Judge Kerry Bensinger, Case Number: 20STCV49348, Date: 2024-08-19 Tentative Ruling

This is a negligence case arising under the Federal Employers’ Liability Act (FELA). Plaintiff Carnell L. Leggett (Leggett or Plaintiff) worked for Defendant BNSF Railway Company (BNSF) from 2002 to 2020, beginning as a laborer and later, as a machinist. During that time period, Leggett was exposed to loud noises and suffered hearing loss. BNSF provided hearing tests to Leggett, the results of which indicated hearing loss. Leggett alleges that BNSF failed to provide sufficient hearing protection and failed to warn of frequent loud noise generated by his co-workers in the performance of their duties. Leggett further alleges he first discovered he was suffering from hearing loss and tinnitus in 2019.

On December 28, 2020, Plaintiff filed a form complaint against BNSF for negligence under the provisions of FELA, 45 U.S.C. §§ 51 et seq.

When reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿ A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿ (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿ A defendant seeking summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿ (Code Civ. Proc., § 437c, subd. (p)(2).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿

“Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)¿The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿ [Citation.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]” ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿¿

Plaintiff asserts twenty-seven (27) objections to BNSF’s evidence in his separate statement in opposition to the motion for summary judgment. Plaintiff’s objections are not in the proper format. “[California Rules of Court,] [r]ule 3.1354(b) dictates the format in which evidentiary objections must be submitted: ‘All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections on specific evidence may be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.’” (Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8.) It is not an abuse of discretion for the trial court to decline to rule on improperly formatted objections or to deny an opportunity to reformat the objections. (Id.)

BNSF submits five (5) objections to Plaintiff’s exhibits, three (3) objections to the Declaration of Victor Russo, and eight (8) objections to the Declaration of Carnell Leggett. The court will address them in turn.

Plaintiff’s Exhibits. The court declines to rule on these objections, with the exception of Exhibit 6, because they are not relevant to the disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).) Objection 4 to the excerpts of the Deposition of Carnell Leggett identified as Plaintiff’s Exhibit 6 is sustained.

Declaration of Victor Russo. The court declines to rule on these objections, with the exception of Exhibit 6, because they are not relevant to the disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).)

Objection One: Sustained in part and Overruled in Part. “I did not experience symptoms of hearing loss … before 2019” is Sustained. (D’Amico v. Board of medical Examiners (1974) 11 Cal.3d 1 (D’Amico).) The portion related to tinnitus is Overruled.

The following points are not in dispute: (1) Plaintiff was exposed to frequent loud noise during his employment with BNSF; (2) Plaintiff was provided with hearing protection[1], and (2) Plaintiff’s hearing was tested by BNSF as part of BNSF’s hearing conservation program.

Under the three-year statute of limitations for FELA actions, BNSF argues Plaintiff must prove his claim accrued on or after December 28, 2017, which is three years before Plaintiff filed his Complaint. BNSF argues Plaintiff’s claim for negligence argued accrued before December 28, 2017, because Plaintiff knew or should have known before that date (based upon numerous hearing tests) that he suffered from hearing loss and his job was the possible cause of his hearing loss. Plaintiff counters that he first discovered the issue in 2019 and, even if it manifested earlier, the hearing loss did not become severe enough to be a disability until after December 2017. The sole issue to be decided is whether Plaintiff’s claim accrued in 2017 or 2019. For the reasons discussed herein, the court finds that Plaintiff’s claim accrued prior to December 28, 2017. Plaintiff’s single cause of action for hearing loss under FELA is time-barred.[2]

“While injured employees in California generally are entitled to workers’ compensation benefits regardless of whether the employer was at fault (Lab. Code, § 3200 et seq.), those benefits are not available to railroad employees who suffer on-the-job injuries. Instead, their right of recovery is governed by FELA, which permits recovery only if the employer acted negligently. [Citations.] A FELA action may be brought in either federal or state court. [Citations.] ‘When, as here, a FELA action is brought in state court, state law governs procedural questions, while federal law governs substantive issues. [Citation.] State procedure does not apply, however, if it results in the denial of a federal right granted by Congress.’ [Citation.]” (Fair v. BNSF Railway Co. (2015) 238 Cal.App.4th 269, 275 (Fair).)

In Monarch v. S. Pac. Transp. Co. (1999) 70 Cal.App.4th 1197, the Second Appellate District gathered federal authorities to describe statute of limitations in FELA cases. It stated:

The FELA provides that, “No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.” (45 U.S.C. § 56.) Compliance with the three-year statute of limitations is a condition precedent for recovery in a FELA action. (Emmons v. Southern Pacific Transp. Co. (5th Cir.1983) 701 F.2d 1112, 1117; Frasure v. Union Pacific R. Co. (C.D.Cal.1991) 782 F.Supp. 477, 479.) In cases of latent or progressive injuries, the “discovery rule” directs that the cause of action does not commence to run until the plaintiff knew or should have known of the injury and its cause. (United States v. Kubrick (1979) 444 U.S. 111, 122–123; Dubose v. Kansas City Southern Ry. Co. (5th Cir.1984) 729 F.2d 1026, 1028–1029; Whitman v. CSX Transp., Inc. (E.D.Mich.1995) 887 F.Supp. 983, 989.)

Under the discovery rule, the test is an objective inquiry into whether the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury and cause. (Albert v. Maine Cent. R. Co. (1st Cir.1990) 905 F.2d 541, 544; Townley v. Norfolk & Western Ry. Co. (4th Cir.1989) 887 F.2d 498, 501; Williams v. Southern Pacific Transp. Co. (S.D.Miss.1992) 813 F.Supp. 1227, 1231.) Constructive rather than actual knowledge of the fact of causation triggers a duty to investigate the possible causes of injury. (Fries v. Chicago & Northwestern Transp. Co. (7th Cir.1990) 909 F.2d 1092, 1096; Albert v. Maine Cent. R. Co., supra, at p. 544; Nemmers v. U. S. (7th Cir.1986) 795 F.2d 628, 631–632; Williams v. Southern Pacific Transp. Co., supra, at p. 1232.) Thus, in accordance with the objective test, “definite knowledge” that the injury is work related is not necessary in order for the cause of action to accrue. (Albert v. Maine Cent. R. Co., supra, at p. 544; Dubose v. Kansas City Southern Ry. Co., supra, 729 F.2d at p. 1031.) Once the plaintiff believes or suspects that the “potential cause of his injury” is work related, an affirmative duty to investigate is imposed. (Williams v. Southern Pacific Transp. Co., supra, at p. 1232, italics added; see also Frasure v. Union Pacific R. Co., supra, 782 F.Supp. at p. 480.) “A plaintiff need not be sure which cause is predominant, as long as [he] knows or has reason to know of a potential cause.” (Tolston v. National R.R. Passenger Corp. (7th Cir.1996) 102 F.3d 863, 865, italics added; see also Fries v. Chicago & Northwestern Transp. Co., supra, at p. 1096; Whitman v. CSX Transp., Inc., supra, 887 F.Supp. at p. 989.)

As discussed above, the discovery rule has two parts: (1) knowledge of the injury and (2) knowledge of the 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 of injury and cause.” (Fries, supra, 102 F.2d at p. 1095.)

BNSF argues that Plaintiff knew or should have known both that he suffered from hearing loss prior to December 2017, and that his employment was the cause of the injury. BNSF submits evidence that Plaintiff knew of his hearing loss because he was given hearing tests every year from 2004 to 2018 (with the exception of 2009) which demonstrated his hearing loss. (BNSF’s Undisputed Material Facts (UMF) 6, 8, 9.) The testing results from each year show some level of hearing loss in one or both of Plaintiff’s ears. (See UMF 10-22.) Further, each hearing test results report advised Plaintiff to see an audiologist or physician regarding his hearing due to the measured hearing loss or to follow up for further evaluation. (UMF 23-25.)[3] Plaintiff initialed, signed, and dated these reports of hearing test results. (UMF 7, 10-22.) At his deposition, Plaintiff admitted he understood that several of his hearing tests showed he was suffering from hearing loss in both ears. BNSF submits sufficient evidence to show Plaintiff knew or should have known by 2017 that he was suffering hearing loss from work-related noise exposure.

The burden shifts. Plaintiff opposes summary judgment on the following grounds: (1) he first learned he suffered from cumulative hearing loss in 2019; (2) BNSF never advised him at any point that he had developed cumulative hearing loss; (3) he never complained of hearing loss prior to 2019; and (4) no medical professional advised Plaintiff that his job with BNSF was causing hearing loss and that he needed to stop working that job.

Plaintiff misstates the operative legal test. Under the discovery rule, the test is an objective inquiry into whether the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury and cause. (Albert v. Maine Cent. R. Co., supra, 905 F.2d at p. 544.) Constructive rather than actual knowledge of the fact of causation triggers a duty to investigate the possible causes of injury. (Fries v. Chicago & Northwestern Transp. Co., supra, 909 F.2d at p. 1096; Albert v. Maine Cent. R. Co., supra, at p. 544; Nemmers v. U. S., supra, 795 F.2d at pp. 631–632; Williams v. Southern Pacific Transp. Co., supra, at p. 1232.) Thus, in accordance with the objective test, “definite knowledge” that the injury is work related is not necessary in order for the cause of action to accrue. (Albert v. Maine Cent. R. Co., supra, at p. 544; Dubose v. Kansas City Southern Ry. Co., supra, 729 F.2d at p. 1031.)

Here, it is undisputed BNSF provided hearing tests to Plaintiff for most of his employment with BNSF. Every hearing test indicated Plaintiff suffered hearing loss. His hearing loss manifested well before 2017. Accrual does not delay until the injury reaches severity or disability.[4] As the court stated in Fries, “[t]hat defendant’s injury had not reached its maximum severity [ ] but continued to progress does not affect this result. (Citation.)” (Fries, supra, 909 F.2d 1096.) The Fries Court went on to state: “The Urie Court sought to ameliorate the harshness of statutes of limitations when the injury is hard to detect at its inception. In order to do so the Court adopted the rule that in such circumstances the plaintiff cannot be said to know of the injury—although incurred or instigated at an earlier point in time—until it manifests itself to the individual. What the Urie Court did not do was provide an escape for plaintiffs who are aware that some type of injury exists yet who choose to ignore it by failing to seek diagnosis and investigate the cause. (Citation omitted.) The tolling permitted by Urie only extends the limitations period to the date when the injury manifests itself, not beyond.” (Id. at p. 1095; see also Whitman v. CSX Transp., Inc. (1995) 887 F.Supp. 983, 991 [“The court recognizes that under the discovery rule, a plaintiff’s claim could accrue when his hearing loss was minimal, and the statute could expire before the plaintiff adjudged his hearing loss sufficiently severe to warrant bringing suit”].) Moreover, “claims for hearing loss may accrue within the meaning of 45 USC § 56 before they are formally diagnosed by a physician or other health care provider.” (Whitman, supra, 887 F.Supp. at p. 992.) Accordingly, the test is “whether the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury.” (Monarch, supra, 70 Cal.App.4th 1197 at pp. 1203–04.) Applying an objective test, Plaintiff knew or should have known by 2017 (and perhaps earlier) he suffered from hearing loss. Indeed, the results of the tests confirm his hearing loss. And he confirms knowledge of the results from the hearing tests.

Similarly, Plaintiff knew or should have known his job with BNSF was the cause of the hearing loss. The due diligence requirement imposes on a plaintiff, who has reason to suspect his injury is work related, to take steps to see whether in fact that is the case. A reasonable person whose employer tells him that he must wear hearing protection, requires him to participate in a hearing conservation program, and gives him annual hearing tests would infer that his job poses a threat to his hearing. Plaintiff was on ample notice his job as opposed to his age was the likely cause of his hearing loss. Plaintiff’s allegation that BNSF did not actually tell him his job was the source of his hearing loss does not excuse his failure to exercise reasonable diligence in investigating his loss of hearing. After all, BNSF regularly conducted hearing tests of its employees, including Plaintiff, as part of a hearing conservation program. He similarly testified that he was exposed to loud noises in the train yard where he worked. Moreover an “injured plaintiff need not be certain which cause, if many are possible, is the governing cause but only need know or have reason to know of a potential cause.” (Fries, supra, 909 F.2d at p. 1095.)

Although raising an issue of fact, the statute-of-limitations defense may be properly disposed of by summary judgment if “where the uncontradicted facts established through discovery are susceptible of only one legitimate inference[.]” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.) Here, the uncontradicted facts are susceptible of only one legitimate inference: Plaintiff knew he suffered from hearing loss based upon the test results and notices from BNSF. Plaintiff knew or reasonably should have known his employment was the cause of his hearing loss.

Plaintiff did not bring this action until December 28, 2020. Plaintiff’s cause of action accrued before December 28, 2017. The FELA cause of action is time barred. Plaintiff fails to raise a triable issue of material fact.

[1] Plaintiff was provided with Condur earplugs 33dB, Bell earplugs 25 dB, and Portwest Classic Ear Protection QB2HYG earplugs. ( Plaintiff’s Responses to BSNF’s Special Interrogatories Nos. 119-122.)

[2] The parties discuss hearing loss and tinnitus together as one injury. In his declaration, however, Plaintiff testified that “[t]he first time I had any concerns about tinnitus was in late 2019. I therefore made an appointment to see my primary care physician, Dr. Jesse Guadiz, on January 15, 2020, because I had suddenly started to experience ringing in my ears.” (Legget Decla. at ¶12.) To the extent Plaintiff claims tinnitus is a separate injury from hearing loss, the record is undeveloped. Plaintiff does not submit any evidence to support the proposition that tinnitus and hearing loss are distinct injuries. (See, e.g., Mix v. Delaware and Hudson R. Co. (2d. Cir. 2003) 345 F.3d 82, 90 [“A plaintiff may recover for distinct injuries he suffers during the three-year period preceding the suit. Had Mix proffered sufficient evidence to support his argument that “tinnitus” and “hearing loss” are separate conditions, and that he began to suffer from the latter affliction only during the statute of limitations period, we would have vacated the district court's judgment on this basis. However, the undisputed record is clear that Mix suffered from “hearing loss” as early as 1993.”].) As discussed above, the record shows that Plaintiff suffered hearing loss well before 2017. The court will discuss with counsel the difference between hearing loss and tinnitus and whether a different statute of limitations analysis applies.

[3] For example, excerpts of language from the Hearing Test Notification Report included: “The results of your hearing baseline test indicate that you have some loss of hearing, based on nationally recognized criteria. There can be many causes of hearing loss, some of which are medically treatable. Therefore, you should seek the advice of an audiologist or physician concerning your hearing ability. Always remember that exposure to loud noise, without the use of hearing protection, will eventually result in hearing loss. When you are exposed to loud noise on the job you are required to wear hearing protection as prescribed by BNSF Safety Rules.”; “The results of your hearing test indicate that further evaluation of your hearing by our consultants is necessary. You need to call the Examinetics Medical Department at (888) 634-1011, option 3 to discuss the evaluation needed. You will receive final results following this evaluation.”

[4] Under Urie, the United States Supreme Court stated that when the specific date of injury cannot be determined because an injury results from continual exposure to a harmful condition over a period of time a plaintiff’s cause of action accrues when the injury manifests itself. Plaintiff argues the date of accrual is not when the injury manifests itself but when the injury become severe enough that a plaintiff should have known the condition would lead to a disability. Plaintiff relies upon the California Supreme Court’s holding in Coots v. Southern Pacific Co. (1958) 49 Cal.2d 805 (Coots) to advance this argument. Plaintiff’s citation is inapposite. This court is bound to follow the standard set forth by the United States Supreme Court in Urie and Kubrick. Because the discovery rule applicable to FELA and other federal claims statutes is a matter of federal law, opinions by the United States Supreme Court interpreting that rule control over inconsistent opinions by any other court. The California Supreme Court’s 1958 decision in Coots is inconsistent with the High Court’s 1979 decision in Kubrick.