LARRY M. BOGGS APPELLANT
CSX TRANSPORTATION, INC. APPELLEE
FROM JEFFERSON CIRCUIT COURT HONORABLE CHARLES L. CUNNINGHAM
JR., JUDGE ACTION NO. 09-CI-000800
FOR APPELLANT: Alva A. Hollon, Jr. Jacksonville, Florida.
FOR APPELLEE: Linsey West Lexington, Kentucky.
BEFORE: COMBS, J. LAMBERT AND NICKELL, JUDGES.
M. Boggs appeals from the judgment of the Jefferson Circuit
Court entered upon a jury verdict in favor of CSX
Transportation, Inc., (CSX). Boggs presents numerous issues
for our review. However, our disposition of the appeal turns
upon our resolution of a single issue: whether the trial
court erred in its instructions to the jury panel. After our
review, we reverse and remand for further proceedings.
February 1974, Boggs began working with CSX as a brakeman. In
April 1977, he was promoted to locomotive engineer.
January 30, 2009, Boggs filed a civil complaint against CSX
pursuant to the Federal Employers' Liability Act (FELA),
45 U.S.C. §§ 51 et seq. Boggs claimed that
during his employment, he was injured by excessive and
harmful vibrations of the engine cab and its defective seats
resulting in cumulative trauma, degenerative osteoarthritis,
and disc disease in his back, neck, and shoulders. He further
alleged that he suffered repetitive trauma injuries to his
upper extremities attributable to overuse and improper
placement of engine hand controls.
answer to the complaint, CSX contended that it had provided
Boggs with a reasonably safe workplace and denied that it had
been negligent in any way. It also asserted that Boggs's
cumulative trauma claims were barred by the statute of
limitations. Written discovery was exchanged, and CSX deposed
February 28, 2014, CSX filed a motion for summary judgment.
CSX argued that -- more than three years before the FELA
action was filed --Boggs had suspected (or "certainly
should have considered the
possibility") that his work with the railroad was the
cause of his alleged injuries. In support of its position,
CSX relied upon notes supplied by Boggs's physical
therapist indicating that "he [Boggs] wonders how much
of his conditions [sic] is from repetitive
activities that he has done over the last 30 years."
This note is dated December 9, 2005, and it appears to link
the repetitive activities that Boggs had undertaken
"over the last 30 years" to his report of periodic
numbness in both hands. CSX also contended that when Boggs
met with Dr. William Brooks, a neurosurgeon, on February 2,
2006, Boggs unequivocally attributed his condition to his
activities at work. CSX contended that the action was
time-barred since it had not been commenced within three
years from the day the cause of action (if any existed) had
accrued. CSX argued that it was entitled to judgment as a
matter of law.
his deposition Boggs indicated that he attributed his aches
and pains to the ordinary effects of aging and year after
year of manual labor -- until January 22, 2008, when Dr.
David Jackson told him that given the accumulated effects of
his job, he could no longer do the work required at the
railroad. (To reiterate, Boggs filed his complaint on January
30, 2009 - approximately eight days within one year of this
medical pronouncement.) Additionally, Boggs testified that
Dr. Brooks specifically rejected his
suggestion (gleaned from reading some literature) that
excessive vibration from his work in the locomotive might be
the cause of his back, neck, and shoulder injuries. In fact,
Dr. Brooks never indicated to Boggs or others that a causal
connection could be drawn between locomotive engine vibration
and Boggs's degenerative disc disease.
evaluating the evidence, the trial court concluded that there
existed a genuine issue of material fact as to when the
limitations period began to run under the discovery rule and
denied the railroad's motion for summary judgment. The
court determined that Boggs's conditions could be
explained by ordinary aging and other causes and that the
evidence was sufficiently conflicting as to present a jury
question concerning when the FELA action accrued.
trial court bifurcated the proceedings. In a trial conducted
on July 18 - 20, 2016, the jury was asked to determine a
single issue: whether Boggs had filed his claims with respect
to the injury to his back, neck, and shoulders within the
period of limitations. Once the jury heard the evidence
related to the date of accrual, the court instructed the jury
to decide whether Boggs had filed his action
no more than three years after he knew, or, through the
exercise of reasonable diligence, should have known, both
that he had suffered an injury to his shoulders, neck, and
upper back, and that his work on the railroad was ...