Metz v. CSX Transp. Corp.

[Cite as Metz v. CSX Transp. Corp., 2022-Ohio-3503.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Jeffrey B. Metz Court of Appeals No. L-21-1255
Appellant Trial Court No. CI0202001484
v.
CSX Transportation Corp, et al DECISION AND JUDGMENT
Appellees Decided: September 30, 2022
*****
E.J. Leizerman, for Appellant.
Holly M. Olzarczuk-Smith, and David A. Damico, for Appellees.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Jeffrey Metz, appeals the judgment of the Lucas County Court of
Common Pleas, granting the motion for summary judgment filed by appellees,
Consolidated Rail Corporation and Norfolk Southern Railway Corporation, and
dismissing appellant’s claims under Federal Employers’ Liability Act (“FELA”).
Because we find that the trial court properly concluded that appellant’s claims are time-
barred, we affirm.
A. Facts and Procedural Background
{¶ 2} This FELA action originated upon appellant’s filing of a complaint on
February 13, 2020.1 In his complaint, appellant alleged that he suffered serious
respiratory and pulmonary injuries including asthma, emphysema, and chronic
obstructive pulmonary disease (“COPD”), as a result of diesel exhaust exposure during
the time of his employment with appellees.2 Appellant asserted that his injuries were the
result of appellees’ negligence and sought damages in an amount in excess of $3,000,000.
Relevant to this appeal, appellant further alleged that he “first learned of the medical
condition referenced in [the] complaint within three years from the date of filing [the]
complaint.”
{¶ 3} On March 23, 2020, appellees filed their answer, in which they generally
denied any liability arising out of appellant’s respiratory and pulmonary conditions and
asserted several affirmative defenses including a statute of limitations defense.
Following discovery and pretrial motion practice, appellees filed a motion for summary
1
Appellant amended his complaint on May 7, 2020. The amendments to the complaint
are immaterial to the present appeal.
2
Appellant also named CSX Transportation as a defendant in his complaint. However,
appellant filed a voluntary dismissal of CSX Transportation pursuant to Civ.R.
41(A)(1)(a) on August 24, 2021. Therefore, CSX Transportation is not a party to this
appeal.
2.
judgment on May 20, 2021. Several supporting materials were attached to appellees’
motion for summary judgment, including transcripts from appellant’s depositions,
appellant’s medical records, and filings contained in the record of appellant’s bankruptcy
proceedings.3
{¶ 4} In their motion for summary judgment, appellees argued that the FELA
claims brought against them were time-barred because they were filed beyond the three-
year statute of limitations set forth in 45 U.S.C. 56. Moreover, appellees contended that
appellant’s claims were barred by the doctrine of judicial estoppel in light of his recent
bankruptcy. As to the statute of limitations issue, appellees noted that appellant has a
“long history of breathing problems” dating back to the early 2000s, when he went to the
hospital for breathing problems related to his exposure to diesel exhaust fumes at work.
Thus, appellees reasoned that appellant “knew or should have known that his COPD and
asthma might have been connected to his railroad employment more than three years
before he filed his complaint on February 13, 2020.”
3
It appears from the record that several of these materials, including the deposition
transcripts attached to appellees’ motion, were not previously filed with the trial court, as
required under Civ.R. 56(C). However, appellant did not object to the attachment of
those materials to appellees’ motion, and has thus waived any error associated with the
trial court’s consideration of the materials. See XPX Armor & Equipment, Inc. v.
SkyLIFE Co., Inc., 2020-Ohio-4498, 158 N.E.3d 1024, ¶ 87 (6th Dist.) (“Courts routinely
find, however, that a party’s failure to object to the use of an unfiled deposition transcript
waives error as to the use of the excerpts of a deposition transcript.”).
3.
{¶ 5} On July 1, 2021, appellant filed his memorandum in opposition to appellees’
motion for summary judgment. In the memorandum, appellant acknowledged that a
three-year statute of limitations is applicable in this case, but insisted that the statute did
not begin running until he discovered the connection between his respiratory diseases and
his employment. According to appellant, this discovery took place on January 15, 2020,
the date his doctor, Dr. Daniel Pipoly, expressed an opinion that appellant’s respiratory
diseases were likely caused by his work on the railroad.
{¶ 6} Appellant argued his prior discussions with Dr. Pipoly did not trigger the
statute of limitations, because in those discussion Dr. Pipoly “merely discussed the
possibility that [appellant’s] issues could be caused by the railroad.” (Emphasis sic.).
Appellant also argued that appellees’ judicial estoppel argument was without merit, since
he was unaware of the existence of a FELA claim prior to January 15, 2020, and thus
could not disclose that potential claim in bankruptcy court prior to his bankruptcy
discharge on December 19, 2019.
{¶ 7} Upon consideration of the parties’ arguments, the trial court issued its
decision on appellees’ motion for summary judgment on November 30, 2021. In its
decision, the trial court offered little analysis of its own, but agreed with the positions
advanced by appellees’ on both the statute of limitations issue and the judicial estoppel
issue. Accordingly, the trial court granted appellees’ motion for summary judgment.
{¶ 8} On December 20, 2021, appellant filed his timely notice of appeal.
4.
B. Assignments of Error
{¶ 9} On appeal, appellant assigns the following error for our review:
I. The trial court erred in granting defendant Railroads’ motion for
summary judgment, dismissing plaintiff’s claim under the Federal
Employers Liability Act and Locomotive Inspection Act.
II. Analysis
{¶ 10} In appellant’s sole assignment of error, he contends that the trial court erred
in granting appellees’ motion for summary judgment.
{¶ 11} We review the grant or denial of a motion for summary judgment de novo,
applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61
Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is
appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party
is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one
conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that
conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co.,
54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 12} On a motion for summary judgment, the moving party has the burden of
demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio
St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to
some evidence in the record in the form of “pleadings, depositions, answers to
5.
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action[.]” Civ.R. 56(C); Dresher at 292-
293. The burden then shifts to the nonmoving party to provide evidence showing that a
genuine issue of material fact does exist. Dresher at 293. The failure to satisfy this
reciprocal burden warrants judgment against the nonmoving party. Id.{¶ 13} Here, appellant argues that the trial court erred in granting summary
judgment because his FELA claim is neither time-barred nor judicially estopped in light
of his prior bankruptcy proceeding. In response, appellees argue the trial court properly
concluded that appellant’s claim is time-barred because it was filed outside of the
applicable three-year statute of limitations. Further, appellees assert that appellant is
judicially estopped from bringing his FELA claim in light of his failure to notify the
bankruptcy court of the claim during the pendency of the bankruptcy action. Because we
find the statute of limitations issue dispositive, we will constrain our analysis to that
issue.
{¶ 14} The parties agree that appellant’s claim arises under the FELA, Section 51
et seq., Title 45, United States Code. “In 1906, Congress enacted the FELA to provide a
federal remedy for railroad workers who suffer personal injuries as a result of the
negligence of their employer or their fellow employees.” Atchison, Topeka & Santa Fe
Ry. Co. v. Buell, 480 U.S. 557, 561, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). To that end,
45 U.S.C. 51 provides that “[e]very common carrier by railroad * * * shall be liable in
damages to any person suffering injury while he is employed by such carrier * * * for
6.
such injury * * * resulting in whole or in part from the negligence of any of the officers,
agents, or employees of such carrier.”
{¶ 15} Nonetheless, in order to avail the remedies provided under the FELA, a
plaintiff must commence an action asserting FELA claims “within three years from the
day the cause of action accrued.” 45 U.S.C. 56. In general, “FELA cases adjudicated in
state courts are subject to state procedural rules, but the substantive law governing them
is federal.” St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct.
1347, 84 L.Ed.2d 303 (1985). The three-year statute of limitations set forth in 45 U.S.C.
56 constitutes substantive law, and thus governs this case. See Erwin v. Bryan, 125 Ohio
St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 29 (“The existence and duration of a
statute of limitations for a cause of action constitutes an issue of public policy for
resolution by the legislative branch of government as a matter of substantive law.”).
{¶ 16} The date of accrual of a FELA claim is governed by the so-called
“discovery rule,” under which the statute of limitations “begins to run when the
reasonable person knows, or in the exercise of due diligence should have known, both his
injury and the cause of that injury.” Campbell v. Grand Trunk W. RR. Co., 238 F.3d 772,
775 (6th Cir.2001). The inquiry into whether a reasonable person should have known of
the injury and cause is an objective one, and “the injured plaintiff need not be certain
which cause, if many are possible, is the governing cause but only need know or have
reason to know of a potential cause.” Fries v. Chicago & Northwestern Transportation
Co., 909 F.2d 1092, 1095 (7th Cir.1990).
7.
{¶ 17} The parties agree that the three-year statute of limitations set forth in 45
U.S.C. 56 applies. However, they disagree as to when that three-year time period began
to run. According to appellant, the statute did not begin to run until January 15, 2020,
when Dr. Pipoly expressed an opinion that his respiratory diseases were likely caused by
his railroad employment. By contrast, appellees urge that the statute started running
when Dr. Pipoly told appellant “in 2008, 2009, 2010 and 2013 that his alleged exposure
to diesel fumes at the railroad was possibly causing his COPD and asthma.” According
to appellees, these conversations with Dr. Pipoly alerted appellant to the connection
between his respiratory diseases and his employment and thus triggered the statute of
limitations under the discovery rule.
{¶ 18} In support of their motion for summary judgment, appellees cite to several
supporting materials to demonstrate that a reasonable person in appellant’s situation
should have been aware of the causal connection between his work on the railroad and
his asthma, emphysema, and COPD many years prior to commencing the present FELA
action. In particular, appellees attached transcripts from appellant’s two depositions,
appellant’s response to one of appellees’ interrogatories, and appellant’s medical records.
{¶ 19} In his first deposition, appellant recounted an incident that occurred in the
early 2000s in which he was forced to stop working and admit himself into the Henry
Ford Hospital in Detroit due to breathing problems. As to this incident, appellant
testified that he “didn’t make a connection early on” between his breathing difficulties
and his exposure to diesel exhaust fumes.
8.
{¶ 20} In his second deposition, appellant stated that he was hospitalized for
breathing issues in November 2020. After release from the hospital, appellant visited Dr.
Pipoly. According to appellant, Dr. Pipoly “said at that point that he was convinced
[appellant’s breathing problem] was because of [appellant’s] exposure to diesel exhaust.”
Appellant went on to reveal:
I know over the years I asked him if this might be a problem, you
know, for me, you know, because of my employ. And he said he didn’t
have an opinion on it at that particular time. He – you know, the exhaust
was ever present. It comes through the manifold, through the floor.
So he told me that type of exposure, because of the multiple
environments I was in with the toxic dust and the exhaust, that I could –
that it might possibly be – but in November, he said conclusively that it was
the diesel exhaust that was causing, in his belief, causing my illnesses.
{¶ 21} Appellant acknowledged having had prior conversations with Dr. Pipoly
regarding the connection between his respiratory diseases and his employment on the
railroad, but he insisted that Dr. Pipoly “had no opinion.”
{¶ 22} In an interrogatory propounded upon him by appellees in connection with
this case, appellant was asked to identify the date on which he first knew that his injury
was caused by exposure to diesel exhaust. He responded on August 26, 2020, that he
“became aware that diesel exhaust has been causing this problem over the last couple of
9.
years.” During appellant’s second deposition, trial counsel for appellees questioned
appellant about this response, as follows:
Q. Okay. Would that have been something that Dr. Pipoly had told
you? Would that information have come from him?
A. No. I – I suspected it. I mean, like I said, I – it just wasn’t
coincidence that I kept getting sick at work. I mean, every time I would go
– not every time, but a lot of times I would go and I would get sick with the
same symptoms.
{¶ 23} Finally, appellees attached select portions of appellant’s medical records
related to his respiratory illness. The records include several progress notes from Dr.
Pipoly.
{¶ 24} The first such note is dated November 29, 2005. According to the note,
appellant visited Dr. Pipoly for a follow-up visit from a recent Toledo Hospital stay
during which he first met with Dr. Pipoly. In the note, Dr. Pipoly indicated that appellant
was a railroad worker and a cigarette smoker who suffered from “an exacerbation of
asthma and COPD” that was undertreated at the time.
{¶ 25} In a subsequent progress note from March 9, 2006, Dr. Pipoly first
suggested a connection between appellant’s respiratory illness and his railroad
employment. Dr. Pipoly assessed appellant as suffering from COPD and asthma and
noted that it was “[i]mpossible to ascertain just how much chronic lung disease he might
10.
have from smoking as well as from diesel fume exposure as that which is intrinsic
asthma. He has manifestations of both.”
{¶ 26} Dr. Pipoly again surmised a connection between appellant’s illness and his
employment when he wrote the following progress note on May 14, 2008: “We also think
some of [appellant’s] COPD may be mediated by the heavy diesel fume exposures he has
experienced on the railroad for years. This [is] because he has fixed air flow obstruction
which seems disproportionate to a fairly limited smoking history of 20/pack year.”
{¶ 27} Over time, Dr. Pipoly’s statements regarding the cause of appellant’s
COPD became more definitive. On November 24, 2009, Dr. Pipoly reiterated his
previous statement concerning causation in a progress note in which he explained that
appellant presented with “chronic asthma and, we believe, some element of COPD
related both to previous 20 pack year smoking and fumes and dust from working on the
railroad.” Then, on May 11, 2010, Dr. Pipoly stated: “Follow up with COPD on the basis
of previous smoking, and I think more particularly heavy diesel fume exposure in his job
on the railroad for which he is fully employed.”
{¶ 28} The unrefuted evidentiary materials attached to appellees’ motion for
summary judgment and outlined above establish, at the very least, that appellant was
made aware, no later than May 2010, of the possibility that his respiratory illnesses were
caused by the diesel exhaust fumes he inhaled over many years as a railroad employee
working for appellees.
11.
{¶ 29} Rather than contesting this proposition, appellant argues that the discovery
rule is not triggered upon knowledge of a possible connection, but rather only upon a
doctor’s determination as to a likely connection. Appellant’s argument misconstrues the
essence of the discovery rule. As we already noted, under the discovery rule the statute
of limitations begins to run when the plaintiff knows, or in the exercise of due diligence
should have known, of both the injury and its cause. Campbell, supra, 238 F.3d at 775.
Further, a plaintiff need not be certain of the cause of an injury, but instead has an
affirmative duty to diligently investigate the potential cause of an injury where many
causes are possible. Fries, supra, 909 F.2d at 1095.
{¶ 30} Under appellant’s articulation of the rule, the duty to exercise due diligence
to ascertain the injury and its cause would be shifted from the plaintiff to a medical
provider offering a medical diagnosis. It therefore misconstrues the obligation a party
has to exercise some degree of diligence in making inquiry of the cause of medical
symptoms. Here, there is no dispute that appellant had manifest symptoms for ten years
prior to Dr. Pipoly’s definitive diagnosis.
{¶ 31} In Wells v. Norfolk Southern Railway Co., 108 F.3d 1378 (6th Cir.1997),
the Sixth Circuit explained that the “‘due diligence’ requirement means that a plaintiff
who has reason to suspect that his injury is work related must take steps to see whether
this is, in fact, the case.” Id. at *1; see also Fries at 1095 (explaining that the discovery
rule does not “provide an escape for plaintiffs who are aware that some type of injury
exists yet who choose to ignore it by failing to seek diagnosis and investigate the cause”).
12.
In McNutt v. CSX Transportation, Inc., W.D.Ky. No. 3:08-CV-601-H, 2010 WL 1688788(Apr. 26, 2010), the United States District Court for the Western District of Kentucky
applied the principle articulated by the court in Wells to a plaintiff’s argument that his
FELA claim was not time-barred because he had not received a medical diagnosis
concerning the cause of his rotator cuff injury within a reasonable degree of medical
certainty until 2008, five years after the condition was first diagnosed. The district court
rejected the plaintiff’s argument, stating:
A medical diagnosis, however, is not required for a plaintiff to reasonably
know that his injury is possibly related to his work. Rather, the plaintiff
must exercise “due diligence” to learn the cause of his injury. * * * It is
undisputed that Plaintiff knew of his injuries in 2003 and connected those
injuries to his work. Thus, Plaintiff was under a duty at that time to
investigate the cause of his injuries and the statute of limitations had begun
running. Because Plaintiff failed to bring his claim within three years, his
claim is now barred.
Id. at *2.
{¶ 32} Here, appellant had several discussions with Dr. Pipoly in 2008, 2009, and
2010, during which Dr. Pipoly connected appellant’s respiratory illnesses to the diesel
exhaust he was exposed to at work. By May 2010, Dr. Pipoly narrowed his opinion as to
the cause of appellant’s COPD down to appellant’s “heavy diesel fume exposure in his
job on the railroad for which he is fully employed.” Thus, appellant knew or at the very
13.
least was made aware of the connection between his employment and his respiratory
illnesses by May 2010 at the latest.
{¶ 33} With this information from his doctor, appellant had an affirmative duty to
conduct further inquiry into whether his illnesses were, in fact, related to his work and
commence his FELA action within three years. He could have “protect[ed] himself by
seeking advice in the medical and legal community.” U.S. v. Kubrick, 444 U.S. 111, 123,
100 S.Ct. 352, 62 L.Ed.2d 259 (1979). However, appellant made no further inquiry and
waited until February 13, 2020, nearly ten years later, to file his suit. Consequently, we
conclude that appellant’s complaint was filed long after the applicable three-year statute
of limitations had expired. Thus, the trial court properly concluded that appellant’s
FELA claim was time-barred and rightly granted appellees’ motion for summary
judgment on that basis.
{¶ 34} Accordingly, appellant’s sole assignment of error is not well-taken.
III. Conclusion
{¶ 35} In light of the foregoing, the judgment of the Lucas County Court of
Common Pleas is affirmed. The costs of this appeal are assessed to appellant under
App.R. 24.
Judgment affirmed.
14.
Metz v. CSX, et al.
C.A. No. L-21-1255
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
15.