Exclusion of Evidence Not an Abuse of Discretion; Judgment for Railroad Defendant Affirmed Supreme Court of Montana, August 14, 2018

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 Court of Common Pleas of Philadelphia County, April 24, 2018

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 Court of Appeals of Texas, March 29, 2018

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 Supreme Court of Montana, November 14, 2017

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 Supreme Court of West Virginia, August 31, 2017

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 Supreme Court of New York, Appellate Division, August 29, 2017

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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Plaintiff’s Second Disease Claim Dismissed Due to Prior Settlement and Release U.S. Court of Appeals for the Third Circuit, December 16, 2016.

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…
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Court Upholds Verdict in FELA Matter in Face of Limitations Argument But Vacates Damages Award and Remands Appellate Court of Illinois, Fourth District, October 18, 2016

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…
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Prior Release Found Inadequate to Dismiss Future Jones Act/FELA Claims Based on Development of Mesothelioma Supreme Court of New York, New York County, January 4, 2016

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…
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After Defendant Files Second Asbestos-Injury Claim, Federal Court Grants Defendant’s Motion to Dismiss Plaintiff CSX’s Declaratory Judgment Action for Lack of Jurisdiction U.S. District Court for the Northern District of West Virginia, December 29, 2015

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…
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