United States District Judge Victor Marrero dismissed as untimely a suit brought by a former MTA police officer alleging that he sustained injuries as a result of being exposed to toxic air around the World Trade Center in the days following 9/11. The plaintiff sued HNRK's client, the MTA, in 2007 under the Federal Employers Liability Act ("FELA") alleging that the MTA was negligent in assigning him in 2001 to perform police work in the WTC vicinity with insufficient protection. FELA has a three-year statute of limitations. According to plaintiff, however, he only learned in 2007 that his ailments stemmed from his exposure to the toxic air in 2001 and therefore, under the "discovery rule," his time to commence suit was tolled.

We successfully argued that plaintiff's time to commence his FELA claim was not tolled by the discovery rule. In turns out that plaintiff had settled a previous lawsuit against the MTA in 2004, more than three years prior to this latest suit. In his 2004 suit, he complained of the same injuries, but attributed those injuries to a different negligent act -- in that case, an accident in which he was struck in the head with a pipe. The Court refused to allow plaintiff to sue the same defendant for the same injuries based on a new theory of causation, notwithstanding plaintiff's assertion that he was unaware until recently of the allegedly true cause of his ailments. Agreeing with our argument, the Court held that a FELA cause of action accrues when the plaintiff knows or should know that the injuries he complains of were job-related, even if he is unaware of the true cause of that injury.

The Court also dismissed a separate claim by this plaintiff at our urging. Plaintiff complained that, while out on injury leave as a result of the pipe incident, he was wrongfully subjected to the MTA's sick/injury leave rules, which requires that the injured officer remain at home unless given permission to leave by the Police Department. Plaintiff argued that the MTA's rule was unlawful, but Judge Marrero rejected this claim on the grounds that plaintiff had failed to establish the elements of a FELA claim and failed to explain how he was injured. 



Daniel Bruno v. Metropolitan Transp. Authority, No. 07 Civ. 7503 (S.D.N.Y. April 10. 2008).