IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 12, 2009
No. 08-40622 Charles R. Fulbruge III
Clerk
HERBERT B. PRETUS, JR.,
Plaintiff - Appellant,
v.
DIAMOND OFFSHORE DRILLING INC.; DIAMOND OFFSHORE
MANAGEMENT CO.; DIAMOND OFFSHORE SERVICES CO.,
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.
No. 08-40622
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
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No. 08-40622
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
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No. 08-40622
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.
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No. 08-40622
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 F ED. R. C IV. 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 (1949), where a worker inhaled silica dust over
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No. 08-40622
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. His
employer tried to defend under FELA’s three year statue 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.
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 Circuit
case on Jones Act and general maritime law statute of limitations. The plaintiff,
Albertson, was forced by his employer to use a dangerous chemical,
trichloroethylene (“TCE”), throughout a four-month voyage aboard a freighter
which ended in 1969. 749 F.2d at 226–27. During the voyage, Albertson began
blacking out and experiencing excruciating headaches and nausea. Id. at 227.
Upon returning to land, he was hospitalized, and although the doctors
apparently failed to advance a definitive diagnosis, they refused to certify him
to return to sea. Id. His health continued to decline, and in 1980 he was
allegedly informed for the first time of a link between his TCE exposure and his
mental and physical problems. Id. at 227–28. He sued his former employer
under the Jones Act and general maritime law in 1981, more than 12 years after
the exposure. Id. The district court granted summary judgment in favor of the
employer on the ground that the suit was time barred. Id.
1
FELA and the Jones Act have a strong connection. See Johnson v. Cenac Towing,
Inc., 544 F.3d 296, 301 n.2 (5th Cir. 2008) (“The Jones Act, 46 U.S.C. § 30104, makes the
provisions of the Federal Employers’ Liability Act . . . applicable to seamen. Jones Act cases,
therefore, follow cases under FELA.”).
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No. 08-40622
On appeal, we discussed the legal principles governing the timeliness of
this action:
It is generally accepted that a cause of action for a tort accrues when
there has been an invasion of the plaintiff's legally protected
interest. See Restatement (Second) of Torts § 899 comments c & e
(1977). Ordinarily, this invasion occurs at the time the tortious act
is committed. Id.; DuBose v. Kansas City Southern Railway, 729
F.2d 1026, 1028 (5th Cir.), cert. denied, 469 U.S. 854, 105 S.Ct. 179,
83 L.Ed.2d 113 (1984). If some injury is discernible when the
tortious act occurs, the time of event rule respecting statutes of
limitations applies, and the plaintiff's cause of action is deemed to
have accrued. If the plaintiff later discovers that his injuries are
more serious than originally thought, his cause of action
nevertheless accrues on the earlier date, the date he realized that
he had sustained harm from the tortious act.
In some cases, however, the injured person may not realize that a
tort has been committed upon his person, since he may sustain a
latent injury which either is not or cannot be discovered until long
after the tortious act that caused the injury has occurred and after
the applicable statute of limitations otherwise would have run. In
such a case, courts have routinely applied the so-called discovery
rule to toll the running of the statute of limitations. When the
discovery rule applies, the plaintiff's cause of action does not accrue
on the date the tortious act occurred, but on the date the plaintiff
discovers, or reasonably should have discovered, both the injury and
its cause.
749 F.2d at 228–29 (footnote omitted).
The court characterized the latter situation—where the employee does not
discover the latent injury until long after the tortious act occurs—as “the pure
latent injury case.” Id. at 229. Many occupational diseases are examples of pure
latent injuries, the hallmark of which is that “the plaintiff fails to discover either
the injury or its cause until long after the negligent act occurred.” Id. at 230.
Under Urie, the discovery rule applies to such claims based on the principle that
plaintiffs should not be victimized if they had no knowledge or indication they
were injured. Id. at 231.
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No. 08-40622
We contrasted the pure latent injury case with another situation, where
the injury is immediately apparent but worsens over time; we labeled this as
“the traumatic event/latent manifestation case.” In such cases, “the plaintiff has
sustained both immediate and latent injuries caused by a noticeable, traumatic
occurrence. At the time of the traumatic event, the plaintiff realizes both that
he is injured and what is responsible for causing the injury. The full extent of
the harm, however, has not become manifest.” Id.
In Albertson, we held that the plaintiff’s injuries fell under the traumatic
event/latent manifestation line of cases because “at the time he endured the last
exposure to the TCE . . he suffered serious damage and noteworthy injury, and
he knew the injury was significant.” Id. at 233. We further explained:
This is not a case in which, coinciding with the trauma, an injured
seaman experienced and noticed only a minor injury and at a later
time discovered an unexpected latent injury that was unknown and
unknowable at the time of the traumatic event. C.f., Marathon Oil
Co. v. Lunsford, 733 F.2d 1139, 1142 (5th Cir.1984). Albertson had
knowledge of his injuries at the time he was injured, and he soon
knew they were substantial. His lack of knowledge of all the
claimed consequences of his injury does not justify a departure from
the time of event rule which establishes that the statutory
limitations period began to run at the time of the trauma.
Id.
Later cases have continued to draw the distinction between pure latent
injury cases and traumatic event/latent manifestation cases, but the analysis
often depends on the facts. In Clay v. Union Carbide Corp., 828 F.2d 1103 (5th
Cir. 1987), for example, the plaintiff, Clay, was exposed to toxic chemicals and
thereafter suffered significant symptoms including “laryngitis, difficulty
breathing, nausea, burning eyes, headaches, bronchitis, memory loss, mental
confusion, dizziness, prostate gland trouble, erratic heartbeats, sinus congestion,
and a productive cough.” Id. at 1105. These ailments only occurred when he
worked around the chemicals, not while he was away on other jobs or at home.
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No. 08-40622
Id. Approximately eight years after changing jobs to get away from the
chemicals, Clay was diagnosed with “chronic respiratory complaints,” and he
sued his employer under the Jones Act and general maritime law. The district
court granted summary judgment in favor of the employer on the basis of
untimeliness.
On appeal, Clay argued that his various ailments only constituted “minor
physical ailments, . . . [as] distinguish[ed] from Albertson’s severe headaches and
blackout spells.” Id. at 1106. Specifically,
Clay argu[ed] strongly that when a worker suffers minor physical
annoyances, such as headaches, transient dizziness, or congestion
that he causally connects to his work environment, such knowledge
should not be considered an invasion of a legal interest sufficient to
start the statute of limitations running against him thereby
precluding suit when he is later found to be suffering from a serious
occupational illness.
Id. at 1106–07. We specifically noted that “Clay’s argument has merit and is not
foreclosed by Albertson” based on the above quoted passage. Id. at 1107.
However, Clay’s injuries were “virtually identical” to his eventual diagnosis of
“chronic respiratory complaints”; therefore “Clay possessed or had reasonable
opportunity to discover the critical facts of the injury he claims to have suffered.”
Id. (emphasis added).
Likewise, in Crisman, the plaintiff, Crisman, sued his employer after
sustaining “a hearing loss, a chemical toxicity disorder, and respiratory injuries”
after exposure to petroleum-based chemicals at work. 932 F.2d at 414.
However, Crisman admitted in deposition testimony that he knew at the time
of exposure to the chemicals—more than a decade prior to filing suit—that his
exposure had caused those conditions, and he complained to his employer and
co-workers at the time. Id. at 416. The record was replete with other evidence
and testimony that Crisman had known of those conditions and their cause well
over three years before filing suit. Id. at 414–17.
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No. 08-40622
Crisman argued that the issue of timeliness was one for the factfinder and
should not have been decided on summary judgment, but the argument was
foreclosed because the material facts were not in dispute. “While evaluating
when a plaintiff reasonably was put on notice ordinarily is a factual
determination, in this case there was such an overwhelming array of evidence
indicating that the case was time-barred that summary judgment was
appropriate.” Id. at 417 n.4. Consequently, under the three year statute of
limitations, we held that the suit was time-barred. Id. at 418.
Finally, in Taurel v. Central Gulf Lines, Inc., 947 F.2d 769 (5th Cir. 1991),
the plaintiff, Taurel, had worked as a merchant seaman since 1958. Id. at 770.
He had “complained of pulmonary and respiratory difficulties” throughout his
career and had visited a hospital in 1963 and 1965 complaining of difficulty in
breathing. Id. From 1975 to 1981, chest X-rays taken during routine physicals
were declared normal, and in 1984 he was treated for bronchitis but was not
diagnosed with anything more serious. Id. In 1987 Taurel was diagnosed with
asbestosis as a result of a routine screening test conducted in 1986 or 1987. Id.
at 771.
Taurel sued his employer in 1988 under the Jones Act and general
maritime law, but the district court granted summary judgment in favor of the
employer based on untimeliness. Id. It found that Taurel’s cause of action had
accrued in 1980 based on Taurel’s deposition testimony that fellow seamen and
a doctor had informed him no later than 1980 that his problems might be related
to asbestos. Id. at 771–72.
On appeal, we addressed the “critical question” of when Taurel’s cause of
action accrued, finding that it did not accrue until a physician actually diagnosed
Taurel with asbestosis in 1987; thus, his 1988 suit was timely. Id. at 771. We
found particular significance in the fact that Taurel had been to various doctors
who did not make findings consistent with asbestosis and failed to diagnose
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No. 08-40622
asbestosis. Id. at 772. We concluded that a genuine issue of material fact
remained as to when Taurel “discovered, or should have discovered, that he had
asbestosis,” and that the district court erred in concluding that the suit was
time-barred under the three-year statute of limitations. Id.
Analysis
The above cases focus on several considerations: first and foremost, the
severity of the traumatic event and initial symptoms; second, the plaintiff’s
correlation of his ultimate injury with the traumatic event; and third, the
plaintiff’s reasonable reliance on the opinions of medical experts.
The first consideration, the severity of the traumatic event and initial
symptoms, is illustrated by Albertson, where exposure to a dangerous chemical
caused excruciating headaches, blackouts, and nausea; and Clay, where
exposure to toxic chemicals caused both moderate and severe symptoms,
including memory loss, prostate gland trouble, and erratic heartbeats. Where
the event is not particularly traumatic and the initial symptoms are not severe,
such that the plaintiff did not discover and should not have discovered the latent
injury until later, the discovery rule may apply, as illustrated by Taurel. Indeed,
even Clay acknowledged that “routine physical annoyances” that are “causally
connect[ed] to [an employee’s] work environment” do not necessarily trigger the
running of the statute of limitations. 828 F.2d at 1106–07.
It is undisputed that Pretus had medical problems that related to his work
on the OCEAN CONFIDENCE and, perhaps, other vessels. Unlike in Albertson
and Clay, viewing the facts in the light most favorable to the nonmovant, Pretus,
there was no discrete traumatic event like a chemical exposure, and the
contemporaneous symptoms were not severe. Pretus submitted an affidavit in
opposition to Diamond’s motion for partial summary judgment in which he
referred to having “cold-type symptoms including a sore throat, fever, sinus
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No. 08-40622
pressure, coughing, and nose congestion” during his time aboard the OCEAN
CONFIDENCE in 1999 and 2000.
Pretus’s characterization of the symptoms as “cold-type” is supported by
two “Injury or Illness Reports” filled out by him in 2000 and submitted by
Diamond in support of its motion. In a March 1, 2000 report, Pretus complained
of a head cold, running a low-grade fever, a headache, and body aches. In a May
25, 2000 report, he complained only of a low-grade fever, body aches, and a
cough. Neither report states a cause for those symptoms.
Until 2004, the only diagnoses his physicians gave him were common
illnesses such as colds, sinus infections, and bronchitis. His symptoms improved
with antihistamines and antibiotics, which could have led him to believe that the
physicians had correctly diagnosed his malady. Nothing about those symptoms
necessarily suggests a serious illness like the cases discussed above. A factfinder
could classify them as “routine physical annoyances” under Clay, 828 F.2d at
1106–07.
Under the second, related consideration, the plaintiff’s correlation of his
ultimate injury with the traumatic event, it is significant that Pretus is not
suing based on those initial symptoms. This case therefore differs from Clay,
where the plaintiff’s eventual diagnosis of “chronic respiratory complaints”
simply encompassed his initial symptoms that were manifested more than three
years prior to suit; and Crisman, where the plaintiff’s suit was based on hearing
loss and other conditions that he knew about for more than three years prior to
filing suit. Thus, a factfinder could conclude that it does not matter that Pretus
could correlate a cold, sinus infection, or bronchitis to his workplace. Those are
short-term afflictions that disappear with treatment, and according to his
summary judgment evidence that is essentially how his symptoms behaved until
2004. In short, under the first two considerations, there is a genuine issue of
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No. 08-40622
material fact as to the existence of a traumatic event and the severity of Pretus’s
symptoms prior to 2004.
The third consideration, the plaintiff’s reasonable reliance on the opinions
of medical experts, is best illustrated by Taurel. There, we held that a plaintiff’s
cause of action did not accrue until he was actually diagnosed with asbestosis,
when earlier medical screenings and treatment for bronchitis and other
pulmonary ailments had failed to uncover the condition. Even though doctors
and coworkers previously suggested to the plaintiff that his problems might be
related to asbestos, only the eventual diagnosis provided notice that his
condition was something more serious than a routine ailment.
This case is analogous to Taurel, in that both involved pulmonary
conditions caused by long-term exposure to an airborne irritant or agent, and in
both cases medical experts’ initial diagnoses failed to identify a serious condition.
Pretus diligently sought help for his medical problems, both while he was
suffering from minor symptoms in 1999 and 2000, and a few years later when
he developed a more serious pulmonary disability. He was initially diagnosed
with nothing more serious than bronchitis because the symptoms at the time did
not indicate to Pretus’s physicians that he had a serious disease. In 2004, when
treatment for colds, sinus infections, and bronchitis failed to alleviate his
increasingly severe and debilitating symptoms, Pretus took a leave of absence
to seek further treatment.
Only in 2004 and 2005 did doctors finally determine that Pretus had a
serious illness, one that was entirely different from bronchitis. After extensive
testing, including high resolution CT scans, were his physicians first able to
diagnose his condition as “chronic interstitial lung inflammation,” permanent
“fibrosis (scarring) of his lung tissue,” and hypersensitivity pneumonitis. The
independent medical report of Dr. Patterson, which was submitted by Pretus in
opposition to Diamond’s motion, fully supports Pretus’s version. Dr. Patterson’s
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No. 08-40622
report explains that the condition is difficult to diagnose and is often
misdiagnosed in the early stages.2 Pretus obtained these diagnoses less than
three years before he filed suit. If the factfinder concludes that Pretus could not
have reasonably discovered that he had a serious illness before 2004, the 2006
suit is timely under the Jones Act and general maritime law statute of
limitations.
Based on Pretus’s affidavit, the reports he filled out in 2000, his diagnoses
from various physicians, and Dr. Patterson’s report, a reasonable person could
conclude: (1) his early symptoms suggested nothing more serious than the
common cold, sinus infections, bronchitis and the like; (2) these ailments are the
type of “minor physical annoyances” mentioned in Clay that do not trigger the
running of a limitations period even if Pretus “causally connect[ed] [the
ailments] to his work environment,” 828 F.2d at 1106; and (3) Pretus’s cause of
action therefore did not accrue until after September 6, 2003.
We therefore conclude that a jury question is presented as to when Pretus
reasonably should have discovered that he was suffering from a serious medical
condition, and the district court erred in granting summary judgment in favor
of Diamond.
IV. CONCLUSION
For the above reasons, the district court’s judgment dismissing Pretus’s
suit is reversed, and the case is remanded for further proceedings consistent
with this opinion.
REVERSED and REMANDED.
2
The report also suggests that Diamond’s own “standing orders” to treat the
respiratory ailments probably contributed to the failure to discover and prevent the
development of Pretus’s hypersensitivity pneumonitis.
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No. 08-40622
JERRY E. SMITH, Circuit Judge, dissenting:
I respectfully dissent. This case is relatively easy. This court established
a bright-line rule in Crisman v. Odeco, Inc., 932 F.2d 413 (5th Cir. 1991), under
which the statute of limitations has run on Pretus’s claim. End of story, affirm
Judge Heartfield’s decision to grant summary judgment.
The panel majority, however, ignores the rule altogether. Instead, it de-
cides the case on a variety of “considerations,” which, before now, had never been
announced or even suggested. This directly violates our rule of orderliness,
which mandates that Crisman’s bright-line standard governs. In addition, the
majority deeply confuses the important factors we examine when determining
whether to toll limitations, and it mischaracterizes what constitutes a “traumat-
ic event.”
I. Rule of Orderliness and Crisman
In Crisman, as here, the plaintiff worked on an oil rig, spending one week
at work then one at home. Id. at 417. While on the rig, he “experienced head-
aches and a burning sensation in his respiratory passages that did not abate
until he returned home. . . . [T]he welding fumes caused headaches and sinus
problems that again would abate when he returned home.” Id. at 414. “Crisman
states in his deposition that these symptoms occurred only at work and disap-
peared when he left work for extended periods of time . . . .” Id. at 416. “Cris-
man experienced these problems almost every time he went to work.” Id.
We squarely held that this pattern of being sick while at work and feeling
better while at home 1 “should put a plaintiff on notice that he has suffered an in-
jury.” Id. (citing Clay v. Union Carbide Corp., 828 F.2d 1103, 1107 (5th Cir.
1
I call this the “pattern of illness.”
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No. 08-40622
1987)).
Crisman would spend one week at work, become ill, return home for
one week, and recover. He may have had a valid cause of action
then, but he did not pursue it. This was fatal for, once a plaintiff
should reasonably have been aware of the critical facts of injury and
causation, he must bring suit.
Id. at 417 (footnote, internal quotation marks, and citation omitted) (emphasis
added). This bright-line rule was based on Clay, 828 F.3d at 1107, in which a
plaintiff’s knowledge that “his symptoms were worse when he was around the
chemicals” put him on notice to sue.
Pretus’s symptoms are not reasonably distinguishable from those in
Crisman. In deposition he stated,
It would act like a cold. It would, you would cough and you’d get
tightness in your chest and you’d get, you’d cough up some clear
phlegm and then it turned yellow phlegm and then turn to green
phlegm and if, if you don’t get out of your system, you start a fe-
ver . . . . Towards, towards the end of the hitch and you’d go home
and you’d get well at the house and you’d come back and start all
over again.
Pretus’s medical report confirms that “[h]e would be well on return home, but
have symptoms when he went back to the rig.” The evidence is undisputed: Pre-
tus suffered from same pattern of illness that we examined in Crisman.
Our rule of orderliness “forbids one of our panels from overruling a prior
panel.” Teague v. City of Flower Mound, Tex., 179 F.3d 377, 383 (5th Cir. 1999).
We have only three options. First, we could find that Pretus does not fall under
the rule. As discussed above, this is impossible, because his facts are materially
indistinguishable 2 from those in Crisman. Second, we could find that Crisman
itself violated our rule of orderliness, and some earlier precedent forbids this
bright-line test. This too cannot be done, however, because in Crisman we re-
2
Pretus’s precise illness may differ from the plaintiff’s illness in Crisman, but the per-
tinent factSSthe pattern of illnessSSis indistinguishable.
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No. 08-40622
lied on a rule promulgated in Clay, and there is no language in any of our earlier
cases forbidding this bright-line rule.3 The third, final, and only proper and
available option is to apply the Crisman test, find it is “fatal” 4 to Pretus’s claim,
and affirm.
Instead, however, the majority completely ignores the test and our rule of
orderliness and decides the case based on “considerations,” using a definitive list
that no previous court has ever found to be controlling. Although it would be fair
in many circumstances to debate whether a bright-line rule or a factor-based test
would be preferable in these pattern-of-illness cases, that debate already took
place in CrismanSSthe bright-line rule won.
All that the majority opinion will do is generate more litigation of this case
in district court. But in the end, the same rule of orderliness that the majority
ignores will ensure that Crisman’s bright-line rule continues to govern even af-
ter this case is decided. Crisman controls, and our rule of orderliness mandates
that Judge Heartfield’s judgment be affirmed.
II. The Majority’s “Considerations”
Even if this case were to be decided based on some kind of balancing test,
the majority errs in identifying the “considerations”SSbetter referred to as fac-
torsSSthat it claims governs Jones Act limitations cases. To begin, the majority
essentially fabricates these considerations in a way that meets Pretus’s require-
ments, picking from earlier cases a variety of “rules” that leads to a reversal of
3
In addition, in the eighteen years since Crisman was decided, it has never been ques-
tioned by this court. It has, however, been cited favorably by several panels. See, e.g., Servici-
os-Expoarma, C.A. v. Indus. Mar. Carriers, Inc., 135 F.3d 984, 988 (5th Cir. 1998); Bealer v.
Mo. Pac. R.R. Co., 951 F.2d 38, 40 (5th Cir. 1991).
4
Crisman, 932 F.2d at 417.
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No. 08-40622
the judgment.5 Because I fear that later panels and parties will rely on these
stated factors and confuse the state of the law, I briefly discuss how they are
flawed.
The majority’s first consideration is “the severity of the traumatic event
and initial symptoms.” Although that is a factor to be examined by any court in
similar cases, the majority’s statement of the rule is seriously mistaken. It es-
tablishes much too high a bar for the severity of injuries. Admittedly, some of
our earlier cases have featured plaintiffs with rather serious symptoms, such as
memory loss in Clay and blackouts in Albertson v. T.J. Stevenson & Co., 749
F.2d 223, 227 (5th Cir. 1984). But life-threatening or critical injury is not re-
quired to put a putative plaintiff on notice. In Crisman, the plaintiff did not
black out or have memory loss but only had “headaches and respiratory prob-
lems.” Crisman, 932 F.2d at 414.
Pretus’s symptoms are not as serious as those in Clay or Albertson but are
easily comparable to those in Crisman. Although the majority attempts to por-
tray Pretus as having mere “cold-like symptoms,” it ignores the severity of those
symptoms and fails to mention how Pretus coughed up multi-colored phlegm and
had significant chest tightness. A minor sore throat or a couple days’ runny nose
may not put a plaintiff on notice, but Pretus’s symptoms crossed the “minor phy-
sical annoyance” line, see Clay, 828 F.2d at 1106, that we have established.
Once this barrier is crossed, severity of symptoms is only a part of our an-
alysis. More serious symptoms such as blackouts and memory loss will make it
more likely the plaintiff should have been on notice, but suffering from less seri-
ous symptoms will not guarantee that he qualifies for the discovery rule.
The majority’s next consideration is “the plaintiff’s correlation of his ulti-
5
I do not suggest that the majority is result-oriented in its methodology. The fact is,
however, that the way in which the majority fashions its “considerations” is considerably tilted
to Pretus’s benefit.
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No. 08-40622
mate injury with the traumatic event.” The majority claims that if a plaintiff is
suing on symptoms different from the ones from which he initially suffered, lim-
itations is tolled.
This is in direct contradiction to our earlier cases. In Albertson, 749 F.2d
at 232, the plaintiff argued that limitations were tolled because initially he had
suffered from headaches and blackouts, but he was suing based on later-devel-
oped ailments such as “blisters[,] . . . his liver ailment, behavioral disorder, and
other psychological problems.” We rejected that defense, recognizing that what
matters is not when the plaintiff recognized his later-developed, more serious
symptoms, but instead when he notices his first symptoms that gave him “a rea-
sonable opportunity to discover the critical facts of his injury.” Id. at 233.
Thus, Pretus may not have discovered the extent of his injuries until later,
but the fact that he should have been on notice from his pattern of illness means
that limitations were not tolled. This consideration, as identified and applied by
the majority, is inapposite and not a part of any proper Jones Act limitations an-
alysis.
The majority’s final consideration is “the plaintiff’s reasonable reliance on
the opinions of medical experts.” The majority holds that if a plaintiff has seen
a doctor and has been given a clean bill of health, limitations are tolled until he
is diagnosed. This court, however, has flatly and repeatedly rejected that rule.
In Albertson, we described how the plaintiff met with numerous doctors,
none of whom diagnosed his condition. Id. at 227-28. He was finally diagnosed
by a doctor more than a decade after he had first seen a physician regarding his
symptoms, and he sued immediately after that diagnosis. We nonetheless held
that the statute of limitations had run.
Similarly, in Clay, the plaintiff had met with doctors to discuss his illness
but was not diagnosed until years later. Clay, 828 F.3d at 1105. He too sued im-
mediately, and again this court found that even though his final diagnosis was
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No. 08-40622
made only a month before he sued, limitations had run. Id.
To prove its stated rule, the majority relies on only one case, Taurel v.
Central Gulf Lines, Inc., 947 F.2d 769 (5th Cir. 1991). Taurel’s holding, however,
is not in conflict with Judge Heartfield’s finding that Pretus’s suit is time-barred.
In Taurel, the plaintiff was tested for asbestos-related problems, but his tests
were negative; later, he was diagnosed with asbestosis. Id. at 770-71. This court
held that limitations had not run. Id. at 772. That decision, however, was in-
formed by unique circumstances: Taurel had been tested for the same disease
with which he was eventually diagnosed. He could not have been any more vigi-
lant.
Pretus may have visited a physician during his time on the vessel, but he
was not vigilant enough to get tested for his eventual disease based on his pat-
tern of illness. His doctors’ notes clarify that the only way to diagnose hyper-
sensitivity pneumonitis (“HP”) is by finding the kind of pattern Pretus suffered
from. Had he approached a doctor, described the pattern to seek treatment for
HP, and been told he was not suffering from the disease, this case would then
be governed by Taurel, and limitations would be tolled. That is not, however,
what happened to Pretus, so the discovery rule does not apply.
As I have shown, the majority’s “considerations” are deeply flawed. The
first overstates the test for serious injury, and the second and third have been
flatly rejected by earlier precedent.
III. The “Traumatic Event”
Finally, the majority errs in the way it uses the phrase “traumatic event.”
The majority claims that limitations have not run in this case in part because
Pretus has not experienced a “discrete traumatic event.” That conclusion, how-
ever, confuses what we require for a traumatic event.
In Albertson, this court coined the “traumatic event” phrase to describe
20
No. 08-40622
when a plaintiff should be on notice about his injury; we used the label to discuss
Beech v. United States, 345 F.2d 872 (5th Cir. 1965)SSin which the plaintiff had
slipped on a floor in a government buildingSSand then applied the label to the
situation at bar. Albertson, 749 F.2d at 231-32. The majority’s new notionSSre-
quiring a “discrete traumatic event” to trigger the running of limitationsSSappar-
ently derives from cases such as Beech. Indeed, when one thinks of a traumatic
event, one pictures something like a fall (as in Beech) or an explosion or plane
crash.
For our purposes, however, “traumatic event” is not a single spectacular
event, but instead merely an occurrence or series of events that leaves the plain-
tiff on notice of his injury. Slipping on a floor would qualify, but so would severe
headaches after months of breathing toxic fumes. Whether that event was, in
fact, “traumatic” is of little help, except to the degree that a truly traumatic
event is more likely to put a plaintiff on notice.
Our caselaw requires this reading of the phrase. In Albertson, the plaintiff
periodically experienced blackouts and severe headaches and suffered from nau-
sea throughout the voyage. Albertson, 749 F.2d at 226-27. This was not one
traumatic event, but several minor ones combined with voyage-long symptoms.
In Clay, the plaintiff suffered from chemical exposure that occurred constantly
while he worked on his barge; again, there was no one single traumatic event.
Clay, 828 F.2d at 1104-05. The same kind of injury occurred in Crisman, where
the plaintiff incurred his injuries after years of inhaling fumes. Crisman, 932
F.2d at 414. These cases prove that there does not need to be one specific, trau-
matic event that leads to injury, but only enough to put the plaintiff on notice
that he had been or was being harmed.
This case is surprisingly simple. Crisman created a bright-line rule, Pre-
tus’s pattern of illness is identical to the one in Crisman, and therefore we must
affirm the summary judgment. Crisman and its bright-line rule can be over-
21
No. 08-40622
turned by this court only by en banc vote, a Supreme Court decision, or legisla-
tion, not by a panel’s blindness to a governing case.
Our rule of orderliness does not permit a panel majority to dodge a con-
trolling test altogether. Judge Heartfield correctly granted summary judgment
and should be affirmed. I respectfully dissent.
22