Railroader Discovers The "Discovery Rule," The Hard Way

Steven P. Garmisa, Attorney ** PROVIDING RESULTS YOU NEED AND DESERVE! **

There's an important Rule of Law that should be memorized by every Railroader.

If you want to protect your legal rights, the rule to remember is:

IF YOU SNOOZE, YOU LOSE!

In a case from New York, for example, a Railroader's lawsuit was tossed out for being filed too late - even though the Railroader says he didn't know he was injured because of the Railroad's negligence until shortly before he filed the lawsuit!

The tough question was: When did the clock start running on the deadline for filing a lawsuit against the Railroad?

There's a three-year deadline for Injured Railroaders who want to sue their employer under the FELA - Federal Employers' Liability Act. The three-year deadline is called a "statute of limitations."

This deadline can get tricky, because sometimes it's tough figuring out when the clock started running on the three-year "statute of limitations."

With ordinary accidents (like a fall that causes a broken leg), there's no problem figuring out when the clock starts running, and when the three-year deadline expires. You break your leg in a work accident, and the clock starts running. But what if you were exposed on the job to some hazardous substance, and the exposure doesn't result in a disease until ten, twenty or thirty years later?

Can the Railroad get your lawsuit tossed out of Court for missing the three-year deadline, when you didn't even develop a disease until ten or more years after exposure to a hazardous substance?

The United States Supreme Court helped Railroaders in this situation by applying what is called the Discovery Rule. Basically, the Discovery Rule says the clock doesn't start running on the three-year deadline until you discover that you have been injured, and you discover what caused the injury. In other words, if you are exposed to a hazardous substance at work, the clock on the three-year deadline usually doesn't start running until you get sick and figure out what caused the sickness.

While the Discovery Rule provides greatly needed help for Railroaders who are exposed to hazardous substances at work, this coin has a flip side. The flip side of the Discovery Rule is that Railroaders have an obligation to investigate whether their sickness was caused by on-the-job exposure to hazardous substances.

Judges require Railroaders who get sick to investigate what caused the sickness. Having given Railroaders a big break with the Discovery Rule, Judges decided Railroaders who start getting sick have an obligation to investigate whether the sickness was caused by on-the-job exposure to hazardous substances.

With the Modified Discovery Rule, the clock on the three-year deadline for filing a lawsuit against a Railroad starts running when a Reasonable Person, conducting a Reasonable Investigation, would have discovered that the Railroader's sickness was caused by on-the-job exposure to hazardous substances.

In the case from New York, the Railroader filed a lawsuit in 2000, saying he developed bronchial asthma because of years of on-the-job exposure to hazardous substances. And he says it wasn't until a 1998 asthma attack that he was told by a doctor that his sickness was caused by exposure to hazardous chemicals at work.

So far, so good, since the lawsuit was filed within three years of when the Railroader says he discovered the cause of his asthma. But the Railroad put this fellow under the microscope, and found out he had been hospitalized with an asthma attack in 1985.

The hospital records from 1985 showed that the Railroader was questioned about whether he was exposed to dangerous substances at work. And when the Railroad took his deposition, the Railroader admitted he had been worried, as far back as the 1970s, that he was being exposed to dangerous substances at work.

The Judge decided the Railroader had a duty, starting in 1985, to investigate whether his asthma was caused by on-the-job exposure to hazardous substances. And the Judge thought a Reasonable Investigation would have revealed - back in 1985 - that on-the-job exposure to hazardous substances caused the asthma.

So the Judge ruled that the clock on the three-year deadline started running in 1985. This meant the deadline for the Railroader's lawsuit was 1988. Since the lawsuit wasn't filed until 2002, the Judge tossed the Railroader out of Court.

The important lesson is that with the Discovery Rule:

IF YOU SNOOZE, YOU LOSE!

If you or a loved one have suffered a work injury or wrongful death on the railroad, call an experienced FELA lawyer / railroad injury attorney at Hoey & Farina, P.C. at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.

HOEY & FARINA, P.C.

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Chicago, Illinois 60605
Main: (312) 939-1212
Toll Free: (888) 425-1212
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Email: info@hoeyfarina.com
 
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