Albertson v. T.J. Stevenson & Co., Inc.

• Decision Date: 26 December 1984
• Docket Number: No. 83-2394,83-2394
• Citation: 749 F.2d 223
• Parties: Albert E. ALBERTSON, Plaintiff-Appellant, v. T.J. STEVENSON & COMPANY, INC. Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 223

749 F.2d 223

Albert E. ALBERTSON, Plaintiff-Appellant, v. T.J. STEVENSON & COMPANY, INC. Defendant-Appellee.

No. 83-2394.

United States Court of Appeals Fifth Circuit.

Dec. 26, 1984.

Sanders & Sanders, Stephen D. Sanders, Waldman & Smallwood, Beaumont, Tex., for plaintiff-appellant.

Wells, Peyton, Beard, Greenberg, Hunt & Crawford, Mark Freeman, Bruce Partain, Beaumont, Tex., T.E. Willoughby, Jr., New York City, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before RANDALL, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

In this case, Albert E. Albertson challenges the district court's grant of T.J. Stevenson & Co.'s (Stevenson) motion for summary judgment. The district court concluded that Albertson's cause of action under the Jones Act, 46 U.S.C. Sec. 688 (1982), was time-barred, because Albertson knew he was injured while on board Stevenson's freighter but failed to file suit within three years after returning to shore. Id.; 45 U.S.C. Sec. 56 (1982). The court also held that Albertson's remaining cause of action for unseaworthiness was barred by the equitable doctrine of laches. We conclude that the district court applied the correct legal standard for determining when Albertson's Jones Act and unseaworthiness causes of action accrued. As no genuine issue of material fact exists, we affirm the summary judgment.

I.

In granting Stevenson's motion for summary judgment, the district court derived the undisputed material facts from three sources: Albertson's deposition, his affidavit, and the affidavit of Stevenson's vice-president. The principal source of the undisputed material facts was Albertson's deposition. That deposition revealed that between November 1968 and February 1969 Albertson served as an electrician on board the S.S. ST. JOAN, an ocean-going freighter operated by Stevenson. Albertson's duties included maintenance and regular cleaning of certain parts of the electrical apparatus on board the ship. After cleaning this electrical apparatus, he applied with a spray gun a chemical solution composed of 60% mineral spirits and 40% trichloroethylene (TCE). The solution was used to absorb moisture on the electrical contacts in order to enhance electrical conductivity.

Albertson claims he sustained injury during a voyage aboard the S.S. ST. JOAN, because there was an insufficient supply of mineral spirits on board. Albertson asserts that it was necessary for him, therefore, to apply the TCE undiluted. The vessel also was not equipped with spray masks, so he was required to spray the chemical without any facial or respiratory protection. Albertson testified in his deposition that although he had used TCE at various times during the eighteen months prior to this voyage he had never applied the TCE either at full strength or without a spray mask. He also confirmed that he knew TCE was a dangerous chemical requiring special precautions and that a label on some of the TCE canisters warned against prolonged use of the chemical as creating a potential for liver damage.

While using the undiluted TCE during the four-month voyage, Albertson lost consciousness and experienced severe headaches on five or six occasions. The last episode in which he lost consciousness was the most severe, requiring the administration of minor medical care. After his last blackout, Albertson told his superiors that he would not apply the TCE again. He testified that strong pain medications failed to allay the excruciating headache and nausea he endured for the remainder of the voyage.

Within approximately two months after the S.S. ST. JOAN arrived at its home port in Jacksonville, Florida, in February 1969, Albertson visited the United States Public Health Service Clinic in Jacksonville for the treatment of his continuing headaches, nausea, and periodic blackouts. He met with Dr. Morris, the director of the Jacksonville clinic. Dr. Morris apparently was unable to help him. Within a few weeks after their initial meeting, Dr. Morris referred Albertson to Dr. Miller, a psychiatrist. Dr. Miller admitted Albertson to the psychiatric ward of a local hospital for observation and treatment. During the four-week period in which Albertson remained in the hospital, he attended group therapy sessions and was treated with a variety of medications. He also was given an EEG, which revealed an abnormal brain wave pattern. The record does not establish whether Albertson knew at that time that his EEG was abnormal. In fact, when Albertson was asked at his deposition whether any doctor in 1969 revealed a diagnosis to him, he claimed that none had done so. ¹

Albertson's doctors discharged him from the hospital in the late spring of 1969. Because of Albertson's poor medical condition, however, Dr. Morris would not certify him as being fit for sea duty, so Albertson never served on board a vessel again. During the summer of 1969 Albertson continued to experience headaches, and red blisters began appearing on his hands, although no physician ever told him the cause of the blisters.

Approximately a year after he returned from this voyage, members of his family began to complain of changes in his behavior and personality. Between the summer of 1969 and November 1972, Albertson experienced blackouts, nausea, and hallucinations, and he began hearing voices. In his deposition, he testified that by late-1972 the hallucinations he experienced and the voices he heard tortured him to such an extent that he attempted to rid himself of the torment by shooting himself in the head. He recovered from two brain operations, although grand mal epileptic seizures which he still experiences are attributable to the trauma sustained from the self-inflicted gunshot wound.

From 1972 to 1979 Albertson was committed at various times to several hospitals. Albertson's deposition does not reveal whether he was committed for the treatment of mental or physical problems. In 1978 or 1979 blisters similar to those that had appeared in 1969 resurfaced. This time, however, the blisters were more severe; they turned into lesions, and after the lesions healed, scars remained. He claims that the physicians treating him never discovered the cause of the blisters. In fact, Albertson claims that until 1980 no doctor had ever told him either what was wrong with him or what caused his illnesses. Sometime in 1980, however, Dr. Miller informed Albertson that a causal connection probably existed between Albertson's exposure to the TCE in 1969 and the psychological problems he subsequently experienced.

Albertson filed this suit on July 17, 1981, over twelve years after he was exposed to the TCE. His complaint alleged that as a result of the exposure to undiluted TCE while on board the S.S. ST. JOAN, he sustained encephalopathy ² with resulting schizophrenia and physical and mental anguish. In response to Stevenson's motion for summary judgment, Albertson asserted by way of an affidavit that he was suffering from a liver ailment allegedly caused by his exposure to TCE. Yet, nowhere in his complaint did he allege that he suffered from any liver disorder. At his deposition, which had been taken eighteen months after this suit was filed, Albertson stated that no doctor had ever conducted an examination of his liver, attributed any liver problem to Albertson's exposure to TCE, or diagnosed him as suffering from cirrhosis of the liver.

In support of its motion for summary judgment with respect to the unseaworthiness issue, Stevenson submitted the affidavit of one of its vice-presidents. That affidavit revealed that Stevenson had a policy of destroying all records, logs, and other reports that were more than ten years old and that all such documents relating to the 1968-1969 voyage of the S.S. ST. JOAN had been destroyed prior to Albertson's initiation of this suit. Albertson did not challenge this affidavit.

In granting Stevenson's motion for summary judgment, the district court stated that Albertson knew he had been exposed to TCE, that Albertson had been injured as a result of this exposure, and that Albertson knew his exposure to TCE injured him. With respect to Albertson's Jones Act claim, the court concluded that the three-year statute of limitations began to run in February 1969. The court further held that laches barred Albertson's unseaworthiness claim.

II.

The broad question in this appeal is whether the district court properly relied upon untimeliness in granting Stevenson's motion for summary judgment with respect to the Jones Act and general maritime claims. Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party seeking summary judgment bears the burden of establishing the absence of any disputed material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Although the court must resolve all factual inferences in favor of the nonmovant, the nonmovant cannot manufacture a disputed material fact where none exists. Russell v. Harrison, 736 F.2d 283, 287 (5th Cir.1984). Thus, the nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony. Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980). See also Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984); Vanlandingham v. Ford Motor Co., 99 F.R.D. 1, 3 (N.D.Ga.1983).

A. THE JONES ACT CLAIM

Actions under the Jones Act are governed by the three-year statute of limitations applicable to claims brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. Secs. 52-60 (1982). Engel v....