White v. Union Pac. R.R. Co.

• Citation: 867 F.3d 997
• Decision Date: 15 August 2017
• Docket Number: No. 16-1958,16-1958
• Parties: Corey WHITE, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

867 F.3d 997

Corey WHITE, Plaintiff-Appellant,

v.UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.

No. 16-1958

United States Court of Appeals, Eighth Circuit.

Submitted: May 10, 2017

Filed: August 15, 2017

George T. Brugess, Michael Terranova, Cogan & Power, Chicago, IL for Plaintiff-Appellant.

Brody E. Dawson, Thomas Hayden, Union Pacific Railroad Company, Chicago, IL for Defendant-Appellee.

Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.

SMITH, Chief Judge.

Corey White sued Union Pacific Railroad Company ("Union Pacific") under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq ., alleging liability for a lower-back injury. The question we address is whether White's August 2012 suit is time-barred by the three-year FELA statute of limitations. More specifically, should White reasonably have known before August 2009—three years before filing suit—that Union Pacific's rough tracks were injuring his lower back? White, a locomotive engineer for Union Pacific, testified that in 2007 and 2008 he experienced recurring lower-back pain that he attributed to potholes in the tracks, and that this was the same pain for which he later sought medical treatment. Because White should have known about his injury and its cause more than three years before filing suit, the suit is time-barred. We therefore affirm the district court's¹ judgment.

I. Background

White first injured his back in a work-related mishap in 1999. As White pulled a work implement for a concrete company, he felt burning and tingling down to his hands and his knees. The injury kept him from working for seven or eight months. His chiropractor "thought maybe there were some dis[c] issues." But White believes that he healed from that injury "[f]or the most part."

In 2001, White began working for the Iowa Missouri Rail Link (IMRL) as a switchman and conductor.² He passed a physical examination and had no back problems while with IMRL. In 2004, White went to work for Union Pacific. He passed a Union Pacific medical exam. He worked as a switchman and conductor from 2004–2006, mostly on the "road" but sometimes in the yard. During this time, White had no back problems.

In 2006, Union Pacific promoted White from conductor to engineer. Engineers receive better pay and have different responsibilities. As an engineer, White was responsible for the brake and the throttle—in White's words, "the movement of that train." The nature of the engineer's job means that he pays close attention to the feel of the train. "[A]s an engineer," White said, "you feel these jarring dips and bumps," which White compared to "a pothole in the street." White noted that an engineer who was not prepared for a pothole would find the contents of his desk in his lap. And when the train would bottom out, "you would feel that through the bottom of the seat into your rump all the way up your back, just a jarring, tingling, sharp pain sensation."

Beginning in 2007, White worked frequently on the Clinton subdivision—a part of the railroad that runs from Boone, Iowa, to Chicago, Illinois. White's run began at Boone, in central Iowa, and ended at Clinton, on the Illinois border—about 200 miles away. On this run, several trains moved constantly back and forth over two sets of track, making this a high-density traffic section. White considered the Clinton subdivision track to be in the worst condition of any track that he traveled. White testified that during 2007 and 2008, he regularly experienced bottoming-out situations caused by irregularities in the track. The worst ones—which occurred at least once a run—caused him to feel pain in his lower back.

In 2010, White first saw a doctor for his lower-back pain. After seeing other doctors for further treatment, White left Union Pacific in 2011. In August 2012, he sued Union Pacific under FELA, alleging that its work conditions caused his lower-back injury.

Union Pacific moved for summary judgment, arguing that White's claim was barred by FELA's three-year statute of limitations. See 45 U.S.C. § 56. Based on White's statement that his pain had gotten progressively worse from 2001 to 2011, Union Pacific argued that his claim accrued in 2001. The district court disagreed.³ The court noted that White's pain was "sufficiently minimal as late as 2004 that he was cleared by [Union Pacific]'s medical personnel" and that White "did not seek medical treatment until September 2009."⁴ The court also noted that White's testimony about his injuries focused on what he knew as of summer 2009. Based on this evidence, the court concluded that a jury must determine, as a factual matter, when White's claim accrued.

At trial, White testified about his injury and its cause. He affirmed that beginning in 2007 and 2008, at least once every run his train would bottom out on the track. He affirmed that these situations would cause the type of lower-back pain for which he later sought medical treatment. Sometimes this "pretty bad pain" would run into his buttocks and down his leg as a sharp burning sensation. White attributed his pain to these bottoming-out situations—he said that he made this connection in his mind every run, day after day.

Based on that testimony, the district court granted judgment for Union Pacific as a matter of law, concluding that White's claim accrued before August 2009 and was therefore time-barred. The court noted that "both the record facts and the applicable law ha[d] evolved" since the court had earlier denied Union Pacific's summary judgment motion. White appeals, arguing that the district court should have allowed the jury to determine when his claim accrued.

II. Discussion

We review de novo whether the district court erred in granting judgment as a matter of law. Tatum v. City of Berkeley , 408 F.3d 543, 549 (8th Cir. 2005). Federal Rule of Civil Procedure 50 allows the trial court, after a party has been fully heard on an issue, to resolve the issue against that party and enter judgment accordingly if a reasonable jury could not find in that party's favor. Fed. R. Civ. P. 50(a)(1). The inquiry is the same as on summary judgment: Does the evidence present "sufficient disagreement to require submission to a jury," or is it "so one-sided that one party must prevail as a matter of law"? Tatum , 408 F.3d at 549 (quoting Kinserlow v. CMI Corp. , 217 F.3d 1021, 1025 (8th Cir. 2000) ). In making this decision, the court must draw all reasonable inferences in favor of the nonmoving party and must not judge credibility or weigh evidence. Id.

Here, the court decided as a matter of law that White's suit was untimely. "No action shall be maintained under [FELA] unless commenced within three years from the day the cause of action accrued." 45 U.S.C. § 56. When the injury is not a single traumatic one with immediate symptoms, but rather a latent one with symptoms appearing over time, "the cause of action does not accrue until the employee is aware or should be aware of his condition." Fletcher v. Union Pac. R.R. Co. , 621 F.2d 902, 906 (8th Cir. 1980) (citing Urie v. Thompson , 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) ). In addition to knowing of his condition, the employee must also know—or have reason to know—the condition's cause. Courtney v. Union Pac. R.R. Co. , 713 F.Supp. 305, 308 (E.D. Ark. 1989). "Both components require an objective inquiry into when the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury and cause." Fries v. Chi. & Nw. Transp. Co. , 909 F.2d 1092, 1095 (7th Cir. 1990) ; see also Sweatt v. Union Pac. R.R. Co. , 796 F.3d 701, 707 (7th Cir. 2015).⁵

White contends that he was not on notice about the aggravation of his lower-back injury until he saw a doctor in October 2010. Citing Fletcher , he discerns a rule in this circuit that a latent injury manifests itself "when a plaintiff first seeks medical treatment." This rule is necessary, according to White, because to hold that "garden variety aches and pains" trigger the statute of limitations would encourage laborers to rush to their doctors—and lawyers—with every minor ache. The premise is that such aches ordinarily would not cause a reasonable person to seek treatment, and thus are not serious enough to put someone on notice of an injury worth suing over.

While we have held that seeking medical treatment is a sufficient sign that a claim has accrued, we have never held that it is a necessary sign. Thus, in Fletcher , we held that the employee's cause of action accrued, at the latest, on the date that his back problem was medically diagnosed. Fletcher , 621 F.2d at 907. But we also noted that "[i]f his back bothered him constantly from [an earlier date], his cause of action accrued on that date." Id. at 907 n.7. Thus, a formal diagnosis is not required. See also Sweatt , 796 F.3d at 708 ("[A] plaintiff cannot wait until he receives a medical diagnosis to begin pursuit of his claim." (discussing Fries , 909 F.2d at 1095 )).

Fries , a Seventh Circuit case, is instructive. There, the court held that as a matter of law the plaintiff should reasonably have known about his hearing problems and their cause by 1981, four years before a diagnosis. Fries , 909 F.2d at 1095–97. The plaintiff had testified that in 1981 the frequency of the ringing in his ears would increase toward the end of the work day, worsen during the work week, and improve only on the weekend. Id. at 1094. He also said that the only cause he could think of was his work. Id . The court noted that even though the plaintiff lacked actual knowledge of his injury, and the injury had not reached maximum severity as of 1981, his symptoms as of that date imposed a duty to investigate. Id. at 1096. Otherwise, the court said, a plaintiff could "unilaterally postpone the running of the statute of limitations by negligently failing to investigate the fact of and cause of his injury." Id. (quoting district court opinion). The plaintiff's suit was...