Mounts v. Grand Trunk Western Railroad

• Decision Date: 06 December 1999
• Docket Number: No. 99-3151,99-3151
• Parties: (6th Cir. 2000) Mark S. Mounts, Plaintiff-Appellant, v. Grand Trunk Western Railroad, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 578

198 F.3d 578 (6th Cir. 2000)

Mark S. Mounts, Plaintiff-Appellant, v. Grand Trunk Western Railroad, Defendant-Appellee.

No. 99-3151

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 6, 1999

Decided and Filed: January 5, 2000

Appeal from the United States District Court for the Southern District of Ohio at Columbus, No. 98-00036--Joseph P. Kinneary, District Judge.

Paul Kevin Hemmer, CARROLL, UCKER & HEMMER, Columbus, Ohio, for Appellant.

Patrick Jerome Smith, Julie L. Atchison, PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, Ohio, for Appellee.

Before: COLE and GILMAN, Circuit Judges; CARR, DistrictJudge.^*

OPINION

R. GUY COLE, JR., Circuit Judge.

The sole issue on appeal is whether Mark S. Mounts, a lifetime railroad employee who can no longer hold his job because of hearing loss, filed suit against his former employer within the three-year statute of limitations of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. We find that he did not, and therefore AFFIRM the district court's grant of summary judgment for the defendant employer, Grand Trunk Western Railroad.

I.

Mounts is a 51-year-old man who has been a railroad employee all his career. After working as a brakeman for the New York Central Railroad for ten years, Mounts began working for Grand Trunk Western ("GTW") in March 1978. During his employment with GTW, which was primarily based in Ohio, he was exposed to a variety of loud noises in connection with his work, such as noises from brake exhaust, radios, yard retarders, and whistles. Mounts attributes his subsequent hearing loss to these noises on his job sites.

GTW began to conduct regular hearing tests of its employees in the late 1980s. In 1989, Mounts was administered a hearing test, after which he was told that he had a hearing loss. At a follow-up test in April 1990, the doctor's notes state that Mounts said he was having difficulty hearing communications at work and that his hearing had decreased over a period of time. Mounts was directed to undergo more extensive testing in Detroit, and testing by a different doctor in Ohio. The second Ohio doctor, Morris, discussed the results of the test with Mounts and discussed the possibility of a hearing aid. (GTW later refused to pay for a hearing aid after Mounts ordered one; a railroad official stated that he did not need one.) Mounts was out of work for five and a half weeks because of this hearing testing.

In July 1990, Mounts settled a hearing loss claim with GTW for $7,700 and signed a waiver of claims against the railroad. Mounts states that he was told by GTW's claim agent, Blackstone, that in order to receive his wages for the time off, he had to sign the waiver. The amount of money he received was marginally more than his back pay. Mounts also states that Blackstone told him that his hearing loss was minimal. Mounts did not take a physical or hearing test before returning to work.

In 1993, after a company audiogram showed hearing loss, Mounts was again directed to Detroit for a hearing test. The test, conducted in November 1993, showed a moderate loss for speech and severe loss for high pitched sounds in both ears. The doctor's report states that Mounts told him the conditions at work were noisy.

From about 1990, when GTW supervisors told him to wear ear plugs, until the time he ceased employment with GTW, Mounts wore hearing protection when he could. He said that sometimes the protection would prohibit him from hearing well enough to do his job, so he would remove it. Otherwise, though, he wore the protection that GTW gave him. Mounts was not told by GTW at any point that he had job restrictions.

In May 1994, Mounts went on medical leave as a result of a seizure (unrelated to his hearing claim). He returned to his position in April 1995, with a medical clearance and without any work restrictions.

GTW conducted another test of Mounts's hearing in 1996, which showed poorer hearing. On May 28, 1997, Mounts was removed from service with GTW because of his hearing impairment. He was referred by his personal physician to a specialist, who opined that Mounts is permanently disabled from his railroad work. GTW told Mounts to apply for a permanent disability annuity from the Railroad Retirement Board.

On January 8, 1998, Mounts sued GTW in district court under the FELA, 45 U.S.C. § 51, for: 1) negligence; and 2) maintaining improper and unsafe equipment in violation of the Boiler Inspection Act, 45 U.S.C. § 22 et seq. (1994). In count three of his amended complaint, Mounts alleged fraud in the signing of the 1990 waiver, or in the alternative, mutual mistake.

GTW filed for summary judgment based on the three-year FELA statute of limitations. See 45 U.S.C. § 56. The district court dismissed all three counts; granting summary judgment based on the statute of limitations on the first two counts, and dismissing the third count for failure to state a claim because it was dependent on the success of the underlying FELA claims. Mounts appeals.

II.

We review the grant of a motion for summary judgment under a de novo standard. See Babbitt v. Norfolk & W. Ry. Co., 104 F.3d 89, 90 (6th Cir. 1997). Summary judgment is appropriate "if 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding the motion, a court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). If the moving party shows this absence, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Matsushita, 475 U.S. at 587. To meet this burden, the nonmoving party may not rest on the mere allegations in the pleadings. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324.

III.

FELA is "a remedial and humanitarian statute . . . enacted by Congress to afford relief to employees from injury incurred in the railway industry." Edsall v. Penn Cent. Transp. Co., 479 F.2d 33, 35 (6th Cir. 1973); see also 45 U.S.C. § 51 (establishing employer liability); 45 U.S.C. § 54 (abolishing the assumption of risk defense as a matter of law). The FELA statute of limitations, 45 U.S.C. § 56, provides in part: "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued."

The Supreme Court, in the course of determining whether a plaintiff's claim for silicosis was barred by the statute of limitations, examined what "accrual" means in the FELA statute of limitations. See Urie v. Thompson, 337 U.S. 163 (1949). The Court rejected the approach that "each intake of dusty breath" is a new cause of action, as well as the other extreme, a rule that the employee should have filed as soon as he contracted the disease, before he even had any symptoms; stating that a rule which held an employee responsible for knowledge of the disease "at some past moment in time, unknown and inherently unknowable even in retrospect" would frustrate Congress's purpose in enacting FELA. Id. at 169. Instead, "'the afflicted employee can be held to be "injured" only when the accumulated effects of the deleterious substance manifest themselves.'" Id. at 170 (quoting Associated Indem. Corp. v. Industrial Accident Comm'n, 12 P.2d 1075, 1076 (Cal. App. 1932)). The Court later solidified what has become known as the discovery rule, finding that a cause of action "accrues" when an employee knows of the injury and its cause. See United States v. Kubrick, 444 U.S. 111, 123-24 (1979) (distinguishing, in a Federal Tort Claims Act case, discovery of the fact of the injury from discovery of legal liability)¹.

Mounts argues against a statute of limitations bar under two approaches. First, Mounts asserts that the claim is not time-barred because the aggravation of his hearing loss constitutes a separate injury and that the exposure at his GTW job constitutes a separate tort for FELA purposes; or at least that a question of facts exists on this point. As proof, Mounts asserts that he returned to work in 1995 fully qualified and that, after exposure to noise at work, he was terminated in 1997 because of his hearing loss. Second, Mounts argues that his claim is not time-barred for the injury that occurred during the three years prior to filing suit, irrespective of whether that injury is considered a new injury, aggravation of an old injury, or the result of a separate tort. In other words, no matter what the court calls his worsened hearing, Mounts asserts that he should be able to recover for damage to his hearing that occurred within the three-year statute of limitations period.

Both of these approaches fail under this circuit's precedent, which requires Mounts to establish a separate injury, thereby satisfying the three-year statute of limitations, before the court may conduct an examination of liability. This circuit has interpreted the discovery rule to bar FELA claims from being brought more than three years after the initial injury and its cause were discovered. See Aparicio v. Norfolk W. Ry. Co., 84 F.3d 803, 814-15 (6th Cir. 1996). At the latest, Mounts knew of his hearing loss and its cause in 1993, when his hearing was tested and determined to be deficient; a loss Mounts himself attributed to his employment.

The discovery rule applies even if the injury was later worsened by the same employer:

Any "aggravation" of the original negligently caused injury would only affect the plaintiff's damages, and would not require a separate determination of liability or causation....