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Kichline v. Consolidated Rail Corp.

filed: September 11, 1986.



Author: Weis

Before: GIBBONS, WEIS, and SLOVITER, Circuit Judges.


WEIS, Circuit Judge

In this FELA case, plaintiff filed suit more than three years after learning that his pulmonary disease had been aggravated by exposure to diesel fumes in the work place. He continued to work even though he was aware of the harmful effect of the fumes. He alleges that the cause of action did not accrue until his retirement when exposure to the harmful substance ceased. The district court concluded the suit was time barred and granted summary judgment for defendant. We will affirm the district court's ruling on the primary claim, but will remand for further proceedings on the separate cause of action for any aggravation of injury which occurred within the three years preceding the filing of the action.

From October 1946 to November 1982, plaintiff was employed by defendant or its predecessors. He began as a carpenter but for about twenty years, beginning in 1955, he was a diesel mechanic and performed most of his duties outdoors. In 1975, he was transferred to the Bethlehem Engine Terminal, where for seven years he worked inside the diesel shop as an engine inspector.

Plaintiff inspected the locomotives in a maintenance shop that was approximately ninety feet wide and thirty feet high. To complete the tests, it was necessary to have the diesel engine running a substantial part of the time. Plaintiff testified in his deposition that because the ventilation was inadequate, the fumes in the building would become very heavy at times making it difficult to breathe and see. He also stated that in 1976 or 1977 he had complained to his foreman about the heavy concentration of fumes.

In 1978, because he was suffering shortness of breath, plaintiff consulted Dr. Mark I. Koshar. The doctor testified that in addition to cervical arthritis and hypertension, he diagnosed the plaintiff's condition as chronic obstructive pulmonary disease caused by thirty-five years of smoking cigarettes and aggravated by exposure to diesel fumes.

The doctor was aware form the beginning that plaintiff was a diesel mechanic, and consequently advised him that he would be well-served by avoiding pollutants, fumes, and other chemical exposures. A note in the doctor's record of May 22, 1980 gave the results of pulmonary function studies and stated that a nurse had told plaintiff to avoid pollutants.

Plaintiff consulted a pulmonary specialist in August 1978, who wrote to Dr. Koshar and confirmed his diagnosis of chronic obstructive pulmonary disease. Plaintiff testified that Dr. Kenneth Wildrick Associates, the pulmonary specialists, "gave [him] a verbal warning that diesel fumes certainly was detrimental to [his] health." He estimated that he received this warning in 1979, but the letter from the specialist to Dr. Koshar established that the consultation occurred in August 1978.

Although plaintiff believed his doctors' admonition took place in 1979, he conceded that he was told to stay away from diesel fumes, but nevertheless continued to work until November 1982. He brought this action under the Federal Employers' Liability Act on August 3, 1983.

Defendant moved for summary judgment alleging the suit was barred by the Act's three-year statute of limitations. Based on the deposition, the district court concluded that there was no dispute about the critical facts: the plaintiff's condition had been diagnosed in 1978 and he had been told to avoid diesel fumes in either 1978 or 1979. Hence, because plaintiff knew both of his injury and its causal connection no later than 1979, the district court decided the suit filed in 1983 was beyond the applicable three-year limitation.

The district court also stated that there was no evidence to show that after learning of his condition plaintiff informed his supervisor that his illness was caused or aggravated by the working environment. Nor did plaintiff request reassignment to a different position or special equipment to reduce his exposure to pollutants.

On appeal, plaintiff contends that summary judgment was inappropriate because an issue of material fact exists -- when his doctors told him of the danger of diesel fumes. He asserts the doctors were unable to pinpoint the specific occasion when they advised him to avoid pollutants. Plaintiff further contends the limitation ...

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