In Anderson v. Union Pac. R.R., 7:18-cv-5010 (July 6, 2020), the Nebraska federal court granted the defendant railroad’s motion for summary judgment on the statute of limitations in a toxic action filed under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. The plaintiff filed the action on August 21, 2018 claiming he was exposed to diesel exhaust and alleged toxic materials while he worked for the railroad which caused him to develop cancer. Plaintiff was diagnosed with colon cancer on January 3, 2013.

The defendant railroad filed a motion for summary judgment arguing plaintiff’s action was barred by FELA’s three-year statute of limitations, 45 U.S.C. § 56, which provides that no action shall be maintained unless commenced within three years from the day the cause of action accrued. A claim in a toxic tort action accrues when the plaintiff knew or should have known of the condition and its potential cause. Both components require an objective inquiry into when the plaintiff knew or should have known in the exercise of reasonable diligence the essential facts.

The Court held the plaintiff had an affirmative duty to reasonably inquire as to the cause of his cancer, and it rejected plaintiff’s argument that only actual knowledge of the cause is enough to make a claim accrue under FELA. Plaintiff knew he had cancer by January 2013 so he knew of the condition. Although plaintiff claimed he did not know whether his alleged work-related exposures caused his colon cancer, the Court held plaintiff knew the essential facts necessary to impose a duty upon him to investigate any potential work-related cause of his cancer. Irrespective of whether he actually performed that investigation, plaintiff’s three-year period to file suit began when he was told he had colon cancer, and as such it expired in January 2016. Because plaintiff did not file his complaint until August 2018, it was time barred as a matter of law. See Anderson v. Union Pac. R.R., 7:18-cv-5010 (July 6, 2020).