Middleton v. Dan River, Inc.

Citation834 F.2d 903
Decision Date21 December 1987
Docket NumberNos. 85-7592,85-7655,s. 85-7592
PartiesMarion F. MIDDLETON, Plaintiff-Appellee, v. DAN RIVER, INC., Defendant-Appellant. Donald R. McCOY as personal representative for deceased party Eunice McCoy, Plaintiff-Appellee, v. DAN RIVER, INC., Defendant-Appellant. Clifton SMITH, Plaintiff-Appellee, v. DAN RIVER, INC., Defendant-Appellant. Ruby C. HILLIARD as personal representative for deceased party Lonnie Hilliard, Plaintiff-Appellee, v. DAN RIVER, INC., Defendant-Appellant. Zack SCHOFIELD, Plaintiff-Appellee, v. DAN RIVER, INC., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Warren B. Lightfoot, Bradley, Arant, Rose & White, Scott M. Phelps, Birmingham, Ala., for Dan River, Inc.

Rick Harris, Moore, Kendrick, Glassroth, Harris, Bush & White, Stephen R. Glassroth, Montgomery, Ala., for Middleton, McCoy, Smith, Hilliard and Schofield.

Appeals from the United States District Court for the Middle District of Alabama.

Before RONEY, Chief Judge, CLARK, Circuit Judge, and DOYLE *, Senior District Judge.

PER CURIAM:

These consolidated diversity cases involve claims for workmen's compensation benefits for occupational pneumoconiosis under Alabama law. The district court awarded benefits to all five plaintiffs. Middleton v. Dan River, Inc., 617 F.Supp 1206 (M.D.Ala.1985). Defendant appeals, asserting error in finding that (1) the statute of limitations did not bar three of the claims, (2) the disabilities were compensable under the Alabama Workmen's Compensation Law, (3) res judicata did not bar one claim, and (4) a judgment nunc pro tunc was appropriate for a plaintiff who died while the action was pending. We affirm, except as to Eunice McCoy, whose claim should have been barred by the statute of limitations.

Dan River, Inc. purchased a textile mill in Greenville, Alabama, from Alabama Mills in 1956. From 1956 until October 26, 1981, Dan River operated the mill to produce corduroy fabric for clothing. In the summer of 1983, after Dan River closed the mill, the Brown Lung Association sent representatives to the Greenville area, as a result of which the plaintiffs brought these lawsuits pursuant to Ala.Code Sec. 25-5-1 through Sec. 25-5-231 (1975).

All plaintiffs are former employees of Dan River, who had worked in the Greenville mill for periods ranging from 15 to 51 years. Clifton Smith and Marion F. Middleton worked for Dan River until the closing of the Greenville mill. Lonnie Hilliard retired on March 22, 1980, Zack Schofield quit on September 12, 1980, and Eunice McCoy's last day of work was June 24, 1982.

Each plaintiff worked primarily in one phase of the manufacturing process throughout his or her tenure at the mill. Middleton and Schofield worked in the weaving room, Hilliard and McCoy worked in the spinning room, and Smith worked in the card room. Each plaintiff has a significant smoking history. Each plaintiff claims to have contracted a chronic disabling lung disease as a result of employment at Dan River's Greenville mill.

Whether or not plaintiffs' various lung diseases resulted from their work at Dan River was hotly disputed, primarily because plaintiffs' experts and defendant's experts disagreed over the type of disease exposure to cotton dust may cause. The doctor to whom Dan River referred three of the plaintiffs, Dr. Dick Briggs, expressed his belief that cotton dust exposure can give rise to an "acute" form of byssinosis, which is characterized almost exclusively by a phenomenon known as "Monday morning syndrome." A cotton mill worker suffering the Monday morning syndrome experiences chest tightness, difficulty inhaling, coughing, and wheezing most dramatically after he or she has returned to the mill after being away for a few days. During the first day back, the tightness and shortness of breath get progressively worse until they peak at the end of the day.

The plaintiffs' experts did not disagree with Dr. Briggs that this acute form of byssinosis exists; indeed, one of the plaintiffs' experts was the doctor who discovered the acute form of the disease. They simply maintained that there is also a "chronic" form of byssinosis which may follow a period of acute byssinosis or may arise independently of any "Monday morning" attacks. According to Drs. Richard Schilling and Neil Schachter, a worker suffering from this chronic form will experience shortness of breath on exertion, an inability to keep up with people his or her own age, and decreases in both total lung capacity and the speed with which air can be exhaled. Dr. Briggs, however, was at best skeptical that a chronic form of byssinosis exists, and in any event, he did not believe that such a chronic form would be disabling.

This same controversy was raging in the 1970s when the National Institute of Occupational Safety and Health (NIOSH) adopted regulations requiring that cotton mill workers be given periodic pulmonary function tests and be referred to independent physicians if their performance on the tests indicated respiratory impairment. See 29 C.F.R. Sec. 1910.1043(h)(3)(iii). In response to these regulations, Dan River instituted a "medical surveillance" program in 1979. All of the plaintiffs participated in this program, and because of the results of their pulmonary function tests, plaintiffs Middleton, Hilliard and Schofield were referred to Dr. Briggs. They went to see the doctor on December 5, 21, and 19, 1979 respectively. McCoy and Smith were not referred to Dr. Briggs.

After questioning Middleton, Hilliard and Schofield and administering both pulmonary function and exercise tests, Dr. Briggs concluded that each of the three suffered from "chronic airway obstruction, secondary to chronic bronchitis." He indicated in each of his reports to Dan River that the three plaintiffs' respiratory problems resulted primarily from their cigarette smoking, but that he could not state whether there were other contributing factors such as exposure to cotton dust. The reports also stated that each plaintiff did not have byssinosis.

According to Dr. Briggs, he sat down with each of the three men and explained the results of the tests and his recommendations. The plaintiffs disputed this at trial. In any event, it was undisputed that Dan River sent Dr. Briggs' reports to Hilliard and Schofield's personal physician, Dr. Vernon Stabler. The form transmittal letters of February 4, 1980, indicated that the patients had a "complete pulmonary work up" but did not go into further detail.

The plaintiffs' expert, Dr. Neil Schachter, disagreed with Dr. Briggs' conclusions with respect to Middleton, Hilliard, and Schofield and what were in effect Dan River's conclusions with respect to plaintiffs McCoy and Smith. After examining all five of the plaintiffs prior to trial, Dr. Schachter concluded that Middleton, Hilliard, and Schofield suffered from grade three byssinosis and were totally disabled. McCoy and Smith, Dr. Schachter testified, also suffered from byssinosis but were only partially disabled. According to Dr. Schachter, the respiratory impairment of all five plaintiffs resulted from their exposure to cotton dust on the job.

After a five-day bench trial, the district court entered judgment in favor of all plaintiffs.

I. Statute of Limitations

Dan River argues that the claims of McCoy, Hilliard, and Schofield are barred by Alabama's one-year statute of limitations. This is perhaps the most difficult issue raised by Dan River. In case of contraction of the disease of occupational pneumoconiosis, the Alabama Workmen's Compensation Act, Ala.Code Sec. 25-5-147 (1975), bars actions not brought within one year of the date of injury, which is the date of last exposure to the hazards of the disease in the employment of the employer. McCoy's last date of exposure, within the meaning of the statute, was June 24, 1982, while Hilliard was last exposed on March 22, 1980, and Schofield's last exposure was September 12, 1980. Their complaints were filed in the district court on October 21, 1983, December 2, 1983, and January 4, 1984, respectively. All three plaintiffs conceded that their claims were not filed within the statutory period, arguing instead that the statutory period should be equitably tolled.

Alabama law provides that the running of the statute of limitations is tolled when the employer or its agent innocently or fraudulently misleads the claimant in the postponing of the filing of his claim. Ex parte Youngblood, 413 So.2d 1146, 1149 (Ala.1981). It is immaterial whether the employee relies upon actual fraud or mere estoppel. Dorsey v. U.S. Pipe & Foundry Co., 353 So.2d 800, 803 (Ala.1977). To establish a claim of fraudulent concealment, a plaintiff must prove:

... (1) that the employer knew, or should have known, through its medical examination staff that the employee was suffering from a disease or infirm condition ...; (2) that the employer knew, or should have known, that the employee did not know of his disease or condition ...; (3) that the employee did not have reason to understand its relation to his employment ...; and (4) that the employer (or the medical staff provided by the employer) did in fact fail to disclose to the employee that which it had an obligation to disclose, i.e., the nature and extent of the employee's disease or condition.

Belser v. American Cast Iron Pipe Co., Inc., 356 So.2d 659, 663 (Ala.Civ.App.1978) (citations and footnote omitted).

False representation, even if innocent, raises the issue of whether the employer or its representative is "primarily responsible" for the employee's delay in filing his claim. That issue presents a question for the factfinder. Whether a person is a representative of the employee is also essentially one of fact. Ex parte Youngblood, 413 So.2d at 1149.

The district court, based on its findings of fact, held that the plaintiffs had satisfied their burden of establishing both fraudulent concealment and misrepresentation. Becaus...

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