Jones Act Case Study: Herbert B. Pretus v. Diamond Offshore Drilling Inc.; et al.

Mike Schuler
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June 14, 2009

Case Name: Herbert B. Pretus v. Diamond Offshore Drilling Inc.; et al.
Date Decided: June 12, 2009
Court: United States Court of Appeals, Fifth Circuit
Judge: Judge Davis
Citation: 571 F.3d 478

Former worker on offshore drilling rigs brought state-court action against employer/rig owner after being diagnosed with hypersensitivity pneumonitis and fibrosis of the lungs, asserting claims under the Jones Act and general maritime law.

From the beginning of February 1999 through 2000 Pretus worked on the Ocean Confidence, a floating hotel, while it was being retrofitted into an offshore drilling rig. Pretus assisted in cleaning the rig which was allegedly wet and moldy. Pretus began having cold-like symptoms while working on the rig but they would improve when he returned home. In July 2004 Pretus took a leave of absence due to severe shortness of breath and coughing. In January 2005, Pretus was advised by Dr. Michael Hill 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. Dr. Patterson diagnosed Pretus with hypersensitivity pneumonitis.

On September 6, 2006, plaintiff, Herbert B. Pretus, Jr. (“Pretus”), sued his employer, Diamond Offshore Drilling Inc. (“Diamond”) after being diagnosed in early 2005 with a lung disorder allegedly arising out of his employment on the Ocean Confidence.

Diamond successfully moved for Summary Judgment in federal district court which held that Pretus’s claims were time-barred.

Did the lower court err in granting Diamond’s motion for summary judgment holding that Pretus’s claims were time-barred?

Summary judgment is appropriate if the facts, construed in favor of the nonmoving party, show that there are not genuine issues of material fact and that as a matter of law judgment shall be made in favor of the moving party.

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 claims.

The Statute-of-limitations for maritime torts is governed by 46 U.S.C. § 30106 “…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…”

Pretus filed his lawsuit on September 6, 2006 and will only be timely if his cause of action accrued on or after September 6, 2003.

Under the Jones Act and general maritime law, a cause of action accrues when a plaintiff has had a reasonable opportunity to discover the injury, its cause, and the link between the two.

This Court examined several considerations, the severity of the traumatic event and initial symptoms, the plaintiff’s correlation of his ultimate injury with the traumatic event, and the plaintiff’s reasonable reliance on the opinions of medical experts.

This Court found there was no discrete traumatic event nor were there severe contemporaneous symptoms. Pretus simply complained of “cold-like” symptoms. The only diagnosis, until 2004, given to Pretus were colds, sinus infections, and bronchitis.

Second, this Court found that it does not matter whether Pretus could correlate a cold, sinus infection, or bronchitis to his workplace. Finally, even though doctors and coworker previously suggested to Pretus 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.

Accordingly, this Court holds that summary judgment in favor of Diamond was inappropriate by concluding that a jury question was presented as to when Pretus reasonably should have discovered that he was suffering from a serious medical condition.

The important issue in this case was when the plaintiff had a reasonable opportunity to discover the injury, its cause, and the link between the two.

Under the Jones Act and general maritime law, the three year statute of limitations runs once the plaintiff had a reasonable opportunity to discover his/her injury.

Steve Gordon

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