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Pope v. Union Pacific Railroad Co.

United States District Court, D. Nebraska

December 5, 2019

JOHN E. POPE, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge

         John E. 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.

         FACTUAL STATEMENT

         Pope 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).

         Prior 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. (Id.)

         During 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 No. 25-1).

         Pope 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, 2013.

         In 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).

         Between 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).

         Pope 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.

         STANDARD OF REVIEW

         Summary 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.

         On a 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. Barber v. C1 ...


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