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Boggs v. CSX Transportation, Inc.

Court of Appeals of Kentucky

January 5, 2018

LARRY M. BOGGS APPELLANT
v.
CSX TRANSPORTATION, INC. APPELLEE

         APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE CHARLES L. CUNNINGHAM JR., JUDGE ACTION NO. 09-CI-000800

          BRIEF FOR APPELLANT: Alva A. Hollon, Jr. Jacksonville, Florida.

          BRIEF FOR APPELLEE: Linsey West Lexington, Kentucky.

          BEFORE: COMBS, J. LAMBERT AND NICKELL, JUDGES.

          OPINION

          COMBS, JUDGE.

         Larry 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.

         In February 1974, Boggs began working with CSX as a brakeman. In April 1977, he was promoted to locomotive engineer.

         On 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.

         In its 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 Boggs.

         On 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.

         During 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.

         After 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.

         The 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 ...

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