On August 17, 2023, the Eighth District Court of Appeals affirmed summary judgment for a major railroad carrier in a rectal cancer case filed in the Cuyahoga County Court of Common Pleas. Plaintiff brought a survival personal injury claim and a wrongful death claim under the Federal Employers’ Liability Act (“FELA”) alleging that the railroad negligently exposed the decedent-employee to diesel exhaust and second hand smoke during the course of his railroad employment that caused rectal cancer, which led to the employee’s death. In the summary judgment motion, the railroad relied on the employee’s bankruptcy filings, which listed the FELA claim against the railroad as an asset of the bankruptcy estate, to prove that the employee was aware of his personal injury claim more than three years before the claim was filed, thus showing that the survival claim was time-barred. In addition, the railroad argued that the wrongful death claim was subject to dismissal due to the absence of pecuniary loss evidence. The trial court agreed with the railroad and dismissed the entire action.
On appeal, Plaintiff did not challenge that the survival claim was untimely and properly dismissed by the trial court. Instead, the only issue presented on appeal related to the dismissal of the wrongful death claim. On review, the Eighth District Court of Appeals affirmed summary judgment. In reaching this determination, the appellate court accepted the railroad’s arguments that plaintiff “did not specify the amount of damages she was requesting. She never relied on, cited to, or argued that the bankruptcy petition supported her claim of pecuniary loss, and she never submitted her affidavit at the summary-judgment stage. Additionally, [plaintiff] did not raise the issue of the loss of [decedent-employee’s] pension or his … income.” The appellate court further agreed with the railroad that plaintiff had waived those arguments because “she did not raise them before the trial court.”
Mr. Damico and Mrs. Olarczuk-Smith are pleased with the outcome of this matter as this case can be used in other FELA cases in support of similar arguments.