United States District Court, Northern District of New York
June 4, 2002
ROBERT WAGNER, PLAINTIFF,
CONSOLIDATED RAIL CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Frederick J. Scullin, Jr., Chief United States District Judge
MEMORANDUM-DECISION AND ORDER
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
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
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 reasonable diligence, the
essential facts of injury and cause.'" Id. (quoting Fries, 909 F.2d at
1095 (citing Urie, 337 U.S. at 170 (did plaintiff have reason to know he
was injured at an earlier date) (other citation omitted)).
Although this rule benefits a plaintiff who is "`blamelessly ignorant
of the existence or cause of his injury[,]'" id. at *6 (quoting
[Barrett, 689 F.2d at 327] (citing Stoleson, 629 F.2d at 1269), it "also
imposes on an injured plaintiff an affirmative duty to investigate the
facts of his injury and its cause once alerted by symptoms." Id. (citing
Fries, 909 F.2d at 1095). As the Anthony court explained, "`to apply
any other rule would thwart the purposes of repose statutes which are
designed to apportion the consequences of time between plaintiff and
defendant and to preclude litigation of stale claims.'" Id. (quotation
omitted). In other words,
"[w]hat the Urie court did not do was provide an escape
for plaintiffs who are aware [or should be aware] that
some type of injury exists yet who choose to ignore it
by failing to seek diagnosis and investigate the cause.
. . . The tolling permitted by Urie only extends the
limitations period to the date when the injury manifests
itself, not beyond."
Id. (quoting Fries, 909 F.2d at 1095 (citation omitted)).
In the present case, Plaintiff does not dispute that he knew of his
injury in 1985, when he was first diagnosed with bronchial asthma.
However, he contends that there is an issue of fact as to when he knew or
reasonably should have known the cause of his respiratory illness. To
support this position, Plaintiff relies upon the fact that when he was
treated at the emergency room of Crouse Irving Memorial Hospital on April
30, 1985, for respiratory difficulty, no reference was made in his
medical records to his employment. Nor, according to Plaintiff, did any
physician, prior to January 1998, indicate to him that the cause of his
respiratory problem might be his employment.
To the contrary, Defendant asserts that when Plaintiff was treated for
his first asthma attack in 1985, the admissions records and notes
indicate that he was diagnosed with bronchial asthma and that he reported
exposures to dust, fuel or diesel fumes and braking material in the
context of his employment with Defendant. Defendant also notes that
Plaintiff's deposition testimony indicates that he was concerned enough
about breathing conditions in his work place in the 1970s to request a
mask, which he routinely wore to combat dust while working around rail
grinders on the railroad. Plaintiff also testified that as a result of
his work as an Air Force safety supervisor in the 1980s, where he was
"cross-trained in safety" and "got involved in the OSHA standards," he
came to believe that brake shoes were dangerous.
The fact that a physician may not have specifically diagnosed the cause
of Plaintiff's bronchial asthma until 1998 is not dispositive of the
issue of when Plaintiff knew or should have known the cause of his
injury. Plaintiff's deposition testimony clearly indicates that he had
all the essential facts he needed to investigate whether his injury was
caused by his employment once he was diagnosed with bronchial asthma in
1985. Plaintiff acknowledged that in the 1970s he requested a mask to
protect him from the dust and that in the 1980s he came to believe that
brake shoes were dangerous when he was cross-trained in safety and became
aware of OSHA standards during his military service. This information
together with his diagnosis of bronchial asthma in 1985 imposed upon
Plaintiff an affirmative duty to investigate the cause of his illness.
Having failed to make such an inquiry, Plaintiff cannot now rely upon the
fact that no physician specifically informed him that his bronchial
asthma might be caused by his employment until 1998 to extend the
Applying the standards set forth in Urie and Kubricki to the facts in
this case, the Court concludes that Plaintiff's FELA claim accrued at the
latest in 1985, some fifteen years before he filed the present action.
Accordingly, the Court holds that Plaintiff's FELA claim is barred by
that statute's three-year limitations period.
After carefully reviewing the file in this matter, the parties'
submissions and oral
arguments, and the applicable law, and for the
reasons stated herein and at oral argument, the Court hereby
ORDERS that Defendant's motion for summary judgment is GRANTED; and the
ORDERS that the Clerk of the Court is to enter judgment in favor of
Defendant and close this case.
IT IS SO ORDERED.