The appellate court affirmed summary judgment in favor of major railroad finding the plaintiff’s FELA claim filed on Dec 19, 2019 was untimely. The undisputed date of plaintiff’s laryngeal cancer diagnosis was Dec. 8, 2016. The court rejected BC’s “the FELA is a remedial statute and the complaint was only 11 days late” argument.
The opinion notes that there is no requirement under law that plaintiff definitely needed to know the cause of his cancer before the accrual date was triggered. The focus was on what he should have known at the time of diagnosis. The court took issue with plaintiff’s testimony that he did not tell his doctors of his workplace exposures even though he knew that he should have done so. The court highlighted the evidence establishing plaintiff’s knowledge of the harmful effect of his workplace exposures as far back as 1975, that he had regularly read information about the substances that he was exposed to while employed by the railroad, and because of this, the harmful effects of his workplace exposures “always had been on [his] mind”. The court stated that this was relevant even if some of the workplace exposures that he knew were harmful were not actually alleged in this case. The court agreed with the railroad’s position that a reasonable person in plaintiff ‘s position would not wait to begin to investigate the cause of his cancer until after learning of a former co-worker’s lawsuit by happenstance during a conversation with his brother. The court noted that even after having this alleged conversation about his co-worker’s lawsuit, there is no evidence showing that he learned anything new about the cause of his cancer. At best, this testimony established only that he had a legal remedy which does not extend the accrual date of his FELA claim.