Heizer v. Cincinnati, New Orleans & Pacific Railway Co.

Citations: 172 S.W.3d 796; 2004 Ky. App. LEXIS 230; 2004 WL 1752424Docket: 2003-CA-000922-MR

Court: Court of Appeals of Kentucky; August 6, 2004; Kentucky; State Appellate Court

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Dennis Heizer, representing the estate of James Heizer, appeals a Campbell Circuit Court order granting summary judgment to Cincinnati, New Orleans and Pacific Railway Company, CSX Transportation, Inc., and Norfolk Southern Railway Company. The court found that James possessed actual and constructive knowledge that his mesothelioma, leading to his death on December 26, 1998, was work-related, concluding that this knowledge was established by January 1997. The Railroads argued that both the survival action and wrongful death claim were barred by the three-year statute of limitations under the Federal Employers' Liability Act (FELA).

On appeal, Dennis contends the trial court erred in its findings regarding James’s knowledge and the statute of limitations, asserting that the court overlooked critical deposition testimony and affidavits from his brothers. The appellate court affirmed the dismissal of the survival action but reversed the dismissal of the wrongful death claim, indicating that the trial court erred in this aspect and remanding the case for further proceedings.

David's affidavit indicates that he accompanied James to a Veteran's Administration medical facility for two biopsies: the first in 1995, which was negative for cancer, and the second in November 1996, which confirmed cancer. David and James attended a follow-up meeting in January 1997, where James was informed his cancer was incurable. Neither David nor R.J., who also provided an affidavit, heard any mention of asbestos in relation to James's condition; instead, James referred to his illness as lung cancer. It was only after James's death that a nurse mentioned asbestos to the family, suggesting an autopsy, which revealed asbestos in James's lungs. Dennis argues that the family learned posthumously that James's mesothelioma was linked to past asbestos exposure and that medical records do not reflect any explanation of this connection given to James. The court previously stated that the standard of review for summary judgment is to determine if there were any material facts in dispute. It agrees with Dennis that the trial court mistakenly found that James had actual knowledge of the link between his occupation and cancer, despite a discharge summary suggesting mesothelioma due to asbestos exposure. However, the error was deemed harmless because James had constructive knowledge of the relationship between his work and illness by January 1997. Dennis contends that James and his family believed his cancer was caused by smoking, supported by R.J.'s affidavit stating that James referred to his illness as lung cancer. Dennis also cites a case, Bath Iron Works Corp. v. U.S. Dept. of Labor, where the decedent's wife discovered the asbestos link years after his death, highlighting issues of reasonable diligence regarding knowledge of the disease's cause.

The 1st Circuit concluded that the term "mesothelioma" had no special significance to the decedent's wife beyond her understanding of it as cancer. Due to the distance in time between the decedent's exposure to asbestos and the disease's manifestation, there was no basis for her to have exercised due diligence earlier. Citing Shesler v. Consolidated Rail Corp., it was noted that the plaintiff had no obligation to understand "pleural plaques" and only learned of their connection to asbestos in 1998 through a specialist. Dennis argued that there was no evidence that James "constructively knew" of the causal relationship between his mesothelioma and asbestos exposure, asserting that the term "mesothelioma" meant no more to James than "lung cancer."

Under 45 U.S.C. § 59, an injured employee's cause of action survives their death, allowing a personal representative to pursue a survival action for the employee's family. According to 45 U.S.C. § 56, such actions must be initiated within three years from the date the cause of action accrued, which occurs when the injured party is aware of both the injury and its cause. If the injury arises from continuous exposure to a harmful substance, the action accrues upon manifestation of the injury.

For the statute of limitations, an injured employee's action accrues when a reasonable person would know, or should have known, of the injury and its cause, necessitating an objective inquiry into the plaintiff’s awareness. The injured party is not required to identify the exact cause among several possibilities but must investigate potential causes. Dennis acknowledged that James was aware of his mesothelioma diagnosis in January 1997, establishing his actual knowledge of the injury. The pivotal question was when James should have discovered the cause of his illness. The record indicated that James was preliminarily diagnosed in December 1996 and later confirmed in January 1997, with a prognosis of incurability. Despite this, he sought further treatment in March 1997. The court determined that James, exercising reasonable diligence, should have recognized the link between his illness and asbestos exposure no earlier than December 1996 and no later than March 1997. Thus, the court agreed with the trial court's finding that the cause of action accrued in January 1997, giving James's children until January 2000 to file their survival action before it was barred by the statute of limitations.

Dennis's survival action was filed on January 19, 2001, after the three-year statute of limitations had expired. He did not present a genuine issue regarding the accrual of the action or the statute's applicability. The trial court determined that James had constructive knowledge of his illness's cause and properly dismissed the survival action as time-barred. Regarding mental disability, Dennis argued that James's mental incompetence post-stroke should toll the statute of limitations, citing Arizona case law. However, the court found insufficient evidence of James's mental disability at the time of his mesothelioma diagnosis. Despite some mental difficulties noted five months before his death, these did not warrant tolling the statute, which would have only extended to June 2000, still barring the January 2001 filing.

For the wrongful death claim, Dennis contended that it was incorrectly dismissed based on the survival action's status. He referenced that the wrongful death statute under 45 U.S.C. § 51 begins at the worker's death, and while acknowledging the derivative nature of the wrongful death claim, he argued that it should remain valid as long as the survival claim was not time-barred during the deceased's lifetime. James died on December 26, 1998, and Dennis filed the wrongful death claim within three years of that date. The court concurred with Dennis, citing precedent that the Federal Employers' Liability Act provides for a wrongful death cause of action independent of the survival claim's status at the time of the employee's death.

A personal representative of a deceased employee can bring a wrongful death action under 45 U.S.C. § 51 for the benefit of the employee's surviving spouse and children. The Supreme Court has established that the right to such an action is based on the decedent's original wrongful injury, and the new action depends on the decedent having the right to maintain a claim at the time of death. The Federal Employers' Liability Act (FELA) creates two distinct causes of action, and the statute of limitations for occupational disease claims does not begin until the injured employee has reason to discover the disease. A personal representative is barred from bringing a wrongful death action only if the three-year statute of limitations expires during the decedent's lifetime. 

In this case, a FELA negligence action accrued for James in January 1997, and the statute of limitations began running at that time. James retained the right to file a claim until his death in December 1998, allowing his children three years from that date to file a wrongful death claim, which they did on January 19, 2001. Therefore, the claim was not barred by the statute of limitations, and the trial court erred in dismissing it. The appellate court affirmed the dismissal of the survival action but reversed the dismissal of the wrongful death claim, remanding the case to the trial court to reinstate the claim for further proceedings.