Harris v. CSX Transportation, Inc.

Filing 32

-CLERK TO FOLLOW UP-ORDER granting 24 Motion for Summary Judgment. Clerk to Close case.. Signed by Hon. Michael A. Telesca on 2/4/2013. (BMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DUANE D. HARRIS,
Plaintiff,

10-CV-6396T
DECISION
and ORDER

v.
CSX TRANSPORTATION, INC. and
CONSOLIDATED RAIL CORPORATION,
Defendants,
________________________________________
INTRODUCTION

Plaintiff Duane Harris, (“Harris” or “Plaintiff”), brings this
action pursuant to the Federal Employers’ Liability Act, (“the
FELA”)(codified at 45 U.S.C. § 51, et seq.), against his employer
CSX Transportation, Inc. and his former employer Consolidated Rail
Corporation, (“Conrail”)(collectively,(“Defendants”)) claiming that
he was injured due to the negligence of the Defendants in violation
of that Act. Specifically, Harris claims that while working within
the scope of his employment for the Defendants, he sustained
excessive and harmful cumulative trauma to his lower extremities,
and specifically his knees.
Defendants deny Plaintiff’s allegations and move for summary
judgment dismissing Plaintiff’s Complaint on grounds that Plaintiff
failed to file his claim in a timely manner under the FELA.

For

the reasons set forth below, I grant Defendants’ motion for summary
judgment and dismiss Plaintiff’s Complaint in its entirety.

BACKGROUND
The following facts are set forth in the Plaintiff’s Amended
Complaint and the Defendants’ Statement of Undisputed Material
Facts submitted pursuant to Rule 56(a) of the Local Rules of Civil
Procedure. See Docket No. 10, 24-1. Plaintiff has not controverted
the facts set forth in the Defendants’ statement of facts, and
accordingly, where those facts are not inconsistent with the
limited material facts submitted by Plaintiff, they are deemed
admitted pursuant to Local Rule 56(a)(2).1
Harris’s employment with Conrail as a rail maintainer and
signal foreman began on April 1, 1976 and ceased on May 31, 1999.
Deposition Transcript of Duane Harris at 37-38;2 see Defendants’
Answer to Plaintiff’s Amended Complaint at ¶ 17.

On June 1, 1999,

Harris became an employee of CSX Transportation, working as a
foreman.

Deposition

Transcript

of

Duane

Harris

at

53;

see

Defendants’ Answer to Plaintiff’s Amended Complaint at ¶ 17.
Harris claims that while he was employed by Conrail and CSX
Transportation, his work activities, such as climbing on equipment

1

Plaintiff’s Statement of Material Facts does not respond to
or expressly deny any of the material facts as submitted by
Defendants. See Plaintiff’s (August 8, 2012) Statement of
Material Facts(Docket No. 27-2). Plaintiff merely submits two
material facts that implicitly dispute some of the material facts
as set forth by Defendants.
2

The facts in this Decision are found in Defendants’
Statement of Undisputed Facts, but the Court cites to the
original source of the factual assertion.
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and working on uneven ground, caused physical injuries to his knees
and/or aggravated a pre-existing condition. Plaintiff’s Amended
Complaint at ¶¶ 20-21, 27.
Harris testified at his deposition in this case that he had
been experiencing clicking or cracking, stiffness, swelling, and
redness in both knees for many years before he had his knees
surgically replaced.
83.

Deposition Transcript of Duane Harris at 82-

From September 2006 through May 2007, Harris saw a number of

doctors for evaluation of his knees and for surgical consultation
and clearance. See Exhibits F-I to Defendants’ Motion for Summary
Judgment.

On July 11, 2007, Harris underwent left total knee

replacement surgery, and on August 6, 2010, he underwent right
total knee replacement surgery. Exhibits J, K to Defendants’ Motion
for Summary Judgment.
Harris alleges that he first discovered that the cause of his
injury may have been related to his work on the railroad in
February 2010, during a dinner conversation with his daughter, a
Workers’ Compensation attorney. Deposition Transcript of Duane
Harris at 82-83.

However, Harris testified that at no point in

time before the conversation with his daughter in February 2010 did
he know of any possible cause of his knee problems, nor did he ever
“try to figure out” what was causing the pain in his knees.
Deposition Transcript of Duane Harris at 110-11.

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Harris commenced this action by filing a Complaint on July 9,
2010.3
DISCUSSION
Defendants argue that Harris’s claim is time-barred because he
failed to comply with the three year statute of limitations under
the FELA.

According to the Defendants, because Harris filed this

action on July 9, 2010, he must establish that his injury occurred
on or after July 9, 2007 for the claim to be timely.

Defendants

argue that because Harris’ injury occurred long before July 9,
2007, and that Harris knew, or in the exercise of reasonable care
should have known that his injury occurred well before July 9,
2007, his claim is time-barred.
Harris contends that he first discovered that the cause of his
knee injuries was work related in February 2010, and therefore, he
filed his Complaint within the 3 year statute of limitations
period, or, at least, there exists a genuine issue of material fact
as to when his cause of action accrued for purposes of the statute
of limitations.

I conclude, however, that Harris knew or should

have known prior to July 9, 2007, that his alleged injuries were
work related, and that his failure to investigate the cause of his
injuries prior to July 9, 2007 renders the instant action timebarred under the FELA statute of limitations.

3

With leave of the Court, Plaintiff filed an Amended
Complaint on December 3, 2010.
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I.

Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides

that the Court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant

is

entitled

to

judgment

as

a

matter

of

law.”

When

considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought.

Scott v. Harris, 550 U.S. 372, 380 (2007).

If, after considering the evidence in the light most favorable to
the nonmoving party, the court finds that no rational jury could
find in favor of that party, a grant of summary judgment is
appropriate.

Scott, 550 U.S. at 380 (citing Matsushita Elec.

Industrial

Co.

v.

Zenith

Radio

Corp.,

475

U.S.

574,

586-587

(1986)).

This standard applies “whether summary judgment is

granted on the merits of the claim, or on an affirmative defense
such as the statute of limitations.” BellSouth Telecommunications,
Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603, 609 (2d Cir. 1996).
II.

The FELA’s Statute of Limitations
The FELA provides for a three year statute of limitations.

45 U.S.C. § 56.

Specifically the Act provides that “[n]o action

shall be maintained...unless commenced within three years from the
day the cause of action accrued.” 45 U.S.C. § 56.

Where, as here,

there is a gradual injury with no exact injury date, the Supreme
Court has adopted a “discovery-of-the-injury” rule which provides

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that the plaintiff’s cause of action accrues when the accumulated
effects of the injury manifest themselves, Urie v. Thompson, 337
U.S.

163

(1949),

and,

as

the

Court

later

refined,

when

the

plaintiff discovers both the injury and the cause of the injury.
United

States

v.

Kubrick,

444

U.S.

111

(1979)(applying

the

discovery-of-the-injury rule to claims under the Federal Tort
Claims Act).
In FELA cases, the Second Circuit Court of Appeals has stated
that a cause of action “accrues when the plaintiff in the exercise
of reasonable diligence knows both the existence and the cause of
his injuries.” Mix v. Delaware & Hudson Railway Co., 345 F.3d 82,
86 (2d Cir. 2003).

Additionally, the Second Circuit has held that

pursuant

rule,

to

this

plaintiffs

are

required

to

exercise

reasonable diligence in discerning both the fact and cause of their
injuries. Barrett v. United States, 689 F.2d 324, 327 (2d Cir.
1982)(claim under the Federal Tort Claims Act).
The limitation period begins to run once an employee knows or
has reason to know that his job duties are or were a potential
cause of his injury. Tolston v. National R.R. Passenger Corp., 102
F.3d 863, 866 (7th Cir. 1996).

Courts conduct “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.” Anthony v. Consol. Rail Corp., 1998 WL 696288, at *3
(N.D.N.Y. 1998)(quoting Fries v. Chicago & N.T. Co., 909 F.2d 1092,

Page -6-

1095 (7th Cir. 1990)(citing Urie, 337 U.S. at 170)).

Courts have

further stated that upon experiencing symptoms, a plaintiff filing
a claim under the FELA has an affirmative duty to investigate both
the injury and the suspected cause of the injury. Fries, 909 F.2d
at 1096 (citing Kubrick, 444 U.S. at 123); see Wagner v. Consol.
Rail Corp., 206 F.Supp.2d 339 (N.D.N.Y 2002).
Thus, because an employee has an obligation to investigate the
cause of his injury at the onset of his symptoms, causes of action
under the FELA are deemed to have accrued when the plaintiff is
alerted by symptoms. Wagner, 206 F.Supp.2d 339, at 342-43; see
Johnson v. National R.R. Passenger Corp., 2007 WL 2790028 (E.D.N.Y.
2007); Hitchcock v. National R.R. Passenger Corp., 20 F.Supp.2d 429
(N.D.N.Y. 1998).
III. Accrual of Harris’s Claim
I find that Harris’ claim is time-barred because Harris knew
of his injury long before July 9, 2007, and had a duty at the time
he learned of his injury to investigate whether the injury was
caused by his work at the railroad.
Harris first experienced pain in his knees approximately
thirty years before filing this suit. See Exhibit H to Defendants’
Motion for Summary Judgment (containing Medical Records from Dr.
Christopher

Drinkwater).

He

testified

in

this

case

that

approximately ten years before filing this lawsuit he was aware of
the injury to his knees and that the activities associated with his

Page -7-

job aggravated his condition and caused pain. Deposition Transcript
of Duane Harris at 63-64, 78-79.

Specifically, at his deposition,

he answered affirmatively to the question, “And you were aware of
your pain in both knees at work for ten years, is that correct?”
Deposition Transcript of Duane Harris at 79.
Accordingly, because Harris knew of his injuries prior to July
9, 2007, and because he had a duty under the FELA to investigate
the cause of his knee problems when they began, it is clear that
Harris failed to bring the instant action in a timely manner.

The

record reveals that Harris was aware of his injury as early as 27
years prior to July 9, 2007, and that he experienced symptoms of
his injury while at work approximately 7 years prior July 9, 2007.
Once Harris was aware of his injuries to his knees and was aware
that he experienced pain from the injuries while performing his
work duties, he had a duty to investigate the cause of his injury
during that time period.

Because he failed to investigate the

cause for more than three years prior to bringing this action, his
claim is time-barred.
The record also reveals additional dates on which the Court
finds that the Plaintiff, in the exercise of reasonable diligence,
had a duty to investigate the cause of his injury.

For example,

Harris had a duty in September 2006 to investigate the cause of his
knee problems when he was referred by his primary doctor to a
specialist for evaluation of his knee. Exhibit F (Medical Records

Page -8-

from

Dr.

John

Goldblatt)

to

Defendants’

Motion

for

Summary

Judgment. Additionally, Harris had a duty to investigate after his
first visit with his knee surgeon Dr. Christopher Drinkwater, on
April 26, 2007, at which time the doctor informed him that his
condition required both knees to be surgically replaced. Deposition
Transcript of Duane Harris at 78; see Exhibit H to Defendants’
Motion

for

Summary

Judgment.

Harris

was

also

required

to

investigate whether his work may have been a cause of his injury
when Dr. Les Weisbrod noted in a surgical clearance examination in
May 2007 that he had “severe [degenerative joint disease]...and now
it is time for replacement.” Exhibit I (Medical Records from Dr.
Weisbrod) to Defendants’ Motion for Summary Judgment.
The evidence cited represents a persuasive list of dates that
a

person,

such

as

Harris,

in

the

“exercise

of

reasonable

diligence,” should have discerned that his job duties were the
potential cause of his injuries.

For Harris not to investigate

whether work could have been a cause of his injuries at any point
prior to July 9, 2007 is objectively unreasonable.

Therefore, I

conclude as a matter of law that Harris knew of his injuries and
should have known of their cause prior to July 9, 2007 (three years
before commencing this action on July 9, 2010).

Accordingly,

because Harris should have known of the alleged cause of his workrelated injuries more than three years prior to filing the instant

Page -9-

Complaint, I find that his claim is time-barred as a matter of law
by the FELA three year statute of limitations.
CONCLUSION
For the reasons set forth above, I grant Defendants’ motion
for summary judgment and dismiss Plaintiff’s Complaint in its
entirety with prejudice.

ALL OF THE ABOVE IS SO ORDERED.

S/ Michael A. Telesca
____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

February 4, 2013
Rochester, New York

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