Jurisdiction: Superior Court of New Jersey, Appellate Division

On June 9, 2023, summary judgment was granted in favor of defendant New York, Susquehanna and Western Railway. Plaintiff, Todd Stephans, appealed the decision. The court found no abuse of discretion and affirmed.

Plaintiff first sued the Railway in August 2019 where he had worked since 1994 to the date of filing (minus 1999-2004) as a car inspector and locomotive mechanic, alleging that he was exposed daily to various unidentified carcinogens, which caused him to develop bladder cancer. He received his bladder cancer diagnosis in May 2014, with his physician, Dr. Kerns, telling him that it “had something to do with what [he was] breathing in at work.” After initial treatment, plaintiff was cancer-free by 2015 and has had no remission to date.

Defendant moved for summary judgment based on the FELA three-year statute of limitations. The trial court granted the motion in part “as to any injury which existed in 2014 when plaintiff clearly was apprised of the potential causal connection between his bladder cancer and working conditions.” The court noted a claim under FELA is subject to a three-year statute of limitations, but an aggravation of an injury suffered while working would not be barred if it were filed within the three-year period.

The court denied the motion in part as to any aggravation of the cancer within the period of the statute of limitations.

In September 2022, plaintiff filed an amended complaint alleging that he had stopped working for the Railway in 2021, and that its negligence in continuing to expose him after his cancer diagnosis to asbestos, diesel exhaust, and secondhand smoke, had aggravated the bladder cancer or increased risk of its recurrence. Defendant again filed for summary judgment. On June 9, 2023, the court held that since plaintiff had not actually incurred another bout of cancer, there were no damages to speak of, and hence defendant was entitled to summary judgment.

Plaintiff moved for reconsideration based on medical records from Dr. Kerns indicating he had a new bout of bladder cancer in April 2021, within the applicable statute of limitations. Defendant opposed reconsideration as the medical records plaintiff relied upon had been produced in discovery in November 2021, prior to arguments on its summary judgment motion of June 2023. Defendants also cited an April 2022 deposition in which plaintiff testified that the cancer had not returned, and that Dr. Kerns had informed him at the April 2021 visit that “everything was okay.”

The trial court denied the motion to reconsider and grant plaintiff relief under Rule 4:50-1.

The appellate court found no abuse of discretion. The April 2021 Dr. Kerns records were not new evidence, and plaintiff failed to demonstrate that that evidence was not available to him until summary judgment was granted or that it was somehow not discoverable by due diligence.

A copy of the decision is attached.