Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC388310, John P. Shook, Judge.
C. Marshall Friedman and Paul Andrew Burnett for Plaintiff and Appellant.
Sims Law Firm, Ralph F. Popelar, Jr. and Selim Mounedji for Defendant and Respondent.
ALDRICH, J.
I.
INTRODUCTION
Plaintiff and appellant Everlyn Thomas (Thomas) appeals from the summary judgment entered in favor of her ex-employer, defendant and respondent National Railroad Passenger Corp., commonly referred to as Amtrak (Amtrak). We hold that there are triable issues of fact as to whether the three-year statute of limitations in Thomas’s personal injury lawsuit had expired before Thomas filed her lawsuit. Therefore, we reverse the summary judgment entered in favor of Amtrak.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts.
Following the usual standard of review from a summary judgment, we accept those facts undisputed by the parties and construe all conflicting facts in the light most favorable to Thomas, the party who opposed the motion. (Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1048; Baudino v. SCI California Funeral Services, Inc. (2008) 169 Cal.App.4th 773, 781.)
In September 2004, Thomas was working for Amtrak. In her position as a coach cleaner, Thomas was required to vacuum and shampoo carpets, clean windows and appliances, and remove, clean and replace large heavy mats. Her duties required lifting.
In September, October, or November 2004, Thomas felt pain in her groin while shampooing a train, lifting machines and hoses, and going up and down stairs. Thomas informed Milford Leonard, a general foreman, that she was hurting in her left groin area. He told her to go to the doctor. Thomas also felt the pain at other times during the day when she was not lifting anything. Sometimes the pain would ache more at night when she would lie down. Thomas did not remember whether she first felt the pain when she was at home or at work.
Thomas received medical attention for her left groin pain more than once in the fall of 2004. Thomas saw Dr. C. T. Hung, a gastrointestinal specialist, for abdominal pain on September 10, 2004. He opined that Thomas’s lower abdominal pain could have been the result of a recurrence of colon polyups she had experienced two years earlier. Dr. Hung performed a colonoscopy with polypectomy on Thomas. Dr. Hung did not tell Thomas that her pain was work related.
In the fall of 2004, Thomas saw her physician, Dr. James Brown, because she was experiencing pain. A pelvic ultra sound revealed multiple uterine fibroids, requiring treatment. Dr. Brown referred Thomas to Darryl Rodrigues, M.D., an obstetrician/gynecologist. Dr. Rodrigues told Thomas that her pain was caused by fibroid tumors, which was not work related.
Thomas last worked for compensation on approximately January 5, 2005, when she went on a medical leave of absence to have surgery for fibroid tumors.
Dr. Rodrigues performed a hysterectomy on Thomas on January 12, 2005 to alleviate her pain. Following surgery, Thomas reported to Dr. Rodrigues that she had no pelvic pain from February 2005 through April 8, 2005. Dr. Rodrigues examined Thomas on April 8, 2005. The examination did not reveal a hernia.
Sometime after her hysterectomy, Thomas had pain that, according to Dr. Brown, appeared to be gastrointestinal in nature. Dr. Brown referred Thomas to Dr. Hung.
In June 2005, Thomas’s pain became more frequent and severe.
In August 2005, Dr. Brown first thought that Thomas’s pain could be work related, so he referred Thomas to Scot Goldman, M.D., for a qualified medical evaluation. Dr. Brown also thought Thomas’s pain could be a hernia, so he referred her to Gilbert R. Turner, M.D., a surgeon.
On August 30, 2005, Dr. Turner began treating Thomas. He noted that Thomas had a left-sided hernia, but not a right-sided hernia. Dr. Turner performed a mesh repair for her left-sided hernia on September 13, 2005. This surgery relieved pain for a period of time, but a burning pain developed in the left groin that was exacerbated by strenuous activities.
According to Dr. Turner, hernias can continue to develop and manifest themselves after the activity or activities that led to their initial development have ceased or decreased. Dr. Turner believed that Thomas’s job caused or contributed to her hernia. On August 30, 2005, Dr. Turner completed a statement of disability for Thomas based upon her hernia. Dr. Turner opined that Thomas’s years as a coach cleaner caused or contributed to the development of the hernia.
According to Thomas, she did not think her injury was work related until August 2005 when Dr. Turner began talking with her about what she had done for a living.
On March 10, 2006, Dr. Turner operated on Thomas again. He explored the left groin and excised a wound neuroma involving a branch of the ilioinguinal nerve.
In June 2007, Dr. Turner examined Thomas and concluded that Thomas seemed to be developing an early right inguinal hernia. Dr. Turner opined that Thomas’s years as a coach cleaner requiring heavy lifting, carrying, pushing and pulling, caused or contributed to the development of the hernia.
B. The complaint.
On April 2, 2008, Thomas filed a lawsuit in the Los Angeles Superior Court against Amtrak pursuant to the Federal Employers’ Liability Act (FELA, 45 U.S.C. § 51 et seq.) alleging she had been employed by Amtrak as a coach cleaner. In count I, Thomas alleged that as a result of her job duties and the negligence of “Amtrak, [she] sustained severe, painful, progressive, permanent, and disabling injuries... including a left-sided hernia which was diagnosed on or about August 30, 2005 and of which she did not, could not, and should not have known until that time.” In count II, Thomas alleged a second left-sided hernia caused by her duties which was diagnosed around December 28, 2005, and “she did not, could not, and should not have known until that time.”
C. Amtrak’s summary judgment motion.
Amtrak filed a motion for summary judgment. Amtrak argued that because Thomas first experienced pain in her groin in the fall of 2004, the FELA three year statute of limitations had expired before Thomas filed her lawsuit. (45 U.S.C. § 56.)
On February 17, 2009, the trial court granted Amtrak’s motion. The court based its decision on Thomas’s deposition testimony in which she testified that she felt pain in her groin area in the fall of 2004 while working and that her job required lifting. The trial court sustained some, but not all of Amtrak’s objections to the declarations that had been submitted by Thomas. The trial court overruled Amtrak’s objections to Thomas’s deposition testimony. It sustained Thomas’s objections to two excerpts of her own deposition.
Thereafter, Thomas filed a motion for reconsideration, or in the alternative, a motion for new trial. She argued in part, that the trial court’s order was internally inconsistent because it was based on a section of her deposition that was not admissible in light of the court’s evidentiary rulings. Thomas also argued that the order was erroneously based on the proposition that the pain she experienced in the fall of 2004 was from a hernia, and not a separate and distinct condition unrelated to her work. She further argued that even if the pain she suffered in the fall of 2004 was from a hernia, she satisfied her obligation under the FELA to investigate its cause, thereby extending the start of the statutory limitations period.
The trial court denied Thomas’s motion.
The trial court entered a summary judgment in favor of Amtrak. Thomas appealed. We reverse.
III.
DISCUSSION
A. The FELA and the standard of review.
“In California, injured employees are generally entitled to workers’ compensation benefits, irrespective of whether the employer was at fault. (Lab. Code, § 3200 et seq.) But those benefits are not available to railroad employees who suffer on-the-job injuries; their right of recovery is governed by the FELA, which permits recovery only if the employer acted negligently. (45 U.S.C. § 51.) [¶] The FELA, enacted by Congress in 1908, is ‘founded on common-law concepts of negligence and injury’ [citation] to ‘provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer or their fellow employees’ [citation].” (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 6.)
“The FELA has been uniformly found to comprise ‘the exclusive remedy for injured railroad employees.’ [Citations.]” (Monarch v. Southern Pacific Transportation Co. (1999) 70 Cal.App.4th 1197, 1205.) “[T]he exclusive remedy provided by FELA preempts state law in actions by railroad employees predicated upon the negligence of their employers is well settled. [Citations.] ‘[I]f the Federal Employers’ Liability Act applies to an employee’s negligence claim, the act supersedes a state’s common and statutory law, even though the employee seeks relief in a state court.’ [Citation.]” (Id. at p. 1209.) The FELA also is the exclusive remedy for intentional torts. (Id. at pp. 1209-1211.)
The parties agree that Thomas could bring her claim for personal injuries in the state court. “FELA... includes the provision that ‘[t]he jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several States.’ (45 U.S.C. § 56, italics added.)” (Donaldson v. National Marine, Inc. (2005) 35 Cal.4th 503, 508-509.) “When, as here, a FELA action is brought in state court, state law governs procedural questions, while federal law governs substantive issues. [Citation.] State procedure does not apply, however, if it results in the denial of a federal right granted by Congress. [Citations.]” (Lund v. San Joaquin Valley Railroad, supra, 31 Cal.4th at p. 6.)
“The FELA provides that, ‘No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.’ (45 U.S.C. § 56.) Compliance with the three-year statute of limitations is a condition precedent for recovery in a FELA action. [Citations.]” (Monarch v. Southern Pacific Transportation Co., supra, 70 Cal.App.4th at p. 1203.)
“Although ‘accrual’ of a cause of action, for the purposes of a statute of limitations, generally takes place ‘when there has been a violation of legally protected interests, ’ or ‘when the tortious event is committed, ’ some injuries and causes are so latent as to elude discovery at the time of the injury-causing event. See Hicks v. Hines Inc., 826 F.2d 1543, 1544 (6th Cir. 1987) (citing the Restatement (Second) of Torts § 899 cmts. c & e (1977)). Thus, in order to determine when an injury accrues under the FELA’s statute of limitations, one of two rules applies: the time-of-event rule, or the discovery rule. [Citation.]” (Fonseca v. Consolidated Rail Corp. (6th Cir. 2001) 246 F.3d 585, 588.)
“Under the time-of-event rule, a cause of action is considered to have accrued the moment a tortious act occurs ‘[i]f greater than de minimus harm is discernable at the time of the tortious event.’ [Citation.] The time-of-event rule applies to situations in which a traumatic event occurs, resulting in a noticeable injury, even if the full manifestation of the harm remains latent. [Citation.]” (Fonseca v. Consolidated Rail Corp., supra, 246 F.3d at p. 588.)
“In contrast to the time-of-event rule, the discovery rule is applied when no significant injury is discernable at the time of the tortious event, or if the cause of an injury is not apparent. [Citation.] Under the discovery rule, a cause of action is deemed to have accrued when ‘the plaintiff reasonably should have discovered both cause and injury.’ [Citation.] A prototypical discovery-rule case is one in which an occupational disease remains dormant long after a plaintiff is exposed to the causes of the injury. [Citation.]” (Fonseca v. Consolidated Rail Corp., supra, 246 F.3d at p. 588; accord, Monarch v. Southern Pacific Transportation Co., supra, 70 Cal.App.4th at p. 1203.)
“Under the discovery rule, the test is an objective inquiry into whether the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury and cause. [Citations.] Constructive rather than actual knowledge of the fact of causation triggers a duty to investigate the possible causes of injury. [Citations.] Thus, in accordance with the objective test, ‘definite knowledge’ that the injury is work related is not necessary in order for the cause of action to accrue. [Citations.] Once the plaintiff believes or suspects that the ‘potential cause of his injury’ is work related, an affirmative duty to investigate is imposed. [Citations.] ‘A plaintiff need not be sure which cause is predominant, as long as [he] knows or has reason to know of a potential cause.’ [Citations.]” (Monarch v. Southern Pacific Transportation Co., supra, 70 Cal.App.4th at pp. 1203-1204, citing among others, FELA cases, Fries v. Chicago & Northwestern Transp. Co. (7th Cir. 1990) 909 F.2d 1092, 1096, Dubose v. Kansas City Southern Ry. Co. (5th Cir. 1984) 729 F.2d 1026, 1031, Frasure v. Union Pacific R. Co., supra, 782 F.Supp. at p. 480, & Tolston v. National R.R. Passenger Corp. (7th Cir. 1996) 102 F.3d 863, 865.) Said another way, it is proper to ask if the injured employee “knew ‘or should... have known that his [or her injury] was potentially caused by his [or her] work....’ ” (Monarch v. Southern Pacific Transportation Co., supra, at p. 1203.)
The statute of limitations will begin to run when a physician connects a plaintiff’s condition to his or her work and makes a diagnosis, unless it is shown that the plaintiff should have known at an earlier time of the connection. (Young v. Clinchfield Railroad Company (4th Cir. 1961) 288 F.2d 499, 503; Frasure v. Union Pacific R. Co. (C.D.Cal. 1991)782 F.Supp. 477, 480.)
Unless the facts can lead to but one result, constructive knowledge is a question of fact. (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 477.)
“A motion for summary judgment must be decided on admissible evidence[]” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119), and thus cannot be based on excluded or inadmissible evidence. As noted above, the trial court sustained a number of objections. Neither party has appealed from these objections. Thus, we may not consider the evidence to which the trial court sustained objections.
Our review of a ruling granting summary judgment is de novo. (Nielsen v. Beck, supra, 157 Cal.App.4th at p. 1048; Baudino v. SCI California Funeral Services, Inc., supra, 169 Cal.App.4th at p. 781.) We must determine if there are triable issues of fact as to whether Thomas could prove that the three-year statute of limitations had not expired prior to the filing of her lawsuit. (Code Civ. Proc., § 437c, subd. (c).)
Here, there is evidence that in the fall of 2004, Thomas experienced pain when she was at work, lifting machines and hoses. However, when she was not at work, Thomas also experienced pain in situations, such as when she would lie down at night. Thomas could not remember when she first felt the pain. She reasonably investigated the cause of her pain by seeing a number of physicians. In 2004, Dr. Hung performed a colonoscopy and opined that Thomas’s pain was due to a recurrence of polyups. Dr. Brown’s 2004 examination and testing revealed uterine fibroids, which were removed by Dr. Rodrigues when he performed a hysterectomy in January 2005. Dr. Rodrigues told Thomas her pain was caused by the fibroid tumors. From February 2005 through April 2005, Thomas was pain free, suggesting the medical procedures corrected the cause of Thomas’s pain and thus, had been unrelated to work. An April 2005 examination revealed Thomas did not have a hernia. In August 2005, Dr. Brown and then Dr. Turner, treated Thomas for a left-sided hernia, which both doctors opined could have been caused by Thomas’s work at Amtrak.
From these facts, a reasonable trier of fact could conclude that there was no single moment pointing to a single tortuous event in 2004 that would have put Thomas on notice that her groin injury was work related. Rather, while Thomas experienced pain at work, she also experienced pain when she was not working. And, after Thomas had two different medical procedures in 2004 and January 2005, her pain ceased, from which it could be inferred that her 2004 pain was not related to a work injury. Thus, the time-of-the-event rule would not be utilized to ascertain when Thomas’s cause of action would have accrued. From these same facts, a reasonable trier of fact could conclude that, by applying the discovery rule, Thomas acted reasonably by seeing a number of different medical specialists to discover for the first time in August of 2005 that her left-sided hernia was caused, in whole or in part, by her work with Amtrak. (Compare with, Tolston v. National R.R. Passenger Corp. (7th Cir. 1996) 102 F.3d 863 [plaintiff fails to investigate cause of knee problems]; Matson v. Burlington Northern Santa Fe R.R. (10th Cir. 2001) 240 F.3d 1233 [plaintiff knew there was some causal relation between his employment and his back injury, but waits more than three years to bring suit].)
To argue that the statute of limitations began to run in the fall of 2004, Amtrak points to two excerpts in Thomas’s deposition. However, we may not consider these excerpts found on pages 11 to 12 and 29 to 30 of Thomas’s deposition because the trial court sustained objections to them, and Amtrak has not appealed from these evidentiary rulings.
Amtrak also points to Thomas’s deposition testimony in which she indicated that she first experienced pain while at work, when she was shampooing the train and lifting machines and hoses. However, this is not the only testimony in the record on this point. For example, Thomas answered “[n]o” when she was asked if she remembered “the first time [she] felt that left-sided pain?” She responded “right, ” when asked at her deposition, “Because you don’t remember whether you felt [the pain] first at home, work, at night, during the day?” Further, when Thomas acknowledged on page 12 of her deposition that she felt pain in the fall of 2004 at work from lifting, she did not testify that she initially felt the pain at work. At the least, these conflicts in the evidence raises a triable issue of fact as to when Thomas first experienced pain and whether or not Thomas would have had the essential facts of the cause of her injuries.
Because there are triable issues of fact with regard to when the statute of limitations began to run, as a matter of law, the trial court erred in granting summary judgment to Amtrak.
IV.
DISPOSITION
The summary judgment is reversed. Costs on appeal are awarded to Everlyn Thomas.
We concur: KLEIN, P. J.KITCHING, J.