Petition for Writ of Certiorari — Kline v. Atchison, Topeka & Santa Fe Railway Co.
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER, TERM, 1993
BURL KLINE
Petitioner,
Vv.
ATCHISON. TOPEKA & SANTA FE RAILWAY CO.,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF THE
STATE OF KANSAS
Brian J. Niceswanger Richard F. Lombardo
McDowell, Rice & Smith McDowell, Rice & Smith
a Professional Corporation a Professional Corporation
7101 College Boulevard 120 West 12th Street
Suite 200 Suite 1300
Overland Park, KS 66210 Kansas City, MO 64105
(913) 338-5400 (816) 221-5400
Jon G. Carlson *
Daniel J. Cohen
CARLSON, WENDLER & ASSOCIATES, P.C.
P. O. Box 527
#90 Edwardsville Professional Park
Edwardsville, Illinois 62025
(618) 656-0066
*Counsel of Record
Attorneys for Petitioner
ot EEK
QUESTION PRESENTED
Whether a Federal Employers’ Liability Act Plaintiff's
one-time observation at his place of employment of a placard
warning of the presence of a carcinogenic substance places him on
notice, as a matter of law, that his subsequently diagnosed
lymphatic cancer is work-related, such that his cause of action
begins to accrue, as a matter of law, on the date of diagnosis?
a
PARTIES BELOW
All parties to the proceeding in the Court of Appeals of
Kansas are identified in the caption.
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TABLE OF CONTENTS
Statutory Provisions Involved..................
EE Se
How The Federal Question Was Presented . .
Reasons For Granting The Writ................
-IV-
Page
Existing Federal And State Case
Authority Applying The “Discovery Rule”
To Causes Of Action Brought Pursuant To
The Federal Employers’ Liability Act
Lacks Sufficient Uniformity To Ensure
Consistent Results In Summary Judgment
Proceedings. Since This Court Is The
Final Authority On The Statutory
Construction Of The Federal Employers’
Liability Act, It Should Provide Guidance
As To The Proper Analysis And
Resolution Of This “Discovery Rule”
Issue, Thereby Reinstating The Uniformity
And Consistency Which This Court Has
Long Espoused In Such Cases......... 7
The Trial Court’s Reliance On The
Seventh Circuit’s Restrictive Construction
And Application Of The “Discovery Rule”
Served To Deny Petitioner His Federally
Guaranteed Substantive Right Under The
F.E.L.A. To Have The Material Issues Of
Fact In His Case Resolved By A Jury.
Since This Court Is The Final Authority
On The Statutory Construction Of The
F.E.L.A., And In Light Of The General
Importance Of The Issue At Bar To
Countless Pending And Future Cases, This
Court Should Grant Certiorari To Rectify
The Error Committed Below............ 13
-V-
TABLE OF AUTHORITIES
Cases:
Burnett v. New York Central R.R. Co.,
300 US. 424 (1965) ............
Dubose v. Kansas City Southern Ry. Co.,
729 F.2d 1026 (Sth Cir. 1984)....
Rogers v. Illinois Central R.R.Co.,
833 S.W.2d 426 (Mo.App. 1992) ..
Aerojet-General Shipyards, Inc. v. O’Keeffe,
413 F.2d 793 (Sth Cir. 1969).....
Urie v. Thompson,
pS |
Maughan v. Southwest Servicing, Inc.,
758 F.2d 1381 (10th Cir. 1985)...
Curry v. Consolidated Rail Corp.,
766 F.Supp. 380 (W.D.Penn. 1991)
Corrigan v. Burlington Northern R.R., Inc.,
612 F.Supp. 665 (D.Minn. 1985) . .
Hatfield v. Burlington Northern Ry., Co.,
747 F.Supp. 634 (D. Kan. 1990)...
“vee eee
ot.242 6 o>
i
Fries v. Chicago & Northwestern Transp. Co.,
909 F.2d 1092 (7th Cir. 1990)....
Nemmers v. United States,
795 F.2d 628 (7th Cir. 1986)... ..
Stare ene
Page(s)
-vi-
Page(s)
Cases:
Kestner v. Missouri Pacific R. Co.,
785 S.W.2d 646 (Mo.App. 1990).......... 1]
Boeing Company v. Shipman,
411 F.2d 365 (Sth Cir. 1969)............. 13
Chicago & Great Western Ry. Co. v. Smith,
228 F.2d 180 (Sth Cir. 1955)............. 13, 14
Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir. 1987)............. 14
No.
(OS TS A IS aA a TE IR EMI INE AIM, ILE ARE ERR NNN ITER
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER, TERM, 1993
BURL KLINE
Petitioner,
¥.
ATCHISON, TOPEKA & SANTA FE RAILWAY CO.,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF THE
STATE OF KANSAS
OPINIONS BELOW
—
The order of the Supreme Court of Kansas denying
discretionary review, which is unreported, is appended hereto at
page A-1. The opinion of the Kansas Intermediate Appellate Court,
which is unpublished, is appended hereto at page A-2. The order of
the Wyandotte County District Court, State of Kansas, is appended
hereto at page A-18.
<2.
JURISDICTION
The order of the Supreme Court of Kansas denying
discretionary review of the judgment of the Kansas Intermediate
Appellate Court was entered September 28, 1993. The judgment of
the Kansas Appellate Court was entered July 2, 1993. This Court’s
jurisdiction is invoked under 28 U.S.C. § 1257{(a).
STATUTORY PROVISIONS INVOLVED
45 U.S.C. § 51 (1939)
“Liability of common carriers by railroad, in interstate or
foreign commerce, for injuries to employees from
negligence; definition of employees:
Every common carrier by railroad while engaging in.
commerce between any of the several States or Territories, or
between any of the States and Territories, or between the District of
Columbia and any of the States or Territories, and any foreign
nation or nations, shall be liable in damages to any person suffering
injury while he is employed by such carrier in such commerce, or,
in case of the death of such employee, to his or her personal
representative, for the benefit of the surviving widow or husband
and children of such employee; and, if none, then of such
employee’s parents; and, if none, then of the next of kin dependent
upon such employee, for such injury of death resulting in whole or
in part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or other
equipment.
Any employee of a carrier, any party of whose duties as
such employee shall be the furtherance of interstate or foreign
commerce; or shall, in any way directly or closely and substantially,
affect such commerce as above set forth shall, for the purposes of
this chapter, be considered as being employed by such carrier in
avi
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such commerce and shall be considered as entitled to the benefits of
this chapter.
45 U.S.C. § 56 (1988)
“Actions; limitations; concurrent jurisdiction of courts”
No action shall be maintained under this chapter unless
commenced within three years from the day the cause of action
accrued.
Under this chapter an action may be brought in a district
court of the United States, in the district of the residence of the
defendant, or in which the cause of action arose, or in which the
defendant shall be doing business at the time of commencing such
action. The jurisdiction of the courts of the United States under this
chapter shall be concurrent with that of the courts of the several
States.
STATEMENT OF THE CASE
The Evidence
Petitioner, Burl Kline, was employed by Respondent,
Atchison, Topeka & Santa Fe Railway Company, as a carman from
1956 to 1988, at which time he took medical retirement (A-3).
During his employment, Petitioner was exposed - on an almost daily
basis - to various chemicals, including vinyl chloride, polyvinyl
chloride, radioactive materials, diese! exhaust, PCB, benzene, lead,
formaldehyde, asbestos, carbon black, potash, ammonia nitrate,
anhydrous ammonia, styrene, and herbicides including 2, 4-D and 2,
4, 5-T (A-3). Petitioner was exposed to many of the forgoing
substances up to the last day of his employment (A-3).
Petitioner was given virtually no instructions regarding safe
handling of the above-described chemicals (A-3). Although
Petitioner frequently complained to Respondent’s management
personnel about working in or around such chemicals, he was
-4.
ignored (A-4). In fact, Respondent regularly discouraged
Petitioner, and similarly situated employees, from reading warning
placards on rail cars (A-4). Petitioner described Respondent’s
conduct in this regard as an indoctrination, “because if you don’t
know what it is, then you don’t have so many problems” (A-14).
On one occasion, Petitioner was told by a supervisor not to
worry about vinyl chloride in its solid state, notwithstanding the
presence of a warning placard to the contrary (A-4). In fact,
Respondent’s own environmental library contains documents dating
back to 1978 which indicate that vinyl chloride can cause lymphatic
cancer and that there are no known safe levels of exposure to it. On
another occasion, Petitioner hesitated to clean out a car which had a
radioactive warning placard attached. In response, Petitioner’s
supervisor removed the placard and instructed him to clean the car
anyway (A-4).
During his deposition, Petitioner testified that he had once
observed a placard referring to the carcinogenic nature of polyvinyl
chloride (A-4). This placard was underneath the sidesill on a
polyvinyl chloride car and, according to Petitioner, “you’ve got to
be looking for it to find it”. Other than this one placard, there is no
other reference in the record to any warning on the part of
Respondent concerning the fact that Petitioner, and others similarly
situated, were being exposed to cancer causing agents.
In 1984, Petitioner was diagnosed with non-Hodgkin’s
lymphoma following removal of a swollen lymph gland (A-2).
Although Petitioner had periodically suffered from swollen lymph
nodes between the late 1960’s and 1984, his physician had assured
him that such swelling was due to infection or inflammation.
Petitioner was given no indication, before or after 1984, that the
swelling was in any way work-related.
Petitioner testified that he did not suspect his work-related
exposure to chemicals as a cause of his cancer until June, 1990,
when he read a Kansas City Star newspaper article linking exposure
to 2, 4-D and 2, 4, 5-T to the onset of non-Hodgkin’s lymphoma
he
(A-5). Upon reading the article, Petitioner asked his physician
whether there was a causal connection between his chemical
exposure and his cancer. The physician initially responded that “it
can cause it”, but then conceded that he did not know (A-5).
On August 13, 1991 - less three years after his last day of
employment with Respondent, Petitioner filed suit against
Respondent pursuant to the Federal Emplovers’ Liability Act
(hereinafter, “F.E.L.A.”), 45 U.S.C. § 51, <t seq., alleging that
Respondent had negligently exposed him to hazardous materials
which caused his cancer (A-5). On September 1, 1992, the trial
court granted summary judgment in favor of Respondent on the
ground that the three-year statute of limitations applicable to
Petitioner’s cause of action had expired prior to Petitioner’s filing
of his case (A-5). In so doing, the trial court rejected three different
theories submitted by Petitioner in support of the proposition that
the statute of limitations had been tolled until 1990.
First, the court rejected Petitioner’s attempted invocation of
the “discovery rule” (A-28). Although acknowledging the
“diversity among the circuits” regarding the proper application of
the rule (6/12/92, Tr.22), and conceding that Petitioner “would
stand a considerable chance in front of a jury” (6/12/92, Tr. 28), the
court nevertheless held as a matter of law that Petitioner had a duty,
in 1984, to investigate the cause of his cancer and that, if he had
fulfilled that duty, he would have learned of the causal connection
between his chemical exposure and his cancer (A-28).
Alternatively, the court held that Petitioner’s knowledge of contact
with known carcinogens as a matter of law negated the applicability
of the discovery rule to the case at bar. In reaching each of the
foregoing conclusions, the court openly admitted that it perceived
no relevant distinction between a “could have known” standard and
a “should have known” standard in the proper application of the
discovery rule (8/6/92, Tr. 15). Second, the court rejected
Petitioner’s contention that Respondent was estopped to assert the
statute of limitations defense by virtue of its fraudulent concealment
of his cause of action (A-29). Finally, the court rejected
Petitioner’s “continuing tort” theory (A-28).
a
The Kansas Court of Appeals affirmed the lower court’s
judgment. In affirming, the appellate court addressed each of the
three positions espoused by Petitioner before the lower court. With
regard to the “discovery rule”, the appellate court specifically
rejected the trial court’s reasoning that a reasonable inquiry of the
medical community by Petitioner in 1984 would have disclosed the
work-related nature of his cancer. Nevertheless, the appellate court
held:
[S]ince the testimony concerning the impact of the
doctor’s counsel is equivocal, summary judgment
could only be justified on the basis of [Petitioner’s]
admitted knowledge of contact with known
carcinogens. We believe it is (A-13).
In other words, the court held that Petitioner’s one-time observation
of a warning placard on a polyvinyl chloride car placed him on
notice, as a matter of law, that (1) he had come into contact with
known carcinogens, and (2) his as-yet-unmanifested lymphatic
cancer was causally related to this carcinogenic exposure. On this
basis alone, the appellate court found the discovery rule
inapplicable to the facts of Petitioner’s case, and ruled that the
statute of limitations in Petitioner’s case expired three years from
the date of diagnosis.
Thereafter, the court disposed of Petitioner’s two remaining
theories - fraudulent concealment and continuing tort - on the
ground that Petitioner’s “admitted knowledge of contact with known
carcinogens” negated the applicability of either proposed approach
(A-14/16).
Petitioner’s prayer for discretionary review in the Supreme
Court of Kansas was denied (A-1).
2 ln i AS ct De
How Federal Question Was Presented
In the first instance, Petitioner raised the federal question at
issue by response to Respondent’s Motion For Summary Judgment.
Petitioner again raised the question in the Kansas Court of Appeals,
seeking reversal of the trial court’s entry of summary judgment in
favor of Respondent. Petitioner’s ultimate prayer for discretionary
review by the Kansas Supreme Court was denied.
REASONS FOR GRANTING THE WRIT
I. EXISTING FEDERAL AND STATE CASE
AUTHORITY APPLYING THE “DISCOVERY
RULE” TO CAUSES OF ACTION BROUGHT
PURSUANT TO THE FEDERAL EMPLOYERS’
LIABILITY ACT LACKS SUFFICIENT
UNIFORMITY TO ENSURE CONSISTENT
RESULTS IN SUMMARY JUDGMENT
PROCEEDINGS. SINCE THIS COURT IS THE
FINAL AUTHORITY ON THE STATUTORY
CONSTRUCTION OF THE FEDERAL
EMPLOYERS’ LIABILITY ACT, IT SHOULD
PROVIDE GUIDANCE AS TO THE PROPER
ANALYSIS AND RESOLUTION OF THIS
“DISCOVERY RULE” ISSUE, THEREBY
REINSTATING THE UNIFORMITY AND
CONSISTENCY WHICH THIS COURT HAS
LONG ESPOUSED IN SUCH CASES.
Within the context of F.E.L.A. causes of action, this Court
has repeatedly espoused the overriding importance of maintaining
uniformity and consistency in the application of the Act’s
provisions to cases arising thereunder. Burnett v. New York
Central R.R. Co., 380 U.S. 424 (1965). However, notwithstanding
such controlling pronouncements of this Court directed to both state
and federal tribunals, a broad diversity of case authority has
-8-
developed regarding the meaning of the “discovery rule” as applied
to the F.E.L.A’s three-year statute of limitations (45 U.S.C. § 56).
On the one hand, some courts have adhered to an approach
to the “discovery rule” which acknowledges the fact-intensive
nature of the inquiry and its required resolution by the trier-of-fact.
Exemplary of this approach is Dubose v. Kansas City Southern Ry.
Co., 729 F.2d 1026 (Sth Cir. 1984), wherein it was held:
When a plaintiff may be charged with awareness
that his injury is connected to some cause should
depend on factors including how many possible
causes exist and whether medical advice suggests
an erroneous causal connection or otherwise lays to
rest a plaintiff's suspicion regarding what caused
his injury. /d. at 1021 (emphasis added).
More recently, the Missouri Court of Appeals has taken a
similar approach to the “discovery rule” issue, holding:
The issue of when plaintiff knew or should have
known of his injury and its cause is a question of
fact for the jury.
In the case of actual knowledge, the cause of
action accrues when the character of the condition
and its cause first “c[o]me together” for the
plaintiff. The “should have known” test is not
narrowly confining. The test is not a “could have
known” test. Rather, it requires a very substantial
common-sense likelihood that a reasonably
careful person would discover the existence of the
injury and its cause. Plaintiffs are entitled to wait
until the cause has been rationally identified.
Rogers v. Illinois Central R.R.Co., 833 S.W.2d
426, 428 (Mo.App. 1992)(emphasis added)
(all citations omitted).
-9-
Perhaps the most liberal construction of the F.E.L.A.
discovery rule, however, is found in Aerojet-General Shipyards,
Inc. v. O'Keeffe, 413 F.2d 793 (Sth Cir. 1969), in which the court,
discussing this Court’s decision in Urie v. Thompson, 337 U.S. 163
(1949), stated:
The [Supreme] Court considered occupational
disease cases as a special category and noted that
the statute of limitations could only begin to run
when the employee has definite knowledge that his
injury or disease is work-related. O'Keeffe, 413
F.2d at 796, n.4 (emphasis added).
The Tenth Circuit United States Court of Appeals has also
adopted a similar, liberal approach to the discovery rule in the toxic
tort context. In Maughan v. Southwest Servicing, Inc., 758 F.2d
1381 (10th Cir. 1985), the court noted:
Because of the complexity of scientific data
concerning causation of cancer, the disparity of
knowledge between plaintiffs and potential
defendants, and the often long latency period of the
disease, this Court concludes that cases involving
suspected carcinogens present “exceptional
circumstances” justifying application of the
discovery rule... .
There are many suspected causes of cancer, many
of which are natural or non-negligent and would
not give rise to a legal cause of action. Thus a
potential plaintiff, on learning that he has cancer,
lacks the usual incentive to investigate the
possibility that the known injury may give rise to a
legal claim. In addition, even if he attempts to
determine the cause of the disease, he is confronted
with a mass of complex, controversial and rapidly
changing scientific data and opinions .. .. Jd. at
1384-85 (emphasis added).
-10-
The Maughan court went on to discuss the policy concerns
militating against restrictive application of the discovery rule,
observing:
To adopt a rule that encourages the filing of
lawsuits when one develops cancer but has no
knowledge of its cause, or which have several
possible causes “is not consistent with the
unarguably sound proposition that unfounded
claims should be strongly discouraged.” (citation
omitted).
In this time of crowded dockets, it is pure folly to
suggest that the plaintiff should file suit against all
sources of suspected carcinogens, with the impact
in economic and social costs, simply to prevent the
running of the statute of !imitations.
In addition, to holu * at the statute begins to run
at the time the cancer first develops would
encourage the government and the private parties
who have relevant information to delay disclosure
until after the statute has run, \eaving the plaintiffs i
with no opportunity to raise their claims. Jd. at
1386 (emphasis added).
See also, Curry v. Consolidated Rail Corp., 766 F Supp. 380
(W.D.Penn. 1991), Corrigan v. Burlington Northern R.R., Inc.,
612 F.Supp. 665 (D.Minn. 1985), and Hatfield v. Burlington
Northern Ry. Co., 747 F.Supp. 634 (D.Kan. 1990) (all holding that
the issue of when a cause of action accrues is a matter for the jury).
At the other extreme is a line of authority issuing from the
Seventh Circuit United States Court of Appeals. These precedents
discuss the F.E.L.A. discovery rule in terms wholly inconsistent
with the above-cited caselaw, and it is clear that courts adhering to
this Seventh Circuit decisional law perceive a substantially broader
ai.
judicial role in the resolution of discovery rule issues as a matter of
law. Thus, the court in Fries v. Chicago & Northwestern Transp.
Co., 909 F.2d 1092 (7th Cir. 1990), held that “[t}he tolling
permitted by Urie only extends the limitations period to the date
when the injury manifests itself, not beyond”. Id. at 1095
(emphasis added). Further, the Fries court specifically rejected the
Maughan and Dubose courts’ concern, supra, as to how many
potential causes of injury exist, holding instead that “the injured
plaintiff need not be certain which cause, if many are possible, is
the governing cause, but only need know or have reason to know of
a potential cause”. Fries, 909 F.2d at 1095. The Fries opinion
even suggests that an injured employee’s inability to ascribe his
injury to a non-work-related cause should reasonably lead the
employee to the inferential conclusion that the actual cause of injury
is work-related, thus triggering the statute of limitations. /d. at
1094. And, notably, this entire Seventh Circuit framework for
resolution of discovery rule issues is premised upon a view that the
discovery rule focuses on what an injured employee “could have
discovered”, Nemmers v. United States, 795 F.2d 628 (7th Cir.
1986), rather than on what he “should have known”. Rogers,
supra.
Moreover, this split of authority as to the proper meaning
and application of the discovery rule is not merely semantical. To
the contrary, it is clear that the varying definitions and
terminologies adopted by the above-referenced courts (and others)
inconsistently affect the substantive rights of the F.E.L.A. litigants
appearing before them. For example, a Missouri appellate court
has held that an F.E.L.A. hearing loss claimant’s deposition
admission - that more than three years before filing suit he “figured
that it was maybe the noise that was doing it” - was insufficient to
warrant summary judgment on the statute of limitations issue.
Kestner v. Missouri Pacific R.Co., 785 S.W.2d 646 (Mo.App.
1990); Yet the Seventh Circuit has held that a claimant’s mere
awareness, in 1981, that he was experiencing some diminishment in
his hearing capacity, warrants summary judgment where the cause
of action was not filed within three years of that date. Fries v.
Chicago & Northwestern Transp. Co., 909 F.2d 1092 (7th Cir.
-12-
1990). This obvious and irreconcilable lack of uniformity in the
construction and application of the F.E.L.A. discovery rule is
interfering with the substantive rights of countless F.E.L.A. litigants
in general, and has prejudiced Petitioner's substantive rights in
particular.
In Petitioner’s case, both the trial and appellate courts
relied heavily on Seventh Circuit precedent in concluding that
Petitioner’s cause of action was time-barred. In its opinion, the
Kansas appellate court candidly acknowledged that the only record
evidence supportive of this finding was limited to Petitioner’s
“admitted knowledge of contact with the known carcinogens”’; i.e,
his one-time reading of a warning placard on a railcar.
Nevertheless, under the standard espoused by the Seventh Circuit,
the court determined that this single event was sufficient to place
Petitioner on notice of the likely cause of his as-yet-unmanifested
cancer so as to preclude the protection otherwise afforded by the
discovery rule. Petitioner respectfully submits that this result is
wholly inconsistent with the majority of case holdings from other
jurisdictions, some of which have been cited above.
Accordingly, if the Seventh Circuit’s approach to the
discovery rule constitutes an improper restriction upon an F.E.L.A.
claimant’s right to have a jury resolve the statute of limitations
issue, then Petitioner and countless others have been wrongfully
deprived of their substantive remedy under the F.E.L.A. On the
other hand, if the Seventh Circuit has correctly identified the
construction and application to be given to the F.E.L.A. discovery
rule, then railroad defendants being sued in Missouri, the Fifth and
Tenth Circuits, and other jurisdictions adhering to similarly liberal
constructions of the discovery rule, are improperly being forced to
defend causes of action which should have been terminated by grant
of summary judgment. Because this Court is the final authority on
the proper meaning and application of the F.E.L.A., it should grant
certiorari to clarify the law relating to the discovery rule, thereby
resolving the split of authority described above and providing
needed guidance to courts encountering this issue in the future.
sa.
Il. THE TRIAL COURT’S RELIANCE ON THE
SEVENTH CIRCUIT’S RESTRICTIVE
CONSTRUCTION AND APPLICATION OF THE
DISCOVERY RULE SERVED TO DENY
PETITIONER HIS FEDERALLY GUARANTEED
SUBSTANTIVE RIGHT UNDER THE F.E.L.A. TO
HAVE THE MATERIAL ISSUES OF FACT IN
CASE RESOLVED BY A JURY. SINCE THIS
COURT IS THE FINAL AUTHORITY ON THE
STATUTORY CONSTRUCTION OF THE F.E.L.A.,
AND IN LIGHT OF THE GENERAL IMPORTANCE
OF THE ISSUE AT BAR TO COUNTLESS
PENDING AND FUTURE CASES, THIS COURT
SHOULD GRANT CERTIORARI TO RECTIFY
THE ERROR COMMITTED BELOW
As discussed above, and as candidly acknowledged by the
trial court in the case at bar, there is a split of authority as to the
proper construction and application of the F.E.L.A. discovery rule.
As also discussed above, this split of authority has resulted in a lack
of uniformity and consistency in the resolution of discovery rule
issues in cases brought under the F.E.L.A. It is Petitioner’s
position that the reliance by the courts in the instant case upon the
Seventh Circuit’s restrictive construction and application of the
discovery rule constitutes error, and that this error has resulted in a
denial of Petitioner’s guaranteed right to have the material issues of
mantener neciinctenlen hi tihel
In this regard, ica ieee da edhaiianeiditeeeuss
specifically intended to be part of the F.E.L.A.’s broad remedial
scheme. Boeing Company v. Shipman, 411 F.2d 365, 371
(Sth Cir. 1969)(“It is clear that the congressional intent in enacting
F.E.L.A. was to secure jury determinations in a larger proportion of
cases than would be true in ordinary negligence actions. In other
words, trial by jury is part of the remedy in F.E.L.A. cases”).
Thus, in F.E.L.A. cases, a trial court is required to take a
particularly liberal view of the scope of permissible inferences open
to the jury. Chicago & Great Western Ry. Co. v. Smith, 228 F.2d
-14-
180, 182 (8th Cir. 1955). Conversely, it is not the function of the
trial judge to weigh the evidence in making his findings of fact or
conclusions of law. Agristor Leasing v. Farrow, 826 F.2d 732 (8th
Cir. 1987).
Yet this is exactly what the trial and appellate courts,
relying on Seventh Circuit precedent, did in the case at bar.
Utilizing a “could have known” standard derived from Nemmers v.
United States, 795 F.2d 628 (7th Cir. 1986), the courts improperly
weighed the record evidence in order to ascertain whether Petitioner
could have known the work-related nature of his cancer upon
diagnosis. After disregarding the evidence demonstrating
Respondent’s blatant concealment of the toxic hazard to which it
had exposed Petitioner, and focusing so/ely upon Petitioner’s
admission that he had, on one occasion, observed a “carcinogenic
warning” on a railcar, the courts concluded that Petitioner could
have known of the cause of his cancer in 1984 and, therefore, that
there was no tolling of the statute of limitations. Petitioner submits
that both this reasoning, and the result, are untenable.
With regard to the proper standard for discovery rule
application, the previously cited authorities are clear that the test is
what the injured employee should have known, not what he could
have known. This is not only well-established in law, but it is
logical as well. The “should have known” test focuses on the
probabilities associated with reasonable human conduct. Under
this test, a trial court will seldom be acting within its discretion in
resolving discovery rule issues as a matter of law. Dissimilarly, the
“could have known” test diverts the judicial focus to the
possibilities associated with reasonable human conduct. Applying
this standard, a trial court enjoys broad discretion to engage in
unfettered speculation as to a given plaintiff's imputed level of
knowledge about the cause of his injury. Such an approach
obviously frustrates not only the general underlying purpose of the
discovery rule as a tool of equity, but also the specific mandate that
F.E.L.A. cases be resolved by juries to the greatest extent possible.
we a AE AMO RY
-15-
In the case at bar, it is clear that Petitioner’s justified
expectations under the F.E.L.A. have been frustrated. At the trial
level, the court openly admitted to the substantial likelihood that a
jury, hearing Petitioner’s discovery rule issue, would resolve the
matter in Petitioner’s favor. Subsequently, on appeal, the court
acknowledged that the factual record “seems to indicate that
[Petitioner’s] case should have gone to the jury” (A-10). In fact,
even applying the unduly restrictive standard espoused by the
Seventh Circuit, the appellate court was forced to concede that
“[{t}he present case is a difficult one” (A-12). Nevertheless, owing
to this improper construction of the discovery rule, which permits -
and even requires - a court to draw speculative inferences
prejudicial to the injured party’s position, both the trial and
appellate courts in the present case ruled that Petitioner was not
entitled to a jury determination of his case. To say the least, this
result cannot be reconciled with the fundamental principles upon
which the F.E.L.A. is premised, nor can it be construed
harmoniously with the better-reasoned precedents from the Fifth
Circuit, the Tenth Circuit, Missouri, and other jurisdictions, supra.
With the foregoing in mind, Petitioner submits that the
issue at hand is ripe for review. On the one hand, there is a split of
authority relating to an issue of necessary uniformity, and this split
of authority has now become even more profound in that the Kansas
judiciary has adopted the restrictive view endorsed by the Seventh
Circuit. On the other hand, Petitioner himself has suffered a total
deprivation of his federally guaranteed remedy under the F.E.L.A.;
i.e., he is an aggrieved party with a very substantial interest in the
proper resolution of the above issue. These factors justify
Petitioner’s prayer for certiorari. This Court’s intervention and
guidance are therefore requested.
-16-
CONCLUSION
For the reasons stated herein, certiorari should be granted.
Respectfully submitted,
Brian J. Niceswanger, #12531 Richard F. Lombardo
McDowell, Rice & Smith McDowell, Rice & Smith
a Professional Corporation a Professional Corporation
7101 College Boulevard 120 West 12th Street
Suite 200 Suite 1300
Overland Park, KS 66210 Kansas City, MO 64105
(913) 338-5400 (816) 221-5400
JON G. CARLSON*
DANIEL J. COHEN
CARLSON, WENDLER & ASSOCIATES, P.C.
90 EDWARDSVILLE PROFESSIONAL PARK
‘EDWARDSVILLE, ILLINOIS 62025
(618) 656-0066
Attorneys for Petitioner,
Burl Kline
*Counsel of Record
APPENDIX
APPENDIX A
IN THE SUPREME COURT
OF THE STATE OF KANSAS
JON G. CARLSON
P.O. BOX 527
EDWARDSVILLE, IL 62025
BURL KLINE,
APPELLANT,
Vv NO. 92-68-663-AS
ATCHISON, TOPEKA & SANTA FE
RAILWAY COMPANY,
APPELLEE.
You are hereby notified of the following action taken by the
Court:
Petition For Review by Appellant, Burl Kline.
Denied.
Date: 09/28/93.
Carol G. Green
Clerk
hed
APPENDIX B
No. 98,663
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
BURL KLINE,
Appellant,
Vv.
ATCHISON, TOPEKA & SANTA FE RAILWAY CO.,
Appellee
MEMORANDUM OPINION
Appeal from Wyandotte District Court, WILLIAM M.
COOK, judge. Opinion filed July 2, 1993. Affirmed.
Michelle M. Suter and Richard F. Lombardo, of
McDowell, Rice & Smith, of Overland Park, Kansas, and Jon
Carlson, of Edwardsville, Illinois, for appellant.
Douglas M. Greenwald and William P. Coates, Jr., of
McAnany, Van Cleave & Phillips, P.A. of Lenexa, for appellee.
Before PIERRON, P.J., RULON, J., and KAREN M.
HUMPHREYS, District Judge, assigned.
PIERRON, J.: In a case arising under the Federal
Employer’s Liability Act (FELA), 45 U.S.C. §§ 51 et seq. (1988),
Burl Kline (plaintiff-appellant) appeals from the district court’s
grant of summary judgment in favor of his employer, the Atchison,
Topeka & Santa Fe Railway Company (Santa Fe).
Kline is suffering from non-Hodgkin’s lymphoma, which
was first diagnosed in 1984. Kline filed suit in 1991, alleging Santa
ie.
Fe negligently exposed Kline to various carcinogenic chemicals.
Kline sought damages in excess of $10,000.
The district court granted Santa Fe’s motion for summary
judgment. The court ruled that the FELA three-year statute of
limitations had expired prior to the commencement of the action,
and, consequently, Kline’s suit was time barred. In an extensive
memorandum decision, the district court ruled that Kline knew or
should have known, upon diagnosis of his condition, that his illness
could have been caused by exposure to chemicals while working at
Santa Fe and was, therefore, time barred.
The undisputed facts upon which the decision was made are
as follows: Burl Kline worked for Santa Fe almost continuously
following his graduation from high school in 1956 until he took
medical retirement in 1988. Kline stated that, during his
employment, he was exposed to various chemicals, some on an
almost daily basis. Kline testified that in his job as a carman he
was asked to work on rail cars which either contained or had
recently contained chemicals. Residue of the chemicals often
saturated Kline’s clothing and work gloves. He stated he often had
to crawl under rail cars to do his job and, in the process, had to
work while kneeling or standing in substances which had been
dumped upon the ground. Kline stated he was exposed to the
following: vinyl chloride, polyvinyl chloride, radioactive materials,
herbicides including 2, 4-D and 2, 4, 5-T, diesel exhaust, PCB,
benzene, lead, formaldehyde, asbestos, carbon black, potash,
ammonia nitrate, anhy?».us ammonia, and styrene.
He was exposed to many of the foregoing substances up to
the last day of his employment.
Kline testified he was given virtually no instructions
regarding safe handling of the chemicals, nor was he given
sufficient protective gear.
abut»
Kline stated that stenciled health warnings appeared on
certain cars, some specifically warning that the substances
contained therein were known cancer-causing agents.
Kline also stated he suffered some health problems which
he recognized as probably work related. On numerous occasions he
suffered from severe itching on his arms. He attributed the itching
to exposure to week killers. Kline also coughed up blood during the
winter months. He attributed that to being exposed to diesel fumes
and smoke in unventilated buildings.
Kline stated he also suffered from swollen lymph nodes, a
condition which at times lasted up to a week. That condition began
in the late 1960s and reoccurred periodically until he was diagnosed
in 1984 with non-Hodgkin’s lymphoma following removal of a
swollen lymph gland.
Prior to being diagnosed, Kline’s physician told him the
lymph node swelling was due to infection or inflammation. He
stated his physicians did not indicate to him that the swelling was
work related.
Kline stated he frequently complained about working in or
around the chemicals. He stated he told different supervisors but
that they “didn’t want to hear about them.” Kline testified that
employees were discouraged from reading the warning placards on
the rail cars. He stated he was told by a supervisor not to worry
about vinyl chloride in its solid state because it was only dangerous
as a gas. Later the supervisor told Kline that the warning placard
regarding vinyl chloride did, perhaps, mean something.
Kline further testified that on one occasion he hesitated to
clean out a car which had a radioactive warning placard attached.
The supervisor removed the placard and had him clean the car.
Kline also testified he routinely checked the stenciled
warnings on the cars, apparently because he was hesitant to work
on the cars without knowing what was in them.
wee
Kline testified he did not suspect his exposure to the —
chemicals as a cause of his cancer until June 1990 when he read a
Kansas City Star newspaper article linking exposure to 2, 4-D and
2, 4, 5-T with the onset of non-Hodgkin’s lymphoma.
Upon reading the newspaper article, Kline asked his
* physician whether or not there could be a link between Kline’s
exposure to chemicals at work and his lymphoma. In his brief on
appeal, Kline states his physician replied that he did not know.
That characterization of the physician’s answer may not be entirely
accurate. In his deposition, Kline stated first that his physician told
that such exposure could cause the cancer. Kline then stated his
physician told him he did not know regarding the possible link.
On August 13, 1991, Kline filed suit against Santa Fe
alleging the railroad had negligently exposed him to hazardous
materials resulting in his lymphoma.
In granting Santa Fe’s motion for summary judgment, the
district court held that plaintiff's claim accrued at the time he first
became armed with the critical facts of both the existence and cause
of his injury. The statute commenced to run “when a reasonable
person would know enough to prompt a deeper inquiry into a
potential cause.” Nemmers v. U.S., 795 F.2d 628, 632 (7th Cir.
1986).
The court determined Kline had the same knowledge in
1984, when first diagnosed, as he did in 1990. Kline’s complaints
to his supervisors and his admission that he kept himself apprised of
what chemicals were in the cars was sufficient evidence that Kline
knew or should have known of the cause of his injury. His failure
to investigate the potential cause of his injury, the court concluded,
should not be borne by Santa Fe.
The court granted Santa Fe’s motion for summary
judgment, and Kline timely appeals.
-A-6-
The most important issue to resolve is whether the court
erred in finding that Kline should have known of the possible link
between his cancer and his occupational exposure to chemicals,
which required him to seek expert guidance as to the cause of his
cancer when it was diagnosed.
Kline contends the district court erred in ruling he should
have known that exposure to work-place chemicals caused his
cancer. Specifically, he contends this issue is one that must be
resolved by a jury.
Santa Fe contends the court ruled properly because Kline’s
claim was time barred as a matter of law.
“Summary judgment is proper where the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled
to judgment as a matter of law. The trial court is
required to resolve all facts and inferences which
may reasonably be drawn from the evidence in
favor of the party against whom the ruling is
sought. On appeal, we read the record in the light
most favorable to the party who defended against
the motion for summary judgment, and where we
find reasonable minds could differ as to the
conclusions drawn from the evidence, summary
judgment must be denied. [Citations omitted. ]
“Where the affirmative defense of the statute of
limitations is asserted, summary judgment may be
- proper where there is no dispute or genuine issue as
to the time when the statute commenced to run.
But in a tort action where the evidence is in dispute
as to when substantial injury first appears or
becomes reasonably ascertainable, the issue is for
determination by the trier of fact. [Citations
ite
omitted.|” Gilger v. Lee Constr., Inc.,249 Kan.
307, 311, 820 P.2d 390 (1991).
FELA cases are statutory negligence actions. Se2 Boeing
Company v. Shipman, 411 F.2d 365, 370, (Sth Cir. 1969). Two
additional elements should also be noted in considering this court’s
scope of review. First, “it is clear that the congressional intent in
enacting the FELA was to secure jury determinations in a larger
proportion of cases than would be true of ordinary common law
actions. . . .’[T]rial by jury is part of the remedy’ in FELA cases.”
411 F.2d at 371. “[{TJhe right of the jury to pass upon the question
of fault and causality must be most liberally viewed.” Chicago,
Rock Island and Pacific Railroad Co. v. Melcher, 333 F.2d 996,
999 (8th Cir. 1964).
Second, FELA actions impose on the plaintiff not the
burden of proving fault by a preponderance of the evidence, but
rather the burden of showing only s/ight negligence. Missouri-
Kansas-Texas Railway Company v. Hearson, 422 F.2d 1037, 1040
(10th Cir. 1970); Lane v. Gorman, 347 F.2d 332 (10th Cir. 1965).
No action may be maintained under FELA unless
commenced within three years from the day the cause of action
accrued. 45 U.S.C. § 56 (1988).
The district court specifically found:
“{Kline] knew of the nature and extent of his
exposure to hazardous chemicals which should
have caused a reasonably diligent person to suspect
that such exposure was a potential cause of his
disease. [Kline] had a duty to investigate potential
causes and he admittedly failed to ask anyone,
including his treating physician, whether there was
a causal connection between the exposure and his
illness. An investigation would have led to a
discovery of causation because medical science
recognized a causal connection between chemical
-A-8-
exposure and non-Hodgkin’s lymphoma long
before the filing of [Kline’s] action.”
The United States Supreme Court established the
“discovery rule” in the context of negligence cases in Urie v.
Thompson, 337 U.S. 163, 170, 93 L. Ed. 1282, 69 S. Ct. 1018
(1949). The rule was restated in United States v. Kubrick, 444
U.S. 111, 62 L.Ed.2d 259, 100 S.Ct. 352 (1979). There the Court
determined that a plaintiff's claim accrues at the time he is “armed
with the facts about the harm done to him” and should diligently
seek advice regarding causation. 444 U:S. at 123.
Kline relies heavily upon Maughan v. SW Servicing, Inc.,
758 F.2d 1381 (10th Cir. 1985). Although Maughan differs
somewhat from the present case in that it construes a Utah statute
of limitations rather than FELA, the case does concern a claim
involving suspected carcinogens.
In Maughan, the plaintiffs filed a wrongful death suit,
alleging that the leukemia which led to the deaths of their children
and spouses between 1960 and 1973 was caused by radiation
emanating from a nearby uranium processing plant. The trial court
granted defendant’s motion for summary judgment as to certain
plaintiffs on the ground that Utah’s two-year statute of limitations
for wrongful death actions had run. 758 F.2d at 1383.
The plaintiffs, on appeal, argued that statute was tolled
until they first discovered that the leukemia may have been caused
by radiation emanating from the plant.
The Tenth Circuit noted that the discovery rule may apply
to toll the statute of limitations until discovery of the injury and its
causation in latent disease and medical malpractice cases. 758 F.2d
at 1385 n.3. “The application of the discovery rule is based on a
balancing of the hardship the statute of limitations would impose on
the plaintiff against the difficulties of proof caused by the passage
of time.” 758 F.2d at 1384.
-A-9-
In Maughan, contrary to the present case, some of the
plaintiffs moved from the plant’s locale prior to or immediately
after the diagnoses of their disease. 758 F.2d at 1386. In the
present case, prior to being diagnosed, Kline worked with chemicals
for three to four years following his diagnosis. In Maughan,
plaintiffs’ physicians told them that the cause of the disease was
unknown. 758 F.2d at 1386. In the present case, Kline testified
that at the time of his diagnosis, he neither asked his physician nor
did the physician offer an opinion as to whether the lymphoma
could be work related. Kline stated, however, that, after he read the
Star article in 1990, he asked his physician whether a link might
exist. Kline’s physician replied that he did not know.
In Maughan, the court stated the link between low-level
radiation and cancer remains controversial among experts. 758
F.2d at 1386. In our case, Kline admitted to noticing the placards
on various rail cars warning of possible carcinogenic materials.
The first information Kline obtained linking specific substances he
was exposed to (2, 4-D and 2, 4, 5-T) with non-Hodgkin’s
lymphoma was the 1990 Star newspaper article. Kline’s expert
witness, Melvin D. Reuber, M.D., believed those chemicals most
responsible for Kline’s lymphoma were vinyl chloride and 2, 4-D.
Reuber’s opinion was based on studies published in medical
journals.
In Maughan, the Tenth Circuit noted the issue of when a
plaintiff knew or with reasonable diligence should have known of a
cause of action is in question of fact for the jury. 758 F.2d at 1387.
The court noted that plaintiffs’ doctors told them the cause of their
conditions were unknown. The court reasoned that such
information may affect when a reasonably diligent plaintiff would
have been put on notice to investigate and whether he then would
have discovered the cause of action. The court then reversed the
trial court, holding that the question of when the plaintiffs knew or
should have known of the facts constituting their cause of action
was a genuine issue of material fact and precluded a grant of
summary judgment. 758 F.2d at 1389.
-A-10-
In the present case, although Kline admitted he did not ask
his physician when he was diagnosed any questions regarding
causation, Kline did ask his physician in 1990. The physician’s
answer, at least according to Kline’s deposition, appears equivocal.
It is difficult to discern whether that answer, had it been given in
1984, would have put Kline on notice to investigate further. See
also Williams v. Borden, Inc., 637 F.2d 731 (10th Cir. 1980) (Trial
court’s grant of summary judgment reversed. In applying
Oklahoma laws, record did not sufficiently demonstrate under the
standard for a summary judgment that the plaintiff knew, or as a
reasonably prudent person should have known, that work exposure
to polyvinyl chloride [PVC] caused plaintiff's condition. Statute of
limitations had not commenced to run despite plaintiff's physician
telling her that her illness “could be” related to her work-place
exposure and despite plaintiff's own thoughts that work exposure
could be the cause of illness. 637 F.2d at 736); Stoleson v. United
States, 629 F.2d 1265 (7th Cir. 3980) (Plaintiff brought suit under
Federal Tort Claims Act alleging her heart problems were the result
of her working in an ammunition plant where she was exposed to
nitroglycerin. Court of Appeals reversed district court’s dismissal
of suit finding that two-year statute of limitations under Tort
Claims Act did not begin to run when claimant fiist suffered severe
anginal attack, when she suspected that nitroglycerin was the
culprit, or when she read union publications suggesting chronic
nitroglycerin exposure as cause of angina. Statute only commenced
to run when physician finally informed her of cause and effect
relationship between her exposure to nitroglycerin and her heart
problem. Based upon plaintiff's case, in part, plaintiff's physician
published article, documenting for the first time the relationship
between angina and chronic exposure to nitroglycerin; hence, there
was no medical evidence of cause and effect at time of plaintiff's
exposure. ).
The foregoing seems to suggest that Kline’s case should
have gone to the jury. It is worth noting, however, that none of the
foregoing authority involved cases where on-the-job warning signs
specifically alerted employees to possible carcinogens. However,
-A-11-
Kline’s testimony suggests that management (supervisors)
downplayed the import of those signs.
Santa Fe cites numerous cases where a grant of summary
judgment was upheld on appeal. A certain number of those cases
' dealt with issues similar to those present in this case, i.e., time-
[ barred FELA claims and the discovery rule.
In Fries v. Chicago & Northwestern Transp. Co., 909 F.2d
1092 (7th Cir. 1990), Fries (plaintiff) worked for C&NW as a
machinist from 1969 to 1987. In 1980 or 1981, Fries first noticed a
decline in his hearing and experienced tinnitus. Fries filed suit in
1987. The district court granted defendant’s motion to dismiss.
The Seventh Circuit affirmed, restating that the discovery rule
“imposes on injured plaintiffs an affirmative duty to investigate the
potential cause of his injury.” 909 F.2d at 1095. “[A] plaintiff has
a duty to investigate both the injury and any suspect causes.” 909
F.2d at 1096. The court also relied on evidence that Fries knew, at a
minimum, that work aggravated his hearing problem and that he
could not ascribe his hearing loss to any other cause. 909 F.2d at
1096.
:
Pe
In Bealer v. Missouri Pacific R. Co., 951 F.2d 38 (Sth Cir.
1991), the court upheld the district court’s decision that Bealer’s
(plaintiff) claim was time barred. Bealer claimed he did not fully
realize the extent of his injury or its cause until he received, in
1986, a letter from his doctor describing the permanency of his
hearing loss. The court determined, however, that Bealer was in
possession of critica] facts regarding his injury and causation as
early as the 1970s. Bealer had answered a questionnaire in his
claim form in which he indicated that as early as 1970 he was
aware that loud noises might cause hearing problems and that in
1983 he first noticed a hearing problem. Bealer waited until 1989
to file suit. 951 F.2d at 39-40. The Fifth Circuit concluded that,
because Bealer was aware of his injury and its causation (in 1979
he had been warned by his physician to wear earplugs on the job)
more than three years before he filed suit, his claim was time
barred.
-A-12-
See also Townley v. Norfolk & Western Railway Company,
887 F.2d 498 (4th Cir. 1989) (In a FELA case, plaintiff Townley
brought action against employer to recover for black lung disease.
The Court of Appeals upheld the district court’s dismissal of
Townley’s claim, finding that evidence showed Townley suspected
he suffered from black lung disease four years prior to being
diagnosed with the disease and some seven years prior to filing his
claim. The court noted that Townley, seven years prior to filing his
claim, sought black lung disease benefits from his employer.).
The present case is a difficult one. Kline is a man with a
high school education who worked for Santa Fe almost his entire
adult life. It is undisputed he was exposed to numerous chemicals
during his employment, some of them known to him as carcinogens.
Kline admitted reading various warnings posted on rail cars
regarding potentially hazardous substances. Apparently, Santa Fe
supervisors encouraged employees to disregard those posted
warnings. Kline complained about his exposure to substances. It is
difficult to discern from Kline’s testimony just what his fears were
regarding those complaints, i.c., was he fearful of developing
cancer? He testified he suffered from many bouts of intense itching
of his arms. Kline spoke of coughing up blood following prolonged
exposure to diesel exhaust. He also experienced swollen lymph
glands and was treated for that. Kline stated his physicians told
him the glands were swollen due to infection or inflammation.
Conversely, there appears to have been little, if any,
common public knowledge of the link between specific substances
Kline was exposed to (2, 4-D and 2, 4, 5-T) and non-Hodgkin’s
lymphoma. Kline’s expert in testifying to the link relied on articles
found in medical journals. Further, implicit in the newspaper article
is that the link between exposure and this disease was newsworthy
in 1990. Had Kline investigated to any degree in 1984 would he
have determined causation?
Kline asserts on appeal that after he read the 1990 article
he questioned his physician regarding possible causation. Kline’s
Pett “
-A-13-
appellate brief suggests the physician replied that he did not know.
That does not appear to be an entirely accurate reflection of Kline’s
deposition on the issue. The testimony was:
“A
“Q.
a
——_.
Have you asked your doctor, Dr.
Sawkar, whether or not your exposure to
chemicals at work have caused this
lymphoma?
[ asked him when I read that article.
And what did he say?
He says it can cause it, but it may -- he
said, “I don’t know.”
No.”
However, since the testimony concerning the impact of the
doctor’s counsel is equivocal, summary judgment could only be
justified on the basis of Kline’s admitted knowledge of contact with
known carcinogens. We believe it is. For the reasons set out above
and those set out in the trial court’s decision, we believe the claira is
tume barred.
“The statute of limitations apportions the
consequences of the flow of time. Until the victim
has a reasonable opportunity to discover the cause,
or a potential cause, the tortfeasor must bear the
consequences. Once knowledge of the cause is
available, any delay in pursuing the cause and
developing a case rests with the would-be
plaintiff.” Nemmers v. U.S., 795 F.2d 628, 632
(7th Cir. 1986).
Although this might be characterized as a harsh result,
there exists ample precedent to support the district court’s decision.
It is clear that court did not take this issue lightly as evidenced by
its 16-page memorandum opinion. The court did not err in granting
summary judgment in favor of Santa Fe.
-A-14-
The next issue we must address is whether the statute of
limitations was tolled by Santa Fe’s alleged superior knowledge and
alleged concealment of the cause of Kline’s cancer.
Kline contends Santa Fe knew exposure to some of the
chemicals to which he was exposed could cause lymphatic cancer.
He contends Santa Fe concealed that knowledge from him,
consequently inducing him not to act. He contends that because
Santa Fe’s concealinent induced him not to act, the railroad may not
rely upon the statute of limitations as a defense.
Santa Fe contends this issue was not properly brought
before the trial court. Santa Fe’s contention is clearly wrong. Kline
raised this issue below, and the trial court even disposed of the issue
in its memorandum opinion.
Kline’s contention is belied by his admission that Santa Fe
posted warnings regarding possible cancer-causing agents. The
following excerpt from Kline’s deposition is illustrative:
“Q. Don’t [the cars] have placards on them?
“—_ Some do. The vinyl chloride car, like I
say, it has a permanent stencil that says
it causes cancer, but its right up
underneath the side sill, and it’s -- you’ve
got to be looking for it to find it. And
we’ ve been kind of indoctrinated not to
read stencils, because if you don’t know
what it is, then you don’t have so many
problems.”
It is clear that, despite Santa Fe’s alleged efforts to
“indoctrinate” its employees, Kline was aware of the cancer
warning stenciled on the cars carrying vinyl chloride.
As the district court ruled, fraudulent concealment of a
plaintiff's cause of action only tolls the statute of limitations “until
a plaintiff has, or through due diligence should have had, notice of
ay ae
4 ty
1 ial i al tle ch aie
-A-15-
his claim . . . [or] until [he] could have discovered ‘facts giving
notice of the particular cause of action... .."” Hohri v. United
States, 782 F.2d 227, 246-47 (D.C. Cir. 1986), vacated on other
grounds 482 U.S. 64 (1987).
It appears that in light of the “discovery rule” discussed
above, and Kline’s admitted knowledge of the cancer warnings, the
district court properly found the statute of limitations had not tolled.
The final question is whether Kline’s on-the-job exposure to
carcinogenic substances less than three years prior to filing his
claim tolled the statute of limitations.
Kline was diagnosed with cancer in 1984. He worked at
Santa Fe until September 6, 1988. He filed suit in August 1991,
less than three years after his last day of work. Kline testified he
was exposed to various chemicals and carcinogens through his last
day of work. He contends that the theory of continuing tort applies
to this case. Under that theory, where an injury is caused by
continuing or repeated acts, “the statute of limitations may not
begin to run even when the tort is complete.” Fletcher v. Union
Pac. R. Co., 621 F.2d 902, 908 (8th Cir. 1980), cert. denied 449
U.S. 1110 (1981). Consequently, the FELA statute of limitations
was tolled until Kline stopped working. Kline contends he filed his
petition within the statutory time frame.
Kline contends that Fowkes v. Pennsylvania Railroad
Company, 264 F.2d 397 (3d Cir. 1959), provides the appropriate
rule to follow. In Fowkes (a FELA case), the employee brought an
action against his employer for traumatic arthritis which resulted
from a continuous series of small jolting impacts between 1924 and
September 1952 caused by a defective air hammer. It was
undisputed that the jolting caused intermittent pain for about two
years before September 1952. 264 F.2d at 398.
-A-16-
The court noted no one incident could realistically be
identified as the cause of significant harm. The court followed
Pennsylvania case law and determined that in a master/servant
relationship where the negligence is continuous “‘until the
cumulative effect produces disability . . . the master’s failure to
perform his duty . . . is regarded as a single wrong continuing so
long as the employment continues.’” The court concluded that the
statute commenced to run only when the employment terminates.
264 F.2d at 399.
In the present case, the district court rejected the Fowkes
and Fletcher rationale and relied upon Kichline v. Consolidated
Rail Corp., 800 F.2d 356 (3d Cir. 1986). In Kichline the court
held that the employee’s primary claim was barred by the FELA
statute of limitations. The plaintiff filed suit more than three years
after learning that h’s pulmonary disease had been aggravated by
exposure to diesel fumes in the work place. Plaintiff contmued to
work even though he was aware of the harmful effect of the fumes.
Plaintiff contended that the cause of action did not accrue until his
retirement when exposure to the harmful substance ceased. 800
F.2d at 357. The court held that because plaintiff had knowledge of
his injury and its cause more than three years }fore filing suit,
plaintiff had no claim for physical injuries occurring more than
three years prior to filing suit. 800 F.2d at 361.
Kline contends that, in the present case, the court erred in
relying on Kichline because Kline did not have knowledge of the
cause of his illness three years before filing suit. Kline, however,
ignores the bulk of the district court’s opinion. The court
specifically found that had Kline fulfilled his duty to diligently
investigate the cause of his illness, Kline would have known of the
possible cause. “Fowkes can be fairly read as implying that had
identification of the injury and its cause occurred before
employment terminated, the discovery . . . rather than the cessation
of work would have marked the beginning of the limitations period.”
800 F.2d at 359.
Sheet a
tt Ab hn Seed ead es Te ees tk «ith. Xe
ee ee ee a
-
-A-17-
The district court’s decision is well reasoned. Although the
result is unfortunate, there is no doubt the statute of limitations had
run prior to the filing of this action.
Affirmed.
-A-18-
APPENDIX C
IN THE DISTRICT COURT OF WYANDOTTE COUNTY, KANSAS
CIVIL DEPARTMENT
BURL KLINE, )
Plaintiff,
V. No. 91 C 3528
ATCHISON, TOPEKA & SANTA FE
RAILWAY COMPANY, )
Defendant.
M DUM D
This court heard final argument on defendant’s motion for
summary judgment on August 6, 1992. The issues are (1) whether
the statute of limitations ran on plaintiff's cause of action; (2)
whether the limitation issue should be decided by a jury; (3)
whether defendant is equitably estopped from relying on the statute
of limitations; and (4) whether the statute of limitations was tolled
under the “continuing tort” theory.
The following uncontroverted facts are found in the
discovery record in this case, copies of which are attached hereto:
1. Plaintiff worked for defendant almost
continuously from 1956 to September 6, 1988.
2. Throughout his employment, plaintiff was
exposed to vinyl chloride. There was a cloud of it over
other day. Freight cars carrying vinyl chloride had small
stencils that warned the chemical was a “known cancer
causing substance” or a “known cancer causing suspect
agent or agent.”
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3. On at least one occasion plaintiff worked on a
car containing radioactive material for almost four hours
after his supervisor pulled a placard off the car and after
plaintiff first refused to work on the car.
4. Plaintiff welded on a car containing naptha after
first refusing to do so because his supervisor told him he
would get someone else to weld.
5. Plaintiff knew what the cars contained because
he always liked to check with the 396 clerk before he
6. Plaintiff was exposed on numerous occasions to
naptha and weedkiller sprays. The cars’ runningboards
would be saturated and the chemicals soaked into the
leather gloves that plaintiff had to wear for three or four
weeks.
7. On a number of times, plaintiff complained
about working around chemicals at safety meetings because
he didn’t know which chemicals were bad and which
weren't. He specifically complained about working around
vinyl chloride, herbicides, pesticides, carbon block and
silica sand.
8. Employees “were kind of indoctrinated not to
read stencils, because if you don’t know what it is, then you
don’t have so may problems . . . the supervisors’ job |
guess is to get the cars worked, and if you question anyone
about these chemicals, they — it’s just a big hassle, and you
end up doing it anyway. You end up getting in the car and
cleaning it out. And if you know what it is it’s probably
worse for you than if you don’t know what it is.”
9. Although plaintiff contends a safety inspector
told him vinyl chloride was not bad unless it was either in a
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gas form or heated and melted, he later testified: “But then
he told me after we had pretty good discussion that maybe
the stencil did mean something . . . I don’t know what he
did with it. It was about time to go home.”
10. During his employment with defendant there
were numerous occasions when plaintiff experienced
illnesses. On approximately 100 occasions he suffered
severe itching of the arms after being exposed to vinyl
chloride. He coughed up blood when he was around
heaters that burned diesel fuel. He had bad headaches
when he was exposed to styrene which would go away after
he left the workplace. ‘The lymph giands in his neck
swelled occasionally and sometimes lasted a week or two
beginning in the late 1960’s or early 1970's.
11. Plaintiff was diagnosed as having a malignant
condition known as non-Hodgkin’s lymphoma in 1984.
The first symptom of the lymphoma was from a swollen
lymph node in his neck which was removed and found to be
malignant.
12. Plaintiff did not inquire of his treating
physician, or anyone else, as to the cause of his non-
Hodgkin’s lymphoma until he read an article in the Kansas
City Star on June 27, 1990, which described farmers who
contracted non-Hodgkin’s lymphoma after exposure to 2, 4-
D and 2, 4, 5-T, commonly known as Agent Orange. After
reading the Star article, plaintiff asked his doctor if his
exposure to chemicals at work caused his lymphoma. His
doctor said it could cause it but he didn’t know if it did.
13. Plaintiff's expert, Melvin D. Reuber, M.D.,
testified that exposure to a combination of chemicals
caused plaintiff's non-Hodgkin’s lymphoma. The main
ones were vinyl chloride, Agent Orange, dioxin, and diesel
exhaust. Plaintiff's chemical exposure was considerable
and was dangerous because he was getting it dermally
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through the skin and was breathing it in. Dr. Reuber had
known about non-Hodgkin’s lymphoma causation from
chemical exposure long before he got involved in this case.
The literature is voluminous, especially on chemicals like
PCB’s, vinyl chloride and dioxin.
Summary judgment is proper where the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. The trial court is required to resolve
all facts and references which may reasonably be drawn from the
evidence in favor of the party against whom the ruling is sought.
When the affirmative defense of the statute of limitations is
asserted, summary judgment may be proper when there is no
dispute or genuine issue as to the time when the statute commenced
to run. But in a tort action where the evidence is in dispute as to
when substantial injury first appears or becomes reasonably
ascertainable, the issue is for determination by the trier of fact.
Gilger v. Lee Constr., Inc., 249 Kan. 307, Syl. 1,2, P.2d___
(1991).
Plaintiff was diagnosed as having non-Hodgkin’s
lymphoma in 1984. He filed this lawsuit on August 13, 1991. The
injury for which plaintiff is seeking to hold defendant liable under
the Federal Employers’ Liability Act (FELA), 45 U.S.C.
§ 51, et seq., is solely for the non-Hodgkin’s lymphoma which he
claims he contracted as a result of continuous exposure to
hazardous chemicals in the workplace throughout his years of
employment with defendant.
In FELA occupational disease cases, a “discovery” rule has
evolved. The genesis of the discovery rule in FELA actions is the
1949 decision of the United States Supreme Court in Urie v.
Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949).
There the court held that the disease accrued on the date the injury
manifested itself. The Urie rule was refined in United States v.
Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed. 2d 259 (1979),
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wherein the court held that the plaintiff's claim accrued at the time
he first became armed with the critical facts of both the existence
and cause of his injury. See also Albertson v. T. J. Stevenson &
Co., Inc., 749 F.2d 223 (Sth Cir. 1984); Dubose v. Kansas City
Southern Ry. Co., 729 F.2d 1026 (Sth Cir. 1984). Kansas also
recognized the discovery rule in tort actions. Pancake House, Inc.
v. Redmond, 239 Kan. 83, 716 P.2d 575 (1986); Knight v. Myers,
12 Kan. App.2d 469, 748 P.2d 896 (1988).
As to the issue of causation, the statute of limitations
begins to run either when the tort claimant knows of the tortuous
acts or when a reasonably diligent person (in the tort claimant’s
position) reacting to any suspicious circumstances of which he
might have been aware would have discovered causation -
whichever comes first. Drazen v. United States, 762 F.2d 56, 59
(7th Cir. 1985). In Nemmers v. U.S., 795 F.2d 628, 631-32
(7th Cir. 1986), the court explained this objective test:
“Our question, then, is whether the running of the
statute depends on the plaintiff's personal
knowledge and reactions or whether it depends on
the reactions of the objective, ‘reasonable man.’
The answer is the latter, an answer reflected in the
formula ‘knew or should have known.” The first
part is actual knowledge, the second is an objective
inquiry. A person ‘should have known’ enough
when a reasonable man - ‘a reasonably diligent
person (in the tort claimant’s position)’ Drazen,
762 F.2d at 59 - would have known enough and
what the reasonable man had to know is not a
certain cause - for ‘truth’ is not within human
reach, and even after trial there may be much
uncertainty - but a potential
“The principle that the statute limitations starts
to run when a reasonable person would know
enough to prompt a deeper inquiry into a potential
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cause comes from the function of the statute of
limitations. It is to bring cases to the legal system
The statute of limitations apportions consequences
of the flow of time. Until the victim has a
reasonable opportunity to discover the cause, or a
potential cause, the tortfeasor must bear the
consequences. Once knowledge of the cause is
available, any delay in pursuing the cause and
developing a case rests with the would be plaintiff.
FELA cases must be commenced within three years from
the date the cause of action accrued. 45 U.S.C. § 56. In the instant
case, plaintiff admittedly knew in 1984 he was suffering from the
disease for which he is making claim. The only question, therefore,
is when did plaintiff realize, or by reasonable diligence should have
ascertained, that the non-Hodgkin’s lymphoma was caused by the
tortuous act of defendant?
The federal decisions have long held a would be plaintiff,
armed with knowledge of a potential cause of his injury, has an
affirmative duty to investigate. In United States v. Kubrick, 100
S.Ct. at 359-60, the court said:
“We thus cannot hold that Congress intended that
‘accrual’ of a claim must await awareness by the
4 plaintiff that his injury was negligently inflicted. A
| plaintiff such as Kubrick, armed with the facts
; about the harm done to him, can protect himself by
secking advice in the medical and legal community.
To excuse himself from promptly doing so by
postponing the accrual of his claim would
which is to require the reasonably diligent
presentation of tort claims . . . But however or even
i whether he is advised, the putative malpractice
plaintiff must determine within the period of
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limitation whether to sue or not, which is precisely
the judgment that other tort claimants must make.
If he fails to bring suit because he is incompetently
or mistakenly told that he does not have a case, we
discern no sound reason for visiting the
consequences of such error on the defendant by
delaying the accrual of the claim until the plaintiff
is
In a recent FELA action, Fries v. Chicago & Northwestern
Transp. Co., 909 F.2d 1092, 1095 (7th Cir. 1990) the court ~
reiterated the plaintiff's duty to investigate potential causes of his
injury of which he knows or should have known:
“. . . Both components require an objective
inquiry into when the plaintiff knew or should have
known, in the exercise of reasonable diligence, the
essential facts of injury and cause ... Moreover,
the injured plaintiff need not be certain which but
only need to know or have reason to know of a
potential cause. Nemmers, at 631, 32; Drazen,
762 F.2d at 59. That this rule imposes on injured
plaintiffs an affirmative duty to investigate the
potential cause of his injury has not been lost on
the courts. However, to apply any other rule would
thwart the purposes of the repose statutes which
are designed to apportion the consequences of time
between plaintiff and defendant.”
See also Albert v. Maine Cent. R. Co., 905 F.2d 541 (lst Cir.
1990); Kechline v. Consolidated Rail Corp., 800 F.2d 356 (3rd
Cir. 1986); Fletcher v. Union Pacific R. R. Co., 621 F.2d 902 (8th
Cir. 1980).
Although plaintiff herein claims he was unaware that the
chemicals he was exposed to during his years of employment could
cause non-Hodgkin’s lymphoma until he read the article in the
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Kansas City Star, that is only the first of the two-part examination
this court must make. The formula is “knew or should have
known.” The second part of the formula requires an objective
inquiry into when a reasonably diligent person in plaintiff's position
should have realized a potential relationship between his injury and
his long-time exposure to hazardous chemicals. If plaintiff had
reason to know of a causal connection between his injury and
chemical exposure in 1984, when he was diagnosed as having non-
Hodgkin’s lymphoma, then he had an affirmative duty to investigate
by seeking advice in the medical and legal community.
What critical facts were known to plaintiff when he was
told by his doctor in 1984 that he had non-Hodgkin’s lymphoma?
He actually possessed the same knowledge then as he did in 1990
except for reading the Kansas City Star article. He knew he had
been continuously exposed to hazardous chemicals at his workplace
over a number of years, including chemicals that warned of their
cancer causing potential. Plaintiff was admittedly fearful of
danger at a number of safety meetings. He knew his supervisors
were unconcerned about his safety complaints because they only
wanted the cars worked on and back in service. He also knew he
had experienced approximately 100 incidents of severe itching of
the arms after being exposed to vinyl chloride, coughed up blood
when he was around heaters that burned diesel fuel, and had bad
headaches when he was exposed to styrene which would go away
when he left the workplace. The lymph glands in plaintiff's neck
swelled occasionally, sometimes lasting a week or two, and it was
from the removal of a swollen lymph node in his neck that the
lymphoma was discovered.
If there is an affirmative duty to investigate a known
potential cause of an occupational disease, it is difficult to imagine
a would be plaintiff possessing any more critical facts than plaintiff
possessed in 1984. Surely a reasonably diligent man in plaintiff's
position would have made some inquiry into the cause of his illness.
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Plaintiff contends that if had inquired of his treating
physician in 1984 as to the cause of his cancer, his physician would
have told him, as he did in 1990, that he did not know whether
exposure to workplace chemicals caused the illness - only that it
was a possibility. The point is, his physician would not have told
him there was no connection between his workplace exposure and
his illness, a statement plaintiff might have been justified in relying
upon. If he had been told in 1984 that causation was only a
possibility, he would still have had a duty to investigate further into
causation, including seeking advice in the medical and legal
community. There is no reason to believe plaintiff's attorney and
expert were not available in 1984 as they were in 1990 or 1991 and,
as stated in Kubrick, if he had sought and received incompetent or
mistaken advice, the consequences of such error should not be
visited on the defendant by delaying the accrual of plaintiff's claim
until he is otherwise informed. Once armed with the critical facts of
a potential cause of a known injury, as the plaintiff was in 1984, the
statute of limitations starts to run and any delay in pursuing the
cause and developing the case rests with the would be plaintiff.
Plaintiff has cited several cases in support of his contention
that the statute of limitation defense should be resolved by the trier
of facts. I believe his reliance is misplaced. In Kracium v. Owen-
Corning Fiberglas Corp. 895 F.2d 444 (8th Cir. 1990) the issue
was when did plaintiffs know they had contracted asbestosis from
long-time exposure to asbestos dust. The court noted the difficulty
to diagnose the disease in the early stage and that people differ
markedly in their response to asbestos fibers which can cause a
broad range of clinical disorders, most of which have a long latency
period. Although the plaintiffs knew of the hazards of asbestos, the
court held that general knowledge of the hazard is far different from
knowledge that an individual has contracted a disease caused by the
hazard. None of the plaintiffs experienced any significant physical
symptoms prior to the limitation period and some were told by their
doctors that they had nothing to worry about. In Chamness by and
through Chamness v. U.S., 835 F.2d 1350 (1988), the issue was
whether plaintiff exercised due diligence in discovering causal
connection between injury and care received during child labor.
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Plaintiff consulted several doctors who could not explain the source
of her problems. Suit was delayed until plaintiff saw a 20/20
program and a new doctor concluded there was malpractice. Court
held that although statute of limitations is not tolled by ignorance
from a lack of diligence, a plaintiff seeking to understand the cause
of an injury may reasonably rely on advice and assurances by
doctors. In Smith v. States Marine Intern, Inc., 864 F.2d 410 (Sth
Cir. 1989) plaintiff suffered a loss of hearing from repeated
exposure to loud noises in an engine room. Plaintiff testified he
thought his hearing loss was due to a natural aging process. Court
held that plaintiff's hearing loss was a slow, progressive disability
and there was no evidence that plaintiff attributed or even suspected
its cause was related to his time spent as an engineer. In Williams
v. Borden, Inc., 637 F.2d 731 (10th Cir. 1980), plaintiff sustained a
“meat cutters” syndrome, a chronic obstructive pulmonary disease
from fumes during meat wrapping. Plaintiff sought medical advice
as to whether her asthmatic condition was caused by her working
conditions. Her doctor could only tell her it was a possibility.
There was no definite medical link between plaintiff's illness and
the polyvinyl chloride fumes until an article was written by three
doctors for the Journal of the American Medical Association, which
was the first time the phenomenon had been reported in the medical
literature. The ruling in Stoleson v. United States, 629 F.2d 1265
(7th Cir. 1980), was similar to Williams. There plaintiff developed
heart problems as a result of being exposed to nitroglycerin in an
ammunitions plant. Both her doctor and the company’s in-house
physician told her that exposure to nitroglycerin was not the cause
of her heart problems. Delay in filing suit was justified by her
reliance on their medical advice which medical science recognized
at the time given. In Kestner v. Missouri Pacific R. Co., 785
S.W.2d 646 (Mo.App. 1990), the court noted plaintiff was not told
by any doctor that his hearing loss was caused by exposure to loud
noises until 1988. One even told him his hearing loss would
improve. The court, therefore, held the trier of fact should decide
when plaintiff knew or should have known the cause of his hearing
loss.
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Unlike the cases cited above, there is no genuine issue as to
any material fact in the instant case. Plaintiff was given no
assurances his non-Hodgkin’s lymphoma would improve. He knew
of the nature and extent of his exposure to hazardous chemicals
which should have caused a reasonably diligent person to suspect
that such exposure was a potential cause of his disease. Plaintiff
had a duty to investigate potential causes and he admittedly failed to
ask anyone, including his treating physician, whether there was a
causal connection between the exposure and his illness. An
investigation would have led to a discovery of causation because
medical science recognized a causal connection between chemical
exposure and non-Hodgkin’s lymphoma long before the filing of
plaintiff's action. ;
Plaintiff contends the statute of limitations was tolled under
the “continuing tort” theory. Plaintiff did nct retire from the
railroad until September 6, 1988, and allegedly was exposed to
hazardous chemicais until his retirement. Fletcher v. Union Pac. R.
Co., 621 F.2d 902 (8th Cir. 1980), and some earlier cases cited
therein, support plaintiff's position.
I believe a better reasoned rule is found in Kichline vy.
Consolidated Rail Corp., 800 F.2d 356 (3rd Cir. 1986). There a
railroad employee continued to work after being told by his doctor
to stay away from diesel fumes because it was aggravating his
pulmonary disease. Suit was filed more than three years after
learning his condition would be aggravated by continued exposure.
In ruling that the continuing tort theory was not applicable, the
court held that although “the continuing violation concept implies
that the liability feature of the claim has not become stale, the same
cannot be said of the damages phase.” In FELA cases the running
of the statute of limitations affects not only the remedy but
eliminates the cause of action itself. On discovering an injury and
its cause, a claimant must timely choose to sue or foregoing that
remedy. The court held, however, that the statute of limitations did
not extinguish plaintiff's claim for aggravation which occurred
within three years of filing suit. The fact that plaintiff was aware of
the harmful effects of diesel fumes would go to his contributory
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negligence but might not bar his claim for alleged aggravation
during that period. Plaintiff could not, however, recover damages
for any injury or aggravation which occurred more than three years
before suit was filed. Kichline is more in accord with Kansas
decisions on continuing torts than is Fletcher. See McCoy v.
Wesley Hospital & Nurse Training School, 188 Kan. 325, 362
P.2d 841 (1961).
The defendant herein is not equitably estopped from
asserting the statute of limitations as a defense. Fraudulent
concealment of a plaintiff's cause of action only tolls the statute of
limitations until the plaintiff has, or through due diligence should
have had, notice of his claim or until he could have discovered facts
giving notice to the particular cause of action. Hohri v. United
States, 782 F.2d 227, 246-47 (D.C. Cir. 1986). Likewise, a
railroad is not estopped where the employee did not in fact rely on
its misrepresentations. Fletcher v. Union Pac. R. Co., supra.
Plaintiff finally asserts he should be allowed to pursue
damages for aggravation of his injury caused by exposure to
defendant. This would normally be permissible. Kichline v.
Consolidated Rail Corp., supra. Plaintiff retired on September 6,
1988, and was not exposed to workplace chemicals after that date.
He filed the within action on August 13, 1991. His actionable
exposure would be for the period from August 13 to September 6,
1988, a total of 17 working days.
Plaintiff has failed to suggest how he would prove that the
17 days of employment aggravated his non-Hodgkin’s lymphoma
or, more importantly, how a jury could reasonably measure
damages for any such aggravation. Damages may not be based on
conjecture or speculation. Morris v. Francisco, 238 Kan. 71, Syl.
3, 708 P.2d 498 (1985):
“In negligence action, recovery may be had only
where there is evidence showing with reasonable
certainty the damage was sustained as a result of
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the complained-of negligence. Recovery may not
be had where the alleged damages are too
conjectural or speculative to form a measurement.
To warrant recovery of damages, therefore, there
must be some reasonable basis for computation
which will enable the trier of fact to arrive at an
approximate estimate of the amount of loss.”
Defendant’s motion for summary judgment is sustained.
Court costs are assessed against the cost deposit.
This Memorandum Decision shall constitute a journal entry
of judgment and shall be final upon filing with the clerk of the
court. Entered and filed this Ist day of September, 1992.
/s/
William M. Cook
Division 2
ce: Jon G. Carlson
Richard F. Lombardo
Michelle M. Suter
William P. Coates, Jr.
Paul R. Hoferer
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.