BNSF Ry. Co. v. Phillips

• Decision Date: 04 December 2015
• Docket Number: NO. 14–0530,14–0530
• Citation: 485 S.W.3d 908
• Parties: BNSF Railway Company, Petitioner, v. James E. Phillips, Respondent
• Court: Texas Supreme Court

485 S.W.3d 908

BNSF Railway Company, Petitioner,

v.James E. Phillips, Respondent

NO. 14–0530

Supreme Court of Texas.

Opinion delivered: December 4, 2015

Rehearing Denied April 15, 2016

David E. Keltner, Marianne M. Auld, Jody Scott Sanders, Mary H. Smith, Kelly, Hart & Hallman LLP, Fort Worth, for Petitioner.

John Ronald Maclean III, MacLean Law Firm, Fort Worth, Sean Reed Cox, Law Offices of Sean Cox, Dallas, Fredric A. Bremseth, Bremseth Law Firm PC, Minnetonka, MN, for Respondent.

PER CURIAM

James Phillips sued his employer, BNSF Railway Company, under the Federal Employers' Liability Act (FELA) and the Locomotive Inspection Act (LIA) to recover damages for a latent occupational injury. After a jury trial, Phillips secured a judgment awarding him damages and costs, and a divided court of appeals affirmed. 434 S.W.3d 675. BNSF filed a petition for review in this Court, arguing, among other things, that Phillips did not timely file his lawsuit. Because we agree that no evidence supports the jury's finding that Phillips timely filed his lawsuit, we grant BNSF's petition for review and, without hearing oral argument, reverse the judgment of the court of appeals and render judgment that Phillips take nothing.

Phillips began working for BNSF's predecessor-in-interest in 1974 as a switchman in the Clovis, New Mexico railway yard. Four or five years into his career at BNSF, Phillips began to ride on locomotives as a brakeman. Phillips received promotions that made him a conductor in 1984 and an engineer in 1994. While riding on the locomotives, he experienced "rough riding locomotives" with poorly maintained seats, which he alleged caused him to suffer long-term vibratory exposure resulting in an occupational injury. Phillips sued BNSF under the FELA and the LIA. After a jury trial, the trial court rendered judgment awarding Phillips $1.9 million in costs and damages. BNSF appealed, arguing, among other things, that no evidence supported the jury's finding that Phillips's lawsuit was timely filed. The court of appeals affirmed, holding that because there was conflicting evidence in the record concerning when the injury occurred, the jury was entitled to weigh that evidence and reach its finding that Phillips's lawsuit was timely. See id. at 682. BNSF petitioned this Court for review, again arguing that there was no evidence to support the jury's finding that Phillips's lawsuit was timely filed.

Although FELA claims are creatures of federal statute, federal and state courts share concurrent jurisdiction over them. 45 U.S.C. § 56. Accordingly, we apply federal substantive law and our own procedural law to this dispute. See In re GlobalSantaFe Corp., 275 S.W.3d 477, 485 (Tex.2008).

The statute of limitations for an FELA claim is three years. 45 U.S.C. § 56. A plaintiff may not bring an independent cause of action for an alleged violation of the LIA, but rather must bring the claim as part of an FELA action. See Urie v. Thompson, 337 U.S. 163, 188, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). We therefore apply the FELA limitations period to both of Phillips's claims. Unlike most statutes of limitations, which generally operate as an affirmative defense, an FELA plaintiff bears the burden of proving that the lawsuit was timely filed. See Bealer v. Mo. Pac. R.R. Co., 951 F.2d 38, 39 (5th Cir.1991) (per curiam). Federal courts apply the discovery rule when the plaintiff has suffered a purely latent injury. Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 229 (5th Cir.1984). According to the United States Supreme Court, a claim accrues under the discovery rule "when the accumulated effects of the deleterious [working conditions] manifest themselves." Urie, 337 U.S. at 170, 69 S.Ct. 1018 (citation omitted). The United States Court of Appeals for the Fifth Circuit further refined the rule by stating that "a claim accrues when a plaintiff knows or should know that his injury is work related, that is, when a plaintiff is aware of the critical facts concerning his injury and its causation." Bealer, 951 F.2d at 39. While the ultimate determination of when a plaintiff's cause of action accrues is generally one of fact, the question becomes one of law when an overwhelming array of evidence indicates that the case is time-barred. Crisman v. Odeco, Inc., 932 F.2d 413, 417 n.4 (5th Cir.1991).

BNSF argues that no evidence supports the jury's finding on timeliness. No evidence exists when:

(a) [there is] a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the vital fact.

City of Keller v. Wilson , 168 S.W.3d 802, 810 (Tex.2005) (citation omitted). When determining whether any evidence supports a judgment, we are "limited to reviewing only the evidence tending to support the jury's verdict and must disregard all evidence to the contrary." Mancorp, Inc. v. Culpepper , 802 S.W.2d 226, 227 (Tex.1990). We view the evidence and possible inferences in the light most favorable to the verdict. Id. at 228. Reviewing courts, however, may not ignore contrary evidence that is conclusive. City of Keller , 168 S.W.3d at 816–17.

In Bealer, an instructive case, the Fifth Circuit held that an FELA plaintiff's lawsuit was time-barred as a matter of law.

Bealer, 951 F.2d at 39. There, the plaintiff sued the Missouri Pacific Railroad Company in October 1989, "claiming that his employment as a switchman caused a hearing disorder which has left him permanently disabled." Id. The district court granted the railroad's motion for summary judgment on the timeliness issue, concluding that the plaintiff "knew or should have known that his injury was work related well before 1986." Id. Despite contrary evidence regarding the plaintiff's subjective connection of his hearing problems to his employment, the Fifth Circuit affirmed the summary judgment based on the following facts:

In 1979 Appellant told a doctor that he associated hearing loss with a train whistle. At that date, the doctor advised him to wear ear plugs on the job. Appellant first complained of dizziness in 1984, and in 1985 he was terminated from employment because of his ear problems. At his deposition and in response to interrogatories, Appellant stated that he was frequently bothered by loud noises on the job, that whistle blasts caused ringing in his ears, and that he often complained to engineers and co-workers about noise levels on the job. He also testified that he was unaware of any exposure to high noise levels outside of the work place that might have caused problems with his ears. The doctor's letter that Appellant received in 1986 indicates that Appellant's symptoms had been the same for "quite some time." Finally, Appellant himself testified that there was no substantial change in his ear and hearing problems in 1984, 1985, or 1986.

Id. at 40.

The facts in this case are similar to those in Bealer. Phillips filed his lawsuit on April 13, 2007, and therefore bore the burden of proving that his claim accrued no earlier than April 13, 2004. See 45 U.S.C. § 56 ; Bealer, 951 F.2d at 39. The evidence conclusively establishes that Phillips failed to meet that burden. Phillips testified that he frequently worked on "rough riding locomotives" with poorly maintained seats over his thirty-one-year tenure with BNSF, twenty-six of which were spent riding locomotives. Phillips would report these rough-riding conditions or poorly maintained seats to railroad management via radio. Although Phillips expressed a reluctance to using the word "complain" to describe his own reporting, he testified that he "heard his coworkers complaining [of the same conditions] on the radio all the time." In 1998, Phillips sought chiropractic treatment for tenderness up and down his spine. In preparation for that treatment, Phillips submitted an intake form indicating that the soreness in his spine was aggravated by "rough riding railroad engines," although he did not believe that his injury arose out of his employment. Phillips also indicated on the intake form that he had suffered from lower back pain, neck pain or stiffness, cramps or backache, ear noises, and tingling or numbness in his hands, legs, and feet. Because Phillips's spine would not respond to adjustments, Phillips's chiropractor, Dr. Washburn, ordered an MRI in 2003. The reviewing radiologist diagnosed Phillips with minor bulging in his discs, intravertebral hemangiomas, and most importantly, a spinal disorder, spondylolysis. These conditions and injuries, which were diagnosed in 2003, are the same types of injuries on which Phillips bases his lawsuit against BNSF. In 2005, a neurologist confirmed the radiologist's diagnosis and informed Phillips that, based on his MRI, he should have come into the doctor's office in a wheelchair and had "climbed up the last ladder of a locomotive as of that day." Despite the neurologist's grave outlook on Phillips's spinal health, Phillips testified that there was no dramatic change in his spinal health leading up to 2005, but rather that his 2005 diagnosis was when he finally was "properly diagnosed by a neurologist."

The evidence in this case...