Shapiro, Cooper, Lewis & Appleton, P.C. (Virginia Beach, VA) is very pleased to announce that Richard N. Shapiro successfully obtained an $8.6 million verdict in favor of their client, the plaintiff, in a wrongful death case against L&N/CSX.
The plaintiff, Winston Payne, was a L&N/CSX railroad worker switchman who retired from CSX, a Virginia corporation, in 2002 at the age of 60 after a 40 year career with the corporation. In 2005 he was diagnosed with lung cancer and believed his exposure to carcinogens while working for CSX was the cause of his lung cancer. Although Mr. Payne did smoke for 26 years, he had quit smoking 17 years before the diagnosis.
Shapiro, Cooper, Lewis & Appleton, P.C. issued Freedom of Information Act requests to the DOE-Oak Ridge, and to the TN Radiological Health regulators before suit. The firm issued further subpoenas that uncovered the extent of radioactive contamination Mr. Payne was likely exposed to, including enriched uranium, “”yellowcake” and even plutonium surface contamination at a notorious scrapyard outside Knoxville, TN, which became a state Superfund site in 1991 and was closed down and cleaned up for 15 years thereafter. The railroad had workers like Payne switch cars for decades in and out of the scrap yard, with no radiation protections whatsoever.
The plaintiff testified that he worked on CSX diesel locomotives with asbestos insulation, as did several co workers and industrial hygienists, and he inhaled diesel exhaust inside crew cabs on switching engines for decades.
After four cycles of chemotherapy, 43 radiation treatments and four and a half grueling years of cancer care, 1n February, 2011, Mr. Payne died at the age of 67 after the cancer spread causing brain tumors. His oncologist opined that cigarettes were likely a contributing factor, but that the occupational carcinogens, including radiation, asbestos and diesel exhaust fumes, each contributed but, no scientific breakdown was possible. An occupational cancer specialist also concurred that the workplace carcinogens, and smoking, all contributed to the cause of the lung cancer.
The plaintiff’s nuclear health physicist testified that the railroad had no radiation protection program whatsoever, and violated radiation transport regulations by failing to ever survey the train cars entering and/or existing the scrap yard. An industrial hygienist testified that CSX did not provide a safe place to work and did not comply with a federal statute called the Locomotive Inspection Act, by supplying asbestos laden engines and allowing diesel exhaust to routinely seep into crew cabs of diesel engines.
The plaintiff’s widow, as the personal representative, claimed $587 thousand in medical/oncology care, $256 thousand in lost household services, as Mr. Payne's 14 year life expectancy had been lost, and sought a total of $8.6 million dollars during the closing argument. Under the FELA wrongful death provisions, the decedent’s medical expenses, pain, suffering, anguish, fear, loss of enjoyment of life are recoverable, but no grief or consortium loss of survivors is allowed. The largest sum CSX offered, prior to the 10 day trial, was $250 thousand.
The defense argued that cigarette smoking was the sole cause of his lung cancer and that there was no valid evidence of the amount or dose of radioactive contamination, asbestos, or diesel exhaust exposure during his work, if any such exposures occurred at all. The plaintiff offered 16 witnesses, including the treating oncologist, a cancer specialist, epidemiologist, nuclear physicist, industrial hygienists and many factual witnesses. The railroad called 10 witnesses, including industrial hygienists, doctors and fact witnesses.
The Knoxville jury trial stretched over two weeks and a half weeks and the jury of 12 deliberated for a full day before returning their $8.6 million verdict, finding negligence and statutory violations by CSX. The jury found two statutory violations of the Locomotive Inspection Act, at least one radioactive transport regulatory violation, and, on general comparative negligence, assigned 62% contributory fault to plaintiff. The FELA, at 45 USC sec 53 and 54a, does not allow a comparative negligence reduction of a verdict for injury or death if the railroad is determined to have violated a safety statute enacted for the safety of employees. Accordingly, the plaintiff is moving for judgment in the full sum of $8.6 million, not the 3.2 million net sum considering 62% contributory fault.
The post verdict motions are pending.