Alexander v. Missouri Pacific Railroad

CRIST, Judge. Plaintiff appeals the trial court’s grant of summary judgment for Employer in Plaintiff’s suit for recovery for occupational hearing loss under the Federal Employers’ Liability Act. We affirm. Plaintiff Kerry Alexander has been employed by the Missouri Pacific Railroad (Employer) since early 1972 as a brakeman and conductor. Prior to that time, he served in the military and was exposed to noise from helicopters. Plaintiff has also hunted with guns and without hearing protection a great deal throughout his life. Before leaving active duty in the military, Plaintiff failed a hearing test. He passed a second test. On June 13, 1985, Plaintiff was administered a hearing test as part of a government study. This test showed that Plaintiff had a high frequency hearing loss. Plaintiff was advised to have his hearing checked further by his own doctor. On August 5, 1985, Plaintiff saw Dr. S. Phanjiphand, an ear, nose and throat specialist. Dr. Phanjiphand told Plaintiff [758] that he had suffered a sensory neural hearing loss and that his exposure to noise at the railroad was affecting his ability to hear. The doctor further advised Plaintiff to wear ear plugs on the job. Plaintiff filed suit on February 14, 1989, under the Federal Employers Liability Act (FELA). On April 17, 1991, the trial court sustained Employer’s Motion for Summary Judgment on the grounds that the suit was untimely filed under FELA, 45 U.S.C. § 56. Employer initially contends Plaintiffs brief violates Supreme Court Rule 84.04. Employer submits that Plaintiffs jurisdictional statement is insufficient, the Statement of Facts is deficient, and the Points Relied On are merely abstract statements of law. We find that while these aspects of Plaintiffs brief could be improved upon, the brief is “not so totally lacking in conformity to the rule that the harsh action of dismissal should result.” Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 364[23] (Mo.App.1983). Plaintiffs initial point on appeal is that his claim was not barred by the Statute of Limitations. Plaintiff argues that in cases of long-term exposure to hazards to hearing, the statute of limitations is tolled until the time of the last exposure to the hazard. Here, Plaintiff asserts his last exposure to the noise of the railroad engines was within the statutory time period. FELA cases must be commenced within three years from the date the cause of action accrued. 45 U.S.C. § 56. A discovery rule has evolved to determine the date of accrual in occupational disease cases brought under FELA. Federal courts have interpreted two United States Supreme Court cases, Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), and United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), to mean that an occupational disease claim is deemed to accrue under FELA when the claimant is aware or has reason to be aware that he has been injured and is aware or has reason to be aware of the cause of his injury. DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026, 1030 (5th Cir.1984), cert. denied, 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 113 (1984); Kichline v. Consolidated Rail Corp., 800 F.2d 356, 359 (3rd Cir.1986); Albert v. Maine Central Railroad Company, 905 F.2d 541, 544 (1st Cir.1990). The trial court relied on this rule to bar Plaintiffs claim as untimely, finding that Plaintiff was aware both of his injury and of its cause more than three years before he filed suit. Plaintiff relies on Fletcher v. Union Pacific Ry. Co., 621 F.2d 902 (8th Cir.1980), and Fowkes v. Pennsylvania R. Co., 264 F.2d 397 (3rd Cir.1959), to support his argument that the statute was tolled until his last exposure to the hazard. Plaintiffs reliance on Fletcher is misplaced. In Fletcher, the plaintiff injured his back in 1962. Thereafter, he suffered chronic, severe back problems. However, he continued to perform his job, which required heavy lifting. In 1973, Fletcher’s doctor wrote to the railroad recommending that Fletcher be placed on light duty. However, Fletcher was not given light duty until 1975. Fletcher filed suit in 1977, alleging two separate claims. In the first, he sought recovery for the original back injury in 1962. In the second, he sought recovery for negligent assignment to jobs requiring heavy lifting even after the railroad knew of his injury. The court affirmed the dismissal of the first claim on the basis of expiration of the limitations period because Fletcher clearly knew of his injury and its cause many years before he filed suit. Fletcher, 621 F.2d at 907. The court reversed the dismissal as to the second count, holding that it constituted a charge of negligence separate and apart from the negligence which gave rise to the original injury. Because the negligent assignment occurred within three years prior to filing suit, this claim was not barred. Id. at 908[5]. In the instant case, Plaintiff's claim for any deterioration of his hearing outside the three-year limitations period is clearly comparable to Fletcher’s claim for the original injury. Fletcher does not support Plaintiff’s contention that his claim for his entire injury should not be barred because some [759] exacerbation of the hearing loss occurred within the limitations period. Fowkes is also of no assistance to Plaintiff. In Fowkes, the employee developed arthritis in his shoulder due to the use of an air hammer over many years. The jury specifically found that the plaintiff did not know, nor should he have known, of the existence of his injury more than three years before he filed suit. Fowkes, 264 F.2d at 398. In Kichline, 800 F.2d at 360, the Third Circuit Court of Appeals stated: We understand Fowkes to mean that continuing conduct of defendant will not stop the ticking of the limitations clock begun when plaintiff obtained requisite information. On discovering an injury and its cause, a claimant must choose to sue or forego that remedy. This interpretation is supported by Kubrick, which requires a plaintiff to take prompt action to seek redress. In further support of his contention, Plaintiff cites the cases of Wehrman v. U.S., 830 F.2d 1480 (8th Cir.1987), and Page v. United States, 729 F.2d 818 (D.C.Cir.1984). These cases are also inapposite. Plaintiff argues that the Eighth Circuit Court of Appeals ruled in Wehrman that the “awareness” rule does not apply to cases involving tortious conduct of a continuing nature. However, Wehrman clearly states that it is medical malpractice cases which are the exception to the awareness rule. Wehrman, 830 F.2d at 1483[1, 2]. Page is also a medical malpractice case under the Federal Tort Claims Act. Because of the Eighth Circuit’s ruling in Wehrman that medical malpractice cases constitute an exception to the general rule, Page has no bearing here. Federal law is clear on the subject of Plaintiffs proposition that the statute of limitations is tolled until his last exposure to the hazard. Under the rule set forth in Urie and Kubrick, the cause of action accrues for statute of limitations purposes when “a reasonable person knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause.” Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092, 1095[1, 2] (7th Cir.1990). We are therefore constrained to hold that FELA’s statute of limitations bars Plaintiff’s claim for his original injury and any claims for exacerbation of this injury outside the three-year period before Plaintiff filed suit. In Plaintiff’s second point on appeal, he contends he is at least entitled to damages for any aggravation of his injuries occurring within three years of his filing suit. Plaintiff relies on the Third Circuit case of Kichline v. Consolidated Rail Corp., 800 F.2d 356 (3d Cir.1986). The Third Circuit in Kichline held that the plaintiff had a cause of action for the aggravation of his condition attributable to the period beginning three years before the filing of his suit, if he could establish the defendant’s negligence. Plaintiff’s position is not well taken. In Fries v. Chicago & Northwestern Transportation Co., 909 F.2d 1092 (7th Cir.1990), the Seventh Circuit considered a similar claim. The plaintiff first noticed a decline in his hearing in 1980 or 1981, and began experiencing tinnitus in 1981 or 1982. Although he did not seek medical treatment, the plaintiff could not attribute the hearing loss to any cause other than work. In May 1985, he was diagnosed by a physician as having hearing loss. The plaintiff filed his case in 1987. In affirming the dismissal of the plaintiff’s claim, the Seventh Circuit rejected the plaintiff’s suggestion that the deterioration in his condition be treated as a severable cause of action for purposes of the statute of limitations by simply failing to do anything about a condition which was known to him. Id. at 1096. This result is consistent with the concept that Section 6 of the FELA is not merely a statute of limitations but also goes to the substantive right to recover. See e.g., Courtney v. Union Pacific Railroad Co., 713 F.Supp. 305 (E.D.Ark.1989). Under the rule set forth by the Kichline court, a plaintiff could discover the cause of a medical condition, miss the filing deadline, and then wait for his condition to deteriorate before filing suit to recover for the “aggravation.” This is not consistent [760] with the spirit and intent of the discovery rule established in Urie and Kubrick, and followed by the Eighth Circuit in Fletcher. Point denied. Judgment affirmed. PUDLOWSKI, P.J., and STEPHAN, J., concur.