Summary judgment ruling for Norfolk in Madison County legal malpractice case upheld at Fifth District

By Bethany Krajelis | Sep 13, 2012

Goldenhersh The Fifth District Appellate Court has upheld a Madison County judge's order granting summary judgment to an East Alton law firm accused of legal malpractice.


The Fifth District Appellate Court has upheld a Madison County judge's order granting summary judgment to an East Alton law firm accused of legal malpractice.

In an unpublished order released late last week, the appeals panel pointed to the statute of limitations to affirm Madison County Circuit Judge Andreas Matoesian's ruling.

The order stems from a situation that began in 2005, when Jesse Berry hired Gregory Tobin and his law firm to bring a suit against his former employer under the Federal Employers' Liability Act (FELA).

Berry was an employee of Norfolk Southern Railway Co. from 1969 to 2002, during which time he was required to walk on uneven surfaces in a variety of job assignments.

In 2000, he sought medical attention for pain in his left knee and was diagnosed with osteoarthritis. Berry also asserts that his doctor told him that his knee injury was caused by working on uneven surfaces.

Berry continued to work at the railroad company and in 2002, received a new assignment that he claims caused further injury to his knee. He asked to be reassigned to his previous tasks, but Norfolk refused to do so or modify his current duties.

After he left the company due to his knee injury, Berry hired Tobin's firm to sue Norfolk. Tobin's firm didn't file the suit in 2005 so
Berry hired new counsel.

His new attorney filed the FELA suit in St. Louis County, Mo. in 2006, which was dismissed on a motion for forum non conveniens in 2007.

That same year, the case was re-filed in Macon County. It was dismissed the following year on Norfolk's motion for summary judgment, which claimed the statute of limitations for bringing the FELA claim had expired.

According to the appellate court ruling, the case before it was filed in Madison County in 2009.

The appeals panel noted that during the course of the Madison County litigation, various discovery disputes arose. Berry filed motions for sanctions against his former employer on alleged discovery violations and Norfolk sought summary judgment.

The railroad company claimed that Berry's claim under the FELA accrued in 2002 and that the statute of limitations for bringing his suit had run out by the time he hired Tobin's firm in 2005.

Matoesian noted the pending sanctions questions, but used his discretion to consider the motion for summary judgment first. He agreed with Norfolks' statute of limitations argument and granted the company summary judgment.

On appeal to the Fifth District, Berry claimed that an issue of material fact existed regarding the date on which the three-year period of statute of limitations expired.

He also questioned whether aggravation of a chronic injury by work conditions can trigger the statute of limitations period and if the lower court should have sanctioned Norfolk for alleged discovery violations and barred the company from arguing the FELA's limitations period.

In its unpublished order, the appeals panel agreed with Matoesian.
Justice Richard Goldenhersh delivered the order and Justices Bruce Stewart and James Wexstten concurred.

Because the FELA provides a three-year statute of limitations period for bringing a claim under the act, the appellate court's analysis of Berry's appeal focused on when his cause of action accrued.

Goldenhersh wrote that it is uncontested that Berry learned his railroad work caused his knee injury in 2000 and hired Tobin's firm in 2005.

"Clearly the period between November 2000 and January 2005 is a period in excess of three years," Goldenhersh wrote.

Berry, however, argued that his FELA cause of action accrued in 2002, when his job assignment changed and his employer refused to reassign him or modify his job tasks.

He claims that in 2002, he was informed by a doctor that he would "still be getting along okay" if there hadn't been a change in his work requirements. Berry asserts that this information was not known before 2002 and as such, should mark the beginning of the three-year period of statute of limitations.

Norfolk argued that the date of Berry's knowledge of his injury should apply, not the date of aggravation. The company asserts that because Berry was first told about his injury in 2000, the clock started ticking in 2000.

Goldenhersh wrote in the unpublished order that the panel looked to its relatively recent opinion in Axe v. Norfolk Southern Railway Co., which came to it on appeal from Madison County, for guidance.

The plaintiff in Axe sought damages under the FELA over injuries allegedly caused by repetitive work-related trauma to his knees.

Like Berry's case, Norfolk sought summary judgment in Axe based on the three-year period of statute of limitations, claiming that the plaintiff had learned of his injury in 2006, but didn't file suit until 2010.

The Madison County Circuit Court granted Norfolks' motion for summary judgment and the appeals panel in Axe said that "[b]ecause the plaintiff reasonably should have known of both the injury and its cause more than three years before filing his complaint, the court granted the defendants' motion for summary judgment."

Goldenhersh wrote that based on Axe, as well as two other cases, the appeals panel determined that Berry had knowledge of his condition in 2000 and as such, did not file his claim within the three-year period of statute of limitations under the FELA.

The appeals panel also disagreed with Berry's argument that Matoesian abused his discretion by addressing Norfolks' motion for summary judgment before his motion for sanctions.

"We conclude that the circuit court of Madison County did not abuse its discretion when, faced with both multiple discovery-related sanctions motions and a motion that potentially could resolve the entire controversy before it, it chose to consider first the summary judgment motion," Goldenhersch wrote.

As of last year, Belleville attorney Robert Owen represented Berry and Robert Shultz, who has since left Heyl Royster in Edwardsville, served on Norfolk's legal team. It was not immediately clear who took over the case for Shultz.

The citation for the appellate court's unpublished order is Jesse Berry v. Gregory Tobin and Pratt & Tobin, 2012 IL App (5th) 110285-U.

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