ankle condition, the railroad's negligence in keeping him there, if any, was not actionable because Southern Pacific was unaware of the damage plaintiff's duties were causing him until Emmons was fired for excessive absenteeism. At that point, Emmons furnished the railroad with a doctor's statement that the injury which caused him to lose so much work time was aggravated by his employment conditions. There was evidence, however, that the plaintiff himself began experiencing problems in 1974, but neither applied for a transfer nor mentioned his condition to anyone in authority for fear of losing his job. Suit was filed under FELA in 1978.
In DuBose v. Kansas City Southern, supra, another Fifth Circuit case, the court upheld the determination that the plaintiff's cause of action was not barred where the trial court, pursuant to defendant's request, allowed the statute of limitation question to go to the jury. According to the Court of Appeals, the defendant had mistakenly requested the trial judge to charge that while the plaintiff's cause of action for the original injury was barred, it was for the jury to determine whether a cancer, which later arose from chronic obstructive pulmonary disease, was known to the plaintiff's decedent within the limitations period. The verdict for plaintiff was upheld because the defendant requested an erroneous instruction and failed to correct its own error before the jury retired to deliberate. The court indicated that under the Urie and Kubrick tests, the real jury question should have been whether plaintiff's decedent was aware that his chronic lung problems were employment-related more than three years before suit was filed. Although it was a death case and one involving an occupational disease, neither the date of death nor the decedent's last working day were thought to be significant for accrual purposes. Thus, the Fifth Circuit, in an FELA case, employed the same analysis as the Third Circuit in Ross v. Johns-Manville (See n. 4, supra) to determine when an occupational disease claim accrues, i.e., when the plaintiff is or should be aware of his initial injury and its cause. This is true even if the original problem later causes more serious illness.
From the foregoing discussion of the case law, it should be apparent that the Courts of Appeals have not developed a general continuous tort exception to the Kubrick refinement of the Urie "discovery" rule. Rather, a plaintiff's cause of action in any FELA case accrues when he is aware of his injury and its cause. If he then brings his injury to the defendant employer's attention but it refuses to correct the employment conditions that caused the plaintiff's problem or a different problem is caused thereby, the plaintiff may acquire a separate FELA cause of action. As to that action, the statute of limitations may be tolled as long as the negligent or intentional conduct persists. The case law makes it quite clear, however, that there can be no continuous injury cause of action in the absence of defendant's knowledge that its conduct caused or contributed to plaintiff's injury. This analysis and conclusion serves two interests. For just as a defendant should not acquire a right to persist in harmful conduct, neither should a plaintiff acquire a right to remain in adverse conditions, unknown to the defendant, and increase his damages thereby.
With these standards in mind, we turn to a consideration of the accrual of plaintiff's cause of action in this case. It is undisputed that plaintiff's chronic lung problem was first diagnosed in 1978. Plaintiff's treating physician, referring to his office records, testified at his deposition that he had made an initial diagnosis of chronic obstructive pulmonary disease and informed plaintiff of it in February, 1978, when Kichline first visited his office. That diagnosis was confirmed by another physician in August, 1978. (Deposition of Mark Koshar, M.D. pp. 12, 13, 15). Under the Urie test, it was then that plaintiff knew he was injured.
Next, we refer to the Kubrick test for the second critical question: When did plaintiff become aware of the connection between his injury and his employment conditions? Dale Kichline testified at his deposition that Dr. Koshar had first told him to avoid diesel fumes in 1979. That advice was confirmed by a Dr. Wildrick, also in 1979.
(Deposition of Dale Kichline at 109, 110).
Therefore under the Urie and Kubrick "discovery" rules it is clear that plaintiff both knew of his injury and was on notice as to its relationship to his employment conditions no later than 1979. Since his cause of action accrued more than three years before suit was filed in August, 1983, his cause of action is barred by the FELA statute of limitations.
Thus, judgment on the claim for plaintiff's original injury must be granted in favor of the defendant. This conclusion is consistent with the latest application of the Kubrick rule in Zeleznik, supra, in which the Third Circuit held that a cause of action accrues when plaintiff is aware of his injury and its cause even when he has no reason to know that the cause may constitute a cause of action. Here, although the record indicates that plaintiff's physician did not specifically tell him to quit work until 1982, there is certainly enough uncontradicted evidence to support the conclusion that Kichline was on notice of the possible effect of his working conditions on his illness. He had at least as much notice as the Zeleznik plaintiffs, who knew only the identity of their son's murderer within the limitations period and no indication of his prior contacts with the INS.
There remains, however, a question whether Conrail was aware of the plaintiff's illness and its relationship to his exposure to diesel fumes on the job. We note that plaintiff did not plead a separate cause of action for negligence in defendant's keeping him in a position that exposed him to aggravating pollutants. However, it is appropriate to consider this issue in light of plaintiff's invocation of the so-called continuous tort doctrine. Plaintiff testified that he did complain about the diesel fumes, particularly in the winter time when he worked in an enclosed area.
(Kichline deposition at 103). However, there is absolutely no indication that plaintiff ever told or otherwise advised his supervisors, after consulting Dr. Koshar and Dr. Wildrick, that he had an illness which was being aggravated by his working environment. Likewise, there is no suggestion that he ever requested a different position, or that he requested special equipment to reduce his exposure to pollutants.
Consequently, the Court sees no basis for the application of the continuous tort doctrine to this claim.
In summary, we conclude that the plaintiff knew or should have known of his injury when his illness was first diagnosed. Similarly, it is apparent from the record that he was informed at that time that diesel fumes could contribute to his health problems. Plaintiff continued to work in the same position until 1982 when his health had deteriorated to the point where he could no longer work. Within one year of leaving his employment he brought this FELA action. Because he was aware of his injury and its relationship to his employment more than three years before filing suit, his action is barred by the FELA statute of limitations and judgment must, therefore, be entered in favor of defendant Conrail. An appropriate order follows.
AND NOW, this 16th day of October, 1985, upon consideration of plaintiff's motion to open the judgment heretofore entered on August 30, 1985, and defendant's response thereto, IT IS ORDERED that the motion is GRANTED.
IT IS FURTHER ORDERED that the judgment in favor of defendant Conrail, heretofore entered on August 30, 1985, is VACATED.
IT IS FURTHER ORDERED that upon consideration of defendant's motion for summary judgment on the merits and plaintiff's response thereto, the motion is GRANTED and judgment is entered in favor of defendant Conrail and against the plaintiff.