Fifth District rules for Norfolk Southern in latent injury claim; Plaintiff loses on statute of limitations

By Sarah Zavala | Jun 5, 2012


Norfolk Southern Railway is not liable for a worker's knee injuries after an appellate court ruled that the statute of limitations had expired by the time the man filed.

Filed under Supreme Court Rule 23, the Fifth District Appellate Court panel late last week upheld Madison County Circuit Judge William Mudge's motion for summary judgment to Norfolk Southern.

Justice Bruce Stewart delivered the ruling. Justices Stephen Spomer and James M. Wexstten concurred.

In August 2010, plaintiff Bill Axe sued Norfolk Southern Railway Company, Consolidated Rail Corporation and American Premier Underwriters, Inc. for damages in excess of $50,000 and other relief.

Axe, a retired railroad conductor, filed under the Federal Employers' Liability Act (FELA) arguing that the defendants failed to provide him with a safe work environment, which ultimately led to knee replacement surgery.

"My employers never informed me that my job, overtime, could cause knee injuries," Axe said in his complaint.

Axe retired from being a railroad conductor in August 2002. Documented complaints of issues with his knee did not occur until July 2006, when he was diagnosed with severe degenerative arthritis in both knees.

Axe underwent total knee replacement in August 2006 and November 2009, but did not file his lawsuit until August 2010.

The defendants argued that under FELA, Axe failed to comply with the three-year statute of limitations. They argued Axe should have known of both injuries and the causes more than three years before filing his complaint.

However, Axe argued that he did not have actual knowledge that his employment caused his injuries until 2009. He added that his doctors never told him the injuries were railroad related.

But the defendants used Axe's medical records to strengthen their argument. The records showed Axe underwent right knee arthroscopic surgery in 1992 and was treated for osteoarthritis in his right knee in 2003.

The defendants used the medical records to show his knee complaints happened before 2006.

The trial court found that "the discovery rule make(s) it clear that actual knowledge is not the issue in cases involving latent, cumulative or repetitive trauma injuries, rather, it is when a reasonable person should have known of both the injury and its cause."

The Fifth District agreed and found that Axe did not undertake due diligence and investigate the cause of his knee injuries.

"The plaintiff's argument is contrary to the law," Stewart wrote. "The plaintiff's position is that the statue of limitations did not begin to run until he had actual knowledge of the cause of his injury, that he bore no responsibility to seek out possible causes, but that the railroad had an undefined affirmative duty to warn him about the potential dangers of his job."

Stewart looked to Tolston 102 F.3d at 864 in writing the court order. Stewart stated that although the relevant facts of Tolston are indistinguishable from the Axe case, it is clear that Axe was being treated for pain and severe degenerative arthritis in both knees before July 2006.

"For three years or more, he did not seek any advice from anyone in the medical or legal community about the cause of his painful knee problems," Stewart wrote, adding that he retired in 2002 and waited until 2010 to file a suit.

The trial court did not err in finding that the plaintiff did not exercise reasonable diligence when looking for the cause of his condition, Stewart wrote.

Axe was represented by Ryan Furniss.

Kurt Reitz represented all defendants.

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