IN THE COURT OF APPEALS OF IOWA
No. 19-0057 Filed February 5, 2020
BRIAN ANDREESEN, Plaintiff-Appellant,
vs.
CHICAGO, CENTRAL & PACIFIC RAILROAD COMPANY, d/b/a CANADIAN NATIONAL RAILWAY COMPANY, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
A plaintiff appeals the district court’s denial of his motion for a new trial
following a civil jury verdict in favor of the defendant. AFFIRMED.
Fredric A. Bremseth of Bremseth Law Firm, Minnetonka, Minnesota, and
Robert M. Livingston of Stuart Tinley Law Firm, LLP, Council Bluffs, for appellant.
Kellen B. Bubach and R. Todd Gaffney of Finley Law Firm, P.C., Des
Moines, and Charles H. Russell, III of Wise Carter Child & Caraway, P.A., Jackson,
Mississippi, for appellee.
Heard by Tabor, P.J., and Mullins and Schumacher, JJ. 2
MULLINS, Judge.
A plaintiff, Brian Andreesen, appeals the district court’s denial of his motion
for a new trial following a civil jury verdict in favor of the defendant, a railroad
company (CCP). He generally challenges the propriety of the instructions the
district court provided to the jury concerning the statute of limitations and discovery
rule.
I. Background Facts and Proceedings
Andreesen began working for CCP in 1996. He was a healthy twenty-
seven-year-old man at the time. While he has worked in different positions over
the years,1 his work has largely involved positions in which he is constantly
exposed to environmental forces medical personnel have opined caused the spinal
condition precipitating this litigation. From the onset of Andreesen’s employment
with CCP, riding on trains bothered his back; his back was sore at the end of each
day. Andreesen began to experience neck pain in 2005. Sometimes the pain
would radiate down his arms. Andreesen visited his physician and was referred to
a neurologist, Dr. Quentin Durward. Andreesen visited Durward in September and
reported that, in the previous two or three months, he had been experiencing pain
in his neck with radiation into his left arm and some numbness and tingling in his
left arm and hand. According to Durward, Andreesen did not have a specific injury,
1 Andreesen started as a brakeman. After about six months, he was promoted to the position of conductor. In these positions, Andreesen travelled to and from destinations and assisted train engineers with coupling rail cars. In 1998 he became an engineer. In this position, he operated trains from origin to destination. Andreesen became a trainmaster in late 2000. The record indicates he did not ride on trains in this position. He returned to the position of engineer in mid-2004. In 2011, he continued as an engineer, but his duties were limited to switching out railcars in the train yard. 3
just a “progressive problem.” An MRI revealed compression of the spinal cord in
Andreesen’s neck, which was caused by degenerated disks and bone spurs.
Durward classified Andreesen’s condition as degenerative disk disease. Durward
completed surgery on Andreesen’s cervical spine a few days later. Andreesen’s
symptoms subsided in the coming months, and he returned to work in January
2006.
In December 2014, Andreesen started experiencing “the same kind of
symptoms [he] had before.” In mid-January 2015, Andreesen discontinued
working.2 He visited an orthopedic surgeon, Dr. Steven Stokesbary, with
complaints of neck and shoulder pain, as well as numbness in his chest, shoulder,
arm, and back. Specifically, Andreesen reported he had been suffering from
chronic neck pain for the past several years with a recent worsening of his
symptoms. Durward testified the neck pain was caused by the degenerative disk
disease he had previously diagnosed Andreesen with and treated him for. An MRI
showed disk bulging as well as spinal degeneration, which was causing narrowing
of the nerve channel in the spinal cord. A regimen of physical therapy and
medications was pursued but did not result in relief. A second MRI showed
additional problems, so Durward again recommended surgery. Andreesen
underwent three surgeries over the next several months, one to the cervical spine
in February and two to the thoracic spine in August. Durward took the position that
Andreesen’s “spine condition has been significantly affected by the job he does.”
He specifically opined Andreesen’s condition amounted to a “cumulative trauma”
2 He has not returned to work since. 4
resulting from years of working on the railroad.3 Andreesen continued to
experience pain in his lower back. Another regimen of non-surgical treatment was
pursued as to the lower back but did not result in relief. A subsequent MRI
disclosed the condition of Andreesen’s lower back continued to deteriorate as time
went on, and Andreesen underwent a surgery to his lumbar spine in September
2016. Durward opined, as a result of Andreesen’s multiple surgeries and ongoing
pain, he was “completely disabled.”
In November 2016, Andreesen filed a civil petition against CCP under the
Federal Employers Liability Act (FELA). See 45 U.S.C. § 51. The matter
proceeded to a trial over seven days in September 2018. The final day of trial, the
court and parties discussed the jury instructions. The only instructions relevant to
this appeal are those concerning the statute of limitations and discovery rule. Each
of the parties had previously submitted their desired instructions. The court
proposed the following instructions:
INSTRUCTION NO. 23
CCP asserts that the statute of limitations bars Brian Andreesen’s claim. A statute of limitations is a law that provides that a suit is barred if a plaintiff does not bring it within a prescribed period of time. The time period within which the suit must be brought begins when Brian Andreesen first knew, or by the exercise of reasonable care, should have known that 1) he had spinal injuries and 2) that his injuries were caused by his job. On this issue, the burden of proof is on Brian Andreesen. This means that he must prove, by the preponderance of the evidence, that he was not aware, or in the exercise of reasonable diligence should not have been aware, that he had been injured by his work
3 Another physician, Dr. Eckardt Johanning, who specializes in occupational medicine—specifically spinal injuries caused by whole-body vibrations, which are common in railroad workers—also examined Andreesen in 2016. Andreesen exhibited a number of spinal abnormalities, which Johanning attributed to the cumulative effects of Andreesen’s work environment. 5
with CCP before November 22, 2013, which is three years before he filed this lawsuit.
INSTRUCTION NO. 24
A person knows or should know he has suffered an injury, for purposes of the statute of limitations, when he first experiences symptoms of that injury. He does not have to experience all the symptoms of the injury, does not have to receive a medical diagnosis, and does not have to have his injury reach maximum medical severity in order for a Plaintiff to be charged with notice of an injury.
Andreesen objected to the latter instruction on legal-correctness grounds,
arguing the statute of limitations does not begin “to run when a person first has
some symptom,” but instead begins to run upon an injury. The court overruled the
objection. The first question on the jury’s verdict form asked: “Did Brian Andreesen
know, or should he have known by using reasonable diligence, that he suffered
work-related injuries before November 22, 2013,” three years before the filing of
his petition? See id. § 56. The jury answered that question in the affirmative, and
thus concluded Andreesen’s claims were barred by the statute of limitations. The
court entered judgment in favor of CCP.
Andreesen moved for a new trial, arguing, among other things, the court’s
jury instructions as to the statute of limitations were erroneous and defense
counsel made inappropriate statements in closing arguments magnifying the error
in the instructions. Andreesen only challenged the following language in
instruction number twenty-four: “A person knows or should know he has suffered
an injury, for purposes of the statute of limitations, when he first experiences
symptoms of that injury.” The court denied the motion, concluding, “There was
credible evidence for the jury to find that Plaintiff was not experiencing merely 6
‘intermittent pain associated with a minor injury,” and the instructions, when viewed
as a whole, did not amount to an incorrect statement of the law. As noted,
Andreesen appeals.
II. Standard of Review
Appellate review of a ruling on a motion for a new trial depends on the basis
of the motion. Westco Agronomy Co., LLC v. Wollesen, 909 N.W.2d 212, 219
(Iowa 2017). Review of challenges to the propriety of jury instructions is a question
of law, Eisenhauer ex rel. Conservatorship of T.D. v. Henry Cty. Health Ctr., 935
N.W.2d 1, 9 (Iowa 2019); State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).
Therefore, our review is for correction of errors at law. See Westco, 909 N.W.2d
at 219. We view jury instructions as a whole and do not consider an erroneous
jury instruction in isolation. Harrison, 914 N.W.2d at 188.
III. Analysis
On appeal, Andreesen complains instruction twenty-four was an incorrect
statement of the law. Specifically, he claims the instruction “incorrectly informed
the jury that [he] should have been aware that he was injured when he first felt any
symptoms.” He complains the instruction does not distinguish between a
“‘symptom’ and ‘an actual injury’” and is therefore an incorrect statement of the
law.
“No action shall be maintained under [FELA] unless commenced within
three years from the day the cause of action accrued.” 45 U.S.C. § 56. A FELA
“plaintiff has the burden to prove that [his or] her cause of action was commenced
within the three year limitations period.” Wilson v. Zapata Off-Shore Co., 939 F.3d
260, 266 n.9 (5th Cir. 1991). “A claim accrues under FELA when the plaintiff 7
possesses sufficient critical facts from which the injury and its cause, including its
work-relatedness, should be plainly known.” CSX Trans., Inc. v. Adkins, 442
S.E.2d 737, 738 (Ga. 1994), cert. denied 513 U.S. 947 (1994); accord Sweatt v.
Union Pac. R.R. Co., 796 F.3d 701, 707 (7th Cir. 2015). An afflicted employee can
be considered “injured” when the cumulative effects of the deleterious condition
“manifest themselves.” Urie v. Thompson, 337 U.S. 163, 170 (1949). “When the
injury is not a single traumatic one with immediate symptoms, but rather a latent
one with symptoms appearing over time, ‘the cause of action does not accrue until
the employee is aware or should be aware of his condition.’” White v. Union Pac.
R.R. Co., 867 F.3d 997, 1001 (8th Cir. 2017) (quoting Fletcher v. Union Pac. R.R.
Co., 621 F.2d 902, 906 (8th Cir. 1980)).
On appeal, Andreesen generally argues the term “symptoms,” as used in
the district court’s jury instruction, is insufficient to manifest an injury. In order to
resolve this issue, we have reviewed the points of law dictated in a line of federal
cases considering similar factual scenarios, discussed below.
In Fries v. Chicago & Northwestern Transportation Company, a plaintiff
worked for a railroad company from 1969 to 1987. 909 F.2d 1092, 1093 (7th Cir.
1990). He began experiencing hearing loss and tinnitus in the early 1980s. Id.
He would need two hours of silence after each work day to recuperate from his
symptoms. Id. at 1094. He was medically diagnosed with hearing loss in 1985,
and he filed a FELA action in 1987. Id. The district court granted the employer’s
motion to dismiss on statute-of-limitation grounds, concluding the claim accrued in
the early 1980s. Id. On appeal, the plaintiff argued his cause did not accrue until
1985, when he was diagnosed with his “cumulative in nature” injury. Id. at 1095. 8
The Seventh Circuit disagreed, ruling that, “upon experiencing symptoms a plaintiff
has a duty to investigate both the injury and any suspect cause.” Id. at 1096
(emphasis added). The court also noted that the fact that the “injury had not
reached its maximum severity in 1981 but continued to progress does not affect
this result.” Id.
Similarly, in Campbell v. Grand Trunk Western Railroad Company, a plaintiff
worked for a railroad company from 1970 to 1995, and then again in 1996. 238
F.3d 772, 773 (6th Cir. 2001). He began experiencing daily numbness and
“tingling and some pain” in 1993 or 1994. Id. at 775. He filed a FELA action in
September 1998, alleging he sustained injuries to his neck and back in 1995 and
developed carpal tunnel syndrome. Id. at 773–74. The district court granted
summary judgment, concluding the plaintiff’s “tingling and pain” in 1993 and 1994
was sufficient to put him on notice of his injury. Id. at 774. The Seventh Circuit
affirmed on the ground that “the plaintiff experienced the symptoms of his disorder
on a daily basis for several years.” Id. at 776 (emphasis added).
In another Seventh Circuit case, a plaintiff began working for Union Pacific
in 2006 as a general laborer. Sweatt, 796 F.3d at 703. In the summer of 2009, he
“manifested pain in his shoulder and hands,” which “progressed to the point that
[he] could no longer do his job.” Id. at 703–04. He had previously complained
about the pain to his employer in May. In November, he sought medical treatment
for his symptoms. Id. at 704. He filed his FELA action in November 2012. Id. at
705. The district court granted the employer summary judgment on statute-of-
limitations grounds. Id. The Seventh Circuit affirmed, concluding the injury
manifested itself as early as May 2009 when the plaintiff began experiencing 9
shoulder pain. See id. at 707. While the court acknowledged “that ‘intermittent
pain associated with a minor injury’ is insufficient to trigger accrual of a claim under
FELA,” the court concluded that proposition of law did not apply, because the
plaintiff’s pain was severe, id. at 708, which we find analogous to Andreesen’s
early 2015 report of chronic neck pain for the past several years.
In White v. Union Pacific Railroad Company, the plaintiff “first injured his
back in a work-related mishap in 1999” but “he healed from that injury ‘[f]or the
most part.’” 867 F.3d at 999 (alteration in original). He began working for a train
company two years later; he passed a physical and had no back problems while
working for this employer for the next three years. Id. He began working for Union
Pacific in 2004 and was exposed to environmental forces in his employment similar
to those resulting in Andreesen’s injuries. Id. at 999–1000. In 2010, he first saw
a doctor relative to lower-back pain. After seeing other doctors for further
treatment, the plaintiff discontinued his employment in 2011. Id. at 1000. He filed
a FELA action against Union Pacific in 2012 alleging working conditions caused
his lower-back problem. Id. At trial, the plaintiff “affirmed that beginning in 2007
and 2008” he would experience “pretty bad pain” and knew it to be a result of his
working conditions. Id. Based on said testimony, the district court granted Union
Pacific judgment as a matter of law on statute-of-limitations grounds. Id. On
appeal, the plaintiff argued “garden variety aches and pains” do not trigger the
statute of limitations for a latent injury with symptoms appearing over time. Id. at
1001. The Eighth Circuit disagreed, repeating “that ‘[i]f his back bothered him
constantly from [an earlier date], his cause of action accrued on that date.’” Id.
(alteration in original) (quoting Fletcher, 621 F.2d at 907 n.7). 10
While we agree with Andreesen that the first sign of occasional symptoms
and de minimis symptoms do not trigger manifestation of an injury, see, e.g.,
Sweatt, 796 F.3d at 708; Green v. CSX Transp., Inc., 414 F.3d 758, 764–65 (7th
Cir. 2005); Fonseca v. Consol. Rail Corp., 246 F.3d 585, 591–92 (6th Cir. 2001),
that is not what the evidence in this case shows. What the evidence does show is
that Andreesen generally experienced back pain throughout his employment with
CCP, he underwent a major spinal surgery in 2005, his back issues were a
progressive problem, and when he sought medical treatment in late 2014 and early
2015, he had been experiencing chronic back pain for several years. At the end
of the day, “a plaintiff does not need to know the full extent of the injury before the
statute of limitations begins to run.” Rathje v. Mercy Hosp., 745 N.W.2d 443, 461
(Iowa 2008). It is unquestionable that “symptoms experienced . . . can be sufficient
to alert a reasonable person to the existence of the injury.” Id. at 462.
We thus affirm the district court’s use of the term “symptoms” in its jury
instruction. We turn to the court’s preceding use of the term “first” in instruction
twenty-four. As noted, we agree that the first sign of occasional and de minimis
symptoms do not trigger manifestation of an injury. Sweatt, 796 F.3d at 708;
Green, 414 F.3d at 764–65; Fonseca, 246 F.3d at 591–92. We thus agree that
use of the term “first” in the instruction was error. But that does not end our
analysis. Instruction twenty-three required two elements for application of the
statute of limitations—that he knew or should have known (1) he had spinal injuries
and (2) they were work related. Instruction twenty-four only advised the jury on
the former element, that Andreesen knew or should have known he suffered an
injury. It had no bearing on work-relatedness. Thus, the jury’s finding that 11
Andreesen knew or should have known of work-relatedness more than three years
before he filed his lawsuit, was not affected by instruction twenty-four. The work-
relatedness finding necessarily requires an accompanying conclusion that he
knew or should have known he suffered an injury. Reversal for instructional error
is only required if the error resulted in prejudice. Rivera v. Woodland Res. Ctr.,
865 N.W.2d 887, 903 (Iowa 2015). Here, the jury’s finding that Andreesen knew
or should have known of work-relatedness, which was not affected by the
erroneous instruction, cures any prejudice.
Further, while Andreesen downplays the severity of his injuries and argues
he “did not have any neck or back injury until his surgeries in 2015 and 2016,” that
statement is a far cry from what the evidence presented at trial really shows. Upon
our review of the evidence and divination of what the jury would have done had
the term “first” been omitted from the instruction, we agree with CCP that no
reasonable jury could have found Andreesen was unaware of his condition prior to
three years before the filing of his petition; the evidence that Andreesen knew or
should have known of his injury was overwhelming. See id. (“Harmless error may
be found . . . if the record affirmatively establishes that a party has not been
injuriously affected by the alleged error or that there has been a miscarriage of
justice.”). While Andreesen did not understand the concept of whole-body
vibrations and their causes, he was exposed daily to the environmental forces of
his employment—jolts, shocks, other jarring, and getting whiplash all the time. He
was completely healthy when he started working for CCP, but he experienced back
pain from the onset of his employment. It got so bad that, in 2005, he underwent
spinal surgery. He reported in late 2014 or early 2015 that he experienced chronic 12
back pain for several years prior. Under the facts and circumstances of this case
as presented to the jury, we find the instructional error harmless.
Finally, we turn to Andreesen’s complaints about defense counsel’s
statements concerning the complained-of instruction in closing argument. We
agree with CCP that Andreesen has failed to preserve error on his claims. “When
an improper remark is made by counsel in the course of jury argument, it is the
duty of the party aggrieved to timely voice objection.” Kinseth v. Weil McLain, 913
N.W.2d 55, 67 (Iowa 2018) (quoting Andrews v. Struble, 178 N.W.2d 391, 401
(Iowa 1970)). Alternatively, a complaining party can object in a motion for mistrial
made before submission of the matter to the jury. Id. Neither was done here, so
error was not preserved.
IV. Conclusion
We affirm the district court’s use of the term “symptoms” in its jury instruction
as a correct statement of the law. We find the court’s preceding use of the term
“first” to be error. However, we find the instructional error harmless and thus affirm
the denial of Andreesen’s motion for a new trial.
AFFIRMED.