Attorneys Kevin Alexandersen and Holly Olarczuk-Smith obtained a summary judgment motion for two major railroad carriers in an oropharynx cancer case filed in Lucas County Court of Common Pleas. Plaintiff brought his action under the Federal Employers’ Liability Act (FELA) alleging that the railroads negligently exposed him to diesel exhaust and asbestos over the course of his career and that this exposure had caused his cancer. In the summary judgment motion, the railroads argued that plaintiff’s claim was time-barred because plaintiff had knowledge of all the essential facts he needed at the time of his diagnosis to conduct a reasonable inquiry as to whether his cancer was potentially related to his railroad employment. At the time of the cancer diagnosis, plaintiff knew that his alleged exposure to asbestos and diesel posed a hazard. Plaintiff performed an internet search about the type of cancer he had but claimed that he did not learn much from his search. Plaintiff initiated his lawsuit only after seeing a legal advertisement on Facebook addressing railroad workers that had contracted cancer. To demonstrate plaintiff’s failure to make a reasonably diligent effort to discover the potential cause of his injury, the railroads presented evidence of internet advertisements, articles, and videos that would have resulted from a reasonably diligent internet search at the time plaintiff was diagnosed with cancer, which was undisputed by plaintiff.
The trial court concluded that plaintiff’s action was time-barred. In reaching this determination, the trial court rejected plaintiff’s argument that viewing a Facebook advertisement constituted the accrual of his claim because that would implicitly excuse plaintiff’s duty to investigate the potential cause of his injury and effectively extend the claim’s accrual date to any later time plaintiff by chance happened upon the advertisement. The trial court further concluded that, at best, plaintiff merely learned of a potential legal claim when he saw the advertisement on Facebook, but everything he knew about his cancer and its potential cause was already known to him at the time of his diagnosis. Mr. Alexandersen and Mrs. Olarczuk-Smith are pleased with the outcome of this matter as this case can be used in other FELA cases nationally in support of similar time-bar arguments.