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Alexandersen & Olarczuk-Smith Obtain Summary Judgment For Two Railroad Carriers

On May 2, 2022, Attorneys Kevin Alexandersen and Holly Olarczuk-Smith obtained a summary judgment motion for two major railroad carriers in a cancer case filed in State Supreme Court, Erie County, New York. Plaintiff brought his action under the Federal Employers’ Liability Act (“FELA”) alleging that the railroads negligently exposed him to diesel exhaust over the course of his career and that this exposure had caused his cancer. The ruling is significant as the railroads were granted summary judgment based on a pre-diagnosis notice of a cancerous disease by proving that a reasonable person should have been investigating a possible injury as well as its possible causes before the formal diagnosis. Although the plaintiff claimed that he connected his work as a potential cause of his cancer after happening to see an attorney advertisement on television, the trial court held that seeing an attorney advertisement did not fulfill the plaintiff’s affirmative duty to investigate. Furthermore, the trial court held that under FELA’s strict discovery rule, the accrual of a claim does not await awareness by the plaintiff that his injury was negligently inflicted.