Kathleen Dubose v. Kansas City Southern Railway Co.

Citations: 729 F.2d 1026; 1984 U.S. App. LEXIS 23476Docket: 82-2307

Court: Court of Appeals for the Fifth Circuit; April 16, 1984; Federal Appellate Court

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Kansas City Southern Railway Company (KCS) appeals a wrongful death judgment under the Federal Employers' Liability Act (FELA), contending that the plaintiff's claim is time-barred. The Court of Appeals affirms the lower court's decision but remands for a modification of damages. William DuBose, a KCS employee from 1950 to 1977, was exposed to various irritants leading to health problems, including chronic obstructive pulmonary disease and tuberculosis. He retired in July 1977 due to these issues and was later diagnosed with lung cancer in December 1979, ultimately passing away in June 1980. His widow, Kathleen DuBose, filed a suit in September 1980, alleging KCS's negligence caused his injuries and death. At trial, medical experts debated the origins of the cancer—whether it stemmed from exposure to irritants or from tuberculosis scarring. The jury found KCS negligent and awarded $200,000. 

On appeal, KCS argues that DuBose's cause of action accrued earlier, thus barring recovery under FELA's three-year statute of limitations. The court notes that while a cause of action typically accrues when a legally protected interest is invaded, the "discovery rule" applies in cases of latent injuries, allowing for exceptions when plaintiffs are unaware of their injury at the time of the tortious act.

The Supreme Court established the federal discovery rule in Urie v. Thompson, recognizing that the traditional accrual rule could unjustly bar a plaintiff from recovery due to the unknowability of their condition's onset. Specifically, the Court determined that a cause of action accrues when the effects of the injury manifest, rather than at an unknowable earlier date. This principle was later applied to medical malpractice cases under the Federal Tort Claims Act (FTCA) in United States v. Reid and Quinton v. United States, where it was held that a claim accrues upon the discovery of the malpractice through reasonable diligence. Other circuits followed suit, emphasizing that the limitations period does not begin until both the injury and its cause are known.

However, in the five years leading up to Kubrick, some courts extended the discovery rule to require that plaintiffs also understand the legal implications of their injury before the limitations period begins. The Supreme Court in Kubrick disapproved this broadening of the rule, clarifying that ignorance of legal rights should not be treated the same as ignorance of the injury or its cause. The Court reiterated the original Urie rationale, affirming the necessity for the discovery rule in cases where injury facts may be unknown or hidden by the defendant. While the Court upheld the discovery rule, it rejected further expansions that would undermine the purpose of statutes of limitations, which is to promote timely claims.

KCS argues against the application of the Kubrick test, claiming it is confined to medical malpractice cases under the Federal Tort Claims Act (FTCA), while the Urie test applies to occupational disease cases under the Federal Employers Liability Act (FELA). The court rejects this view, asserting that the Kubrick rule is not limited to the FTCA or medical malpractice, but represents the latest definition of the discovery rule applicable in federal cases. The court views Urie and Kubrick as part of a continuum rather than distinct tests, emphasizing that both cases share the same rationale regarding the accrual of claims based on a plaintiff's awareness of their injury and its cause.

Historical cases support this interpretation. In United States v. Reid, the court applied the Urie standard to a claim under the FTCA, highlighting that similar diseases should not necessitate different legal rules. Additionally, prior cases have applied discovery rules akin to Kubrick's standard, such as in Aerojet-General Shipyards, where the claim did not accrue until the employee learned of his work-related ailments. The court also notes that the Quinton case established a similar accrual standard, reinforcing that awareness of both injury and causation is essential for the claim to commence. Lastly, in Emmons, the court reiterated that limitations do not apply until the claimant is aware of their injury and its work-related nature.

The discussion centers on the accrual of claims and the application of the discovery rule in legal cases involving injury and causation awareness. The Kubrick court did not specifically address when a claim accrues based on a plaintiff's awareness of injury and causation, but it suggests that the test inherently includes this consideration. In Kubrick, the plaintiff had knowledge of his injury, but the question remained whether the statute of limitations applied while he awaited confirmation of negligent infliction. The discovery rule aims to prevent rigid application of statutes of limitations, allowing for flexibility based on circumstances.

Typically, a plaintiff is expected to have actual knowledge of their injury, but there may be a gap between this awareness and constructive knowledge regarding causation. Factors influencing this gap include the number of potential causes and misleading medical advice. Cases such as Harrison and Aerojet-General Shipyards illustrate situations where medical records were lost or physicians denied causal connections, complicating the plaintiff's awareness of the injury's cause.

The trial for DuBose's case involved a debate on whether the Urie or Kubrick standard governed the accrual date for his claim. KCS argued that DuBose's tuberculosis diagnosis in early 1977, over three years before the lawsuit, rendered the claim time-barred under Urie. In contrast, DuBose maintained that his claim did not accrue until his lung cancer was diagnosed in December 1979, which he linked to his earlier pulmonary issues.

KCS sought a jury instruction that distinguished between DuBose's prior pulmonary disease and his lung cancer. However, the court deemed this inappropriate, as the cancer could be considered a serious complication of the earlier condition. KCS's proposed jury instruction highlighted the undisputed fact that DuBose had experienced pulmonary problems for years prior to the lawsuit, asserting that any claims related to that earlier disease were barred by the statute of limitations.

Mr. DuBose was diagnosed with lung cancer in 1979, and the plaintiff argues that if the jury finds negligence and determines that the cancer did not manifest until within the three-year statute of limitations, damages may be awarded solely for the lung cancer, excluding any pre-existing conditions. The district judge correctly refused to instruct the jury that recovery for DuBose's pre-cancer pulmonary issues was legally barred, as this would misinterpret the relationship between the diseases. A factual question exists regarding when DuBose recognized the connection between his employment and his disease.

Concerns were raised about the district court's modification of KCS's Requested Jury Instruction No. 10, which led the jury to focus solely on lung cancer, effectively removing the limitations issue. KCS did not timely object to this instruction, which stated that if the effects of the cancer manifested more than three years before the lawsuit was filed, the jury should rule for the defendant. During deliberations, KCS made general objections regarding the jury instructions, specifically about the lack of separation between pre-cancer conditions and cancer, and the failure to instruct that recovery for pre-cancer conditions was barred.

KCS also objected to the instruction that a cause accrues upon symptom manifestation rather than diagnosis, reflecting dissatisfaction with the modified instruction. However, KCS did not sufficiently highlight the limitations charge's focus on cancer or the failure to present the fact question of when DuBose's entire cause of action accrued. Generally, failure to object precludes later challenges to an instruction, and the instruction's issue was not deemed to constitute plain error.

KCS may have contributed to a legal error by distinguishing DuBose's pre-cancer lung disease from his lung cancer and only requesting jury findings on the latter, while asserting that claims for fibrosis or tuberculosis were legally barred. Despite this, KCS did not address the resulting error in the court's understanding. KCS argued that the appellee failed to provide evidence of negligence or a link between hazardous substance exposure and cancer, claiming the district court incorrectly submitted these issues to the jury. However, substantial testimony indicated that DuBose was exposed to various irritants, with expert Dr. Joe DeLeon establishing a causal connection between this exposure, resulting lung scarring or chronic bronchitis, and DuBose's cancer. The evidence supported KCS's negligence, warranting jury consideration of causation and negligence. 

Modifications to the damages award are necessary; KCS is entitled to an 80% credit for medical expenses paid by its insurance carrier, which the appellee acknowledged. Additionally, the jury was incorrectly instructed to consider funeral expenses in FELA actions, which are not permissible under precedent. The case is remanded to the district court for adjustment of damages, with parts affirmed and reversed. The statute of limitations for filing suit begins when disease symptoms manifest, not upon diagnosis, and a party cannot complain about an instruction they requested unless they timely object. The identified jury instruction issue regarding limitations is not deemed plain error.

Dr. Joe DeLeon, an expert witness for the appellee, testified that DuBose's exposure to irritants caused lung scarring, chronic bronchitis, and diminished resistance to tuberculosis, attributing his cancer to fibrosis or tuberculosis linked to his work environment. The evidence also indicated negligence on the part of KCS, with the trial court appropriately presenting the issues of causation and negligence to the jury. The damages award requires modification due to two stipulations: KCS is entitled to a credit for 80% of the medical expenses covered by its insurance, a stipulation the appellee accepted, and the jury was incorrectly instructed to consider funeral and burial expenses, which are not compensable under FELA actions, as established in relevant case law. The case is remanded for adjustments to the damages awarded, with a ruling that is affirmed in part and reversed in part. Additionally, the statute of limitations for filing suit is clarified to start when disease symptoms manifest, not at diagnosis, and parties requesting jury instructions may not complain of errors unless they raise objections at the time of instruction.