DENNIS HEIZER, PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES HEIZER, DECEASED v. CINCINNATI, NEW ORLEANS AND PACIFIC RAILWAY CO.; NORFOLK SOUTHERN RAILWAY CO.; AND CSX TRANSPORTATION, INC.
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RENDERED:
August 6, 2004; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000922-MR
DENNIS HEIZER, PERSONAL
REPRESENTATIVE OF THE ESTATE
OF JAMES HEIZER, DECEASED
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 01-CI-00072
CINCINNATI, NEW ORLEANS AND
PACIFIC RAILWAY CO.; NORFOLK SOUTHERN
RAILWAY CO.; AND CSX TRANSPORTATION, INC.
APPELLEES
OPINION
AFFIRMING IN PART
AND
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; TACKETT AND VANMETER, JUDGES.
TACKETT, JUDGE:
Dennis Heizer (hereinafter referred to as
“Dennis”), the personal representative of the estate of James
Heizer (hereinafter referred to as “James”), appeals from an
order entered on April 16, 2003 by the Campbell Circuit Court
that granted summary judgment in favor of the appellees,
Cincinnati, New Orleans and Pacific Railway Company; CSX
Transportation, Inc.; and Norfolk Southern Railway Company
(hereinafter referred to as “the Railroads”).
On appeal, Dennis argues that the trial court erred
when it found that James, the decedent, possessed actual
knowledge that his cancer was work-related and that the trial
court erred when it found as a matter of law that James
possessed constructive knowledge that his cancer was workrelated.
Dennis argues that the trial court erred when it ruled
that the accrual of a survival claim pursuant to the Federal
Employers’ Liability Act, 45 U.S.C. § 51-60 (hereinafter
referred to as “FELA”), could not be tolled by mental
incapacity.
Lastly, Dennis argues that the trial court erred
when it found the three-year statute of limitations, set forth
in FELA, 45 U.S.C. § 56, barred the wrongful death claim filed
on behalf of James’s children.
Finding that the trial court did
not err regarding the dismissal of the survival action, this
Court affirms in part the trial court’s order of April 16, 2003.
However, finding that the trial court did err regarding the
dismissal of the wrongful death claim, this Court reverses in
part the trial court’s order and remands with instructions.
FACTS
At various times in the 1940’s and 1950’s, James
Heizer worked either for the Railroads or for their predecessor
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companies.
On December 26, 1998, James died from mesothelioma,
a cancer which is almost exclusively connected to prolonged
exposure to asbestos.
On January 19, 2001, Dennis Heizer, one
of James’s sons and the executor of his estate, filed, pursuant
to FELA, a survival action and a wrongful death claim against
the Railroads alleging that they had negligently exposed James
to asbestos while he had worked for them.
On December 19, 2002, the Railroads collectively filed
a motion for summary judgment.
They argued that the three-year
statute of limitations found in 45 U.S.C. § 56 barred both the
survival action and the wrongful death claim.
The Railroads
argued that the discovery rule applied to the FELA claims and
argued that James either actually knew his mesothelioma was
work-related or should have reasonably known it was work-related
by January of 1997.
The trial court agreed and found that, no
later than January of 1997, James possessed actual knowledge
that he had mesothelioma and it was work-related.
The trial
court also concluded that, no later than January of 1997, James
possessed constructive knowledge that he had cancer and it was
work-related.
Thus, the trial court granted summary judgment in
favor of the Railroads.
Dennis then appealed to this Court.
ACTUAL KNOWLEDGE
Dennis argues that the Campbell Circuit Court erred
when it found that James had actual knowledge that his
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mesothelioma was occupationally related.
Further, he contends
the trial court erred when it found that James had acquired this
knowledge in January of 1997 and when it concluded that the
three-year statute of limitations had begun to run in January of
1997.
In support of this position, Dennis argues that the trial
court not only ignored the testimony contained in his deposition
but also ignored the affidavits of his brothers, David Heizer
(hereinafter referred to as “David”) and R.J. Heizer
(hereinafter referred to as “R.J.”).
In David’s affidavit, he
stated that he accompanied James to a Veteran’s Administration
medical facility on two different occasions when biopsies were
performed.
The first biopsy was performed in 1995, and the
result was negative for cancer.
The second was performed in
November of 1996, and the result indicated cancer.
According to
David’s affidavit, James was told that the second biopsy showed
that he had cancer.
Later, David accompanied James to a follow-
up meeting in January of 1997 where James was told that the
cancer was incurable.
David stated in his affidavit that he
never heard anyone mention asbestos to James.
R.J. also stated
in his affidavit that no one ever mentioned asbestos to James.
In addition, R.J. stated that James always referred to his
illness as lung cancer not mesothelioma.
Furthermore, R.J.
stated that, after James’s death, a nurse mentioned asbestos to
the family for the first time and suggested that they should
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consider an autopsy.
According to R.J.’s affidavit, an autopsy
was performed and it revealed the presence of asbestos in
James’s lungs.
Dennis contends the family learned at that time
that James’s mesothelioma was caused by his past exposure to
asbestos.
Dennis also argues that the medical documents found in
the record do not indicate that any medical personnel ever
explained to James the link between asbestos exposure and
mesothelioma.
According to Dennis, the record contains abundant
evidence that James never knew that his mesothelioma was related
to asbestos.
This Court has previously stated that, “[t]he standard
of review on appeal of a summary judgment is whether the trial
court correctly found that there were no genuine issues as to
any material fact and that the moving party was entitled to
judgment as a matter of law.
There is no requirement that the
appellate court defer to the trial court since factual findings
are not at issue.”
(Citations omitted.)
Scifres v. Kraft, Ky.
App., 916 S.W.2d 779, 781 (1996).
This Court agrees with Dennis that the trial court
erred when it found that James possessed actual knowledge
regarding the causal connection between his former occupation
and his cancer.
The Railroads rely heavily on a discharge
summary from December 9, 1996 in which a physician stated that
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James most likely suffered from mesothelioma due to his past
exposure to asbestos.
However, neither this medical document
nor any other found in the record contains any evidence that any
medical personnel ever explained to James the connection between
asbestos exposure and mesothelioma.
Nor does the record contain
any evidence that James ever read this discharge summary or any
of the other medical documents contained in the record.
However, while the trial court erred, this Court concludes it
was harmless error since James possessed constructive knowledge
as discussed below.
CONSTRUCTIVE KNOWLEDGE
Dennis argues that the Campbell Circuit Court erred
when it concluded that James possessed constructive knowledge
that his mesothelioma was work-related and that James should
have known this no later than January of 1997.
In support of
this position, Dennis argues that both James and the family had
always assumed that James’s cancer was caused by smoking.
Dennis contends that R.J.’s affidavit supports this contention
since R.J. stated that James always referred to his disease as
lung cancer not mesothelioma.
Furthermore, Dennis cites Bath Iron Works Corp. v.
U.S. Dept. of Labor, 336 F.3d 51 (1st Cir. 2003) a non-FELA
mesothelioma case.
In Bath Iron Works, decedent, a retired
longshoreman had contracted anaplastic mesothelioma after
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prolonged exposure to asbestos.
Id. at 53, 58.
The decedent’s
wife discovered three years after his death that his cancer was
related to asbestos exposure and filed suit.
Id. at 57.
The
employer argued that the wife’s claim was barred by the two-year
statute of limitations set forth in 33 U.S.C. § 913 since she
failed to exercise reasonable diligence and failed to discover
the cause of her husband’s cancer.
The 1st Circuit stated that
the word “mesothelioma” conveyed no special meaning to
decedent’s wife other than what she already knew; i.e., cancer.
Id. at 58.
Furthermore, because of the remoteness of decedent’s
exposure compared to the manifestation of the disease, there was
no logical reason for his wife to exercise due diligence
earlier.
Id. at 59.
Dennis also cites Shesler v. Consolidated Rail Corp.,
Oh. App., 784 N.E.2d 725 (2003).
In Shesler, the Ohio Appellate
Court determined that the plaintiff was under no duty to know
what “pleural plaques” were.
Furthermore, the plaintiff did not
learn of the relationship between the plaques and asbestos until
1998 when a specialist explained the causal connection to
plaintiff.
Dennis argues there is no evidence in the record that
James “constructively knew” of the causal connection between his
mesothelioma and his exposure to asbestos.
Dennis contends
there is no evidence in the record to conclude that the word
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“mesothelioma” held any special meaning for James other than
“lung cancer”.
In 45 U.S.C. § 59, Congress provided that an injured
employee’s cause of action would survive the employee’s death
and that the employee’s personal representative may maintain a
survival action for the benefit of the employee’s surviving
spouse and children.
Congress set forth in 45 U.S.C. § 56 that
“[n]o action shall be maintained
. . . unless commenced within
three years from the day the cause of action accrued.”
Such an
action accrues when the injured employee knows about both the
injury and its cause.
Fries v. Chicago & Northwestern
Transportation Company, 909 F.2d 1092, 1094 (1990) citing Urie
v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949).
However, when the exact date of an injury is indeterminate
because it was the result of continual exposure to a harmful
substance, such as in the instant case, the injured employee’s
action accrues when the injury manifests itself.
Id.
For the purpose of the three-year statute of
limitation set forth in 45 U.S.C. § 56, an injured employee’s
survival action accrues,
when a reasonable person knows or in the
exercise of reasonable diligence should have
known of both the injury and its governing
cause. Both components require an objective
inquiry into when the plaintiff knew or
should have known, in the exercise of
reasonable diligence, the essential facts of
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injury and cause. Moreover, 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. [T]his rule imposes on
injured plaintiffs an affirmative duty to
investigate the potential cause of his
injury[.] (Citations omitted.)
Id. at 1095.
Dennis concedes that James knew in January of 1997
that he had been diagnosed with mesothelioma.
There can be no
question that James possessed actual knowledge that he had an
injury.
The next question is:
when should James have known the
essential facts regarding the cause of his illness?
Once he was
diagnosed, James had an affirmative duty to exercise reasonable
diligence to investigate the cause of his cancer.
The record
shows that James was preliminarily diagnosed with mesothelioma
in December of 1996 and an oncologist consulted with him
concerning potential treatments.
The record shows that James
subsequently met with physicians in January of 1997.
He was
conclusively diagnosed with mesothelioma and told it was
incurable.
Despite this prognosis, the record shows that in
March of 1997 James had sought treatment options from at least
one other physician.
Given the record, this Court concludes that with the
exercise of reasonable diligence, James should have known about
the causal connection between his mesothelioma and his exposure
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to asbestos while working for the Railroads no earlier than
December of 1996 but no later than March of 1997.
The trial
court determined that the cause of action accrued in January of
1997, and this Court agrees with that finding.
This means that
James’s children had until January of 2000 to file their
survival action before the statute of limitations barred it.
However, Dennis did not file the survival action until January
19, 2001, after the three-year statute of limitations had run.
Furthermore, he has failed to raise any genuine issue regarding
the accrual of the survival action and the running of the
statute of limitations.
Thus, the trial court did not err when
it concluded that James possessed constructive knowledge
regarding the cause of his illness and did not err when it
dismissed the survival action as barred by the statute of
limitations.
MENTAL DISABILITY
Dennis argues that the Campbell Circuit Court erred
when it concluded that FELA’s three-year statute of limitations
was not tolled by a finding that James was mentally disabled.
Dennis points out that the record contains medical documents
that indicate that James had difficulties with his memory and
reasoning abilities after suffering a stroke in the early
1990’s.
In addition, in August of 1998, a few months prior to
his death, James was admitted to St. Elizabeth South Hospital.
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Dennis points out that the admitting doctor noted that the
nursing home in which James had been previously staying had
stated that James had dementia.
Also, Dennis calls attention to
a patient transfer document that indicates that one month before
James died, he had impaired memory and had periods of confusion.
Dennis argues that the state of Arizona has determined that
mental incompetency can toll the statute of limitation in a FELA
action.
Brooks v. Southern Pacific Company, Ariz., 466 P.2d 736
(1970).
He urges this Court to adopt Arizona’s ruling and
reverse the trial court.
While Dennis’s position is not without merit, this
Court declines to adopt it at this time.
did, it would afford Dennis no relief.
Even if this Court
The record contains no
evidence that James was mentally disabled at the time he was
diagnosed with mesothelioma.
quite the opposite.
In fact, the record indicates
In Dennis’s own deposition, he paints a
picture of James as a vibrant individual who was both mentally
and physically active.
Moreover, medical documents found in the
record indicate that James was keenly interested in his health.
The record does indicate that approximately five
months before his death, James may have experienced some mental
difficulties.
However, the record does not indicate whether
such problems were so severe that they would justify tolling the
statute of limitations.
Even if they were, the statute would
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only have been tolled for approximately five months, extending
it to June of 2000.
Since Dennis filed the survival action in
January of 2001, the statute of limitations would have still
barred the survival action.
WRONGFUL DEATH CLAIM
Dennis argues that the Campbell Circuit Court erred
when it concluded that the wrongful death claim was barred by
the three-year statute of limitations.
The trial court held
that the wrongful death claim was dependent on the viability of
the survival action.
Dennis points out that 45 U.S.C. § 51
established wrongful death actions for the benefit of the
surviving spouse and children of a railway worker.
Furthermore,
the three-year statute of limitations for a wrongful death claim
begins to run at the time of the worker’s death.
51.
45 U.S.C. §
While Dennis acknowledges that a FELA wrongful death claim
is derivative of a survival claim, he cites both Flynn v. New
York, N.H. & H.R. Co., 283 U.S. 53, 51 S.Ct. 357, 75 L.Ed. 837
(1931) and McGhee v. Chesapeake & Ohio Railroad Co., 173 F.Supp.
587 (W.D. Mich. 1959) for the proposition that a FELA wrongful
death claim is extinguished only when the three-year statute of
limitations regarding the survival claim has run during the
lifetime of the injured employee.
died on December 26, 1998.
Dennis points out that James
Even if the three-year statute of
limitations regarding the survival action had begun to run in
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January of 1997, James’s claim had not expired by the time of
his death.
Dennis points out that he filed the wrongful death
claim within three years of James’s death.
This Court agrees.
In Michigan Central Railroad
Company v. Vreeland, 227 U.S. 59, 68, 33 S.Ct. 192, 195, 57
L.Ed. 417 (1913), the United States Supreme Court determined
that the Federal Employers’ Liability Act created a new cause of
action for the wrongful death of an injured employee.
This
cause of action may be brought by the personal representative of
the deceased employee for the benefit of the employee’s
surviving spouse and children.
Id., 45 U.S.C. § 51.
The
Supreme Court held,
[T]he foundation of the right of action is
the original wrongful injury to the
decedent, it has been generally held that
the new action is a right dependent upon the
existence of a right in the decedent
immediately before his death to have
maintained an action for his wrongful
injury. (Citations omitted.)
Michigan Central Railroad Company v. Vreeland, supra at 70.
The United States District Court for the Western District of
Michigan stated the Supreme Court’s holding more clearly,
(1) that the Federal Employers’ Liability
Act, Title 45 U.S.C.A. § 51, et seq.,
establishes two separate and distinct causes
of action; (2) that the statute of
limitations found in § 56 of the cited
statute does not apply to a claim for
damages resulting from an occupational
disease until the injured employee has some
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reason to discover the existence of the
occupational disease; (3) that the personal
representative of a decedent is barred from
instituting an action for wrongful death
because of the statute of limitations
contained in § 56 only if such statutory
three year period expires during the
lifetime of the decedent[.]
McGhee v. Chesapeake & O.R. Co., 173 F.Supp. 587, 590 (W.D.
Mich. 1959).
In January of 1997, a FELA negligence action
accrued in James’s favor, although he never exercised his right
to file such a claim.
At that time, the three-year statute of
limitations began to run.
This means that immediately prior to
his death in December of 1998, James possessed the right to file
a FELA action against the Railroads.
Since James still had this
right at the time of his death, his children’s right to bring a
FELA wrongful death claim was not extinguished by James’s death.
They had three years from the day of James’s death, until
December 26, 2001, to file such a claim against the Railroads.
Since Dennis filed the wrongful death claim on January 19, 2001,
the three-year statute of limitations did not bar the claim.
Thus, the trial court erred when it dismissed the wrongful death
claim.
CONCLUSION
Therefore, for the foregoing reasons, this Court
affirms in part the Campbell Circuit Court’s order of April 16,
2003 to the extent that it dismissed the survival action.
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However, this Court reverses in part regarding the wrongful
death claim; remands to the Campbell Circuit Court and orders
the trial court to reinstate this claim for further proceedings
not inconsistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
John D. Roven
Roven, Kaplan & Wells, L.L.P.
Houston, Texas
Kendra L. Smith
Burns, White & Hickton, LLC
Pittsburgh, Pennsylvania
Steven T. McMurtry
Ft. Mitchell, Kentucky
James F. Brockman
Lindhorst & Dreidame
Cincinnati, Ohio
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