Davis v. CSX Corporation, Inc.
Filing
97
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 72 DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Signed by Senior Judge Frederick P. Stamp, Jr on 12/21/2011. (Copy counsel of record via CM/ECF)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BETTY JO DAVIS, individually
and as Executrix of the
Estate of VICTOR C. DAVIS,
Plaintiff,
v.
Civil Action No. 1:10CV74
(STAMP)
CSX CORPORATION, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.
Background
The plaintiff, Betty Jo Davis, individually and as Executrix
of the Estate of Victor C. Davis, instituted this action pursuant
to the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq.
(“FELA”), alleging that her late husband contracted squamous cell
carcinoma of the thymus as a result of occupational exposure to
creosote while employed by the defendant, CSX Corporation, Inc.
(“CSX”).
Victor C. Davis, the decedent, worked for CSX as a
trackman and machine operator from 1975 until 2006.
During this
time, it is alleged that he was exposed to creosote on a daily
basis.
On August 16, 2006, Mr. Davis was diagnosed with thymic
cancer.
He died from thymic cancer on May 31, 2007 at the age of
57.
The plaintiff initiated this lawsuit on May 5, 2010.
On August 5, 2011, the defendant filed a motion for summary
judgment.
In
support
of
its
motion,
CSX
argues:
(1)
the
plaintiff’s claims are barred by the statute of limitations; and
(2)
the
plaintiff
cannot
present
a
prima
facie
case
as
the
plaintiff has not produced any admissible expert evidence or
testimony that exposure to creosote caused the decedent’s thymic
cancer. The plaintiff filed a response in opposition to the motion
for summary judgment on August 26, 2011, in which she argues that
her
wrongful
death
claim
was
timely
filed
under
the
FELA.
Additionally, the plaintiff contends that she has presented a prima
facie case that exposure to creosote while working as a trackman
and machine operator for CSX caused her husband’s thymic cancer and
untimely death.
CSX did not file a reply in support of its motion
for summary judgment.
For the reasons set forth below, this Court
grants in part and denies in part the defendant’s motion for
summary judgment.
II.
Applicable Law
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in
the record, including depositions, documents,
electronically stored information, affidavits
or
declarations,
stipulations
.
.
.
admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot
produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of
material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
2
(1986).
“The burden then shifts to the nonmoving party to come
forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718-19 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegation or denials
of his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.”
Id. at 256.
“The inquiry
performed is the threshold inquiry of determining whether there is
the need for a trial -- whether, in other words, there are any
genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of
either party.”
Id. at 250; see also Charbonnages de France v.
Smith, 597 F.2d 406, 414 (4th Cir. 1979)(Summary judgment “should
be granted only in those cases where it is perfectly clear that no
issue of fact is involved and inquiry into the facts is not
desirable to clarify the application of the law.” (citing Stevens
v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing
sufficient
to
establish
the
existence
of
an
element
essential to that party’s case, and on which that party will bear
3
the burden of proof at trial.”
Celotex, 477 U.S. at 322.
Summary
judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.
See Oksanen v. Page
Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074 (1992). In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the party
opposing the motion.
See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
III.
A.
Discussion
Statute of Limitations
In its motion for summary judgment, CSX contends that the
statutory period on the decedent’s personal injury claim expired
before his personal representative filed suit.
Accordingly, CSX
alleges that the plaintiff’s personal injury claims have been
extinguished.
Further, since the plaintiff’s wrongful death claim
is derivative of and dependent upon her late husband’s personal
injury claim, CSX argues that it was also extinguished when the
statute of limitations expired on August 16, 2009 -- three years
after the date that the decedent was diagnosed with cancer.
The
defendant argues that under the FELA, a cause of action accrues
when the plaintiff is or should be aware that he has been injured,
which in alleged occupational disease cases such as this, would be
when the symptoms manifest themselves.
In
response,
the
plaintiff
argues
that
when
a
decedent
maintains a cause of action at the time of his death, the statute
4
of limitations for a wrongful death action is three years from the
date of the decedent’s death. Thus, because this case was filed on
May 5, 2010, less than three years after the decedent’s death on
May 31, 2007, the wrongful death claim must stand.
Further, the
plaintiff argues that because the wrongful death action is not
time-barred, the decedent’s personal representative is not barred
from instituting an action for wrongful death.
The plaintiff does
concede, however, that Count I of the complaint, brought on behalf
of the Estate of Victor C. Davis, is time-barred by the three-year
FELA statute of limitations.
Accordingly, this Court finds that
summary judgment can be granted as to Count I of the complaint.
Section 56 of the FELA provides, in pertinent part:
“No
action shall be maintained under this chapter unless commenced
within three years from the day the cause of action accrued.”
U.S.C. § 56.
45
It is the defendant’s theory that the cause of action
accrued, at the very latest, on August 16, 2006 when the decedent
was diagnosed with thymic cancer.
In arguing this point, the
defendant relies heavily on Flynn v. New York, N.H. & H. R. Co.,
283 U.S. 53 (1931), and Urie v. Thompson, 337 U.S. 163 (1949).
In
Flynn, the Supreme Court of the United States held that the right
to recover for benefit of the dependents of a deceased employee is
barred where the employee failed to sue for injury within two years
after the accident.
Flynn, 283 U.S. at 55.
In Urie, the
plaintiff, who had been employed as a fireman on steam locomotives
for thirty years, was diagnosed with silicosis in 1940 and forced
5
to quit work.
Urie, 337 U.S. at 165-66.
The Supreme Court noted
that there was “no suggestion that Urie should have known that he
had silicosis” before he became too ill to work in May of 1940.
Id. at 170.
Thus, the Supreme Court held that the plaintiff’s
claim was not barred by the statute of limitations because “the
afflicted employee can be held to be ‘injured’ only when the
accumulated
effects
of
the
deleterious
substance
themselves.”
Id. at 171 (internal quotation omitted).
manifest
Using this
logic, CSX argues that in this case, the statute of limitations
began to accrue when the decedent had reason to know he had been
injured, specifically, when he was diagnosed with thymic cancer.
See Young v. Clinchfield R. Co., 288 F.2d 499, 503 (4th Cir. 1961)
(“The Urie case unquestionably demonstrates the Court’s view that
when the nature of the injury is such that it does not manifest
itself immediately, the determination of when the cause of action
accrued does not depend on when the injury was inflicted.
To the
contrary, the cause of action accrued only when the plaintiff has
reason to know he has been injured.
Generally this will be when
his condition is diagnosed.”).
In
her
response
to
the
defendant’s
motion
for
summary
judgment, the plaintiff relies upon Baltimore & Ohio S.W. R. Co. v.
Carroll, 280 U.S. 491 (1930), and McGhee v. Chesapeake & Ohio R.
Co., 173 F. Supp. 587 (W. D. Mich. 1959).
In Carroll, the Supreme
Court held that “[t]he cause of action which arises from death
accrues at the time of death, and the . . . period of limitation
6
then begins.”
Carroll, 280 U.S. at 495 (citing Reading Co. v.
Koons, 271 U.S. 58 (1926)).
The McGhee court also held that the
statute of limitations began to accrue at the time of the death of
the decedent.
McGhee, 173 F. Supp. at 590.
According to the
plaintiff, the decedent maintained a cause of action under FELA at
the time of his death because he died only nine months after he was
diagnosed with thymic cancer -- well within the three-year statute
of limitations provided by the FELA.
Thus, the plaintiff argues
that the statute of limitations for a wrongful death action began
to run upon the date of his death -- May 31, 2007.
In analyzing the parties’ claims, this Court finds the McGhee
case to be particularly instructive. In McGhee, the district court
held that the FELA establishes two separate and distinct causes of
action: (1) the decedent’s cause of action for personal injury; and
(2) the personal representative’s wrongful death action.
173 F. Supp. at 590.
McGhee,
Relying on Flynn, the court determined that
the wrongful death action accruing to the surviving dependents is
“derivative and dependent upon the continuance of a right in the
injured employee at the time of his death.”
Id.
Therefore, “the
personal representative of a decedent is barred from instituting an
action for wrongful death because of the statute of limitations
contained in § 56 only if such statutory three year period expires
during the lifetime of the decedent.”
Id.
In this case, Mr.
Davis’ cause of action for personal injury had not expired at the
time of his death, so the statute of limitations on his wife’s
7
wrongful death claim began to run from the date of his death.
Because this case was initiated within the three-year statutory
period, summary judgment is not appropriate as to Count II of the
plaintiff’s complaint.
B.
Admissibility of Expert Evidence/Testimony
In its motion for summary judgment, CSX also argues that
because the plaintiff has not produced any admissible expert
evidence
or
testimony
that
exposure
to
creosote
caused
the
decedent’s thymic cancer, the plaintiff cannot carry her burden to
show that the alleged exposure has a causal connection to the
disease.
CSX contends that the plaintiff cannot establish a prima
facie case to submit to the jury and thus, CSX is entitled to
summary judgment.
In response, the plaintiff asserts that the expert report and
testimony of Dr. Frederick W. Fochtman is admissible under the
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), standard.
The plaintiff further states that it is Dr. Fochtman’s opinion that
Mr. Davis’ thymic cancer was caused by his chronic exposure to coal
tar creosote, and that this establishes a prima facie case to
submit to a jury.
This Court recognizes that the defendant has filed a motion in
limine to exclude the testimony of Dr. Fochtman, or, in the
alternative, for a Daubert hearing prior to trial.
The plaintiff
has filed a response in opposition to this motion in limine, in
which she argues that Dr. Fochtman is qualified as an expert
8
witness and is also qualified to testify as to causation of Mr.
Davis’ thymic cancer.
Because the issue of the admissibility of
Dr. Fochtman’s testimony is still pending, this Court finds that
summary judgment on that issue must be denied.
IV. Conclusion
For the reasons stated above, the defendant’s motion for
summary judgment is DENIED as to Count II of the plaintiff’s
complaint and as to the issue of admissible expert testimony.
Summary judgment is GRANTED as to Count I of the plaintiff’s
complaint, as it is time-barred by the three-year FELA statute of
limitations.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.
DATED:
December 21, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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