Summary Judgment Denied to Railroad Defendant on Issue of Foreseeability

U.S. District Court for the District of Maine, January 25, 2021

The plaintiff, Victor Coffin, alleged he was diagnosed with mesothelioma as a result of his exposures to asbestos while working for Maine Central Railroad (MCRR). Specifically, Mr. Coffin alleged that he worked as a bridge operator at the Carlton Bridge, which was built under the supervision of the Maine Department of Transportation and completed in 1929. During the time period that Mr. Coffin worked on the bridge, however, his employer, MCRR, was 100 percent …

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Railroad Defendant’s Motion for Summary Judgment Granted Because Plaintiff’s Expert Failed to Address Negligence

U.S. District Court for the Western District of Washington, January 22, 2021

James Jacobson, a long-time railroad worker, died of kidney cancer in 2015, and his widow brings this lawsuit pursuant to the Federal Employers’ Liability Act (FELA) on behalf of his estate. She alleges that his cancer was caused by the negligent use of known carcinogens by defendant BNSF Railway Company. The plaintiff identified one expert witness, Dr. Ernest Chiodo, as both a medical expert and liability expert. The railway defendant filed two motions: …

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Prior Release of FELA Claims Based on Asbestos Exposure Does Not Bar New Toxic Claims Based on Language in Past Release

U.S. District Court for the District of Nebraska

The plaintiff brings claims under the Federal Employers’ Liability Act (FELA) and the Federal Locomotive Inspection Act. The plaintiff, who was employed as a brakeman and conductor by defendant Union Pacific Railroad Company, alleges that while employed by Union Pacific from 1963 to 2000, he was negligently exposed to various toxic tort substances and carcinogens that caused or contributed to his development of colorectal cancer.

Defendant Union Pacific filed a motion for summary judgment, contending that the …

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Dismissal of FELA Claims Upheld on Appeal in Maryland

MARYLAND – The plaintiff, Clyde Crowe, developed mesothelioma and sued CSX Transportation and numerous other defendants in the Circuit Court for Baltimore City seeking damages under the Federal Employer’s Liability Act (FELA) due to his exposure to asbestos while employed by CSX. From 1960 to 1969, the plaintiff worked as a railway operator and foreman at the Port Covington railyard and port facility. CSX filed a motion to dismiss, arguing that the Longshore and Harbor Workers’ Compensation Act (LHWCA) provided the exclusive remedy against CSX …

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Exclusion of Evidence Not an Abuse of Discretion; Judgment for Railroad Defendant Affirmed

MONTANA — The plaintiff filed suit against Burlington Northern Santa Fe Railroad Company (BN) under the Federal Employers Liability Act (FELA) and the Locomotive Inspection Act (LIA). Specifically, Mr. Daley alleged he was exposed to asbestos while working at the Somers rail tie treatment plant from 1967-1986 when it closed. After a seven day trial, a verdict was entered finding BN had not violated FELA or LIA. The laintiff appealed arguing the trial court had abused its discretion on multiple evidentiary issues. The parties stipulated …

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Summary Judgment Affirmed For Railroad After Plaintiff Settles and Files Subsequent Suit for Lung Cancer

PENNSYLVANIA — The plaintiff filed a claim for Federal Employer’s Liability Act (FELA) against Conrail for the development of alleged asbestosis in 1997. The parties settled in 2004 and executed an agreement that contemplated a release for “all known and unknown…injuries for any and all forms of cancer…” Years later, the plaintiff developed lung cancer and filed suit alleging the injury was a result of exposure to asbestos for which Conrail was liable. Conrail moved for summary judgment arguing that the claim was barred by …

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Case Remanded After Appeals Court Finds Plaintiff’s Expert Unreliable

TEXAS — Plaintiff Leonard Baca alleged that while working for defendant BNSF’s predecessor in interest, he was exposed to asbestos, causing him to develop asbestosis. The plaintiff retained an expert, Dr. Alvin Schonfeld, a pulmonogist, who provided a report in which he concluded that Baca’s asbestosis was causally related to his exposure to asbestos during his employment. BNSF moved to exclude Dr. Schonfeld’s causation opinion as inadmissible because it was unreliable under well-established case law. The trial court denied the motion, but also granted permission …

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Plaintiff’s FELA Claim Against Railroad Survives Limitations Challenge

MONTANA — The plaintiff worked for Burlington Northern and Santa Fe Railway Corporation (BNSF) and claimed exposure to amphibole containing vermiculite in that capacity as BNSF transported vermiculite for W.R. Grace. The plaintiff filed suit against BNSF for his asbestos related disease under FELA. The trial court granted summary judgment for the defendant and the plaintiff appealed.

Prior to the suit, W.R. Grace filed for bankruptcy protection in 2001. A temporary restraining order (TRO) was immediately issued prohibiting any suits against third parties arising from …

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Prior Settlement Enforced Under FELA Leading to Dismissal of Action

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 …

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