Opinion
No. 107,640.
2012-11-2
David CHRISTIANSEN, Appellant, v. BNSF RAILWAY COMPANY, Appellee.
Appeal from Wyandotte District Court; Constance M. Alvey, Judge. Jason R. Keck, of Hubbell, Peak, O'Neal, Napier & Leach, of Kansas City, Missouri, and Paul T. Slocomb, of Blunt Slocomb, Ltd., of St. Louis, Missouri, for appellant. Carrie E, Josserand and Kenneth L. Weltz, of Lathrop & Gage LLP, of Overland Park, for appellee.
Appeal from Wyandotte District Court; Constance M. Alvey, Judge.
Jason R. Keck, of Hubbell, Peak, O'Neal, Napier & Leach, of Kansas City, Missouri, and Paul T. Slocomb, of Blunt Slocomb, Ltd., of St. Louis, Missouri, for appellant. Carrie E, Josserand and Kenneth L. Weltz, of Lathrop & Gage LLP, of Overland Park, for appellee.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Christiansen sued BNSF Railway Company in September 2009 under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 (2006)et seq., alleging that his heavy-labor jobs during his 35 years of employment with BNSF caused a cumulative-trauma injury to his back. The district court entered summary judgment for BNSF upon finding the 3–year statute of limitations ran before Christiansen filed his petition. In support, the district court found that Christiansen knew or reasonably should have known the nature or extent of his back injury and its causal link to his employment no later than 2003. Christiansen contends material questions of fact about when and what he knew or should have known about the existence and cause of his back injury preclude summary judgment. We agree and remand the case to the district court for trial on the issue.
Factual and Procedural History
For 35 years Christiansen worked for BNSF. His work duties consistently involved heavy labor and driving or riding in a truck on the railroad tracks and roadways. He last worked for BNSF in May 2009, when he could no longer perform his job duties because of severe back pain. Dr. David King informed Christiansen on May 28, 2009, that his injuries rendered him permanently disabled and might require surgery on his lumbar spine.
Christiansen sued BNSF on September 25, 2009, seeking to recover damages for his cumulative-trauma back injury under FELA.
Following extensive discovery, BNSF moved for summary judgment on the ground that Christiansen's claim was barred by FELA's 3–year statute of limitations. See 45 U.S.C. § 56 (2006). As discussed in more detail below, based on interpretations of FELA's statute of limitations provisions by the Tenth Circuit Court of Appeals, BNSF argued that the clock started ticking regarding Christiansen's claim more than 3 years earlier when Christiansen knew or should have known of a causal relationship between his employment and his injuries.
In support of its motion, BNSF relied heavily upon the fact that Christiansen had complained during doctors' visits at least 9 years before he filed his lawsuit that his work was causing him to suffer radiating back pain. BNSF specifically relied upon the following notations in Christiansen's medical records:
• March 6, 2000: Dr. Robert Thomen, Christiansen's primary care physician, noted that Christiansen complained of having back pain for “the last 10 days” that “[o]ccasionally goes down the left leg in the buttocks and then to the knee.” The record states that Christiansen “has no history of injury,” but “[d]riving seems to make it worse.” Dr. Thomen found that Christiansen's back had a “full range of motion” and diagnosed a “back strain.”
• November 3, 2000: Dr. Thomen noted Christiansen's complaint of a recurrence of “intermittent” low back pain that “sometimes goes down to the left knee,” and is aggravated by “[r]iding in the truck or car.” This time, Dr. Thomen noted a “decreased range of motion” in Christiansen's back.
• February 7, 2003: Dr. Devendra Jain, a neurologist, saw Christiansen upon a referral from Dr. King for an “EMG/NCS to evaluate for lumbosacral radiculopathy.” According to Dr. Jain's dictation note, Christiansen complained of “pain in the lower back for the past 12 years or so” that he had noticed in the past 3 months was “radiating down to the left lower extremity, primarily in the posterior aspect of thigh and leg.” Dr. Jain's dictation note states her final impression from the neurological tests was as follows:
“This electrodiagnostic study is abnormal. This study is suggestive of diffuse sensory motor polyneuropathy, mixed type, moderate in nature, uncertain etiology. Blood tests for Charcot–Marie–Tooth might be considered for evaluation for hereditary type of sensory motor polyneuropathy. A 2 hour glucose tolerance test may also be considered to check for diabetes mellitus. If a further neuropathic workup is needed, a follow up appointment may be considered.”
BNSF maintained these records conclusively establish that Christiansen knew or objectively had reason to know of both the existence and cause of his back injury (his work) as early as November 3, 2000—or, at the very latest by February 2003. And under either scenario, his September 2009 lawsuit was not commenced in a timely manner. The doctors were apparently never deposed, or if they were, their depositions do not appear in the record on appeal, and neither party references any such depositions.
Christiansen argued in response that these records were insufficient to definitively establish what he knew or should have known about the existence and cause of his cumulative-trauma back injury. In support, Christiansen claimed that he did not make the statements to Dr. Jain reflected in her records; or, regardless, that those records referred to daily aches and pains naturally resulting from his hard labor that varied significantly from the pain that he first experienced in May 2009, which caused leg weakness and a sharp burning pain in his back that prevented him from sleeping and getting out of bed. Christiansen attached and cited in support his deposition and numerous medical records that lack any mention of back pain complaints as early as 1964 and as late as 2004, Christiansen further argued that Dr. Jain's suggestion that he might have been suffering from a hereditary neuropathy condition with an unknown etiology created, at a minimum, a fact question for a jury about when he knew or reasonably should have known that he was instead suffering from a work injury caused by his employment with BNSF.
In its reply, BNSF challenged the materiality of Christiansen's alleged factual disputes to the issue at hand.
Following a hearing, the district court granted BNSF summary judgment. In support, the district court found that similar to the facts underlying the Tenth Circuit precedent relied upon by BNSF, which is discussed below, Christiansen's FELA claim was time-barred because he knew or reasonably should have known “since at least 2003 that his back pain was work related and at that time [he] had a duty to investigate the cause of his injury.” According to the judge's oral findings, “[a]ll [Christiansen] had to do was investigate why he had back pain, especially while performing his job driving a truck.” Christiansen timely appeals from that decision.
Analysis
On appeal, the parties essentially reiterate their positions on the statute of limitations issue that they took before the district court. Before addressing their arguments, it is helpful to discuss this court's standard of review and a general background of FELA's statute of limitations.
Standard of review
Under Kansas law, a court may enter summary judgment when “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ “ Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 220, 262 P.3d 336 (2011). Before granting summary judgment, a court (trial or appellate) must “ ‘resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought .’ “ 293 Kan. at 220. This does not mean that the party opposing a motion for summary judgment has no affirmative obligations. Rather, to establish that there is a genuine issue for trial, “ ‘an adverse party must come forward with evidence to establish a dispute as to ... facts subject to the dispute [that are] material to the conclusive issues in the case.’ “ 293 Kan. at 220. If' “ ‘reasonable minds could differ as to the conclusions drawn from the evidence,’ “ then summary judgment is not appropriate. 293 Kan. at 220.
FELA actions have a 3–year statute of limitations that is subject to the discovery rule for cumulative-trauma injuries,
FELA makes railroads liable to their employees for injuries “resulting in whole or in part from the negligence” of the railroads. 45 U.S.C. § 51 (2006). A FELA claim may be brought in state or federal court. See 45 U.S.C. § 56. “As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.” St. Louis Southwestern R. Co. v. Dickerson, 470 U.S. 409, 411, 105 S. Ct 1347, 84 L.Ed.2d 303 (1985).
The substantive-law issue now before this court involves FELA's statute of limitations, which provides that “[n]o action shall be maintained under this chapter unless commenced within three years from the date the cause of action accrued.” 45 U.S.C. § 56. Kansas law generally treats the statute of limitations as an affirmative defense, placing the burden upon a defendant to plead and prove it has passed. See K.S.A.2011 Supp. 60–208(c)(1)(Q); Turon State Bank v. Bozarth, 235 Kan. 786, 788, 684 P.2d 419 (1984) (noting that affirmative defenses must be set forth in a responsive pleading or they are deemed waived). In a FELA action, however, compliance with the statute of limitations is a condition precedent to recovery, rather than an affirmative defense. Thus, plaintiffs seeking to recover under FELA's provisions bear the burden of proving their lawsuits were filed within the 3–year statute of limitations. See Emmons v. Southern Pacific Transp. Co ., 701 F.2d 1112, 1117–18 (5th Cir.1983).
When the injury claimed in a FELA action “ ‘has an indefinite onset and progresses over many years unnoticed’ “—versus an acute injury with a known date of onset—courts must apply the “discovery rule” to determine when the FELA cause of action “accrued” under FELA. Matson v. Burlington Northern Santa Fe R.R., 240 F.3d 1233, 1235–36 (10th Cir.2001). The discovery rule provides that the “ ‘statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.’ [Citation omitted.]” 240 F.3d at 1235. The purpose of that rule is “[t]o avoid the harshness of applying a strict limitations period that could theoretically require a plaintiff to file suit before a latent injury manifested itself.” Matson, 240 F.3d at 1235 (citing United States v. Kubrick, 444 U.S. 111, 121–23, 100 S.Ct. 352, 62 L.Ed.2d 259 [1979];Urie v. Thompson, 337 U.S. 163, 168–71, 69 S.Ct. 1018, 93 L.Ed. 1282 [1949] ). The discovery rule objectively “imposes on plaintiffs an affirmative duty to exercise reasonable diligence and investigate the cause of a known injury.” Matson, 240 F.3d at 1235.
Accordingly, the appropriate inquiry here is whether there is a genuine issue of material fact concerning when Christiansen should have realized a causal relationship between his back pain and his employment with BNSF.
Both parties rely on two Tenth Circuit cases applying the discovery rule.
The parties' arguments below and on appeal, as well as the district court's decision, primarily center around the Tenth Circuit's decisions that upheld summary judgments upon finding them time-barred under the FELA in Matson, 240 F.3d 1233, and Robinson v. BNSF Railway Co., 412 Fed. Appx. 113 (10th Cir.2011) (unpublished opinion) ( Robinson II ). Consequently, a discussion of the facts underlying those decisions is warranted before addressing the specific arguments raised by the parties.
In Matson, the plaintiff Matson filed a lawsuit on May 29, 1998, alleging BNSF was liable for his back injury under FELA and the Locomotive Inspection Act (LIA), see 49 U.S.C. §§ 20701–20703 (1994). The evidence showed that Matson, who worked for BNSF from 1974 to 1998, had complained to his doctor of chronic low back pain as early as February 1995. On April 21, 1995, Matson complained to his doctor that his back pain had increased, had begun to radiate to his right thigh, and worsened whenever he sat down. At that point, Matson “shared his belief that his pain was ‘due to his work on the railroad,’ “ and his doctor “discussed ‘the relation of some of these symptoms or all of these symptoms possibly to some factors of working on the railroad.’ “ 240 F.3d at 1234. On June 1, 1995, a chiropractor that had begun treating Matson on May 26, 1995, provided Matson a “work status form,” which stated that Matson “was suffering from work-related ‘repetitive vibration causing degenerative joint dysfunction.’ “ 240 F.3d at 1234. Matson argued it was this June 1 visit that started the clock running on the statute of limitations for his FELA claim rather than the earlier visit in April.
Applying the federal standard of review for summary judgments, which is similar to the standard applied by our appellate courts as cited above, the Tenth Circuit disagreed with Matson and affirmed summary judgment in BNSF's favor. 240 F.3d at 1234–36. In support, the Tenth Circuit held that Matson's claims “accrued no later than April 21, 1995.” 240 F.3d at 1236. In so holding, the Tenth Circuit specifically rejected Matson's attempts to incorporate a “ ‘specific causation’ element into the discovery rule,” noting that “knowledge of the specific cause of a work-related injury is not required to trigger the statute of limitations in a FELA action. Rather, a FELA claim accrues when the plaintiff knows or should know that his injury is merely work related.” (Emphasis added.) 240 F.3d at 1236 (citing Bealer v. Missouri Pac. R.R. Co., 951 F .2d 38, 39 [5th Cir.1991] ). Applying these principles underlying the discovery rule to the facts before it, the Tenth Circuit found that by the time of his doctor's appointment on April 21, 1995,
“Matson was on notice that his job was a potential cause of his back injury. Armed with that knowledge, Matson had a duty to exercise reasonable diligence and investigate whether this suspicion was correct. See Johnson v. Norfolk & W. Ry. Co., 836 S.W.2d 83, 86 (Mo.Ct.App.1992) (‘Rather than waiting for a physician's diagnosis, a plaintiff has an affirmative duty to investigate his injury and any suspect cause once he experiences symptoms.’).” Matson, 240 F.3d at 1236.
The Tenth Circuit reached the same legal conclusion under different but similar facts in its unpublished decision in Robinson II. In that case, the plaintiff Robinson sued BNSF on August 28, 2008, under both LIA and FELA, “seek [ing] compensation for serious cervical and lumbar spine injuries he sustained as a result of cumulative and repetitive trauma [he] experienced while working for BNSF' over thirty-eight years as a machinist and conductor. [Citation omitted.]” 412 Fed. Appx. at 114. The trial court granted BNSF summary judgment upon finding that Robinson knew or reasonably should have known that his back and neck pain were work-related more than 3 years before he filed his lawsuit. Robinson v. BNSF Railway Co., No. Civ–08–326–SPS, 2010 WL 1333146, at *3 (E.D.Okla.2010) (unpublished opinion) ( Robinson I ).
In Robinson II, the Tenth Circuit found the undisputed facts showed that Robinson reported neck and back pain that was specifically noted to be related to his employment with the railroad more than 3 years before he filed his lawsuit. 412 Fed. Appx. at 114–15. For example, in 1999 Robinson indicated that he experienced neck and back pain while seeking treatment at a hospital for groin and leg pain. When he again experienced neck pain in 2000, an MRI of his cervical spine revealed degenerative changes in numerous cervical discs. Robinson later reported “that pain went away on its own.” 412 Fed. Appx. at 114. Medical records from a February 2003 doctor's visit also revealed that Robinson reported having “ ‘cervical disc disease’ “ and “ ‘lumbar disc disease’ “ and that his doctor discussed with Robinson the long hours and heavy labor requirements of his railroad work. 412 Fed. Appx. at 114–15. Robinson “later testified that there were no other activities that he engaged in outside of his work for BNSF that could have caused his neck and back pain in 2000 and 2003.” 412 Fed. Appx. at 115. Another report by the same doctor indicated that in January 2004 Robinson had again complained of experiencing ‘ “persistent low back and neck pain” that radiated down his groin or legs “which he ‘advised ... probably relates to degenerative disc disease.’ [Citation omitted.]” 412 Fed. Appx. at 115. X-rays ordered during that visit revealed “ ‘degenerative changes throughout the entire lumbar spine.’ “ 412 Fed. Appx. at 115. Similar complaints by Robinson during a July 2004 exam with a noted discussion of the relationship between the pain and his job duties appeared in a July 2004 doctor's report.
We distinguish the Tenth Circuit cases.
We agree with Christiansen that there are several important differences between this case versus Matson and Robinson II.
First, unlike in both federal cases, here there was no diagnosis of a work-related injury or cause for Christiansen's back pain at any of the three doctor's visits outlined above that underlie BNSF's claims that Christiansen should have known his back pain was work related. Although Christiansen did indicate that driving seemed to make it worse, he advised his doctor that driving in either a truck or a car caused him increased pain, which would indicate that he had not associated his pain with a work-related cause. The first visit resulted only in a diagnosis of a “back strain.” Certainly the mere experience of pain alone is insufficient to establish awareness of a work-related injury. At the February 2003 visit, 6 years before Dr. King found Christiansen to be permanently disabled, Dr. Jain specifically noted her belief of a cause other than lumbar radicular syndrome and degenerative disc disease. Dr. Jain was not certain of the cause of Christiansen's back pain but believed it may be due to a hereditary sensory motor condition or diabetes. Again, nothing at that visit establishes a connection between his work and his pain. Resolving all facts and inferences which may reasonably be drawn from the evidence in favor of Christiansen, as we must, it is certainly reasonable to conclude that Christiansen may not, as he so testified, have suspected his symptoms were caused by a work-related back condition. Rather, based on Dr. Jain's diagnosis, he could have reasonably believed that his problems were not even related to a musculoskeletal disorder of his spine, but they were instead from either: (1) a rare hereditary blood disorder, (2) diabetes, or (3) that the cause of his symptoms was simply unknown. See Dubose v. Kansas City Southern Ry Co., 729 F.2d 1026, 1031 (5th Cir.1984) (“When a plaintiff may be charged with awareness that his injury is connected to some cause should depend on factors including how many possible causes exist and whether medical advice suggests an erroneous causal connection or otherwise lays to rest a plaintiff's suspicion regarding what caused his injury.”).
Second, there was no evidence in the record that any discussion of a work-related cause for Christiansen's pain ever took place. BNSF did not depose either Dr. Thomen or Dr. Jain. Rather, BNSF relied solely upon Christiansen's medical records, which do not specifically reflect that the doctors discussed with Christiansen the possibility that his work was causing his back pain. Although BNSF relies on the fact that Christiansen indicated to his doctors in 2000 that the pain is made “worse” by driving and “aggravated” by riding in a truck or car, we do not think these statements allow us to conclude as a matter of law that he knew or should have known that he had a cumulative-trauma back injury related to his work. Although a doctor's diagnosis that the injury is work related or a doctor's discussion with the patient regarding the connection of the injury to the patient's work are not necessary to trigger the statute of limitations for a FELA claim, such evidence would be a clear indication that an employee was put on notice to further investigate. Matson, 240 F.3d at 1236. Such clear evidence would support summary judgment. Although the burden is on Christiansen, not BNSF, to establish that his claim was brought within FELA's 3–year statute of limitations, absent any evidence in the record of actual knowledge, a material question of fact remains as to whether Christiansen knew or even should have known of the existence of a compensable injury under FELA.
Finally, this case is readily distinguishable from Matson because, unlike the undisputed facts that showed Matson suffered from chronic low back pain for many years prior to filing his lawsuit, the records in this case support a finding that Christiansen suffered, at best, from intermittent symptoms until 2009, when his condition became manifest. There were many years where Christiansen did not complain of back pain. In fact, there are no documented doctor's visits concerning back pain between the last visit with Dr. Jain in February 2003 and his May 2009 diagnosis from Dr. King. Moreover, Christiansen testified that the pain he experienced in 2009 was different than the aches and pains he had experienced in the past; and, unlike his prior events of experiencing back pain, this time he had trouble getting out of bed, had a sharp burning pain in his back, and suffered weakness in his leg.
Some courts have recognized the legal principle that intermittent pain associated with a minor injury is generally insufficient to trigger accrual of a cause of action under FELA—or is at least enough to create a material question of fact about what a plaintiff knew or reasonably should have known about that injury or pain, thereby precluding summary judgment on the issue of whether the statute of limitation had run. See, e.g., Green v. CSX Transp., Inc., 414 F.3d 758, 764 (7th Cir.2005) (citing Lancaster v. Norfolk & Western Ry. Co., 773 F.2d 807, 821 [7th Cir.1985], cert. denied480 U.S. 945 [1987] );Mix v. Delaware and Hudson Ry. Co., 345 F.3d 82 (2d Cir.2003), cert. denied540 U.S. 1183 (2004); Fonseca v. Consolidated Rail Corp., 246 F.3d 585 (6th Cir.2001); Schaefer v. Union Pacific R.R., 10 F.Supp.2d 1240 (D.Wyo.1998); Sabalka v. Burlington North. & Santa Fe Ry., 54 S.W.3d 605 (Mo.App.2001).
The Tenth Circuit seems to have at least recognized this legal principle in Robinson II. In that decision, the court noted the Supreme Court's holding in Urie, 337 U.S. at 170, that a plaintiffs FELA cause of action accrues “ ‘ “only when the accumulated effects of the deleterious [condition] manifest themselves.” ‘ [Citation omitted.]” Robinson II, 412 Fed. Appx. at 116. The Tenth Circuit then “deem[ed] a plaintiff ‘aware of the injury once he or she has been apprised of the general nature of the injury [and held that] [l]ack of knowledge of the injury's permanence, extent, and ramifications does not toll the statute.’ Gustavson v. U.S., 655 F.2d 1034, 1036 (10th Cir.1981).” Robinson II, 412 Fed. Appx. at 116 (also citing Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092, 1095 [7th Cir.1990] ). The court ultimately determined, however, that it did not need to decide whether a legal distinction between intermittent neck and back pain and persistent pain exists because it was irrelevant under the facts before it. Robinson II, 412 Fed. Appx. at 117. In support, the court relied upon medical records that showed the defendant had indeed complained of persistent back pain more than 3 years prior to bringing suit; and, “most important,” he had been diagnosed with cervical and lumbar disc disease, which the court found was “a condition that by its definition is permanent and only going to get worse over time without medical treatment.” 412 Fed. Appx. at 117.
Conclusion
Where it is a close question whether a statute of limitations has run under FELA, the case should be allowed to proceed to trial, as opposed to being resolved on summary judgment. See Bailey v. Central Vermont Ry., 319 U.S. 350, 354, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943) (noting that “[t]o deprive [railroad] workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them”). This is such a case. Within the confines of our standard of review, we do not believe that the record conclusively establishes Christiansen knew or, more importantly, that he reasonably should have known through an adequate investigation about his cumulative injury to his back and its connection to his employment with BNSF prior to September 2006. Perhaps he did, but the case should be allowed to proceed to trial on this issue. Thus, summary judgment was not appropriate.
Reversed and remanded.