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June 4, 2002


The opinion of the court was delivered by: Frederick J. Scullin, Jr., Chief United States District Judge



Plaintiff commenced this action under the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. ("FELA"), on February 3, 2000, and filed an amended complaint on December 7, 2000. Plaintiff claims that he sustained occupational injury, namely bronchial asthma, due to his exposure to toxic substances while in Defendant's employ. Plaintiff further alleges that Defendant was negligent in failing to provide him with a reasonably safe place to work by allowing him to be exposed to various toxic substances and in failing to warn him of such exposures.

Presently before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant's motion rests entirely upon its contention that Plaintiff's complaint is barred by the FELA's three-year statute of limitations. See 45 U.S.C. § 56. The Court heard oral argument in support of, and in opposition to, this motion on December 27, 2001, and reserved decision at that time to provide the parties with an opportunity to submit additional case law to support their respective positions.*fn1 The following constitutes the Court's resolution of the pending motion.


Plaintiff worked for Defendant and its predecessors from July 1955 until December 31, 2000, when he retired. Plaintiff began working for the railroad as a brakeman, and from 1972 until the date of his retirement he worked as an engineer. Plaintiff believes that during the time he was employed with Defendant he worked around the following things, which were harmful to him: brake shoes, diesel fuel oil, grinders, sand and ballast.

According to his medical records, Plaintiff was first diagnosed with and treated for bronchial asthma in May 1985. At that time, Plaintiff was admitted to Crouse Irving Memorial Hospital due to an acute asthma attack. Admitting records indicate that Plaintiff was diagnosed with bronchial asthma and that Plaintiff was asked numerous questions about, among other things, where he worked and the environment in which he worked. At that time, Plaintiff's physician did not discuss with him the cause of his breathing condition; nor did he discuss precautions that Plaintiff could take to avoid future problems.

Plaintiff contends that in 1985 he was not concerned that his employment was the cause of his breathing problems. After 1985, Plaintiff experienced asthma attacks on several occasions that occurred "in bouts." However, nothing in particular appeared to trigger an attack; nor did Plaintiff ever experience an attack at work until the day before his attack in 1998. Plaintiff began treating with Dr. Davin, a pulmonary specialist, on January 1, 1998. Plaintiff asserts that, as a result of his discussions with Dr. Davin, he came to believe that his work was affecting his breathing. Prior to that time, Plaintiff contends that no other physician had ever told him that his work could be the cause of his breathing problems; nor did any other physician advise him to discuss his breathing problems with his employer.


A. Summary Judgment Standard

Summary judgment is appropriate only in circumstances where "the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the burden then shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250 (quotation and footnote omitted); see Fed.R.Civ.P. 56(e) ("an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, . . ."). To meet this burden, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). "Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment." Fincher v. County of Westchester, 979 F. Supp. 989, 995 (S.D.N.Y. 1997) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)). The court, however, must not weigh the evidence but instead is "required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments[.]" Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996) (citations omitted).

B. The FELA's statute of limitations

The FELA provides that "[n]o action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." 45 U.S.C. § 56. In Urie v. Thompson, 337 U.S. 163 (1949), the Supreme Court adopted a "discovery rule" to determine the date of accrual for situations in which "no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time[.]" Id. at 170 (quotation omitted). Under these circumstances, "the afflicted employee can be held to be `injured' only when the accumulated effects of the deleterious substances manifest themselves[.]" Id. (quotation omitted). The Court subsequently applied this "discovery" rule to a negligence action brought under the Federal Tort Claims Act. See United States v. Kubrick, 444 U.S. 111 (1979). In Kubrick, the Court refined the discovery rule, holding that a tort claim does not accrue until the plaintiff has discovered both his injury and its cause, but holding that accrual does not await the plaintiff's awareness that his injury was negligently inflicted. Id. at 120 n. 7, 122.

The Second Circuit has restated this discovery rule, holding that a claim accrues "when the plaintiff in the exercise of reasonable diligence knows both the existence and the cause of his injury." Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080 (2d Cir. 1988) (FTCA claim) (citing United States v. Kubrick, 444 U.S. 111, 122-25, 100 S.Ct. 352, 359-61, 62 L.Ed.2d 259 (1979)); see also Anthony v. Consolidated Rail Corp., No. CIVA96-CV-1643RSPDH, 1998 WL 696288, *3 (N.D.N.Y. Sept. 30, 1998) (citing cases applying the same standard to FELA claims). Under this formulation of the discovery rule, a plaintiff must "exercise reasonable diligence in discerning both the fact and cause of [his] injuries." Anthony, 1998 WL 696288, at *3 (citation omitted). Moreover, "`[b]oth components require an objective inquiry into when the plaintiff knew or should have known, in the exercise of ...

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