Douglas Seal v. Norfolk Southern Railway Co.

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 12, 2023
• Docket: 23-5039
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION FILE NAME: 23A0438N.06

Case No. 23-5039

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED DOUGLAS SEAL, ) Oct 12, 2023 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR NORFOLK SOUTHERN RAILWAY CO., ) THE EASTERN DISTRICT OF Defendant-Appellee. ) TENNESSEE ) OPINION )

Before: BATCHELDER, GRIFFIN, and BLOOMEKATZ, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. The plaintiff appeals the grant of summary

judgment for the defendant based on the statute of limitations. We REVERSE and REMAND.

I.

Douglas Seal worked for the Norfolk Southern Railway Company as a carman on a

“service truck” until August 2016, when he switched to a more physically demanding job on a

“road truck,” which required him to lift, carry, place, and operate rail jacks weighing 185 pounds

each. At that time, he had chronic aches and pains that he and his doctor attributed to arthritis.

One morning in April 2018, Seal awoke with such severe pain in his right shoulder that he

could not lift his arm above his head. On April 24, 2018, Seal saw a doctor for the pain, and the

medical record from that visit says: “[Patient] complains of non-traumatic pain in right arm and

shoulder. He states this has gradually progressed over the past year [and] that [it] has gotten worse

this past week. [He] denies any traumatic injury.” The doctor diagnosed this injury as “right

shoulder pain . . . consistent with rotator cuff pathology,” and ordered an MRI. While Seal made No. 23-5039, Seal v. Norfolk Southern Railway Co.

the appointment because of the pain in his shoulder, this medical record documents a full physical

exam, including blood tests and cancer screening, among other things. The doctor’s assessment

of Seal’s shoulder says: “Shoulder Pain: The patient is being seen for an initial evaluation of

shoulder pain. Symptoms: shoulder pain. The patient is currently experiencing symptoms.

Associated symptoms: neck pain.” The doctor did not record any arm, bicep, or elbow pain.

On June 5, 2018, Seal returned to the doctor for a follow-up appointment and the medical

record from that visit says: “[Patient] states the pain in his shoulder is still there and he’s still not

able to raise his arm up. [He is] here to review results of [an] MRI,” which “[s]howed [a] small

full thickness tear of [the] supraspinatus tendon” (a tendon on the top of the shoulder).1 On July

17, 2018, Seal had successful arthroscopic surgery on his right shoulder to repair “a significant

high-grade tear of the rotator cuff.” He rehabilitated his shoulder though physical therapy over the

next year.

On November 2, 2020, Seal sued Norfolk Southern under the Federal Employers’ Liability

Act (FELA), 45 U.S.C. § 51, claiming that Norfolk Southern’s negligent workplace practices,

conditions, and equipment had caused his injury. See Fonseca v. Consol. Rail Corp., 246 F.3d

585, 588 (6th Cir. 2001) (“The FELA provides a federal cause of action against a railroad by any

employee injured or killed as a result of the railroad’s negligence.”). Norfolk Southern moved for

summary judgment, claiming that FELA’s three-year statute of limitations, 45 U.S.C. § 56, had

expired before Seal filed suit—i.e., that Seal’s injury had accrued prior to November 2, 2017.

As the district court explained, “when no significant injury is discernable at the time of the

tortious event, or if the cause of an injury is not apparent,” then courts apply the “discovery rule”

1 As with the April 2018 medical record, this record does not report any arm, bicep, or elbow pain.

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to determine when the FELA cause of action accrued. Fonseca, 246 F.3d at 588 (applying Urie v.

Thompson, 337 U.S. 163, 170 (1949)). “Under the discovery rule, a cause of action is deemed to

have accrued when the plaintiff reasonably should have discovered both cause and injury.” Id.

(quotation marks and citation omitted). “[T]he afflicted employee [is] held to be injured only when

the accumulated effects of the deleterious [conditions] manifest themselves.” Id. at 589 (quotation

marks and citation omitted). But where a later injury caused by the alleged tortious conduct is

simply an “aggravation” of an earlier injury, such aggravation is not a ‘separate” injury for

purposes of FELA’s statute of limitations and does not give rise to an additional claim. See id.

(citing Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 815 (6th Cir. 1996)); see also Henry v.

Norfolk S. Ry. Co., 605 F. App’x 508, 511 (6th Cir. 2015) (“[W]here the alleged tortious conduct

[merely] aggravates an existing injury, . . . such aggravation is not a severable cause of action for

purposes of the statute of limitations.”).

The district court relied on Seal’s deposition testimony, his self-reported medical history

as recorded in his April 2018 medical record, and a medical record from a March 2017 doctor’s

visit to hold that Seal “knew or reasonably should have known of his [shoulder] injury by March

2017, . . . when he sought medical treatment for such pain, and that his later, April 2018 pain was

an aggravation of the prior pain.” The district court explained:

On March 2, 2017, [Seal] presented to a doctor complaining of sharp pain in his right arm when lifting heavy objects, which [Seal] later admitted included the portable rail jacks he used at work. The records from this visit indicate that [Seal]’s right arm pain was ‘chronic’ and ‘work/occupational, repetitive,’ which [Seal] admitted was information he provided.[2] [Seal] also admitted that there was no question in his mind that the pain he was experiencing in March 2017 was a result

2 This sentence claims to quote from the March 2017 medical record (i.e., “this visit”), but that is incorrect. The quoted language—that Seal’s right arm pain was “chronic” and “work/occupational, repetitive”—is taken from a medical record of Seal’s physical therapy office visit on July 23, 2018. Similarly, Seal’s testimony that his pain was from jacking of railroad cars was referring to the pain he was experiencing in July 2018, not March 2017.

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of jacking the railroad cars. And, when [Seal] experienced the more severe arm and shoulder pain in April 2018, approximately one year after this March 2017 visit, [Seal] informed doctors that the pain he was experiencing had ‘gradually progressed over the past year.’ Accordingly, the records from his April 2018 doctor’s visit confirm that [Seal]’s arm and shoulder pain was an aggravation of the pain he experienced in March 2017, rather than a separate injury.

Based on this assessment, the district court found that there was no genuine dispute of material

fact as to when Seal discovered the “arm and shoulder” injury and its cause, held that FELA’s

three-year statute of limitations barred Seal’s claim as a matter of law, and granted summary

judgment to Norfolk Southern.

II.

“We review the district court’s grant of summary judgment de novo, viewing all the

evidence and inferences therefrom in a light most favorable to the nonmoving party.” Campbell

v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001) (citation omitted). Summary

judgment is appropriate only when there is no genuine dispute of material fact, and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “Where, as in this case,

summary judgment was granted on statute-of-limitations grounds, we must determine whether

(1) the statute of limitations has run and (2) whether there exists a genuine issue of material fact

as to when the plaintiff’s cause of action accrued.” Campbell, 238 F.3d at 775 (citation omitted).

The district court conflated Seal’s bicep (arm) pain and rotator cuff (shoulder) pain and

treated them as if they were the exact same thing. Consequently, the district court inferred from

Seal’s March 2017 medical record that Seal “knew or reasonably should have known of his

[shoulder] injury by March 2017.” And from this conflation and inference, the district court

concluded that “the records from his April 2018 doctor’s visit confirm that [Seal]’s arm and

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shoulder pain was an aggravation of the pain he experienced in March 2017, rather than a separate

injury.”

But a bicep and a rotator cuff are not the same thing, and the district court did not draw the

correct inference from the medical records. The March 2017 medical record documents a full

physical exam that identified problems ranging from esophageal reflux and obesity to high blood

pressure and stress. But, as relevant here, in the history section, Seal reported that his “[o]nly new

complaint is right bicep pain and weakness for the last one year.” The doctor reported: “No gross

motor deficits noted[,] . . . [but] [t]enderness to palpation with deep palpation of right bicep distal

insertion site,” and diagnosed this as “bicep tendinitis.” At his deposition, Seal testified that this

pain was in his lower bicep, near his elbow: “I’d had the tennis elbow, and I even had a brace to

keep wearing on it because it would hurt in the lower bicep.” Even viewing this evidence

objectively, rather than in the light favorable to Seal, the most reasonable inference from the March

2017 record is that the lack of any mention in that record of any shoulder pain or injury means that

Seal did not have any shoulder pain or injury at that time. Seal had bicep pain due to a diagnosed

bicep tendinitis; he did not have shoulder pain from a torn supraspinatus tendon or rotator cuff.

Because this March 2017 medical record about his bicep does not support, and actually

refutes, Seal’s shoulder injury, this cause of action had not accrued in March 2017.3 See Fonseca,

246 F.3d at 592 (“[I]f [the plaintiff] had filed a FELA suit . . . without any medical evidence

beyond his transient aches and pains . . . , the railroad would likely have claimed that the action

3 To be clear, we address only whether Seal’s shoulder injury, not his bicep injury, is time-barred. Though Seal originally raised claims regarding his “right arm and shoulder,” he appeared to abandon in the district court any claims regarding his bicep injury. And even though the district court concluded that Seal’s “arm and shoulder pain was an aggravation of the pain he experienced in March 2017,” Seal does not challenge on appeal the district court’s holding that his arm pain is an aggravation of a past injury. Seal has therefore forfeited any challenge to this issue. See United States v. Calvetti, 838 F.3d 654, 664 (6th Cir. 2016) (finding an issue on appeal to be forfeited when an appellant failed to include the issue in the table of contents or “issues presented” section of the appellate brief).

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lacked any evidentiary support.”). Moreover, given the absence of any diagnosis of any shoulder

injury (i.e., torn supraspinatus tendon or rotator cuff) prior to April 2018, there is no basis to say

that Seal’s 2018 shoulder pain and injury were due to aggravation of any diagnosed condition. See

Henry, 605 F. App’x at 513 (relying on a “previously diagnosed degenerative back condition”).

The inquiry therefore becomes: (1) whether Seal’s shoulder pain became so severe that he

should have recognized it as an actionable injury (i.e., that his FELA claim had accrued) even

without a doctor’s diagnosis, see Caputo v. CSX Transp., Inc., 70 F.3d 1271 (6th Cir. 1995) (table);

see also Sweatt v. Union Pac. R.R. Co., 796 F.3d 701, 708 (7th Cir. 2015); and (2) if so, whether

the manifestation of that injury happened prior to November 2017, outside of FELA’s three-year

statute of limitations, see Urie, 337 U.S. at 170. The burden is on Norfolk Southern to prove that

Seal’s shoulder pain manifested itself before November 2, 2017. See Campbell, 238 F.3d at 775

(“Because the statute of limitations is an affirmative defense, the burden is on the defendant to

show that the statute of limitations has run.”). Apart from the March 2017 medical record, the

only remaining evidence relied upon by the district court is that Seal, in recounting his personal

medical history at his April 2018 doctor’s visit, said that his shoulder pain had “gradually

progressed over the past year [and] that [it] has gotten worse this past week.” But that statement

alone, particularly in light of his history of aches, pains, and arthritis, does not reveal when the

shoulder pain—nonexistent at his March 2017 appointment—transitioned from ordinary aches and

pains to an unmistakable shoulder injury, especially when viewing the facts in the light most

favorable to Seal. The same is true regarding Seal’s statements during post-surgery physical

therapy that his shoulder pain had gradually increased since he began the road-truck job in 2016.

Drawing inferences from Seal’s April 2018 and later statement in his favor leads to the conclusion

that the earliest this shoulder injury manifested itself was a week prior to the appointment.

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Based on the record evidence, Norfolk Southern has not shown that Seal’s cause of action

necessarily accrued more than three years before he filed this lawsuit. At most, a genuine dispute

of material fact exists as to when this action accrued—i.e., when Seal should have recognized his

shoulder pain as an actionable injury. Either way, summary judgment was improper.

III.

For the forgoing reasons, we REVERSE the judgment of the district court and REMAND

for further proceedings consistent with this opinion.

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