Our client was a railroad worker switchman who lost his life to lung cancer following a 5 year battle, after being exposed to asbestos, diesel fumes, and radiation during his 40 year career as a brakeman/switchman with L & N/CSX, mainly in and around Knoxville, TN. He handled cargo and scrap metal from the DOE Oak Ridge nuclear facilities as L & N regularly moved radiation contaminated metal and barrels by train car to a scrapyard licensed to receive “low level” radioactive scrap metal. We proved that the railroad had NO radiation protection program whatsoever, and violated radiation transport regulations by never surveying the traincars for radiation. Even more shocking is that they allowed their workers to ride inside gondola cars unprotected with contaminated metal. The jury returned the 8.6 million dollar verdict due to horrible pain, suffering, psychological injuries relating to over 4 years of oncology/cancer treatment and his 14 year life expectancy lost, among other losses.
If being exposed to radiation wasn’t bad enough, our client also worked on asbestos-laden diesel locomotives, and inhaled diesel exhaust on switching engines for decades. Railroad worker diesel fume exposure, long term, has been linked to COPD, early death, and many other health hazards.
Our client quit smoking 17 years before being diagnosed in 2005 with lung cancer-and had a 26 pack year history. His doctors testified that cigarettes were a contributing factor, but that the occupational carcinogens all contributed and no scientific breakdown was possible.
The Knoxville jury trial (Winston Payne Estate v. CSXT) lasted over two weeks and the jury of 12 deliberated for a full day, before returning an $8.6 million verdict for our client.
CSX argued that cigarette smoking was the sole cause of our client’s cancer and that there was no valid evidence of the amount or dose of radioactive contamination, asbestos, or diesel exhaust during his work, if any such exposures at all.
We countered this argument by offering 16 witnesses, including the treating oncologist, a cancer specialist, epidemiologist, nuclear physicist, industrial hygienists and many factual witnesses who indicated smoking was not the sole cause of the cancer. The railroad called numerous opposing industrial hygienists and doctors.
I worked on this case for over four years to get justice for this client, and now his surviving widow. We issued subpoenas to uncover the extent of radioactive contamination Mr. Payne was likely exposed to, including enriched uranium, “”yellowcake” and even plutonium surface contamination at the notorious scrapyard where the railroad regularly had workers switch cars for decades with no radiation protections whatsoever.
The railroad claimed the asbestos was nonexistent on diesel engines, and we proved this was a bogus defense through various witnesses. The jury found two statutory violations of the Federal Locomotive Inspection Act and a radioactive transport regulatory violation, found in our favor on railroad negligence, and assigned 62 percent contributory fault to our deceased client.
The action was brought under the Federal Employer’s Liability Act, “FELA”, which also provides at 45 USC sec 53 and 54a, that if the railroad is determined to have violated a safety statute enacted for the safety of employees, contributory fault may not reduce a jury verdict. Accordingly, our client is moving for judgment in the full sum of $8.6 million, not the $3.2 million net sum, which accounts for 62 percent contributory fault.
About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono service to consumers.