., at 41:3 (emphasis added). Courts faced with similar facts have declined to enforce seamen releases. For example, in Transocean Offshore USA Inc. v. Catrette, 256 Fed. Appx. 672 (5th Cir. 2007), the plaintiff suffered work related injuries while employed by Transocean as a Jones Act seaman. Id. at 672. The plaintiff received some medical treatment but the doctor did not share with the plaintiff the results of the tests he performed or his recommendations for treatment. Id. at 673. Without the benefit of that knowledge, a year later the plaintiff signed a release of all of his rights against Transocean in exchange for $4000. Id. The district court found that the release was invalid because: the plaintiff was not fully informed of his condition or future prognosis; and the plaintiff was not fully advised of his legal rights at the time he executed the release. Id. Importantly, the findings of the court included facts that showed that the plaintiff did not have legal counsel when he executed the release, Transocean’s attorney simply read the contract to the plaintiff without explaining it, only a small portion of the release was explained in laymen’s terms to the plaintiff, and there was no explanation of maintenance and cure, indemnity, or other rights. Id. If the release was invalid in Catrette, the “releases” here are also surely invalid, especially when Mr. Pleasant’s injuries come from a separate incident Likewise, in In re Cardinal Services, Inc., 304 Fed. Appx. 247 (5th Cir. 2008), two vessels collided several miles south of Intracoastal City, Louisiana. The plaintiff was working in the galley of one of the vessels when the collision occurred. Id.at 250. He suffered injuries to his leg. Id. He was examined the next day and the doctor determined that the injuries were not serious. Id. Shortly thereafter, the plaintiff signed a release of potential claims for $500 and then returned to work. Id. After working for several days, the plaintiff experienced pain and left the vessel. Id. A different doctor diagnosed him with a two level disc herniation. Id. The court found that the original misdiagnosis made it impossible for the plaintiff to understand what he was signing away and noted that the $500 the plaintiff received was “an egregious undervaluation” of his claims. Id. at 251. Additionally, the plaintiff’s limited education made it difficult for him to understand the rights he was signing away, specifically, his right to maintenance and cure. Id. at 254. Again, if the release was invalid in Cardinal Services, the “release” here also surely invalidor at the least there are fact issues about its validity Finally, in Durley v. Offshore Drilling Co., CIV.A. 06 5681, 2009 WL 799977 (E.D. La. Mar. 24, 2009), a Jones Act seaman suffered severe knee and spine injuries while employed as a floorhand on an inland drilling barge. Id. at *1. About ten days after the accident, the seaman signed a $3000 releasean amount that represented roughly the pay the seaman would have received for the days of work he missed up to that point. Id. The following facts were significant to the court’s findings that the release was invalid: at no time in the creation or signing of the release was the seaman represented by counsel; the adjuster knew that the seaman was in financial trouble and was in need of money; the seaman was worried about his job and was told prior to signing that there would not be a job waiting for him unless he signed and returned to work; at the time of the execution of the release, the seaman had no idea what he was signing and only knew that he was receiving money. Id.at *2. Additionally, the court found that the settlement amountwas not adequate compensation considering the severity of the seaman’s injuries. Id. at *4. Thus, in the absence of legal advice, and in light of the other factors, the court deemed the release invalid. Id The release at issue herethe Horizon releaseshould not bar any of Mr. Pleasant’s claims. The languagewhich must be carefully scrutinized does not bar claims from the Asgard incident or claims that aggravate Horizon injuries. Further still, under established caselaw, the release may not be valid at all. Importantly, there is no evidence to support Transocean’s arguments that the release applies to future incidents like this one. To argue that Chris Pleasant released his claims for an incident that would happen years into the future is a frivolous argument (to put it nicely). Accordingly, Transocean’s motion should be denied. Mr. Pleasant’s Asgard injuries are separate from his Deepwater Horizoninjuries. But even if the release is valid, the release is only for the Deepwater Horizon, not for the Asgard incident that would happen years in the future. This is especially true given Mr. Pleasant’s injuries he sustained in the Asgard incident. In its motion, Transocean argues that Chris cannot recover for his emotional injuries if they “arise out of, relate to, or result from the Deepwater Horizon[.]” Def.’s Mot., at 6. This argument stems from a single quote in Chris’s deposition where he mentioned that his experience aboard the Asgard has given him nightmares and flashbacks about the Deepwater Horizonincident. Transocean essentially wants to use Chris’s Deepwater Horizon experience to negate its liability for Chris’s injuries from the Asgard But the evidence on record shows that Chris was able to work through any issues from the Deepwater Horizon incident nd that the injuries he is currently suffering from (even the flashbacks to Deepwater Horizon) stem from the Asgard experience. In short, Transocean cannot dodge liability for Chris’s Asgard injuries simply because his experience there dredges up bad memories of Deepwater Horizon During her deposition, Transocean’s lawyers asked Chris’s wife several questions about Chris’s Deepwater experience. Mrs. Pleasant explained that after the Horizon incident, Chris suffered from nightmares. See Ex. 2: Sharon Pleasant Dep., at 43:23 But she also explained that even though Chris likely suffered injuries from Horizon, he did not seek treatment Q. Sure. And in your opinion, what why didn’t he get that treatment? A. He kept going. He kept working. They needed him to be out to make sure that, you know, he was a part of the he was a supervisor, so he had to be there to make sure things were to watch over what was going on. I can’t remember everything at that time, but I know that he had to be a part of the team as they watched the still the fire, and things were being brought you know, I think he had to make sure if it was his equipment and all this stuff. So he had to keep going eve, you know, regardless. Ex. 2: Sharon Pleasant Dep., at 42:7 She noted that after Deepwater Horizon, Chris was not suffering from any back, neck, or shoulder pain. Q. Okay. Did you know him to complain about any back pain between 2010 and 2020? A. No. Q. What about any neck pain? A. No. Q. What about any left shoulder pain? A. No. Ex. 2: Sharon Pleasant Dep., at 54:11 Mrs. Pleasant did observe, however, that Chris had several injuries after the Asgard Q. Did you notice any physical injuries or any difference in Chris when he got back on shore after Hurricane Zeta? A. Yeah, I observed some things that were different. Q. What did you observe? A. Not sleeping at night, pain, complaining of pain. Q. Anything more specific on the pain? Sorry to interrupt. A. Well, he did start having the back pain and some -- you know, he would say he had he thought a crook or something in his neck but, you know, some neck pain. Just irritable. Q. And did you notice these changes in Chris immediately after getting back or did it take some time to develop that? A. He was still there during so, yeah, the first couple of nights I did. Ex. 2: Sharon Pleasant Dep., at 64:8 65:1 Further, Mrs. Pleasant testified that Chris’s mental and physical state has changed significantly since the Asgard. She discussed how Chris had been able to work through and overcome any mental or emotional anguish after Deepwater Horizon. All of that changed after the Asgard Q. Yeah. Now, obviously we’ve had an opportunity to discuss with Chris all of his treatment, at least up to that point with his mental health professionals and his doctors. He talked a lot about, and in the records it discussed, how Hurricane -- his experience with Hurricane Zeta has really triggered a lot of Deepwater Horizon stuff, the nightmares and his experience on the Deepwater Horizon. Is that consistent with what you’ve been seeing in Chris? A. What I observed with Chris, that he worked through with the Deepwater Horizon because we were able to go -- to continue his life, you know. It took a little bit, but we were able to continue life and to move past it to where it wasn’t anything about him -- I’ve seen him sleep and, you know, get the rest and not just -- you know, the loss of family members wasn’t on his mind, wasn’t a topic of the conversation. But with the Asgard, it’s different. I feel like he’s more broken with this than he was with Deepwater Horizon. And just because of the way he’s not able, you know, to I feel like pride with the Deepwater Horizon, he was like, I’m going to fight through this. But with the Asgard, I don’t see him -- he’s stuck and wasn’t able to move. And with the fear you know, like he kept talking about the waters and talking about, you know, how the boat was -- how the rig was moving, that I’m sure it did re he was triggered from it, but I fell like the nightmares were worse than even with the Deepwater Horizon. Ex. 2: Sharon Pleasant Dep., at 73:23 75:6 Chris was even more socially active before the Asgard. But that too changed after Chris had to suffer through the hurricane. Q. Was he more socially active before Hurricane Zeta? A. Yea. We did we traveled. So he was -- before Zeta, he was back to normal doing everything as far as out and about. People’s person. So, yeah, he’s more anxious now. He has to -- you know, sometimes you tell him you tell him something, he’s kind of forgetful. Even before -- even after the stroke he wasn’t cognitively he never lost anything. But now I feel like that he’s so -- he’s uncertain because in his mind, he was going to retire from Transocean, and now it’s like he doesn’t have anything to Ex. 2: Sharon Pleasant Dep., at 70:13 71:2 The situation aboard the Asgard was traumatizing for Chris. Not only was he physically injured, but he also suffered mental injuries that reminded him of the Horizonincident. Q. And why did you include that statement, sir? Did somebody tell you to? A. My statement? Yes. I was actually pretty much forced to give a statement because I didn’t want to. Q. Why didn’t you want to, sir? A. Like I told them, I wasn’t in my right mind to give a statement because I had been triggered -- this was just like the Deepwater Horizon. This was a death situation. I was out there. I was in the moon pool. I know what was going on. I know what was going to happen if if that end barrel wouldn’t have locked in. We was we was going to hit the BOPs, LMRPs. Riser was going hit up against the other one like it was doing, and we was going to sink. I actually told a guy, we going to die, we going to die here. But glory to God we didn’t, and I thank God every day for that. Ex. 3: Chris Pleasant Vol. I. Dep., at 69:7 After the Asgard incident, Chris was able to seek medical treatment for his mental and emotional injuries. The visit notes from a two hour session from May 11, 2021, reveal that Chris “went into more detail about his involvement on the Deep ater Horizon and talked about how well he had been able to put those memories out of his mind over the past several years . . . [but] they are all very activated since this recent incident.” Ex. 4: Pleasant Records, at 6 In sum, there are fact issues as to whether Chris’s Asgard injuries relate to or arise from his experience on the Deepwater Horizon. The factstaken in Chris’s favor show that not a single injury he claims, physical or mental, is the result of his Horizon experience. Thus, not a single one of Chris’s Asgardinjury claims should be dismissed. Moreover, any claims that go to damagesi.e., whether and how extensively Chris was injuredshould be decided by the jury, not dismissed on summary judgment. Of note, Transocean does not cite a single maritime case that justifies the relief it seeks. In its motion, Transocean leans heavily on Stafford v. Allstate Life Ins. Co., 175 S.W.3d 537 (Tex. App.Texarkana 2005, no pet.). Putting aside the fact that Stafford cannot apply to this Jones Act case because it is not Jones Act or General Maritime law, Stafford is not instructive and should be ignored for other factual reasons. There, a mother of a minor son injured in a car accident brought a class action on her son’s behalf against an insurer and some affiliated companies. The mother alleged that during settlement negotiations for the car accident the companies conspired to force her to accept an annuity from the insurer’s affiliate. The mother argued that the settlement agreement did not apply to bar her conspiracy, unjust enrichment, conversion, and statutory claims. The court disagreed with her argument where the release language covered all claims (tort, contract, etc.) arising out of the car accident. But that is hardly the situation here. In this case, Transocean argues that Chris’s release from Deepwater Horizon absolves Transocean of any liability for any injuries from the Asgard that are in any way related, similar, or compounding. But again, Transocean does not cite a single case that supports that proposition. Indeed, Transocean cannot contract away future liability for a separate incident based on the release from Deepwater Horizon. It would be as if a plaintiff who was burned or otherwise physically hurt at work, settled with the company, signed a release, and continued working for the company. But then later, in a separate, unrelated incident, the plaintiff was hurt again in a similar way. The company cannot claim as Transocean does herethat the “new” injuries are “old” injuries related t o the first incident. Said differently, Chris’s injuries from the Asgard are separate and apart from his injuries from Deepwater Horizonthey do not arise out of a single incident like the contract claims in Stafford ONCLUSION The Court should deny Transocean’smotion for partial summary judgment Respectfully submitted, ARNOLD & ITKIN LLP /s/ Kurt Arnold _______________________________ Kurt Arnold SBN: 24036150 karnold@arnolditkin.com Caj Boatright SBN: 24036237 cboatright@arnolditkin.com Roland Christensen SBN: 24101222 rchristensen@arnolditkin.com 6009 Memorial Drive Houston, Texas 77007 Tel: 713.222.3800 Fax: 713.222.3850 service@arnolditkin.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE A true and correct copy of the foregoing has been forwarded to the following counsel of record on this the day of October s/ Roland Christensen Roland Christensen