United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the Court pursuant to the motion for summary
judgment under Fed.R.Civ.P. 56, Filing No. 20, filed by the
defendant. Plaintiff sued his former employer, Union Pacific,
under the Federal Employers' Liability Act (FELA), 45
U.S.C. §§ 51 alleging that occupational exposures
caused his cancer, in particular chronic lymphocytic leukemia
(“CLL”) and Hodgkin's lymphoma. Plaintiff
allegedly waited six years after his cancer diagnosis to file
this lawsuit. Defendant contends the statute of limitations
judgment is appropriate 'if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."'
Foster v. BNSF Ry. Co., 866 F.3d 962, 966 (8th
Cir.2017) (quoting Fed.R.Civ.P. 56(a)). "Summary
judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the
Federal Rules as a whole, which are designed 'to secure
the just, speedy, and inexpensive determination of every
action."' Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).
movant bears the initial responsibility of informing the
district court of the basis for its motion, 'and must
identify those portions of the record] . . . which it
believes demonstrate the absence of a genuine issue of
material fact."' Torgerson v. City of
Rochester, 643 F.3d 1031, 1042, (8th Cir. 20ll) (en
banc) (quoting Celotex, 477 U.S. at 323). If the
movant meets the initial burden, "the nonmovant must
respond by submitting evidentiary materials that set out
'specific facts showing that there is a genuine issue for
trial."' Torgerson, 643 F.3d at 1042
(quoting Celotex, 477 U.S. at 324). "The
nonmovant 'must do more than simply show that there is
some metaphysical doubt as to the material facts,' and
must come forward with 'specific facts showing that there
is a genuine issue for trial."' Torgerson,
643 F.3d at 1042 (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). “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
reasonably find for the [nonmovant]." Barber v. Cl
Truck Driver Training, LLC, 656 F.3d 782,
791-92 (8th Cir. 2011) (quoting Anderson v. Liberty
Lobby, lnc., 477 U.S. 242, 252 (1986)).
statute of limitations for Hunt's FELA claim is three
years. White v. Union Pacific R.R., 867 F.3d 997,
1001 (8th Cir. 2017) (citing 45 U.S.C. § 56). In cases
involving latent injuries, such as cancer, “the cause
of action does not accrue until the employee is aware or
should be aware of his condition.” Id.
“[T]he employee must also know-or have reason to
know-the condition's cause.” Id. The
inquiry becomes “when the plaintiff knew or should have
known, in the exercise of reasonable diligence, the essential
facts of injury and cause.” Id.
contends that plaintiff knew of his cancer diagnosis more
than three years prior to filing the lawsuit, as he was
diagnosed in February 2011 and he filed on July 10, 2017.
Further, plaintiff admitted he believed his employment with
defendant may have contributed to his cancer. Hunt Dep., Ex.
1, at 103:10-22.
argues that defendant cannot show that his claim falls
outside of the three-year statute of limitations, as that is
a question of fact to be determined by a jury. First,
plaintiff denies that he believed the exhaust could cause
cancer. When asked in his deposition if he believed the
diesel exhaust could cause cancer, plaintiff stated, “I
never thought about it. It wasn't in my thinking at
all.” Filing No. 21, (Hunt Dep., Ex. 1, at
93:23-94:2.). However, plaintiff testified that:
Q. So is it fair to say that during your career, you
accumulated knowledge that you may have been exposed to
chemicals, and exhaust, and dust that could be harmful to
(Hunt Dep., Ex. 1, at 108:17-21.) Plaintiff likewise
Q. So is it fair to say, from the date of diagnosis, that you
kind of thought that the Railroad was a potential ...