U.S. appeals court remands Beaumont injury case over time limit questions

Michelle Massey, East Texas Bureau Jun. 17, 2009, 6:58am

Fifth Circuit court building in New Orleans

TEXARKANA, Texas – A federal appeals court has sent a Jones Act suit back to Beaumont because questions remain about the statute of limitations and when a plaintiff should have discovered his medical condition.

In an opinion issued June 12, justices on the U.S. Fifth Circuit Court of Appeals in New Orleans reversed a lower court judgment that all injury claims by plaintiff Herbert Pretus Jr. against Diamond Offshore Drilling Inc. should be dismissed.

U.S. District Judge Thad Heartfield in the Beaumont Division of the Eastern District of Texas granted Diamond's motion for summary judgment that Pretus' claims were time-barred.

Pretus appealed to the Fifth Circuit, and appellate justices found that the lower court had not fully considered when the statute of limitations should begin tolling.

"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," Circuit Judge Eugene Davis wrote.

According to court documents, Pretus was hired by Diamond Offshore to work as a roustabout in 1978 and was later assigned to the safety department. He worked in that department as a safety representative and safety supervisor.

During one year, 1999 to 2000, Pretus worked on the Ocean Confidence, a floating hotel being retrofitted into an offshore drilling rig. He claims the rig's environment was wet and moldy.

It was during this time that Pretus began having respiratory problems. He states that he had "cold-like" symptoms, which usually approved when he returned home.

"Other works on the rig experienced similar ailments, and the symptoms became known as the 'Confidence Crud,'" court documents state.

Pretus noted that sometimes the problems would clear up when he was away from the rig.

The company had standing orders that any employee with respiratory problems could request and would be provided with antibiotics, antihistamines and flu or pneumonia shots. Pretus sought treatment and took a variety of these medications.

However, Pretus states that periodically he would continue to suffer from cold and flu-like symptoms. His symptoms of shortness of breath and coughing began to get worse in 2004 and he took a leave of absence to seek treatment.

In early 2005, Pretus saw an infectious disease specialist, who told Pretus he might have a fungal infection in his lungs.

Two months later, Diamond's insurer sent Pretus to another doctor for an independent medical examination. The doctor diagnosed Pretus with hypersensitivity pneumonitis.

According to the medical report, this disease of the lung is caused by environmental exposure and in the early stages it can be cured by avoiding the exposure altogether. If the condition is not recognized, it can progress into an irreversible loss of lung function.

Dr. James Patterson wrote in his report that Diamond's 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."

After Pretus received the diagnosis, he sued Diamond in Texas state court on Sept. 6, 2006, under the Jones Act and general maritime law.

Diamond removed the case to federal court in the Beaumont Division of the Eastern District of Texas 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.

Pretus then appealed to the Fifth Circuit.

"Dr. Patterson's report explains that the condition is difficult to diagnose and is often misdiagnosed in the early stages," Justice Davis wrote. "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."

The appeals court wrote that the discovery rule applies to claims based on the principle that plaintiffs should not be "victimized if they had no knowledge or indication they were injured."

The appeals court opined that the district court erred in granting summary judgment in favor of Diamond, reversed the decision, and remanded the case for further proceedings.

In a dissenting opinion, Circuit Court Judge Jerry E. Smith wrote that the majority court violated rules of orderliness and mistakenly confused factors, which determine the statute of limitations.

"The majority deeply confuses the important factors we examine when determining whether to toll limitations, and it mischaracterizes what constitutes a 'traumatic event,'" he wrote.

Judge Smith stated that the evidence was undisputed that Pretus was aware his symptoms were worse while he was on the rig and that was enough to put Pretus on notice to sue.

Houston attorney Gary B. Pitts and Mandeville, La., attorney Paul E. Harrison are representing the plaintiff.

Case No 1:06cv00627

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