COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00250-CV

BNSF RAILWAY COMPANY APPELLANT

V.

JAMES E. PHILLIPS APPELLEE

----------

FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

----------

DISSENTING OPINION

----------

The evidence is legally insufficient to support the jury’s finding that 

Phillips’s claims did not accrue before April 13, 2004, and to the extent that 

Phillips’s experts relied upon epidemiological studies to prove that his exposure 

to vibratory forces from rough riding locomotives caused his injuries, they made 

no effort to demonstrate that the studies met the mandatory requirements for 

scientific reliability established in Merrell Dow Pharmaceuticals, Inc. v. Havner, 
2

953 S.W.2d 706 (Tex. 1997), and reinforced in Merck & Co. v. Garza, 347 

S.W.3d 256 (Tex. 2011). I therefore dissent.

A claim under the Federal Employers’ Liability Act (FELA) “accrues when a 

plaintiff knows or should know that his injury is work related, that is, when a 

plaintiff is aware of the critical facts concerning his injury and its causation.” 

Bealer v. Mo. Pac. R.R. Co., 951 F.2d 38, 39 (5th Cir. 1991). The jury charge’s 

sixth question stated as follows:

Concerning Plaintiff James E. Phillips’ claims in this case, did 

he know, or should he have known, before April 13, 2004 of both the 

alleged injury and its cause?

Plaintiff James E. Phillips has the burden of proof to show that 

he did not know before April 13, 2004 of both the alleged injury and 

its cause. [Emphasis added.]

Phillips did not testify that he did not know, or in the exercise of reasonable 

diligence should not have known, before April 13, 2004, that his injuries were 

work related. And although counsel asked Phillips about “the very first time that 

[he] understood that [his] spinal condition was in fact caused by [his] work,” and 

Phillips responded, “prior to -- to 2005, possibly, somewhere in there,” this 

testimony is no evidence that Phillips did not know before April 13, 2004, that his 

injury was work related because “prior to . . . 2005” does not, in and of itself, 

implicate only a period of time between April 14, 2004, and December 31, 

2004—it also includes the period of time before April 13, 2004. See Lozano v. 

Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (“When circumstances are consistent 

with either of the two facts and nothing shows that one is more probable than the 
3

other, neither fact can be inferred.”). Moreover, the question expressly inquired 

about when Phillips acquired actual knowledge that his injuries allegedly resulted 

from BNSF’s negligence, but under the FELA, a mere “awareness of critical facts 

will impose a duty upon a claimant to investigate and confirm or deny his belief, 

otherwise the limitations period would be meaningless.” See Billman v. Mo. Pac. 

R.R. Co., 825 S.W.2d 525, 527 (Tex. App.—Fort Worth 1992, writ denied); see 

also Fries v. Chicago Nw. Transp. Co., 909 F.2d 1092, 1096 (7th Cir. 1990) 

(“[C]ase law . . . only requires a finding that a plaintiff should have known of an 

injury, not that he possess actual knowledge.”). Thus, not only did Phillips not 

testify that he did not know before April 13, 2004, that his injuries were work 

related, his most direct testimony relating to that inquiry is irrelevant for purposes 

of determining when his claims accrued.

Because there is no direct evidence that Phillips did not know before 

April 13, 2004, that his injuries were work related, the majority turns to what it 

seems to contend is circumstantial evidence demonstrating that Phillips did not 

realize before April 13, 2004, that his job caused his injuries. But while an 

ultimate fact may certainly be proved by circumstantial evidence, none of the

evidence cited by the majority supports the jury’s finding. The physician who 

“appeared to connect Phillips’s symptoms to his diabetes” did so only after 

April 13, 2004—in June 2004. Maj. Op. at 7. And it is of no consequence to the 

accrual inquiry whether or not BNSF made Phillips aware of the risks of full body 

vibration. The caselaw contains no requirement that an employer provide its 
4

employee with notice that the employer is, or could be, the cause of the 

employee’s alleged injuries.

What relevant evidence is contained in the record demonstrates that 

Phillips sought treatment for his injuries as early as 1998—he complained of 

“soreness up + down spine”—and he identified “rough riding railroad engines” as 

an aggravating activity. Phillips thus possessed critical facts of both his injuries 

and their cause years before April 13, 2004, which consequently imposed a duty 

upon him to investigate then. See Billman, 825 S.W.2d at 527. Because there is 

no evidence that Phillips did not know before April 13, 2004, that his injuries were 

work related, the evidence is legally insufficient to support the jury’s answer to 

charge question number 6.

Furthermore, if there was any confusion after Havner about the threshold 

requirements for determining whether epidemiological evidence is scientifically 

reliable to prove causation, the supreme court unquestionably clarified the 

relevant standards in Merck. Specifically, epidemiological evidence used to 

prove general causation is unreliable if it does not show a doubling of the risk 

that is statistically significant at the 95% confidence level. Merck & Co., 347 

S.W.3d at 262–66. Moreover, a plaintiff must show that he or she is similar to 

the subjects in the studies and exclude with reasonable certainty other plausible 

causes of the injury if there is evidence of those causes. Id.; Faust v. BNSF Ry. 

Co., 337 S.W.3d 325, 334 (Tex. App.—Fort Worth 2011, pet. denied).
5

To the extent that Phillips’s experts relied upon epidemiological studies to 

prove that his exposure to vibratory forces from rough riding locomotives caused 

his injuries, they made no effort to show that the studies demonstrated a doubling 

of the risk that was statistically significant at the 95% confidence level. In the 

absence of that evidence, their opinions are unreliable and, legally, no evidence. 

See Havner, 953 S.W.2d at 714. The majority contends that Havner’s and 

Merck’s standards apply only to toxic tort cases, but that is expressly refuted by 

Merck’s unambiguous pronouncement that “Havner’s requirements necessarily 

apply to all epidemiological evidence.” Merck & Co., 347 S.W.3d at 264

(emphasis added).

The trial court should have granted BNSF judgment as a matter of law on 

either the limitations issue or the causation issue. Because the majority fails to 

correct either error, I respectfully dissent.

BILL MEIER

JUSTICE

DELIVERED: August 1, 2013