On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket Number HUD-L-3089-00.
Before Judges Ciancia, Alley and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2003
Defendant appeals from an order granting summary judgment dismissing his complaint filed on May 8, 2000, because it was time barred under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. §§ 51 to 60. We affirm in part and reverse in part.
Plaintiff has been a New Jersey Transit (NJT) employee since 1987. During a routine physical conducted by defendant in 1995, it was noted that plaintiff had a "hearing impairment," and he was advised to see a private physician. Thereafter, plaintiff claims that he went to a doctor in New York, who told him that his hearing was "slightly damaged but [there was] nothing to be concerned with at this time." Plaintiff cannot identify the physician or obtain any records to support his claim regarding that examination, however. Nevertheless, he retained an attorney who wrote to NJT on October 11, 1995, advising that plaintiff had a "severe and permanent" hearing loss caused by noise exposure at work and demanding an offer of settlement. The letter, addressed to Thomas Gallagher, Assistant Director of Occupational FELA Claims at NJT, stated in its entirety:
As per our telephone conversation and continuing settlement negotiations with reference to the above-captioned matter, enclosed please find my client's medical and special damage package with an eye toward settlement in this cause. The key facts of the claimant's employment are listed above, 1987-present and continuing NJT.
There is no trial date non-litigation claim for settlement review at this time.
Enclosed please find a diagnostics report from Dr. Neal Sloane and the Medical Department of NJT setting for the severe and permanent nature of my client's hearing loss claim. Said hearing claim is a direct and causal result of his employment with NJT. For your file I have enclosed a completed Hearing Loss Questionnaire.
Based on the enclosures set forth herein please contact the undersigned immediately upon receipt of this communication to commence good faith settlement negotiations in an effort to reach a fair and amicable adjustment of this matter without resorting to a long and protracted litigation. I await your call forthwith.
The undersigned respectfully requests a tolling agreement on any of Statute of Limitations given the client's continuous exposure to both lung/pulmonary and hearing loss occupational hazards and due to the continuing nature of his employment.*fn1
Kindly give this matter your immediate attention.
In May 1998, plaintiff was examined by Dr. Arthur J. Matthews, who determined that plaintiff suffered from a "bilateral neurosensory" hearing loss related to his employment. Although the examination occurred in May 1998, the doctor's report was not rendered until March 2000. Plaintiff was tested by Dr. Gerald West in March 2002, and West confirmed Matthews' diagnosis that plaintiff's hearing loss was caused by continued exposure to loud noises that "aggravated his pre-existing hearing problems [and] resulted in increased loss of hearing."
Defendant's expert, Dr. Joseph Sataloff, rendered reports dated January 11, 2002 and February 27, 2002, in which he indicated that plaintiff had normal hearing in ...