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Factors Affecting Your Railroad Cancer Settlement – Strict Liability v. FELA Comparative Negligence

Published on April 22nd, 2021 by Andrew L. Hughes

Railroad workers diagnosed with an illness caused by workplace exposures are entitled to file lawsuits against their employer under the Federal Employers’ Liability Act (FELA). Under the FELA, railroad workers can recover for their occupational cancer or other illness if they can show that the illness was caused, even in the slightest, by the railroad’s negligence. This is a relatively low bar which is very favorable to railroad workers.  There is some nuance, however, to pleading your case that can help maximize your railroad cancer settlement amount.

Comparative Negligence in Railroad Cancer Cases

In most FELA cancer claims, the damages amount will be reduced accordingly with the employee’s own negligence. For example, if a locomotive machinist is diagnosed with lung cancer as a result of diesel exhaust and asbestos exposures, but that machinist also had a long smoking history, the worker’s smoking history will be seen as also contributing to the lung cancer and any verdicts or settlements will be reduced (see examples below).

It is important to note that the FELA does not bar your claim if you were partly negligent in causing the injury. This approach is called “comparative negligence.”

Strict Liability in Railroad Cancer Cases – No Reduction for Plaintiff’s Smoking History

Along with the FELA, there are certain other safety statutes on the books that can be used to establish that the railroad was strictly liable for the illness. When a violation of a safety statute is established in a railroad cancer claim, the verdict will not be reduced for the employee’s contributory negligence.

In railroad cancer claims, the safety statute that is most often in play is the Locomotive Inspection Act. The Locomotive Inspection Act can be violated if a railroad utilized locomotives that allowed diesel exhaust to enter the cab of the locomotive. The testimony in those cases typically relates to improper seals around the windows, doors, electrical panel and even the floors. The railroads’ failure to properly maintain the seals around these entry points allowed diesel exhaust to enter the cabs of locomotives in violation of the Locomotive Inspection Act. Accordingly, when we represent locomotive engineers, brakemen and conductors, we will typically plead a strict liability Locomotive Inspection Act violation.

As noted below, when a jury finds that the railroad violated the Locomotive Inspection Act, the plaintiff will be entitled to recover the full amount of the verdict even if the jury attempts to reduce the verdict based on the railroad worker’s smoking history.  Having a strict liability statute in play can help maximize your railroad cancer settlement amounts.

What Damages are Available Under FELA?

A railroad employee may be entitled to damages for lost wages, pain and suffering, loss of enjoyment of life, and medical expenses. In doing so, juries will consider fault on both sides and other factors when deciding on an award amount. Railroads do the same when they determine the value of a railroad cancer settlement amount.

Examples of Strict Liability v. Comparative Negligence FELA Verdict Results

Comparative Negligence Cases with Reduced Damages:

A retired 60-year-old railroad switchman and brakeman was diagnosed with lung cancer and brought a FELA action claiming that the railroad was negligent in failing to provide a safe workplace and failing to warn him about the risks associated with his exposure to toxic substances. The jury awarded him $8,6000,000 and he was found to be 62% negligent due to his history of smoking. His award was reduced to $3,268,000. (Payne v. CSX)

A railroad employee died from lung cancer after being exposed to asbestos during his employment. His estate brought a FELA action and claimed that the railroad failed to provide a safe workplace. The railroad was found to be 75% negligent, and the employee 25% negligent. The total verdict was for $905,000 which was reduced accordingly to $585,025. (Wyatt v. NS)

A 64-year-old former railroad employee worked as a signal maintainer and carman from 1976 until 2012 in and around Elkhart, Indiana. The plaintiff alleged that during his 36 years of employment with the railroads, he was exposed to toxic chemicals such as diesel exhaust, benzene, and asbestos. He specifically alleged asbestos exposures via the insulation in the signal cabinets and pipe covering in many of the old railroad buildings. The jury found that the defendants were negligent for failing to provide a safe workplace and that this negligence in some degree caused the plaintiff’s cancer. Defendants argued that the cause of his cancer was his HPV and smoking history, however, the jury still found the defendants 65% responsible. The jury found for the plaintiff and awarded him $1.5 million in gross damages which was reduced to $975,000 as a result of the plaintiff’s negligence (primarily his smoking history). (Grathen v. Conrail)

A railroad employee died from lung cancer after being exposed to asbestos during his employment. His estate brought a FELA action claiming that the railroad failed to provide protective equipment, failed to advise of the danger of working near asbestos, failed to measure and reduce the asbestos present in his work environment, and that the railroad knew or should have known about the dangers of asbestos. The jury found that the employee was 50% negligent. He was initially awarded $644,0687, which was reduced to $322,243. (Poe v. NS)

Strict Liability Railroad Cancer Cases with No Reduction for Plaintiff’s Smoking History:

A retired locomotive engineer received a $872,756 verdict after he was diagnosed with COPD, heart conditions and laryngeal cancer stemming from diesel exhaust and asbestos exposure on board locomotives. The jury voted to reduce verdict by 82% for the COPD and heart condition injuries and 85% for the laryngeal cancer but the court ruled that there would be no reduction in damages because the jury also found that railroad allowed diesel exhaust inside cabs of locomotives, which violated the strict liability Locomotive Inspection Act. (Shepard v. GTW)

A railroad brakeman developed several lung problems during the scope of his employment. He claimed that although he smoked, the injuries were due to his inhalation of diesel fumes. The jury found that his lung injury was worsened by his work conditions, and that he was 70% liable for his injuries, and that the railroad was 30% responsible. However, because the railroad failed to comply with the Locomotive Inspection Act, the railroad was subject to strict liability, and the award was not reduced. (MO Pacific v. Brown)

A railroad switchman, conductor and brakeman worked for a railroad from 1962 to 2003. When he was diagnosed with lung cancer in 2005, he claimed it was due to exposure to diesel, asbestos, silica, ionizing radiation and radioactive substances. He alleged that the railroad failed to provide protection to minimize his exposure and that the railroad failed to warn or protect employees from these dangers. Although the plaintiff railroad worker smoked at least a pack of cigarettes a day for twenty years, since the railroad was negligent when it violated the Locomotive Inspection Act, the damages were not reduced. While the plaintiff’s occupational illness may not have been life-threatening, he was awarded $2.6 million from the jury based largely on his lost wages and benefits resulting from his early retirement. (Battaglia v. Conrail)

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