RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0004P (6th Cir.) File Name: 00a0004p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  MARK S. MOUNTS,  Plaintiff-Appellant,   No. 99-3151 v.  > GRAND TRUNK WESTERN   Defendant-Appellee.  RAILROAD,

 1

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 98-00036—Joseph P. Kinneary, District Judge. Argued: December 6, 1999 Decided and Filed: January 5, 2000 Before: COLE and GILMAN, Circuit Judges; CARR, District Judge.*

* The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation.

1 2 Mounts v. Grand Trunk Western R.R. No. 99-3151 No. 99-3151 Mounts v. Grand Trunk Western R.R. 11

_________________ occur within the statutory period); Flynt v. Brownfield, Bowen, & Bally, 882 F.2d 1048, 1052 (6th Cir. 1989) COUNSEL (discussing Ohio cases that apply doctrine to suits against attorneys), there has been no indication that it applies to ARGUED: Paul Kevin Hemmer, CARROLL, UCKER & FELA claims. In fact, in Kichline, which Mounts urges us to HEMMER, Columbus, Ohio, for Appellant. Julie L. follow, the Third Circuit rejected the continuing tort theory. Atchison, PORTER, WRIGHT, MORRIS & ARTHUR, See Kichline, 800 F.2d 356, 360 (3d Cir. 1986) (limiting Columbus, Ohio, for Appellee. ON BRIEF: Paul Kevin Fowkes v. Pennsylvania R.R., 264 F.2d 397 (3d Cir. 1959), Hemmer, CARROLL, UCKER & HEMMER, Columbus, which arguably applied the doctrine); see also National Ohio, for Appellant. Julie L. Atchison, Patrick Jerome Smith, Railroad Passenger Corp. v. Krouse, 627 A.2d 489 (D.C. PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, App. 1993) (reversing lower court’s finding that the FELA Ohio, for Appellee. cause of action did not accrue until the employer’s tortious action ended and citing, at 495 n.9, federal district court cases _________________ rejecting this approach). We decline to apply the continuing tort doctrine to this case, because Mounts clearly knew of his OPINION injury and its cause long before filing suit and failed to _________________ produce evidence of a new or separate injury caused by the R. GUY COLE, JR., Circuit Judge. The sole issue on alleged continuing conduct of GTW. appeal is whether Mark S. Mounts, a lifetime railroad CONCLUSION employee who can no longer hold his job because of hearing loss, filed suit against his former employer within the three- In sum, the FELA statute of limitations has run and no year statute of limitations of the Federal Employers’ Liability genuine issue of material fact exists as to whether Mounts’s Act (“FELA”), 45 U.S.C. § 51 et seq. We find that he did cause of action accrued before this period. Therefore, we not, and therefore AFFIRM the district court’s grant of AFFIRM the district court’s grant of summary judgment for summary judgment for the defendant employer, Grand Trunk defendant GTW. Western Railroad. I. Mounts is a 51-year-old man who has been a railroad employee all his career. After working as a brakeman for the New York Central Railroad for ten years, Mounts began working for Grand Trunk Western (“GTW”) in March 1978. During his employment with GTW, which was primarily based in Ohio, he was exposed to a variety of loud noises in connection with his work, such as noises from brake exhaust, radios, yard retarders, and whistles. Mounts attributes his subsequent hearing loss to these noises on his job sites. 10 Mounts v. Grand Trunk Western R.R. No. 99-3151 No. 99-3151 Mounts v. Grand Trunk Western R.R. 3

Mounts’s attempts to distinguish Aparacio in order to GTW began to conduct regular hearing tests of its obtain relief for the worsening of his condition that occurred employees in the late 1980s. In 1989, Mounts was within the three years prior to filing suit are unavailing. administered a hearing test, after which he was told that he Although factual differences exist between this case and had a hearing loss. At a follow-up test in April 1990, the Aparicio, the application of the discovery rule does not hinge doctor’s notes state that Mounts said he was having difficulty on the distinction of whether or not the employee withheld hearing communications at work and that his hearing had information of his injury from the employer, nor does it rely decreased over a period of time. Mounts was directed to on the employer’s knowledge or lack of knowledge of the undergo more extensive testing in Detroit, and testing by a injury. Cf. Kubrick, 444 U.S. at 122-23 (stating that the goal different doctor in Ohio. The second Ohio doctor, Morris, of the discovery rule is to encourage an employee to inform discussed the results of the test with Mounts and discussed the himself about his condition and bring claims promptly). We possibility of a hearing aid. (GTW later refused to pay for a also note that a holding that circumvents the discovery rule hearing aid after Mounts ordered one; a railroad official stated when the employer knows of the employee’s condition might that he did not need one.) Mounts was out of work for five create unfortunate incentives for employers not to “find out” and a half weeks because of this hearing testing. about employee illnesses through regular testing. In July 1990, Mounts settled a hearing loss claim with Nor does Mounts have a viable claim for a continuing tort GTW for $7,700 and signed a waiver of claims against the under FELA. The continuing tort doctrine can be viewed as railroad. Mounts states that he was told by GTW’s claim an exception to the discovery rule, see Dixon v. Anderson, agent, Blackstone, that in order to receive his wages for the 928 F.2d 212, 216 (6th Cir. 1991) (calling continuous time off, he had to sign the waiver. The amount of money he violations an exception in the discrimination context), or an received was marginally more than his back pay. Mounts also alternative to the discovery rule. Although continuing tort has states that Blackstone told him that his hearing loss was been recognized by our circuit in other contexts, see minimal. Mounts did not take a physical or hearing test Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394, before returning to work. 408 (6th Cir. 1999) (stating that, in the Title VII context, longstanding and demonstrable discrimination can allow a In 1993, after a company audiogram showed hearing loss, court to examine discriminatory acts that occur even outside Mounts was again directed to Detroit for a hearing test. The of the statute of limitations, as long as some of these acts test, conducted in November 1993, showed a moderate loss for speech and severe loss for high pitched sounds in both ears. The doctor’s report states that Mounts told him the conditions at work were noisy. governing malpractice claim under Federal Tort Claims Act begins to run when claimant discovers or should have discovered From about 1990, when GTW supervisors told him to wear the acts constituting the alleged wrong), cert. denied, 454 U.S. 967 (1981); Herm v. Stafford, 663 F.2d 669, 682 (6th Cir. 1981) ear plugs, until the time he ceased employment with GTW, (statute in securities fraud case begins to run when the fraud Mounts wore hearing protection when he could. He said that should have been discovered); Ott v. Midland-Ross Corp., 600 sometimes the protection would prohibit him from hearing F.2d 24, 27 (6th Cir. 1979) (Age Discrimination in Employment well enough to do his job, so he would remove it. Otherwise, Act claim accrues within a reasonable time after plaintiff should though, he wore the protection that GTW gave him. Mounts have discovered injury); N.L.R.B. v. Allied Products Corp., 548 F.2d 644, 650 (6th Cir. 1977) (“general rule” is that statute was not told by GTW at any point that he had job restrictions. begins to run when claimant discovers or should have discovered the unfair labor practice). 4 Mounts v. Grand Trunk Western R.R. No. 99-3151 No. 99-3151 Mounts v. Grand Trunk Western R.R. 9

In May 1994, Mounts went on medical leave as a result of a severable cause of action under Federal Employers’ a seizure (unrelated to his hearing claim). He returned to his Liability Act.” Aparicio, 84 F.3d at 815. Instead, we adopted position in April 1995, with a medical clearance and without the rationale set out in Fries v. Chicago & Northwestern any work restrictions. Transp. Co., 909 F.2d 1092 (7th Cir. 1990), as the rule of this circuit. See Aparicio, 84 F.3d at 815. In Fries, a railroad GTW conducted another test of Mounts’s hearing in 1996, worker with hearing loss acknowledged that he noticed the which showed poorer hearing. On May 28, 1997, Mounts loss as early as 1980 or 1981, and soon after suspected it was was removed from service with GTW because of his hearing caused by his job, but did not seek treatment until 1985. The impairment. He was referred by his personal physician to a Seventh Circuit rejected Fries’s suit, filed in November 1987. specialist, who opined that Mounts is permanently disabled See Fries, 909 F.2d 1092. Fries explicitly stated that a cause from his railroad work. GTW told Mounts to apply for a of action could accrue before the injury reached its maximum permanent disability annuity from the Railroad Retirement severity. See id. at 1096. In other words, in this circuit, an Board. employee who discovers an injury and its cause before the three-year statute of limitations period is precluded from later On January 8, 1998, Mounts sued GTW in district court bringing suit against his employer based on that injury. See under the FELA, 45 U.S.C. § 51, for: 1) negligence; and 2) id.; see also Albert v. Maine Cent. R.R. Co., 905 F.2d 541 (1st maintaining improper and unsafe equipment in violation of Cir. 1990) (finding the five plaintiffs’ claims barred by the the Boiler Inspection Act, 45 U.S.C. § 22 et seq. (1994). In statute of limitations when they knew of their hearing loss and count three of his amended complaint, Mounts alleged fraud attributed it to their railroad work more than three years in the signing of the 1990 waiver, or in the alternative, mutual before filing suit).3 mistake. GTW filed for summary judgment based on the three-year FELA statute of limitations. See 45 U.S.C. § 56. The district 3 In addition, the discovery rule has also been applied to a range of court dismissed all three counts; granting summary judgment other federal statutes. See Michigan United Food & Commercial based on the statute of limitations on the first two counts, and Workers Unions v. Muir Co., 992 F.2d 594, 597-98 (6th Cir. 1993), which dismissing the third count for failure to state a claim because stated: it was dependent on the success of the underlying FELA There is good reason for us now to adopt and apply the discovery rule in this ERISA case because we have frequently claims. Mounts appeals. done so in other contexts. Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991) (42 U.S.C. § 1983 claim accrues “when the II. plaintiff knows or has reason to know of the injury”); Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991) We review the grant of a motion for summary judgment (plaintiff in Bivens action has reason to know of his injury when under a de novo standard. See Babbitt v. Norfolk & W. Ry. he should have discovered it); Hofstetter v. Fletcher, 905 F.2d 897, 904 (6th Cir. 1988) (RICO action accrues when plaintiff Co., 104 F.3d 89, 90 (6th Cir. 1997). Summary judgment is knew or should have known of defendant's fraudulent scheme); appropriate “if the pleadings, depositions, answers to Au Rustproofing Center, Inc. v. Gulf Oil Corp., 755 F.2d 1231, interrogatories, and admissions on file, together with the 1237 (6th Cir. 1985) (state fraud action accrues when the fraud affidavits, if any, show that there is no genuine issue as to any was or should have been discovered); Shapiro v. Cook United, material fact and that the moving party is entitled to a Inc., 762 F.2d 49, 51 (6th Cir. 1985) (per curiam) (statute begins to run when claimant discovers or should have discovered judgment as a matter of law.” Fed. R. Civ. P. 56(c). In violations of National Labor Relations Act); Modin v. New York deciding the motion, a court must view the evidence and draw Cent. Co., 650 F.2d 829, 834 (6th Cir.) (statute of limitations 8 Mounts v. Grand Trunk Western R.R. No. 99-3151 No. 99-3151 Mounts v. Grand Trunk Western R.R. 5

a separate injury, not a continuation of the prior injury. See all reasonable inferences in favor of the nonmoving party. id. at 815. We asserted that if the injury had been a See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 continuation, it would be barred by the statute of limitations. U.S. 574, 587 (1986). The moving party bears the initial See id. burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 Mounts has not brought forth evidence that a separate (1986). If the moving party shows this absence, the injury or disease occurred within the three-year statute of nonmoving party must come forward with specific facts limitations. Mounts argues that a question of fact exists as to showing that there is a genuine issue for trial. See whether the change in his situation -- from being able to do Matsushita, 475 U.S. at 587. To meet this burden, the his job when he returned to work in 1995 to being disabled nonmoving party may not rest on the mere allegations in the from his job in 1997 -- constitutes a separable tort. However, pleadings. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at he has not submitted affidavits or other evidence from 324. medical professionals indicating that the hearing loss suffered over the past few years is a separate injury. In response to III. GTW’s motion for summary judgment, he submitted an affidavit from Dr. Victor VerMeulen, which briefly describes FELA is “a remedial and humanitarian statute . . . enacted Mounts’s hearing loss and opines that the loss is caused by his by Congress to afford relief to employees from injury incurred employment at GTW and that Mounts is “permanently in the railway industry.” Edsall v. Penn Cent. Transp. Co., medically disqualified from returning to his position on the 479 F.2d 33, 35 (6th Cir. 1973); see also 45 U.S.C. § 51 railroad.” (establishing employer liability); 45 U.S.C. § 54 (abolishing the assumption of risk defense as a matter of law). The FELA We decline to follow Mounts’s suggestion that this court statute of limitations, 45 U.S.C. § 56, provides in part: “No can and should adopt the rationale and holding of Kichline v. action shall be maintained under this chapter unless Consolidated Rail Corp., 800 F.2d 356 (3d Cir. 1986). In commenced within three years from the day the cause of Kichline, the Third Circuit permitted the employee to proceed action accrued.” on his claim for aggravation of an injury during the three years prior to filing suit. See id. at 356. “The fact that The Supreme Court, in the course of determining whether plaintiff was aware of the harmful effects of his exposure to a plaintiff’s claim for silicosis was barred by the statute of pollutants would go to his contributory negligence under the limitations, examined what “accrual” means in the FELA circumstances but might not bar his claim for aggravation statute of limitations. See Urie v. Thompson, 337 U.S. 163 during that period.” Id. at 361. The Third Circuit placed the (1949). The Court rejected the approach that “each intake of responsibility for establishing the extent of the injury that dusty breath” is a new cause of action, as well as the other occurred during this period on the plaintiff. See id.2 extreme, a rule that the employee should have filed as soon as he contracted the disease, before he even had any symptoms; In Aparicio, however, this court explicitly “disagree[d] with stating that a rule which held an employee responsible for the Third Circuit that the aggravation of an original injury is knowledge of the disease “at some past moment in time, unknown and inherently unknowable even in retrospect” would frustrate Congress’s purpose in enacting FELA. Id. at 2 The court, however, rejected Kichline’s argument that the cause of 169. Instead, “‘the afflicted employee can be held to be action did not accrue until his retirement when the harmful exposure to “injured” only when the accumulated effects of the diesel fuel, which allegedly caused his pulmonary disease, ceased. See id. 6 Mounts v. Grand Trunk Western R.R. No. 99-3151 No. 99-3151 Mounts v. Grand Trunk Western R.R. 7

deleterious substance manifest themselves.’” Id. at 170 Both of these approaches fail under this circuit’s precedent, (quoting Associated Indem. Corp. v. Industrial Accident which requires Mounts to establish a separate injury, thereby Comm’n, 12 P.2d 1075, 1076 (Cal. App. 1932)). The Court satisfying the three-year statute of limitations, before the court later solidified what has become known as the discovery rule, may conduct an examination of liability. This circuit has finding that a cause of action “accrues” when an employee interpreted the discovery rule to bar FELA claims from being knows of the injury and its cause. See United States v. brought more than three years after the initial injury and its Kubrick, 444 U.S. 111, 123-24 (1979) (distinguishing, in a cause were discovered. See Aparicio v. Norfolk W. Ry. Co., Federal Tort Claims Act case, discovery of the fact of the 84 F.3d 803, 814-15 (6th Cir. 1996). At the latest, Mounts injury from discovery of legal liability).1 knew of his hearing loss and its cause in 1993, when his hearing was tested and determined to be deficient; a loss Mounts argues against a statute of limitations bar under two Mounts himself attributed to his employment. approaches. First, Mounts asserts that the claim is not time- barred because the aggravation of his hearing loss constitutes The discovery rule applies even if the injury was later a separate injury and that the exposure at his GTW job worsened by the same employer: constitutes a separate tort for FELA purposes; or at least that a question of facts exists on this point. As proof, Mounts Any “aggravation” of the original negligently caused asserts that he returned to work in 1995 fully qualified and injury would only affect the plaintiff’s damages, and that, after exposure to noise at work, he was terminated in would not require a separate determination of liability or 1997 because of his hearing loss. Second, Mounts argues that causation. Furthermore, a rule permitting severability of his claim is not time-barred for the injury that occurred during a claim that an original, continuing injury has been the three years prior to filing suit, irrespective of whether that aggravated would contravene the purpose of the injury is considered a new injury, aggravation of an old injury, discovery rule articulated in Urie requiring Federal or the result of a separate tort. In other words, no matter what Employers’ Liability Act plaintiffs to use reasonable the court calls his worsened hearing, Mounts asserts that he diligence to discover the cause of an injury once the should be able to recover for damage to his hearing that injury manifests itself. occurred within the three-year statute of limitations period. Id. at 815. In Aparicio, the employee alleged that the railroad 1 negligently caused his carpal tunnel syndrome and In Kubrick, the Court stated: We are unconvinced that for statute of limitations purposes a epicondylitis. Beginning in 1987, Aparicio began to have plaintiff’s ignorance of his legal rights and his ignorance of the numbness and tingling in his right hand. These problems, fact of his injury or its cause should receive identical treatment. however, resolved themselves with minimal treatment for That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation approximately five years. See id. at 805-06. In 1992, may be in the control of the putative defendant, unavailable to Aparicio again sought treatment for pain in his hands and the plaintiff or at least very difficult to obtain. The prospect is wrists, was diagnosed with carpal tunnel syndrome, and was not so bleak for a plaintiff in possession of the critical facts that operated on. Id. at 806. In 1993, Aparicio was diagnosed he has been hurt and who has inflicted the injury. He is no with tennis elbow and could not return to his job. We upheld longer at the mercy of the latter. There are others who can tell the district court’s finding that a material issue of fact was him if he has been wronged, and he need only ask. created by Aparicio’s submission of an affidavit of a Id. at 122. physician who stated that his later (1992 and 1993) injury was