[Cite as Metz v. CSX Transp. Corp., 2022-Ohio-3503.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

Jeffrey B. Metz Court of Appeals No. L-21-1255

Appellant Trial Court No. CI0202001484

 

v.

CSX Transportation Corp, et al DECISION AND JUDGMENT

Appellees Decided: September 30, 2022

* * * * *

E.J. Leizerman, for Appellant.

Holly M. Olzarczuk-Smith, and David A. Damico, for Appellees.

* * * * *

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, Jeffrey Metz, appeals the judgment of the Lucas County Court of 

Common Pleas, granting the motion for summary judgment filed by appellees, 

Consolidated Rail Corporation and Norfolk Southern Railway Corporation, and 

dismissing appellant’s claims under Federal Employers’ Liability Act (“FELA”). 
2.

Because we find that the trial court properly concluded that appellant’s claims are timebarred, we affirm.

A. Facts and Procedural Background

{¶ 2} This FELA action originated upon appellant’s filing of a complaint on 

February 13, 2020.1 In his complaint, appellant alleged that he suffered serious 

respiratory and pulmonary injuries including asthma, emphysema, and chronic 

obstructive pulmonary disease (“COPD”), as a result of diesel exhaust exposure during 

the time of his employment with appellees.2 Appellant asserted that his injuries were the 

result of appellees’ negligence and sought damages in an amount in excess of $3,000,000. 

Relevant to this appeal, appellant further alleged that he “first learned of the medical 

condition referenced in [the] complaint within three years from the date of filing [the] 

complaint.” 

{¶ 3} On March 23, 2020, appellees filed their answer, in which they generally 

denied any liability arising out of appellant’s respiratory and pulmonary conditions and 

asserted several affirmative defenses including a statute of limitations defense. 

Following discovery and pretrial motion practice, appellees filed a motion for summary 

1 Appellant amended his complaint on May 7, 2020. The amendments to the complaint 

are immaterial to the present appeal.

2 Appellant also named CSX Transportation as a defendant in his complaint. However, 

appellant filed a voluntary dismissal of CSX Transportation pursuant to Civ.R. 

41(A)(1)(a) on August 24, 2021. Therefore, CSX Transportation is not a party to this 

appeal.
3.

judgment on May 20, 2021. Several supporting materials were attached to appellees’ 

motion for summary judgment, including transcripts from appellant’s depositions, 

appellant’s medical records, and filings contained in the record of appellant’s bankruptcy 

proceedings.3

{¶ 4} In their motion for summary judgment, appellees argued that the FELA 

claims brought against them were time-barred because they were filed beyond the threeyear statute of limitations set forth in 45 U.S.C. 56. Moreover, appellees contended that 

appellant’s claims were barred by the doctrine of judicial estoppel in light of his recent 

bankruptcy. As to the statute of limitations issue, appellees noted that appellant has a 

“long history of breathing problems” dating back to the early 2000s, when he went to the 

hospital for breathing problems related to his exposure to diesel exhaust fumes at work. 

Thus, appellees reasoned that appellant “knew or should have known that his COPD and 

asthma might have been connected to his railroad employment more than three years 

before he filed his complaint on February 13, 2020.”

3

It appears from the record that several of these materials, including the deposition 

transcripts attached to appellees’ motion, were not previously filed with the trial court, as 

required under Civ.R. 56(C). However, appellant did not object to the attachment of 

those materials to appellees’ motion, and has thus waived any error associated with the 

trial court’s consideration of the materials. See XPX Armor & Equipment, Inc. v. 

SkyLIFE Co., Inc., 2020-Ohio-4498, 158 N.E.3d 1024, ¶ 87 (6th Dist.) (“Courts routinely 

find, however, that a party’s failure to object to the use of an unfiled deposition transcript 

waives error as to the use of the excerpts of a deposition transcript.”).
4.

{¶ 5} On July 1, 2021, appellant filed his memorandum in opposition to appellees’ 

motion for summary judgment. In the memorandum, appellant acknowledged that a 

three-year statute of limitations is applicable in this case, but insisted that the statute did 

not begin running until he discovered the connection between his respiratory diseases and 

his employment. According to appellant, this discovery took place on January 15, 2020, 

the date his doctor, Dr. Daniel Pipoly, expressed an opinion that appellant’s respiratory 

diseases were likely caused by his work on the railroad. 

{¶ 6} Appellant argued his prior discussions with Dr. Pipoly did not trigger the 

statute of limitations, because in those discussion Dr. Pipoly “merely discussed the 

possibility that [appellant’s] issues could be caused by the railroad.” (Emphasis sic.). 

Appellant also argued that appellees’ judicial estoppel argument was without merit, since 

he was unaware of the existence of a FELA claim prior to January 15, 2020, and thus 

could not disclose that potential claim in bankruptcy court prior to his bankruptcy 

discharge on December 19, 2019. 

{¶ 7} Upon consideration of the parties’ arguments, the trial court issued its 

decision on appellees’ motion for summary judgment on November 30, 2021. In its 

decision, the trial court offered little analysis of its own, but agreed with the positions 

advanced by appellees’ on both the statute of limitations issue and the judicial estoppel 

issue. Accordingly, the trial court granted appellees’ motion for summary judgment.

{¶ 8} On December 20, 2021, appellant filed his timely notice of appeal.
5.

B. Assignments of Error

{¶ 9} On appeal, appellant assigns the following error for our review:

I. The trial court erred in granting defendant Railroads’ motion for 

summary judgment, dismissing plaintiff’s claim under the Federal 

Employers Liability Act and Locomotive Inspection Act.

II. Analysis

{¶ 10} In appellant’s sole assignment of error, he contends that the trial court erred 

in granting appellees’ motion for summary judgment. 

{¶ 11} We review the grant or denial of a motion for summary judgment de novo, 

applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 

Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is 

appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party 

is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one 

conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that 

conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 

54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 12} On a motion for summary judgment, the moving party has the burden of 

demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio 

St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to 

some evidence in the record in the form of “pleadings, depositions, answers to 
6.

interrogatories, written admissions, affidavits, transcripts of evidence, and written 

stipulations of fact, if any, timely filed in the action[.]” Civ.R. 56(C); Dresher at 292-

293. The burden then shifts to the nonmoving party to provide evidence showing that a 

genuine issue of material fact does exist. Dresher at 293. The failure to satisfy this 

reciprocal burden warrants judgment against the nonmoving party. Id.

{¶ 13} Here, appellant argues that the trial court erred in granting summary 

judgment because his FELA claim is neither time-barred nor judicially estopped in light 

of his prior bankruptcy proceeding. In response, appellees argue the trial court properly 

concluded that appellant’s claim is time-barred because it was filed outside of the 

applicable three-year statute of limitations. Further, appellees assert that appellant is 

judicially estopped from bringing his FELA claim in light of his failure to notify the 

bankruptcy court of the claim during the pendency of the bankruptcy action. Because we 

find the statute of limitations issue dispositive, we will constrain our analysis to that 

issue.

{¶ 14} The parties agree that appellant’s claim arises under the FELA, Section 51 

et seq., Title 45, United States Code. “In 1906, Congress enacted the FELA to provide a 

federal remedy for railroad workers who suffer personal injuries as a result of the 

negligence of their employer or their fellow employees.” Atchison, Topeka & Santa Fe 

Ry. Co. v. Buell, 480 U.S. 557, 561, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). To that end, 

45 U.S.C. 51 provides that “[e]very common carrier by railroad * * * shall be liable in 

damages to any person suffering injury while he is employed by such carrier * * * for 
7.

such injury * * * resulting in whole or in part from the negligence of any of the officers, 

agents, or employees of such carrier.” 

{¶ 15} Nonetheless, in order to avail the remedies provided under the FELA, a 

plaintiff must commence an action asserting FELA claims “within three years from the 

day the cause of action accrued.” 45 U.S.C. 56. In general, “FELA cases adjudicated in 

state courts are subject to state procedural rules, but the substantive law governing them 

is federal.” St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 

1347, 84 L.Ed.2d 303 (1985). The three-year statute of limitations set forth in 45 U.S.C. 

56 constitutes substantive law, and thus governs this case. See Erwin v. Bryan, 125 Ohio 

St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 29 (“The existence and duration of a 

statute of limitations for a cause of action constitutes an issue of public policy for 

resolution by the legislative branch of government as a matter of substantive law.”).

{¶ 16} The date of accrual of a FELA claim is governed by the so-called 

“discovery rule,” under which the statute of limitations “begins to run when the 

reasonable person knows, or in the exercise of due diligence should have known, both his 

injury and the cause of that injury.” Campbell v. Grand Trunk W. RR. Co., 238 F.3d 772, 

775 (6th Cir.2001). The inquiry into whether a reasonable person should have known of 

the injury and cause is an objective one, and “the injured plaintiff need not be certain 

which cause, if many are possible, is the governing cause but only need know or have 

reason to know of a potential cause.” Fries v. Chicago & Northwestern Transportation 

Co., 909 F.2d 1092, 1095 (7th Cir.1990). 
8.

{¶ 17} The parties agree that the three-year statute of limitations set forth in 45 

U.S.C. 56 applies. However, they disagree as to when that three-year time period began 

to run. According to appellant, the statute did not begin to run until January 15, 2020, 

when Dr. Pipoly expressed an opinion that his respiratory diseases were likely caused by 

his railroad employment. By contrast, appellees urge that the statute started running 

when Dr. Pipoly told appellant “in 2008, 2009, 2010 and 2013 that his alleged exposure 

to diesel fumes at the railroad was possibly causing his COPD and asthma.” According 

to appellees, these conversations with Dr. Pipoly alerted appellant to the connection

between his respiratory diseases and his employment and thus triggered the statute of 

limitations under the discovery rule.

{¶ 18} In support of their motion for summary judgment, appellees cite to several 

supporting materials to demonstrate that a reasonable person in appellant’s situation

should have been aware of the causal connection between his work on the railroad and 

his asthma, emphysema, and COPD many years prior to commencing the present FELA 

action. In particular, appellees attached transcripts from appellant’s two depositions, 

appellant’s response to one of appellees’ interrogatories, and appellant’s medical records. 

{¶ 19} In his first deposition, appellant recounted an incident that occurred in the 

early 2000s in which he was forced to stop working and admit himself into the Henry 

Ford Hospital in Detroit due to breathing problems. As to this incident, appellant 

testified that he “didn’t make a connection early on” between his breathing difficulties 

and his exposure to diesel exhaust fumes. 
9.

{¶ 20} In his second deposition, appellant stated that he was hospitalized for 

breathing issues in November 2020. After release from the hospital, appellant visited Dr. 

Pipoly. According to appellant, Dr. Pipoly “said at that point that he was convinced 

[appellant’s breathing problem] was because of [appellant’s] exposure to diesel exhaust.” 

Appellant went on to reveal: 

I know over the years I asked him if this might be a problem, you 

know, for me, you know, because of my employ. And he said he didn’t 

have an opinion on it at that particular time. He – you know, the exhaust 

was ever present. It comes through the manifold, through the floor.

So he told me that type of exposure, because of the multiple 

environments I was in with the toxic dust and the exhaust, that I could –

that it might possibly be – but in November, he said conclusively that it was 

the diesel exhaust that was causing, in his belief, causing my illnesses.

{¶ 21} Appellant acknowledged having had prior conversations with Dr. Pipoly 

regarding the connection between his respiratory diseases and his employment on the 

railroad, but he insisted that Dr. Pipoly “had no opinion.”

{¶ 22} In an interrogatory propounded upon him by appellees in connection with 

this case, appellant was asked to identify the date on which he first knew that his injury 

was caused by exposure to diesel exhaust. He responded on August 26, 2020, that he 

“became aware that diesel exhaust has been causing this problem over the last couple of 
10.

years.” During appellant’s second deposition, trial counsel for appellees questioned 

appellant about this response, as follows:

Q. Okay. Would that have been something that Dr. Pipoly had told 

you? Would that information have come from him?

A. No. I – I suspected it. I mean, like I said, I – it just wasn’t 

coincidence that I kept getting sick at work. I mean, every time I would go 

– not every time, but a lot of times I would go and I would get sick with the 

same symptoms.

{¶ 23} Finally, appellees attached select portions of appellant’s medical records 

related to his respiratory illness. The records include several progress notes from Dr. 

Pipoly. 

{¶ 24} The first such note is dated November 29, 2005. According to the note, 

appellant visited Dr. Pipoly for a follow-up visit from a recent Toledo Hospital stay 

during which he first met with Dr. Pipoly. In the note, Dr. Pipoly indicated that appellant 

was a railroad worker and a cigarette smoker who suffered from “an exacerbation of 

asthma and COPD” that was undertreated at the time.

{¶ 25} In a subsequent progress note from March 9, 2006, Dr. Pipoly first 

suggested a connection between appellant’s respiratory illness and his railroad 

employment. Dr. Pipoly assessed appellant as suffering from COPD and asthma and 

noted that it was “[i]mpossible to ascertain just how much chronic lung disease he might 
11.

have from smoking as well as from diesel fume exposure as that which is intrinsic 

asthma. He has manifestations of both.” 

{¶ 26} Dr. Pipoly again surmised a connection between appellant’s illness and his 

employment when he wrote the following progress note on May 14, 2008: “We also think 

some of [appellant’s] COPD may be mediated by the heavy diesel fume exposures he has 

experienced on the railroad for years. This [is] because he has fixed air flow obstruction 

which seems disproportionate to a fairly limited smoking history of 20/pack year.” 

{¶ 27} Over time, Dr. Pipoly’s statements regarding the cause of appellant’s 

COPD became more definitive. On November 24, 2009, Dr. Pipoly reiterated his 

previous statement concerning causation in a progress note in which he explained that 

appellant presented with “chronic asthma and, we believe, some element of COPD 

related both to previous 20 pack year smoking and fumes and dust from working on the 

railroad.” Then, on May 11, 2010, Dr. Pipoly stated: “Follow up with COPD on the basis 

of previous smoking, and I think more particularly heavy diesel fume exposure in his job 

on the railroad for which he is fully employed.”

{¶ 28} The unrefuted evidentiary materials attached to appellees’ motion for 

summary judgment and outlined above establish, at the very least, that appellant was 

made aware, no later than May 2010, of the possibility that his respiratory illnesses were 

caused by the diesel exhaust fumes he inhaled over many years as a railroad employee

working for appellees. 
12.

{¶ 29} Rather than contesting this proposition, appellant argues that the discovery 

rule is not triggered upon knowledge of a possible connection, but rather only upon a 

doctor’s determination as to a likely connection. Appellant’s argument misconstrues the 

essence of the discovery rule. As we already noted, under the discovery rule the statute 

of limitations begins to run when the plaintiff knows, or in the exercise of due diligence 

should have known, of both the injury and its cause. Campbell, supra, 238 F.3d at 775. 

Further, a plaintiff need not be certain of the cause of an injury, but instead has an 

affirmative duty to diligently investigate the potential cause of an injury where many 

causes are possible. Fries, supra, 909 F.2d at 1095.

{¶ 30} Under appellant’s articulation of the rule, the duty to exercise due diligence 

to ascertain the injury and its cause would be shifted from the plaintiff to a medical 

provider offering a medical diagnosis. It therefore misconstrues the obligation a party 

has to exercise some degree of diligence in making inquiry of the cause of medical 

symptoms. Here, there is no dispute that appellant had manifest symptoms for ten years 

prior to Dr. Pipoly’s definitive diagnosis.

{¶ 31} In Wells v. Norfolk Southern Railway Co., 108 F.3d 1378 (6th Cir.1997), 

the Sixth Circuit explained that the “‘due diligence’ requirement means that a plaintiff 

who has reason to suspect that his injury is work related must take steps to see whether 

this is, in fact, the case.” Id. at *1; see also Fries at 1095 (explaining that the discovery 

rule does not “provide an escape for plaintiffs who are aware that some type of injury 

exists yet who choose to ignore it by failing to seek diagnosis and investigate the cause”). 
13.

In McNutt v. CSX Transportation, Inc., W.D.Ky. No. 3:08-CV-601-H, 2010 WL 1688788 

(Apr. 26, 2010), the United States District Court for the Western District of Kentucky

applied the principle articulated by the court in Wells to a plaintiff’s argument that his 

FELA claim was not time-barred because he had not received a medical diagnosis 

concerning the cause of his rotator cuff injury within a reasonable degree of medical 

certainty until 2008, five years after the condition was first diagnosed. The district court 

rejected the plaintiff’s argument, stating:

A medical diagnosis, however, is not required for a plaintiff to reasonably 

know that his injury is possibly related to his work. Rather, the plaintiff 

must exercise “due diligence” to learn the cause of his injury. * * * It is 

undisputed that Plaintiff knew of his injuries in 2003 and connected those 

injuries to his work. Thus, Plaintiff was under a duty at that time to 

investigate the cause of his injuries and the statute of limitations had begun 

running. Because Plaintiff failed to bring his claim within three years, his 

claim is now barred.

Id. at *2.

{¶ 32} Here, appellant had several discussions with Dr. Pipoly in 2008, 2009, and 

2010, during which Dr. Pipoly connected appellant’s respiratory illnesses to the diesel 

exhaust he was exposed to at work. By May 2010, Dr. Pipoly narrowed his opinion as to 

the cause of appellant’s COPD down to appellant’s “heavy diesel fume exposure in his 

job on the railroad for which he is fully employed.” Thus, appellant knew or at the very 
14.

least was made aware of the connection between his employment and his respiratory 

illnesses by May 2010 at the latest. 

{¶ 33} With this information from his doctor, appellant had an affirmative duty to

conduct further inquiry into whether his illnesses were, in fact, related to his work and 

commence his FELA action within three years. He could have “protect[ed] himself by 

seeking advice in the medical and legal community.” U.S. v. Kubrick, 444 U.S. 111, 123,

100 S.Ct. 352, 62 L.Ed.2d 259 (1979). However, appellant made no further inquiry and 

waited until February 13, 2020, nearly ten years later, to file his suit. Consequently, we 

conclude that appellant’s complaint was filed long after the applicable three-year statute 

of limitations had expired. Thus, the trial court properly concluded that appellant’s 

FELA claim was time-barred and rightly granted appellees’ motion for summary 

judgment on that basis.

{¶ 34} Accordingly, appellant’s sole assignment of error is not well-taken.

III. Conclusion

{¶ 35} In light of the foregoing, the judgment of the Lucas County Court of 

Common Pleas is affirmed. The costs of this appeal are assessed to appellant under 

App.R. 24.

Judgment affirmed.
15.

Metz v. CSX, et al.

C.A. No. L-21-1255

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________

JUDGE

Gene A. Zmuda, J. 

____________________________

Myron C. Duhart, P.J. JUDGE

CONCUR. 

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.