Mark S. Mounts v. Grand Trunk Western Railroad

*The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0004P (6th Cir.)
File Name: 00a0004p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
M ARK S. M OUNTS,
Plaintiff-Appellant,
v.
GRAND TRUNK W ESTERN
R AILROAD ,
Defendant-Appellee.
;>

1
No. 99-3151
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 98-00036—Joseph P. Kinneary, District Judge.
Argued: December 6, 1999
Decided and Filed: January 5, 2000
Before: COLE and GILMAN, Circuit Judges; CARR,
District Judge.*

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2 Mounts v. Grand Trunk Western R.R. No. 99-3151
_________________
COUNSEL
ARGUED: Paul Kevin Hemmer, CARROLL, UCKER &
HEMMER, Columbus, Ohio, for Appellant. Julie L.
Atchison, PORTER, WRIGHT, MORRIS & ARTHUR,
Columbus, Ohio, for Appellee. ON BRIEF: Paul Kevin
Hemmer, CARROLL, UCKER & HEMMER, Columbus,
Ohio, for Appellant. Julie L. Atchison, Patrick Jerome Smith,
PORTER, WRIGHT, MORRIS & ARTHUR, Columbus,
Ohio, for Appellee.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. The sole issue on
appeal is whether Mark S. Mounts, a lifetime railroad
employee who can no longer hold his job because of hearing
loss, filed suit against his former employer within the three-
year statute of limitations of the Federal Employers’ Liability
Act (“FELA”), 45 U.S.C. § 51 et seq. We find that he did
not, and therefore AFFIRM the district court’s grant of
summary judgment for the defendant employer, Grand Trunk
Western Railroad.
I.
Mounts is a 51-year-old man who has been a railroad
employee all his career. After working as a brakeman for the
New York Central Railroad for ten years, Mounts began
working for Grand Trunk Western (“GTW”) in March 1978.
During his employment with GTW, which was primarily
based in Ohio, he was exposed to a variety of loud noises in
connection with his work, such as noises from brake exhaust,
radios, yard retarders, and whistles. Mounts attributes his
subsequent hearing loss to these noises on his job sites.
No. 99-3151 Mounts v. Grand Trunk Western R.R. 11
occur within the statutory period); Flynt v. Brownfield,
Bowen, & Bally, 882 F.2d 1048, 1052 (6th Cir. 1989)
(discussing Ohio cases that apply doctrine to suits against
attorneys), there has been no indication that it applies to
FELA claims. In fact, in Kichline, which Mounts urges us to
follow, the Third Circuit rejected the continuing tort theory.
See Kichline, 800 F.2d 356, 360 (3d Cir. 1986) (limiting
Fowkes v. Pennsylvania R.R., 264 F.2d 397 (3d Cir. 1959),
which arguably applied the doctrine); see also National
Railroad Passenger Corp. v. Krouse, 627 A.2d 489 (D.C.
App. 1993) (reversing lower court’s finding that the FELA
cause of action did not accrue until the employer’s tortious
action ended and citing, at 495 n.9, federal district court cases
rejecting this approach). We decline to apply the continuing
tort doctrine to this case, because Mounts clearly knew of his
injury and its cause long before filing suit and failed to
produce evidence of a new or separate injury caused by the
alleged continuing conduct of GTW.
CONCLUSION
In sum, the FELA statute of limitations has run and no
genuine issue of material fact exists as to whether Mounts’s
cause of action accrued before this period. Therefore, we
AFFIRM the district court’s grant of summary judgment for
defendant GTW.

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10 Mounts v. Grand Trunk Western R.R. No. 99-3151
governing malpractice claim under Federal Tort Claims Act
begins to run when claimant discovers or should have discovered
the acts constituting the alleged wrong), cert. denied, 454 U.S.
967 (1981); Herm v. Stafford, 663 F.2d 669, 682 (6th Cir. 1981)
(statute in securities fraud case begins to run when the fraud
should have been discovered); Ott v. Midland-Ross Corp., 600
F.2d 24, 27 (6th Cir. 1979) (Age Discrimination in Employment
Act claim accrues within a reasonable time after plaintiff should
have discovered injury); N.L.R.B. v. Allied Products Corp., 548
F.2d 644, 650 (6th Cir. 1977) (“general rule” is that statute
begins to run when claimant discovers or should have discovered
the unfair labor practice).
Mounts’s attempts to distinguish Aparacio in order to
obtain relief for the worsening of his condition that occurred
within the three years prior to filing suit are unavailing.
Although factual differences exist between this case and
Aparicio, the application of the discovery rule does not hinge
on the distinction of whether or not the employee withheld
information of his injury from the employer, nor does it rely
on the employer’s knowledge or lack of knowledge of the
injury. Cf. Kubrick, 444 U.S. at 122-23 (stating that the goal
of the discovery rule is to encourage an employee to inform
himself about his condition and bring claims promptly). We
also note that a holding that circumvents the discovery rule
when the employer knows of the employee’s condition might
create unfortunate incentives for employers not to “find out”
about employee illnesses through regular testing.
Nor does Mounts have a viable claim for a continuing tort
under FELA. The continuing tort doctrine can be viewed as
an exception to the discovery rule, see Dixon v. Anderson,
928 F.2d 212, 216 (6th Cir. 1991) (calling continuous
violations an exception in the discrimination context), or an
alternative to the discovery rule. Although continuing tort has
been recognized by our circuit in other contexts, see
Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394,
408 (6th Cir. 1999) (stating that, in the Title VII context,
longstanding and demonstrable discrimination can allow a
court to examine discriminatory acts that occur even outside
of the statute of limitations, as long as some of these acts
No. 99-3151 Mounts v. Grand Trunk Western R.R. 3
GTW began to conduct regular hearing tests of its
employees in the late 1980s. In 1989, Mounts was
administered a hearing test, after which he was told that he
had a hearing loss. At a follow-up test in April 1990, the
doctor’s notes state that Mounts said he was having difficulty
hearing communications at work and that his hearing had
decreased over a period of time. Mounts was directed to
undergo more extensive testing in Detroit, and testing by a
different doctor in Ohio. The second Ohio doctor, Morris,
discussed the results of the test with Mounts and discussed the
possibility of a hearing aid. (GTW later refused to pay for a
hearing aid after Mounts ordered one; a railroad official stated
that he did not need one.) Mounts was out of work for five
and a half weeks because of this hearing testing.
In July 1990, Mounts settled a hearing loss claim with
GTW for $7,700 and signed a waiver of claims against the
railroad. Mounts states that he was told by GTW’s claim
agent, Blackstone, that in order to receive his wages for the
time off, he had to sign the waiver. The amount of money he
received was marginally more than his back pay. Mounts also
states that Blackstone told him that his hearing loss was
minimal. Mounts did not take a physical or hearing test
before returning to work.
In 1993, after a company audiogram showed hearing loss,
Mounts was again directed to Detroit for a hearing test. The
test, conducted in November 1993, showed a moderate loss
for speech and severe loss for high pitched sounds in both
ears. The doctor’s report states that Mounts told him the
conditions at work were noisy.
From about 1990, when GTW supervisors told him to wear
ear plugs, until the time he ceased employment with GTW,
Mounts wore hearing protection when he could. He said that
sometimes the protection would prohibit him from hearing
well enough to do his job, so he would remove it. Otherwise,
though, he wore the protection that GTW gave him. Mounts
was not told by GTW at any point that he had job restrictions.

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4 Mounts v. Grand Trunk Western R.R. No. 99-3151
In May 1994, Mounts went on medical leave as a result of
a seizure (unrelated to his hearing claim). He returned to his
position in April 1995, with a medical clearance and without
any work restrictions.
GTW conducted another test of Mounts’s hearing in 1996,
which showed poorer hearing. On May 28, 1997, Mounts
was removed from service with GTW because of his hearing
impairment. He was referred by his personal physician to a
specialist, who opined that Mounts is permanently disabled
from his railroad work. GTW told Mounts to apply for a
permanent disability annuity from the Railroad Retirement
Board.
On January 8, 1998, Mounts sued GTW in district court
under the FELA, 45 U.S.C. § 51, for: 1) negligence; and 2)
maintaining improper and unsafe equipment in violation of
the Boiler Inspection Act, 45 U.S.C. § 22 et seq. (1994). In
count three of his amended complaint, Mounts alleged fraud
in the signing of the 1990 waiver, or in the alternative, mutual
mistake.
GTW filed for summary judgment based on the three-year
FELA statute of limitations. See 45 U.S.C. § 56. The district
court dismissed all three counts; granting summary judgment
based on the statute of limitations on the first two counts, and
dismissing the third count for failure to state a claim because
it was dependent on the success of the underlying FELA
claims. Mounts appeals.
II.
We review the grant of a motion for summary judgment
under a de novo standard. See Babbitt v. Norfolk & W. Ry.
Co., 104 F.3d 89, 90 (6th Cir. 1997). Summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). In
deciding the motion, a court must view the evidence and draw
No. 99-3151 Mounts v. Grand Trunk Western R.R. 9
3In addition, the discovery rule has also been applied to a range of
other federal statutes. See Michigan United Food & Commercial
Workers Unions v. Muir Co., 992 F.2d 594, 597-98 (6th Cir. 1993), which
stated:
There is good reason for us now to adopt and apply the
discovery rule in this ERISA case because we have frequently
done so in other contexts. Dixon v. Anderson, 928 F.2d 212, 215
(6th Cir. 1991) (42 U.S.C. § 1983 claim accrues “when the
plaintiff knows or has reason to know of the injury”); Friedman
v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)
(plaintiff in Bivens action has reason to know of his injury when
he should have discovered it); Hofstetter v. Fletcher, 905 F.2d
897, 904 (6th Cir. 1988) (RICO action accrues when plaintiff
knew or should have known of defendant's fraudulent scheme);
Au Rustproofing Center, Inc. v. Gulf Oil Corp., 755 F.2d 1231,
1237 (6th Cir. 1985) (state fraud action accrues when the fraud
was or should have been discovered); Shapiro v. Cook United,
Inc., 762 F.2d 49, 51 (6th Cir. 1985) (per curiam) (statute begins
to run when claimant discovers or should have discovered
violations of National Labor Relations Act); Modin v. New York
Cent. Co., 650 F.2d 829, 834 (6th Cir.) (statute of limitations
a severable cause of action under Federal Employers’
Liability Act.” Aparicio, 84 F.3d at 815. Instead, we adopted
the rationale set out in Fries v. Chicago & Northwestern
Transp. Co., 909 F.2d 1092 (7th Cir. 1990), as the rule of this
circuit. See Aparicio, 84 F.3d at 815. In Fries, a railroad
worker with hearing loss acknowledged that he noticed the
loss as early as 1980 or 1981, and soon after suspected it was
caused by his job, but did not seek treatment until 1985. The
Seventh Circuit rejected Fries’s suit, filed in November 1987.
See Fries, 909 F.2d 1092. Fries explicitly stated that a cause
of action could accrue before the injury reached its maximum
severity. See id. at 1096. In other words, in this circuit, an
employee who discovers an injury and its cause before the
three-year statute of limitations period is precluded from later
bringing suit against his employer based on that injury. See
id.; see also Albert v. Maine Cent. R.R. Co., 905 F.2d 541 (1st
Cir. 1990) (finding the five plaintiffs’ claims barred by the
statute of limitations when they knew of their hearing loss and
attributed it to their railroad work more than three years
before filing suit).3

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8 Mounts v. Grand Trunk Western R.R. No. 99-3151
2The court, however, rejected Kichline’s argument that the cause of
action did not accrue until his retirement when the harmful exposure to
diesel fuel, which allegedly caused his pulmonary disease, ceased. See id.
a separate injury, not a continuation of the prior injury. See
id. at 815. We asserted that if the injury had been a
continuation, it would be barred by the statute of limitations.
See id.
Mounts has not brought forth evidence that a separate
injury or disease occurred within the three-year statute of
limitations. Mounts argues that a question of fact exists as to
whether the change in his situation -- from being able to do
his job when he returned to work in 1995 to being disabled
from his job in 1997 -- constitutes a separable tort. However,
he has not submitted affidavits or other evidence from
medical professionals indicating that the hearing loss suffered
over the past few years is a separate injury. In response to
GTW’s motion for summary judgment, he submitted an
affidavit from Dr. Victor VerMeulen, which briefly describes
Mounts’s hearing loss and opines that the loss is caused by his
employment at GTW and that Mounts is “permanently
medically disqualified from returning to his position on the
railroad.”
We decline to follow Mounts’s suggestion that this court
can and should adopt the rationale and holding of Kichline v.
Consolidated Rail Corp., 800 F.2d 356 (3d Cir. 1986). In
Kichline, the Third Circuit permitted the employee to proceed
on his claim for aggravation of an injury during the three
years prior to filing suit. See id. at 356. “The fact that
plaintiff was aware of the harmful effects of his exposure to
pollutants would go to his contributory negligence under the
circumstances but might not bar his claim for aggravation
during that period.” Id. at 361. The Third Circuit placed the
responsibility for establishing the extent of the injury that
occurred during this period on the plaintiff. See id.2
In Aparicio, however, this court explicitly “disagree[d] with
the Third Circuit that the aggravation of an original injury is
No. 99-3151 Mounts v. Grand Trunk Western R.R. 5
all reasonable inferences in favor of the nonmoving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The moving party bears the initial
burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317
(1986). If the moving party shows this absence, the
nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial. See
Matsushita, 475 U.S. at 587. To meet this burden, the
nonmoving party may not rest on the mere allegations in the
pleadings. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at
324.
III.
FELA is “a remedial and humanitarian statute . . . enacted
by Congress to afford relief to employees from injury incurred
in the railway industry.” Edsall v. Penn Cent. Transp. Co.,
479 F.2d 33, 35 (6th Cir. 1973); see also 45 U.S.C. § 51
(establishing employer liability); 45 U.S.C. § 54 (abolishing
the assumption of risk defense as a matter of law). The FELA
statute of limitations, 45 U.S.C. § 56, provides in part: “No
action shall be maintained under this chapter unless
commenced within three years from the day the cause of
action accrued.”
The Supreme Court, in the course of determining whether
a plaintiff’s claim for silicosis was barred by the statute of
limitations, examined what “accrual” means in the FELA
statute of limitations. See Urie v. Thompson, 337 U.S. 163
(1949). The Court rejected the approach that “each intake of
dusty breath” is a new cause of action, as well as the other
extreme, a rule that the employee should have filed as soon as
he contracted the disease, before he even had any symptoms;
stating that a rule which held an employee responsible for
knowledge of the disease “at some past moment in time,
unknown and inherently unknowable even in retrospect”
would frustrate Congress’s purpose in enacting FELA. Id. at
169. Instead, “‘the afflicted employee can be held to be
“injured” only when the accumulated effects of the

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6 Mounts v. Grand Trunk Western R.R. No. 99-3151
1In Kubrick, the Court stated:
We are unconvinced that for statute of limitations purposes a
plaintiff’s ignorance of his legal rights and his ignorance of the
fact of his injury or its cause should receive identical treatment.
That he has been injured in fact may be unknown or unknowable
until the injury manifests itself; and the facts about causation
may be in the control of the putative defendant, unavailable to
the plaintiff or at least very difficult to obtain. The prospect is
not so bleak for a plaintiff in possession of the critical facts that
he has been hurt and who has inflicted the injury. He is no
longer at the mercy of the latter. There are others who can tell
him if he has been wronged, and he need only ask.
Id. at 122.
deleterious substance manifest themselves.’” Id. at 170
(quoting Associated Indem. Corp. v. Industrial Accident
Comm’n, 12 P.2d 1075, 1076 (Cal. App. 1932)). The Court
later solidified what has become known as the discovery rule,
finding that a cause of action “accrues” when an employee
knows of the injury and its cause. See United States v.
Kubrick, 444 U.S. 111, 123-24 (1979) (distinguishing, in a
Federal Tort Claims Act case, discovery of the fact of the
injury from discovery of legal liability).1
Mounts argues against a statute of limitations bar under two
approaches. First, Mounts asserts that the claim is not time-
barred because the aggravation of his hearing loss constitutes
a separate injury and that the exposure at his GTW job
constitutes a separate tort for FELA purposes; or at least that
a question of facts exists on this point. As proof, Mounts
asserts that he returned to work in 1995 fully qualified and
that, after exposure to noise at work, he was terminated in
1997 because of his hearing loss. Second, Mounts argues that
his claim is not time-barred for the injury that occurred during
the three years prior to filing suit, irrespective of whether that
injury is considered a new injury, aggravation of an old injury,
or the result of a separate tort. In other words, no matter what
the court calls his worsened hearing, Mounts asserts that he
should be able to recover for damage to his hearing that
occurred within the three-year statute of limitations period.
No. 99-3151 Mounts v. Grand Trunk Western R.R. 7
Both of these approaches fail under this circuit’s precedent,
which requires Mounts to establish a separate injury, thereby
satisfying the three-year statute of limitations, before the court
may conduct an examination of liability. This circuit has
interpreted the discovery rule to bar FELA claims from being
brought more than three years after the initial injury and its
cause were discovered. See Aparicio v. Norfolk W. Ry. Co.,
84 F.3d 803, 814-15 (6th Cir. 1996). At the latest, Mounts
knew of his hearing loss and its cause in 1993, when his
hearing was tested and determined to be deficient; a loss
Mounts himself attributed to his employment.
The discovery rule applies even if the injury was later
worsened by the same employer:
Any “aggravation” of the original negligently caused
injury would only affect the plaintiff’s damages, and
would not require a separate determination of liability or
causation. Furthermore, a rule permitting severability of
a claim that an original, continuing injury has been
aggravated would contravene the purpose of the
discovery rule articulated in Urie requiring Federal
Employers’ Liability Act plaintiffs to use reasonable
diligence to discover the cause of an injury once the
injury manifests itself.
Id. at 815.
In Aparicio, the employee alleged that the railroad
negligently caused his carpal tunnel syndrome and
epicondylitis. Beginning in 1987, Aparicio began to have
numbness and tingling in his right hand. These problems,
however, resolved themselves with minimal treatment for
approximately five years. See id. at 805-06. In 1992,
Aparicio again sought treatment for pain in his hands and
wrists, was diagnosed with carpal tunnel syndrome, and was
operated on. Id. at 806. In 1993, Aparicio was diagnosed
with tennis elbow and could not return to his job. We upheld
the district court’s finding that a material issue of fact was
created by Aparicio’s submission of an affidavit of a
physician who stated that his later (1992 and 1993) injury was

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