Pretus v. Diamond Offshore Drilling, Inc.

Decision Date12 June 2009
Docket NumberNo. 08-40622.,08-40622.
Citation571 F.3d 478
PartiesHerbert B. PRETUS, Jr., Plaintiff-Appellant, v. DIAMOND OFFSHORE DRILLING, INC.; Diamond Offshore Management Co.; Diamond Offshore Services Co., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

LA, Gary B. Pitts, Pitts & Mills, Friendswood, TX, for Plaintiff-Appellant.

Mark Reese Pharr, III (argued), Galloway, Johnson, Tompkins, Burr & Smith, Lafayette, LA, Ron Thomas Capehart, Galloway, Johnson, Tompkins, Burr & Smith, Houston, TX, for Defendants-Appellees.

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

Before DAVIS, SMITH and OWEN, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

On September 6, 2006, Plaintiff Herbert B. Pretus, Jr. ("Pretus") sued his employer, Diamond Offshore Drilling Inc., and related entities (collectively, "Diamond"), after being diagnosed in early 2005 with a lung disorder allegedly arising out of his employment on the OCEAN CONFIDENCE and other movable ocean rigs owned by Diamond. Diamond filed a motion for partial summary judgment in which it argued that the suit was time-barred. The district court granted the motion and entered a final judgment dismissing all of Pretus's claims. Because we find that genuine issues of material fact remain as to when Pretus should have discovered his medical condition so as to trigger the applicable statute of limitations, we reverse and remand.

I. FACTS AND PROCEDURAL BACKGROUND

Pretus began working for a predecessor to Diamond in 1978 as a roustabout. Initially Pretus was part of a crew that worked aboard a submersible drilling rig, but Diamond soon assigned him to the safety department. Thereafter Pretus worked on submersible drilling rigs as a safety representative. From February 4, 1999 through 2000, Pretus was assigned to work on the OCEAN CONFIDENCE, a floating hotel, during the time it was being retrofitted into an offshore drilling rig. While on the OCEAN CONFIDENCE, Pretus assisted in cleaning the rig, which was allegedly wet and moldy.

Pretus served 14 day hitches on the rig, followed by 14 days off duty during which he returned home. During one of his early hitches, Pretus began having respiratory problems. He had "cold-like" symptoms: a cough, fever, aches, congestion, and chest tightness. The symptoms usually improved when Pretus returned home but frequently returned during his next hitch, though Pretus did have some hitches without symptoms.

Other workers on the rig experienced similar ailments, and the symptoms became known as the "Confidence Crud." Pretus, as safety representative, called doctors engaged by Diamond to seek treatment advice when he or other members of the crew were ill. Diamond had "standing orders" in place on the rig for any employee who had respiratory problems to take medications such as antibiotics and antihistamines, and Diamond provided flu shots and pneumonia shots to any employee who requested them. Pretus took a variety of such medications for his ailments, which usually alleviated his symptoms.

In January 2001, Diamond promoted Pretus to the position of safety supervisor. As a safety supervisor, Pretus worked out of Diamond's headquarters in Houston but his duties required him to occasionally visit offshore rigs to supervise safety representatives. The parties dispute the frequency and duration of these trips.

While working as a safety supervisor, Pretus continued to periodically suffer from these cold/flu-type symptoms. He was treated by his personal physician, Dr. Michael Ellis, an ear, nose, and throat specialist in Chalmette, Louisiana, on at least one occasion. Dr. Ellis diagnosed Pretus as suffering from bronchitis. Pretus was also treated by Dr. Phillip Weinstein in Houston, Texas. After a few years, Pretus's symptoms worsened, and in July of 2004 he took a leave of absence due to his severe shortness of breath and coughing. He then went to see a pulmonologist, Dr. Joe Johnson, who treated him for a few months and then referred him to an infectious disease specialist, Dr. Michael Hill. In January of 2005, Dr. Hill advised Pretus that he might have a fungal infection in his lungs.

In March of 2005, Diamond's insurer sent Pretus to Dr. James Patterson for an independent medical examination. After Dr. Patterson conducted his examination he diagnosed Pretus with hypersensitivity pneumonitis. Dr. Patterson's independent medical report, submitted by Pretus in opposition to Diamond's motion for partial summary judgment, described the condition as

an immune/allergic disease of the lung caused by environmental exposure to antigen(s), with Farmer's Lung being the prototype. Initially, the symptoms resemble a respiratory tract infection, and it is commonly misdiagnosed, as the symptoms are similar with [sic] fever, cough, body aches, headache, chest congestion or tightness. Symptomatic treatment can resolve the symptoms in the early stage of the disease. Mr. Pretus'[s] symptoms followed this pattern. If it is recognized that the symptoms are recurring on exposure, and resolving away from the exposure, the condition can be completely cured by avoiding the exposure altogether.

If the early stage of [hypersensitivity pneumonitis] is not recognized, the condition worsens and progresses with chronic cough, shortness of breath with exercise, and abnormal changes on pulmonary function tests, chest x-ray, and CT scan. Fibrosis of lungs develops, especially in the lower lobes and the condition becomes fixed with irreversible loss of lung function. Mr. Pretus's course followed this pattern. He has fibrosis of lower lungs on high resolution CT and chest x-ray with similar interstitial changes in lungs.

* * *

The tragedy of this condition is that it is preventable by early recognition and removal from exposure. However, many times it is missed and treated as multiple respiratory infections and the chronic irreversible stage develops. The system that was in place at the job site with "standing orders" to dispense medication on site for respiratory infections probably covered up the diagnosis, delayed recognition, and contributed to the development of the chronic problem of Mr. Pretus.

When Pretus received this diagnosis, he sued Diamond in Texas state court on September 6, 2006 under the Jones Act and general maritime law. Diamond removed the case to federal district court in October 2006. In March 2007 Diamond filed a motion for partial summary judgment in which it argued that Pretus's Jones Act and general maritime law claims are barred by the three year statute of limitations and that his only remedy lies under state worker's compensation laws. The district court granted the motion, apparently on the ground that the suit was time-barred, and entered a final judgment dismissing all of Pretus's claims. From this judgment Pretus appeals.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had diversity jurisdiction under 28 U.S.C. § 1332 and admiralty jurisdiction under 28 U.S.C. § 1333. We have jurisdiction over the district court's final judgment pursuant to 28 U.S.C. § 1291.

"We review the district court's grant of summary judgment de novo, applying the same standard as the district court." Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir.2008) (citing Greenwell v. State Farm Mut. Auto. Ins. Co., 486 F.3d 840, 841 (5th Cir.2007)). See FED.R.CIV.P. 56.

III. LAW AND ANALYSIS

The dispositive issue on appeal is whether a genuine issue of material fact exists as to when Pretus should have discovered his illness so as to trigger the running of the three year statute of limitations for his Jones Act and general maritime law claims. If they began to run more than three years prior to his filing suit on September 6, 2006, the district court properly dismissed the suit as untimely; if they began to run within that three year period, the suit was timely and should not have been dismissed on that basis.

The statute of limitations for maritime torts is governed by 46 U.S.C. § 30106 (previously 46 U.S.C. app. § 763a): "Except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose." The Jones Act, 46 U.S.C. § 30104 (previously 46 U.S.C. app. § 688), adopts the same statute of limitations applicable to suits under the Federal Employees' Liability Act ("FELA"), 45 U.S.C. § 56, which is three years. Pretus filed his lawsuit on September 6, 2006. Therefore, his suit is only timely if his cause of action accrued on or after September 6, 2003.

Discovery Rule

"A cause of action under the Jones Act and general maritime law accrues when a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two." Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991) (citing Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir.1984)). One of the early cases establishing the framework for this rule is Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), where a worker inhaled silica dust over the course of thirty years of work but became aware of an injury — a related occupational disease, silicosis — only after his symptoms became so severe he became unable to work and was diagnosed with silicosis. Id. at 165-66, 69 S.Ct. 1018. His employer tried to defend under FELA's three year statute of limitations,1 but the court rejected the defense, saying that the statute of limitations was not meant to apply to facts that were "unknown and inherently unknowable." Id. at 169, 69 S.Ct. 1018. This rule, that the statute of limitations is not triggered under certain conditions when the employee does not know of his injury or illness, came to be known as the discovery rule.

This case and others were examined in Albertson, the leading Fifth...

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