Kichline v. Consolidated Rail Corp.

• Decision Date: 11 September 1986
• Docket Number: No. 85-1733,85-1733
• Citation: 800 F.2d 356
• Parties: Dale R. KICHLINE, Appellant, v. CONSOLIDATED RAIL CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 356

800 F.2d 356

Dale R. KICHLINE, Appellant, v. CONSOLIDATED RAIL CORPORATION, Appellee.

No. 85-1733.

United States Court of Appeals, Third Circuit.

Argued July 22, 1986.

Decided Sept. 11, 1986.

Barbara J. Rudquist (argued), DeParcq, Perl, Hunegs, Rudquist & Koenig, P.A., Minneapolis, Minn., Frederick N. Dorfman, Farage & McBride, Philadelphia, Pa., for appellant.

Jonathan F. Altman, (argued), Consolidated Rail Corp., Philadelphia, Pa., for appellee.

Before GIBBONS, WEIS, and SLOVITER, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

In this FELA case, plaintiff filed suit more than three years after learning that his pulmonary disease had been aggravated by exposure to diesel fumes in the work place. He continued to work even though he was aware of the harmful effect of the fumes. He alleges that the cause of action did not accrue until his retirement when exposure to the harmful substance ceased. The district court concluded the suit was time barred and granted summary judgment for defendant. 630 F.Supp. 50. We will affirm the district court's ruling on the primary claim, but will remand for further proceedings on the separate cause of action for any aggravation of injury which occurred within the three years preceding the filing of the action.

From October 1946 to November 1982, plaintiff was employed by defendant or its predecessors. He began as a carpenter but for about twenty years, beginning in 1955, he was a diesel mechanic and performed most of his duties outdoors. In 1975, he was transferred to the Bethlehem Engine Terminal, where for seven years he worked inside the diesel shop as an engine inspector.

Plaintiff inspected the locomotives in a maintenance shop that was approximately ninety feet wide and thirty feet high. To complete the tests, it was necessary to have the diesel engine running a substantial part of the time. Plaintiff testified in his deposition that because the ventilation was inadequate, the fumes in the building would become very heavy at times making it difficult to breathe and see. He also stated that in 1976 or 1977 he had complained to his foreman about the heavy concentration of fumes.

In 1978, because he was suffering shortness of breath, plaintiff consulted Dr. Mark I. Koshar. The doctor testified that in addition to cervical arthritis and hypertension, he diagnosed the plaintiff's condition as chronic obstructive pulmonary disease caused by thirty-five years of smoking cigarettes and aggravated by exposure to diesel fumes.

The doctor was aware from the beginning that plaintiff was a diesel mechanic, and consequently advised him that he would be well-served by avoiding pollutants, fumes, and other chemical exposures. A note in the doctor's record of May 22, 1980 gave the results of pulmonary function studies and stated that a nurse had told plaintiff to avoid pollutants.

Plaintiff consulted a pulmonary specialist in August 1978, who wrote to Dr. Koshar and confirmed his diagnosis of chronic obstructive pulmonary disease. Plaintiff testified that Dr. Kenneth Wildrick Associates, the pulmonary specialists, "gave [him] a verbal warning that diesel fumes certainly was detrimental to [his] health." He estimated that he received this warning in 1979, but the letter from the specialist to Dr. Koshar established that the consultation occurred in August 1978.

Although plaintiff believed his doctors' admonition took place in 1979, he conceded that he was told to stay away from diesel fumes, but nevertheless continued to work until November 1982. He brought this action under the Federal Employers' Liability Act on August 3, 1983.

Defendant moved for summary judgment alleging the suit was barred by the Act's three-year statute of limitations. Based on the depositions, the district court concluded that there was no dispute about the critical facts: the plaintiff's condition had been diagnosed in 1978 and he had been told to avoid diesel fumes in either 1978 or 1979. Hence, because plaintiff knew both of his injury and its causal connection no later than 1979, the district court decided the suit filed in 1983 was beyond the applicable three-year limitation.

The district court also stated that there was no evidence to show that after learning of his condition plaintiff informed his supervisor that his illness was caused or aggravated by the working environment. Nor did plaintiff request reassignment to a different position or special equipment to reduce his exposure to pollutants.

On appeal, plaintiff contends that summary judgment was inappropriate because an issue of material fact exists--when his doctors told him of the danger of diesel fumes. He asserts the doctors were unable to pinpoint the specific occasion when they advised him to avoid pollutants. Plaintiff further contends the limitation period did not begin to run until November 1982, when he ceased work for defendant.

We find no merit in the plaintiff's contention that crucial facts are in dispute. Although plaintiff is uncertain whether the warnings by his physicians took place in 1978 or 1979, that fact is not material because in either event the suit was filed beyond the statute of limitations. Moreover, plaintiff does not question the accuracy of the letter from Dr. Wildrick's office which definitely establishes that consultation with the pulmonary specialist took place in August 1978. On the strength of the evidence presented, a jury finding that the warnings and diagnosis took place after 1979 could not be upheld. Celotex Corp. v. Catrett, --- U.S. ----, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Consequently, we proceed on the basis that plaintiff knew of the aggravation of his lung condition and the possible cause of his injury--inhalation of diesel fumes at the shop--no later than 1979.

The statute of limitations for suits under the Federal Employers Liability Act, 45 U.S.C. Sec. 56, provides that "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued."

When an employee is injured in a traumatic incident, determination of the beginning of the limitations period generally presents little difficulty. When the injury, however, is an occupational disease that has an indefinite beginning and progresses insidiously over many years, the statute of limitations, particularly the statutory accrual factor, becomes more difficult to measure.

The Supreme Court recognized that the Congressional purpose in enacting FELA would be frustrated if a plaintiff were chargeable with knowledge of the slow progress of a disease, "at some past moment in time, unknown and inherently unknowable even in retrospect." Urie v. Thompson, 337 U.S. 163, 169, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949). In that case, plaintiff had contracted silicosis as result of his employment with the railroad. The Court rejected the theory that "each intake of dusty breath is a fresh cause of action" and reasoned the injury was "the product of a period of time rather than a point of time." Id. at 170, 69 S.Ct. at 1024.

Under Urie's rationale, when an occupational illness is the basis for the claim under FELA, the statute of limitations begins to run when the employee becomes aware of his disease and its cause. See Young v. Clinchfield R.R. Co., 288 F.2d 499 (4th Cir.1961).

The Urie reasoning has also been applied in suits under the Federal Tort Claims Act, particularly those where medical malpractice was alleged. Courts of appeals have ruled that a malpractice claim accrues against the government when a claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice. See Quinton v. United States, 304 F.2d 234 (5th Cir.1962); Tyminski v. United States, 481 F.2d 257 (3d Cir.1973). We applied a similar rationale to actions arising under the Longshoremen's and Harbor Workers' Compensation Act. Sun Shipbuilding & Dry Dock Co. v. Bowman, 507 F.2d 146 (3d Cir.1975). See also Fowkes v. Pennsylvania R.R. Co., 264 F.2d 397 (3d Cir.1959).

Many courts of appeals, including this one, had held that in some medical malpractice cases a plaintiff must also realize his injury was negligently inflicted before the limitation period begins to run. See Tyminski v. United States, 481 F.2d at 263; DeWitt v. United States, 593 F.2d 276, 278 (7th Cir.1979); Casias v. United States, 532 F.2d 1339 (10th Cir.1976); Reilly v. United States, 513 F.2d 147 (8th Cir.1975); Jordan v. United States, 503 F.2d 620, 622 (6th Cir.1974); Portis v. United States, 483 F.2d 670 (4th Cir.1973); Toal v. United States, 438 F.2d 222 (2d Cir.1971); Hungerford v. United States, 307 F.2d 99 (9th Cir.1962). The Supreme Court, however, was "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." United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979).

The Court in Kubrick cautioned that a plaintiff can and must "protect himself by seeking advice in the medical and legal community," id. at 123, 100 S.Ct. at 360 and "must determine within the period of limitations whether to sue or not." Id. at 124, 100 S.Ct. at 360. The Court acknowledged that were the rule different in the malpractice context, "it would be difficult indeed not to apply the same accrual rule to medical and health claims arising under other statutes and to a whole range of other negligence cases arising under the Act and other federal statutes." Id.

In Dubose v. Kansas City Southern Railway Co., 729 F.2d 1026, 1030 (5th Cir.1984), the court of appeals saw Urie and Kubrick as representing a continuum. "Urie signalled the inception of the discovery rule and Kubrick merely restated the rule while defining its outer limits." In ...