Mudge finds FELA suit against Norfolk Southern is time-barred, ends case

Amelia Flood Jun. 3, 2011, 8:22am


Madison County Circuit Judge William Mudge has awarded summary judgment to Norfolk Southern Railway Company and other defendants in a suit brought by a former train conductor over injuries to his knees he claims to have suffered on the job.

Mudge entered the order in favor of Norfolk Southern, Consolidated Rail Corporation, and American Premier Underwriters Inc., finding the plaintiff failed to meet the three year statute of limitations set out in the Federal Employer's Liability Act (FELA).

Mudge heard arguments on the summary judgment issue March 25 and took the matter under advisement.

Plaintiff Bill Axe sued the defendants for damages in excess of $50,000 and other relief.

Axe, a retired railroad conductor, alleged that the defendants failed to provide him with a safe work environment that led to degenerative, painful knee issues.

The judge entered a seven page order finding for the defendants on June 1.

In the order, Mudge addresses the issue of whether Axe brought his suit after the three year statute of limitations laid out in the FELA statute.

Mudge notes that Axe's case involves a repetitive injury which complicated the suit's timeline.

The order includes a timeline beginning in August 2002 when Axe retired from his job with the railroad.

According to the timeline, Axe began complaining of issues with his knees in July 2006.

Excerpts from the plaintiff's medical records quoted in Mudge's order note that he historically had issues with his knees.

Axe eventually underwent total knee replacements in August 2006 and November 2009.
He filed his complaint in August 2010.

Mudge notes affidavits from Axe that state he did not recall his doctor telling him that his knee problems related to his job at the railroad. The plaintiff also contends he discussed the matter with co-workers and questions whether the railroad job was the cause of his complaints.

"Here," the judge writes, "both Plaintiff's knees were diagnosed more than three years from the date of filing, and he underwent total left knee replacement surgery more than three years out. He also began having discussions regarding the scheduling of right knee replacement surgery more than three years from the date he filed his complaint. He clearly knew of his injury. It clearly manifested itself."

The order notes that, in Mudge's view, the plaintiff has not met the requirements linking the cause of his injury to his employment.

"Axe's position ignores his duty to investigate, and this court does not believe his discussion of a possible claim with co-workers on some unknown date in 2009 fulfills his
duty to do so," the order reads. "Rather, a reasonably diligent person would ask his treating physician about the possible cause(s), especially in instances of injuries so severe to require total knee replacement surgery . . . Again, had he exercised the duty imposed upon him to investigate the cause of his degenerative injuries, as a reasonably diligent person would do, he would raise his suspicions with his doctor as opposed to a co-worker seven or eight years after retirement and three years post knee replacement surgery."

Mudge granted the defense summary judgment move while finding a motion to dismiss moot.

Ryan Furniss represents Axe.

Kurt Reitz represents all of the defendants except National Railroad Passengers Corporation, also known as AMTRAK.

AMTRAK's attorney is Richard Boyle.

The case was formerly assigned to Madison County Circuit Judge Daniel Stack who retired last year.

The case is Madison case number 10-L-879.

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