Opinion
Index No. 904532-20
02-26-2024
Joseph Lang, Plaintiff, v. CSX Transportation, Inc., Defendant.
Attorneys for Defendant Burns White LLC By: T. H. Lyda, Esq., David R. Chludzinski, Esq., Nixon Peabody LLP By: Andrew C. Rose, Esq. Attorneys for Plaintiff Finn Law Offices By: Ryan M. Finn, Esq.
Unpublished Opinion
Attorneys for Defendant Burns White LLC By: T. H. Lyda, Esq., David R. Chludzinski, Esq., Nixon Peabody LLP By: Andrew C. Rose, Esq.
Attorneys for Plaintiff Finn Law Offices By: Ryan M. Finn, Esq.
David A. Weinstein, Acting Supreme Court Justice.
In this action brought under the Federal Employers' Liability Act ("FELA"), plaintiff Joseph Lang alleges by complaint filed July 14, 2020 that during his employment with CSX Transportation, Inc. ("CSX") over "a number of years," he worked in "several heavy labor mechanic and foreman related positions that involved and required plaintiff to perform various repetitive tasks, including, but not limited to, using power and hand tools such as wrenches, hammers, spike mauls, hydraulic tampers and spiker guns" (Complaint ¶ 6). During this time, he "sustained injuries including bilateral carpal tunnel repetitive trauma, shoulder and arm injury caused by the conditions in the workplace that were not reasonably safe" (id. ¶ 7). Plaintiff argues that by failing to take steps to respond to the risks of carpal tunnel syndrome ("CTS"), and to provide plaintiff a safe workplace, CSX violated FELA (id. ¶¶ 8-9).
The complaint asserts that plaintiff was caused to seek medical care on August 1, 2019 for "the permanent bilateral injuries to his shoulders, arms, hands and wrists and the bones, muscles, tissues, ligaments and internal parts thereof" resulting from his work at CSX (id. ¶ 10). According to the allegations in the complaint, it was only "after plaintiff was treated by his physician was he informed that his permanent injuries were caused by repetitive trauma due to activities performed at the work place for defendant CSX" (id.).
Issue was joined and, following the close of discovery, defendant moved for summary judgment on the ground that the action is barred by FELA's three-year statute of limitations as provided under 45 U.S.C. § 56. Both parties rely primarily on the transcript of plaintiff's deposition testimony ("Lang Tr") in support of and in opposition to the motion (see Attorney Affirmation in Support of Defendant CSC Transportation, Inc.'s Motion for Summary Judgment of T.H. Lyda, Esq., dated October 30, 2023 ["Lyda Aff"] ¶ 3, Ex B [excerpts from Lang Tr]); Memorandum of Law in Opposition to Summary Judgment, dated December 13, 2022 at 1, Ex 1 [entire Lang Tr]). That testimony, as relevant here, is as follows:
Plaintiff Joseph Lang was 60 years old at the time of his deposition, and he confirmed that he was pursuing damages in this action solely for CTS in his hands (Lang Tr at 6-8). According to Lang, his injuries developed over time due to his job duties through his employment with CSX and, in 2019, his condition worsened to the point that he could no longer perform his work (id.). Lang testified that the problems with his hands first occurred while he was working at what he referred to as the "auto site" at CSX (id. at 35). He began working with CSX at this site on October 20, 2003, and the "problems with [his] carpal tunnel began there in, let's say, '06, '07" (id. at 35). At that time, Lang was a "stevedore clerk", but his duties were primarily that of a stevedore, since he had to assist with physically unloading automobiles from train cars (id. at 100-101). It was during this work that his CTS symptoms first developed in his hands (id. at 117-118; 124-125). In 2009, Lang transferred to the purchasing and material shop, and then to CSX's diesel shop as the purchasing and materials clerk (id.).
During 2009, Lang took a leave of absence from CSX for personal reasons unrelated to any physical injuries (id. at 36). He returned to CSX in January 2010, first at the "Lab Tower" where he learned how to switch trains to differing tracks, but he later transferred to a clerk position in the CSX diesel shop (id.). In 2012, at the age of 50, he returned to the auto site as a stevedore, but in 2014 he decided that this work was too difficult and was exacerbating his CTS symptoms, so he served primarily in a clerical roll until a position opened in the diesel shop to which he returned (id. at 37; 133-135; 143-144). In 2015, he took a clerical position at the auto site (id. at 37-38). At this time, his CTS symptoms would flare up once every month or two, but the discomfort did not stop him from working, as he was primarily experiencing numbness in his hands (id. at 148).
In 2019, Lang could not hold anything in his hands and could no longer ignore the condition (Lang Tr 148, 178). Therefore, for the first time, he decided to seek a medical evaluation of his hands (id. at 148, 178, 199). He continued to work for CSX, and still did so at the time of his deposition in July 2022, serving as a foreman at the auto site - a position which does not require him to engage in "intense labor" (id. at 42-44).
As for his CTS symptoms, Lang confirmed that when they started sometime between 2006 and 2007, he had "numbing" and "twitching" that would "come and go," such that "some days it was harder to work" (id. at 38). From 2006 through 2008, "[he] ended up using [his feet]," learning "how to use [his] feet a little more to unhook the cars" (id. at 38-39).
Plaintiff asserted that his CTS symptoms were "absolutely" work related (id. at 39, 41). He said that at the time they arose, he did not give the discomfort much thought, but just worked through the pain (id. at 40). He explained that he is not the type of person that visits a doctor to seek medical treatment "unless it gets to the point where [he] can't function" (id.). According to Lang, "he had tunnel vision and wasn't thinking of this as mindful or objective as a man who sees that the demise of [his] body came [as a] risk of making more money" (id. at 226).
The Parties' Arguments
Based on Lang's deposition testimony, defendant contends that plaintiff had actual knowledge of his injury no later than 2007, when he first experienced the manifestation of his CTS symptoms in the form of "numbing" and "twitching" in his hands, and which he recognized as a condition that he had never experienced before he started working at CSX (Memorandum of Law in Support of Defendant's Motion for Summary Judgment, dated December 13, 2023 at 9). CSX also argues that plaintiff's testimony establishes that he was aware that it was his work activity that was causing his CTS symptoms (id.). As a result, according to defendant, Lang had a duty to investigate his symptoms in 2007, and the three-year statue of limitations under FELA commenced running at that point (id. at 10). Thus, the complaint he filed in 2020 was untimely and must be dismissed (id. at 12).
Plaintiff's argument is that because Lang did not perceive his intermittent pain as a significant health concern until he was compelled to seek medical attention in 2019, there is a question of fact as to when the FELA three-year statute of limitations commenced (Memorandum of Law in Opposition to Summary Judgment Application, dated December 13, 2022 at 5-6).
Discussion
In enacting FELA, the federal government "superceded the common law and state laws, constitutional and statutory, relating to the liability of railroads for injury to employees in interstate commerce, and the FELA remedy is exclusive" (Pappalardo v Long Is. R.R. Co., 11 Misc.3d 744, 748 [Sup Ct Kings County 2006], affd 36 A.D.3d 878 [2d Dept 2007]). As a result, "FELA cases tried in state courts use state procedural rules, but the substantive law is federal" (id.).
The standard for summary judgment is thus set by New York law, under which the movant has the burden to establish its position "sufficiently to warrant the court as a matter of law in directing judgment" in its favor (see Friends of Animals, Inc. v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067 [1979], quoting CPLR 3212[b]). Initially, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any genuine material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The failure to make this showing mandates denial of the motion, regardless of the opposing papers' sufficiency (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). If a prima facie showing is made, the burden shifts to the party opposing the motion to come forward with evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).
Substantively, the sole question before me is whether plaintiff commenced his FELA action outside the applicable statute of limitations. In accordance with 45 U.S.C. § 56, such an action "must be commenced within three years from the day the cause of action accrued" (Pagano v Long Is. R. R. Co., 5 A.D.3d 451, 452 [2d Dept 2004]). Since plaintiff filed his complaint on July 14, 2020, if his cause of action accrued prior to July 14, 2017, his action would be barred by FELA's statute of limitations.
A FELA claim "accrues when a reasonable person knows, or in the exercise of due diligence should have known, of both the injury and the cause of that injury" (id.) In other words, "the FELA statute of limitations accrues when the injury 'manifest[s]' itself, taking into account whether the plaintiff 'should have known of his injury'" (Mix v Delaware and Hudson Ry. Co., 345 F.3d 82, 86 [2d Cir 2003], quoting Urie v Thompson, 337 U.S. 163, 170 [1949]).
Under the "discovery rule", the plaintiff's knowledge of an actual diagnosis is irrelevant; rather, plaintiff has a "duty of exercising due diligence based upon strong indications that he did, in fact, have an injury" (Mix, 345 F.3d at 87); see also Johnson v National R.R. Passenger Corp., 2007 WL 2790028, *4 [ED NY 2007] [the "discovery rule" places "an affirmative duty to investigate the facts of [one's] injury and its cause once alerted by symptoms"]; Wagner v Consolidated Rail Corp., 206 F.Supp.2d 339, 342 [ND NY 2002] [same]). Under this standard, a plaintiff may not "avoid the running of the limitation period by arguing that he was unsure whether work was the predominant cause of his injury" (Hitchcock v National Railroad Passenger Corp., 20 F.Supp.2d 429, 432 [ND NY 1998].). Rather, "once an employee knows or has reason to know that work is a potential cause of his known injury the limitations period begins to run and a plaintiff bears the burden of investigating the cause of the injury" (id.). While these standards appear straightforward, their application becomes complicated in the case of gradual injuries, i.e., those "which occur gradually, over long periods of time, due to ongoing exposure to harmful working conditions" (Mix, 345 F.3d at 86). Specifically using CTS as an example of such, the Court explained the problem as follows:
"Whereas a longshoreman whose leg is crushed by a container shipment immediately knows of both the existence and cause of his injury, a white-collar worker who feels slight, intermittent pain in her wrist may not know for many years that she has carpal tunnel syndrome as a result of her working conditions. Even a plaintiff who is aware of the existence and cause of his gradual injury may not have an adequate remedy. A plaintiff... may be faced with the choice of filing suit prematurely, which may preclude a full recovery and could result in him being declared unfit to work, or waiting until the gradual injury becomes serious enough to render him unfit to work, in which case the claim may be barred as untimely. Either result would be inequitable and undermine the spirit of the FELA, which we must interpret broadly to effectuate its remedial purpose" (id. at 88 [emphasis added]).
In Mix itself, the plaintiff was aware of his injury (hearing loss) - and knew it had been caused by workplace conditions - at least six years prior to his bringing suit (see id. at 87). But the injury grew worse over time, until he was dismissed from his job for failing a hearing test two months before commencing suit (see id. at 85).
In addressing such a circumstance, the Second Circuit Court of Appeals recognized that notwithstanding the employee's earlier awareness of the gradual injury "a plaintiff may recover for distinct injuries he suffers during the three-year period preceding the suit" (345 F.3d at 88 [emphasis added]). In an effort to develop a "bright-line" rule on how to determine when an injury is "distinct," the Mix Court looked to the Sixth Circuit's decision in Fonseca v Consolidated Rail Corp. (246 F.3d 585 [6th Cir 2001]), a case in which the plaintiff developed CTS as a result of his employment as a railroad laborer from 1967 through 1997 (id. at 586-587). In the summary judgment motion before the Court in Fonseca, plaintiff's deposition testimony revealed that he had pain in his hands from his railroad work that caused repetitive, but temporary, discomfort, until sat some point between 1996 and 1997, when he claimed that the pain became permanent due to the cumulative effects of his harmful working conditions (id. at 587). The Sixth Circuit distinguished between the "temporary pain" initially experienced by plaintiff, and the "cumulative injury" that ultimately resulted in permanent, continuous pain, finding that the latter "may comprise an injury distinct from the temporary symptoms he previously experienced" for purposes of its accrual (Id. at 590-91).
Adopting the reasoning of Fonseca, the Second Circuit held that a plaintiff may maintain a claim based on the "accumulated effects" of harmful working conditions if "he proffers evidence suggesting that his initial symptoms were temporary in nature, and based upon their accumulation became permanent injuries only during the three-year period preceding his suit" (345 F.3d at 90-91).
Mix also recognizes that a "plaintiff may assert a claim for 'aggravation' of an existing injury, provided there is evidence that the additional damage was caused by a distinct act of negligence of which the plaintiff became aware only during the three-year period preceding his suit" (345 F.3d at 91). There is no evidence of anything like this in the record here.
I find the analysis in Fonseca and Mix to be persuasive. Thus, with these holdings in mind, I come to the following conclusions:
The Second Circuit's decision here is not binding on this Court (see People v Mercado, 181 Misc.2d 614, 617-618 [Sup Ct, Bx County 1999]), and the principles it set forth in Mix do not reflect anything like a consensus, even among other federal appellate courts. Some courts, for example, have treated FELA claims for gradual injury under the "continuing tort" doctrine, and found each successive injury to be timely when it accrued, regardless of when the initial injury was or should have been discovered (see Alston v Hormel Foods Corp., 730 N.W.2d 376, 386 [Neb 2007] [collecting federal appellate caselaw for and against this position]). Other circuits have adopted a stricter version of the discovery rule, holding that the cause of action accrues in a gradual injury case when plaintiff first noticed the injury, which would appear to render untimely even a distinct injury arising during the limitations period (see e.g. Fries v Chicago & Northwestern Transp. Co., 909 F.2d 1092, 1095-96 [7th Cir.1990]; see also Mix, 345 F.3d at 88 [listing similar cases]). I find that Mix strikes the appropriate balance, as it both ensures that the discovery rule places a meaningful limitation on bringing actions regarding injuries of which plaintiff was aware prior to expiration the limitations period, but does not preclude recovery when plaintiff's injuries are aggravated to the point where they are distinct from those previously suffered. I note as well that for purposes of this motion, adopting a more expansive notion of the "continuing tort" doctrine as in the first category above would also compel denial of defendant's motion, as that standard is more lenient in regard to timeliness than that set forth in Mix.
Defendant has clearly shown through plaintiff's deposition testimony that Lang's CTS symptoms manifested in his hands as early as 2007, and that he knew then that the symptoms were caused by his work at CSX. On this basis, defendant has shown its prima facie entitlement to summary judgment on Lang's claim to the extent plaintiff seeks to recover for injuries he suffered prior to July 14, 2017, and plaintiff offers nothing to rebut that showing.
Nevertheless, taking plaintiff's testimony as true and drawing every reasonable inference in his favor as I must on the present motion (see Negri v Stop & Shop, 65 N.Y.2d 625, 626 [1985]), I find Lang's testimony may be read to say that the periodic CTS symptoms which he described as flaring up from 2007 through 2017 were of a distinct nature from his 2019 injuries, which he claims to be completely debilitating and permanent (compare Lang Tr 38 [in 2006 and 2007, "numbing" and "twitching" from CTS would "come and go"] with id. at 148 [previous CTS would flare up "once every month or two" and" "wasn't at any level like in 2019 when I was like wow my hand is numb, it's twisted"]; id. at 178 [describing how he was "unable to work at the end of this process"]). As a result, the record reveals questions of fact as to whether the "accumulated effects" of CTS reflected a distinct injury that arose during the limitations period, which would give rise to a timely FELA claim for injuries during the three-year period prior to commencement of this case. As a result, I must deny summary judgment as to those aspects of the action.
Accordingly, it is hereby
ORDERED that defendant's motion is granted in part, in that the three-year statute of limitations under FELA bars plaintiff from recovering for any injuries that took place before July 14, 2017, and denied in part, in that there is a question of fact as to whether plaintiff suffered a "distinct injury" from his CTS during the three years prior to the commencement of this action.
A conference will be conducted on March 4, 2024 at 2:00 p.m., via Microsoft Teams, to set a trial date.
This constitutes the Decision & Order of the Court. This Decision & Order is being electronically filed with the County Clerk. The signing of this Decision and Order and electronic filing with the County Clerk shall not constitute notice of entry under CPLR Rule 5513, and counsel is not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry.
Papers Considered:
1. Notice of Motion and Attorney Affirmation in Support of Defendant CSX Transportation,, Inc.'s Motion for Summary Judgment of T.H. Lyda, Esq., dated October 30, 2023, with Exhibits annexed thereto, along with Memorandum of Law in Support of Defendant's Motion for Summary Judgment, dated October 20, 2023, and Uniform Rule 202.8-g Statement of Material Facts Not in Dispute, dated October 20, 2023
2. Response to Statement of Material Facts, dated December 13, 2023, and Memorandum of Law in Opposition to Summary Judgment Application, dated December 13, 2023, with Exhibit annexed thereto.
3. Defendant's Reply Memorandum of Law in Further Support of Motion for Summary Judgmen, dated January 10, 2024.