William Johns et al. v. Eighty–Four Lumber Co. et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion # 206.00)

FACTS

This action arises out of the alleged exposure of the plaintiff, William Johns, to various asbestos-containing products while employed as a railroad worker during the 1970s through 2004, and while he performed brake and automotive car work, home repairs and improvements during from the 1960s through 1979.   The plaintiff expressly alleges that “all construction, renovation, home repair and friction product exposure occurred prior to December 5, 1980” and that such exposure, in Connecticut, contributed to his contraction of “asbestos-related asbestosis and other asbestos-related pathologies.”   The complaint is directed at multiple defendants.

Count one alleges a violation of the Connecticut Product Liability Act, General Statutes § 52–572m et seq.   The second count claims that, since 1929, the defendants possessed medical and scientific data, studies and reports, all indicating that asbestos-containing products were hazardous to the health and safety of the plaintiff and to all humans who were exposed to such products.   The plaintiff alleges that, by failing to acknowledge or publish such material, the various defendants' conduct was grossly negligent, wilful, wanton, malicious and outrageous.   Count three alleges violations of the standards contained in the Federal Employers' Liability Act [FELA], and is directed solely against the defendants, Metro–North Commuter Railroad Company and Consolidated Rail Corporation.   The plaintiff claims that he was exposed to asbestos-containing products “while working on or about railroad cars, boilers, locomotives and shop areas,” and “[a]s a result of his occupational exposure to asbestos, asbestos-containing products and the resultant inhalation of airborne asbestos fibers, [he] has sustained ․ asbestos-related pleural disease.”

The moving defendant, Metro–North Commuter Railroad, filed its operative motion for summary judgment on October 9, 2013 ¹ as to count three of the plaintiff's complaint on the ground that the plaintiff's action is barred by the statute of limitations contained in FELA, 45 U.S.C. § 56, which is three years from the date the cause of action accrued.   The defendant emphasizes that, under FELA, a cause of action accrues when the plaintiff knows, or should have known, that an injury is work related.   The defendant has filed a memorandum and various exhibits in support of its position.   The plaintiff's opposition, also accompanied by exhibits, counters that the evidence establishes that the plaintiff filed his complaint within three years of the date he discovered he had contracted asbestosis, which was the date he was diagnosed with asbestosis.   The defendant's reply brief claims that the plaintiff misinterprets the FELA standard in determining the accrual of a cause of action and, further, contends that certain exhibits submitted by the plaintiff are unauthenticated and inadmissible.

DISCUSSION

A motion for summary judgment may be used to raise the issue of whether a claim is barred by a statute of limitations when the “material facts concerning the statute of limitations [are] not in dispute.”  Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).   Further, “[s]ummary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).  “The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002), “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).

In the present case, the defendant observes that it is undisputed that the plaintiff worked for its codefendant, Consolidated Rail Corporation, beginning in July of 1978.   The defendant further notes that it is further undisputed that the plaintiff worked for the defendant, itself, from 1983 until May of 2004.   The defendant also acknowledges that the plaintiff's deposition testimony revealed that he was allegedly exposed to asbestos at Grand Central Station and the Madison Avenue Yard. This alleged exposure occurred while the plaintiff overhauled the steam lines, brake shoes and air brake gaskets of diesel cars and when he traveled through unvented underground areas that contained insulated steam piping, all during the time he worked for the defendant from 1983 to 1987.   The defendant argues that the plaintiff knew that asbestos was dangerous in 2003, when he saw television advertisements concerning asbestos and mesothelioma.   It emphasizes that the plaintiff has testified that he had breathing difficulties and symptoms of his asbestos-related disease by 2003, that he had breathing problems since 2000 that were attributed to occupational exposure, and that when he went out on disability in 2004 he cited brake shoe dust exposure as a reason.   Accordingly, the defendant concludes that the plaintiff's FELA cause of action accrued by 2003.   Because the plaintiff did not commence its action until April 16, 2008, the defendant contends that his action is barred by FELA's three-year statute of limitations.

The plaintiff responds that he commenced his action within three years of the date he discovered he had asbestosis, which was September 7, 2005, the date of his medical diagnosis.   The plaintiff argues that, although his breathing problems began prior to 2005, there was no evidence to suggest that these problems were ascribable to occupational exposure to asbestos.   Evidence was submitted as follows.   In 2004, the plaintiff applied for railroad retirement disability benefits on the basis of several medical issues, including, but not limited to, breathing problems.   The medical documentation supporting the plaintiff's disability application referred to breathing problems, attributable to causes such as chronic obstructive pulmonary disease (COPD), asthma and sleep apnea.   Such documentation did not reference occupational asbestos exposure with regard to the plaintiff's breathing difficulties.   The plaintiff received an award of disability benefits and the rationale for the decision accompanying the award decision's rationale listed several medically-related reasons, including his breathing problems, but nothing citing to workplace asbestos exposure.

Section 56 of 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.   The statute does not define the word “accrued,” but courts have interpreted the term in light of the legislative judgment behind statutes of limitation, which is “the right to be free of stale claims in time comes to prevail over the right to prosecute them.”  (Internal quotation marks omitted.)  United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).   Mindful of this purpose, courts have recognized that, with respect to occupational harms, initial exposure to a harmful substance will not necessarily represent notice of the invasion of a party's legal rights.

In the seminal United States Supreme Court case of Urie v. Thompson, the plaintiff brought a FELA claim against his railroad employer on the basis of his silicosis, allegedly contracted as a result of work-related exposure.   The court determined that the statute of limitations did not begin to run when the plaintiff first contracted silicosis, which was years prior to the manifestation of any symptoms.   Rather, the court emphasized that the plaintiff's cause of action accrued at the time his symptoms manifested themselves.   The court reasoned that “no specific date of contact with [a] 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, consequently the afflicted employee can be held to be injured only when the accumulated effects of the deleterious substance manifest themselves.”  (Internal quotation marks omitted.)  Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949).   Subsequently, the term “accrual” was further clarified in a later Supreme Court case in the context of the Federal Tort Claims Act, 28 U.S.C. § 2401(b) (FTCA).  United States v. Kubrick, supra, 444 U.S. 111.   The Kubrick court emphasized that, under the FTCA, a claim accrued when the plaintiff discovered the existence of the injury and the cause of that injury.²  The various federal courts of appeal have further refined the “discovery rule” with respect to the issue of when a cause of action accrues for purposes of FELA's statute of limitations.   For example, a plaintiff is charged with “the exercise of reasonable diligence” in discovering both the existence and the cause of the injury.  (Emphasis added;  internal quotation marks omitted.)  Mix v. Delaware & Hudson Railway Co., 345 F.3d 82, 86 (2d Cir.2003), cert. denied, 540 U.S. 1183, 124 S.Ct. 1423, 158 L.Ed.2d 86 (2004).   In addition, the plaintiff has the burden to establish that the cause of action was commenced within the three-year period.  Matson v. Burlington Northern Santa Fe Railroad, 240 F.3d 1233, 1235 (10th Cir.2001).   The three-year period begins to run when the plaintiff has reason to know that he suffers from a job-related injury and that his job duties were a potential cause of his injury.  Tolston v. National Railroad Passenger Corp., 102 F.3d 863, 866 (7th Cir.1996).   This is an objective inquiry, which places an affirmative duty on the plaintiff to investigate what caused his injury.  Id., 865.   As one court summarized the rule, “a cause of action accrues for statute of limitations purposes when a reasonable person knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause.  Fries v. Chicago & Northwestern Transportation Co., 909 F.2d 1092, 1095 (7th Cir.1990).

The defendant in the present case cites to several cases wherein the evidence demonstrated that the plaintiffs failed to exercise reasonable diligence with respect to acquiring knowledge of their respective injuries and the governing causes.   In Fries v. Chicago & Northwestern Transportation Co., supra, 909 F.2d 1092, for example, the District Court granted the defendant railroad's motion to dismiss on the basis that FELA's statute of limitation had run on the plaintiff's claim and the plaintiff appealed.   The issue was whether the plaintiff's action had accrued in 1981, when the plaintiff first noticed a decline in his hearing, or in 1985, when the plaintiff had actual knowledge that his hearing deficit was work related through a medical diagnosis.   The evidence provided that although the plaintiff did not know that his hearing difficulties were attributable to work, he also indicated that he could not ascribe the hearing loss to a cause other than work.   He admitted that, in 1981 and in 1982, the frequency of the ringing in his ears would increase toward the end of his work day, worsen throughout the work week, and would require periods of silence before he could recuperate.   He and his wife admitted that they both suspected that he had a hearing loss in 1980 and 1981.   The plaintiff was only diagnosed with a hearing loss when he was required to submit to a physical following an unrelated medical leave.   In affirming the District Court's decision, the Court of Appeals agreed with the lower court's determination that “a reasonable person, when confronted with the facts the plaintiff possessed in 1981 about his hearing loss and nature of the injury as described above, would have investigated the cause of his injury.”  Id., 1097.

In Townley v. Norfolk & Western Railway Co., 887 F.2d 498 (4th Cir.1989), the plaintiff claimed that the District Court erred in granting a directed verdict in favor of the defendants, based upon its finding that the plaintiff's claim was barred by FELA's statute of limitations.   The issue was whether the plaintiff's cause of action accrued in 1980, when the plaintiff admitted in correspondence with the railroad's general claims manager that he suspected he had black lung and that such condition was caused by his work at the railroad, or in 1984, when the plaintiff actually was diagnosed with the condition.   The evidence revealed that the plaintiff had worked over thirty years in and around coal dust, was often covered in coal dust, that he breathed such dust into his lungs, and that he frequently coughed up such dust.   He suffered from respiratory problems for a number of years and, and during this period, his doctor treated him for diabetes, heart disease and hypertension.   The physician never diagnosed the plaintiff with black lung, but the plaintiff had testified that his physician neither possessed the expertise, nor the equipment, to make an accurate black lung diagnosis.   In 1980, the plaintiff testified that he saw a newspaper notice encouraging railroad workers to apply for black lung benefits.   The plaintiff initiated correspondence with a general claims agent to receive the appropriate forms, but failed to obtain the requisite physical examination at that time.   The plaintiff claimed that he was unaware that he had black lung until he was diagnosed with the condition in 1984.   The Court of Appeals emphasized that a reasonable fact finder could reach but one conclusion—that the plaintiff's cause of action accrued no later than 1980—when the plaintiff admitted in his correspondence to the claims manager that he suspected that he suffered with black lung and that his condition was caused by his employment with the railroad.

In Vincent v. CSX Transportation, Inc., 145 N.C.App., 552 S.E.2d 643 (N.C.App.2001), rev. den., 354 N.C. 371, 557 S.E.2d 537 (N.C.2001), the plaintiff appealed from the trial court's granting of the defendant's summary judgment motion on the basis that his cause of action was barred by FELA's statute of limitations.   Despite his hospitalization in 1984 for breathing difficulties, the plaintiff never informed any physicians of his dust exposure at his place of employment, a railroad, or of his own belief that workplace dust conditions caused or contributed to his breathing problems.   Further, the plaintiff's deposition testimony revealed that, despite the fact he coughed up dust and, despite the fact that, from 1984, he believed that dust conditions at the railroad contributed to his breathing difficulties, he never asked the doctors the cause of his breathing problems.   The plaintiff ceased working for the defendant in 1986, and did not seek any medical treatment or diagnosis until he consulted with an attorney in 1998.   Accordingly, the North Carolina Court of Appeals concluded that the plaintiff did not fulfill his affirmative duty to investigate the suspected causes of his breathing problems.   The court emphasized that once the plaintiff's breathing problems had manifested themselves and he had ascribed these problems to workplace dust, he possessed sufficient information to know, or he should have known, that he had been injured by his employment with the railroad.

The facts in the present case are distinguishable from those found in the cases cited by the defendant.   In this case, the evidence reveals that the plaintiff filed an application for Railroad Retirement Disability benefits on August 31, 2004.   The plaintiff listed the following conditions as the basis for the disability application:  “Right lung paralyzed during shoulder surgery.  [D]ifficulty breathing.  [H]ypertension.  [O]n oxygen at night.”   The application inquired as to what changes occurred in the plaintiff's work circumstances, the dates they occurred, and why his condition made these changes necessary.   Concerning changes in the work circumstances, the plaintiff responded that he “[w]asn't able to go down on floor to supervise people under his authority”;  the date this occurred was April 30, 2000;  and the condition necessitating the change in work circumstances was “[b]reathing difficulty, legs and feet pain, arthritis, swelling in both.”   The plaintiff described his inability to work as follows, he was unable:  “to go out to yard, climb on equipment, go up or down stairs.   Has oxygen with him at all times.   Great difficulty breathing.”   The plaintiff indicated on the application the date upon which he could no longer work due to his condition was May 5, 2004.   The plaintiff was informed by a letter, dated December 29, 2014, that he had been awarded disability benefits.   The “Disability Decision Rationale” referenced the plaintiff's COPD, rotator cuff, restricted ventilatory defect, edema and blood pressure.   It did not reference an asbestos-related injury for its decision.   The plaintiff's medical records in support of his application did not indicate that any of his medical problems were attributable to work-related asbestos exposure.   Rather, his medical reports ascribed his breathing problems to such causes as COPD and sleep apnea.   His medical records also consistently revealed that the plaintiff had suffered shortness of breath since April of 2000, when he suffered paralysis of the right hemidiaphragm following a nerve block administered for rotator cuff surgery.   In November of 2004, the plaintiff relocated to North Carolina, where a new doctor diagnosed him with asbestosis on September 7, 2005.   The plaintiff commenced this action by service of process on the defendant on April 16, 2008.

Here, the plaintiff testified that, while watching television advertisements in 2003, he learned that asbestos was “no good,” and “not a very good thing.”   The plaintiff further testified that, although the ads made him” aware of the dangers of it,” he wasn't bothered because he wasn't “involved with it on the railroad at that time.”   Although the plaintiff testified that he saw such television advertisements as early as 2003, the court finds that this evidence is insufficient to dispel all genuine issues of material fact concerning whether the plaintiff should have known of his injury as of 2003.   The plaintiff's medical documentation offered in support of his 2004 disability application imputed his existent breathing problems to a variety of causes—none of which were attributed to work-related asbestos exposure, and the plaintiff testified that at the time he viewed the ads, he was not working with asbestos at the railroad.

The court finds that there is a genuine issue of material fact with respect to when the plaintiff's cause of action accrued for purposes of the statute of limitations contained in the Federal Employer's Liability Act. Accordingly, the court denies the defendant's motion for summary judgment with respect to count three of the plaintiff's complaint.

BELLIS, J.

FOOTNOTES

FN1. The defendant filed its original motion for summary judgment on August 8, 2013.   Subsequently, it filed a “redacted” motion for summary judgment on October 9, 2013.   The parties appeared for argument before the court on October 10, 2013..  FN1. The defendant filed its original motion for summary judgment on August 8, 2013.   Subsequently, it filed a “redacted” motion for summary judgment on October 9, 2013.   The parties appeared for argument before the court on October 10, 2013.

FN2. Although the Kubrick case was decided under the FTCA, the Kubrick court noted that the approach utilized in Urie v. Thompson, which was decided under FELA, had previously been utilized in medical malpractice claims under the FTCA..  FN2. Although the Kubrick case was decided under the FTCA, the Kubrick court noted that the approach utilized in Urie v. Thompson, which was decided under FELA, had previously been utilized in medical malpractice claims under the FTCA.

Bellis, Barbara N., J.