FELA, accrual and progressive trauma: LLOYD V . CSX TRANSPORTATION, INC. (COA 8/31/2007)

LLOYD V . CSX TRANSPORTATION, INC.
TORTS: FELA (SUBSTANTIVE AND PROCEDURAL LAW); ACCRUAL OF CAUSE OF ACTION FOR PROGRESSIVE TRAUMA
2006-CA-000912
PUBLISHED: REVERSING AND REMANDING
PANEL: THOMPSON PRESIDING; DIXON CONCURS; HENRY DISSENTS WITH SEPARATE OPINION
COUNTY: JEFFERSON
DATE RENDERED: 8/31/2007

CA reverses and remands grant of SJ to CSX on statute of limitations grounds in this toxic exposure case.

Plaintiff-appellant worked for CSX from 1974-1980 and was exposed daily to chemicals and solvents. Beginning in 1994 he consulted doctors for headaches, GI problems, depression, anxiety, mood swings, and problems with memory and attention. At that time he expressed concern about his toxic exposure at CSX. In 1995, he requested his internist’s assistance in getting a referral to an occupational health specialist in Michigan; his insurance denied coverage for the referral and, instead, he went to a neurologist. The neurologist diagnosed only migraines and missed toxic encephalopathy. Finally, in June 2001, he was diagnosed with toxic encephalopathy attributed to the chemical exposure at CSX. He filed suit within the 3-year FELA SOL.

CSX argues that the record shows he knew or should have known that his complaints were attributable to the exposure as early as 1996, but that he delayed filing suit until 7 years later. CA holds that, because toxic encephalopathy is a progressive disease whose symptoms mimic other conditions, and because 5 highly qualified physicians missed its source, the claimant cannot be charged with notice of his condition, and its cause, under Lipsteuer. A spirited dissent follows.

By John Hamlet

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