United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE.
McLaughlin is suing his former employer, BNSF Railway Co.,
under the Federal Employers Liability Act (FELA), 45 U.S.C.
§ 51 et seq., alleging that his workplace
exposure to hazardous materials caused his bladder and lung
cancers. But McLaughlin was diagnosed with bladder cancer on
March 2, 2015-more than 3 years before he sued. The issue
presented by BNSF's motion for partial summary judgment
(filing 35) is whether McLaughlin's claim as to his
bladder cancer is time barred by FELA's 3-year statute of
limitations. See § 56.
worked for BNSF in Lincoln, Nebraska for 39 years, starting
in 1976. Filing 37-1 at 4, 15. He started as a helper, but
was quickly upgraded to a carman and held that position until
he retired in March of 2015. Filing 37-1 at 24-25, 15.
McLaughlin worked about eight years in the Havelock Shops and
the remainder of his time at Hobson Yard. Filing 37-1 at 23,
26. During that time he was exposed to various hazardous
materials, including dust, welding fumes, diesel fuel, diesel
exhaust, and insecticide. See filing 37-1 at 23,
37-38; see also filing 1 at 2. McLaughlin also
smoked a pack-and-a-half of cigarettes a day for over 30
years until he quit in 2012. Filing 37-1 at 9-10.
be explained further below, the real question is when
McLaughlin knew, or should have known, that his bladder
cancer could be attributed to his work for BNSF. McLaughlin
sought treatment in February 2015 and had surgery which
diagnosed the bladder cancer on March 2, 2015. Filing 37-1 at
7-8; filing 37-3 at 1. McLaughlin discussed the cancer
diagnosis with his physician at a follow-up visit on March 6,
2015. Filing 37-4 at 1; see filing 36 at 4; filing
42 at 3. So, McLaughlin knew no later than March 6, 2015
about his bladder cancer.
also knew on March 6, 2015 that he had been exposed to a
variety of hazardous materials while working for BNSF. He had
received training and knew that diesel exhaust, solvents and
asbestos were potential health risks. See filing
37-1 at 14-15. He also knew "maybe not all of it was
hazardous. . . . I do have a pretty good idea that
there's some things in that environment that wasn't
probably good for me." Filing 37-1 at 37.
maintains, however, that until he saw a Facebook ad he had no
idea that the hazardous materials he was exposed to at BNSF
could cause bladder cancer. Filing 42 at 3; filing 37-1 at
17-18. After seeing the ad, McLaughlin said he now believes:
[I]t was an accumulation of exposure to a lot of different
toxins . . . that I worked around for all them years. . . .
[F]rom locomotives and all the cars, the stuff they spray the
yards for weeds, all the dust and dirt and coal and just the
whole environment out there, I think contributed to this
37-1 at 23 (cleaned up). McLaughlin said he never associated
his bladder cancer with smoking. Filing 37-1 at 18.
unclear from the record when McLaughlin actually saw the ad,
but suffice to say it was after March 28, 2015. See
filing 37-1 at 7-8. McLaughlin filed suit on March 27, 2018
alleging that his workplace exposure to "various toxic
substances and carcinogens" caused or contributed to his
bladder cancer. Filing 1 at 2. After limited discovery,
see filing 12, BNSF filed this motion for partial
summary judgment, filing 35, asserting that McLaughlin's
claim as to his bladder cancer is time-barred.
STANDARD OF REVIEW
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(a). The movant bears the initial responsibility
of informing the Court of the basis for the motion, and must
identify those portions of the record which the movant
believes demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary
materials that set out specific facts showing that there is a
genuine issue for trial. Id.
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis Cty., 653
F.3d 745, 751 (8th Cir. 2011). The mere existence of a
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
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