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Dawson v. BNSF Railway Co.

Supreme Court of Kansas

March 15, 2019

Charles Dawson, Appellee,
BNSF Railway Company f/k/a Burlington Northern and Santa Fe Railway Company, Appellant.


         1. 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.

         2. 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed May 27, 2016.

          Appeal 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.

          Steven 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.


          ROSEN, J.

         Charles 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 remaining issues.

         Factual and Procedural Background

         Dawson 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.

         In 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 medications.

         In June 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.

         In July 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.

         Dawson 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."

         After 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.

         After 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.

         In 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.

         Dawson's 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 back injuries.

         Because 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.

         Dawson 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 ...

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