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Kosin v. Union Pacific Railroad Co.

United States District Court, E.D. Missouri, Eastern Division

November 6, 2019

CHARM KOSIN, individually and as the personal representative of the Estate of Marvin H. Kosin, Jr., deceased, Plaintiff(s),
v.
UNION PACIFIC RAILROAD COMPANY, Defendant(s).

          MEMORANDUM AND ORDER

          STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE

         This 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 time-barred.

         I. BACKGROUND

         On April 10, 2017, Plaintiff Charm Kosin filed this action alleging her husband, Marvin H. Kosin, Jr. (“Marvin”), [1] 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. Doc. 46.

         The 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.

         On 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, 8-10.

         Union 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.

         III. STANDARD

         Federal 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 in dispute.

         “Federal 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 ...


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