Anderson v. BNSF Railway

Anderson v. BNSF Railway, 2015 MT 240 (Aug. 12, 2015) (Shea, J.; Wheat, J., concurring; McKinnon, J., dissenting) (6-1, rev’d)

Issue: (1) Whether the district court erred in allowing the statute of limitations to be decided as a fact question; (1.a) whether the continuing tort doctrine applies to cumulative trauma injuries under FELA; (1.b) whether an employee can recover under FELA for aggravation of a time-barred injury; (1.c) whether non-disabling aches and pains constitute an injury under FELA; and (2) whether counsel for BNSF made improper comments that deprived Anderson of a fair trial.

Short Answer: (1) No; (1.a) no; (1.b) yes; (1.c) no; and (2) yes.

Reversed and remanded for new trial

Facts: Robert Anderson worked for BNSF for more 30 years, primarily as a carman inspecting and repairing railroad cars in Havre. In 2008, he sued BNSF under the Federal Employers’ Liability Act (FELA), alleging that over the course of his employment, BNSF negligently assigned him to work that cause cumulative trauma injuries to his musculoskeletal system, especially his lower back, and that BNSF knew or should have known the work would cause the injuries. He further alleged BNSF negligently left a hole in a walkway that Anderson stepped into, which caused him to fall and resulted in a disabling back injury.

Anderson’s job required him to spend hours a day driving tractors with no suspension, or pickups with insufficient suspension, over rough roads and railroad crossings. He sought medical attention for pain, but was not diagnosed with a disabling injury until 2008. He filed an injury report in 2006 stating he believed he had a rotator cuff tear, degenerative disc disease, soft tissue injuries and tendinitis, which he attributed to job-related tasks. BNSF did not make any changes to Anderson’s work after the report.

Anderson presented evidence at trial that BNSF employees had complained for decades that the vehicles and rough roads caused frequent pain, primarily to employee’s backs, but that BNSF did not investigate the complaints, nor take action to remedy the problem.

Anderson stumbled and fell at work on Dec. 23, 2008, alleging a hole concealed by snow. He filed an injury report and sought treatment. In October 2009, S+BNSF took Anderson off work due to his back injury. Anderson characterized the fall as the straw that broke the camel’s back, from which his cumulative trauma injury manifested.

Before trial the parties filed cross-motions for summary judgment on the statute of limitations. The district court denied both motions, noting that for the purposes of the discovery rule there was a factual dispute about when Anderson knew of should have known he had an injury, and hat the injury was work-related. The court declined to adopt a continuing tort theory because Anderson’s claim fell within the discovery rule.

The case went to trial and the jury returned a verdict finding that Anderson’s cumulative trauma claim was barred by the statute of limitations. The jury also found BNSF did not cause Anderson’s December 2008 fall.

Procedural Posture & Holding: Anderson moved for a new trial, arguing the statute of limitations should have been decided in his favor as a matter of law, and that he was deprived of a fair trial because he was not allowed to present his negligent work assignment theory to the jury, and because BNSF made improper statements in closing argument and interjected inadmissible evidence of collateral source benefits. The district court denied the motion, Anderson appeals, and the Supreme Court reverses. 

Reasoning: While FELA cases are tort cases, many of the usual tort rules, legal standards, and rules of statutory construction do not apply. “Therefore, it is necessary to suspend traditional notions of conventional tort law when applying the relevant standards for FELA claims.” ¶ 19. FELA is to be liberally construed in favor of injured workers.

The Court begins by clarifying “cumulative trauma injury,” negligent work assignment,” “aggravation,” and “continuing tort.” Anderson does not consistently distinguish he negligent work assignment claim and his cumulative trauma injury claim, but they are distinct.

Work assignments in cumulative trauma claims are ones that could injure anyone consistently assigned to them for a long period of time, while work assignments in negligent work assignment cases are hazardous to a particular worker because of his physical condition.

(1) FELA has a three-year statute of limitations from the day the cause of action accrued. A claim for an occupational disease under FELA is not considered to have accrued until the accumulated effects of the injurious exposure manifest themselves. “In light of the clear policy of liberal interpretation in favor of workers, it is anomalous that the discovery rule the U.S. Supreme Court announced in Urie has been interpreted by some to preclude workers from bringing occupational disease claims when the rule was specifically crafted to save occupational disease claims from the statute of limitations.” ¶ 37. “If negligence that worsens a prior injury were time-barred because the prior injury was time-barred, it would absolve the railroad of its duty to provide a safe work environment to anyone already injured by its negligence.” ¶ 41.

Such an approach is unnecessary to protect the interests that statutes of limitations are meant to protect.

(1.a) The Court sees no need to apply the continuing tort doctrine to claims alleging either cumulative trauma injury or negligent work assignment. The argument that a previous injury that is time-barred by the discovery rule can preclude recovery for further injury caused by later negligence runs contrary to the plain language of the FELA.

“When addressing the timeliness of cumulative trauma injury claims under the FELA, the initial question is when the injured worker discovered he or she was suffering from a work-related injury. If the claim is filed within three years of that discovery, the claim is timely and the analysis need go no further. If the claim is not filed within three years of that discovery, the claim will be considered untimely only if no part of the injury was caused within the three years preceding the filing of the claim.” ¶ 54.

The district court’s jury instructions on this issue did not fully and correctly inform the jury of the applicable law, and were error.

(1.b) Aggravation of an existing injury is compensable under the plain language of FELA. The district court erred in refusing to give Anderson’s proposed instruction on aggravation.

(1.c) “[W]hat constitutes the manifestation of the accumulated effects of the injurious exposure—as opposed to the merely transient aches and pains common to advancing age and manual labor—is a question of fact, appropriately reserved to the jury.” ¶ 70. It will be “the rare case in which application of the discovery rule in a cumulative trauma case is properly decided as a matter of law.” ¶ 72. The district court correctly determined that the question of when Anderson discovered his injury was a fact issue for the jury.

(2) “BNSF employed a consistent tactic to characterize Anderson’s case as little more than an attempt to get rich off of non-existent injuries with the aid of unscrupulous attorneys, dishonest coworkers, and mercenary doctors. They were inflammatory and wholly inappropriate. They undermined the truth-finding function of the jury trial by encouraging jurors to base their decision on prejudice, rather than evidence. In so doing, BNSF’s attorneys consistently violated the District Court’s orders in limine.” ¶ 79. BNSF’s repeated violations of the orders in limine were too prejudicial for the Court to retain confidence that the jury’s verdict was based on the evidence rather than on prejudice.

The district court abused its discretion in denying Anderson’s motion for a new trial.

Justice Wheat’s Concurrence: Justice Wheat would remand with an instruction to enter default judgment on liability against BNSF. No other remedy is sufficient to deter future abuse. This case and others show a pattern of trying to win trials by misconduct rather than merit.

Justice McKinnon’s Dissent: Justice McKinnon would affirm for the reasons stated in the district court’s order denying Anderson’s motion for a new trial.