Gay v. Norfolk & Western Railway Co.

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan,
Koontz, JJ., and Poff, Senior Justice

GORDON GAY

v. Record No. 961214 OPINION BY JUSTICE ELIZABETH B. LACY
February 28, 1997
NORFOLK AND WESTERN RAILWAY COMPANY

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge

In this case, we consider whether a deposition was

properly used as a basis for entering summary judgment and the

proper standard for determining the accrual date of a cause of

action under the Federal Employers' Liability Act (FELA), 45

U.S.C. §§ 51 through 60.
On February 1, 1994, Gordon Gay filed a motion for

judgment against his former employer, Norfolk and Western

Railway Company (N&W), pursuant to FELA. Gay claimed that he

was injured by exposure to diesel fumes and exhaust emitted by

N&W's locomotives during his employment from September 8, 1956

to December 9, 1993. N&W filed a Motion to Dismiss for Lack of

Subject Matter Jurisdiction based on Gay's deposition and

pleadings. N&W claimed that Gay's motion for judgment was not

filed within FELA's three-year statute of limitation period, 45

U.S.C. § 56, because his cause of action arose in 1989 when he

was diagnosed with myelodysplasia, a form of leukemia, or

chronic anemia.

At the hearing on N&W's motion, Gay argued that the motion

was "essentially a motion for summary judgment" and objected to

the use of his deposition in considering the motion. The trial

court held that Gay had waived his objection to the use of the
deposition, that the cause of action accrued when Gay was

diagnosed in 1989, and, therefore, the three-year limitations

period barred his action. We awarded Gay an appeal.

Gay assigns error to the trial court's ruling that he

waived his objection to the use of his deposition. Gay also

claims that reasonable people could differ as to when the cause

of action accrued and, therefore, the trial court erred in

holding that, as a matter of law, the cause of action accrued

in 1989. We consider these issues in order.
I.

During the hearing on N&W's motion, Gay objected to the

use of his deposition as a basis for summary judgment, relying

on Rule 3:18 and Code § 8.01-420. The trial court held that

Gay waived his objection because he did not raise it until

after the motion was made, briefed, and argued. That ruling

was error.

Rule 3:18 and § 8.01-420 impose a very specific condition;

namely, the parties must agree to the use of depositions before
they may serve as a basis in whole, or in part, for the entry

of summary judgment. This condition requires some showing of

acquiescence in the use of a deposition. The record in this

case cannot support a finding that Gay agreed to the use of his

deposition. Cf. Parker v. Elco Elevator Co., 250 Va. 278, 281

n.2, 462 S.E.2d 98, 100 n.2 (1995) (no objection made at any

time to use of deposition). Gay unequivocally objected to the

use of his deposition before the trial court entered judgment.

We agree that the better practice would have been for Gay to
have made his objection known earlier in the proceedings.

Nevertheless, in the absence of any basis to conclude that Gay

agreed to the use of his deposition, the trial court could not

enter summary judgment based in whole, or in part, on that

deposition.

Accordingly, the trial court erred in holding that Gay

waived his objection to the trial court's use of his deposition

and in entering summary judgment based on the deposition

without agreement by the parties as required by Rule 3:18 and
*
§ 8.01-420. This conclusion requires that we reverse the

judgment of the trial court and remand the case for further

proceedings; however, because Gay's claim relating to the

method of determining the accrual date of his cause of action

will arise on remand, we also address this issue.

II.

The federal courts apply a discovery rule for ascertaining

when an employee's cause of action accrues under the FELA.

This rule, simply stated, is that the cause of action accrues

when the employee "knows or should know" that he was injured

and that the injury was work-related. United States v.

Kubrick, 444 U.S. 111, 120 n.7 (1979) (citing Urie v. Thompson,

337 U.S. 163, 169-170 (1949)); Townley v. Norfolk & Western
*
N&W also argues that the trial court's use of the
deposition testimony was not error because its motion was not a
motion for summary judgment but a "Motion to Dismiss for Lack
of Subject Matter Jurisdiction" and, therefore, Rule 3:18 and §
8.01-420 do not apply. This argument is disingenuous.
Regardless of the label N&W placed on it, this motion was
functionally a motion for summary judgment and subject to Rule
3:18 and § 8.01-420.
Ry., 887 F.2d 498, 501 (4th Cir. 1989); Young v. Clinchfield

R.R. Co., 288 F.2d 499, 503 (4th Cir. 1961). Formal

confirmation by a physician or other expert that an illness or

injury is work-related is not necessary for a cause of action

to accrue. Townley, 887 F.2d at 501; Albert v. Maine Central

R.R. Co., 905 F.2d 541, 544 (1st Cir. 1990).

N&W argues that the trial court correctly held that Gay's

cause of action accrued in 1989 when he was diagnosed with

leukemia because Gay testified that, at that point, he
suspected his leukemia was caused by inhalation of diesel

fumes. N&W relies primarily on Townley v. Norfolk & Western

Railway for the proposition that an employee "knows or should

know" that his injury is work-related when he "suspects" such a

causal relationship. Our review of Townley, however, does not

support N&W's reading of that case.

In Townley, the court considered the time at which a

railroad employee "knew or should have known" that he had black

lung disease. The employee had worked around coal dust from

1948 to 1979. He suffered respiratory and heart problems for

10 years before he retired on disability in 1979. The employee

testified that he knew that other railroad workers exposed to

coal dust had contracted black lung disease and that railroad

workers were encouraged to apply for black lung benefits. In

1980, the employee requested that his employer send him the

information he needed to apply for black lung benefits. The

employee argued that because he did not know that he had black

lung disease, his cause of action did not accrue until he
received a formal diagnosis of the disease from the doctor in

1984.

In discussing when the employee's cause of action arose,

the court in Townley stated that the employee's action "accrued

no later than 1980 when . . . he suspected that he suffered

from black lung and that his condition was caused by his work

on the railroad." Id. at 501. This statement, however, does

not mean that if a plaintiff "suspected" his condition was

work-related he "knew or should have known" the injury was

work-related. The full holding of the case is that, based on

all the evidence, it was "obvious from [the employee's] actions

that he possessed sufficient information that he knew, or

should have known, that he had been injured by his work with

the railroad [in 1980]." Id.

An employee's mere suspicion of an injury or its probable

cause, standing alone, is not the operative standard for

determining when a cause of action accrues under FELA. Rather,

all the relevant evidence must be considered. In making this

determination, several factors have been identified, including

the degree of inquiry made by the employee, the number of

possible causes of the injury, whether medical advice indicated

no causal connection between the injury and the workplace,

DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026, 1031

(5th Cir. 1984); the complexity of the employee's symptoms, the

expert knowledge or diagnostic skill of the medical doctors or

experts consulted, Young, 288 F.2d at 503-04; and the existence
of a medically recognized and documented causal link between
the employee's symptoms and his working conditions, Stoleson v.

United States, 629 F.2d 1265, 1267 (7th Cir. 1980) (action

brought under FTCA which applies same discovery rule applied to

action brought under FELA). On remand, considering all the

relevant evidence, if reasonable persons could disagree about

when Gay "knew or should have known" that his injury was work-

related, the issue should be submitted to the jury. It is

improper, however, to resolve the issue solely on the basis

that an employee suspected that his illness was work-related.
For these reasons, we will reverse the judgment of the

trial court and remand the case for further proceedings.

Reversed and remanded.