Whitman v. CSX Transp., Inc.

• Decision Date: 02 June 1995
• Docket Number: No. 94-CV-10152-BC.,94-CV-10152-BC.
• Citation: 887 F. Supp. 983
• Parties: Larry A. WHITMAN, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant. Robert K. HOBSON, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant.
• Court: U.S. District Court — Western District of Michigan

887 F. Supp. 983

Larry A. WHITMAN, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant.

Robert K. HOBSON, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant.

No. 94-CV-10152-BC.

United States District Court, E.D. Michigan, Northern Division.

June 2, 1995.

COPYRIGHT MATERIAL OMITTED

Daniel T. Sawers, Buffalo, NY, Randall S. Winston, Waterford, MI, for plaintiffs.

A.T. Lippert, Saginaw, MI, for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

CLELAND, District Judge.

I. Introduction

Plaintiffs have brought actions under the Federal Employers' Liability Act ("FELA"), alleging that they suffered hearing loss as a result of the defendant's negligence in failing to provide them with a safe place to work. Defendant's motion for summary judgment (D. 9) argues that the plaintiffs' claims are barred by the applicable statute of limitations.

After reviewing the motion and the plaintiffs' response thereto, the court determines that the matter can be determined without a hearing. The motion will be granted.

II. Background

Plaintiffs are long-term employees of the defendant railroad; both commenced their employment with the defendant in 1969, and both claim hearing loss as a result of the defendant's negligence. They filed separate complaints on May 24, 1994, and the cases were consolidated by order of this court on August 24, 1994.

Whitman

Plaintiff Whitman completed a hearing loss questionnaire supplied by the defendant on May 24, 1990, exactly four years before filing this suit. (See Exhibits A and B to Defendant's Brief). The following are some of the questions on the form and the answers Whitman supplied:

Do you have any difficulty in hearing? Yes.

When did you first notice this difficulty? about 1986.

How do you feel your hearing is at the present time? Poor.

Do you have any idea what may have caused any hearing difficulty which you have? If yes, explain what you believe and why. Yes. Constant humming noise, air blowing, horn and bell sounding in ears when on engs sic, wheels squealing on box cars when working on ground.

Have you ever worked in any non-railroad job which was noisy? No.

Do you believe that your difficulty in hearing has any connection with your employment by a railroad. If so, why do you think that? Yes. Constant humming noise from eng sic horn and bell sounding in ears, the squeal of box cars wheels on rail.

Has any physician or medical care provider ever told you that you had hearing loss? No.

Has any physician or medical care provider ever suggested that you have hearing loss which is connected with your employment? No.

Whitman circled the word "yes" and placed an X next to the word "currently" to indicate that he had the following conditions: "difficulty in understanding spoken words in a noisy environment," "feeling that familiar sounds are muffled," and "need to be near or look at a person speaking to help understand the words."

In response to Defendant's Request for Admission in connection with this litigation, signed by Whitman's counsel on November 29, 1994, Whitman admitted that he answered and signed the hearing loss questionnaire and that the copy submitted by the defendant is a genuine and authentic copy of the original questionnaire. (Exhibit B to Defendant's Brief). However, he denied all of the following:

that he "truthfully and accurately answered the questions in the railroad hearing loss questionnaire to the best of his knowledge and belief";

that he first noticed difficulty in hearing in 1986;

that in 1986, he noticed that he was having a difficult time understanding conversations over the telephone;

that, as of May 24, 1990, he had difficulty in understanding spoken words in a noisy environment; that, as of May 24, 1990, he had a feeling that familiar sounds were muffled;

that, as of May 24, 1990, he needed to be near or look at a person speaking to help understand the words;

that, as of May 24, 1990, he had a difficult time understanding people talking and understanding radio conversations on railroad locomotives; and

that, as of May 24, 1990, he suspected that his difficulty in hearing was connected with his employment with the railroad.

Plaintiff Whitman did not respond to the defendant's request to admit, "As of May 24, 1990, Larry A. Whitman had difficulty sic understanding people when they were speaking in a low tone." Accordingly, that statement is deemed admitted by Plaintiff Whitman under Fed.R.Civ.P. 36.

On May 17, 1991, Whitman's hearing was tested by a consultant hired by the defendant. The report of this test, dated August 7, 1991, states, "Your hearing in both ears is satisfactory for hearing and understanding conversation." The report also contains small graphs of readings from the right and left ear, though the numbers are not explained.

In his affidavit, Whitman attests that he "relied upon the representation made by the aforementioned notice that my hearing was `satisfactory' and, therefore, I did not know or have any reason to know that I actually had a hearing loss which was related to my employment with the Defendant." (Whitman Affidavit, para. 6, Exhibit 2 to Plaintiffs' Brief). Whitman further attested, "That at no time did anyone from the Defendant, CSX TRANSPORTATION, INC., inform me or give me any information whatsoever that I was being exposed to noise at work that might cause a hearing loss." (Id., para. 7).

On May 13, 1993, Plaintiff had an independent audiogram performed. At that time, he was informed that his hearing loss was due to noise exposure. (Whitman Affidavit, para. 8; Exhibit 2 to Plaintiffs' Brief).¹

Hobson

Plaintiff Hobson completed a hearing loss questionnaire on January 21, 1990, about four years and four months before filing this lawsuit. The following are some of the questions on the form and the answers he supplied.

Do you have any difficulty in hearing? Yes.

When did you first notice this difficulty? 1987.

How do you feel your hearing is at the present time? Fair

Do you have any idea what may have caused any hearing difficulty which you have? No.

Do you believe that your difficulty in hearing has any connection with your employment by a railroad. If so, why do you think that? Yes. Because I could hear normal conversation before I came to the railroad.

Has any physician or medical care provider ever told you that you had hearing loss? No.

Has any physician or medical care provider ever suggested that you have hearing loss which is connected with your employment? No.

Hobson circled the word "yes" to indicate that he had the following conditions: pain in the ears, ringing in the ears, feeling pressure in the ears, difficulty in understanding spoken words in a noisy environment, feeling that familiar sounds are muffled, and "need to be near or look at a person speaking to help understand the words."

In response to Defendant's Request for Admission in connection with this litigation, signed by Hobson's counsel on November 29, 1994, Hobson admitted that he answered and signed the hearing loss questionnaire and that the copy submitted by the defendant is a genuine and authentic copy of the original questionnaire. (Exhibit D to Defendant's Brief). He also admitted that in 1987, his wife told him that he had the volume on the television turned up all the time and that the volume was too loud. However, he denied all of the following:

that he "truthfully and accurately answered the questions in the railroad hearing loss questionnaire to the best of his knowledge and belief";

that he first noticed difficulty in hearing in 1987;

that as of January 21, 1990, he could not hear normal conversations;

that as of January 21, 1990, he suspected that his difficulty in hearing was connected with his employment with the railroad;

that as of January 21, 1990, he suspected that his difficulty in hearing was connected with his employment with CSX Transportation, Inc.;

that as of January 21, 1990, he had pain in his ears, ringing in the ears, and a feeling of pressure in his ears;

that as of January 21, 1990, he had difficulty in understanding spoken words in a noisy environment;

that, as of January 21, 1990, he had a feeling that familiar sounds were muffles sic;

that, as of January 21, 1990, he needed to be near or look at a person speaking to help understand the words.

The defendant tested Hobson's hearing on June 14, 1991. Plaintiff Hobson received notice, dated July 2, 1991, indicating,

Your hearing in both ears is satisfactory for hearing and understanding conversation. There is however, some hearing loss for the high-pitched tones for which you were tested. You have had a change in hearing in both ears at some tones according to regulations.... Because of the hearing loss reported above, you should be further evaluated by a hearing specialist for what does appear to be a medical/audiological condition. This would be at your own expense.

(Exhibit 3 to Plaintiffs' Brief).

Hobson indicated in his affidavit that at about the same time as he filled out the questionnaire, he met with a claim agent for the defendant and that the claim agent told him "that he did not have a claim for the hearing loss he noted on the questionnaire, due to the fact that any loss he had suffered was caused by aging and not due to any noise exposure on the railroad." (Hobson Affidavit, para. 6, Exhibit 4 to Plaintiffs' Brief). Hobson further attested that he relied on the claim agent's representation that his hearing loss was not noise related "and, therefore, he did not know or have any reason to know that the actual cause of his hearing loss was related to his employment with the Defendant." (Id., para. 7). Hobson attests, "That at no time did anyone from the Defendant, CSX TRANSPORTATION, INC., inform me or give me any information whatsoever that I was being exposed to noise at work that might cause a hearing loss." (Id., para. 9).

Hobson had an independent audiogram performed on May 13, 1993. He attested that at that time he "was...