United States District Court, E.D. Missouri, Eastern Division
CHARM KOSIN, individually and as the personal representative of the Estate of Marvin H. Kosin, Jr., deceased, Plaintiff(s),
UNION PACIFIC RAILROAD COMPANY, Defendant(s).
MEMORANDUM AND ORDER
STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE
matter comes before the Court on the issue of whether the
statute of limitations expired prior to the filing of this
action. The Court dismisses the matter because the action is
April 10, 2017, Plaintiff Charm Kosin filed this action
alleging her husband, Marvin H. Kosin, Jr.
(“Marvin”),  died from metastatic cancer, including
bladder, lung, and prostate cancer, as a result of his
exposure to various toxic substances and carcinogens in his
employment with Defendant Union Pacific Railroad Company.
Kosin brings her claim pursuant to the Federal Employers'
Liability Act, 45 U.S.C. § 51, et seq. On
August 22, 2018, Union Pacific filed a Motion for Summary
Judgment asserting the applicable statute of limitations had
run prior to Kosin filing her suit. Doc. 38. On September 24,
2018, the Court denied Union Pacific's Motion, finding
genuine issues of material fact in dispute, including when
Marvin knew or should have known that the conditions of his
employment with Union Pacific caused his metastatic bladder
cancer and whether reasonable investigation would have
revealed the cause of his cancer on or before April 16, 2011.
parties proceeded with discovery. On April 26, 2019, Union
Pacific filed a second Motion for Summary Judgment asserting
the medical records and expert testimony conclusively
demonstrated that neither Marvin's employment with Union
Pacific, nor any negligence attributable to Union Pacific,
caused his prostate cancer and lung cancer, and subsequent
death. Doc. 55. In response, Kosin withdrew her allegations
that Marvin's employment with Union Pacific caused his
prostate cancer and lung cancer and her allegation that his
death was causally related to his employment with Union
Pacific. Doc. 58.
October 15, 2019, the parties filed their pretrial materials.
The parties filed a joint stipulation of facts in which they
agreed to the following facts: Marvin was diagnosed with
bladder cancer on or about November 30, 2010; Marvin passed
away on April 16, 2014; Marvin's employment with Union
Pacific did not cause his prostate cancer; Marvin's
employment with Union Pacific did not cause his lung cancer;
and Marvin's death was not causally related to his former
employment with Union Pacific. Doc. 78, ¶¶ 5, 7,
Pacific filed its Trial Brief in which it again raised the
issue of the statute of limitations. Doc. 79. Union Pacific
argued the statute of limitations expired in 2013, and Kosin
did not file this action until 2017. Id. On October
23, 2019, the Court ordered the parties to provide
supplemental briefing by October 29, 2019, on the effect of
the withdrawal of Kosin's allegations that Marvin's
death was causally related to his former employment with
Union Pacific on the statute of limitations. Doc. 86. The
parties filed supplement briefing on October 25, 2019. Docs.
116, 117. The Court held oral argument on the statute of
limitations on October 31, 2019.
Rule of Civil Procedure (“FRCP”) 56(f) states:
Judgement Independent of the Motion. After giving notice and
a reasonable time to respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying
for the parties' material facts that may not be genuinely
district courts have the power to grant summary judgment
sua sponte when the losing party is given sufficient
advance notice and an adequate opportunity to submit evidence
in opposition.” Barkley, Inc. v. Gabriel Bros.,
Inc., 829 F.3d 1030, 1041 (8th Cir. 2016) (quoting
Chrysler Credit Corp. v. Cathey, 977 F.2d 447, 449
(8th Cir. 1992) (citing Fed.R.Civ.P. 56(f)). Here, Union
Pacific raised the issue of the statute of limitations in its
Trial Brief. Doc. 79. The Court issued an Order requiring the
parties to submit supplemental briefing on the issue, giving
the parties six days to file the briefs. Doc. 86. Both
parties accordingly submitted supplemental briefs, and both
submitted evidence with those briefs. Docs. 116, 117. On
October 31, 2019, the Court held oral argument on the issue
and repeatedly asked the parties if they had additional
argument or evidence they would ...