Anderson v. BNSF Ry.

• Decision Date: 12 August 2015
• Docket Number: No. DA 14–0253.,DA 14–0253.
• Citation: 380 Mont. 319,2015 MT 240,354 P.3d 1248
• Parties: Robert W. ANDERSON, Plaintiff and Appellant, v. BNSF RAILWAY, a Delaware Corporation, Defendant and Appellee.
• Court: Montana Supreme Court

380 Mont. 319

354 P.3d 1248

2015 MT 240

Robert W. ANDERSON, Plaintiff and Appellant

v.BNSF RAILWAY, a Delaware Corporation, Defendant and Appellee.

No. DA 14–0253.

Supreme Court of Montana.

Argued Jan. 28, 2015.

Submitted Feb. 11, 2015.

Decided Aug. 12, 2015.

For Appellant: Erik B. Thueson (argued), Thueson Law Office; Helena, Montana, Dennis Conner, Keith Marr, Conner & Marr; Great Falls, Montana, James T. Towe, Towe & Fitzpatrick; Missoula, Montana.

For Appellee: Jeff Hedger, Benjamin O. Rechtfertig (argued), Hedger Friend, PLLC; Billings, Montana.

For Amicus Curiae Montana Trial Lawyers Association: James P. Carey, Lamb & Carey; Helena, Montana.

For Amicus Curiae Association of American Railroads: Anthony Nicastro, Hall & Evans, LLC; Billings, Montana.

Opinion

Justice JAMES JEREMIAH SHEA delivered the Opinion of the Court.

¶ 1 Plaintiff, Robert Anderson, appeals from a judgment of the Eighth Judicial District Court, Cascade County, following a jury verdict against Anderson and in favor of BNSF Railway Company. We reverse and remand for a new trial.

¶ 2 We restate the issues on appeal as follows:

1. Should the District Court have decided the statute of limitations question as a matter of law?

a. Does the continuing tort doctrine apply to cumulative trauma injuries under the FELA?

b. Can an employee recover under the FELA for aggravation of a time-barred injury?

c. Do non-disabling aches and pains constitute an “injury” under the FELA?

2. Did counsel for BNSF make improper comments that deprived Anderson of a fair trial?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 Appellant, Robert Anderson, worked for BNSF for over 30 years. In 2008, he sued BNSF under the Federal Employers' Liability Act, 45 U.S.C. §§ 51, et seq. (FELA). Anderson alleged that over the course of his employment, BNSF negligently assigned him to work that caused cumulative trauma injuries to his musculoskeletal system

, particularly his lower back, and that BNSF knew or should have known the work it assigned him to would cause cumulative trauma injuries. Anderson further alleged that BNSF negligently left a hole in a walkway that Anderson stepped into, causing him to fall, and resulting in a disabling back injury. Anderson characterizes the injury from the fall as “the straw that broke the camel's back,” arguing that the fall was the tipping point that pushed his cumulative trauma injury from intermittent, resolving aches and pains into a disabling injury. Anderson also alleged that when he returned to work after falling, BNSF continued to assign him to work that it knew or should have known would further aggravate his cumulative trauma injury.

¶ 4 Anderson worked for BNSF from 1976 to 2009, primarily as a carman inspecting and repairing railroad cars in Havre, Montana. As a carman, Anderson was required to spend multiple hours a day driving Kubota tractors with no suspension, or pickups with insufficient suspension, over rough roads and railroad crossings. Through most of his career, Anderson experienced intermittent aches and pains in his back, shoulders, neck, and wrists. Those symptoms always resolved over time, however, and did not inhibit his ability to work. Anderson sought medical attention for the pain in the years before he retired, but was not diagnosed with a potentially disabling injury until 2008. In March 2006, Anderson's supervisor learned that Anderson was seeking medical attention for pain in his wrists, arms, and shoulders. The supervisor instructed Anderson to submit an injury/occupation illness report documenting the pain. A few days later, Anderson filed a report, stating that he was unaware of the full extent of his injuries but believed he had a rotator cuff tear

, degenerative disc disease, soft tissue injuries, and tendinitis. On the form, Anderson attributed his injury or occupational illness to years of coupling air hoses, riding the Kubota tractors with no suspension over rough roads, lifting parts to the side, overhead, and in awkward positions, as well as other job-related tasks. Anderson wrote that he first noticed the symptoms in January 2005. BNSF did not make any changes to Anderson's work assignments, equipment, or work conditions after receiving the injury/occupational illness report.

¶ 5 Anderson's primary claim at trial was that the jolting and vibration from driving the tractors and trucks over poorly maintained roads caused cumulative trauma to his lower back, resulting in a back disorder. According to the federal Occupational Safety and Health Administration (OSHA):

Back disorders can develop gradually as a result of a microtrauma

brought about by repetitive activity over time.... Because of the slow and progressive onset of this internal injury, the condition is often ignored until the symptoms become acute, often resulting in disabling injuries.... While the acute injury may seem to be caused by a single well-defined incident, the real cause is often a combined interaction of the observed stressor coupled with years of weakening of the musculoskeletal support mechanism by repetitive microtrauma.

Occupational Safety & Health Administration, OSHA Technical Manual, § VII, Ch. 1 (1999) available at http://perma.cc/ZQ8U–7DLQ. OSHA, the National Academy of Sciences, the Center for Disease Control, and the U.S. military all recognize cumulative trauma back injuries and use a definition similar to OSHA's. The acute injury that “may seem to be caused by a single well-defined incident” but is actually caused by “a combined interaction of the observed stressor coupled with years of weakening of the musculoskeletal support mechanism by repetitive microtrauma

” is characterized throughout literature on cumulative trauma disorders as “the straw that broke the camel's back.”

¶ 6 At trial, Anderson presented safety manuals produced from BNSF's files. These manuals were published by the trade organization, the Association of American Railroads, to which BNSF belongs. According to these publications, cumulative trauma accounted for over 60% of all railroad employee injuries. Safety audits in the 1980s revealed that numerous BNSF workers suffered from cumulative trauma injuries. One major audit noted that riding inspection tractors over rough roads caused shock and vibration to employees' musculoskeletal systems, resulting in back pain and injuries. In 1993, BNSF's chief safety expert issued a memo regarding ergonomics training which noted that as much as 40% of on-the-job injuries suffered by BNSF employees were caused by “the straw that broke the camel's back” cumulative trauma situations. The BNSF safety expert identified the “seven no nos” that caused cumulative trauma injuries, including: excessive repetitive motion; excessive forces being exerted by the body and its individual parts; pressure on muscles, tendons, nerves, or blood vessels; and vibration of the body or body parts.

¶ 7 Anderson presented evidence at trial that BNSF employees complained for decades that the vehicles and rough roads caused frequent pain, primarily to employee's backs, but BNSF neither investigated the complaints, nor took action to remedy the problem. Anderson also presented evidence that hundreds of carman reported cumulative trauma injuries similar to Anderson's and attributed to the same types of job assignments.

¶ 8 On December 23, 2008, Anderson stumbled and fell while working. According to Anderson, the fall resulted from a hole that was concealed by snow and lay between railroad ties on a switch. Anderson filed an injury report regarding the fall and sought medical treatment. Anderson's back worsened after the fall and his treating physician successively increased his physical restrictions. In October 2009, BNSF took Anderson off work due to his back injury. At trial, Anderson characterized the December 23, 2008 fall as a straw-that-broke-the-camel's-back scenario from which his cumulative trauma injury manifested.

¶ 9 Before trial, the parties filed cross-motions for summary judgment on the issue of the statute of limitations. BNSF argued that Anderson's injury/occupational illness report from March 2006 indicated that Anderson first began experiencing symptoms of his injury and recognized that they were work-related in January 2005. BNSF argued that under the discovery rule, as applied in FELA cases, Anderson was on notice in January 2005 that he had a work-related injury and the statute of limitations began to run no later than that date. BNSF also pointed to testimony that showed Anderson was experiencing difficulty doing manual labor due to his back in 2000–2001, and a 2002 medical record stating Anderson complained of back pain and was diagnosed with degenerative disc disease

. Anderson countered by pointing to his deposition in which he stated that he first noticed his symptoms in January 2005 but did not recognize that they were work-related until February 2006, when his doctor diagnosed his back condition as a work-related injury. Anderson also argued that his negligent assignment claim fell under the continuing tort theory, which tolls the statute of limitations until the tortious conduct ceases.

¶ 10 The District Court denied both motions for summary judgment, noting that for purposes of the discovery rule there was a factual dispute about when Anderson knew or should have known he had an injury, and the injury was work-related. The District Court declined to adopt a continuing tort theory because Anderson's claim fell within the discovery rule.

¶ 11 The case proceeded to trial, and the jury returned a verdict finding that Anderson's cumulative trauma claim was barred by the statute of limitations. The jury also found that BNSF did not negligently cause Anderson's December 23, 2008 fall.

¶ 12 After the verdict, Anderson filed a motion for a new trial. Anderson argued that the statute of limitations should have been decided in his favor as a matter of law, and that he was deprived of a fair trial because he was not allowed to present his negligent work...