Discovery Rule: Opinion Causes Headaches

I hear the train a comin'. It's rollin' 'round the bend[1]

Can you hear it? Listen carefully, really carefully if you live way up in Lake County. Or if you are in Memphis on Friday night, eating barbeque and listening to Ruby Wilson, the Queen of Beale Street, belt out the blues. There it is. You can hear it now. The sound of a lonely locomotive pulling a single freight car out of the Craven Yard in Chattanooga, making a brief swing down into the Peach State and then back up into Etowah, then northeast through the beautiful Tennessee valley to Knoxville, home of the Lady Vols.

The ultimate destination of the precious cargo? 505 Main Street.[2] The cargo? The application for permission to appeal in Henley v. CSX Transportion Inc.[3]

Thurston Henley, a railroad employee, brought a FELA lawsuit against his employer in state court in Chattanooga claiming that he suffered several injuries, including toxic encephalopathy, from long-term, on-the-job exposure to a chemical called Dowclene. He sought, and received, a jury verdict for money damages under FELA.

CSX appealed the adverse verdict and lost. One of the grounds for the appeal, and the one that will undoubtedly form the basis for the Rule 11 petition in the case, is that the trial judge erroneously directed a verdict on CSX's statute of limitations defense. Specifically, CSX claimed that Henley's claim should be time-barred under the discovery rule because he had knowledge of headaches more than one year before the date he filed suit.

The issue was promptly disposed of in the original opinion, but came back before the Court of Appeals on a petition to rehear, with CSX claiming that the court had misstated facts on the statute of limitations issue. The opinion on the petition to rehear[4] explained how it came to state the facts on the issue the way it did, politely conceded that what it wrote was not precise, and then proceeded to set the record straight by reaffirming its holding on what it described as the "core issue;" namely "whether Employee had requisite knowledge of the claimed illness, i.e., encephalopathy."

Here is the key language on the important issue of what triggers the running of the statute of limitations in a case where the "discovery rule" is applicable:

Employee is not suing Railroad for mere headaches; he is suing Railroad for a much broader and more serious illness. Headaches are indeed a symptom of that illness, but they are also a symptom of countless other illnesses. Does the mere fact that a person has a single discrete symptom, such as headaches, trigger such a broad duty to investigate that it starts the clock running on any subsequently discovered illness of which headaches are arguably a symptom " no matter how unforeseeably serious that illness might be? We think not.

The duty to investigate is, as we stated in our opinion, "condition-specific." It follows logically that there must be some reasonable relationship between the symptoms complained of and the condition underlying the cause of action, such that the discovery of the symptoms reasonably places the plaintiff on notice that he might have a more serious condition which merits further investigation. Indeed, this conclusion is mandated by the "principle that the statute starts to run when a reasonable person would know enough to prompt a deeper inquiry into a potential cause." No duty to investigate arises if a reasonable person would not, upon experiencing the symptom in question, reasonably suspect that something is seriously wrong that requires further investigation. Thus, the mere fact that an objective link between a symptom and a condition can be retroactively established does not necessarily mean that the discovery of the symptom triggered a duty to investigate as to the condition.

This does not mean, of course, that Employee's duty was triggered only when he became aware of every single symptom, or when he knew that those symptoms might mean he had encephalopathy. Such a holding would defeat the purpose of the "duty to investigate" rule altogether. However, again, the condition-specific nature of the duty means there must be some reasonable nexus between the symptoms in question and the ultimate diagnosis at issue.[5]

This language is a new way to articulate the discovery rule in Tennessee. It recognizes that the retro-scope always provides 20-20 vision and, in those few cases in which the discovery rule is applicable, requires the trial judge (and potentially the jury) to look at the issue differently than past decisions suggest. It troubles CSX far more than the $5 million judgment, and will form the main complaint on appeal to the Tennessee Supreme Court.

Does CSX wish it had not filed the petition to rehear? I hear, just over the chugging of the locomotive up the Tennessee Valley, yet another Johnny Cash song:

I fell into a burning ring of fire.
I went down, down, down
And the flames went higher.
And it burns, burns, burns,
The ring of fire,
The ring of fire[6]

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Notes

  1. Johnny Cash, "Folsom Prison Blues" (Sun Records 1955).
  2. This is the address of the Knoxville home of the Tennessee Supreme Court.
  3. No. E2007-00323-COA-R3-CV, 2008 WL 683755 (Tenn. Ct. App. Mar. 14, 2008), aff'd on reh'g (April 3, 2008).
  4. See 2008 WL 683755, at *18 for the text of the opinion on the petition to rehear.
  5. 2008 WL 683755, at *18 (citation omitted).
  6. June Carter & Merle Kilgore, "Ring of Fire," on Ring of Fire: The Best of Johnny Cash (Columbia Records 1963).

John Day John A. Day, a trial lawyer from Brentwood, spent the first 18 years of his life in north central Wisconsin living three blocks from the tracks of the Soo Line Railroad. He has been a Johnny Cash fan since he thought “down South” referred to Milwaukee.