United States District Court, S.D. Mississippi, Southern Division
CYNTHIA R. HEBERT, Individually;, and as the Personal Representative and Mother of Christopher Allen Hebert, Deceased; and on Behalf of His Rightful Beneficiaries at Law Plaintiff,
OMEGA PROTEIN, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER DENYING IN PART AND FINDING MOOT IN PART PLAINTIFF'S  MOTION TO STRIKE; GRANTING DEFENDANT'S  MOTION FOR SUMMARY JUDGMENT; FINDING MOOT DEFENDANT'S  MOTION TO EXCLUDE OR LIMIT FORENSIC DOCUMENT EXAMINATION REPORT AND TESTIMONY; FINDING MOOT DEFENDANT'S  MOTION TO STRIKE; FINDING MOOT PLAINTIFF'S  MOTION FOR LEAVE TO FILE SUPPLEMENTAL EVIDENCE; AND DISMISSING PLAINTIFF'S CLAIMS WITH PREJUDICE
HALL SULEYMAN OZERDEN, District Judge.
THIS MATTER COMES BEFORE THE COURT on the following Motions: (1) a Motion for Summary Judgment  filed by Defendant Omega Protein, Inc.; (2) a Motion to Exclude or Limit Forensic Document Examination Report and Testimony  filed by Defendant Omega Protein, Inc.; (3) a Motion to Strike  filed by Plaintiff Cynthia R. Hebert; (4) a Motion to Strike  filed by Defendant Omega Protein, Inc.; and (5) a Motion for Leave to File Supplemental Evidence  filed by Plaintiff Cynthia R. Hebert. These Motions are now fully briefed. After due consideration of the record, the submissions on file, and relevant legal authorities, the Court finds that Plaintiff's Motion to Strike  should be granted in part and is moot in part, and that Defendant's Motion for Summary Judgment  should be granted. Plaintiff's claims against Defendant should be dismissed with prejudice. The remaining Motions , ,  are rendered moot.
A. Factual Background
Plaintiff Cynthia R. Hebert ["Cynthia" or "Plaintiff"] is the mother and personal representative of Christopher Allen Hebert ["Christopher" or "Decedent"]. Compl.  at 1. Before his death, Christopher was employed at Defendant Omega Protein, Inc.'s ["Defendant" or "Omega Protein"] fish processing facility in Moss Point, Mississippi [the "Plant"]. Id. at 3. In late April 2011, Christopher contacted Sherry Craddock ["Craddock"], a union organizer for the International Association of Machinists and Aerospace Workers [the "Union"], and expressed an interest in the Union representing employees at the Plant. Dep. of Sherry L. Craddock [100-1] at 14-19, 28-33. Between April 20, 2011, and June 13, 2011, Christopher and Craddock discussed organizing a union at the Plant. Their last communication of any sort occurred on June 13, 2011. Id. at 32-46, 122-23, 147-48. Christopher allegedly told Craddock in May and June 2011 that he was being placed in more dangerous jobs and being harassed by his supervisor, Wayne Gray ["Gray"], because Christopher had spoken with other employees at the Plant about the Union and had expressed concerns about safety at the Plant. Id. at 58-61, 66-67, 73-75, 81-83, 96-97, 100-01, 108-09, 121-22.
In early May 2011, Christopher informed Craddock that he was being harassed at work because of "being vocal regarding his concerns that the working conditions were unsafe." Aff. of Sherry L. Craddock [100-2] at 2; see also Dep. of Sherry L. Craddock [100-1] at 73-75. Christopher told her that "this harassment included him being pushed into machinery, having his tires flattened on his vehicle, and having obscene messages written on the windows of his vehicle." Aff. of Sherry L. Craddock [100-2] at 2. Craddock reported that, in June 2011, Christopher showed her a body-length bruise that was at least six inches wide down the left side of his body. Id. at 3. Christopher told her that an Omega Protein employee had pushed him into a pole the night before "in retaliation for his desire to unionize Omega Protein." Id. Craddock testified in her Affidavit that in June 2011 Christopher "was scared Omega Protein was going to seriously hurt him, or kill him." Id. at 3-4. Craddock's Affidavit does not identify by name any Omega Protein employee who allegedly harassed or injured Christopher.
Christopher told his father, William Hebert ["William"], that Gray would place Christopher in less desirable jobs as a form of punishment for Christopher's activities at the Plant. Dep. of William Hebert [100-5] at 48-50. Cynthia, Christopher's mother, testified that Christopher informed her that Gray "was just very ugly to him" and would make Christopher "work in places he didn't want to work" in dangerous areas because Christopher was trying to unionize the Plant. Dep. of Cynthia R. Hebert [100-6] at 60-62. Towards the end of his employment at the Plant, Christopher purportedly complained to Gray that drug use was occurring in the Plant and was not being monitored by supervisory personnel. This led to a verbal altercation between Christopher and Gray. Dep. of William Hebert [100-5] at 50-52. Although William testified that Christopher was "scared" after the altercation, id., the record is devoid of any specific information about what was said during this verbal exchange.
Gray was the night supervisor who made job assignments to all maintenance department employees, including Christopher. Def.'s Answers to Interrogatories [100-6] at 3. During the night shift on April 7, 2012, approximately ten months after Christopher's last communication with Craddock about unionizing the Plant, Gray assigned Christopher to perform a task near a mixing box hopper or chute [the "Hopper"] with the assistance of employee Charles Glenn Anthony ["Anthony"]. Aff. of Charles Glenn Anthony [110-4] at 2; Dep. of Wayne Gray [100-8] at 50. While there is some dispute as to the precise task Gray assigned to Christopher and whether Christopher was actually required to work inside of the Hopper to accomplish his task, the parties do not appear to dispute that Christopher's job assignment involved working in the general vicinity of the Hopper. See, e.g., Aff. of Charles Glenn Anthony [110-4] at 2; Dep. of Wayne Gray [100-8] at 50-53, 146.
The Hopper was a metal box approximately ten feet above the ground. Aff. of Charles Glenn Anthony [110-4] at 2. Two different metal screws intersected at a ninety-degree angle inside the Hopper-the mixing screw and the dryer screw. Aff. of Charles Glenn Anthony [110-4] at 2; Dep. of Wayne Gray [100-8] at 50-53, 146; Aff. of LeDarrius Matthis [81-3] at 1-2. The mixing screw was situated on the exterior of the Plant and pushed material through a trough into the Hopper, which also sat on the exterior of the Plant. Matthis Witness Interview [100-9] at 1-2. The dryer screw pushed material from the Hopper through a trough into the drying room. Id. The dryer screw was located both on the exterior and the interior of the Plant, as it traversed an exterior wall of the Plant between the Hopper and the dryer room. Aff. of Alphonse Hill [81-4] at 1-2; Aff. of LeDarrius Matthis [81-3] at 1-2. Plaintiff maintains that in order to perform the task Gray had assigned Christopher, it was necessary for Christopher to stand inside the Hopper on top of the dryer screw. Pl.'s Mem. in Supp. of Resp.  at 6.
For safety reasons, when an employee was working on a piece of machinery at the Plant the employee was expected to lock out and tag out the particular piece of machinery on the appropriate electrical control. The purpose of the lock out and tag out procedure was to advise others working in the Plant not to energize the piece of machinery, and to prevent others from energizing the piece of machinery while another employee was working on it. Controls for both the mixing screw and the dryer screw were located in the electrical control room of the Plant. According to Anthony, on April 7, 2012, Christopher locked and tagged the controls for both the mixing screw and the dryer screw, and Christopher's locks and tags were still on the controls for the mixing screw and the dryer screw when Christopher and Anthony departed work at the end of their April 7, 2012, night shift. Aff. of Charles Glenn Anthony [110-4] at 1-2.
Christopher and Anthony did not complete their assigned task on April 7, 2012, and neither worked on Sunday, April 8, 2012. Id. at 2. When Christopher and Anthony returned to work on April 9, 2012, they resumed their assigned task. Id. Anthony's Affidavit does not mention whether he checked or was aware if the lock and tag were still in place on either the dryer screw or mixing screw when he and Christopher returned to work two days later on April 9. See id.
Also on April 9, 2012, Gray assigned LeDarrius Matthis ["Matthis"] and Alphonse Hill ["Hill"] the task of installing hangers along the length of the dryer screw inside the dryer room in order to prevent the dryer screw from contacting the bottom of its trough during operation. Aff. of Alphonse Hill [81-4] at 1; Aff. of LeDarrius Matthis [81-3] at 1-3. Prior to beginning work, Matthis locked out and tagged out the main breaker for the dryer screw. Id. at 2. Matthis testified in his Affidavit that his was the only lock and tag on the dryer screw at that time. Id.
Plaintiff testified that several of Christopher's fellow employees at the Plant informed her that the "other machine wasn't locked out, tagged out" because Omega Protein was out of locks to be used for lock out and tag out. Dep. of Cynthia R. Hebert [100-6] at 92-93. Plaintiff avers that Christopher called her at 8:10 p.m. on April 9, 2012, and told her that:
I can't call you on my lunch tonight because I'm real busy, and he said, I've got to do some welding. He said, they don't have all the lockout/tagouts that I need, but he said, I've got to weld this particular area.
Id. at 93. When Plaintiff asked Christopher "why are you going to work like that, " id. at 94, Christopher replied, "it's my job. And [Christopher] was told that he had to work up in this area, " id. 
At approximately 8:30 p.m. on April 9, 2012, Anthony left Christopher to use the bathroom. Id. He was intercepted by Gray who instructed Anthony to proceed to another area of the Plant. Id. When Anthony asked about Christopher, Gray responded "[y]ou don't worry about that. I'll take care of him. You just go where I told you to go." Id. at 2-3.
Matthis and Hill subsequently completed their work on the dryer screw, and Matthis sought permission from Gray to power up the dryer screw to ensure that it was not scraping its trough. Id. While there is some dispute as to exactly where Gray was located in the Plant at the time this conversation occurred and whether Matthis asked permission of Gray or was simply instructed by Gray to power up the dryer screw, see, e.g., Resp.  at 4, these questions are not material. The record reflects that Gray either gave permission to or instructed Matthis to power up the dryer screw, after Matthis confirmed that "the dryer screw trough was clear and that it was safe to switch on the equipment." Aff. of LeDarrius Matthis [81-3] at 2-3. Matthis and Hill then "walked the length of the dryer screw inside the dryer room to confirm that no tools or debris had been left in the trough." Id. at 3. Neither Matthis nor Hill checked the Hopper or the portion of the dryer screw on the exterior of the Plant prior to energizing the dryer screw, and neither was aware that Christopher was at that point standing inside the Hopper on the dryer screw. Compl.  at 4; Aff. of Charles Glenn Anthony [100-4] at ¶¶ 6, 13. Matthis and Hill could not see through the wall to the exterior portion of the dryer screw or the Hopper. Aff. of LeDarrius Matthis [81-3] at 3. When Matthis powered up the dryer screw, he and Hill could hear someone yelling and crying for help. Id. Tragically, Christopher was caught in the dryer screw in the Hopper and died from his injuries.
Plaintiff has presented evidence through the Affidavit of Samuel Lynn Bosarge ["Bosarge"] that the Plant's tool room notebook reflected that Matthis had signed out bolt cutters from the Omega Protein tool room on the night of April 9, 2012. Aff. of Samuel Lynn Bosarge [115-3] at 1-2. Bosarge avers that "the most common reason to use bolt cutters was to cut off a lock on the electrical controls for the machinery at the Omega Protein Plant." Id. at 2. Bosarge claims that when he reviewed the tool room notebook again on April 15, 2012, the sign-out page for April 9, 2012, had been removed. Id.  Plaintiff speculates that such evidence demonstrates that Matthis and/or other Omega Protein employees may have taken "intentional steps to remove Christopher's lock, and to activate the single screw conveyor with Christopher trapped inside." Mot.  at 4.
Shortly after Christopher's death, Plaintiff placed a cross at the edge of the Plant parking lot. Dep. of Cynthia R. Hebert [100-6] at 87-88. An unknown person removed the cross twice. Id. at 88-89. Plaintiff has not submitted any evidence indicating who, if anyone, associated with Omega Protein removed the cross. Plaintiff has also testified that when she arrived home on April 17, 2013, over a year after Christopher's death and less than two weeks after this lawsuit was filed, she found flowers on the outside steps of her home. Id. at 138. A note was included with the flowers which read "flowers eventually die, like people do." Note [100-4] at 4. Plaintiff perceived the note as a threat. Dep. of Cynthia R. Hebert [100-6] at 143. Plaintiff has proffered the report of a "forensic document examiner, " Thomas W.Vastrick, who opines in his report that "[t]o a reasonable degree of scientific certainty, " Gray wrote the note included with the flowers. Report [100-14] at 1.
At the time of Christopher's death, Omega Protein carried workers' compensation insurance coverage under the provisions of the Mississippi Workers' Compensation Act, Mississippi Code §§ 71-3-1, et seq. ["MWCA"], through a policy with ACE American Insurance Company. Aff. of C. David Ott [81-8] at 1; Policy [81-8] at 4-27. With such coverage, an "employer's statutory responsibility to pay workers' compensation benefits become the responsibility of the [insurance] carrier." Washington v. Tem's Junior, Inc., 981 So.2d 1047, 1051 (Miss. Ct. App. 2008) (quoting Nat'l Sur. Corp. v. Kemp, 64 So.2d 723, 731 (Miss. 1953)); see also Miss. Code § 71-3-9.
B. Procedural History
Plaintiff filed her Complaint  on April 5, 2013, naming Omega Protein as a Defendant. The Complaint essentially advances what is known as an "upside-down compensation case." Plaintiff charges that her wrongful death claims against Omega Protein consist of intentional torts which are not compensable under the MWCA. See Compl.  at 6-7; ...