Anderson v. BNSF Railway, 2015 MT 240

Background

Robert Anderson, a long‑time BNSF carman, alleged cumulative trauma (esp. lower back) from decades of jolting/vibration and a December 23, 2008 fall that he described as the “straw that broke the camel’s back.”
Anderson filed suit under the Federal Employers’ Liability Act (FELA); BNSF argued the claim was time‑barred by the 3‑year statute of limitations and pointed to a March 2006 injury/occupational report and earlier medical records.
The District Court submitted the discovery‑rule/timeliness question to the jury and refused Anderson’s proposed jury instructions that would have explained FELA’s "in whole or in part" causation and non‑apportionment rules; it also declined to adopt a continuing‑tort tolling rule.
The jury found Anderson’s cumulative trauma claim time‑barred and that BNSF did not negligently cause the December 2008 fall; Anderson moved for a new trial arguing erroneous jury instructions and prejudicial closing arguments by BNSF counsel.
The Montana Supreme Court held that (1) the jury was not properly instructed on FELA law governing timeliness/aggravation/non‑apportionment and (2) BNSF counsel’s repeated improper arguments were cumulatively prejudicial; it reversed and remanded for a new trial with instructions consistent with the opinion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether statute of limitations timeliness should be decided as a matter of law	Anderson: discovery rule, continuing tort, aggravation doctrines or narrow "injury" definition should preserve his claim	BNSF: discovery rule (Kubrick formulation) starts limitations when plaintiff knew existence and cause; non‑disabling pain triggers duty to investigate	Court: timeliness is generally a jury question; but trial court erred by refusing instructions explaining that FELA permits recovery for injury "in whole or in part" caused within 3 years — remand for new trial with proper instructions
Whether continuing tort doctrine applies to cumulative trauma under FELA	Anderson: continuing tort tolls limitations while tortious exposure continues	BNSF: discovery rule controls; continuing tort unnecessary/unsuitable	Court: continuing tort unnecessary; FELA’s "in whole or in part" causation and three‑year look‑back suffice to allow recovery for injuries (or aggravations) caused during limitations period
Whether aggravation of a time‑barred injury is recoverable under FELA	Anderson: damages for negligent aggravation during the limitations period should be available	BNSF: aggravation irrelevant because underlying injury was time‑barred; apportionment required	Court: aggravation is compensable; apportionment (diminishing recovery because part pre‑dates limitations) is not permitted under FELA except for comparative fault — jury should be instructed accordingly
Whether non‑disabling aches/pains constitute "injury" triggering discovery rule	Anderson: exclude ordinary, non‑disabling aches from "injury" as matter of law (like workers’ comp decisions)	BNSF: FELA is not workers’ comp; constructive knowledge of injury/cause can start limitations even if non‑disabling	Court: definition of manifestation (when accumulated effects manifest) is factual for the jury; rare to decide as matter of law; Urie rule governs discovery for occupational disease/cumulative trauma

Key Cases Cited

Urie v. Thompson, 337 U.S. 163 (U.S. 1949) (FELA discovery rule for occupational disease: claim accrues when accumulated effects manifest)
Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500 (U.S. 1957) (FELA causation: employer liable if its negligence played any part, even the slightest)
Norfolk & W. Ry. v. Ayers, 538 U.S. 135 (U.S. 2003) (FELA disallows apportionment of causation except comparative fault)
U.S. v. Kubrick, 444 U.S. 111 (U.S. 1979) (statute of limitations begins when plaintiff knows both existence and cause of injury — cited by some circuits in FELA cases)
Conrail v. Gottshall, 512 U.S. 532 (U.S. 1994) (FELA is not a workers’ compensation statute; requires negligence to recover)