on the job others a couple of different ways to prove liability against a railroad one of which is in section fifty three in section fifty four of forty five united states code that says that there is violation of federal regulations at that strict liability with no contributory negligence so the evidence in this case basically came from two important witnesses mr walton who is a unit pacific manager of track maintenance and my liability expert allan blackwell  forty nine c f r part two thirteen the federal track safety standards that deal with safe movement of train traffic over tracks and what we're dealing with errors part of the union pacific mainline it's double track main line that goes all kind of freight trains on their manifest trains coal trains and part of the testimony was these very dangerous hazaras ethanol trains so the railroad is required by federal law to inspect the track at a regular basis and one of the ways they inspect it is by sun egypt geometry cars over the track and the geometry cars will detect surface defects in the rail in the period of time that mr white mr white was an employee of the union pacific as both a conductor and an engineer in the operative period of time operated trains primarily over the clinton sob where this track that we're dealing with is at issue and between two thousand and eight and two thousand and thirteen and looking at the jama tree car records there was six hundred and fifty one admitted federal track safety standards violations these are federal violations vial violations of federal law in addition there was one thousand and eighty two urgent effects which are almost violations of federal law to put that in perspective mr blackwell who was a manager of track maintenance for the union pacific in north platte for many years said that if he had four violations in a similar period of time that he'd be in explaining to his boss why should still have a job so this is  blackwell explained it as the worst inspected and worst maintain section of track he's ever seen in israel occur and these violations six hundred fifty one federal tracks safety standards violations were admitted by mr walton the r witness accounts with you temps going to plea pretty quick if you get to the fighting issue of the statue of limitations that would probably be helpful to us ok so the reason i mean that's kind of background because these track violations are what causes the in the track and i want to make the point that there are a lot of very serious violations a lot of these dips and a lot of potholes in this section a track that mr white operated on so he had a back injury back in one thousand nine hundred nine he went to work for of red herring in this case because both were doctors said he could work what happened with mr white as he's operating this rain as he hit these potholes and it's jarring it's like hitting a big pot hole in the street if you're going down at fifty or sixty miles an hour fillings out of your teeth it's a big deal i mean the railroad engineering rules say that you have to maintain level surface on the track because when you have these drainage issues that cause these track defects of federal correct safety sta violations you can break couplings which can cause of the realm and you could break the springs on the locomotive and five hundred thousand pound locomotive from hitting these potholes you can brake posters and the on the train cars so it's a significant trauma when you hit these paddles and what mr white explained is that during a period of time that he was operating and he hit one of these paddles maybe once a day he would have pain in his back but there's no evidence in the record whatsoever that it was anything other than a transitory pain and part of the record he described it as if you stuck your toe you stub your toe you have some transitory pain and it goes away there is no evidence in this record prior to two thousand and ten that mr white had an injury or what about his testimony and a questioning about experiences in two thousand and seven in two thousand and eight that seemed to be attributable to him and his work on the mirroring absolutely and what he said is actually in his deposition testimony that judge longstaff quoted going back to two thousand and one the very first time he operated on a train and it hit one of these potholes he would feel pain in his back a jarring and even some pain down his leg but it was there's no evidence it was anything other than transitory pain and he compared it to study or toll so that's not an injury mr white last had medical care for his back injury and in two thousand he had no medical visit no treatment no medical record no record as employment of any back complaints any back injury any back problems until two thousand and ten so you have his testimony saying that this was not an injury that he didn't know he was injured till two thousand ten you have him testify that he had good quality of life you have been testifying he never missed a day of work for ten years because of any back problems from in two thousand and nine he had a sprained shoulder and he was treated with an orthopedic surgeon of those visits in two thousand and nine he never had any complaint of back pain with at every visit to the orthopedic surgeon he never had any complaints of a back injury until two thousand and ten when he started treating and it was really a serious downward spiral so he's testifying that it's pretty bad pain once so ron yes i knew it was from riding in on the over the tracks  that was that was a question that was asked of him and i don't know that he compared it to stepping the tao ditty while i was on that actually that's the only evidence in the record where it talks about whether or not this pain when he had it was transitory that but there is no evidence that it was anything other than transitory pain there's no evidence that this pain continued even for the course of the run because he went back to work the next day he never missed a day of work because of back pain and i think that's the what the sudden circuit talks about is that is that pain is not injury just because you have this incident where you have a little pain that doesn't mean you're injured and still from a civil procedure standpoint and when you're looking at a motion for judgment to close a pla railroad that these complaints of pain that he had from hitting these potholes was an injury but there was no evidence of that so what it what the judge is supposed to do especially in a field case you know at feel like case for both the plaintiff and the defendant a critical part of the right given by congress to both parties they have a jury determine questions of fact so especially in a nothing l a case when you're looking at the other it's here and there is evidence of pain but no evidence of injury and under undisputed unequivocal testimony that he had good quality of life until two thousand and ten he never missed a day of work until two thousand and ten there's no medical record no employment record no record anywhere and of back you know how would you articulate when injury occurs so that's a good question i mean when i think in this case it's manifest itself when it becomes when he knows that he has an injury and he knows the cause of it serious enough that he went and had medical care when it starts affecting his life you know these are employee seeks medical care that's when it's an injury at the probably not right is it because it could be an injury without him seeking care and that's the fries case sometimes so how would you articulate when it becomes an injury i think it's multi  you know one of the cases they rely upon is sweat were in sweat heat outside the limitations period he had a doctor visit and his testimony more than three years before he filed the lawsuit that the doctor gave  gone to a doctor and said you know every time i go on one of these trips i hit one of these ruts and i get this bad pain down my leg and it lasts for half an hour would that be an injury then you know i think if you look at all the factors a jury could say that was an injury i mean why isn't that this case then he just didn't go to the doctor but he had the injury because it's a question of fact because on the other side of that though to look at the evidence as totality you had white saying he didn't have an injury he didn't know he had an injury that the evidence is that this was nothing more than transitory pain like stubbing your toe there was no medical record he never missed a day of work he had you know good quality of life he did all the things that he normally did and it wasn't till two thousand and ten that he had all these you know too much major surgeries in two thousand and thirteen he had a spine fused from l three to ass one steel rods put in his back and then two thousand and fifteen it was revised he has really serious injur euro case you know that guy he was a local avenger brigance silica sand every day for thirty years and you know i'm sure some days on the road he was coughing maybe he had some chest pain but the supreme court that's a jury question when  he knew or should have known what's the evidence we've talked about quality of life what what he testified to that was a change in quality of life you're saying he had a good quality up until the time he went to the day it was three things  one his work that he was able to work every day and then he wasn't and then he wasn't yes he was he tried to go back to work i think six trips after his surgery in two thousand and thirteen and the track was still in the same condition he was unable to he had he had family time his two children he was able to do things with his children and he was able to do things that he like to do so those are the three things wasn't able to do those two things those second two things after he went to the doctor after he had these while he had major back surgery  and judge greer church had the exact same facts but only in two thousand and six or two thousand and seven but it was the exact same facts and just wants to have side this is a question of fact for a jury so you know between judge griffin are saying that he weighed the testimony which you can't do the weighing of the evidence the evidence overwhelming evidence showing that there was a question the fact that the jury could credit my man's testimony mr white's testimony that he had quality of life there's no doctor visits he did know of an injury  you know the judge weighing the evidence and judge longstaff saying who's a result jurors reasonal minds could differ you know he wrote a twenty five page opinion analyzing the same evidence saying that this is a jury question so i'd like to reserve two minutes it please the court morning honors before i dive into pacific's arguments i'd like to correct a couple of things that were said in plaintiff's argument number one plaintiff never stated on the record that he compared his pain to stabbing his toe as your honor pointed out he was that have you experienced in your life stabbing a toast something like that plaintive said yes he never compared the pain that he experienced a writing locomotives to a transit pain but mr white said was that every single shift in two thousand and seven two thousand and eight it least once a day he experienced pretty bad pain that reverberated from his back down his legs that he knew in that moment the pain was caused by his work additionally plaintiffs did not testify that he wasn't sure if he was injured but plaintive testified to on direct exam questions elicited by mr burgess was that when he came to work in the road in two thousand and four he was all healed up from his back injury from hundred nine and that's critical because one of the arguments made in plaintiff's brief is that mr white didn't know whether or not this injury was caused by his work but what we know is that plaintiff testified page five sixty three of the that he did not have any medical problems while working in two thousand and four he then went on to testify at the sort of context your honour's at pages five seventy three through five seventy four that he never experienced pain in his back doing any other activities he never experienced pain in his back outside of work even experienced in this back when he was riding horses in spirits pain in his back when he was doing activities with his children the only time he experienced it was when he was at work and that's critical wouldn't that  it wasn't a bigger injury that was affecting his life generally that it was just something that you know when you go to work and whatever your work may be there something annoying about it it happens about once a day but it doesn't happen when i'm riding horses or playing with my kids we're there are two things that point first as he goes to affecting his life plaintiffs life was affected in the same way both before and after this incident planes have testified on the stand that his pain he told his doctors that he had had that pain throughout the time it worked pacific plant it did go back to work after surgery in fact he held four jobs after his surgery said present to you all that after the surgery he had no quality of life of life is inconsistent with the record mr white testified that after he had that fusion surgery he then went to work breaking horses at seven gables he then went to work as a fence installer and he also went to work as moffitt detail in cars so he was working both before and after the surgery so to say that he had no quality of life afterwards is not supported by the record additionally as it relates to doing things with his children mr white testified on cross examination as did his wife his ex wife mysteries that after the surgery they did go out they bought a farm they were able to do animals play with their children so mr white's quality of life both before and after the incident was affected but what mr white said was that there was no way for him to attribute the pain he was feeling to anything other than work and w critical here it's an objective person standard it's not whether or not mr white testified on the stand it didn't know i was injured it's whether or not a reasonable person looking at the contacts would determine that somebody has a duty to investigate and mr white knew no later than two thousand and eight that he was experiencing this pain on a daily basis and this wasn't just intermittent aches and pains this was a normal body soreness as you point out this is a specific pain in a specific location that mr white admits i the same pain for which he ultimately sought medical treatment this is pain in the low back that he had ridiculous with the down his legs and so it's not just general muscle soreness i go home at the end of the day i don't feel good this is an incident that occur fact that by two thousand and eight he was on notice of the fact that he was experiencing pretty bad pain in his lower back on a daily basis that shot down his legs and in that moment he associated it with the work he was doing that is more than itself suppose the first time he went over one of these bumps he had this pain in the back is that the injury then or does it take a while for it to accrue to the take off of the injury when in a cumulative case such as this it would take a while for that to  so one thing as it's kelly pointed out just on one day you feel a little bit of pain but this is a consistent pattern this is not trans you know when this injury occurs it on the third day or after two years or when when do you say the injury occurred the injury occurs when a reasonable person with think i need to investigate this i cannot sit around and wait so would it be the first week would it be the second week it likely your honor would be to the point where you think this isn't going away this is something that's transience and in this case mr white said that when he was working in the yard back in two thousand and four through two thousand and six he would experience pain when he was riding in the yards in a locomotive it wasn't until two thousand and seven and two thousand and eight that that pain got the point where he was experiencing it when he went over a definitely time and he was having the pain running down his leg so it would be at that point looking standing back and looking in the greater context that's when he's on notice and the reason for the hot is because you can't allow a person to sit and wait and not do anything when they know that something has occurred so what mr bridges argued is that you don't know you're injured until you have a medical diagnosis and as your honor pointed out the court courts have been unanimous  that's an injury or is it still multiple times of it going down the leg it would be it would be your honor when when that person knows when a reasonable person would know so in know what they'll know what would know that they have something that is going on inside their body that they should investigate so yes when it's when you have pain on a daily basis and say for a month if you're going over run and every time you do something you feel a burning pain that's pretty bad and you know it's being caused by something that's when y the burden shifts to that person to say you know what i have a duty to investigate this if it is the court noted in green that when it's just some sort of transit pain and it's no more than a scratch there's certainly no need for you to file an order to preserve your right when this is happening day in and day out so your honor can't give you a specific number of days because i think it is multifactorial but when you were expelled but here the court is saying as a matter of law it occurred at some point more than three years before the specific date with the court decided was that at the latest two thousand and eight the cumulative effect of four years of an individual experiencing this kind of pain that shoots down their leg that they in their own mind are so seeding with work at that point there's no argument that a reasonable person when armed with those facts both that they know they're having continuous symptoms and that those symptoms are associated with the work this was and there was nothing transients about this this was a person who said this happened every single time additionally i think by transit he meant that it went away before he went home that night and that's not what was testified to yana was testified to is that when he would go home on the weekend the pain would get better and then we would come back to work it would reappear so he never said and there's not a citation in the record where it says that it just lasted for a few minutes and that it didn't impact him again it indeed the medical diagnoses the doctors who testified said that mr white told them he had been experiencing this pain for years so he can he categorized it and it was right and that the doctor stated he had had chronic pain and the mr white when he was questioned why did you tell the doctors you had had chronic pain for ten years he said i guess i w honest i wish i hadn't said that because you know now looking back but he admitted to his own doctors that pain and chronic it was his words that was entered into evidence by the doctor so this was not transmit pain it was the exact opposite the evidence presented at trial was that mr white himself used the word chronic pain when he told his doctors about the pain that had happened ten years additionally honors and you've seen the record the evidence presented at trial was not the same factual scenario that the district court ruled on a couple of years earlier the evidence presented on trial the evidence that the jury was going to be asked to decide upon is that mr white testified that that pain between two thousand and seven and two thousand and eight was something that he felt in his back accrued by the summer of two thousand and nine and the reason that the court determined that was because mr sweat was experiencing symptoms in his hands that he associated with the use of hands tools as well as symptoms in his shoulder that he associated with the use of ha the fact that there are than one doctor's visit related to carpal tunnel syndrome nov fifteenth of two thousand and nine fifteen days before the burning of the statute the court that that was part of the analysis there was no medical care as it related to the shoulder and the court his work and that's exactly what we have in this case we have a man who is on notice that he has symptoms in his lower back he is on notice that those symptoms only occur when he is doing one activity he's on notice that they're pretty bad and they go down his leg and he's medical diagnosis that it isn't this an opposite argument though to that you don't want to encourage every pain so he has a he has a pain down his leg on day one you got to go to the doctor you know there's the flip side of your argument you're sort of policy argument that the flip side of that argument has been dealt with several times your honor and the flip side of that argument is of course is the seventh circuit note in green every scratched does not need to be litigated it's only when an angry in that kind of contrast that is green the woman sued claiming that her shoulder was uninjured three times over the past fifteen years she had had an instance of shoulder pain when somebody has yes one instant of pain one instance of a low back pain you don't need to do that you're not on notice that you're potentially injured but when that pain happens day in day out in the same location then you are on notice that you've been injured so if somebody simply has muscle soreness one day goes to the doctor and you know my shoulders kind of hurt and they say ok well i used it and then ten years later they have an injury at work it makes times that they didn't need to suit ten years earlier because of something that happened on one specific instance the factual scenario here is very different and this decided it was on this date that the statute accrued but the district court is based on the record evidence that was presented to the jury a reasonable person who's armed with those facts is on notice that they've been injured and that they have a responsibility to investigate it and here we don't need to apply the reasonable person standard because planes have admitted he associated it with work in many of the cases cited in these briefings if the district court saying well he should have known that it was associated with work this isn't a should have known situation plaintiff admitted he knew what was causing his pain and he did nothing and for those reasons the district court's hands were tied because the statute of limitations a timely filed matter is a condition precedent to recovery so for me and liability and causation when there was conflicting testimony like we've heard here i don't i don't think that's proper i don't think it would stand in a feel like case if there was any evidence in this record that there was an injury not just this transitory pain that went away and he could go home on weekends and ride horses and go to work at night during this and exact same period of time riding horses and doing work into his stuff with his kids having no pain i mean there is evidence of it being transitory when he hits these potholes and you know i mean it would have been proper to green a directed verdict for me so it's not proper to direct the verdict for them when there's conflicting evidence especially when the judge weighs the evidence the reason i talked about at the beginning how bad this track was is because maybe if they maintain their track he could have kept working till through today without ever having back pain so you know the fact that they're saying that because he felt back pain every day that that's somehow help that's because they had six hundred fifty one track violations that they would have maintained their track as required to by law he may never have been injured he may never had any pain he would have nothing so how can you say when you know hitting these tracks violations that could break springs and breakables through and causes transitory pain to him becomes an injury for statue limitations purposes under the i feel a that's something that the jury has on the side the evidence was conflicting and certainly the jury could accredited all the testimony that shows he did not have an injury just as transitory pain and felt that you know what we don't think he was really hurt until two thousand and one two thousand and ten when he when he started treating the pain really got bad so i ask that you reverse the directive finding the judgment directive for the railroad and let a jury decide this case you know there's extreme liability against a railroad with catastrophic injuries f e l a should be liberally construed to cap and state these injured