Railroad Lung Cancer Case Exemplifies Corporate Indifference to Worker Health and Safety

FELA is a unique federal law specifically designed for injured or diseased railroad employees.
We have all seen Erin Brockovich. The story of how one woman, with the help of a dedicated lawyer, refused to let a company get away with poisoning groundwater with chromium and, essentially, giving a town’s entire population cancer.

Viewers cannot help but wonder how a corporation would act with such disregard for health and safety. “Surely,” people think as the story plays out, “this was an isolated incident.”

Sadly, no.

The personal injury lawyers at Shapiro, Appleton and Duffan know from helping railroad workers who are diagnosed with mesothelioma and other forms of cancers that corporations will use almost any tactic to avoid liability. One of the longest-running, and still-ongoing, railroad lung cancer wrongful death cases highlights almost every difficulty a person injured or made ill by the negligence and irresponsibility of a company can encounter.

Radiation, Asbestos and Diesel Fumes

The case at issue – Payne v. CSX – is currently in its ninth year of litigation. Winston Payne of Knoxville, TN first contacted Richard Shapiro in 2007 after undergoing dozens of chemotherapy treatments for non-small cell lung cancer. Payne, a CSX freight conductor, believed decades of on-the-job exposure to poisonous diesel exhaust fumes, asbestos fibers, and even radioactive scrap materials contributed to causing his disease and wondered if he had a legitimate claim under the Federal Employers’ Liability Act (“FELA”).  Shapiro agreed to investigate.

FELA is a unique federal law specifically designed for injured or diseased railroad employees. It provides a vehicle for railroad workers to file claims against major rail corporations like Norfolk Southern, CSX, Burlington Northern, etc. in an effort to recover damages for medical bills, lost wages, pain and suffering, etc.  Unlike worker’s compensation, it allows for these recoveries, but the worker must prove railroad negligence in order to recover any of their losses.

Mr. Payne definitely had grounds for a FELA claim against CSX, for whom he worked from 1962 to 2003. Remember, Mr. Payne reached out to Mr. Shapiro in 2007. By the time Shapiro brought Mr. Payne’s case to trial in a Knoxville, Tennessee Circuit Court in 2010, he had died from lung cancer. His videotaped testimony was presented to jurors, with his wife representing his estate.

Mr. Payne told stories of riding in rail cars hundreds of work days with diesel fumes inside locomotive engine cabs so substantial that he could see and taste the fumes. He described riding inside hopper cars loaded with radiation contaminated scrap metal from the Oak Ridge nuclear laboratory and enriched uranium production facility. Finally he discussed asbestos insulating materials at work and on his train engines. He reported never seeing any warnings about hazardous materials, never receiving protective equipment such as respirators and never even undergoing training in how to minimize risks from dangerous carcinogens and hazardous radioactive scrap metal loaded in the train cars.

Jurors also heard from workplace safety experts and doctors who testified that Mr. Payne’s lung cancer was caused by his unsafe exposure to carcinogens during his railroad work, and also was caused in part by cigarette smoking. Evidence also emerged that the railroad consistently failed to follow regulations for protecting workers against asbestos and radiation.

CSX again contended that Mr. Payne’s substantial cigarette smoking during his career caused his lung disease, that regulations either did not exist or changed over the years he was employed by the company, and that any on-the-job exposures to hazardous materials were too minimal to constitute dangers. One of the major points CSX raised at trial was that Mr. Payne presented no monitoring data showing unsafe exposures to asbestos, diesel or radiation at work. The company, of course, had not collected that data, meaning it could not be presented.

Negligence Abounds

The 10-day trial in November 2010 ended with a verdict in favor of Mr. Payne and an award of $8.6 million for his estate. Within minutes, however, that victory slipped away. Full details of everything that went wrong for the Payne family appear in the Tennessee State Supreme Court’s ruling on Anne Payne v. CSX Transportation, Inc. The brief and simplified timeline looks like this:

• The original trial judge incorrectly allowed the jury to revise its verdict to take account of Mr. Payne’s own comparative negligence and improperly reduced the verdict to $3.2 million.

• That judge later granted CSX a new trial, leaving the plaintiff completely uncompensated.

• A second Knoxville judge threw out the entire case a month before the re-trial, ruling that Mr. Payne had no evidence of the dosage or level of his exposure to the workplace carcinogens, despite the first $8.6 million verdict.

• The TN court of appeals first ruled that the $8.6 million verdict should be re-instated, but CSX appealed that ruling to the TN Supreme Court.

• The high court unanimously ruled that the original Knoxville jury had properly found CSX had negligently exposed Payne to the carcinogens that caused his lung cancer, but a new trial would be required solely to set compensation damages for Mr. Payne’s contraction of lung cancer caused by CSX.

The initial confusion stemmed from whether Mr. Payne could be considered partly at fault for causing the cancer that took his life. The answer under FELA is a clear no because applying the law involves imposing strict liability on railroads that violate safety regulations. That is, Mr. Payne’s own contributory negligence (smoking) was not to be considered, because CSX did not abide by workplace safety regulations regarding asbestos and radiation.  Thus, CSX was required  to bear the full liability for the occupational lung cancer that killed Mr. Payne.

The Final Appeal

The Tennessee Supreme Court reached its decision in late June 2015. The high court considered many legal issues, but most importantly, the justices opined that the only prejudicial errors were the improper instructions provided after the original jury had returned its verdict.

One of the most important components of this finding – once more in layman’s terms – is the affirmation that neither judges nor juries can insist that plaintiffs produce precise dosage evidence of workplace exposure to toxic agents or chemicals that simply does not exist.

Persistence and Purpose

The final trial limited to the amount of damages for Mr. Payne’s suffering is scheduled for June 2016. We cannot know whether the new jury will return a verdict for more or less than the original $8.6 million verdict. We do know that jurors will learn about the nearly five years of cancer suffering and will see Mr. Payne’s videotaped testimony. We know that Mr. Payne’s widow will once more need to experience the heartbreak and hardship of hearing and seeing her husband describe how his employer failed to keep him safe and healthy.

Succeeding in holding CSX to account has required a decade of dedicated legal work and  tremendous sacrifice and faith from the plaintiff’s family. Ensuring that individuals harmed by negligent corporations receive compensation should not prove so difficult. Some companies believe they can outwait, outspend and legally outmaneuver plaintiffs.  Our firm works to disprove that adage.

Richard N. Shapiro is a shareholder at Shapiro, Appleton & Duffan in Virginia Beach, Va. He is certified as a Civil Trial Advocate by the National Board of Trial Advocacy, a prolific inventor and product designer, and has litigated wrongful death, trucking, faulty products, railroad and medical negligence claims throughout the Eastern United States.

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