Although the failure to file a claim within the statute of
limitations is generally presented as an affirmative defense,
in a cause of action based on the Federal Employers'
Liability Act (FELA), the plaintiff must allege and prove
that the action was filed within three years from the day the
cause of action accrued.
Under the discovery rule articulated in Urie v.
Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282
(1949), and United States v. Kubrick, 444 U.S. 111,
100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the FELA statute of
limitations begins to run when the plaintiff knows or has
reason to know of the existence and cause of the injury that
is the basis of the action.
of the judgment of the Court of Appeals in an unpublished
opinion filed May 27, 2016.
from Wyandotte District Court; Daniel A. Duncan, judge.
Marianne M. Auld, of Kelly Hart & Hallman LLP, of Fort
Worth, Texas, argued the cause, and Andrew J. Ricke and
Kenneth L. Weltz, of Lathrop Gage, LLP, of Overland Park, and
Chad M. Knight, of Knight Nicastro, LLC, of Kansas City,
Missouri, were with her on the briefs for appellant.
L. Groves, of Groves Powers L.L.C., of St. Louis, Missouri,
argued the cause, and Davy C. Walker, of Law Offices of Davy
C. Walker, of Kansas City, and Daniel J. Cohen, of Law
Offices of Daniel J. Cohen, of St. Louis, Missouri, were with
him on the briefs for appellee.
Dawson filed a claim under the Federal Employers'
Liability Act (FELA) against his employer, BNSF Railway
Company (BNSF), alleging that BNSF's negligence caused
his back injuries. The jury returned a verdict in
Dawson's favor. The Court of Appeals vacated the verdict,
holding that the district court should have granted
BNSF's motion for judgment as a matter of law because
Dawson's claims were untimely. We reverse and remand to
the Court of Appeals for consideration of BNSF's
and Procedural Background
began his employment with BNSF in 1979 as a switchman and a
brakeman. Approximately two years later, he stopped working
for BNSF and went to work at a tire store for six years.
Dawson returned to BNSF in the late 1980s and was again
employed as a switchman and brakeman. In 1995, Dawson began
working as a conductor.
2001, Dawson informed his doctor, Dr. Gary Thomsen, that he
was having lower back pain. Thomsen prescribed
medications-Vioxx and eventually Celebrex-for pain
management. Dawson again complained of back pain to Thomsen
in 2003, 2004, and 2005. Thomsen testified in a deposition
that his records indicated his diagnosis for Dawson in 2004
was osteoarthritis of the lower back. At one of Dawson's
visits with Thomsen in 2005, Thomsen ordered a lumbar X-ray.
Dr. William Reed, a doctor whom Dawson began seeing in 2008,
stated in a deposition that Thomsen's medical records
indicated this X-ray revealed degenerative disc disease from
L2 through L5. Dawson confirmed during his testimony that he
had a diagnosis of degenerative disc disease, from L2 to L5,
in 2005. But Dawson also testified that he did not remember
Thomsen telling him that he had this diagnosis; he knew he
had aches and pains, but he did not know what caused the
symptoms and no one told him what disc disease was.
Deposition testimony from Thomsen indicated that, from 2001
to 2006, Dawson's back pain seemed to be a mild,
intermittent, and somewhat chronic low back issue and that
Dawson was getting some benefit from the prescribed
2007, Dawson returned to Thomsen with more significant
complaints of lower back pain. Thomsen stated that his
medical records indicated Dawson had gone to the emergency
room the day before with severe back pain. Thomsen ordered an
MRI, which revealed that Dawson had "some disc bulging .
. . at L3-L4 between the third and fourth lumbar back
vertebrae, and . . . a tiny tear on the back side of that
disc" as well as "some mention of right
neuroforaminal stenosis secondary to the disc bulging."
Dawson testified that his doctors did not inform him that he
had disc disease, but that he had "a wore out
back." Dawson also began seeing a chiropractor, Dr.
Cherie Wickham, in June 2007.
2007, Thomsen referred Dawson to Dr. Timothy Lair for further
pain management. Dawson reported on a patient history form
that he was unsure if work was the cause of his back
problems. Dawson testified that he did not know what the
cause of his problems was at that time. Lair began giving
Dawson a series of epidural injections. On March 19, 2008,
Dawson called Lair's office and reported significant
lower back and right leg pain. As a result, another epidural
injection was scheduled.
testified that on March 21, 2008, the locomotive on which he
was riding "bottomed out excessively." The engineer
who was on the train with Dawson, Mark Shumate, also
confirmed that they "hit a really rough spot in the
track" and the "locomotive bottomed out."
Dawson testified that on the next day, March 22, 2008, he was
working and riding a train and "the engine felt like
shocks were wore out." He stated that "[e]very time
we hit a road crossing, it bottomed out real bad."
these two train rides, Dawson completed an injury report for
BNSF indicating that rough track had caused him to have back
pain and right leg pain. When Dawson told his on-duty
supervisor that he needed to turn in an injury report, the
supervisor took Dawson to the emergency room. Dawson did not
indicate that he had been having back pain before the rough
engine rides. Dawson testified that he did not report this
information the emergency room doctors because he knew that
BNSF would have access to the emergency room records and he
was afraid BNSF would pull him out of service if they knew
about his previous pain.
the rough train rides, BNSF referred Dawson to Reed. Reed
began giving Dawson epidural injections until he released him
to perform his regular duties at work in August 2008.
February of 2009, Dawson was experiencing severe low back
pain that radiated into the left leg to the knee. BNSF
referred him to Dr. Harold Hess. Dawson told Hess that five
days earlier, on January 29, 2009, he "experienced
severe low back pain" when "riding over rough
track." At trial, Dawson testified that he did not
remember anything about the ride. Hess ordered an MRI, which
revealed "left L2-L3, bilateral L3-L4 foraminal
stenosis[, ] [a]nd to a lesser extent, bilateral L4-L5
foraminal stenosis[, ] . . . mild to moderate stenosis at
L2-3, L3-4, and L4-L5." Hess stated in a deposition that
this showed a change between Dawson's condition at the
time of his MRI in 2008 and his condition at the time of the
MRI in 2009. Hess also testified that, assuming Dawson's
medical history, the "rough ride of January 29,
2009" was "temporally consistent" with being a
"contributing cause to the symptom presentation that
brought [Dawson] to see [him]." Hess performed an X-STOP
surgery on Dawson in March 2009. Dawson experienced immediate
relief and returned to work.
pain relief was temporary, so he returned to Hess in 2010.
Dawson testified that Hess referred him to Dr. Lasalle for
further pain management and that at one of his appointments,
Lasalle told Dawson that he had treated many railroad
employees. According to Dawson, this was the first time he
thought that his work on the railroad had contributed to his
Dawson was still experiencing back pain, in January 2011,
BNSF referred him to Dr. Glenn Amundson. In February 2011,
Amundson performed a spinal fusion from L2 through L5 on
Dawson. After surgery, Dawson returned to work at BNSF. He
performed temporary light duty until December 2011, when the
temporary position ended. In the same month, Amundson
determined Dawson was at maximum medical improvement and
permanently restricted him to a medium level of functioning,
which was incompatible with his job as a conductor at BNSF.
Consequently, Dawson did not return to work at BNSF.
filed an FELA action against BNSF in Wyandotte County
District Court on February 22, 2011. He alleged that BNSF was
negligent in the design, improper inspection, and poor
maintenance of the locomotive seats and in its improper
inspection and poor maintenance of the engine and the track.
He asserted that this negligence led to decades of exposure
to unnecessary shocks, jarring, and vibration over rough
tracks, which cumulatively caused his back ...