RICHARD K. HELLER, Plaintiff-Appellant,
BNSF RAILWAY COMPANY, a corporation, Defendant-Respondent
Argued and Submitted: November 29, 2012.
Multnomah County Circuit Court 100201861. John A. Wittmayer, Judge.
Rick Pope argued the cause for appellant. With him on the briefs were Stephen C. Thompson and Kirklin Thompson & Pope LLP.
Thomas M. Christ argued the cause for respondent. With him on the brief was Cosgrave Vergeer Kester LLP.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
[264 Or.App. 248] ARMSTRONG,
This appeal arises from a judgment dismissing plaintiff's claims for negligence and strict liability under the Federal Employer's Liability Act (FELA), the federal Locomotive Inspection Act (LIA), and the Federal Railroad Safety Act of 1970 (FRSA). Plaintiff brought those claims against defendant BNSF Railway Company for hearing loss and bilateral tinnitus caused by his exposure to work-related noise. The trial court granted defendant's motion for summary judgment based on its conclusion that plaintiff's claims were barred by the three-year limitation period in FELA, 45 USC section 56. Plaintiff argues on appeal that he raised a genuine issue of material fact to defeat summary judgment on whether he knew that his injuries had been aggravated by new work-related noise exposure and that the trial court abused its discretion in striking his late-filed ORCP 47 E affidavit. We conclude that the trial court did not err in either respect and affirm.
The LIA and FRSA do not provide an independent right of action, and, thus, all of plaintiff's claims were actionable only under FELA. Matson v. Burlington Northern Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir 2001); Abate v. Southern Pacific Transp. Co., 928 F.2d 167, 169-70 (5th Cir 1991). To maintain a cause of action under FELA, plaintiff was required to bring his claims within three years of the date on which they accrued. 45 USC § 56 (" No action shall be maintained under this act unless commenced within three years from the day the cause of action accrued." ). Plaintiff has the burden to
prove that he brought his claim within three years of the accrual of his claim. Baggarley v. Union Pacific Railroad Company, 246 Or.App. 624, 628, 268 P.3d 650 (2011) (citing Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112, 1117-18 (5th Cir 1983)).
Federal law controls when plaintiff's claims accrued. McCoy v. Union Pacific Railroad Co., 102 Or.App. 620, 623, 796 P.2d 646 (1990). When, as here, the injury is alleged to be the result of cumulative work-related trauma, the federal discovery rule applies. Under that rule, " the three-year limitation period begins to run when the plaintiff knows or has reason to know that he has been injured and that his [264 Or.App. 249] work is the cause." Baggarley, 246 Or.App. at 627 (citing Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)). However, it does not matter if the plaintiff knows whether the employer is legally blameworthy for the injury. McCoy, 102 Or.App. at 623 (citing United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)). Instead " a claim accrues under FELA when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known." Id. at 623-24 (citing DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026 (5th Cir), cert den, 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 113 (1984); and Jones v. Maine Cent. R. Co., 690 F.Supp. 73 (D Me 1988)).
With those principles in mind, we turn to the summary-judgment record in this case. Because this case is on appeal from a grant of summary judgment for defendant, we review the record in the light most favorable to plaintiff, the nonmoving party, and draw all reasonable factual inferences in his favor. Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608, 609 (1997).
Plaintiff worked for defendant as a switchman and a conductor for about 41 years--from 1967 to 2008. During that time, plaintiff was subjected to loud noises on the job. By 1988, plaintiff was experiencing tinnitus and hearing loss; and, in 1990, he brought a claim against defendant for those injuries. That claim resulted in a settlement in 1992 that included a release from plaintiff for all future consequences from his pre-1992 permanent hearing injuries. After 1992, plaintiff's tinnitus and hearing loss continued to " get worse." In 2010, plaintiff brought this action against defendant for the aggravation of his hearing injuries stemming from post-1992 noise exposure.
In his amended complaint, plaintiff alleged,
" Due to the nature and manner of the work demanded of him by Defendant, Plaintiff was subjected and exposed to frequent, repetitive, loud noise emanating from Defendant's operations. Plaintiff settled a claim for hearing loss against Defendant's predecessor on April 6, 1992. Plaintiff agreed [264 Or.App. 250] in this settlement to release Defendant for all future consequences of his claimed hearing loss. Plaintiff did not agree to release Defendant from future negligent acts not yet committed. Defendant agreed to provide Plaintiff with hearing protection that turned out to be ineffectual. Plaintiff's hearing worsened since then. Most or all of that worsening has been caused by additional damaging exposure to noise while Plaintiff was at work for Defendant at times after April 6, 1992 and before December 1, 2008. Individually and cumulatively, these exposure phenomena occurring after April 6, 1992, have caused the injuries hereinafter alleged."
The record on summary judgment included excerpts from plaintiff's deposition, the 1992 release agreement, plaintiff's admission that he had released defendant under the 1992 settlement for hearing injuries that occurred before 1992, and a 2007 hearing notification report that showed that plaintiff had hearing loss for high-pitched and speech-range sounds, and no change from his 1988 baseline test for certain ranges " with age adjustment." In the excerpt from plaintiff's deposition, plaintiff ...