United States District Court, D. Nebraska
JOHN E. POPE, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
Pope is suing his former employer, Union Pacific Railroad
Company (UPRR), under the Federal Employers Liability Act
(FELA) 45 U.S.C. § 51 et seq., alleging his workplace
exposure to hazardous materials caused colon cancer. (Filing
No. 1 at CM/ECF p. 2). Pope was diagnosed on February 4,
2013, more than 3 years before he sued. (Filing No. 25-2 at
CM/ECF p. 1) UPRR now moves for summary judgment (Filing No.
23), arguing Pope's claim for recovery under the FELA is
time-barred. See 45 U.S.C. § 56. For the reasons
explained below, the motion will be granted.
worked for UPRR from 1974 to 1995 as a trackman, track
foreman, and track inspector. (Filing No. 1 at CM/ECF p. 1).
He alleges that during his employment, he was exposed to
diesel fuel/exhaust, benzene, herbicides, creosote,
rock/mineral dust, and asbestos fibers. (Id. at 2).
to his employment for UPRR, Pope worked from 1972 to 1974 at
Parkhurst Manufacturing Company as a welder. (Filing No. 27-2
at CM/ECF p. 5). He left that job because work-related
exposure to smoke was exacerbating his asthma. (Filing No.
27-2 at CM/ECF pp. 6-7). Pope suspected that his exposure to
smoke was unhealthy and hazardous to his health.
his employment for UPRR, Pope complained to management about
his exposure to creosote. (Filing No. 27-2 at CM/ECF p. 8).
He also complained about breathing in diesel and sawdust,
which affected his asthma. (Filing No. 27-2 at CM/ECF p. 9).
Pope was concerned at some point during his employment that
his exposure to creosote, sawdust, and diesel was dangerous
to his health, particularly because of his asthma.
(Id.) His medical records indicate that he spoke
with a medical professional on June 21, 1991 regarding a
history of asthma and a questionable history of “some
occupational exposures to inhaled irritants.” (Filing
sought treatment for a lesion on his right ear and mid lower
abdominal discomfort on January 4, 2013. (Filing No. 25-4 at
CM/ECF p. 1). A colonoscopy was performed on February 4,
2013, and cancer was discovered. (Filing No. 25-2). Pope
discussed the cancer diagnosis with his physician that day,
so Pope knew about his colon cancer no later than February 4,
2017, Pope saw a television advertisement for the Bern
Cappelli law firm regarding lawsuits against UPRR for
occupational exposures to hazardous materials. Pope
maintains, however, that until he saw the advertisement, he
had no idea that the hazardous materials he was exposed to at
UPRR could cause colon cancer. (Filing No. 29 at CM/ECF p. 4;
Filing No. 27-2 at CM/ECF p. 9).
February 4, 2013 and 2017, Pope did not investigate the cause
of his cancer. (Filing No. 27-2 at CM/ECF p. 10). And other
than calling the law firm about its advertisement and
completing its questionnaire, Plaintiff did not investigate
the cause of his cancer from the time he saw the television
advertisement to the time he filed this lawsuit. (Filing No.
27-2 at CM/ECF p. 11).
filed suit on September 7, 2018, alleging that his workplace
exposure “whether by touch, inhalation or consumption,
in whole or in part, caused or contributed to his development
of cancer of the colon with metastasis to the liver.”
(Filing No. 1 at CM/ECF p. 2). UPRR now moves for summary
judgment, asserting that Pope's FELA claim is time-barred
as a matter of law. Pope asserts the statute of limitations
issue presents a question of material fact which must be
decided by a jury.
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. SeeFed. 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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