Kosin v. Union Pacific Railroad Company

Filing 125

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Court DISMISSES this matter, with prejudice. Signed by District Judge Stephen R. Clark on 11/6/19. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHARM KOSIN, individually and as the
personal representative of the Estate of
Marvin H. Kosin, Jr., deceased,
Plaintiff(s),
vs.
UNION PACIFIC RAILROAD
COMPANY,
Defendant(s).

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Case No. 4:17-cv-02435-SRC

MEMORANDUM AND ORDER
This matter comes before the Court on the issue of whether the statute of limitations
expired prior to the filing of this action. The Court dismisses the matter because the action is
time-barred.
I.

BACKGROUND
On April 10, 2017, Plaintiff Charm Kosin filed this action alleging her husband, Marvin

H. Kosin, Jr. (“Marvin”), 1 died from metastatic cancer, including bladder, lung, and prostate
cancer, as a result of his exposure to various toxic substances and carcinogens in his employment
with Defendant Union Pacific Railroad Company. Kosin brings her claim pursuant to the
Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. On August 22, 2018, Union Pacific
filed a Motion for Summary Judgment asserting the applicable statute of limitations had run prior
to Kosin filing her suit. Doc. 38. On September 24, 2018, the Court denied Union Pacific’s
Motion, finding genuine issues of material fact in dispute, including when Marvin knew or

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The Court refers to Marvin Kosin by his first name solely to provide clarification throughout this opinion between
Plaintiff Charm Kosin and the decedent, Marvin Kosin.

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should have known that the conditions of his employment with Union Pacific caused his
metastatic bladder cancer and whether reasonable investigation would have revealed the cause of
his cancer on or before April 16, 2011. Doc. 46.
The parties proceeded with discovery. On April 26, 2019, Union Pacific filed a second
Motion for Summary Judgment asserting the medical records and expert testimony conclusively
demonstrated that neither Marvin’s employment with Union Pacific, nor any negligence
attributable to Union Pacific, caused his prostate cancer and lung cancer, and subsequent death.
Doc. 55. In response, Kosin withdrew her allegations that Marvin’s employment with Union
Pacific caused his prostate cancer and lung cancer and her allegation that his death was causally
related to his employment with Union Pacific. Doc. 58.
On October 15, 2019, the parties filed their pretrial materials. The parties filed a joint
stipulation of facts in which they agreed to the following facts: Marvin was diagnosed with
bladder cancer on or about November 30, 2010; Marvin passed away on April 16, 2014;
Marvin’s employment with Union Pacific did not cause his prostate cancer; Marvin’s
employment with Union Pacific did not cause his lung cancer; and Marvin’s death was not
causally related to his former employment with Union Pacific. Doc. 78, ¶¶ 5, 7, 8-10.
Union Pacific filed its Trial Brief in which it again raised the issue of the statute of
limitations. Doc. 79. Union Pacific argued the statute of limitations expired in 2013, and Kosin
did not file this action until 2017. Id. On October 23, 2019, the Court ordered the parties to
provide supplemental briefing by October 29, 2019, on the effect of the withdrawal of Kosin’s
allegations that Marvin’s death was causally related to his former employment with Union
Pacific on the statute of limitations. Doc. 86. The parties filed supplement briefing on October

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25, 2019. Docs. 116, 117. The Court held oral argument on the statute of limitations on October
31, 2019.
III.

STANDARD
Federal Rule of Civil Procedure (“FRCP”) 56(f) states:
Judgement Independent of the Motion. After giving notice and a reasonable time to
respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties’ material
facts that may not be genuinely in dispute.

“Federal district courts have the power to grant summary judgment sua sponte when the losing
party is given sufficient advance notice and an adequate opportunity to submit evidence in
opposition.” Barkley, Inc. v. Gabriel Bros., Inc., 829 F.3d 1030, 1041 (8th Cir. 2016) (quoting
Chrysler Credit Corp. v. Cathey, 977 F.2d 447, 449 (8th Cir. 1992) (citing Fed. R. Civ. P. 56(f)).
Here, Union Pacific raised the issue of the statute of limitations in its Trial Brief. Doc. 79. The
Court issued an Order requiring the parties to submit supplemental briefing on the issue, giving
the parties six days to file the briefs. Doc. 86. Both parties accordingly submitted supplemental
briefs, and both submitted evidence with those briefs. Docs. 116, 117. On October 31, 2019, the
Court held oral argument on the issue and repeatedly asked the parties if they had additional
argument or evidence they would like to present on the issue before the Court considered
whether to grant summary judgment under FRCP 56(f). The Court has given Kosin sufficient
notice and an adequate opportunity to submit evidence in opposition. See Fed. R. Civ. P. 56(f).
IV.

DISCUSSION
The Federal Employers’ Liability Act (“FELA”) provides a three-year statute of

limitations to file suit. 45 U.S.C. § 56. Section 56 states, “No action shall be maintained under
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this chapter unless commenced within three years from the day the cause of action accrued.”
The question is when does a cause of action accrue? “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.’” White v. Union Pacific R.R. Co., 867 F.3d 997, 1001 (8th Cir. 2017) (quoting
Fletcher v. Union Pacific R.R. Co., 621 F.2d 902, 906 (8th Cir. 1980). The employee must also
know, or have reason to know, the condition’s cause. Id.
“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.” Id.
(quoting Fries v. Chi. & Nw. Transp. Co., 909 F.2d 1092, 1095 (7th Cir. 1990)). “Actual notice
is not required for accrual. After a condition manifests itself, the question becomes whether the
plaintiff knew or, through the exercise of reasonable diligence, should have known of the cause
of his injury.” Id. at 1002-03 (emphasis in original) (quoting Sweatt v. Union Pacific R.R., Co.,
796 F.3d 701, 707 (7th Cir. 2015)). A claim accrues when “one reasonably should know that his
symptoms are fairly attributable to a workplace injury.” Id. at 1003.
A.

The Court’s September 24, 2018 Summary Judgment Order

On September 24, 2018, the Court denied Union Pacific’s Motion for Summary
Judgment on the issue of the statute of limitations, finding genuine issues of material fact in
dispute as to when Marvin knew or should have known the conditions of his employment with
Union Pacific caused his bladder cancer. Doc. 46. The posture of the case has significantly
changed since the Court’s Order.
At the time of the Court’s Order, Kosin’s allegations included that Marvin’s exposure to
various toxic substances and carcinogens in his work with Union Pacific caused his cancer and

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his premature death. Marvin died on April 16, 2014. Because Kosin alleged Marvin’s
employment with Union Pacific caused his bladder cancer and his death, Kosin had three years
from the date of his death to file suit. Section 59 of FELA allows for the right of action to
survive the person injured:
Any right of action given by this chapter to a person suffering injury shall survive
to his or her personal representative, for the benefit of the surviving widow or
husband and children of such employee, and, if none, then of such employee’s
parents; and, if none, then of the next of kin dependent upon such employee, but in
such cases there shall be only one recovery for the same injury.
45 U.S.C. § 59. Section 51 defines the right of action that survives:
Every common carrier by railroad while engaging in commerce between any of the
several States or Territories, or between any of the States and Territories, or
between the District of Columbia or any of the States or Territories and any foreign
nation or nations, shall be liable in damages to any person suffering injury while he
is employed by such carrier in such commerce, or, in case of the death of such
employee, to his or her personal representative, for the benefit of the surviving
widow or husband and children of such employee . . .
45 U.S.C. § 51. Kosin’s right is “derivative and dependent upon the continuance of a right in the
injured employee at the time of his death.” Flynn v. New York, N.H. & H.R. Co., 283 U.S. 53, 55
(1931); see also Coman v. New York Cent. R. Co., 184 F.2d 841, 841-42 (6th Cir. 1950).
Thus, Kosin had three years from the time of Marvin’s death to file a lawsuit under
FELA for any cause of action Marvin had a right to bring at the time of his death. Kosin filed
her suit within three years of Marvin’s death. Therefore, the key question at the time of the
Court’s prior Order was whether Marvin knew, or should have known, of the cause of his injury
before April 16, 2011, three years before the date of his death. Genuine issues of material fact
existed as to this issue.
B.

Current Posture of the Case

Since the Court’s Summary Judgment Order on September 24, 2018, Kosin has
withdrawn her allegations that Marvin’s death was caused by his employment with Union
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Pacific. The statute of limitations analysis significantly changes with this development. Because
Kosin no longer asserts a wrongful death claim, Kosin did not have three years from the date of
death to file suit. Instead, Kosin had three years from when the cause of action accrued to file
suit. 45 U.S.C. § 56. Thus, the key question to be resolved now is whether Marvin knew, or
should have known, in the exercise of reasonable diligence the essential facts of the cause of his
bladder cancer before April 10, 2014, three years before Kosin filed this action. If Marvin knew,
or should have known, of the cause of his bladder cancer before April 10, 2014, then the statute
of limitations has expired and the Court must dismiss the case.
The undisputed facts establish that Marvin knew, or should have known, before April 10,
2014 that the cause of his bladder cancer was attributable to his employment with Union Pacific.
The parties stipulated that Marvin was diagnosed with bladder cancer on November 30, 2010.
Doc. 78. Both parties agree that, at the time of the diagnosis, Marvin’s doctor told Marvin his
cancer could be caused by “environmental factors.” Both parties agree that, at the time of
Marvin’s diagnosis, he had a pending FELA lawsuit against Union Pacific for carpal tunnel
syndrome. Both parties agree that Marvin was represented by counsel in that lawsuit. Both
parties also agree that Marvin signed a Release Agreement on April 19, 2011, with Union
Pacific, that released Union Pacific from liability for any possible injuries Marvin sustained
during his employment, except that the release carved out any injuries related to cancer. The
Court confirmed the parties’ agreement on this set of operative facts at the October 31, 2019
hearing.
The Court need not determine if Marvin should have investigated whether his
employment caused his cancer when his doctor told him it could be caused by “environmental
factors” because, the undisputed facts make clear that Marvin knew, or should have known, his

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employment could be a cause of his cancer on April 19, 2011, when he signed the Release
Agreement. The Release Agreement contains two key provisions. In the definitions section, it
states: “The term ‘Claims’ or ‘Claim’ as used in this Release does not include any claim, lawsuit,
and/or demand for damages for alleged employment-related cancer injuries which KOSIN
expressly reserves himself and does not, by execution of this release, discharge.” Doc. 116-2,
pg. 1. In paragraph six of the agreement, Marvin agreed to the following:
[Marvin] acknowledges any illnesses, injuries, diseases, and/or death, or any fears
or psychological disorders relating to contracting same, arising out of his
employment with Union Pacific may be permanent and may naturally progress and
may become more significantly disabling in the future and that recovery there from
may be uncertain. [Marvin] acknowledges any illnesses, injuries, and/or diseases
arising out of his employment with Union Pacific may even lead to death. [Marvin]
acknowledges future medical treatment, including surgery, may be necessary in an
attempt to alleviate or cure any illnesses, injuries, and/or diseases, or any fears or
psychological disorders relating to contracting same. In making this release,
[Marvin] acknowledges he relies wholly upon his own judgment, belief, and
knowledge of the nature and extent of his injuries, including the permanency of
such injuries; the possibility of a natural progression of such injuries; the possibility
that such injuries may become permanently disabling in the future; the possibility
that such injuries may require future medical treatment in an attempt to alleviate or
cure such injuries, including surgery; and that the possible future effects of existing
injuries are specifically bargained for herein, included, and released in exchange
for the payment of consideration stated hereinabove.
Doc. 116-2, pg. 5. Marvin signed the Release Agreement, and initialed every page. The law
presumes that a person who signs an agreement knows the contents of the terms of the
agreement. Pinken v. Frank, 704 F.2d 1019, 1025 (8th Cir. 1983). Counsel represented Marvin
at the time he signed this agreement, and the agreement confirms that its terms “have been
completely read and/or explained by his attorney and that said terms are fully understood and
voluntarily accepted by [Marvin].” Doc. 116-2, pg. 6.
Even if Marvin did not know at the time he signed this Agreement that his employment
caused his bladder cancer, the provisions of the Agreement, and these two sections in particular,
should have caused Marvin to investigate the cause of his cancer and determine if his
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employment was a factor. See White, 867 F.3d at 1003 (“The better rule is that a claim accrues
when one reasonably should know that his symptoms are fairly attributable to a workplace
injury. The district court correctly concluded, as a matter of law, that White’s symptoms were
serious enough in 2007 and 2008 to raise a duty to investigate.”). The obvious inference to be
drawn from the Release Agreement is that Marvin knew, had reason to know, or had reason to
investigate whether, his employment caused his bladder cancer. The Court asked Kosin’s
counsel to provide other inferences that a jury could draw from this Release Agreement and what
evidence, if any, might support such inferences. The only inference Kosin’s counsel provided
was that the language was “boilerplate” so it does not indicate Marvin specifically carved out his
cancer claims from the Release Agreement. However, Kosin’s counsel stated he had no
evidence to offer to support the inference that this language was boilerplate.
“On summary judgment the inferences to be drawn from the underlying facts contained . .
. must be viewed in the light most favorable to the party opposing the motion.” Adickes v. S. H.
Kress & Co., 398 U.S. 144, 158-59 (1970) (citing United States v. Diebold, 369 U.S. 654, 655
(1962)). Here, the inference Kosin seeks to be drawn – that Marvin did not know and should not
have known from the Release Agreement specifically excluding any cancer claims that his
employment caused his bladder cancer – cannot be drawn because no underlying facts support it.
“The mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a
preponderance of the evidence that the plaintiff is entitled to a verdict.” Anderson v. Liberty
Lobb, Inc., 477 U.S. 242, 252 (1986). And as White and the Fries case on which it relies make
clear, the Court must conduct an objective inquiry into when a claimant knew or should have

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known, in the exercise of reasonable diligence, the “‘essential facts of injury and cause.’” White,
867 F.3d at 1001 (quoting Fries v. Chi. & Nw. Transp. Co., 909 F.2d 1092, 1095 (7th Cir.
1990)). Objectively, a reasonable juror could only conclude that Marvin knew, or should have
known, his employment with Union Pacific caused his cancer prior to April 10, 2014, as a matter
of law. See id. at 1001 and 1003.
The undisputed facts, taken together, further support the conclusion Marvin knew or
should have known in the exercise of reasonable diligence the essential facts of the cause of his
bladder cancer. Marvin’s doctor told him his cancer could be caused by “environmental factors,”
Marvin had a pending FELA lawsuit at the time of his diagnosis and was represented by counsel
in that lawsuit, he signed a Release Agreement excluding any claims for liability of injuries
caused by cancer, and in that release he acknowledged the possibility of illnesses, injuries,
diseases, and the like arising out of his employment. The FELA statute of limitations bars
Kosin’s cause of action because the undisputed facts establish that Marvin knew or should have
known in the exercise of reasonable diligence the essential facts of the cause of his bladder
cancer before April 10, 2014. The Court grants summary judgment under FRCP 56(f) and
dismisses this action.
Accordingly,
IT IS HEREBY ORDERED that the Court DISMISSES this matter, with prejudice.
So Ordered this 6th day of November, 2019.

STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE

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