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Attorneys Damico, Sigurdson & Olarczuk-Smith Obtain Summary Judgment For Two Railroad Carriers

Attorneys David Damico, Richard Sigurdson, and Holly Olarczuk-Smith obtained a summary judgment motion for two major railroad carriers in a respiratory disease case filed in the Lucas County Court of Common Pleas, Ohio. 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 asthma and chronic obstructive pulmonary disease. In the summary judgment motion, the railroads argued that plaintiff’s claim was time-barred because plaintiff had been repeatedly told by his treating physician, more than three years prior to filing the action, that his respiratory illnesses were caused by his alleged exposure to diesel exhaust on the railroad. In addition, the railroads argued that the action was barred by the doctrine of judicial estoppel due to plaintiff’s failure to disclose the potential FELA claim as an asset in his bankruptcy proceeding.

The trial court concluded that plaintiff’s action was time-barred. In reaching this determination, the trial court rejected plaintiff’s argument that a FELA claim accrues when a treating physician conclusively tells the plaintiff that the injury is more likely than not caused by his work and when the plaintiff learns, through consultation with counsel, that a viable legal claim exists. The trial court reiterated that under the discovery rule, a FELA claim accrues when a reasonable person knows or should have known that a possible cause of an injury is work-related.

Additionally, the trial court concluded that the action was barred by the doctrine of judicial estoppel. In reaching this determination, the trial court rejected the argument that plaintiff had no potential claim until his treating physician conclusively told him that his railroad work was likely a cause of his respiratory illnesses and he had consulted with counsel. The trial court recognized that two months after receiving a bankruptcy discharge, plaintiff informed the railroad’s claims department of his personal injury claim and then filed his lawsuit. Furthermore, in his discovery responses, plaintiff admitted that he was aware that his alleged exposure to diesel exhaust had been causing his respiratory problems over the last couple of years.