Ducre v. Mine Safety Appliances ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-3533
JULIUS DUCRE,
Plaintiff,
versus
MINE SAFETY APPLIANCES, ET AL.,
Defendants.
**************************************************
JOSEPH BARTHOLOMEW,
Plaintiff-Appellant,
versus
AVONDALE INDUSTRIES, INC., ET AL.,
Defendants-Appellees.
Appeals from the United States District Court
for the Eastern District of Louisiana
(June 10, 1992)
Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Joseph Sidney Bartholomew appeals a summary judgment
dismissing his silicosis case as prescribed. We conclude that
there is a genuine issue of material fact as to when Bartholomew
had a reasonable basis for a claim. We reverse and remand for
trial.
I.
On January 30, 1990, Joseph Sidney Bartholomew sued his
employer, Avondale Industries, various manufacturers of silica and
respirator equipment, and their insurers in Louisiana state court.
Bartholomew alleged that these defendants caused his silicosis. He
alleged that he was assigned hazardous work because he was black
and attempted to state a claim under 42 U.S.C. § 1981 as well as a
state tort claim under Louisiana law. Defendants' insurer removed
the case to federal court where the case was consolidated with
other similar occupational disease claims. We are told nothing
about the "federal claim." Having served its jurisdictional role,
it has apparently been ignored.
Defendant Mine Safety Appliances Co. moved to dismiss urging
that the applicable period of prescription had run. The magistrate
treated this motion as a motion for summary judgment and granted
the motion on June 11, 1991. On June 25, the magistrate granted
summary judgment to all other defendants on similar grounds.
II.
During the 1970's, Avondale began testing its employees who
worked around silica, asbestos, or other dusty material for
pulmonary disease. Ochsner Medical Foundation, an independent
medical firm, contracted with Avondale to conduct annual chest x-
rays and breathing tests for these employees.
Until 1981, Bartholomew worked primarily as a sand-blaster.
In 1981, Dr. Ochsner's staff tested Bartholomew for lung disease.
On November 10, 1981, Dr. Brooks Emory wrote Avondale, informing it
2
that Bartholomew's x-ray suggested silicosis but that Bartholomew's
lungs functioned normally. This report was not sent to
Bartholomew. Bartholomew testified by deposition that, when he was
tested, he could breathe without any unusual difficulty. Indeed,
even when this litigation began, Bartholomew stated that he
considered his health "pretty good." Aside from "shortness of
breath when [he was] jogging or climbing," Bartholomew has
exhibited no symptoms of lung disease.
On receiving Dr. Emory's report, Avondale removed Bartholomew
from sand-blasting duties. Bartholomew testified in his deposition
that some unidentified Avondale employee approached him while he
was sand-blasting and told him that he was being relieved of sand-
blasting duties because he had "sand in his lungs." However, there
is no record evidence that anyone told Bartholomew that sand in the
lungs was necessarily a serious medical condition. On the
contrary, Avondale simply assigned Bartholomew to non-sand-blasting
duties.
In December 1981, Avondale submitted an LS-202 form to the
United States Department of Labor with a copy of Dr. Emory's x-ray
report attached. Employers use the LS-202 form to inform the
Department of Labor's Worker's Compensation Program that an
employer suspects a job-related injury. Avondale's transmittal
letter to the Department of Labor stated that Bartholomew "has
evidence of silicosis." The letter further stated that Bartholomew
had been removed from sand-blasting duties and assured the
Department of Labor that Bartholomew would be "monitored under our
3
medical programs and we will keep you informed of any further
developments." The letter offered no further explanation of
silicosis, its causes, or its symptoms. Avondale sent a copy of
this letter to Bartholomew.
Bartholomew continued to receive annual chest x-rays and
breathing tests as part of Avondale's medical surveillance program.
Each year from 1984 until 1990, Avondale sent Bartholomew the same
letter.
"There have been no significant changes in your chest x-
ray and/or pulmonary function since the last time the
studies were conducted. You may continue working in your
present area using the proper protective devices as
needed."
The letters did not mention that Bartholomew's lungs showed signs
of silicosis. There is no evidence that Bartholomew felt sick, had
difficulty breathing, missed any work because of illness, or took
any medication for any illness during this time. He continued to
work for Avondale.
The record also contains documents styled "Physician's
Occupational/Environmental Medical History Follow-Up." Barthomomew
signed one of these documents. The documents contain brief,
handwritten summaries of dated interviews of Bartholomew by a
physician. None of the summaries refers to silicosis or mentions
that Bartholomew has symptoms of lung disease. On the contrary,
the summary of an interview dated March 21, 1983 states that
Bartholomew has "No respiratory problems." The summary dated
October 19, 1981 states that an "x-ray [was] explained," but says
nothing more about the "explanation." On the bottom of the form,
4
the form states, "This is to certify that the findings of my
clinical tests (x-ray and spirometer) conducted on _________ have
been fully explained to me." Underneath this certification,
Bartholomew's signature appears. The date of the tests does not
appear in the form, and Bartholomew's signature is not dated.
The magistrate found that there was no question of fact but
that Bartholomew
"was aware at least five years prior to filing suit that
he had sustained an injury to his lung as a result of his
sandblasting work at Avondale and that the problem
remained unresolved. These facts were sufficient to
alert a reasonable person to take some action to
determine if there was legal redress for his injury and
to commence the running of prescription."
Bartholomew filed a timely notice of appeal from the magistrate's
decision.
III.
Under the familiar standard, the movant is entitled to summary
judgment only if the evidence, viewed in the light most favorable
to the non-movant, shows no genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2252
(1986).
Prescription is an affirmative defense, and defendants bear
the burden of its proof at trial. Hilman v. Succession of Merrett,
291 So. 2d 429, 726 (La. 1974). Here, the defendants' burden was to
demonstrate the absence of a genuine issue of material fact. We
find that defendants did not carry this burden. We are persuaded
that there is a fact question as to whether Bartholomew acted
reasonably in not filing suit until 1990.
5
The prescription period of one year for tort actions in
Louisiana runs from the date that the injury or damage was
sustained. La. Civ. Code art. 3492. However, the one-year period
does not begin to run against a plaintiff ignorant of the facts
upon which the claim is based as long as the ignorance is not
unreasonable. Jordan v. Employee Transfer Corp., 509 So. 2d 420,
423 (La. 1987); Lott v. Haley, 370 So. 2d 521 (La. 1979); Goodman v.
Dixie Welding Machine, 552 So. 2d 440 (La. App. 4 Cir. 1989);
Federal Deposit Insurance Corp. v. Aetna Casualty & Surety Co., 744
F. Supp. 729, 735 (E.D. La. 1990).
"Mere apprehension that something might be wrong" does not
make delay in filing an action unreasonable, Griffin v. Kinberger,
507 So. 2d 821, 823 (La. 1987), nor does knowledge that one has a
disease. Knaps v. B&B Chem. Co., 828 F.2d 1138, 1139 (5th Cir.
1987). There must be knowledge of the tortious act, the damage
caused by the tortious act, and the causal link between the act and
the damage before one can be said to have "constructive notice" of
one's cause of action. Knaps, 828 F.2d at 1139.
We find that the evidence does not preclude a genuine factual
dispute about whether these conditions were met more than a year
before Bartholomew filed his action. It is undisputed that an
Avondale employee told Bartholomew in 1981 that he was being
removed from sand-blasting because he had "sand in [his] lungs."
Bartholomew also received a copy of a letter sent to the Department
of Labor by Avondale in 1981 that stated that Bartholomew "had
evidence of silicosis." Finally, the record contains a summary of
6
medical examinations signed by Bartholomew. Bartholomew certified
by his signature on this summary that certain unidentified
"clinical tests" had been explained to him.
The remark by an Avondale employee that Bartholomew had "sand
in his lungs" does not tell Bartholomew that he had contracted
silicosis or any other job-related disease. At most, it told him
that he was being removed from a silica-dust laden environment to
avoid contracting a disease from inhaled silica dust. Bartholomew
knew that he had inhaled silica dust but that does not mean that he
knew he had silicosis. Such a claim would not accrue until
Bartholomew had incurred some sort of damage from the inhalation,
Owens v. Morris, 449 So. 2d 448, 450 (La. 1984), and there is no
evidence that Bartholomew knew that the "sand" in his lungs had
injured him.
A jury might conclude that Bartholomew believed that he was
being removed from sand-blasting precisely because he had not yet
contracted a disease and that the transfer to a dust-free workplace
was to remove the danger. We cannot say as a matter of law that
such an inference would be unreasonable given that, during several
years of medical surveillance, doctors repeatedly informed
Bartholomew through routine letters that his condition had not
changed since the last examination. Such stability of condition
might have led Bartholomew to believe that he had not contracted
silicosis, a disease characterized by progressive lung degeneration
even after exposure to silica dust has ceased. See Faciane v.
7
Southern Shipbuilding Corp., 446 So. 2d 770, 772 (La. App. 4th Cir.
1984) (describing progressive nature of silicosis).
Defendants also rely on a form signed by Bartholomew
certifying that the doctors hired by Avondale explained the results
of "clinical tests" to him. The form does not, however, disclose
the explanation or which clinical tests were explained. Indeed,
the comments on the form state that on October 19, 1983 Bartholomew
had "no respiratory problems." The forms, therefore, prove little
about whether anyone had ever explained to Bartholomew that he had
been diagnosed as having a job-related lung disease.
The defendants' best evidence is a transmittal letter to the
Department of Labor, dated December 15, 1981, stating that "under
our pulmonary surveillance program it was discovered that Mr.
Bartholomew has evidence of silicosis." A copy of this letter was
sent to Bartholomew. The letter is not strong enough, however, to
take this case from the jury.
Nothing in the letter informed Bartholomew that he had a lung
disease caused by his work as a sand-blaster. The letter simply
stated that Bartholomew's test results indicated signs of
"silicosis," without any explanation of what "silicosis" is or how
it is caused. The letter referred to sand-blasting only in noting
that Bartholomew had been removed from his sand-blasting duties and
re-assigned to work as a painter. The jury could have concluded
that Bartholomew reasonably failed to infer from the letter that he
had an occupational disease. This conclusion is strengthened by
8
the fact Bartholomew may have read with less care a letter that was
directed to the Department of Labor and not to him.
That equivocal character of facts known by Bartholomew is
enhanced by Bartholomew's limited education. "[T]he educational
status and medical sophistication" of a plaintiff is relevant to
assessing whether a plaintiff acts reasonably in delaying the
filing of a tort action. Layton v. Watts Corp., 498 So. 2d 23, 25
(La. App. 5 Cir. 1986). Bartholomew left school after completing
the tenth grade.
Assuming we should charge Bartholomew with knowledge that
"silicosis" was an occupational lung disease, Avondale's letter to
the department of Labor did not tell Bartholomew that he had
contracted silicosis. The letter was carefully confined to a
disclosure that Bartholomew's tests showed "evidence of silicosis,"
that Bartholomew had been removed from sand-blasting, and that
Bartholomew would be "monitored under our medical programs and we
will keep you informed of any further developments."
The letter states a tentative hypothesis that Bartholomew
might have contracted silicosis; it did not tell Bartholomew that
silicosis had been diagnosed. See Touchstone v. Land & Marine
Applications, Inc., 628 F. Supp. 1202, 1215 (E.D. La. 1986) (where
plaintiff "was not given a definite diagnosis of silicosis and . .
. was not symptomatic," fact question exists concerning
prescription, even though plaintiff "was told by a doctor that he
may have had silicosis, or any one of five other diseases").
9
Defendants rely on Orgeron v. Mine Safety Appliances Co., 603
F. Supp. 364 (E.D. La. 1985). The Orgeron court applied Cartwright
v. Chrysler Corp., 232 So. 2d 285, 287 (La. 1970) that:
"Whatever is notice enough to excite attention and put
the owner on his guard and call for inquiry is tantamount
to knowledge or notice of everything to which inquiry may
lead and such information or knowledge as ought to
reasonably put the owner on inquiry is sufficient to
start the running of the prescription period."
As we have recognized, the Cartwright test was altered by the
Louisiana Supreme Court's decision in Jordan v. Employee Transfer
Corp., 509 So. 2d 420, 423-24 (La. 1987). Knaps v. B & B Chem.
Co., Inc., 828 F.2d 1138, 1139 (5th Cir. 1987) ("very recent
decisions of the Louisiana Supreme Court have undermined the simple
Cartwright framework").
In Jordan the Louisiana Supreme Court noted that its
Cartwright decision offered "an incomplete definition of notice
that will start the running of prescription" and substituted a
"reasonableness" test for assessing whether the period of
prescription had run. Cartwright held that prescription ran when
the plaintiff ought reasonably to have made some sort of further
inquiry. Jordan held, by contrast, that "prescription did not
begin to run until [the plaintiffs] had a reasonable basis to
pursue a claim against a specific defendant." Id. at 424.
In Delaney v. Avondale Industries, Inc., Slip Op. No. 90-3084
(5th Cir. September 10, 1991) (unpublished slip opinion), on facts
more favorable to Avondale than here, we held that an Avondale
employee's delay in filing suit for job-related silicosis was not
unreasonable. Melvin Delaney, a sandblaster working for Avondale,
10
had been placed under medical surveillance and x-rayed by the
Ochsner Clinic. Dr. Brooks Emory reported that Delaney's lung
condition was "compatible with asbestosis." This analysis of
Delaney's x-rays was repeated by another doctor to Delaney in 1983.
The Department of Labor notified Delaney that it had been informed
by Avondale that Delaney had "silicosis [sic] or asbestos [sic]."
In 1985, Delaney was x-rayed once more, and Dr. Emory reported that
the x-ray "is most consistent with asbestosis." After reviewing
this x-ray report, another doctor, Dr. Mabey, discussed the report
with Delaney. We accepted the magistrate's finding that Dr. Mabey
informed Delaney that he had been diagnosed as having asbestosis.
Despite this specific communication to Delaney, we found that
the magistrate clearly erred in finding that Delaney had acted
unreasonably in delaying filing an action against Avondale until
1988. In reaching this conclusion, we relied on "the entire
atmosphere of the surveillance program" during which Delaney was
repeatedly sent 'no-change' letters informing him that his lung
condition had not degenerated. In addition, we noted that Delaney
had "only a nominal level of education and a complete absence of
medical sophistication." Like Bartholomew, Delaney "appeared to
have had no clinical or subjective, causally-related manifestations
of injury caused by [lung disease]," and his "general physical
condition allowed him to perform all of his usual employment-
related tasks."
Given all of these circumstances, the Delaney court found that
defendants had not established that Delaney acted unreasonably in
11
failing to file his action before 1988. We say here only that the
issue must be left to the jury. R.J. Reynolds Tobacco Co. v.
Hudson, 314 F.2d 776, 786 (5th Cir. 1963).
REVERSED and REMANDED.
12