Dubose v. Kansas City Southern Ry. Co., No. 82-2307

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore REAVLEY, RANDALL and HIGGINBOTHAM; REAVLEY
Citation729 F.2d 1026
PartiesKathleen DUBOSE, Plaintiff-Appellee, v. KANSAS CITY SOUTHERN RAILWAY CO., Defendant-Appellant.
Decision Date16 April 1984
Docket NumberNo. 82-2307

Page 1026

729 F.2d 1026
Kathleen DUBOSE, Plaintiff-Appellee,
v.
KANSAS CITY SOUTHERN RAILWAY CO., Defendant-Appellant.
No. 82-2307.
United States Court of Appeals,
Fifth Circuit.
April 16, 1984.

Page 1028

Mehaffy, Weber, Keith & Gonsoulin, James L. Weber, Robert A. Black, Beaumont, Tex., for defendant-appellant.

Provost, Umphrey, Doyle & McPherson, Walter Umphrey, Joseph R. Steele, Gregory Thompson, Port Arthur, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before REAVLEY, RANDALL and HIGGINBOTHAM, Circuit Judges.

REAVLEY, Circuit Judge:

Kansas City Southern Railway Company (KCS) appeals an adverse judgment in a wrongful death action brought under the Federal Employers' Liability Act (FELA) 45 U.S.C. Sec. 51 et seq. (1976), complaining principally that the plaintiff's cause of action was time barred. We affirm, but remand for modification of damages.

I

William DuBose worked for KCS as a railroad car repairman from approximately 1950 to 1977, when he retired. In the course of his work he was exposed to various irritants or noxious agents, including sulphur, grain dust, petroleum coke dust, fiberglass and silica. DuBose began to develop breathing problems during the late 1960's. He was first admitted into the hospital in January 1977 for treatment of shortness of breath, and was diagnosed as having chronic obstructive pulmonary disease. Later in the month DuBose's doctors performed a right and left sympathectomy and removed a small portion of his right lung. He was then diagnosed as having tuberculosis. After his release from the hospital, DuBose began to receive treatment for the tuberculosis, spending some time at a tuberculosis clinic. He retired in July 1977 due to his health and breathing problems.

DuBose's health deteriorated during 1979, when he was hospitalized five times. During a December 1979 hospitalization, DuBose was diagnosed as having cancer of the lung. The carcinoma was discovered in the right upper lung, the site where earlier X-rays, beginning in January 1977, had revealed scarring. DuBose died on June 26, 1980. An autopsy confirmed the existence of diffuse pulmonary fibrosis, as well as a "poorly differentiated carcinoma--probably adenocarcinoma"--in the upper lobe of DuBose's lung.

Kathleen DuBose, DuBose's widow, filed this suit in September 1980, alleging that KCS's negligence caused DuBose to suffer injuries that resulted in his death. At trial, appellee's medical expert testified that the cancer could have been caused in either of two ways. First, pulmonary fibrosis, produced by the exposure to irritants, could have developed into scar carcinoma. Second, the cancer could have developed from the periphery of a tuberculosis scar. 1 KCS's medical expert opined that the cancer developed from a longstanding scar caused by tuberculosis.

The jury found for appellee on the issues of negligence and causation, returning a verdict against KCS for $200,000. On appeal KCS argues primarily the limitations question and its submission to the jury.

II

Section 6 of the FELA provides in part: "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." 45 U.S.C. Sec. 56 (1976). The thrust of KCS's argument on appeal is that DuBose's cause of action accrued early enough to bar appellee's recovery. Since the statute does not define when a cause of action accrues, we look to case law for the answer.

Ordinarily, a statute of limitations begins to run at the moment a plaintiff's legally protected interest is invaded. This injury usually coincides with the tortious

Page 1029

act. See, e.g., Restatement (Second) of Torts Sec. 899 comments c & e (1977). Often, however, plaintiffs may be unaware that they have been injured, even though the tort has been completed. Courts thus developed the "discovery rule" to mitigate the harshness of applying statutes of limitations strictly in cases involving medical malpractice, occupational diseases, and other types of latent injuries.

The Supreme Court created and supplied the rationale for the federal discovery rule in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), a case brought under the FELA by a steam locomotive fireman suffering from silicosis. Application of the traditional accrual rule would have barred any recovery, affording "Urie only a delusive remedy" by charging him "with knowledge of the slow and tragic disintegration of his lungs" "at some past moment in time, unknown and inherently unknowable ...." Id. at 169, 69 S.Ct. at 1024. Since there was "no suggestion that Urie should have known he had silicosis at any earlier date," the Court held that his cause of action accrued " 'only when the accumulated effects of the deleterious substance manifest[ed] themselves.' " Id. at 170, 69 S.Ct. at 1025 (quoting Associated Indemnity Corp. v. Industrial Accident Commission, 124 Cal.App. 378, 381, 12 P.2d 1075, 1076 (1932)).

We extended the Urie discovery rule to medical malpractice actions under the Federal Tort Claims Act (FTCA) in United States v. Reid, 251 F.2d 691 (5th Cir.1958) (Urie approach employed to determine accrual date of plaintiff's claim of negligent advice and treatment), and in Quinton v. United States, 304 F.2d 234, 235 (5th Cir.1962) (federal medical malpractice action accrues when "claimant discovered, or in the exercise of reasonable diligence should have discovered, the existence of the acts of malpractice upon which his claim is based"). Other federal circuit courts later applied the Urie approach to FTCA medical malpractice claims. See United States v. Kubrick, 444 U.S. 111, 120 n. 7, 100 S.Ct. 352, 358 n. 7, 62 L.Ed.2d 259 (1979); Waits v. United States, 611 F.2d 550, 552 n. 2 (5th Cir.1980). Courts understood the general rule in medical malpractice cases to be that the limitations period did not run until a plaintiff discovered both his injury and its cause. Id. 444 U.S. at 120, 100 S.Ct. at 358. In the five years prior to Kubrick, however, a few courts expanded the discovery rule to require that a plaintiff "know the legal implications of the facts, as well as the facts themselves, before the limitations period ... begin[s] to run." Id. at 121 n. 8, 100 S.Ct. at 359 n. 8. See Stoleson v. United States, 629 F.2d 1265, 1268 n. 3 (7th Cir.1980) (circuit courts recently had expanded rule to prevent claim's accrual until patient had reasonable opportunity to discover each element of his cause of action--duty, breach, causation, and damages).

In Kubrick, the Court disapproved of and cut back on the expanded discovery rule. "We are unconvinced that for statute of limitations purposes a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment." 444 U.S. at 122, 100 S.Ct. at 359. The Court reiterated the Urie rationale behind the discovery rule and approved its application to cases where the fact of injury may be unknown or unknowable and where the facts of "causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain." Id. Once a plaintiff possesses critical facts, however, legal and medical professionals are available to give advice to an injured person concerning whether he has been legally wronged. Id. While upholding the discovery rule as it had generally developed, the Court refused to extend the rule so as to defeat the limitations statute's "obvious purpose, which is to encourage the prompt presentation of claims." Id. at 117, 100 S.Ct. at 357. See id. at 125, 100 S.Ct. at 360-61.

III

KCS contends that Kubrick should not be applied to this case. KCS argues that the Kubrick test--no accrual until

Page 1030

plaintiff knows the facts of injury and causation--is limited to medical malpractice cases under the FTCA, and that the Urie test--no accrual until injurious effects manifest themselves--applies to occupational disease cases under the FELA. We disagree and hold that Kubrick is not limited to the FTCA or to medical malpractice cases. See Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir.1980). The Kubrick rule, we think, represents the Court's latest definition of the discovery rule and...

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93 practice notes
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...States v. Kubrick (1979) 444 U.S. 111, 122-123, 100 S.Ct. 352, 62 L.Ed.2d 259; Dubose v. Kansas City Southern Ry. Co. (5th Cir.1984) 729 F.2d 1026, 1028-1029; Whitman v. CSX Transp., Inc. (E.D.Mich.1995) 887 F.Supp. 983, 989.) We think the trial court's use of the "potentially caused" langu......
  • St. George v. BNSF Ry. Co., Case No. 12–cv–2592 SRN/FLN.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 7, 2014
    ...“accrual” standard); Kichline v. Consolidated Rail Corp., 800 F.2d 356 (3d Cir.1986) (same); Dubose v. Kansas City Southern Railway Co., 729 F.2d 1026, 1030 (5th Cir.1984) (finding that “Urie signaled the inception of the discovery rule and Kubrick merely restated the rule while 60 F.Supp.3......
  • Moll v. Abbott Laboratories, Docket Nos. 93309
    • United States
    • Supreme Court of Michigan
    • September 21, 1993
    ...type of case." Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 434, 527 A.2d 66 (1987). As the court in DuBose v. Kansas City S.R. Co., 729 F.2d 1026, 1031 (CA5, 1984), stated, whether a "plaintiff may be charged with awareness that his injury is connected to some cause should depend on f......
  • Anderson v. BNSF Ry., No. DA 14–0253.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 12, 2015
    ...887 F.2d 498, 501 (4th Cir.1989) ; Kichline v. Consol. Rail Corp., 800 F.2d 356, 359 (3d Cir.1986) ; Dubose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1030 (5th Cir.1984). In Kubrick, the Court held that the statute of limitations begins 380 Mont. 332to run “when the plaintiff knows both the......
  • Request a trial to view additional results
93 cases
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...States v. Kubrick (1979) 444 U.S. 111, 122-123, 100 S.Ct. 352, 62 L.Ed.2d 259; Dubose v. Kansas City Southern Ry. Co. (5th Cir.1984) 729 F.2d 1026, 1028-1029; Whitman v. CSX Transp., Inc. (E.D.Mich.1995) 887 F.Supp. 983, 989.) We think the trial court's use of the "potentially caused" langu......
  • St. George v. BNSF Ry. Co., Case No. 12–cv–2592 SRN/FLN.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 7, 2014
    ...“accrual” standard); Kichline v. Consolidated Rail Corp., 800 F.2d 356 (3d Cir.1986) (same); Dubose v. Kansas City Southern Railway Co., 729 F.2d 1026, 1030 (5th Cir.1984) (finding that “Urie signaled the inception of the discovery rule and Kubrick merely restated the rule while 60 F.Supp.3......
  • Moll v. Abbott Laboratories, Docket Nos. 93309
    • United States
    • Supreme Court of Michigan
    • September 21, 1993
    ...type of case." Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 434, 527 A.2d 66 (1987). As the court in DuBose v. Kansas City S.R. Co., 729 F.2d 1026, 1031 (CA5, 1984), stated, whether a "plaintiff may be charged with awareness that his injury is connected to some cause should depend on f......
  • Anderson v. BNSF Ry., No. DA 14–0253.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 12, 2015
    ...887 F.2d 498, 501 (4th Cir.1989) ; Kichline v. Consol. Rail Corp., 800 F.2d 356, 359 (3d Cir.1986) ; Dubose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1030 (5th Cir.1984). In Kubrick, the Court held that the statute of limitations begins 380 Mont. 332to run “when the plaintiff knows both the......
  • Request a trial to view additional results

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