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April 11, 1989


The opinion of the court was delivered by: EISELE


 The Plaintiff brings this lawsuit pursuant to the Federal Employers' Liability Act, (FELA), 45 U.S.C. § 51 et seq., and seeks damages for loss of hearing allegedly due to defendants' negligence. Defendants move for summary judgment contending that plaintiff's claim is time-barred. For the reasons set forth below, the Court will grant defendants' motion in part.


 Mr. Eugene Courtney began working for the railroads in 1952 when he joined the Missouri Pacific as a bridge building helper. In 1956 he went to work for the Rock Island Line Railroad as a fireman, and was eventually promoted to locomotive engineer. He remained an engineer until 1980 when he returned to the Missouri Pacific to work as a fireman, hostler, terminal engineer and hostler helper. He retired in April 1987. In recent years, the Missouri Pacific entered into a joint operating agreement with the Union Pacific Railroad, and while the railroads continue to exist as two separate entities, they are both owned by the Union Pacific Corporation. Because of that relationship, plaintiff sought and defendants consented to an amendment of the original complaint in order to name Missouri Pacific as a defendant. For the purposes of the present motion, however, the issue of timeliness applies to both defendants.

 According to his deposition, Mr. Courtney began experiencing a ringing in his ears sometime in 1980 when he returned to work for the Missouri Pacific. On July 2, 1982, after being told by his family that he appeared to have increasing trouble hearing, Mr. Courtney was examined by Dr. John R.E. Dickins of the Ear & Nose-Throat Clinic in Little Rock. Dr. Dickins diagnosed Mr. Courtney as having a hearing loss, and also states that he told Mr. Courtney that his hearing loss was caused by exposure to excessive noise at work. Although plaintiff admits that he was examined by Dr. Dickins in July of 1982, and told he had a hearing loss, he stated during his deposition that he could not remember whether or not the doctor also told him that the hearing loss was work related. (Defendant's Exhibit A p. 20). Mr. Courtney does not deny, however, that he was so informed at that time.

 After the examination, Mr. Courtney states he "more or less forgot about it", and continued working for the railroad. Id. at p. 21. The plaintiff never filed a grievance or disability claim, nor did he request a different work assignment that would lessen his exposure to noise. In fact, it appears that he did not notify defendants of his hearing loss at all.

 In January 1985, Mr. Courtney purchased a hearing aid. But again he filed no claims, nor did he tell defendants of his hearing trouble. Moreover, Mr. Courtney states that he never wore the hearing aid to work out of fear that the device would further damage his hearing if worn in and around locomotives. In short, Mr. Courtney never notified defendants of his injury until after retiring from the Missouri Pacific in April of 1987. On May 12, 1987, plaintiff was examined again by Dr. Dickins who found that Mr. Courtney's hearing loss had worsened. On May 25, 1987, plaintiff filed this lawsuit alleging that the defendants negligently failed to provide a safe work place and exposed him to high levels of noise which caused his hearing loss.

 The defendants argue that plaintiff's claim is barred by the FELA three-year statute of limitation since his cause of action accrued on July 2, 1982 -- the date Mr. Courtney was told by Dr. Dickins that he had a hearing loss resulting from exposure to high levels of noise at work -- and was, therefore, stale on July 2, 1985 almost two years before plaintiff commenced this action. Plaintiff's primary response is that because Mr. Courtney cannot remember whether or not he was informed of both the nature and cause of his injury in 1982, the question of accrual remains a genuine issue of material fact, which must be resolved in plaintiff's favor thereby precluding the court from finding on the law that the defendants are entitled to summary judgment. In the alternative, plaintiff contends that because his injury was of a continuing nature the FELA statute of limitations was tolled until Mr. Courtney's last day at work.


 The FELA statute of limitations provides that that "no action shall be maintained under this [Act] unless commenced within three years from the day the cause of action accrued." 45 U.S.C. § 56. Where the injury is the result of some trauma, such as an accident, the effects of the injury are usually immediately apparent. In those cases, the cause of action accrues at the point in time when the injury occurs regardless of whether the plaintiff knows the full extent of the disability. Fletcher v. Union Pacific Railroad Co., 621 F.2d 902, 906 (8th Cir. 1980). While a defendant may be equitably estopped from raising the statute of limitations defense, there can be no estoppel unless the defendant made misrepresentations that induced the plaintiff to delay taking appropriate legal action. Id., at 906-07. Even if the present case involved some traumatic injury, estoppel would not extend the limitations period because defendants never had notice of plaintiff's injury and thus cannot be charged with causing plaintiff's delay in bringing this lawsuit.

 Rather than a traumatic injury, plaintiff's claim rests on being able to show that he has developed an occupational injury, the symptom of which did not become immediately apparent, but instead manifested itself after years of exposure to the various high level noises associated with powerful train engines.

 In Urie v. Thompson, 337 U.S. 163, 93 L. Ed. 1282, 69 S. Ct. 1018 (1949), the U.S. Supreme Court first articulated what has come to be referred to as the "discovery rule" in cases involving latent injuries such as occupational diseases or injuries. The Court held that a claim arising under FELA did not accrue until the employee is aware, or should be aware of his injury. Id. at 170. In that case, plaintiff developed silicosis as a result of his employment with the railroad. The Court found that the cause of action resulting from plaintiff's injury was "the product of a period of time rather than a point in time." Id. at 170. Consequently, it refused to charge plaintiff with the "unknown and inherently unknowable" and held that his claim did not accrue until the injury manifested itself. Id. at 169-70.

 In United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979), a case involving a medical malpractice claim brought under the Federal Torts Claim Act, defendants argued plaintiff's claim was barred under the Act's two-year statute of limitations. 28 U.S.C. § 2401(b). The plaintiff contended, however, that in order for a claim to accrue within the meaning of the Act, a plaintiff must not only know of the existence and cause of his injury, he must also know that the acts inflicting the injury might constitute some legally actionable conduct. Id., at 113. The Court rejected this last requirement and found that it was ...

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