MGS Obtains Summary Judgment in FELA Toxic Exposure Case
MGS partner Sean Gingrich obtained summary judgment for a Class I railroad on a retired employee’s FELA claim alleging he contracted lung cancer due to exposure to diesel exhaust during his employment. Under the FELA, no action may be maintained “unless commenced within three years from the day the cause of action accrued” and compliance with the three-year statute of limitations is a “condition precedent” to recovery.
Plaintiff was first diagnosed with lung cancer in 2013 but did not file his complaint until February 2019. MGS moved for summary judgment because the claim was barred by the three-year statute of limitations. Plaintiff argued that the statute of limitations clock did not begin to run until he knew what caused his cancer. He claimed to have asked two doctors about the cause of his cancer, neither of which identified a definitive cause, and that he had no reason to suspect a work exposure cause until he saw a television commercial in 2017. He argued it was for the jury to decide whether he should have suspected the cause more than three years before he filed the complaint.
However, under controlling federal law an FELA plaintiff has an affirmative duty to investigate the potential cause of his injury. As discussed in Fries v. Chicago & Northwestern Transportation Company, upon experiencing symptoms, a plaintiff has a duty to investigate both the injury and any suspected cause. For the statute to begin to run “the injured plaintiff need not be certain which cause, if many are possible, is the governing cause but only need know or have reason to know of a potential cause.” When a plaintiff is “armed with the facts about the harm done to him,” he can protect himself against the running of the statute of limitations by seeking advice in the medical and legal community about possible causes.
The Court agreed with MGS that the discovery and accrual rules under the FELA put an affirmative duty on the plaintiff to exercise reasonable diligence within the time period to determine the cause of his injury. Because the plaintiff could not demonstrate that he took any action in the three-year statutory period, let alone that he exercised his duty to reasonably investigate the cause of his cancer, the Court granted summary judgment for MGS’s client and further denied the plaintiff’s motion to reconsider.
