The plaintiff filed suit against defendants including Norfolk Southern Railroad Company (NSRC), alleging his decedent, Aaron Cole, developed lung cancer as a result of his work as a machinist for NSRC. NSRC sought dismissal based on the fact that Cole had previously released NSRC from future liability in May of 2000. Originally, Cole filed suit in 1996 alleging occupational pneumoconiosis including asbestosis. He later signed a release with NSRC for $20,000. The release in pertinent part stated that the plaintiff “does hereby release and forever …
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Prior Settlement that Included Future Claims Not Enough to Grant Motion for Summary Judgment
Plaintiffs Mason South and his wife filed suit under the Jones Act against several defendants, including Texaco, alleging his mesothelioma developed as a result of exposure to asbestos containing products for which defendants were responsible. Mr. South served as a merchant marine for 37 years. Texaco moved for summary judgment arguing that suit was precluded by a prior release signed by the plaintiff in an earlier lawsuit from 1997. Specifically, Mr. South had released Texaco from “all bodily and/or personal injuries, sickness or death” from …
Continue ReadingPlaintiff’s Second Disease Claim Dismissed Due to Prior Settlement and Release
Plaintiff James Collier filed suit against defendant CSX Transportation, Inc. in 2015 after a diagnosis of lung cancer, allegedly arising from his exposure to asbestos while working for railroad company CSX in the 1960s and 70s. Collier had settled an earlier 1994 action against CSX relating to injuries after suffering from asbestosis allegedly caused by exposure to asbestos during his employment. In exchange for that settlement, Collier released CSX for all future claims based on exposure to a number of different contaminants, including claims for …
Continue ReadingCourt Upholds Verdict in FELA Matter in Face of Limitations Argument But Vacates Damages Award and Remands
In this negligence actions brought under the Federal Employers’ Liability Act (FELA), the Appellate Court of Illinois, Fourth District, affirmed the jury’s verdict against defendant Illinois Central Railroad Company (Central) but vacated the award of damages and remanded for a new damages hearing. In 2003, Paul McGowan was diagnosed with lung cancer and died. In December 2008, his estate filed a 13-count complaint seeking damages from various defendants as a result of Mr. McGowan’s lung cancer and death. Count IV of the complaint was for …
Continue ReadingPrior Release Found Inadequate to Dismiss Future Jones Act/FELA Claims Based on Development of Mesothelioma
In this NYCAL case, the Maritime Asbestos Legal Clinic originally filed a suit in 1997 on behalf of the decedent, Mason South, in the Northern District of Ohio. The decedent served in the Merchant Marines from 1945 to 1982. Less than two months later the case settled, with Texaco Inc. being one of the settled defendants. In 2014, the decedent was diagnosed with and died from complications related to mesothelioma. In 2015, the decedent’s wife commenced another action under the Jones Act arising from her …
Continue ReadingAfter Defendant Files Second Asbestos-Injury Claim, Federal Court Grants Defendant’s Motion to Dismiss Plaintiff CSX’s Declaratory Judgment Action for Lack of Jurisdiction
Plaintiff CSX Transportation asserted a claim for declaratory relief, after the defendant filed an injury claim for lung cancer, which he claimed was asbestos-related. The defendant had settled a claim against CSX for an asbestos-related injury in 2003, and under the 2003 settlement agreement, he allegedly released CSX from future claims involving asbestos and cancer. The agreement included an indemnity provision, which CSX invoked in requesting defendant to indemnify it for the 2015 state court action. The agreement also released CSX from all claims which …
Continue ReadingRailroad Company Obtains Summary Judgment on Appeal Based on Inadmissible Expert Report
The plaintiff in this case brought a wrongful death action against the Illinois Central Railroad Company pursuant to the Federal Employer’s Liability Act (FELA) for the death of her husband, Charles Jackson, Jr., who had worked on the railroad. Illinois Central’s motions for summary judgment, to strike the plaintiff’s expert, Michael J. Ellenbecker, were denied. Illinois Central’s petition for an interlocutory appeal was granted.
In its review, the court found that Ellenbecker’s opinions submitted in opposition of the motion for summary judgment was inadmissible since …
Continue ReadingRelease Agreement in Prior Claim Does Not Bar Future FELA Claim
Plaintiff Roger Lee Hindle was a railroad employee who developed lung cancer and brought a suit under the Federal Employers’ Liability Act (FELA), alleging that his exposure to asbestos caused him to develop the condition. The plaintiff had previously brought a claim against the same railroad defendants for hearing loss; in settling the previous claim, he signed a Release Agreement discharging them from any and all losses, known or unknown, including cancer. The railroad defendants moved for summary judgment, arguing that this release barred the …
Continue ReadingRailroad Companies Awarded Dismissals for Plaintiffs’ Failure to Properly Plead Successor-In-Interest Liability
In these actions, plaintiffs Dennis Franco and James Nelson claimed exposure to asbestos while working, respectively, as a track repairman for the Reading Company and as a machinist for Consolidated Rail Corporation (Conrail). Defendants CSX Transportation and Norfolk Southern Railway are successor-in-interest to Reading and Conrail and moved to dismiss several of the plaintiffs’ claims, including common-law negligence and premises liability, arguing that the Federal Employers’ Liability Act (FELA) provides the exclusive remedy to railroad carrier employees who suffer work-related injuries resulting from the employer’s …
Continue ReadingCourt Analyzes Damages Under FELA
In this case, a railroad worker who was diagnosed with lung cancer filed suit under the Federal Employer’s Liability Act (FELA) alleging the railroad had exposed him to asbestos as well as other hazardous materials. The jury awarded $8.6 million, finding the railroad negligent and negligent per se, but it also found the decedent was 62 percent at fault due to his smoking history. Following the return of the verdict, the trial court instructed the jury that because of its finding that the railroad had …
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