The Kansas Supreme Court recently reversed the Kansas Court of Appeals, and re-instated a three-plus million dollar jury verdict in favor of an injured BNSF Railway worker. It did so after finding that it was for the jury — not the Judge — to determine whether the worker filed his suit within three years of when he “kn[ew] or ha[d] reason to know of the existence and cause of [his] injury.” Dawson v. BNSF Railway Co., 437 P.3d 936 (KS 2019).
Under the FELA, limitations is not an affirmative defense. Rather, it is part of the plaintiff’s case to “allege and prove that the action was filed within three years from the day the cause of action accrued. In “cumulative injury” cases, involving injuries that cannot be discovered immediately, or have an indefinite onset, and progress over many years unnoticed, courts usually apply the discovery rule: limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action.
BNSF pointed to the fact that Mr. Dawson had experienced back pain for many years prior to filing suit; argued that he at least should have known that it was work-related; and pointed out that once he decided to file suit, he was able to find doctors who would testify that it was work related. Mr. Dawson, for his part, cited a number of other things that, according to his doctors, might have been the cause of his back pain, including five non-work back injuries.
The Court of Appeals held that BNSF was entitled to judgment as a matter of law. However, the Kansas Supreme Court, finding that reasonable minds could differ, reinstated the jury verdict. The opinion provides the FELA Bar with an excellent compendium of relevant cases.
Authored by: Robert ("Bob") M. Frey