COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00250-CV
BNSF RAILWAY COMPANY APPELLANT
V.
JAMES E. PHILLIPS APPELLEE
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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
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DISSENTING OPINION
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The evidence is legally insufficient to support the jury’s finding that
Phillips’s claims did not accrue before April 13, 2004, and to the extent that
Phillips’s experts relied upon epidemiological studies to prove that his exposure
to vibratory forces from rough riding locomotives caused his injuries, they made
no effort to demonstrate that the studies met the mandatory requirements for
scientific reliability established in Merrell Dow Pharmaceuticals, Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997), and reinforced in Merck & Co. v. Garza, 347
S.W.3d 256 (Tex. 2011). I therefore dissent.
A claim under the Federal Employers’ Liability Act (FELA) “accrues when a
plaintiff knows or should know that his injury is work related, that is, when a
plaintiff is aware of the critical facts concerning his injury and its causation.”
Bealer v. Mo. Pac. R.R. Co., 951 F.2d 38, 39 (5th Cir. 1991). The jury charge’s
sixth question stated as follows:
Concerning Plaintiff James E. Phillips’ claims in this case, did
he know, or should he have known, before April 13, 2004 of both the
alleged injury and its cause?
Plaintiff James E. Phillips has the burden of proof to show that
he did not know before April 13, 2004 of both the alleged injury and
its cause. [Emphasis added.]
Phillips did not testify that he did not know, or in the exercise of reasonable
diligence should not have known, before April 13, 2004, that his injuries were
work related. And although counsel asked Phillips about “the very first time that
[he] understood that [his] spinal condition was in fact caused by [his] work,” and
Phillips responded, “prior to -- to 2005, possibly, somewhere in there,” this
testimony is no evidence that Phillips did not know before April 13, 2004, that his
injury was work related because “prior to . . . 2005” does not, in and of itself,
implicate only a period of time between April 14, 2004, and December 31,
2004—it also includes the period of time before April 13, 2004. See Lozano v.
Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (“When circumstances are consistent
with either of the two facts and nothing shows that one is more probable than the
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other, neither fact can be inferred.”). Moreover, the question expressly inquired
about when Phillips acquired actual knowledge that his injuries allegedly resulted
from BNSF’s negligence, but under the FELA, a mere “awareness of critical facts
will impose a duty upon a claimant to investigate and confirm or deny his belief,
otherwise the limitations period would be meaningless.” See Billman v. Mo. Pac.
R.R. Co., 825 S.W.2d 525, 527 (Tex. App.—Fort Worth 1992, writ denied); see
also Fries v. Chicago Nw. Transp. Co., 909 F.2d 1092, 1096 (7th Cir. 1990)
(“[C]ase law . . . only requires a finding that a plaintiff should have known of an
injury, not that he possess actual knowledge.”). Thus, not only did Phillips not
testify that he did not know before April 13, 2004, that his injuries were work
related, his most direct testimony relating to that inquiry is irrelevant for purposes
of determining when his claims accrued.
Because there is no direct evidence that Phillips did not know before
April 13, 2004, that his injuries were work related, the majority turns to what it
seems to contend is circumstantial evidence demonstrating that Phillips did not
realize before April 13, 2004, that his job caused his injuries. But while an
ultimate fact may certainly be proved by circumstantial evidence, none of the
evidence cited by the majority supports the jury’s finding. The physician who
“appeared to connect Phillips’s symptoms to his diabetes” did so only after
April 13, 2004—in June 2004. Maj. Op. at 7. And it is of no consequence to the
accrual inquiry whether or not BNSF made Phillips aware of the risks of full body
vibration. The caselaw contains no requirement that an employer provide its
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employee with notice that the employer is, or could be, the cause of the
employee’s alleged injuries.
What relevant evidence is contained in the record demonstrates that
Phillips sought treatment for his injuries as early as 1998—he complained of
“soreness up + down spine”—and he identified “rough riding railroad engines” as
an aggravating activity. Phillips thus possessed critical facts of both his injuries
and their cause years before April 13, 2004, which consequently imposed a duty
upon him to investigate then. See Billman, 825 S.W.2d at 527. Because there is
no evidence that Phillips did not know before April 13, 2004, that his injuries were
work related, the evidence is legally insufficient to support the jury’s answer to
charge question number 6.
Furthermore, if there was any confusion after Havner about the threshold
requirements for determining whether epidemiological evidence is scientifically
reliable to prove causation, the supreme court unquestionably clarified the
relevant standards in Merck. Specifically, epidemiological evidence used to
prove general causation is unreliable if it does not show a doubling of the risk
that is statistically significant at the 95% confidence level. Merck & Co., 347
S.W.3d at 262–66. Moreover, a plaintiff must show that he or she is similar to
the subjects in the studies and exclude with reasonable certainty other plausible
causes of the injury if there is evidence of those causes. Id.; Faust v. BNSF Ry.
Co., 337 S.W.3d 325, 334 (Tex. App.—Fort Worth 2011, pet. denied).
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To the extent that Phillips’s experts relied upon epidemiological studies to
prove that his exposure to vibratory forces from rough riding locomotives caused
his injuries, they made no effort to show that the studies demonstrated a doubling
of the risk that was statistically significant at the 95% confidence level. In the
absence of that evidence, their opinions are unreliable and, legally, no evidence.
See Havner, 953 S.W.2d at 714. The majority contends that Havner’s and
Merck’s standards apply only to toxic tort cases, but that is expressly refuted by
Merck’s unambiguous pronouncement that “Havner’s requirements necessarily
apply to all epidemiological evidence.” Merck & Co., 347 S.W.3d at 264
(emphasis added).
The trial court should have granted BNSF judgment as a matter of law on
either the limitations issue or the causation issue. Because the majority fails to
correct either error, I respectfully dissent.
BILL MEIER
JUSTICE
DELIVERED: August 1, 2013
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