Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, 

Koontz, JJ., and Poff, Senior Justice 

GORDON GAY 

v. Record No. 961214 OPINION BY JUSTICE ELIZABETH B. LACY 

 February 28, 1997 

NORFOLK AND WESTERN RAILWAY COMPANY 

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY 

Thomas V. Warren, Judge 

 In this case, we consider whether a deposition was 

properly used as a basis for entering summary judgment and the 

proper standard for determining the accrual date of a cause of 

action under the Federal Employers' Liability Act (FELA), 45 

U.S.C. §§ 51 through 60. 

 On February 1, 1994, Gordon Gay filed a motion for 

judgment against his former employer, Norfolk and Western 

Railway Company (N&W), pursuant to FELA. Gay claimed that he 

was injured by exposure to diesel fumes and exhaust emitted by 

N&W's locomotives during his employment from September 8, 1956 

to December 9, 1993. N&W filed a Motion to Dismiss for Lack of 

Subject Matter Jurisdiction based on Gay's deposition and 

pleadings. N&W claimed that Gay's motion for judgment was not 

filed within FELA's three-year statute of limitation period, 45 

U.S.C. § 56, because his cause of action arose in 1989 when he 

was diagnosed with myelodysplasia, a form of leukemia, or 

chronic anemia. 

 At the hearing on N&W's motion, Gay argued that the motion 

was "essentially a motion for summary judgment" and objected to 

the use of his deposition in considering the motion. The trial 

court held that Gay had waived his objection to the use of the 
deposition, that the cause of action accrued when Gay was 

diagnosed in 1989, and, therefore, the three-year limitations 

period barred his action. We awarded Gay an appeal. 

 Gay assigns error to the trial court's ruling that he 

waived his objection to the use of his deposition. Gay also 

claims that reasonable people could differ as to when the cause 

of action accrued and, therefore, the trial court erred in 

holding that, as a matter of law, the cause of action accrued 

in 1989. We consider these issues in order. 

 I. 

 During the hearing on N&W's motion, Gay objected to the 

use of his deposition as a basis for summary judgment, relying 

on Rule 3:18 and Code § 8.01-420. The trial court held that 

Gay waived his objection because he did not raise it until 

after the motion was made, briefed, and argued. That ruling 

was error. 

 Rule 3:18 and § 8.01-420 impose a very specific condition; 

namely, the parties must agree to the use of depositions before 

they may serve as a basis in whole, or in part, for the entry 

of summary judgment. This condition requires some showing of 

acquiescence in the use of a deposition. The record in this 

case cannot support a finding that Gay agreed to the use of his 

deposition. Cf. Parker v. Elco Elevator Co., 250 Va. 278, 281 

n.2, 462 S.E.2d 98, 100 n.2 (1995) (no objection made at any 

time to use of deposition). Gay unequivocally objected to the 

use of his deposition before the trial court entered judgment. 

 We agree that the better practice would have been for Gay to 
have made his objection known earlier in the proceedings. 

Nevertheless, in the absence of any basis to conclude that Gay 

agreed to the use of his deposition, the trial court could not 

enter summary judgment based in whole, or in part, on that 

deposition. 

 Accordingly, the trial court erred in holding that Gay 

waived his objection to the trial court's use of his deposition 

and in entering summary judgment based on the deposition 

without agreement by the parties as required by Rule 3:18 and 

§ 8.01-420.*

 This conclusion requires that we reverse the 

judgment of the trial court and remand the case for further 

proceedings; however, because Gay's claim relating to the 

method of determining the accrual date of his cause of action 

will arise on remand, we also address this issue. 

 II. 

 The federal courts apply a discovery rule for ascertaining 

when an employee's cause of action accrues under the FELA. 

This rule, simply stated, is that the cause of action accrues 

when the employee "knows or should know" that he was injured 

and that the injury was work-related. United States v. 

Kubrick, 444 U.S. 111, 120 n.7 (1979) (citing Urie v. Thompson, 

337 U.S. 163, 169-170 (1949)); Townley v. Norfolk & Western 

 

 *N&W also argues that the trial court's use of the 

deposition testimony was not error because its motion was not a 

motion for summary judgment but a "Motion to Dismiss for Lack 

of Subject Matter Jurisdiction" and, therefore, Rule 3:18 and § 

8.01-420 do not apply. This argument is disingenuous. 

Regardless of the label N&W placed on it, this motion was 

functionally a motion for summary judgment and subject to Rule 

3:18 and § 8.01-420. 
Ry., 887 F.2d 498, 501 (4th Cir. 1989); Young v. Clinchfield 

R.R. Co., 288 F.2d 499, 503 (4th Cir. 1961). Formal 

confirmation by a physician or other expert that an illness or 

injury is work-related is not necessary for a cause of action 

to accrue. Townley, 887 F.2d at 501; Albert v. Maine Central 

R.R. Co., 905 F.2d 541, 544 (1st Cir. 1990). 

 N&W argues that the trial court correctly held that Gay's 

cause of action accrued in 1989 when he was diagnosed with 

leukemia because Gay testified that, at that point, he 

suspected his leukemia was caused by inhalation of diesel 

fumes. N&W relies primarily on Townley v. Norfolk & Western 

Railway for the proposition that an employee "knows or should 

know" that his injury is work-related when he "suspects" such a 

causal relationship. Our review of Townley, however, does not 

support N&W's reading of that case. 

 In Townley, the court considered the time at which a 

railroad employee "knew or should have known" that he had black 

lung disease. The employee had worked around coal dust from 

1948 to 1979. He suffered respiratory and heart problems for 

10 years before he retired on disability in 1979. The employee 

testified that he knew that other railroad workers exposed to 

coal dust had contracted black lung disease and that railroad 

workers were encouraged to apply for black lung benefits. In 

1980, the employee requested that his employer send him the 

information he needed to apply for black lung benefits. The 

employee argued that because he did not know that he had black 

lung disease, his cause of action did not accrue until he 
received a formal diagnosis of the disease from the doctor in 

1984. 

 In discussing when the employee's cause of action arose, 

the court in Townley stated that the employee's action "accrued 

no later than 1980 when . . . he suspected that he suffered 

from black lung and that his condition was caused by his work 

on the railroad." Id. at 501. This statement, however, does 

not mean that if a plaintiff "suspected" his condition was 

work-related he "knew or should have known" the injury was 

work-related. The full holding of the case is that, based on 

all the evidence, it was "obvious from [the employee's] actions 

that he possessed sufficient information that he knew, or 

should have known, that he had been injured by his work with 

the railroad [in 1980]." Id.

 An employee's mere suspicion of an injury or its probable 

cause, standing alone, is not the operative standard for 

determining when a cause of action accrues under FELA. Rather, 

all the relevant evidence must be considered. In making this 

determination, several factors have been identified, including 

the degree of inquiry made by the employee, the number of 

possible causes of the injury, whether medical advice indicated 

no causal connection between the injury and the workplace, 

DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026, 1031 

(5th Cir. 1984); the complexity of the employee's symptoms, the 

expert knowledge or diagnostic skill of the medical doctors or 

experts consulted, Young, 288 F.2d at 503-04; and the existence 

of a medically recognized and documented causal link between 
the employee's symptoms and his working conditions, Stoleson v. 

United States, 629 F.2d 1265, 1267 (7th Cir. 1980) (action 

brought under FTCA which applies same discovery rule applied to 

action brought under FELA). On remand, considering all the 

relevant evidence, if reasonable persons could disagree about 

when Gay "knew or should have known" that his injury was workrelated, the issue should be submitted to the jury. It is 

improper, however, to resolve the issue solely on the basis 

that an employee suspected that his illness was work-related. 

 For these reasons, we will reverse the judgment of the 

trial court and remand the case for further proceedings. 

Reversed and remanded.