Monarch v. Southern Pacific Transp. Co.

• Decision Date: 25 March 1999
• Docket Number: No. A081178,A081178
• Citation: 83 Cal.Rptr.2d 247,70 Cal.App.4th 1197
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 2216, 1999 Daily Journal D.A.R. 2883 Norman MONARCH, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent.

Page 247

83 Cal.Rptr.2d 247

70 Cal.App.4th 1197, 99 Cal. Daily Op. Serv. 2216,

1999 Daily Journal D.A.R. 2883

Norman MONARCH, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent.

No. A081178.

Court of Appeal, Second District, Division 1, California.

March 25, 1999.

Review Denied July 21, 1999.

Certified for Partial Publication. ^*

Visse & Yanez, Jess P. Yanez, San Francissco, for Plaintiff and Appellant.

Michael L. Johnson, Law Department, Union Pacific Railroad Company, Thompson Coburn, Thomas R. Jayne, James W. Erwin, Sacramento, for Defendant and Respondent.

SWAGER, J.

In a bifurcated proceeding, the jury found that appellant's action under the Federal Employers' Liability Act (hereafter the FELA) (45 U.S.C. § 51 et seq.) to recover damages for his loss of hearing was barred by the three-year statute of limitations. The court subsequently entered judgment in favor of respondent, ¹ and this appeal ensued.

Appellant complains that the trial court erred by bifurcating the statute of limitations issue, altering the order of proof, excluding evidence of equitable estoppel, instructing the jury, and dismissing his fraud cause of action. We find that no prejudicial errors were committed, and affirm the judgment.

STATEMENT OF FACTS

Appellant began his employment with Southern Pacific in 1963, and worked thereafter as a switchman, brakeman, and conductor.

During the course of his employment duties until 1990, appellant was regularly subjected to loud, irritating noises from the locomotive engine, wheels and train whistle. The intensity of the noise varied with appellant's location on the train and the duties he performed. Southern Pacific never informed appellant that the "noise" he experienced would cause permanent harm to his hearing.

In 1984, Southern Pacific retained M.T.S. Associates (hereafter M.T.S.), a consulting company that provides "hearing conservation programs" to the railroad and other industries, to collect sound level survey information, "educate employees on the hazards of noises and what they could do to protect themselves," and conduct hearing evaluations of Southern Pacific's employees. The primary purpose of the educational aspect of the M.T.S. program implemented for respondent was to inform "railroad employees that certain levels of sound could damage their hearing." Employees were also advised that when the decibel level reached the point that they were forced to "raise their voice" to be heard in conversation, they needed to use "ear protection." The hearing evaluations were "strictly for monitoring purposes," and did not diagnose the cause of hearing loss or notify employees that they had an "on-the-job related" injury.

Appellant became aware that he suffered from hearing loss in 1984, when he was directed by Southern Pacific to take a hearing test. According to a "test card" used by M.T.S., an audiogram performed upon appellant on May 25, 1984, indicated that he suffered hearing impairment that is an "increase in the decibel threshold" in the left ear, while his right ear then tested "normal." The audiogram result was consistent with appellant's complaint to the technician of "hearing difficulty" in his left ear. Appellant was furnished with fitted earplugs by the technician following the 1984 test. Appellant acknowledged that he "had a concern" with his hearing in 1984, but felt it "was minor."

Appellant's hearing was tested again by M.T.S. on April 6, 1989. He then told the technician that he thought his hearing was "worse." In regard to the state of his hearing in 1989, appellant testified at trial, "I knew I had a problem." An audiogram taken in 1989 found no significant change in the left ear, but detected deterioration in the higher frequencies in the right ear. ² The audiogram results revealed that appellant suffered from "high above normal range of hearing loss." Due to the "change in hearing" in the right ear, the evaluator made a notation on the test card questioning appellant's claim that he used hearing protection. A notation was also made that appellant was "put on the list for counseling" and further observation, and given the admonition, "strongly urge ear protection at all times in noise." ³ He was again "fitted for earplugs" for use "in the field." He was also scheduled for counseling during the next visit to the facility by M.T.S. late in 1989, but before then the contract with respondent was terminated. Appellant testified that he did not recall receiving earplugs in 1989, and did not wear hearing protection until he was directed to do so in 1992, although it was available to him earlier.

By no later than 1990, appellant suffered from "ringing" in his ears, which he actually described as "a sound of rushing air." Prior to June 15, 1991, he learned "through the media" that exposure to loud noise may damage hearing, and related the noise and hearing loss to "where [he] worked at the time." He also testified that "99 percent of the loud noises" to which he had been exposed were generated by the "railroad." Appellant claimed, however, that the "first time" he was informed he "had a hearing problem" was in a letter from Audiometric Services dated May 27, 1992, which referred to the change in his hearing found in the 1989 test. Before that date, he only entertained "a suspicion" of hearing loss. The letter advised Appellant was subsequently examined by "Dr. Riordan." Appellant told Dr. Riordan that he had "been exposed to noise produced by locomotive [engines] without wearing hearing protection." In Dr. Riordan's report, dated August 17, 1992, appellant indicated during the examination that he began experiencing ringing in the ears, or "continuous non-pulsating bilateral tinnitus," in 1988. ⁴ The "audiological evaluation" of appellant stated in the report was: "Bilateral high frequency sensorineural hearing loss consistent with exposure to noise and presbycusis." According to appellant's testimony at trial, he concluded that his "hearing loss was caused from work" only when he subsequently received Dr. Riordan's report in 1992.

appellant to consult a physician. Appellant testified that upon receiving the letter he associated his hearing loss with the noise to which he had been exposed at work, and intended to make a claim with Southern Pacific.

Larry Evans, who was also a conductor for Southern Pacific until he retired in 1993, was a witness for appellant. He testified that he became aware of the requirement for Southern Pacific employees to wear hearing protection. He was not permitted to give the date the use of hearing protection became mandatory or his personal practice before that time.

DISCUSSION

I.- III. ^**

IV. The Statute of Limitations Instruction.

Appellant also submits that the statute of limitations instruction given by the trial court was an incorrect statement of law. Specifically, he complains of language in the verdict form that asked the jury to determine whether he knew "or should ... have known that his hearing damage was potentially caused by his work at Southern Pacific?" (Italics added.) Appellant asserts that the " 'potentially work-related' standard" expressed in the instructions is contrary to the test of accrual of a FELA cause of action, and "drastically reduced" the proof required to support a finding against him on the statute of limitations issue.

The FELA provides that, "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. § 56.) Compliance with the three-year statute of limitations is a condition precedent for recovery in a FELA action. (Emmons v. Southern Pacific Transp. Co. (5th Cir.1983) 701 F.2d 1112, 1117; Frasure v. Union Pacific R. Co., supra, 782 F.Supp. at p. 479.) In cases of latent or progressive injuries, such as that suffered by appellant, the "discovery rule" directs that the cause of action does not commence to run until the plaintiff knew or should have known of the injury and its cause. (United 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" language was in accord with existing law. Under the discovery rule, the test is an objective inquiry into whether the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury and cause. (Albert v. Maine Cent. R. Co. (1st Cir.1990) 905 F.2d 541, 544; Townley v. Norfolk & Western Ry. Co. (4th Cir.1989) 887 F.2d 498, 501; Williams v. Southern Pacific Transp. Co. (S.D.Miss.1992) 813 F.Supp. 1227, 1231.) Constructive rather than actual knowledge of the fact of causation triggers a duty to investigate the possible causes of injury. (Fries v. Chicago & Northwestern Transp. Co. (7th Cir.1990) 909 F.2d 1092, 1096; Albert v. Maine Cent. R. Co., supra, at p. 544; Nemmers v. U. S. (7th Cir.1986) 795 F.2d 628, 631-632; Williams v. Southern Pacific Transp. Co., supra, at p. 1232.) Thus, in accordance with the objective test, "definite knowledge" that the injury is work-related is not necessary in order for the cause of action V. Preemption of Fraudulent Concealment Cause of Action. ⁷

                to accrue.  (Albert v. Maine Cent. R. Co., supra, at p. 544;  Dubose v. Kansas City Southern Ry. Co., supra, 729 F.2d at p. 1031.)   Once the plaintiff believes or suspects that the "potential cause of his injury" is work-related, an affirmative duty to investigate is imposed.  (Williams v. Southern Pacific Transp. Co., supra, at p. 1232, italics added;  see also Frasure v. Union Pacific R. Co., supra, 782 F.Supp. at p. 480.)  "A plaintiff need not be sure which cause is [70 Cal.App.4th 1204] predominant, as long as [he] knows or has reason to know of a potential cause."  (Tolston v.

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