Nuckols v. Consolidated Rail Corp.

[Cite as Nuckols v. Consolidated Rail Corp., 2022-Ohio-4309.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
RANDY NUCKOLS COURT OF APPEALS NO. {48}L-21-1217
APPELLANT TRIAL COURT NO. CI0201902279
V.
CONSOLIDATED RAIL
CORPORATION
AND
CSX TRANSPORTATION, INC.
APPELLEES
DECISION AND JUDGMENT
Decided: December 2, 2022
*****
Brian Reddy, for appellant.
Kevin C. Alexanderson and Holly M. Olarczuk-Smith, for appellees.
*****
MAYLE, J.
{¶ 1} Plaintiff-appellant, Randy Nuckols, appeals the October 13, 2021 judgment
of the Lucas County Court of Common Pleas, granting summary judgment in favor of
defendants-appellants, Consolidated Rail Corporation and CSX Transportation, Inc. For
the following reasons, we reverse the trial court judgment.
I. Background
{¶ 2} Randy Nuckols has been employed by Consolidated Rail Corporation or
CSX Transportation, Inc. (“the railroads”) for various periods dating back to 1976. On
July 11, 2014, he was diagnosed with oropharyngeal (throat) cancer. On June 9, 2016, he
filed a negligence action against the railroads in Philadelphia County, Pennsylvania under
the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. 51 et seq., claiming that his
cancer was caused by toxic materials or carcinogens to which he was exposed during the
course of his employment. The court dismissed the action without prejudice on October
16, 2017, under the doctrine of forum non conveniens. The dismissal entry provided—
apparently by stipulation of the parties—that if Nuckols refiled the action in Ohio or
another appropriate jurisdiction within 120 days of the order, “the filing date to be used
for statute of limitations purposes in the refiled action shall be June 9, 2016.” Nuckols
did not refile within 120 days. He refiled in Lucas County, Ohio on April 30, 2019.
{¶ 3} The railroads filed a motion for summary judgment, arguing that Nuckols’s
claim was time-barred under 45 U.S.C. 56 because it was filed more than three years after
Nuckols knew or, in the exercise of reasonable diligence, should have known, that he had
cancer and that his cancer was caused (or contributed to) by his exposure to toxic
materials or carcinogens in the workplace. They maintained that Nuckols knew that he
was exposed to diesel exhaust and asbestos in the course of his employment; he knew in
2014, that he had throat cancer; a reasonable person in his situation would have been
2.
expected to inquire about the cause of his cancer once it was diagnosed; there was
publicly-available information linking throat cancer to asbestos and diesel exposure;
therefore, Nuckols should have known that his cancer might have been connected to his
work for the railroads and he can be charged with constructive knowledge of the potential
cause for his cancer.
{¶ 4} Nuckols responded that in a FELA occupational disease action, the statute of
limitations begins to run when the employee becomes aware of his disease and its cause.
He maintained that while he was aware of his throat cancer diagnosis in July of 2014, he
did not know at that time that his cancer was caused by diesel and asbestos exposure, and
he only first considered that this may have been the cause in April of 2016, when he saw
an attorney Facebook advertisement. Nuckols contended that when a cause of action
accrues in a FELA case is a fact-intensive and case-specific inquiry that must be resolved
by a jury after consideration of numerous factors. He maintained that reasonable minds
may differ as to when he should have known of a potential link between his diagnosis and
his workplace exposure, and a genuine issue of material fact prevented the court from
granting summary judgment to the railroads.
{¶ 5} The trial court granted the railroads’ motion. It first observed that the
question of Nuckols’s timeliness depended on whether his action accrued before or after
December 23, 2014. This is because the statute of limitations was tolled while the matter
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was pending in the Philadelphia County Court.1 Ultimately, the trial court concluded that
the evidence was insufficient to establish a triable factual dispute as to whether Nuckols’s
claim accrued after July 11, 2014—Nuckols’s date of diagnosis. The court found that as
of that date, Nuckols knew of his diagnosis and knew that he had been exposed to diesel
and asbestos in his workplace. It rejected any suggestion that Nuckols’s claim accrued in
2016, when he saw his attorney’s Facebook advertisement, because, “at best, Plaintiff
merely learned of a potential legal claim”—“everything he knew about his cancer and its
potential cause was otherwise already known to him in July 2014.” Employing an
objective standard, it found that Nuckols’s testimony established that some investigation
into the potential cause of his cancer was required but was not performed.
1
In Burnett v. New York Cent. R. Co., 380 U.S. 424, 434-35, 85 S.Ct. 1050, 13
L.Ed.2d 941 (1965), the U.S. Supreme Court held that “when a plaintiff begins a timely
FELA action in a state court having jurisdiction, and serves the defendant with process
and plaintiff’s case is dismissed for improper venue, the FELA limitation is tolled during
the pendency of the state suit.” It further clarified that the period is tolled “until the state
court order dismissing the state action becomes final by the running of the time during
which an appeal may be taken or the entry of a final judgment on appeal.” The Burnett
tolling rule has been extended to protect a plaintiff whose case is dismissed for forum non
conveniens as well. Reed v. Norfolk & W. Ry. Co., 635 F.Supp. 1166, 1168
(N.D.Ill.1986).
Here, Nuckols filed his complaint in Pennsylvania on June 9, 2016. The
Pennsylvania court dismissed the case on October 16, 2017. Under Pa.R.A.P. 903(a), a
notice of appeal must be filed within 30 days after the entry of the order from which the
appeal is taken, which, in this case, would be November 15, 2017. Therefore, the statute
of limitations was tolled from June 9, 2016, to November 15, 2017—524 days. By our
calculation, this means that the timeliness of Nuckols’s action depends on whether his
claim accrued before or after November 23, 2014. The trial court stated that the
timeliness of Nuckols’s action depended on whether his claim accrued before or after
December 23, 2014, but it appears that the trial court did not include the time for appeal.
4.
{¶ 6} Nuckols appealed. He assigns the following error for our review:
The trial court erred in determining there was no genuine issue of
material fact for the jury to determine as to when Randy Nuckols knew or
should have known that his throat cancer was caused or contributed to by
his toxic exposures at the railroad.
II. Legal Standard
{¶ 7} Appellate review of a summary judgment is de novo, Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same
standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,
572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 8} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526
5.
N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,
662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is
made, an adverse party may not rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a genuine issue of material fact.
Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,
675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).
III. Analysis
{¶ 9} In his sole assignment of error, Nuckols argues that the trial court erred
when it determined as a matter of law that there exists no genuine issue of material fact
when he knew or should have known that his throat cancer was caused by or contributed
to by his toxic exposures at the railroads. Nuckols contends that the trial court
inappropriately weighed evidence and considered inferences in concluding that he should
have known of the causal link between his cancer and workplace exposure, thereby
usurping the role of the jury.
6.
{¶ 10} Nuckols explains that FELA has a humanitarian purpose intended as a
response to the special needs of railroad workers who are exposed on a daily basis to
risks inherent in their work. He claims that FELA is a broad remedial statute and courts
have adopted a standard of liberal construction to carry out its purpose. As such, Nuckols
maintains, a plaintiff’s burden under FELA is significantly lighter than in an ordinary
negligence action and juries should determine FELA cases unless there is a complete
absence of probative facts supporting the plaintiff’s position. Nuckols describes the
burden on a railroad employee as “relaxed.”
{¶ 11} According to Nuckols, the railroads rely on his subjective knowledge in
seeking to prove his action untimely. He claims that an objective inquiry was necessary
to determine when he knew or should have known, in the exercise of reasonable
diligence, the essential facts of his injury and its cause. However, Nuckols further
contends that the statute of limitations begins to run in occupational disease cases when
the employee has “definite knowledge” that his disease is work-related. He maintains
that an employee’s mere suspicion is not sufficient to begin the accrual of a cause of
action under FELA.
{¶ 12} Finally, Nuckols maintains that the question of when an employee should
have known that his injury was caused by workplace exposure to carcinogens is fact-
intensive and requires consideration of numerous factors, such as the degree of inquiry
made by the employee, the number of possible causes of the injury, whether medical
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advice indicated no causal connection, the complexity of the employee’s symptoms, the
expert knowledge or diagnostic skill of the medical doctors or experts consulted, and the
existence of a medically-recognized and documented causal link between the employee’s
symptoms and his working conditions. Nuckols insists that a jury must consider these
factors and determine when he knew or should have known that diesel exhaust or
asbestos caused his throat cancer.
{¶ 13} The railroads respond that employing an objective standard, on the date of
his diagnosis, Nuckols had all the facts necessary to discover whether there was a
connection between his cancer and his exposures at work. They contend that if Nuckols
had made an effort to investigate, there was enough publicly-available information that
could have led him to make the connection, but he made no effort to investigate. The
railroads emphasize that actual knowledge of causation is not necessary for an action to
accrue; rather, a cause of action accrues for statute of limitations purposes when the
plaintiff knew or in the exercise of reasonable diligence, should have known the essential
facts of injury and cause. They insist that Nuckols was required to take affirmative action
to discover the connection between his injury and workplace exposure.
{¶ 14} The railroads cite numerous cases in which courts of appeals and various
federal district courts have decided the issue of accrual in favor of the railroads. They
contend that an injured party need not have “definite knowledge” that his injury is work-
related for a claim to accrue under FELA, and if there are many possible causes for his or
8.
her injury, the injured plaintiff need not be certain which cause is the governing cause.
The railroads cite several cases where courts have rejected arguments made by other
plaintiffs represented by Nuckols’s lawyers, claiming that they discovered their injuries
only after seeing attorney advertisements. They distinguish cases cited by Nuckols where
courts denied summary judgment to the railroads.
{¶ 15} According to the railroads, a FELA cause of action accrues when (1) a
plaintiff has knowledge of his injury, (2) the plaintiff has knowledge of the exposure that
he alleges caused the injury, and (3) there is information available to anyone conducting a
reasonably diligent investigation that would connect the exposure to the injury. They
claim that Nuckols ignored his duty of due diligence. They caution that the statute of
limitations would be undermined if an accrual date depended on a plaintiff by chance
stumbling upon an attorney advertisement, which may occur decades after a plaintiff has
knowledge of both his injury and exposure. The railroads maintain that “[u]nder settled
FELA law, when a plaintiff has enough information to investigate whether his work is a
possible cause of his injury, his claim accrues and he ha[s] three years in which to
conduct a reasonably diligent investigation and decide whether to bring a claim.”
{¶ 16} Finally, the railroads challenge Nuckols’s claim that courts should apply a
more lenient standard for claim accrual under FELA. They acknowledge that FELA
dictates a more lenient standard of proximate cause than would apply in a common-law
negligence action. But they claim that nothing in the text of FELA creates a more lenient
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standard of proof for the accrual of a claim or requires a court to submit the question of
timeliness to the jury in the face of a properly-supported motion for summary judgment
demonstrating that the claim is untimely.
1. FELA, Its Statute of Limitations, and the Burden of Proof
{¶ 17} The FELA provides that “[e]very common carrier by railroad while
engaging in [interstate] commerce * * * shall be liable in damages to any person
suffering injury while he is employed by such carrier in such commerce * * * for such
injury or death resulting in whole or in part from the [carrier’s] negligence.” 45 U.S.C.
51. “Congress enacted the FELA as a ‘broad remedial statute’ to assist railroad
employees when an employer’s negligence causes injury.” Klem v. Consol. Rail Corp.,
191 Ohio App.3d 690, 2010-Ohio-3330, 947 N.E.2d 687, ¶ 30 (6th Dist.), citing
Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-562, 107 S.Ct. 1410, 94
L.Ed.2d 563 (1987). “The FELA is a ‘response to the special needs of railroad workers
who are daily exposed to the risks inherent in railroad work and are helpless to provide
adequately for their own safety.’” Id., quoting Sinkler v. Missouri Pacific RR. Co., 356
U.S. 326, 329, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958). It is intended to be read liberally in
favor of injured railroad employees. Id., citing Urie v. Thompson, 337 U.S. 163, 180, 69
S.Ct. 1018, 93 L.Ed. 1282 (1949).
{¶ 18} A FELA action must be commenced “within three years from the day the
cause of action accrued.” 45 U.S.C. 56. For latent injuries and causes such as those
10.
involved in occupational disease cases, “[c]ourts have consistently used ‘the discovery
rule’ to determine when the statute of limitations for a FELA claim begins to run.”
Shepard v. Grand Trunk W. R.R. Inc., 8th Dist. Cuyahoga No. 92711, 2010-Ohio-1853, ¶
18, citing Urie at 170. See also Henry v. Norfolk Southern Ry. Co., 605 Fed.Appx. 508,
511 (6th Cir.2015). Under the discovery rule, 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.” Shepard at ¶ 18, quoting Campbell
v. Grand Trunk W. RR. Co., 38 F.3d 772, 775 (6th Cir.2001). It is an objective inquiry.
Caputo v. CSX Transp., Inc., 70 F.3d 1271 (6th Cir.1995). Importantly, a claim does not
accrue at the point at which the plaintiff realizes that a claim is actionable in the eyes of
the law. See United States v. Kubrick, 444 U.S. 111, 113, 100 S.Ct. 352, 62 L.Ed.2d 259(1979) (explaining that “for statute of limitations purposes a plaintiff’s ignorance of his
legal rights and his ignorance of the fact of his injury or its cause” should not receive
identical treatment).
{¶ 19} Because the railroads are the moving party and are asserting the statute of
limitations as an affirmative defense, they have the initial burden to show the absence of
a genuine issue of material fact. See Jackson v. CSX Transp., Inc., 1st Dist. Hamilton No.
C-050370, 2006-Ohio-6045, ¶ 13 (“CSX, as the moving party and the party asserting the
statute of limitations as an affirmative defense, had the initial burden to show the absence
of a genuine issue of material fact.”). See also Campbell at 775 (“Because the statute of
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limitations is an affirmative defense, the burden is on the defendant to show that the
statute of limitations has run.”); Hayes v. Norfolk Southern Corp., 25 Fed.Appx. 308, 313
(6th Cir.2001) (same); Brown v. Union Pacific RR. Co., D.Neb. No. 8:18CV273, 2020
WL 3428984, f.n. 1 (Jun. 23, 2021) (concluding that in FELA cases where railroad
moves for summary judgment on the basis of the statute of limitations, railroad has
burden); Robinson v. Illinois Cent. R. Co., E.D.Pa. No. 2:08–89339, 2011 WL 4907401,
*1 (Feb. 14, 2011) (“At the summary judgment stage, under Rule 56(c), the moving party
bears the burden of proving that there is no genuine issue of material fact as to whether
the plaintiff knew or should [have] known of his injury and its cause within the statute of
limitations period.”).
{¶ 20} Where summary judgment is granted by the trial court on statute-of-
limitations grounds, an appellate court must determine “whether (1) the statute of
limitations has run and (2) whether there exists a genuine issue of material fact as to
when the plaintiff’s cause of action accrued.” Campbell at 775, citing Fries v. Chicago &
Northwestern Transp. Co., 909 F.2d 1092, 1094 (7th Cir.1990)..
2. What Nuckols Knew
{¶ 21} Nuckols does not dispute that he knew of his diagnosis on July 11, 2014.
He submits that there remains a genuine issue of material fact regarding when he knew or
should have known that his throat cancer was work-related. For purposes of summary
judgment, the railroads do not challenge Nuckols’s position that he did not know his
12.
throat cancer was connected to his employment. They claim, rather, that he should have
known, and that a reasonably diligent search of publicly-available information would
have revealed the connection.
{¶ 22} Nuckols testified at deposition that he was never trained by the railroads
concerning asbestos or diesel exhaust and was not told that they could cause cancer or are
carcinogenic. Nuckols testified that as a machinist, as far back as 2004, he would have to
enter a locomotive into the computer, and if there was a “hit” in the computer, the
locomotive would need to be sent for asbestos abatement. But he said that he did not
know what asbestos looked like and had never been trained that asbestos exposure could
be hazardous to his health. He was aware from media reports that asbestos was a hazard
in the fiberglass industry, but he had never seen anything in the general media or any
attorney advertisements indicating that it was a hazard in his industry. And while he once
served as a local chairman for the union, he never dealt with any employee complaints
regarding exposure to asbestos.
{¶ 23} Nuckols also testified that he did not understand that diesel fuel or exhaust
could be hazardous to his health. He testified that he never reviewed any publications
addressing diesel fuel or exhaust.
{¶ 24} In 2005, Nuckols’s doctor sent him to check for COPD. Although the
notes from that visit indicate that he “has been exposed to second-hand smoke his whole
life, as well as environmental exposure to diesel fumes at work,” he did not recall
13.
discussing whether his exposure to diesel exhaust could adversely affect his health. He
testified that his doctor was aware that he worked for the railroad.
{¶ 25} In December of 2013, Nuckols noticed a lump in his neck. After further
testing and biopsy, he was formally diagnosed with cancer in July of 2014. He asked the
doctor who removed his tumor, Dr. Shariff, what had caused the cancer, and Dr. Shariff
said that he did not know. The railroads interpret Nuckols’s testimony to mean that he
asked Dr. Shariff what “place in the body” his cancer came from. But if this was unclear,
it was clarified by defense counsel in a follow-up question:
Q: Okay. Other than the one time talking to Dr. Shariff after the
tumor was removed, did you speak with any other physician about the
cause of the cancer?
A: I don’t know if I talked to the oncologist or not. I know I talked
to Dr. Shariff.
Plaintiff’s counsel also inquired:
Q: Just so I’m clear, you had one discussion with Dr. Shariff
sometime in 2014, she said I don’t know what the cause of it was.
A: It’s a he.
Q: He, excuse me.
A: That’s fine.
Q: So no further inquiry in 2015 to any physician, correct?
14.
A: I don’t recall any other conversations about where it came from.
Q: And 2016 no discussions, correct, with any physician about the
cause of the throat cancer, correct?
A: That’s correct.
{¶ 26} After that, Nuckols had no other discussions with doctors concerning the
possible cause of his cancer. He performed a Google search to find out what head and
neck cancer was, but did not learn much from that search.
{¶ 27} Nuckols testified that he first made the connection between his cancer and
his exposures at the railroad when he saw an attorney ad on Facebook in 2016. Nuckols
said that he had no understanding in 2015 that asbestos could cause disease, aside from
mesothelioma, which he saw in law firms’ television advertisements. He guessed he was
“just naïve,” but he never thought about it until he saw his attorney’s Facebook
advertisement in 2016.
3. What Nuckols Should Have Known
{¶ 28} The railroads insist that by July 11, 2014, Nuckols possessed all the
essential facts necessary to investigate whether there was a connection between his
exposures at work and his injury. They maintain that a reasonable person could have
connected the injury with the workplace exposure through a reasonably diligent search.
They claim that courts regularly decide the issue of timeliness as a matter of law when
the plaintiff had sufficient information to investigate the possible cause of his or her
15.
injury. The railroads cite a number of cases in support of their position. While those
cases, indeed, grant summary judgment in favor of the defendants, those cases are
factually inapposite.
{¶ 29} For instance, the railroads cite Wells v. Norfolk Southern Ry. Co., 6th Cir.
No. 96-5267, 1997 WL 103319, * 1-2 (Mar. 6, 1997), for the basic proposition 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.” However,
in Wells, the employee—who had experienced hearing loss—had been told by his
employer that he must wear hearing protection equipment, required him to participate in a
hearing conservation program, and administered annual hearing tests. The court
concluded that under these circumstances, a reasonable employee “would infer that his
job pose[d] a threat to his hearing.” Id. at * 1.
{¶ 30} The railroads also cite McNutt v. CSX Transp., Inc., W.D.Ky. No. 3:08-
CV-601-H, 2010 WL 1688788, *2 (Apr. 26, 2010), for the proposition that “[a]
medical diagnosis * * * is not required for a plaintiff to reasonably know that his injury is
possibly related to his work.” However, in McNutt, the employee’s injury—bilateral torn
rotator cuffs—were, in fact, diagnosed and had been surgically treated more than three
years before he filed suit, and he had told his doctor that he had “‘difficulty in reaching
out for objects in the overhead position at his job’ and ‘is exposed to heavy repetitive
work in the overhead position.’” Id. at * 1.
16.
{¶ 31} And the railroads cite Reinhardt v. CSX Transp., Inc., W.D.Ky. No.
3:97CV-356-S, 1998 WL 34078436, *1 (Sept. 25, 1998), for the proposition that a claim
accrues when the plaintiff has enough information to charge him with knowledge of the
potential cause of his injury and to impose on him an affirmative duty to investigate. But
in Reinhardt, the plaintiff—who suffered knee injuries from “walking on ballast, or large
rocks, that make up the walkways between the tracks in the train yard”—conceded that
he knew about his knee injuries more than three years before he filed suit and admitted at
his deposition that he had complained to three of his supervisors about the ballast.” Id. at
* 1.
{¶ 32} The railroads also cite several cases involving one of Nuckols’s attorney’s
law firm, where courts granted summary judgment to the railroads after concluding that
the plaintiffs’ claims accrued sometime before seeing the firm’s advertisements:
• Garza v. Union Pacific RR. Co., D.Neb. No. 8:18CV391, 2020 WL 2037087,
*4 (April 28, 2020) (finding that plaintiff’s claim accrued on August 13, 2015,
when his doctor spoke with him about colorectal cancer—not in 2018 when he
saw law firm advertisement—because plaintiff knew for decades that he had
been exposed to hazardous materials at work, the exposure affected his overall
health, and following his diagnosis, doctors told him his work environment
was one potential cause of his cancer);
17.
• Pope v. Union Pacific RR. Co., D.Neb. No. 8:18CV421, 2019 WL 6615189, *3
(Dec. 5, 2019) (finding that plaintiff’s claim accrued February 4, 2013, when
his doctor spoke with him about colon cancer—not in 2017 when he saw law
firm advertisement—because plaintiff knew of his diagnosis, knew he had
been exposed to hazardous materials at work that affected his health, and failed
to investigate the causal connection between those facts);
• McLaughlin v. BNSF Ry. Co., D.Neb. No. 4:18-CV-3047, 2019 WL 4855147,
*3 (Oct. 1, 2019) (finding that plaintiff’s claim accrued March 6, 2015, when
he was diagnosed with bladder cancer—not when he saw attorney Facebook
ad—because plaintiff knew of his diagnosis, knew he had been exposed to
hazardous materials at work, and failed to investigate the causal connection
between those facts);
• Smith v. BNSF Ry. Co., D.Neb. No. 4:17-CV-3062, 2018 WL 6529503, *3
(Oct. 16, 2018) (finding that plaintiff’s claim accrued on March 10, 2014,
when he learned he had bladder cancer—not after seeing attorney
advertisement—because plaintiff knew about his cancer, knew about the
chemicals and hazards to which he’d been exposed over the years, and did
nothing to inquire into the cause of his condition except retain counsel);
• Crawford v. CSX Transp., Inc., Ala.Cir.Ct. No. CV-2017-905358.00 (Feb. 27,
2019) (finding that plaintiff’s complaint was filed outside statute of limitations
18.
where he was diagnosed with leukemia in January of 2012, did not file his
complaint until December 22, 2017, and failed to counter railroad’s evidence
that reasonably diligent search would have revealed publicly-available
information showing link between cancer and workplace exposure); and
• Lechner v. Consol. Rail Corp., Ind.Ct.App. No. 22A-CT-182, 2022 WL
3223387 (Aug. 10, 2022) (finding that plaintiff’s complaint was filed outside
the statute of limitations where complaint was filed two years after seeing law
firm advertisement—eight years after initial diagnosis—and plaintiff did not
inquire of his doctors as to cause, read literature provided by doctors, or
perform any other inquiry).
{¶ 33} The railroads do not cite, acknowledge, or attempt to distinguish other
cases (from the same jurisdiction as Garza, Pope, McLaughlin, and Smith) where the
courts reached opposite conclusions. See Greger v. Union Pacific RR. Co., D.Neb. No.
8:18CV577, 2020 WL 3489521 (Jun. 26, 2020); Bettisworth v. BNSF Ry. Co., D.Neb.
No. 8:17-CV-491, 2021 WL 1627770 (Apr. 27, 2021), recon. denied sub nom., Olson v.
BNSF Ry. Co., D.Neb. No. 8:17-CV-491, 2021 WL 3552523 (Aug. 11, 2021); Gillett v.
BNSF Ry. Co., D.Neb. 4:20-CV-3120, 2022 WL 2528623 (Jul. 22, 2022).
{¶ 34} In Greger, for instance, the plaintiff was diagnosed with renal cancer on
June 10, 2010. He asked his urologist and oncologist what caused his cancer and they
said they did not know. Plaintiff later saw a television commercial for a law firm
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regarding “railroad cancer,” and filed suit on December 13, 2018. Plaintiff testified that
he knew inhaling diesel fumes was not good for him, but did not believe it caused cancer.
He also knew since the 1990’s that asbestos could cause cancer, but did not know that
this was true of asbestos contained in brake pads.
{¶ 35} The court recognized that a FELA claim does not accrue until the claimant
becomes aware that he has been injured and that his injury is work-related, but it
explained that the employee must know, or have reason to know, the cause of his
condition. The court acknowledged that the statute of limitations begins to run when the
plaintiff discovers or, in the exercise of reasonable diligence, should discover, the critical
facts of injury and cause—an objective inquiry—and that a plaintiff has an affirmative
duty to investigate the potential cause of his injury. But while the court emphasized that
the plaintiff need not know the actual cause of his injury, it observed that “‘[w]hen a
plaintiff may be charged with awareness that his injury is connected to some cause should
depend on factors including how many possible causes exist and whether medical advice
suggests an erroneous causal connection or otherwise lays to rest a plaintiff’s suspicion
regarding what caused his injury.’” Id. at * 3, citing DuBose v. Kansas City S. Ry. Co.,
729 F.2d 1026, 1031 (5th Cir.1984). The court commented that this is especially true
where cancer is at issue, given that there are many causes of cancer, including those that
are natural and non-negligent.
20.
{¶ 36} In analyzing whether and when a plaintiff reasonably should know of his
claim, the court explained that courts should consider two factors: (1) whether a
reasonable person in the plaintiff’s situation would have been expected to inquire about
the cause of his injury in the first place, and (2) whether an inquiry would have disclosed
the cause of his injury so as to put him on notice of his claim. But, the court cautioned,
“there is a legal distinction between one’s own suspicion that something is a cause and
the requisite objective knowledge that begins the accrual clock.” Id. at * 4. It recognized
that “[a]pplication of the discovery rule involves determining what the plaintiff knew or
should have known, which is a factual question that is appropriate for the trier of fact.”
Id., citing Granfield v. CSX Transp., Inc., 597 F.3d 474, 482 (1st Cir.2010).
{¶ 37} The court ultimately concluded that the railroad did not show that it was
entitled to summary judgment based on the statute of limitations. It found that the
evidence did not show conclusively that the plaintiff was aware of the critical fact that his
work on the railroad could have caused his cancer during the time between his diagnosis
in 2010, and December 13, 2015 (three years before he filed his complaint). It found
plaintiff’s deposition testimony equivocal, establishing only that he knew some aspects of
his work may have been bad for his health, which, it noted, was “different than having
knowledge of the fact that exposures at work caused his cancer.” Id. at * 5. Although the
plaintiff may have suspected at the time of the diagnosis that his work was connected to
the cancer, he asked his doctors what caused his cancer and was told the cause was
21.
unknown. Accordingly, the court concluded, “[t]here is no evidence that a reasonable
person, in the face of such a response, would have continued to connect the cancer to
exposures at work.” Id. To the contrary, the doctors’ responses arguably laid to rest
plaintiff’s suspicion. The court refused to presume that the plaintiff knew more than his
doctors about the cause of the cancer.
{¶ 38} The other cases we referenced above are factually similar to Greger and
include similar analyses. In Bettisworth, D.Neb. No. 8:17-CV-491, 2021 WL 1627770,
the deceased employee was diagnosed with lung cancer in October 2014, and died
December 31, 2014. Shortly after her death, her husband saw a TV commercial that led
him to believe that his wife’s cancer was caused by workplace exposures, and he filed a
wrongful-death and survival action on December 26, 2017. The railroad claimed that the
survival action was time-barred. It claimed that information contained in the employee’s
oncologist’s records demonstrated that she suspected that her cancer was caused by her
workplace exposure to diesel fumes and asbestos. Specifically, the social history portion
of the patient intake form noted that the employee was exposed to “asbestos, diesel
fumes, and others at work.” Id. at * 2. The employee’s husband claimed, however, that
the employee’s primary care physician attributed her cancer to smoking. He admitted
that neither he nor his wife performed any additional investigation into the cause of her
cancer.
22.
{¶ 39} The court stated all the same legal standards that the Greger court cited and
applied the same two-part analysis. It found that the evidence did not show, as a matter
of law, that the employee or her husband were aware that her work on the railroad could
have been a cause of her cancer, nor did any doctor inform them of such. The court
concluded that “what the plaintiff or [his wife] knew about the potential causes of her
lung cancer—and when they knew it—is a factual question that is appropriate for a jury
to decide. “ Bettisworth at * 3.
{¶ 40} And in Gillett, D.Neb. 4:20-CV-3120, 2022 WL 2528623, the plaintiff was
diagnosed with head and neck cancer on December 1, 2015, a “malignant neoplasm” of
the lower lobe of his left lung on April 13, 2017, and lung cancer in December of 2017.
He filed his complaint October 8, 2020. The railroad argued that plaintiff’s cause of
action accrued as early as December 1, 2015, but no later than April 13, 2017, thus his
complaint was time-barred.
{¶ 41} Again, the court reiterated the same legal standards as Greger and
Bettiwsworth. But it emphasized that missing from the defendant’s statute-of-limitations
argument was any “evidence that the plaintiff either knew, or should have known in the
exercise of reasonable diligence, that diesel exhaust is carcinogenic.” Id. at * 11. The
court acknowledged that the plaintiff knew he had been exposed to diesel exhaust and
that he and others found it to be an “offensive nuisance.” Id. But it found that the
evidence, when construed in a light most favorable to the plaintiff, would not have caused
23.
a reasonable person in the plaintiff’s shoes to inquire whether diesel exhaust could be a
cause of his cancers.
{¶ 42} The court noted that plaintiff was a smoker. His doctor told him that
smoking and a viral infection from which he suffered could cause cancer, and no doctors
indicated that his cancer could have been caused by his workplace exposure—this was
information that plaintiff learned for the first time after seeing advertisements on
television and Facebook. The court would not go so far as to say that the plaintiff’s claim
accrued when he saw the advertisements and contacted a lawyer, but it concluded,
nevertheless, that there existed factual disputes regarding when plaintiff first had a duty
to investigate whether his exposure to diesel exhaust may have been a cause of his
cancers. See also Owens v. Union Pacific RR. Co., D.Neb. No. 8:19CV71, 2021 WL
1425154 (Apr. 15, 2021); Marburgh v. Union Pacific RR. Co., D.Neb. No. 8:19CV22,
2021 WL 1893222 (May 11, 2021); Edgett v. Union Pacific RR. Co., D.Neb. No.
8:18CV407, 2021 WL 1238498 (Apr. 1, 2021).
{¶ 43} The aforementioned cases were all decided by the U.S. district court for the
District of Nebraska. By far, this is the jurisdiction that has most often addressed the
issue of the timeliness of plaintiffs’ FELA claims in the context of occupational diseases
allegedly caused by workplace exposure to carcinogens. But other districts and
jurisdictions have held similarly.
24.
{¶ 44} In Curry v. Consol. Rail Corp., 766 F.Supp. 380, 383–84 (W.D.Pa.1991),
plaintiff’s decedent was diagnosed with lung cancer in October of 1979; he died March 4,
1980; sometime between March and May of 1983, plaintiff saw in the news media that
asbestos can cause lung cancer; and she filed suit on January 25, 1985. The court held
that viewing the evidence in a light most favorable to plaintiff, there remained a material
issue of fact as to when plaintiff possessed sufficient information or facts to indicate that
plaintiff’s decedent’s lung cancer and death may have been asbestos-related. The court
cited as support Barr v. Consolidated Rail Corporation, et al., W.D.Pa. No. 84–2650
(September 14, 1986), where under a similar timeline of events, the court concluded that
plaintiff was entitled to the favorable inference that she did not know, nor should she
have known, of facts supporting the likelihood that her husband’s exposure to asbestos
was related to his sickness and subsequent death. In Barr, the decedent retired from the
railroad in 1976, he developed lung cancer and died in March of 1980, and his wife filed
suit on November 2, 1984, after learning from a friend that asbestos exposure might have
caused her husband’s lung cancer death. There, too, the court denied summary judgment
to the railroad.
{¶ 45} In Sponcler v. BNSF Ry. Co., E.D.Wa. No. 2:19-cv-00286-SMJ, 2021 WL
916922, (Mar. 10, 2021), the court found that there was a genuine dispute of material fact
when plaintiff discovered or should have discovered the connection between his cancer
and workplace exposure, requiring resolution by a jury. There the employee was
25.
diagnosed with kidney cancer in late 2010, died on January 25, 2016, and his personal
representative filed suit on January 24, 2019. The railroad argued that the employee had
constructive notice of the cause of his cancer before his death, more than three years
before plaintiff sued. This, the railroad argued, was evidenced by the fact that a notation
was made in his medical records that he was exposed to asbestos in his workplace. But
the magistrate recommended that summary judgment be denied, Sponcler v. BNSF Ry.
Co., E.D.Wa. No. 2:19-cv-00286-SMJ, 2021 WL 798880 (Jan. 6, 2021), and the district
court agreed.
{¶ 46} The court acknowledged that different circuits have applied “varyingly
stringent standards for constructive notice in the FELA context.” Id. at * 3. In spite of
the fact that the employee told his doctor of his exposure, which could lead one to
conclude that he believed his cancer was caused by workplace exposure, the court found
that a question of fact existed. It explained:
[M]aybe the doctor asked a string of questions on various topics to
get an understanding of the patient’s history, both in relation to his cancer
diagnosis or otherwise, such that Decedent reasonably did not know the
purpose of the questioning. Perhaps Decedent could only have reasonably
been expected to know of general impacts of the exposure to his health, but
not that it could cause cancer. * * * Or perhaps Defendant is right, and
Decedent should have known that the exposure was a potential cause of his
26.
cancer from the discussion at his appointments or at least investigated the
cause. * * * But that is not for the Court to decide in this case. A jury must
determine whether Decedent should have reasonably “ma[de] the mental
leap” from his exposure to his cancer.
Id. at * 4.
{¶ 47} Here, we find that Nuckols’s case is analogous to the cases denying
summary judgment to the railroads. Nuckols testified that he asked his doctor what
caused his cancer and his doctor responded that he did not know. While a 2005 medical
note mentions Nuckols’s workplace exposure to diesel exhaust, this was in the context of
being treated for intermittent dyspnea (problems breathing), and his exposure to second-
hand smoke was also noted. In Shepard v. Grand Trunk W. R.R. Inc., 8th Dist. Cuyahoga
No. 92711, 2010-Ohio-1853, ¶ 19-22, the Eighth District Court of Appeals affirmed the
denial of summary judgment on statute-of-limitations grounds despite the fact that
plaintiff, years before his laryngeal cancer diagnosis, had been told by a doctor that his
breathing problems could have been caused by his environment. There, as in this case,
plaintiff testified that he did not know that asbestos or diesel fumes were harmful, he did
not receive training by the railroad concerning their dangers, and no other doctors or
health care providers ever told him that his exposure caused his health problems. See
Marburgh, D.Neb. No. 8:19CV22, 2021 WL 1893222 (commenting that there was no
evidence that decedent knew the correlation between exposure to toxins and cancer).
27.
{¶ 48} We must note, however, that several of the above-referenced cases—
including Greger, D.Neb. No. 8:18CV577, 2020 WL 3489521, at * 5; Owens, D.Neb.
No. 8:19CV71, 2021 WL 1425154, at * 5; Edgett, D.Neb. No. 8:18CV407, 2021 WL
1238498, at * 11; and Sponcler, E.D.Wa. No. 2:19-cv-00286-SMJ, 2021 WL 798880, at
* 7—denied summary judgment after observing that the railroads had not shown “that
there was publicly available information, notoriety, news reports, publicity, or
knowledge” linking cancer to the plaintiffs’ environmental exposures so as to prompt
further inquiry, and nothing in the record indicating that a timely investigation or more
searching inquiry would have informed plaintiff of the connection between the cancer
and his exposures.
{¶ 49} In this case, the railroads attempted to demonstrate the public availability
of such information by attaching to their summary-judgment motion screenshots and
printouts of various online articles and advertisements. The railroads claimed that
Nuckols would have found these materials if he had performed a “reasonably diligent”
internet search from July 11, 2014, to August 31, 2014. They stated—in a footnote in
their summary-judgment brief—that “[t]he basic search terms used were head and neck
cancer, throat cancer, asbestos, diesel, railroad worker and cancer.””
{¶ 50} As a preliminary matter, this is not summary-judgment quality evidence
that should be considered under Civ.R. 56. Civ.R. 56(C) requires that “[s]ummary
judgment shall be rendered forthwith if the pleadings, depositions, answers to
28.
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of
law.” The rule makes clear that “[n]o evidence or stipulation may be considered except
as stated in this rule.” (Emphasis added.) Id.{¶ 51} The screenshots and printouts are not “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, [or] written
stipulations of fact.” “The proper procedure for introducing evidentiary matter not
specifically authorized by Civ.R. 56(C) is to incorporate it by reference in a properly
framed affidavit pursuant to Civ.R. 56(E).” Biskupich v. Westbay Manor Nursing Home,
33 Ohio App.3d 220, 222-3, 515 N.E.2d 632 (8th Dist.1986), citing State, ex rel.
Corrigan, v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981). Here, the
railroads failed to attach an affidavit authenticating the screenshots and printouts they
attached to their motion, identifying who performed those searches and when, and
describing what combinations of terms were used.
{¶ 52} Nevertheless, the Ohio Supreme Court has held that a trial court may
consider other documents than those specified in Civ.R. 56(C) if—as here—there is no
objection. State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 122 Ohio St.3d 260, 2009-
Ohio-2871, 910 N.E.2d 455, ¶ 17. And this court has held that where no party objects
and “the trial court considered the otherwise inadmissible evidence in granting summary
29.
judgment, then the appellate court will also consider the evidence in its de novo review.”
Consumer Portfolio Servs., Inc. v. Staples, 6th Dist. Sandusky No. S-06-031, 2007-Ohio-
1531, ¶ 30. But see Reed v. Davis, 2013-Ohio-3742, 995 N.E.2d 1240, ¶ 15 (10th Dist.)
(holding that an appellate court “may, but [is] not required to consider * * * a document
of a type not identified in Civ.R. 56(C)” even though trial court considered it and no party
objected to it in the trial court or on appeal ”). Given that Nuckols did not object in the
trial court or challenge the admissibility of the railroads’ evidence on appeal, we will
consider this evidence in our de novo review.
{¶ 53} But, upon review, we find that the railroads’ evidence does not demonstrate
the absence of a genuine issue of material fact regarding whether an online internet
search between July 11, 2014, and August 31, 2014, would have informed Nuckols of the
connection between his cancer and his exposure. In fact, the railroads’ evidence raises
more questions than answers. In a footnote in their summary judgment motion, the
railroads state that “[t]he basic search terms used were head and neck cancer, throat
cancer, asbestos, diesel, railroad worker and cancer.” But the railroads did not submit
any evidence regarding the actual searches that were performed with these terms. For
example, did the railroads perform a search using only the phrase “throat cancer,” or did
they search “throat cancer and diesel and railroad” or “throat cancer and diesel”, etc.? If
a combination of search terms was used, this would presuppose that Nuckols already
knew the connection between his cancer and his workplace exposure—which is what the
30.
railroads maintain the internet searches would have revealed, and the material fact at
issue. Accordingly, based on the evidence in the record, there is still a factual issue
regarding whether a timely inquiry would have informed Nickols of the connection
between cancer and his exposures.
{¶ 54} Moreover, as articulated by the court in Greger, D.Neb. No. 8:18CV577,
2020 WL 3489521, courts should examine two factors in analyzing whether and when a
plaintiff reasonably should have known of his claim: (1) whether a reasonable person in
the plaintiff’s situation would have been expected to inquire about the cause of his injury
in the first place, and (2) whether an inquiry would have disclosed the cause of his injury
so as to put him on notice of his claim. See also O’Connor v. Boeing N. Am., Inc., 311
F.3d 1139, 1150 (9th Cir.2002) (articulating federal discovery rule in CERCLA case as
requiring same two-part analysis); McIntyre v. United States, 367 F.3d 38, 52 (1st
Cir.2004) (considering same in claim under FTCA2); Wilson v. United States, E.D.Okla.
No. CIV 05-384-JHP, 2006 WL 1520776, *6 (May 26, 2006) (focusing on first part of
analysis in FTCA claim and finding genuine issue of material fact when cause of action
accrued). Thus, the first question we must answer is whether a reasonable person in
Nuckols’s position would have been expected to conduct an inquiry in the first place.
2
It has been observed that “‘the Supreme Court and federal appellate courts regularly
apply the discovery rule’ to lawsuits ‘brought under federal statutes’ including
‘the FTCA,’ ‘RICO,’ and ‘FELA.’” Robinson v. BNSF Ry. Co., 553 Fed.Appx. 792, 795
(10th Cir.2014), quoting Plaza Speedway Inc. v. United States, 311 F.3d 1262, 1268
(10th Cir.2002).
31.
{¶ 55} Nuckols presented evidence that he did conduct an inquiry—i.e., he asked
his doctor what caused his cancer and his doctor did not know. It should be up to a jury
to determine if this inquiry was reasonable under the circumstances or if a reasonable
person in Nuckols’s situation would have conducted further inquiry into the cause of his
cancer after that. In reaching this conclusion, we echo the concern articulated in Greger,
that there are many causes of cancer, including those that are natural and non-negligent.
{¶ 56} In sum, based on the record before us, it is clear that Nuckols was aware (a)
that he was exposed to diesel and asbestos at work, and (b) that he has cancer. But there
is a genuine dispute over whether he knew, or should have known, that (a) could cause
(b). There is no evidence in the record that anyone ever told him that his exposure to
diesel and asbestos at work could cause cancer, nor is there any evidence that he
reviewed any information to that effect before the Facebook advertisement. Moreover,
even if we assume that Nuckols should have made additional inquiry after speaking with
his doctor, there is a genuine dispute regarding whether a “reasonably diligent” internet
search (as submitted by the railroads with their summary-judgment motion) would have
required Nuckols to have already known of a potential connection between his cancer and
his workplace exposure. In other words, this is not a case where the undisputed facts
show that Nuckols knew the fact and cause of his injury, but was merely unaware of his
legal rights.
32.
{¶ 57} The evidence in the record—when viewed in a light most favorable to
Nuckols—is simply insufficient for us to conclude that no genuine issue of material fact
exists regarding when Nuckols, in the exercise of reasonable diligence, should have
known that his workplace exposure was a potential cause of his cancer. Simply put, that
is a factual issue “that is not for the Court to decide in this case. A jury must determine
whether [Nuckols] should have reasonably ‘ma[de] the mental leap’ from his exposure to
his cancer.” Sponcler, E.D.Wa. No. 2:19-cv-00286-SMJ, 2021 WL 798880, at *4.
Accordingly, we find Nuckols’s sole assignment of error well-taken.
IV. Conclusion
{¶ 58} A genuine issue of material fact exists in this FELA action as to when
Nuckols knew or, in the exercise of reasonable diligence, should have known, that his
throat cancer was caused (or contributed to) by his exposure to toxic materials or
carcinogens in the workplace. Accordingly, we find his assignment of error well-taken,
reverse the October 13, 2021 judgment of the Lucas County Court of Common Pleas, and
remand this matter to the trial court for further proceedings. The railroads are ordered to
pay the costs of this appeal under App.R. 24.
Judgment reversed
and remanded
33.
Nuckols v. CSX
C.A. No. L-21-1217
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
Christine E. Mayle, J.
JUDGE
CONCUR.
Gene A. Zmuda, J.
DISSENTS AND WRITES
SEPARATELY.
ZMUDA, J., dissenting,
{¶ 59} Because I disagree with the majority’s conclusion that there are genuine
issues of material fact precluding summary judgment in the railroads’ favor in this case, I
must respectfully dissent. Upon my examination of the record, I conclude that the
railroads have demonstrated that Nuckols knew, or in the exercise of due diligence should
have known, both his injury and the cause of that injury at least three years prior to filing
his FELA complaint. As such, I would find that the trial court properly dismissed
Nuckols’ complaint as untimely filed.
{¶ 60} I agree with the majority’s articulation of the law governing the legal
dispute at issue in this case. In particular, the majority is correct in identifying that
34.
Nuckols was obligated to bring his FELA claims “within three years from the day the
cause of action accrued.” 45 U.S.C. 56. The three-year clock “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). Notably, 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).
{¶ 61} On July 11, 2014, Nuckols was diagnosed with cancer. Nuckols filed his
complaint in this action on April 30, 2019. As indicated by the majority, the three-year
limitations period was tolled during the pendency of the Pennsylvania suit, from June 9,
2016, until November 15, 2017, for a total of 524 days. Therefore, this action was timely
filed only if Nuckols’ cause of action accrued on or after November 23, 2014. There is
no evidence that Nuckols knew of the link between his employment and his cancer prior
to seeing a Facebook advertisement revealing such a connection in April 2016. Thus, the
salient question is whether a reasonable person in Nuckols’ position, exercising
reasonable diligence, should have known about his injury and the cause of that injury
sometime between his diagnosis in July 2014 and the cutoff day of November 23, 2014.
35.
{¶ 62} The analytical framework the majority uses to answer this question is a
two-part test that asks (1) whether a reasonable person in the plaintiff’s situation would
have been expected to inquire about the cause of his injury in the first place, and (2)
whether an inquiry would have disclosed the cause of his injury so as to put him on
notice of his claim.
{¶ 63} As to the first part of the test, I conclude the record before us unequivocally
establishes that the effort Nuckols made to ascertain the cause of his cancer falls far short
of the affirmative duty a FELA plaintiff has to diligently investigate the potential cause of
an injury. In Fries v. Chicago & Northwestern Transportation Co., 909 F.2d 1092 (7th
Cir.1990), the Seventh Circuit explained 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.” Id. at 1095. Here,
Nuckols’ efforts to discover the cause of his cancer were paltry. Indeed, the sum of his
efforts in this regard include one conversation with Dr. Shariff sometime in 2014, at
which time Dr. Shariff told Nuckols he was unsure as to the cause of Nuckols’ cancer.
Nuckols made no further efforts to “protect 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). In short, Nuckols exercised almost no diligence in ascertaining the cause of his
cancer prior to November 23, 2014, and I conclude that a reasonable person in his
situation would have been expected to inquire about the cause of his injury.
36.
{¶ 64} Next, the question is whether further inquiry from a reasonable person
would have disclosed the cause of Nuckols’ injury so as to put him on notice of his claim.
The majority answers no, and in so doing discounts the railroads’ evidence of internet
search results from July 11, 2014, to August 31, 2014, establishing the causal connection
between cancer and railroad employment. In particular, the majority finds that this
evidence is not useful because the railroads have not explained the exact searches that
were performed in order to obtain the search results. I find no such difficulty in
evaluating the import of this evidence.
{¶ 65} In the trial court, the railroads specified the terms they used to conduct their
search, including “head and neck cancer, throat cancer, asbestos, diesel, railroad worker
and cancer.” While it is true that the railroads did not specify the exact phrasing of their
search, such algorithmic precision is not necessary to ascertain the basic thrust of the
evidence – an internet search using basic terms known to Nuckols as of the date of his
diagnosis would have revealed a potential causal connection between his cancer and his
railroad employment. This evidence, at a minimum, was sufficient to demonstrate that
any reasonable inquiry into the cause of the cancer would have disclosed the cause of
Nuckols’ injury so as to put him on notice of his claim.
{¶ 66} In light of the evidence presented by the railroads, I find that the railroads
met their initial burden of demonstrating the absence of any genuine issues of material
fact that would preclude summary judgment in their favor. Thus, the burden shifted to
37.
Nuckols as the nonmoving party to provide evidence showing that a genuine issue of
material fact does exist. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264(1996). Notably, Nuckols introduced no evidence whatsoever to rebut the railroads
evidence that showed a simple internet search would have revealed the linkage between
his cancer and his employment.3 Nuckols was obligated to present evidence that, at a
minimum, raised a question of fact on this issue. He simply failed to do so.
{¶ 67} Taken together, I would find that the evidence submitted by the railroads in
this case established that there are no genuine issues of material fact as to the accrual of
Nuckols’ claim no later than August 31, 2014. As such, Nuckols’ claim was untimely
filed, and summary judgment was appropriate. Since the majority concludes otherwise, I
must dissent.
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/.
3
Nuckols’ lack of any effort to discern the cause of his cancer is demonstrated by the fact
that he only discovered the possible connection to his employment when he happened
upon an attorney’s advertisement on Facebook revealing the link. There is no other
evidence in the record to suggest that Nuckols exercised any affirmative due diligence
with respect to ascertaining the cause of his cancer after his diagnosis.
38.