Opinion
CASE NO. 3:03-cv-435-J-TEM.
September 28, 2005
ORDER
This cause is before the Court on several motions to dismiss and motions for summary judgment. Because there has been prior litigation between the Plaintiff and one of the Defendants, the Court will begin with a narrative summary of the background.
Plaintiff Edward Leroy Swindell ("Swindell") is a former employee of the Defendant Florida East Coast Railway Company ("FEC"), having worked for the FEC from 1939 until 1952 at various jobs on locomotives (Doc. # 1, paragraph 3). In 1996, Swindell filed a complaint in state court in Dade County, Florida, against FEC alleging negligent acts of the railroad caused him to be exposed to "toxic substances including asbestos, asbestos containing products, and diesel exhaust fumes which caused him to suffer permanent injuries to his lungs." (See Doc. # 10, Attachment A) That action later was voluntarily dismissed by Swindell's attorney (See Doc. # 10, paragraph 5).
Edward Leroy Swindell and Mary Young Swindell v. Florida East Coast Railway Company, Case No. 96011352, Circuit Court of the 11th Judicial Circuit. This case will be referred as the Swindell 1996 case.
Swindell subsequently filed another suit against FEC in the Southern Distict of New York, again alleging exposure to harmful substances while employed. That case was dismissed by the court based on lack of proper jurisdiction. Swindell v. Florida East Coast Ry. Co., 42 F.Supp.2d 320 (S.D.N.Y.), aff'd, 201 F.3d 432 (2d Cir. 1999) (table).
Swindell filed suit for a third time against the FEC in this court in 2000, again alleging exposure to harmful substances causing permanent injury to his "lungs and pleura". Summary judgment was granted in favor of FEC based upon the statute of limitations (Case No. 3:00-cv-224-J-21TJC, Doc. # 38). The Eleventh Circuit affirmed the summary judgment in an unpublished opinion, 31 Fed Appx. 935 (11th Cir. 2002). cert. denied, 537 U.S. 820 (2002).
Swindell v. FEC, Case No. 3:00-cv-224-J-21TJC. This case will be referred to as the "2000 case."
Swindell filed the instant case on May 23, 2003 (Doc. #1), naming both FEC and CSX Transportation Corp. ("CSX") as defendants, and claiming he is seeking damages for chronic obstructive pulmonary disease ("COPD") or emphysema (Doc. #1, paragraph 7).
Motions Pending:
CSX filed a motion to dismiss on the ground that Swindell had never been an employee of CSX (Doc. #7). Swindell replied that under the "joint enterprise doctrine" CSX could be jointly liable with FEC and included a motion for summary judgment (Doc. #8). FEC filed a motion to dismiss based on res judicata and argued a the "second injury doctrine" would not apply to Swindell's claim (Doc. # 10). Swindell replied and included a motion for summary judgment (Doc. #13). The Court converted the motions to dismiss into motions for summary judgment and deferred ruling on Swindell's motions for summary judgment, allowing the parties a 60-day period to conduct any discovery as to the medical issues and to file any additional pleadings (Doc. # 24).
The parties consented to jurisdiction of a United States Magistrate Judge (Doc. # 18).
CSX subsequently filed a motion for summary judgment (Doc. # 29). FEC also filed a motion for summary judgment (Doc. # 31). Each defendant filed motions to seal exhibits (Docs. # 30, #33) which were granted (Doc. # 34) (the exhibits are identical and filed as S-1) and jointly filed an affidavit of Dr. Philip Richard Saleeby (Doc. # 32). Swindell filed a reply to FEC's motion (Doc. # 35).
Summary of the Issues:
1. Plaintiff asserts the injuries he now alleges are "second injuries" unknown to him until 2002, and thus his claim is not barred by the statute of limitations or the doctrine of res judicata. He further alleges CSX is liable along with former employer FEC under the "joint enterprise doctrine."
2. FEC claims (a) the doctrine of res judicata does apply and bars relitigation of the 2000 lawsuit, (b) that Swindell's present claim does not qualify under the "second injury doctrine" and (c) that the statute of limitations applicable to the case is three years under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Section 56 et seq.
3. CSX claims (a) the FELA three-year statute of limitations applies and bars Swindell's claim and (b) that Swindell was never employed by CSX and does not qualify for the "joint enterprise doctrine." Analysis:
1. Standards for motion to dismiss and summary judgment
To prevail on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant must show beyond all doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41 (1957); Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir. 1988). Courts disfavor motions to dismiss and grant such motions only in rare circumstances. See Gasper v. La. Stadium and Exposition Dist., 577 F.2d 897, 900 (5th Cir. 1978). Further, the court must accept a plaintiff's pleaded facts as true, and all inferences are to be construed in the light most favorable to the plaintiff. See, e.g., Bryand v. Avado Brands, Inc., 187 F.3d 1271, 1274 n. 1 (11th Cir. 1999).
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc) the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
If extraneous material is presented to the court in the motion to dismiss, under Rule 12(b) the "motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ." See, e.g., Campbell v. Upjohn Co., 498 F.Supp. 722, 729 (W.D. Mich. 1980), aff'd, 676 F.2d 1122 (6th Cir. 1982) (involving a statute of limitations issue). "Whenever a judge considers matters outside the pleadings in a Rule 12(b)(6) motion that motion is thereby converted into a Rule 56 Summary Judgment motion." Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002). Based on the facts stated in the motions to dismiss, the Court converted the motions to dismiss into motions for summary judgment in its earlier Order (Doc. # 24). The parties were allowed appropriate time to supplement the record.
Summary judgment is appropriate only when a court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The evidence must be viewed in the light most favorable to the non-moving party. See Samples on Behalf of Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). The burden of establishing the absence of a genuine issue is on the moving party. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Once the burden is met, the non-moving party must "go beyond the pleadings and by his/her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, supra, 477 U.S. at 324. To do so, the plaintiff need only present evidence from which a jury might return a verdict in his favor to defeat a summary judgment motion. Samples, supra, 846 F.2d at 1330.
2. Applicable federal statutes
In order to determine the statute of limitations period, the Court first must determine the applicable statute. The late Honorable Judge Ralph W. Nimmons Jr. ruled in the 2000 case that the three-year statute of limitations in FELA, 45 U.S.C. § 56, applied (2000 case, Doc. # 38). That opinion was affirmed by the Eleventh Circuit. 31 Fed. Appx. 935 (per curiam unpublished opinion attached as Attachment A). In the 2000 case, Swindell alleged jurisdiction under the Safety Appliance Act ("SAA"), 45 U.S.C. §§ 1- 16; the Boiler Inspection Act ("BIA"), 45 U.S.C. §§ 22-34 et seq., and FELA, 45 U.S.C. § 51 et seq. The Eleventh Circuit held that neither the BIA nor the SAA provide for a private right of action because the acts merely supplement FELA ( Swindell v. FEC, see Attachment A at 7). Also see Urie v. Thompson, 337 U.S. 163, 188 (1949). Thus any actions brought under the BIA or SAA are subject to the FELA three-year statutory limitations period. Id. at 168; Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 580-581 (1945).
U.S.Ct. Of App. 11th Cir. Rule 36-2, 28 U.S.C.A.
In the instant case Swindell has alleged jurisdiction based on the "Code of Federal Regulations" ("CFR"), the BIA, the SAA, and the Interstate Commerce Commission ("ICC") rules and regulations (Doc. # 1, paragraph 4). He has not alleged any particular sections, however. Since regulations are based upon statutory authority, they cannot extend any statute of limitations created by Congress.
Because Swindell has specified the BIA and SAA, to the extent either of those statutes provided jurisdiction the action would be subject to the three-year statute of limitations contained in FELA. Swindell v. FEC (Attachment A at 7). However, the Eleventh Circuit stated based upon Supreme Court precedent that those two statutes do not provide a private right of action. The acts make certain actions unlawful, but provide for enforcement by either the Secretary of Transportation (for the Safety Appliance Act, Title 45 U.S.C. § 13) or the United States Attorneys Office (for the Boiler Inspection Act, 45 U.S.C. § 34).
Swindell, for reasons not stated, has indicated specifically that he is not using FELA as a basis for jurisdiction (Docs. # 8, paragraph 1, #13, paragraph 2). Courts typically give a liberal reading to pro se complaints. Because the Boiler Act and Safety Appliance Act supplement FELA ( see Urie v. Thompson, 337 U.S. at 188) the Court will treat the complaint as asserting federal jurisdiction under FELA. Should Plaintiff object to this treatment, there would be no jurisdictional basis for a federal case and the instant action would be dismissed on that basis. Both Defendants have stated Plaintiff filed the suit under FELA. See Doc. 29, paragraph 1 and Doc. 31, paragraph 1.
Swindell may be attempting to not claim FELA because FELA's three-year statute of limitations is clearly established. Plaintiff also may be seeking to avoid the necessity of proving negligence, as the Supreme Court has held the Boiler Inspection Act and Safety Application Acts amend FELA and dispense the requirement of proving violations of the acts are negligent. Urie v. Thompson, 337 U.S. at 189. Plaintiff noted he did not have to show negligence under the two statutes in his reply (Doc. #13, paragraph 2) to FEC's Motion to Dismiss.
Thus the Court finds a three-year statute of limitation is applicable in the case. Since the complaint was filed May 23, 2003, the question — for statute of limitations purposes — is whether Plaintiff's cause of action occurred since May 23, 2000.
3. Statute of Limitations
Statutes of limitation are legislative creations designed to give what the legislature deems a reasonable time for a plaintiff to present his or her claim. United States v. Kubrick, 444 U.S. 111, 117 (1979). At the same time, they protect defendants and the courts from "having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise." Id.
In the case of allegations of work-related injuries, the Supreme Court has held that the limitations period commences when the plaintiff knew or should have known that his injuries were work-related. Kubrick, supra, 444 U.S. at 125; Urie v. Thompson, 337 U.S. at 168-171 (1949). See also Santiago v. Lykes Bros.S.S. Co., Inc., 986 F.2d 423, 426 (11th Cir. 1993).
4. Analysis as to claim against FEC
There is no dispute that Plaintiff has made previous claims against Defendant FEC. Thus the issue before the Court as to the current claim against FEC is whether it is barred by res judicata and/or the statute of limitations. Plaintiff can prevail only if his current claim is one not decided previously by the Court and if the claim arose from an injury realized only within three years prior to the filing of the suit on May 23, 2003.
Plaintiff alleges his claim is of a second injury of which he was unaware prior to its diagnosis — "chronic obstructive pulmonary disease (COPD) or emphysema" — at an examination on October 2, 2002.
Plaintiff is correct that a statute of limitations may begin at the time a separate and distinct illness accrues. The question becomes whether the alleged illness is a separate and distinct illness. An example of such illness in FELA cases is the development of mesothelioma, a cancer which causes fatality in perhaps 10 per cent of the persons who have contracted asbestosis. Norfolk Western Ry. Co. v. Ayers, 538 U.S. 135, 142 (2003).
Plaintiff asserts "An injured party is not required to foresee whatever disease might ensue in the future." (Doc. # 1 at 5). Although that may be true, it does not resolve whether Plaintiff's current complaint is of a separate and distinct illness. In adopting the "discovery" theory of when a cause of action "accrues" the Supreme Court rejected the "actual occurrence" theory because of the difficulty in determining such event. Urie, supra, at 171. The Court also rejected the "damage caused in the last three years" theory because it would limit damages to "breath by breath" measurement. Id. Thus, the primary question before the Court is when Plaintiff knew or should have known that his injuries were work related.
Plaintiff now claims in his complaint that his "chronic obstructive pulmonary disease or emphysema" was diagnosed after an examination on October 2, 2002 (Doc. # 1, paragraph 7). In the 1996 suit in state court Plaintiff claimed that his railroad work "exposed him to toxic substances including asbestos, asbestos containing products, and diesel exhaust fumes" and "caused him to suffer permanent injuries to his lungs" (1996 complaint, paragraph 7). In the 2000 federal complaint in this district, Plaintiff claimed he had suffered "permanent injuries to his lungs and pleura" and "respiratory illness, Asbestosis (sic) and obstructive pulmonary disease requiring professional treatment, care and continued medication" as well as emotional distress. He further claimed he had spent $27,525 for treatment. (2000 complaint, pp. 1, 5 and 7).
For purposes of this Order, the Court will refer to medical records contained in a sealed document (Doc. # 33, sealed exhibits A-L) and order unsealed only the portions to which the Court refers and to which the parties referred in their motions for summary judgment. The Court finds no reason to unseal the entire document, which contains personal identifiers as well as records of treatment for other conditions not in dispute in the case.
The medical records show that on January 15, 1998, the Plaintiff was examined by Dr. Bernard R. Schrager, a cardiologist in Miami, Florida. Dr. Schrager testified at a deposition that Plaintiff was referred to him for examination by Dr. Dennis Korpman of the Ocean Reef Medical Center in North Key Largo, Fl. (Doc. #33, Exh. F at 15). In providing the results of the January 1998 examination, Dr. Schrager wrote that "As you know, he is a 75-year-old gentleman with a history of atypical chest pain, shortness of breath and chronic obstructive pulmonary disease." (Doc. #33, Exh. B) Dr. Schrager said he had made similiar notes of asbestosis and COPD after visits on December 21, 1998 (Doc. #33, Exh. C), May 6, 1999 (Doc. #33, Exh. D), December 3, 2001 (Doc. #33, Exh. E). Dr. Schrager testified that his practice is to obtain the medical history from the patient rather than from the referring physician (Doc. #33, Exh. F at 7).
The medical records show an emergency room visit on March 12, 1996, which the clinical impression was listed as "COPD/pneumonia/atrial fib." (Doc. #33, Exh. G). Dr. Korpman's notes of December 18, 1998, also contain a reference to "mild COPD by hx" (Doc. #33, Exh. 1). Three days later, a radiologist took a chest x-ray and listed a diagnosis of COPD (doc. #33, Exh. J). In December 20, 1999, Dr. Korpman's notes show a past medical history of COPD and Asbestosis. Further, the medical notes of Dr. Korpman for April 24, 2000, state that the Plaintiff wants "renewal of his Atrovent for COPD." (Doc. #33, Exh. H).
"Hx" is a typical abbreviation used by medical professionals to denote the word history.
In addition, FEC has produced an affidavit that emphysema is a chronic obstructive pulmonary disease. (See affidavit of Dr. Phillip Saleeby, M.D., Doc. # 32, attachment, paragraph 6). In Samson v. R.J. Reynolds Tobacco Co., No. 96-414-CIV-T-24(B), 1997 WL 373475 (M.D.Fla. June 2, 1997), the court found emphysema was a COPD.
Plaintiff, although he now claims he has a "newly diagnosed COPD", nonetheless claimed "permanent injuries to his lungs" and continuing disability in both 1996 and 2000, and "obstructive pulmonary disease" which he would "continue to incur" in his pro se February 29, 2000, federal complaint. The Court sees no distinction between continuing injury and chronic injury. Thus, two regular treating physicians, one emergency room physician and one radiologist all diagnosed Plaintiff with "COPD" between 1998 and the end of April 2000. At least one of the treating physicians provided a prescription and renewal for Atrovent to treat the condition prior to the three-year statute of limitations period. Those diagnoses are conclusive on the question of whether the condition Plaintiff now alleges is a separate and distinct illness.
The document presented to show this (Doc. # 35, Exhibit 3) is unidentified as it appears to be page 3 of a doctor's report, and is not sworn, thus is not properly before the Court on a summary judgment motion.
Whether Plaintiff was specifically told of the diagnosis at the time is not the significant factor. He was clearly aware of believed lung injury, aware of symptoms and getting treatment for such injury for several years prior to the expiration of the statute of limitations period. As noted in the District Court opinion in 2001, the statute of limitations commences when the injury is noticed and before it reaches maximum severity, not when it is later diagnosed. Swindell 2000 case, supra, at 14, citing Fries v. Chicago Northwestern Trans. Co. 909 F.2d 1092, 1095 (7th Cir. 1990). The Supreme Court held in United States v. Kubrick, 444 U.S. 111 (1979), that a plaintiff must act diligently to investigate the injury and any suspect cause.
In one sense, Plaintiff's claim is similar to that claimed by the plaintiff in White v. Mercury Marine, Division of Brunswick, Inc., 129 F.3d 1428, 1433 (11th Cir. 1997). In that case the plaintiff had hearing loss caused by engine noise from the boat he operated. A doctor first advised him that the noise was causing hearing loss in 1984. Another doctor gave similar advice in 1988. In 1990, he filed a worker's compensation claim for hearing loss. He did not file suit against the engine manufacturer until 1994. Facing a three-year statute of limitations, he argued that a "modified continuing tort theory" should be used which would allow him to recover for the part of the injury that occurred within the last three years prior to filing suit. The Eleventh Circuit has held that a "modified continuing tort theory" is essentially the same as the "breath by breath" theory that was rejected by the Supreme Court in Urie. Mercury Marine, supra, 129 F.3d at 1433. The court further said the discovery rule must be applied uniformly. In some cases, the rule helps plaintiffs who are unaware of an injury. The rule simply requires plaintiffs who have discovered their injury to file suit within the prescribed period. Id. See also Albert v. Maine Cent. R. Co., 905 F.2d 541 (1st Cir. 1990).
Although Swindell might benefit from a "modified continuing tort theory," that theory is not the law in FELA cases. Swindell has shown no basis for treating COPD as a different and distinct illness from those he has claimed previously. Further, to the extent he claims it, the medical records belie his claim. He previously claimed he had spent $27,525 on treatment. His own previous complaints show he knew the cause of his pulmonary condition and that he believed it was because of his railroad work. The Court does not find that Plaintiff's alleged ailments are "second injuries" or "second diseases" that would trigger a new statute of limitations. Plaintiff is bound by his admissions in the 2000 complaint of obstructive pulmonary disease, confirmed by the medical records that show doctors were treating that condition. Plaintiff's claim that another doctor first told of the diagnosis in 2002 is not sufficient to show there is a genuine issue for trial.
Since the injury is the same — in effect — as alleged in 2000, the doctrine of res judicata applies as to Defendant FEC. "Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from re-litigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94 (1980). The Eleventh Circuit has defined a four-step analysis to determine if res judicata will bar a subsequent action. Davila v. Delta Air Lines, 326 F.3d 1183, 1187 (11th Cir. 2003), citing Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000). Applying those steps,
(1) the prior decision was rendered by a court of competent jurisdiction. Title 28, U.S.C. Section 1331, provides original jurisdiction for all civil actions arising under the laws of the United States. The 2001 decision by Judge Nimmons qualifies.
(2) there was a final judgment on the merits. Rule 41(b), Fed.R.Civ.P., provides that unless otherwise specified by the court, "a dismissal under this subdivision and any dismissal not provided for in this rule. . . . operates as a adjudication upon the merits." Pursuant to Judge Nimmons' Order, the Clerk of Court issued a judgment for FEC. A ruling based on the statute of limitations is a judgment on the merits. Mathis v. Laird, 457 F.2d 926, 927 (5th Cir. 1972).
(3) the parties were the same in both suits. In both suits, Plaintiff Edward Leroy Swindell sued Defendant Florida East Coast Railway Company. In this suit, he also sued CSX Transportation, Inc., however, res judicata is not being applied to the suit against CSX.
(4) the prior and present causes of action are the same. Both suits are based on injury to his lungs that Plaintiff allegedly received while working for FEC from 1939 to 1952 through inhalation of various fumes and debris and handling of toxic substances. Both suits relate to pulmonary disease. Although Plaintiff has worded the injuries slightly differently, as found above both actions relate to the same injury.
Thus, res judicata applies and Defendant FEC is entitled to summary judgment on that basis. In addition, FEC also is entitled to summary judgment on the basis that the statute of limitations has expired.
5. Claim against CSX Transportation
There was no prior suit against CSX Transportation, thus res judicata does not apply. However, the statute of limitations analysis does apply in this case. Regardless of which company allegedly caused the injury of which Plaintiff complains, he has known of the injury and the resulting illness for more than three years before he filed the instant lawsuit. Thus the statute of limitations expired prior to his filing of the lawsuit. CSX is entitled to summary judgment on that basis.
CSX also argues that Plaintiff was not an employee of CSX or its predecessor Atlantic Coast Line, and that Plaintiff has not shown an employee relationship required to be able to sue under FELA.
Neither side disputes that FELA creates liability for negligently causing injury or death to a person "while he is employed" by the railroad. 45 U.S.C. § 51. The Supreme Court has indicated there are three ways under common law that a person can establish his "employment" or a master-servant relationship even though nominally employed by another. Kelley v. Southern Pac. Co., 419 U.S. 318, 324 (1974). First, he could be a borrowed servant at the time of his injury. Second, he could be deemed to be acting for two masters simultaneously. Third, he could be a subservant of a company that was in turn a servant of the railroad. Id.
Swindell claims the two railroads operated service between Miami and Washington, D.C., on a joint basis and that he traveled on and repaired locomotives for both railroads, and was supervised by engineers and conductors of whichever company owned the locomotives he was on at the time. He attached to his response (and motion for summary judgment) a copy of a photograph which appears to show a crew of seven persons standing or leaning against an ACL locomotive in 1943.
CSXT denies that Plaintiff's allegations show sufficient connection to ACL to qualify as an "employee" under any of the three categories detailed in Kelley.
Neither side has presented sworn affidavits or documents further enlightening the historical facts. In view of the lack of sworn presentation, the Court cannot find there is no genuine issue of fact on the question. However, in view of the Court's finding on the statute of limitation issue, there is no need for the Court to rule on the employment issue.
Conclusion
Upon consideration of the foregoing, it is hereby ORDERED:
1. FEC's Motion for Summary Judgment (Doc. # 31) is GRANTED.
2. CSXT's Motion for Summary Judgment (Doc. # 29) is GRANTED.
3. Plaintiffs Motions for Summary Judgment (Doc. #8, and #13) are DENIED.
4. The Clerk is DIRECTED to enter judgment for Defendants FEC and CSXT, terminate all other pending motions as MOOT and close the case.