Mix v. Delaware and Hudson Railway Co.

• Decision Date: 23 September 2003
• Docket Number: Docket No. 02-9200.
• Citation: 345 F.3d 82
• Parties: William S. MIX, Plaintiff-Appellant, v. DELAWARE AND HUDSON RAILWAY COMPANY, INC., d/b/a CP Rail System, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

345 F.3d 82

William S. MIX, Plaintiff-Appellant, v. DELAWARE AND HUDSON RAILWAY COMPANY, INC., d/b/a CP Rail System, Defendant-Appellee.

Docket No. 02-9200.

United States Court of Appeals, Second Circuit.

Argued: June 23, 2003.

Decided: September 23, 2003.

COPYRIGHT MATERIAL OMITTED

Gerard J. Martillotti, Davis & Martillotti, P.C. (Stephanie A. Gahagan, on the brief), Philadelphia, PA for Plaintiff-Appellant.

Scott A. Barbour, McNamee, Lochner, Titus & Williams, P.C. (Francis J. Smith, on the brief), Albany, N.Y. for Defendant-Appellee.

Before: WALKER, Chief Judge, and STRAUB and POOLER, Circuit Judges.

POOLER, Circuit Judge.

On June 28, 2000, William S. Mix ("Mix") filed an action against his employer, the Delaware and Hudson Railway Company, Inc., d/b/a CP Rail System ("D & H Railway"), pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., for hearing loss he allegedly suffered during the course of his employment, between September 1973 and April 2000. The United States District Court for the Northern District of New York (Norman A. Mordue, District Judge) granted summary judgment to D & H Railway on the basis that Mix's suit was barred by the statute of limitations. Specifically, the district court found that Mix knew, or should have known, of his hearing loss and its cause prior to June 28, 1997, the earliest date upon which his cause of action could have accrued to fall within the three-year statute of limitations period. The district court also held that the continuing tort doctrine does not toll the statute of limitations in FELA cases. Mix now appeals that judgment.

BACKGROUND

Between September 1973 and April 2000, Mix worked for D & H Railway at various railway yards as a laborer, trainer qualified conductor, and engineer. In November 1993, Mix consulted an otolaryngologist, Dr. Leonard Newton, concerning "ringing" in his ears. Mix concedes that, according to Dr. Newton's notes, he "complained of reduced hearing for some period of time and that it was especially notable in high pitches during the past 2-3 years." Mix also concedes that Dr. Newton's notes reported "a chronic problem with tinnitus, or ringing in his ears, which was occurring 95% of the time." Finally, Mix concedes that "the history notes that [he] was exposed to loud noises for years as the result of his employment with the railroad." During his deposition, Mix testified that he initially noticed the ringing and said, "[a]fter that my hearing just progressively got worse to the point where I'm at today." In response to the question, "At [the] time [you consulted Dr. Newton] did you have some belief that the ringing in your ear[s] and any problems you were having were related to your work?," Mix answered, "I'm going to say yes, it just kept getting worse." Moreover, Mix testified that Dr. Newton told him that he had a hearing problem.

In August 1994, Mix completed a medical history questionnaire when he renewed his engineer's license. In response to the question, "Have you ever worked on a noisy job?," Mix checked the "Yes" box and wrote "22 years [with the] Railway." In response to the question, "Have you ever been told or noticed you are hard of hearing?," Mix checked the "Yes" box and wrote "Both."¹ In response to the question, "Do you have any ringing or buzzing in your ears?," Mix checked the "Yes" box and wrote "Constant." During his deposition, Mix testified that when he wrote that he was hard of hearing, he meant that he was constantly having trouble understanding his wife. However, he testified that his answer on the application was an accurate statement. He also testified that his wife told him "all the time" that he was having trouble hearing.

Between 1993 and 2000, Mix underwent annual hearing exams administered by both his employer and the State of New York. Mix testified that he generally did not receive the results of these hearing tests. In 1997, D & H Railway's representative called Mix to inform him that he had failed the hearing test. However, the representative subsequently called him back to inform him that her prior call was a mistake and that he should "forget that she had even called." Mix testified during his deposition that at the time of this call, he "was having the ringing, having a problem hearing," which progressively worsened. Mix continued to work for D & H Railway until April 2000, when he failed his most recent hearing exam and was dismissed from his position.

Mix filed the instant suit June 28, 2000, pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"). Mix alleged that his hearing loss was caused by his exposure to noisy working conditions and that D & H Railway did not provide him with a reasonably safe working environment. Mix alleged that although D & H Railway required employees to wear earplugs in certain noisy areas, D & H Railway should have instructed employees to wear earplugs throughout the entire railroad yard. Mix alleged that D & H Railway failed to make earplugs available at all times during his employment and that he complained to management when they were not available. Mix also alleged that he suffered hearing damage, despite the fact that he generally wore ear protection while working as an engineer.

The United States District Court for the Northern District of New York (Norman A. Mordue, District Judge) granted summary judgment to D & H Railway on the basis that Mix's suit was barred by the statute of limitations. Specifically, the district court found that Mix knew, or should have known, of his hearing loss and its cause prior to June 28, 1997, the earliest date upon which his cause of action could have accrued to fall within the three-year statute of limitations period. The district court also held that the continuing tort doctrine does not toll the statute of limitations in FELA cases. Mix now appeals that judgment.

LEGAL STANDARDS

The Federal Employers' Liability Act provides that "[n]o action shall be maintained ... unless commenced within three years from the day the cause of action accrued." 45 U.S.C. § 56. With respect to "gradual injuries" — those which occur gradually, over long periods of time, due to ongoing exposure to harmful working conditions — the Supreme Court has adopted a "discovery rule" and held that the FELA statute of limitations accrues when the injury "manifest[s]" itself, taking into account whether the plaintiff "should have known" of his injury. Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). The Court subsequently applied this discovery rule to claims under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), holding that a tort claim does not accrue until the plaintiff discovers both his injury and its cause, but that accrual does not await awareness by the plaintiff that his injury was negligently inflicted. See United States v. Kubrick, 444 U.S. 111, 120-25, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Although this discovery rule was refined in the context of FTCA cases, the genesis of the rule can be traced to Urie and courts apply it to FELA cases. See, e.g., Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir.2001); Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092, 1095-96 (7th Cir.1990); Albert v. Maine Cent. R.R. Co., 905 F.2d 541, 543-44 (1st Cir.1990); Townley v. Norfolk & W. R.R. Co., 887 F.2d 498, 500-01 (4th Cir.1989); DuBose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1029-30 (5th Cir.1984). Thus, an FELA action accrues when "the plaintiff in the exercise of reasonable diligence knows both the existence and the cause of his injury." Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080 (2d Cir.1988) (citing Kubrick, 444 U.S. at 122-25, 100 S.Ct. 352).

DISCUSSION

I. Mix's Injuries Prior to June 28, 1997

We affirm the district court's decision to grant summary judgment to D & H Railway, to the extent that Mix's claim seeks to recover for injuries he suffered prior to June 28, 1997. The undisputed facts establish that Mix knew, or should have known, of the existence of his injury prior to that date. Mix consulted Dr. Newton in November 1993, and he concedes that the doctor's notes indicate that he "complained of reduced hearing for some period of time." Less than one year later, Mix completed an application to renew his engineer's license. In response to the question, "Have you ever been told or noticed you are hard of hearing?," Mix checked the "Yes" box and wrote "Both." During his deposition, Mix testified that he initially noticed ringing in his ears, prompting his visit to Dr. Newton in 1993, after which his "hearing just progressively got worse."

Mix argues that he consulted Dr. Newton for a distinct injury. Specifically, he argues that "[t]he problems with tinnitus and hearing loss are separate and distinct medical conditions." Even accepting the purported distinction between tinnitus and hearing loss, the record reflects that Mix complained of "hearing loss" prior to June 28, 1997. Specifically, he complained of "reduced hearing" to Dr. Newton in 1993 and admitted to being "hard of hearing" in 1994. He also testified that his hearing "progressively got worse" after his initial visit to Dr. Newton.

Mix also argues that he provided contradictory testimony concerning when he had notice of his hearing loss. He cites only one portion of his deposition transcript in which he said the following:

Q. Do you remember telling the healthcare provider back in 1994 that you had been told that you were hard of hearing or that you've noticed being hard of hearing?

A. Yes, my wife tells me all the time.

Q. What about back in 1994, were you aware of it then?

A. Somewhat, not to the extent that it is right now.

Q. When you say, "somewhat," you had noticed that you were hard of hearing back in 1994?

A. This is — how can I put this? This is like my wife, she's constantly saying things to me and I misunderstand what she's saying.

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