United States District Court, S.D. Texas, Houston Division
ROSIE MAYES, Individually and as the Personal Representative of the Estate of Jesse Mayes, Sr., Deceased, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
S. Hanen United States District Judge
the Court are Defendant's Motion for Summary Judgment
(Doc. No. 52), its Brief in Support thereof (Doc. No. 48),
Plaintiffs Brief in Opposition (Doc. No. 49), and
Defendant's Reply Brief (Doc. No. 50).
Mayes, Sr. was a longtime employee of the Union Pacific
Railroad Company ("Union Pacific"). He started
working at Union Pacific in 1977. In 2002, a few years after
Mr. Mayes left the railroad, Mr. Mayes joined over 200 other
employees in a Federal Employers' Liability Act
("FELA") suit against Union Pacific claiming
personal injury damages from exposure to toxic chemicals.
Union Pacific ultimately received a summary judgment in that
case, which was affirmed on appeal in 2007. Abraham v.
Union Pac. R.R. Co., 233 S.W.3d 13 (Tex. App.- Houston
[14th Dist] 2007, pet. denied). Mr. Mayes retired from Union
Pacific in July of 1999. In 2009, Mr. Mayes was diagnosed
with colon cancer. He immediately attributed that cancer to
his employment with Union Pacific and the toxic substances he
was exposed to during his employment there. Ultimately, he
died on November 10, 2013.
two years later, on November 7, 2016, his widow, Rosie Mayes,
filed this FELA suit in this Court. In this action, like the
previously filed state court cause, it is alleged that Mr.
Mayes's illness (and in this case his subsequent death)
was caused by exposure to toxic substances while he worked
for Union Pacific. Defendant has now moved for summary
judgment on multiple grounds but primarily argues that the
claims are barred either by the statute of limitations or res
judicata based upon the prior state court lawsuit.
parties concede that the statute of limitations in a FELA
case is three years:
No action shall be maintained under this chapter unless
commenced within three years from the day the cause of action
the pivotal question before the Court is when this cause of
action accrued-when the cancer was diagnosed or at the date
of Mr. Mayes's death. As a general proposition, a cause
of action accrues when the employee knows or in the exercise
of reasonable care should have known of his injury and its
cause. Tolston v. Natl R.R. Passenger Corp., 102
F.3d 863, 865 (7th Cir. 1996); see also White v. Union
Pac. R.R. Co., 867 F.3d 997 (8th Cir. 2017). In the
instant case, Mr. Mayes knew of his injury and its cause in
Mrs. Mayes testified that Mr. Mayes's cancerous condition
was diagnosed in 2009 following a colonoscopy:
Q. When they found the colon cancer in 2008 or 2009, had the
cancer already spread, do you know?
A. I was told it had ...