Brown v. Union Pacific Railroad Company

Filing 34

MEMORANDUM AND ORDER - UPRR's motion for summary judgment (Filing No. 27 ) is granted. Judgment will be entered accordingly. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHIRLEY BROWN, Personal
Representative for the Estate of
NEAL JACKSON,

8:18CV273

Plaintiff,
MEMORANDUM AND ORDER
vs.
UNION PACIFIC RAILROAD
COMPANY,
Defendant.

Shirley Brown, as personal representative of the Estate of Neal Jackson, is
suing Jackson’s former employer, Union Pacific Railroad Company (UPRR), under
the Federal Employers Liability Act (FELA) 45 U.S.C. § 51 et seq., alleging
Jackson’s workplace exposure to hazardous materials caused or contributed to
the development of colon cancer. (Filing No. 1, at CM/ECF p. 2). Jackson was
diagnosed with and surgically treated for colon cancer in February 2008, (Filing
No. 29-3), had additional surgery for his recurrent colon cancer in November 2014,
(Filing No. 29-4), and passed away from his cancer June 17, 2015. (Filing No. 295). This lawsuit was filed on June 15, 2018, allegedly by Shirley Brown “acting as
the Personal Representative of the Estate of her late father, Neal Jackson.” (Filing
No. 1, at CM/ECF p. 1, ¶ 4). UPRR moves for summary judgment, arguing Brown’s
lawsuit is time-barred by FELA’s 3-year statute of limitations, (45 U.S.C. § 56), and
Brown lacked standing to bring this lawsuit when it was filed. (Filing No. 27).
For the reasons discussed below, Defendant’s motion for summary
judgment, (Filing No. 27), will be granted.

BACKGROUND
The complaint alleges exposure to “diesel fuel/fumes/benzene from the
exhausts of the locomotives and on track equipment; creosote from rail ties and
timbers; silica dust from railroad ballast and; asbestos from the trains’ brake shoe
dust and from asbestos rope which is soaked in gasoline and placed on the rails
and lit to expand the rails prior to welding, was caused in whole or in part, or
contributed to Decedent’s colon cancer. (Filing No. 1, at CM/ECF p. 2). Brown’s
retained medical causation expert opines the that “Jackson developed suffered
and died from metastatic adenocarcinoma caused by his extensive occupational
exposure to a wide variety of substances such as asbestos dust and diesel fumes
in his employ with Union Pacific Railroad.” (Filing No. 31-3, at CM/ECF p. 4).
As set forth in the parties’ briefs, the facts relevant to the state of limitations
issues currently before the court are largely undisputed. (Compare Filing No. 28,
at CM/ECF pp. 3-6 (UPRR brief), with Filing No. 30, at CM/ECF pp. 3-5 (Plaintiff
brief)); (see also Filing No. 32, at CM/ECF pp. 3-7). Those facts, as identified by
the parties, are as follows.
Jackson worked for Union Pacific from 1973 until September 13, 1993.
Shirley Perrodin was Jackson’s co-worker from 1976 to 1985. Perrodin is the sole
source of Brown’s information regarding Jackson’s work activities and the
comments Jackson made while performing that work. (Filing No. 1, at CM/ECF p.
2, ¶ 7; Filing No. 29-2, at CM/ECF pp. 2, 18; Filing No. 29-7, at CM/ECF pp. 6,18).
As explained by Perrodin, Jackson and Perrodin nailed spikes, changed ties,
dumped rocks out of cars, unloaded crossties, changed rails, shoveled rocks, and
followed machines while performing their work for UPRR. (Filing No. 29-7, at
CM/ECF p. 6). When Jackson unloaded crossties, the creosote on the ties burned
his skin, the creosote odor caused headaches, and when the ties were in the hot
sun, the creosote fumes burned his face. (Id. at pp. 8-9, 17). Jackson tried to wash
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the creosote off when he got it on his skin because it burned. (Id. at 9). Jackson
complained to his supervisors about his exposure to creosote because he knew it
was harmful. (Id. at 12).
In addition to creosote, Jackson was exposed to billows of dust when ballast
was dumped from rock cars. Jackson wore a handkerchief or old clothing over his
mouth and nose to limit his exposure to the dust. Perrodin warned Jackson at the
time that breathing the dust could be harmful. (Id. at 13-16).
When Jackson worked around diesel-powered machines, he would back
away from the machines. Jackson knew diesel exhaust was harmful so he tried to
get away from it. (Id. at 16-17).
Jackson was diagnosed with colon cancer in February 2008 and had surgery
to remove a portion of his colon. (Filing No. 29-2, at CM/ECF p. 6; Filing No. 293). At that time, his healthcare providers explained there was a risk of recurrence
of his colon cancer in the future. (Filing No. 29-2, at CM/ECF p. 7). A recurrence
occurred in November 2014, and more of Jackson’s colon was surgically removed.
(Filing No. 29-2, at CM/ECF p. 7; Filing No. 29-4). But by then, the cancer had
metastasized, and it ultimately caused his death on June 17, 2015. (Filing No. 292, at CM/ECF pp. 7-9; Filing No. 29-5). Brown did not discuss the cause of her
father’s cancer with either her father or his medical providers, and there are no
facts suggesting Jackson ever knew or investigated the cause of his cancer. (Filing
No. 29-2, at CM/ECF p. 11).
Brown filed this lawsuit on June 15, 2018. (Filing No. 1). Although the
complaint alleges Brown filed suit in her capacity as personal representative for
Jackson’s Estate, she was not appointed as a personal representative until May
15, 2019. (Filing No. 1; Filing No. 29-2, at CM/ECF pp. 12-13; Filing No. 29-6).

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STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a). The movant bears the initial responsibility
of informing the Court of the basis for the motion, and must identify those portions
of the record which the movant believes demonstrate the absence of a genuine
issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th
Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out specific facts showing that there is a
genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those
facts. Id. Credibility determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury functions, not those of a judge.
Id. But the nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In order to show that disputed facts
are material, the party opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the outcome of the suit. Quinn
v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a
scintilla of evidence in support of the nonmovant’s position will be insufficient; there
must be evidence on which the jury could conceivably find for the nonmovant.
Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011).
Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at
1042.

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DISCUSSION
UPRR argues Brown’s claim for relief is barred by 45 U.S.C § 56, which
provides that “No action shall be maintained under [FELA] unless commenced
within three years from the day the cause of action accrued.” But that statute
incorporates a discovery rule: When an injury does not arise from a single
traumatic event with immediate symptoms, but rather a latent one with symptoms
appearing over time, the claim does not accrue until the employee is aware or
should be aware of his condition. White v. Union Pac. R.R., 867 F. 3d 997, 1001
(8th Cir. 2017). And in addition to knowing of his condition, the employee must
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.
(citing Fries v. Chi. & Nw. Transp. Co., 909 F.2d 1092, 1095 (7th Cir. 1990).1 See
Smith v. BNSF Ry. Co., No. 4:17-CV-3062, 2018 WL 6529503, at *2 (D. Neb. Oct.

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There is a split of authority regarding the burden of proof in a FELA case when a
defendant moves for summary judgment based on the statute of limitations. Compare
Fonseca v. Consol. Rail Corp., 246 F.3d 585, 590-91 (6th Cir. 2001) (defendant has
burden of proof on all affirmative defenses such as statute of limitations); with Johnson v.
Norfolk & W. Ry. Co., 985 F.2d 553 (4th Cir. 1993), and Bealer v. Missouri Pac. R. Co.,
951 F.2d 38, 39 (5th Cir. 1991) (because timeliness is essential element of plaintiff’s
claim, plaintiff bears burden of showing genuine factual dispute). For purposes of this
motion, however, the Court assigns that burden to UPRR, because the discovery rule in
FELA cases is a doctrine of accrual, not a tolling doctrine asserted in response to a statute
of limitations defense. See Pharmacia Corp. Supplemental Pension Plan v. Weldon, 126
F. Supp. 3d 1061, 1074-75 (E.D. Mo. 2015); cf. Schmidt v. United States, 933 F.2d 639,
640 (8th Cir. 1991). Nonetheless, the issue of whether a suit is time-barred is a question
of law, which properly may be resolved at the summary judgment stage if there are no
genuine issues of material fact in dispute. In re Minn. Mut. Life Ins. Co. Sales Practices
Litig., 346 F.3d 830, 835 (8th Cir. 2003); Hallgren v. U.S. Dep't of Energy, 331 F.3d 588,
589 (8th Cir. 2003).

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16, 2018); see also McLaughlin v. BNSF Ry. Co., No. 4:18-CV-3047, 2019 WL
4855147, at *2 (D. Neb. Oct. 1, 2019)
Under FELA’s discovery rule, UPRR has the burden of showing that Jackson
knew or should have known “the essential facts” of injury and cause prior to June
15, 2015.2 White, 867 F.3d at 1001. Under White, and the authorities upon which
it relies, Jackson had an affirmative duty to reasonably inquire as to the cause of
his cancer. White, 867 F.3d at 1001; see also Tolston v. Nat’l R.R. Passenger
Corp., 102 F.3d 863, 865-66 (7th Cir. 1996) (“Just to be clear the [Fries] court
added [that] this rule imposes on plaintiffs the affirmative duty to investigate the
cause of a known injury”); Fries, 909 F.2d at 1095. To apply another rule would
thwart the purposes of repose statutes which are designed to apportion the
consequences of time between plaintiff and defendant and to preclude litigation of
stale claims. Fries, 909 F.2d at 1095. And the suggestion, made by Brown, that
only actual knowledge is enough to make a claim accrue under FELA has been
repeatedly rejected by this and other courts. White, 867 F.3d at 1002-03; Tolston
102 F.3d at 866; Mclaughlin, 2019 WL 4855147, at *3; West v. Union Pac. R.R.
Co., No. 8:17CV36, 2019 WL 7586542, at *1 (D. Neb. Dec. 20, 2019).
Here, it is undisputed that by February 2008, Jackson knew he had colon
cancer. Jackson was informed of the diagnosis and was surgically treated for colon
cancer in February of 2008. Brown asserts that a genuine question of material fact
exists as to whether Jackson knew or should have known the cause of his colon
cancer prior to June 15, 2015—three years before this lawsuit was filed.
Jackson worked for the railroad for 20 years—from 1973 until September
13, 1993. And as noted above, Perrodin is the sole source of any information of
record regarding Jackson’s work environment and Jackson’s knowledge of
potentially harmful exposures to substances at work. Perrodin worked with
2

Three years before the lawsuit was filed.

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Jackson from 1976 to 1985. Based on Perrodin’s testimony, at least as early as
1985, Jackson knew that his exposure to substances at work had caused
headaches and burns. Jackson complained to his supervisors about his exposure
to chemicals and the potential harm that they may cause. And while working with
Jackson, Perrodin warned Jackson that exposure to dust while working for the
railroad was potentially harmful. Even if Jackson did not believe this warning,
Perrodin’s warning notified Jackson that work-related dust exposure could cause
physical harm.
Armed with this notice and knowing the symptoms he experienced when
exposed to substances at work, Jackson had a duty to inquire as to whether “his
extensive occupational exposure to a wide variety of substances such as asbestos
dust and diesel fumes in his employ with Union Pacific Railroad,” (Filing No. 31-3,
at CM/ECF p. 4 (Newman opinion)), caused or contributed to his development of
colon cancer. Jackson had three years to investigate the causal connection, and
he had a duty to do so or risk losing his ability to sue. 45 U.S.C § 56; White, 867
F.3d at 1002.
Brown argues that unlike this court’s prior rulings, there is no evidence in
this case that Jackson did not investigate the cause of his colon cancer – that “all
we currently know is that the Decedent knew he had colon cancer and that he did
not know the cause.” But it is undisputed that well over three years before this
lawsuit was filed, Jackson knew the essential facts necessary to impose a duty
upon him to investigate any potential work-related cause of his cancer. Irrespective
of whether he actually performed that investigation, under the facts of this case,
Jackson’s three-year time period to file suit began when he was told he had colon
cancer.
Based on the undisputed facts, Jackson’s claim expired in February of
2011—before Jackson’s death on June 17, 2015. So, a cognizable wrongful death
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action never existed. Brown’s purported and derivative wrongful death claim is
barred by the statute of limitations. Pope v. Union Pac. R.R. Co., No. 8:18CV421,
2019 WL 6615189 (D. Neb. Dec. 5, 2019). 3
IT IS ORDERED:
1) UPRR’s motion for summary judgment (Filing No. 27) is granted.

2) Judgment will be entered accordingly.
June 23, 2020.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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As an alternative argument, UPRR claims it is entitled to summary judgment because
at the time the lawsuit was filed, Brown was not a duly appointed personal representative
for Jackson. Since I find the claims are time barred, I need not thoroughly address this
argument, I note, however, that after the complaint was filed, Brown was appointed to
pursue this action on Jackson’s behalf. It would seem this action, which corrected the
capacity to sue issue and rendered the erroneous capacity to sue allegations in the initial
complaint as truthful statements, would relate back to the filing of the initial complaint.
Crowder v. Gordons Transports, Inc., 387 F.2d 413, 414 (8th Cir. 1967) (explaining
“relation back” is a procedural issue governed by the Federal Rules of Civil Procedure
and holding the post-filing appointment of a personal representative to pursue wrongful
death and survival actions related back to the date the initial complaint was filed); see
also Thomas v. Bd. of Trustees of the Nebraska State Colleges & Joshua Keadle, No.
8:12-CV-412, 2014 WL 12577380, at *3 (D. Neb. Feb. 3, 2014) (Gerrard, J.).

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