MGS Attorneys Sean Sullivan and Laura Platt recently secured a summary judgement win on behalf of BNSF Railway Company in the Circuit Court of Cook County, Illinois. The plaintiff alleged that exposure to toxic substances caused his bladder cancer and the occupational lung disease – asbestosis.
MGS argued that the plaintiff’s complaint was not filed timely in accordance with the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq., because it was filed at least three years and three months after the Plaintiff consulted with counsel in order to pursue toxic exposure claims against BNSF. Claims under the FELA must be filed within three years from the day the cause of action accrued.
The plaintiff argued that none of the plaintiffs treating physicians ever indicated to him that his bladder cancer was caused by exposure to asbestos or diesel fumes so, therefore, the statute of limitations “was tolled until he reasonably should have known that occupational exposure was a probable cause of his bladder cancer.”
Relying on Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092 (7th Cir. 1990 and Axe v. Norfolk S. Ry., 2012 IL App (5th) 110277, Judge Clare McWilliams granted BNSF’s motion for summary judgment. The court held that “it is not necessary that the plaintiff possess actual knowledge of causation in order to find that the cause of action has accrued,” and that when a plaintiff is “armed with the facts” they can protect themselves against the running of the statute of limitations by seeking advice in the medical and legal community about possible causes. The court found that “at the latest, the plaintiff should have known about the cause of his condition by no later than three years after the date he retained legal counsel in order ‘to pursue toxic exposure claims against BNSF.’”
The court therefor found that the FELA three-year statute of limitations barred the plaintiff’s cause of action. The plaintiff chose not to appeal Judge McWilliams’ order.
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