Milton Burt v. Lockheed Martin Corp. and Glencore Ltd.

• Court: Superior Court of The Virgin Islands
• Decided: December 6, 2022
• Docket: SX-2021-CV-548
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX MILTON BURT,

Plaintiff, SX-2021-CV-548

v.

LOCKHEED MARTIN CORP. and GLENCORE LTD.,

Defendants.

Appearances: Korey A. Nelson, Esq. Burns Charest LLP 365 Canal Street, Suite 1170 New Orleans, LA 70130 For Plaintiffs

J. Russell Pate, Esq. The Pate Law Firm PO Box 890 St. Thomas, VI 00804 For Plaintiffs

Warren T. Burns, Esq. and Daniel T. Charest, Esq. Burns Charest, LLP 900 Jackson Street, Ste. 500 Dallas, TX 75202 For Plaintiffs

Kevin A. Rames, Esq., and Semaj Johnson, Esq. K.A. Rames, P.C. 211 Company Street, Ste. 3 Christiansted, St. Croix VI 00820 For Defendants Lockheed Martin Corporation Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 2

Gregory K. Wu, Esq., KaSandra N. Rogiers, Esq., and Sangeeta Shastry, Esq. Shook, Hardy, & Bacon LLP 2555 Grand Blvd. Kansas City, MO 64108 For Defendants Lockheed Martin Corporation

Jacques Semmelman, Esq., and Eliot Lauer, Esq. Katten, Muchin, Rosenman LLP 50 Rockefeller Plaza New York, NY 10020 For Glencore Ltd.

Douglas Capdeville, Esq. Capdeville Law 2107 Company St. St. Croix, V.I. 00822 For Glencore Ltd.

MEMORANDUM OPINION (Filed December 6, 2022)

Andrews, Jr., Judge

INTRODUCTION

¶1 Milton Burt, a 76-year-old former maintenance worker at the Alumina

Refinery in St. Croix, brings this action for damages against the successor owner

of the refinery and the company that supplied bauxite to the refinery. He alleges,

during his employment, Defendants negligently exposed him to toxic substances

which caused him to suffer from lung disease. Defendants move this Court to

grant them a summary judgment because Burt filed his complaint after the

expiration of the applicable two-year statute of limitations. Burt responds the

statute of limitations was tolled until at least July 21, 2019, when he discovered the Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 3

cause of his disease and therefore his complaint was timely filed on July 15, 2021.

For the reasons mentioned below, this Court concludes the statutory period for

Burt to file his complaint expired on March 18, 2021. His complaint is therefore

time barred. Accordingly, the Court will grant Defendants’ Motion for Summary

Judgment Based on the Statute of Limitations.

FACTUAL BACKGROUND

¶2 From 1972 to 1985, predecessors of defendant Lockheed Martin Corp.

(LMC) owned and/or operated an Alumina Refinery located on the south shore of

St. Croix. 1 SUF ¶¶ 1-2. In 1989, VIALCO, a different predecessor of LMC,

purchased the refinery and operated it from 1990 to 1995. SUF ¶¶ 4, 5, 7.

Defendant Glencore, Ltd. (GL) supplied bauxite to VIALCO. SUF ¶ 6. Plaintiff

worked at the refinery from 1967 to 1985 and 1988 to 1995 as a maintenance

worker. Complaint, ¶¶ 7- 8.

¶3 Based upon Defendants’ submitted Statement of Undisputed Facts and

attached exhibits, Plaintiff’s Response, and Defendants’ Reply, the Court finds the

following facts to be undisputed:

a. By letter dated February 7, 2019, Plaintiff’s counsel told Plaintiff that Plaintiff had “answered questions about his work history,” was selected for an x-ray screening to look for possible lung damage, and

1 Plaintiff disputes this fact and asserts that each of LMC’s predecessors had a different role within the refinery. SUF ¶ 2, Pl’s. Response. However, he submitted no document in support of his bare denial and does not specifically dispute Defendants’ assertion. Thus, the Court treats the asserted fact as undisputed. V.I.R. Civ. P. 56(e)(2). Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 4

instructed him to appear at the imaging center for a chest x-ray.2 (SUF ¶¶ 35-36);

b. Counsel, by the February 7, 2019 Letter, told Plaintiff he would schedule a breathing test if lung damage was found to know if Plaintiff qualified for a lawsuit against HESS/HOVIC for lung damage due to exposure to asbestos. (Ex. 19, SUF Pate Letter);

c. Counsel further instructed Plaintiff that if he did not work at the HESS/HOVIC refinery he should call the office so they could make sure that Plaintiff is in the Alumina Plant Group. (Id.);

d. On or about February 28, 2019, Plaintiff received a diagnosis of asbestosis and pneumonoconiosis.3 (SUF ¶¶ 32, 40);

e. The term “pneumonoconiosis” describes a group of interstitial lung diseases, including asbestosis and mixed dust pneumoconiosis. (SUF ¶ 25);

f. In his February 28, 2019 Report, Dr. Christopher John stated that he “believed beyond a reasonable degree of medical certainty that Plaintiff has evidence of underlying lung disease in the form of

2Plaintiff does not dispute this assertion of fact but claims that the letter is subject to the attorney-client privilege. This Court finds that the letter is not privileged for the reasons cited in Defendant’s Reply, i.e. that Plaintiff has since disclosed the letter to third parties.

3Plaintiff claims that this fact is disputed since, “Dr. John stated in his deposition that he needs to know work history to be able to make a diagnosis.” Pl’s. Opp. to Statement of Undisputed Facts, ¶ 32. The assertion that knowledge of work history is a prerequisite to making a diagnosis is unresponsive to Defendants’ specific claim that Plaintiff received the stated diagnosis on February 28, 2019, or immediately thereafter. For this reason, the Court considers the asserted fact as undisputed. V.I.R. Civ. P. 56(e)(2). Further, Dr. John’s February 28, 2019 Report clearly states that: a) he read Plaintiff’s February 28, 2019 x-ray report; b) he noted parenchymal changes diagnostic of pneumoconiosis; and c) he believed with a certain degree of medical certainty that Plaintiff has evidence of underlying lung disease in the form of bilateral parenchymal fibrosis diagnostic of asbestosis and diagnostic of a history of asbestos exposure. Ex. 17, Aff. of Kevin Rames 10/28/22 (BURT 548-003). Plaintiff has thus not presented any contrary information that creates a genuine issue of material fact as to Defendants’ asserted statement of undisputed fact in item (a) above. Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 5

bilateral parenchymal fibrosis diagnostic of asbestosis and diagnostic of a history of asbestos exposure.” (SUF ¶ 41);

g. Counsel for Plaintiff received a copy of Dr. John’s February 28, 2019 Report no later than March 18, 2019. (SUF ¶ 43);

h. On July 21, 2019, Dr. Michael Chesnutt performed a pulmonary function test on Plaintiff and issued a report that did not express an opinion regarding Plaintiff’s diagnosis. (SUF ¶¶ 48, 49);

i. A pulmonary function test evidences lung function, but not the diagnosis or the cause of any disease. (SUF ¶ 45); and

j. On one occasion, i.e., July 6, 2022, Dr. Christopher John interviewed and physically examined Plaintiff, and obtained information from Plaintiff himself. (SUF ¶¶ 46-47).

¶4 On July 15, 2021, Milton Burt commenced the above-captioned civil action

for negligence and strict liability against LMC, GL, and Cosmogony II, Inc. 4 He

claims he now suffers from pneumonoconiosis as a direct result of his repeated

exposure to the toxic substances during his employment at the refinery. Id. ¶¶ 9,14.

¶5 On October 18, 2022, defendants LMC and GL filed the instant Motion for

Summary Judgment Based on the Statute of Limitations. Plaintiff opposed the

motion on November 1, 2022 and Defendants filed their reply on November 8,

2022. On November 23, 2022, this Court held a hearing on Defendants’ motion

and took the matter under advisement.

4 This Court stayed further proceedings against defendant Cosmogony II, Inc. after receiving notice of its involuntary bankruptcy filing. Order Staying Proceedings, SX-2022- MC-027, June 16, 2022. Cosmogony is thus not part of the instant motion for summary judgment. Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 6

APPLICABLE LAW

¶6 Under Virgin Islands law, summary judgment shall be granted “if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” V.I.R. Civ. P. 56(a); Machado v. Yacht

Haven U.S.V.I., LLC, 61 V.I. 373, 380 (V.I. 2014) (stating summary judgment is not

to be granted unless “the pleadings, discovery, and disclosures of materials on file,

and any affidavits show that there is no genuine issue of material fact.). The

movant bears the burden of demonstrating the absence of any genuine issue of

material fact based upon the record. Aubain v. Kazi Foods of V.I., LLC, 70 V.I. 943,

948 (V.I. 2019) (quoting Brodhurst v. Frazier, 57 V.I. 365, 373-74 (V.I. 2012)). The

moving party may meet his burden by “pointing out that there is an absence of

evidence to support the nonmoving party’s case.” Id. If this is done, the burden

shifts to the non-moving party to demonstrate with affirmative evidence from which

a jury might reasonably rule in his favor. Id. Pursuant to the Virgin Islands

Supreme Court, “‘affirmative evidence’ means ‘actual evidence’ and ‘not mere

allegations’.” Basic Servs. v. Govt. of the V.I., 71 V.I. 652, 659 (V.I. 2019). In

considering a summary judgment motion, “this Court must view all evidence in the

light most favorable to the non-moving party.” Id. Here, that party is the Plaintiff.

LEGAL ANALYSIS

¶7 Defendants seek dismissal of Plaintiff’s complaint on grounds that it was Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 7

filed outside the applicable two-year statute of limitations. They argue that any

tolling under the discovery rule ended no later than March 18, 2019 when Plaintiff’s

counsel received a medical report indicating evidence of asbestosis and

pneumonoconiosis along with a history of exposure to asbestos. Defs.’ Mot. for

Summ. J., p 8; Defs.’ Reply, p 3. Plaintiff responds that tolling of the limitations

statute continued until, at least July 21, 2019, the date Plaintiff could have learned

of the cause of his injury and the potential responsible parties. Pl’s. Opp. p 14.

Hence, Plaintiff continues, he timely filed his complaint on July 15, 2021. For the

reasons that follow, this Court concludes that tolling of the applicable statute of

limitations pursuant to the discovery rule ceased, at the latest, on March 18, 2019.

As such, Plaintiff’s complaint was untimely.

1) The Discovery Rule Applies to Toll the Applicable Statute of Limitations on Plaintiff’s Claims.

¶8 In his complaint, Plaintiff asserts strict liability, negligence, and other

personal injury claims not arising on contract. Complaint, pp 5 – 28. Pursuant to

Virgin Islands law, the time period within which to commence an action for non-

contractual injury to person is two years after the cause of action has accrued. 5

V.I.C. § 31(5)(A). Generally, a cause of action accrues upon occurrence of the

essential facts that give rise to that cause of action. In re Tutu Wells, 846 F. Supp.

1243, 1255, 29 V.I. 41, 57 (D.V.I. 1993). Here, Plaintiff’s cause of action would

have accrued no later than 1995 when he terminated his employment at the Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 8

refinery. However, where, as here, the injury or its cause is not immediately

known despite the exercise of due diligence, the discovery rule applies to toll the

applicable statute of limitations. Santiago v. V.I. Housing Auth., 57 V.I. 256, 273

(V.I. 2012) (citing Joseph v. Hess Oil, 867 F.2d 179, 182 (3d Cir. 1989)) (stating,

in an asbestos case, “the discovery rule tolls the statute of limitations when,

despite the exercise of due diligence, the injury or its cause is not immediately

evident to the victim.”). Tolling continues until “the plaintiff knows, or reasonably

should know: (1) that he or she has been injured; and (2) that the injury has been

caused by another party's conduct." Joseph, 867 F.2d at 182 n. 8. The focus

under the discovery rule is not on the plaintiff’s actual knowledge but on “whether

the knowledge was known, or through the exercise of diligence, knowable to [the]

plaintiff.” Santiago, 57 V.I. at 273 (quoting Bohus v. Belof, 950 F.2d 919, 925 (3d

Cir. 1991)). Precision and certainty of the injury and cause is not required.

Instead, “the statute of limitations begins to run on the first date that the injured

party possesses sufficient critical facts to put [her] on notice that a wrong has been

committed and that [she] need investigate to determine whether [she] is entitled to

redress.” Marsh-Monsanto v. Clarenbach, 66 V.I. 366, 375 (V.I. 2017) (quoting

Santiago v. V.I. Hous. Auth., 57 V.I. 256, 274 (V.I. 2012)).

¶9 Under the circumstances here, this Court concludes that the discovery rule

is applicable to the two-year statute of limitations on Plaintiff’s claims. The parties

do not dispute this conclusion. What they dispute is the date on which tolling Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 9

under the rule terminated. Hence, the narrow issue is whether there is a genuine

issue of material fact as to the date Plaintiff knew or should have known that he

had an asbestos-related injury and the cause thereof. If such a material factual

issue exists, the Motion for Summary Judgment must be denied and the jury will

determine the factual issue. Plaintiff argues that the application of the discovery

dule is typically a question of fact for the jury to decide. Pl’s. Opp., p 2. This may

be so, however, where there is no genuine issue of material fact, this Court may

proceed to determine whether Plaintiff’s action is time barred as a matter of law.

See Marsh-Monsanto, 66 V.I. at 375 (stating “when the underlying facts are

undisputed, application of the statute of limitations presents a question of law that

may be resolved by summary judgment.”).

2) The Discovery Rule Tolled the Two-Year Statute of Limitations on Plaintiff’s Claims Until March 18, 2019, as a Matter of Law.

¶10 Plaintiff concedes Dr. John’s February 28, 2019 Report alerted him to the

fact of his injury. 5 He correctly notes that Dr. John’s “2019 Impression did not

identify Mr. Burt’s particular exposures as potential causes of Mr. Burt’s lung

disease.” Pl’s. Opp., p 3. He argues that “while Dr. John’s [February 28, 2019] x-

ray reading may have alerted Mr. Burt to the existence of an injury, it did not identify

5 Prior to commencement of argument at the November 23, 2022 hearing, Plaintiff conceded that, by March 18, 2019, he knew that he had suffered an injury, i.e., asbestosis, and agreed that the sole issue posed by Defendants’ motion is when Plaintiff became aware of the cause of his injury. Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 10

the cause of that injury,” hence, the limitations statute remained tolled while Plaintiff

undertook an investigation into the cause of his injury. Pl’s. Opp. p 2. Defendants

counter that Dr. John’s letter sufficed to put Plaintiff on notice that he had an injury

and that it was caused by exposure to asbestos. Defs.’ Mot. for Summ. J., p 3.

This Court agrees.

After reading Plaintiff’s x-ray report, Dr. John reported in part, as follows:

CHEST X-RAY: Parenchymal changes diagnostic of pneumonoconiosis are noted . . .

IMPRESSION: Given the patient’s [Plaintiff’s] abnormal chest x-ray and appropriate latency period, I believe beyond a reasonable degree of medical certainty that he [Plaintiff] has evidence of underlying lung disease in the form of bilateral parenchymal fibrosis diagnostic of asbestosis and diagnostic of a history of asbestos exposure . . .

SUF ¶¶ 40, 41; Ex. 17 (Dr. Christopher John’s February 28, 2019 Report).

Plaintiff’s counsel received Dr. John’s letter no later than March 18, 2019. SUF ¶

43. The letter constitutes but one source of Plaintiff’s knowledge regarding the

cause of his injury. The Court, however, must consider all facts and

circumstances bearing on Plaintiff’s knowledge. The following undisputed

circumstances reveal additional information known to Plaintiff before February 28,

2019:

a. Plaintiff worked at the Alumina Refinery for twenty-five (25) years between 1967 and 1995. (Complaint ¶ 7);

b. Plaintiff reached out to his current lawyer, prior to February 7, 2019, because his health was beginning to deteriorate, and discussed his work history. (Ex. 123 (Burt Dep. at 78: 8-13), SUF Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 11

Pl’s. Response);

c. By letter dated February 7, 2019, Plaintiff’s current lawyer advised him that he was selected for an x-ray screening and to report for one as soon as possible. (Ex. 19, SUF (February 7, 2019 Pate Letter));

d. Counsel further advised that if lung damage was found, he would contact Plaintiff to schedule a breathing test and collect his social security records. (Id.);

e. Counsel also advised that he would know, after the breathing test, whether Plaintiff qualified for a lawsuit against HESS/HOVIC for lung damage and shortness of breath due to exposure to asbestos. (Supp SUF ¶ 5); and

f. Counsel instructed Plaintiff that if he did not work at the HESS/HOVIC refinery he should call the office so they could make sure that Plaintiff is in the Alumina Plant Group. (Supp SUF ¶ 6).

Based on the above undisputed facts, it is clear that prior to the issuance of

Dr. John’ February 28, 2019 letter, Plaintiff knew that: 1) he worked at the Alumina

Refinery for twenty-five (25) years; 2) he sought legal (not medical) representation

due to his declining health; 3) he discussed his work history with counsel; 4) he

was advised to report for an x-ray screening to determine whether he had lung

damage; and 5) he knew he was embarking on a procedure to determine whether

he qualified for a lawsuit against HESS/HOVIC or his former employers at the

Alumina Plant, i.e. Martin Marietta and VIALCO (Defendants’ predecessors),

because of lung damage due to exposure to asbestos. It is thus evident that even

before the February 28, 2019 confirmation of Plaintiff’s injury, his current counsel

believed, and so advised Plaintiff, that if lung damage was found it would be as a Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 12

result of exposure to asbestos. Plaintiff and current counsel discussed the cause

(i.e. asbestos exposure) even before confirmation of the injury. This information,

coupled with the information provided by Dr. John’s report, was more than

sufficient to put a reasonable person on notice that he suffered an injury (i.e. lung

damage diagnostic of asbestosis) and that it was caused by a history of exposure

to asbestos. Further, a reasonable person who worked at the alumina refinery for

25 years would know that his employment there was the source of such exposure.

Therefore, by March 18, 2019, Plaintiff knew (or should have known) he had an

injury – asbestosis – and that it was caused by his exposure to asbestos while

employed at the Alumina Refinery owned by Defendants’ predecessors.6 Nothing

presented by Plaintiff lends itself to a reasonably contrary conclusion. In light of

these undisputed facts, the discovery rule’s equitable tolling stopped, the two-year

statute of limitations was triggered, and Plaintiff’s cause of action accrued, on

March 18, 2019. See Dabaldo v. URS Energy & Constr., 85 A.3d 73, 79 (Del.

2014)) (citing In re Asbestos Litigation, 673 A.2d 159, 162 (Del. 1996) (holding,

“[T]he two-year statute of limitations on asbestos-related personal injury claims

6 Plaintiff is deemed to have knowledge of Dr. John’s report as of March 18, 2019 since Plaintiff’s agent received the report on that date. Certainly, Dr. John considered Attorney Pate to be Plaintiff’s agent as he forwarded the report, containing confidential medical information, to him. Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 13

‘begins to run when the plaintiff is chargeable with knowledge that his condition is

attributable to asbestos exposure.’").

¶11 Plaintiff’s assertion that application of the discovery rule simply turns on

“whether the plaintiff acted with reasonable diligence while investigating the cause

of his injury,” is incorrect. Pl’s. Opp, p 9. If that was the standard, a Plaintiff could

prolong tolling at will by simply continuing to exercise due diligence. Such

diligence must be assessed in conjunction with the timing of acquisition of the

requisite knowledge. Once the requisite knowledge is acquired (i.e. the existence

and cause of the injury), further due diligence is irrelevant to the analysis. Thus,

the relevant issue is: when did Plaintiff know, or should have known considering

the exercise of due diligence, that he suffered an injury and the cause thereof.

Based upon the undisputed facts, Defendants have established the date of such

knowledge as March 18, 2019.

3) Plaintiff has Failed to Present Affirmative Evidence from Which a Jury Might Find That He Did Not Know the Cause of His Injury Until After March 18, 2019.

¶12 In light of Defendant’s showing, Plaintiff now bears the burden to present

affirmative evidence that a genuine issue of material fact exists regarding when he

became aware of the cause of his injuryt. Aubain, 70 V.I. at 943. To meet this

burden,, Plaintiff argues several factors point to July 19, 2019, rather than March

18, 2019, as the earliest end date for tolling under the discovery rule.

¶13 Plaintiff claims that “the 2019 Impression [Dr. John’s February 28, 2019 Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 14

Report] only addresses Mr. Burt’s injury – not its cause.” Pl’s. Opp., p 10. This is

not true. Dr. John reported that he believed “beyond a reasonable degree of

medical certainty that he [Plaintiff] has evidence of underlying lung disease in the

form of bilateral parenchymal fibrosis diagnostic of asbestosis and diagnostic of a

history of asbestos exposure.” SUF ¶¶ 40, 41; Ex. 17. The plain reading of Dr.

John’s report is that he found, beyond a reasonable degree of medical certainty,

Plaintiff had asbestosis, diagnostic of (i.e., caused by) a history of exposure to

asbestos. Further, the very name of the disease, asbestosis, signals the cause.

The commonly understood meaning of asbestosis is a disease caused by

breathing in asbestos dust. See www.oxfordlearnersdictionries.com;

www.dictionary.com; https://dictionary.cambridge.org; www.collinsdictionary.com.

At the November 23, 2022 hearing, Plaintiff argued that Dr. John’s February 28,

2019 Report did not include a diagnosis and that “diagnostic of” simply means

“characteristic of.” This Court is not swayed by Plaintiff’s semantics dance.

Substituting “characteristic of a history of asbestos exposure” for “diagnostic of a

history of asbestos exposure” has little if any impact on Dr. John’s medical finding.

Further, a cause diagnosis is not required to trigger the statute of limitations. See

Lapka v. Porter Hayden Co., 162 N.J. 545, 555-56 (N.J. 2000) (stating “plaintiffs

suggest that the discovery rule delays accrual of an action until a claimant acquires

an exact medical diagnosis of an asserted condition. We disagree. We impute

discovery if the plaintiff is aware of facts that would alert a reasonable person to Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 15

the possibility of an actionable claim; medical or legal certainty is not required.”);

Judayt v. Merk & Co., 730 Fed. Appx. 10, 110 (3d Cir. 2018) (stating “a definitive

diagnosis is not required to trigger the running of the statute of limitations.”);

Souders v. Atlantic Richfield Co., 746 F. Supp. 570, 575 (E.D. Penn. 1990)

(rejecting plaintiff’s argument that only a final and definitive diagnosis of asbestos

will start the running of the limitations statute and stating, “an asbestosis diagnosis,

tentative or final, is not necessary to begin the running of the limitations period. A

finding that Souders’ illness, whatever its medical definition, is asbestos-related is

sufficient.”). Pursuant to Virgin Islands law, all that is necessary is that the plaintiff

“possesses sufficient critical facts to put [her] on notice that a wrong has been

committed and that [she] need investigate to determine whether [she] is entitled to

redress.” Marsh-Monsanto v. Clarenbach, 66 V.I. 366, 375 (V.I. 2014) (citing

Santiago v. V.I. Hous. Auth., 57 V.I. 256, 274 (V.I. 2012)). The facts mentioned

above were more than sufficient to provide Plaintiff with the requisite notice. In

short, on March 18, 2019, the cause of Plaintiff’s injury was known, or through the

exercise of diligence, knowable to him.

¶14 Plaintiff also argues since the February 2019 Report was only based on

reading Plaintiff’s x-ray results, “it does not connect Mr. Burt’s lung disease to any

specific exposures and certainly does not connect Mr. Burt’s lung disease to his

employment at the Alumina Refinery.” Pl’s. Opp., p 10. It is true that Dr. John did

not indicate the source of Plaintiff’s exposure. However, Plaintiff was well aware Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 16

that the main source of any asbestos exposure must have been his twenty-five

(25) year employment with Defendant’s predecessors at the Alumina Plant. This

is evident from his deposition testimony which states as follows:

Q. So, in your interrogatory responses, you said when you were – when you referred to clearing pipes as part of your maintenance work, you said that once the pipe was cleared, it was re-installed in the pipe rack and wrapped with asbestos insulation. Do you remember that? A. Yeah. Q. And who was your employer during the time period when you’d re- wrap pipes with asbestos insulation at the plant? A. Martin Marietta. Burt Deposition, p 53: 3-13

A. Well, we were exposed to red dust, especially, if that is what you are referring to. And we are exposed to a lot of installation. I can’t call it asbestos, because at the time, we didn’t know anything about asbestos. So I – we were exposed to a lot of installation over the white side, especially Unit 9, where you have a lot of heat, and it need to be insulated to keep in the heat. Burt Deposition, p 62: 10- 17.

Q. And when was the next time you spoke to an attorney about this? A. Since my – since my – my health start to deteriorate, I – I happen To get hold of my present attorney, and he visited me, and we spoke. And he told me what happen to my health. Burt Deposition, p 78: 8-18.

Q. Were you exposed to any dust when you were working as a maintenance man in Area 2? A. Plenty of it. Q. Which dust? A. Bauxite, lime, flour, alumina. Burt Deposition p 147: 17-21

¶15 Ex. 123, Burt Deposition, 08/31/22 (Burns Affidavit Authenticating

Exhibits,11-02-22). Finally, the February 7, 2019 Letter to Plaintiff by Attorney

Pate evidences Plaintiff’s and his counsel’s knowledge that: 1) Plaintiff was Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 17

exposed to asbestos either at the Hess Oil Refinery or at the Alumina Refinery;

and 2) counsel was relying on Plaintiff’s knowledge to verify whether he should be

in the “Alumina Plant Group.” This information was enough to link his injury to his

asbestos exposure at the Alumina Refinery. Clearly, the purpose of the Chest X-

ray was to determine whether Plaintiff’s asbestos exposure was linked to an injury.

Dr. John confirmed the link on February 28, 2019.

¶16 Plaintiff suggests that tolling continued through at least July 21, 2019, when

he underwent a pulmonary function test, answered work history questions, signed

an earnings statement request form, and signed a retainer agreement with

counsel. Pl’s. Opp, p 12. These steps, Plaintiff argues, were necessary to

understand the cause of his injury. Id. Thus, Plaintiff concludes, July 21, 2019,

was “the earliest date on which Mr. Burt could have learned of the cause of that

injury and the potential parties responsible for it.” Id. at 13 (emphasis supplied).

At the November 23, 2022 hearing, Plaintiff further argued that it was not until he

had discussions with counsel on July 21, 2019, that he became aware of the cause

of his injury. The court finds no merit to these arguments

¶17 The July 21, 2019 Pulmonary Function Test Report did not express an

opinion regarding Plaintiff’s diagnosis. SUF ¶¶48, 49. Such tests do not diagnose

the cause of diseases. SUF 45; Ex. 13 at 12:6-19 (Sept. 23, 2022). It, therefore,

added nothing to Plaintiff’s knowledge of the cause of his injury and is irrelevant to

the discovery rule analysis. Similarly, Plaintiff’s earnings statement and execution Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 18

of a retainer agreement contribute no additional knowledge regarding the cause of

his disease. Further, simply arguing that Plaintiff and counsel discussed Plaintiff’s

work history on July 21, 2019, does not aid the analysis. The undisputed

evidence shows that both discussed Plaintiff’s work history even before he took

the x-ray on February 28, 2019. Plaintiff has identified nothing new learned during

their July 21, 2022 work history discussion that was unknown to them on February

28, 2019. He is not afforded the liberty to arbitrarily choose a date for counsel

and him to discuss information possessed by them and thereby select the

triggering date for statute of limitations clock.

¶18 Concededly, counsel must understand all relevant details of the client’s

injury and its cause prior to filing a complaint. However, nothing in the discovery

dule requires that a plaintiff “understand” the cause of his injury. The applicable

jurisprudence merely requires that the plaintiff have knowledge of the cause of his

injury sufficient to trigger an investigation into the prospects of filing a lawsuit. It

tolls the statute until the plaintiff knows he may have a cause of action. The

limitations statute is not tolled until the plaintiff acquires all necessary information

to commence a lawsuit. The Third Circuit explained this point when it interpreted

the Supreme Court’s ruling in United States v. Kubrick, 44 U.S. 111, (1979) stating:

[T]he accrual date is not postponed [by the discovery rule] until the injured party knows every fact necessary to bring his action. Rather, the Court indicated that the crucial question in determining the accrual date for statute of limitations purposes was whether the injured party had sufficient notice of invasion of his legal rights to require that he Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 19

investigate and make a timely claim or risk its loss. Once the injured party is put on notice, the burden is on him to determine within the limitations period whether any party may be liable to him.

Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985). This Court concurs with

the Third Circuit’s rationale and hereby applies it to the discovery rule.

¶19 Next, Plaintiff attempts to push the tolling period to November 19, 2019,

when he received his earnings statements from the Social Security Administration.

Pl’s. Opp., p 13. Such documents, he argues, identified the companies that

employed him and the years of employment which was important “because it

allowed Mr. Burt and his counsel to confirm the years of potential exposure at the

Alumina Refinery.” Id. Certainly, Plaintiff’s earning statements would assist in

ascertaining his precise dates of employment with various companies which would

facilitate the filing of an adequate complaint. However, the statements reveal

nothing about an employee’s work injury or the cause thereof. They are thus

irrelevant to the discovery rule tolling analysis. Further, at the November 23, 2022

hearing, Plaintiff’s counsel conceded that his earning statements were not

necessary to determine the cause of his injury.

¶20 Finally, Plaintiff appears to suggest tolling continued under the discovery

rule until July 2022 when Dr. John examined him, reviewed his work history,

reviewed his pulmonary function test results, and connected his lung injury to a

specific exposure. Pl’s. Opp., pp 10-11. This argument is flawed for two reasons.

First, the issue is not when did Dr. John connect Plaintiff’s injury to a specific Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 20

exposure. It is when did Plaintiff know, or should have known, that he suffered an

injury and the cause thereof. In fact, Dr. John did connect Plaintiff’s injury to

asbestos exposure on February 28, 2019, although he did not identify the source

of the exposure. As explained above, upon receipt of Dr. John’s February 28,

2019 Report, Plaintiff or counsel could have easily connected his injury to asbestos

exposure at the refinery where he worked. Second, if Plaintiff’s injury was not

connected to a specific exposure until July 2022, how was he able to file a

complaint on July 15, 2021 and allege a specific source of his asbestos exposure?

Plaintiff’s July 2022 tolling termination argument thus lacks merit.

4) An Attorney-Client Relationship Existed Between Plaintiff and his Counsel as Early as February 7, 2019.

¶21 The undisputed facts establish that an attorney-client relationship existed

between Plaintiff and Attorney Pate as early as February 7, 2019, if not before.

Pursuant to Virgin Islands law governing the lawyer-client privilege,

A “client” is a person, public officer or corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

5 VIC § 852(a)(1). Here, Plaintiff

a. knew, when he first reached out to Attorney Pate, that other workers had sued Hess Refinery and received money;

b. had consulted with Attorney Pate through his staff for some six months prior to issuance of the February 7, 2019 Letter;

c. discussed his work history during the consultation; Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 21

d. was advised by counsel to report for an x-ray screening to look for possible lung damage; and

e. was advised he would do a breathing test if lung damage was found to determine whether he qualified for a lawsuit.

Ex. 4, Pl’s. Opp. to Mot. for Summ. J. (Burt Declaration ¶ 5, Nov. 28, 2022); Ex.

19, SUF (Pate Letter). These undisputed facts establish that Plaintiff consulted

Pate’s firm with a view towards obtaining professional legal services and, in fact,

received professional services (i.e. guidance) regarding steps necessary to pursue

a possible lawsuit. An attorney-client relationship was thus formed no later than

February 7, 2019. Bluebeard’s Castle v. Delmar Mktg., 1995 V.I. LEXIS 15, Civ.

No. 1993-125 at *4 (Super. Ct. Feb. 7, 1995) (finding attorney-client relationship

existed where client understood he would consult with counsel for the sole purpose

of deciding what legal actions, if any, to take against alleged tortfeasor, though he

never asked the attorney to serve as his counsel nor did the attorney offer to do

so.).

¶ 22 Plaintiff disputes that any attorney-client relationship existed before July

21, 2019, when he signed a retainer agreement. In a declaration executed by his

current counsel on November 1, 2022, counsel states, “at the time when my staff

sent the February 7, 2019 Letter, Mr. Burt had not signed a retainer with my firm

and was not my client.” Pl’s. Opp. to Mot. for Summ. J., n 2 (Ex. 131, Declaration

of J. Russell B. Pate In Support of Opposition to Mot. for Summ. J., p 1, ¶ 4). Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 22

However, execution of a retainer or payment of a fee is not required to form an

attorney-client relationship. People of the Virgin Islands v. Carty, 73 V.I. 35, 42

(Super. Ct. 2009) (stating, “an attorney-client relationship is not dependent upon

the payment of a fee nor upon the execution of formal contract.”). It bears noting

that Plaintiff’s counsel took a contrary position on several occasions by

acknowledging the existence of an attorney-client relationship prior to July 21,

2019. This is evidenced by counsel’s assertion of the attorney-client privilege

relative to the very same February 7, 2019 Letter.7 Beyond pointing out that no

retainer was executed until July 19, 2019, Plaintiff has set forth no explanation as

to why the attorney-client relationship did not exist as early as February 7, 2019.

This Court is aware of none.

5) The Knowledge of Plaintiff’s Counsel Is Imputed to Plaintiff.

¶23 Aside from Plaintiff’s knowledge, his counsel also knew of the existence

7 During the deposition of Dr. Andre Galiber concerning the February 7, 2019 Pate Letter, counsel

for Plaintiff stated, “I just want to place an objection on the record, you know, this was a letter to Mr. Burt not to the Imaging Center: and I just want to the reserve any privilege that may be in this document and flag that for the Judge at some point.” Ex. 114 (Deposition of Andre Galiber- Sept. 20, 2022) p 50:17-24. In his response to Defendants’ Statement of Undisputed Fact No. 35, regarding an excerpt from the same letter, counsel stated, “undisputed, but Plaintiff objects on the basis that this letter is privileged information.” SUF 35, Pl’s Response. Finally, in Plaintiff’s November 29, 2022 Response to Defendants’ Supplemental Statement of Undisputed Facts, counsel for Plaintiff, in reference to an Application Form completed by Plaintiff before February 7, 2019, stated “Mr. Burt is waiving privilege over this document [the Application Form] alone for the limited purpose of responding to arguments made by Defendants . . . This is not a broad waiver and Mr. Burt does not waive his attorney-client or work product privileges outside of this limited waiver.” Pl’s. Response to Defs’. SUPP SUF, p 5, n 1. Plaintiff has thus conceded the existence of attorney-client relationship between Plaintiff and attorney Pate from at least February 7, 2019. Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 23

and cause of Plaintiff’s injury as of March 18, 2019. Counsel’s knowledge is

imputed to Plaintiff, as a matter of law, because of the attorney-client relationship.

In Arlington Funding Servs., Inc. v. Geigel, the Virgin Islands Supreme Court

explained that the discovery rule operates not in a vacuum, but in conjunction with

the imputed knowledge rule. 51 V.I. 118, 130 (V.I. 2009), overruled in part on other

grounds by Benjamin v. AIG Ins. Co. of P.R., 56 V.I. 558, 564 (V.I. 2012). It

analyzed the imputed knowledge rule after considering the Restatement (Third) of

Agency, § 5.03, along with case law from Virgin Islands, state, and federal circuit

courts.8 The Supreme Court recognized that the attorney-client relationship is in

fact an agent-principal relationship. Id. at 131 (citing McCarthy v. Recordex Serv.,

Inc., 80 F.3d 842, 853 (3d Cir. 1996)). It held that “information an attorney

receives during the scope of his representation of a client will be imputed onto that

client even if the client does not have actual knowledge of that information.” Id. at

131. Applying this rule in the context of the statute of limitations, the Supreme

Court stated:

8 This Court recognizes that the Supreme Court’s decision in Geigel is a pre-banks decision and does not consider itself to be foreclosed from adopting a different common law rule. However, the Court notes that the Geigel decision was not wholly based on the application of the Restatements. The Supreme Court also considered decisions from this, as well as state and circuit courts. The imputed knowledge rule has been applied by this and other courts and is the soundest rule for the Virgin Islands. Under the circumstances, the Court does not deem it appropriate to depart from the holding in Geigel. See Gov’t of the Virgin Islands v. Connor, 60 V.I. 597, 605 (V.I. 2014), n 1. Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 24

Therefore, as a general rule, the statute of limitations on a client's action will begin to run when the client's attorney knew or should have known about the circumstances giving rise to that claim, even if the client lacks knowledge of the potential claim.

Id. The Court recognized three (3) exceptions to the imputed knowledge rule. It

will not apply if:

1. The fact to be imputed is not material to the agent’s duties;

2. The agent acts adversely to the principal; or

3. The agent is subject to a duty to another not to disclose the fact to the principal.

Id. None of the exceptions apply here. Accordingly, Attorney Pate’s knowledge

regarding the existence and cause of Plaintiff’s injury is imputed to Plaintiff.

Pate’s knowledge is reflected in his February 7, 2019 Letter to Plaintiff and the

report he received from Dr. John on March 18, 2019.9 That knowledge coupled

with Plaintiff’s knowledge of his work history was sufficient to inform Plaintiff that

he had asbestosis and the cause thereof.

¶24 Counsel for Plaintiff admitted as much at the November 23, 2019 Hearing.

9 Although an attorney-client relationship existed as early as February 7, 2019, this Court finds that the privilege was waived with respect to the February 7, 2019 Letter. This occurred when Plaintiff disclosed the letter to a third party, Dr. Coralee Lewis, on February 28, 2019, at the Imaging Center. SUF ¶ 35, Reply Ex. 124 (Deposition of Dr. Coralee Lewis – Excerpt) at 35:3-14; 5 V.I. 852(d)(9) (stating “[t]he privilege is lost if the client waives confidentiality as to one or more issues such as by disclosing privileged communications to a third party or the client or the attorney breaches a duty that is owed to each other.”) Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 25

He argued that it was not until Plaintiff and his counsel met on July 21, 2019 and

discussed his work history that he learned of the cause of his injury. Significantly,

Plaintiff points to no new material information obtained since receipt of Dr. John’s

report on March 18, 2019, that contributed to his knowledge of the cause of his

injury. For these reasons, Plaintiff is deemed to possess the knowledge

communicated to his counsel via Dr. John’s letter on March 18, 2019. See

McKinney Fahie v.Ferguson, 2021 V.I. LEXIS 107, No. ST-20116-CV-638 at *2

(V.I. Super. Mar. 29, 2021) (citing Arlington Funding Servs., Inc. v. Geigel, 51 V.I.

118 (V.I. 2009) (imputing agent’s knowledge to principal).

CONCLUSION

¶25 Viewing the pleadings, affidavits, and other evidence submitted in support

of, and opposition to, the summary judgment motion in Plaintiff’s favor, this Court

concludes that there is no genuine issue of material fact regarding when Plaintiff’s

cause of action arose. As a matter of law, that date is March 18, 2019. As such,

the two-year statute of limitations expired on March 18, 2021. Plaintiff had two

years to investigate and assess the feasibility of filing a lawsuit. Since he did not

file his complaint until July 15, 2021, it is time barred. Accordingly, the Court will

grant Defendants’ Motion for Summary Judgment based on the Statute of

Limitations. An order consistent herewith will be entered contemporaneously. Burt v. Lockheed Martin Corp. and Glencore, Ltd., SX-21-CV-548 2022 VI Super 97P Memorandum Opinion Page 26

___________________________ ALPHONSO G. ANDREWS, JR. Superior Court Judge Attest: TAMARA CHARLES CLERK OF THE COURT

_______________________ COURT CLERK 12-06-2022 ________________________ DATE