Norfolk Jury Returns $5 Million Verdict in Favor of Client Who Passed Away from Asbestos-Related Lung Disease
Our client, a carman, worked at Norfolk Southern’s Lambert’s Point car repair shop for more than a decade. He serviced and changed out asbestos-containing brake shoes at the shop year in and year out breathing in toxic asbestos fibers. After nearly ten years, Norfolk Southern hired abatement contractors to remove asbestos from the car shop. Our client subsequently became very ill and was diagnosed with a deadly lung disease. He died in 2017 due to complications from the disease. After his death, our client’s daughter obtained an autopsy that revealed asbestos was in fact in his lung tissue. The daughter contacted Randy Appleton, one of the firm partners, who accepted the case after reviewing the autopsy. The railroad denied all liability and pointed to our client’s smoking history as the basis for his lung disease. After a six-day trial, a jury in Norfolk ruled in favor of our client and awarded $5 million in damages (with 80 percent contributory negligence).
Despite continued calls for railroad safety, railroad workers continue to perform their jobs in often dangerous conditions. These conditions frequently result in serious injuries to workers and even more tragically, their deaths. Last year alone, there were more than 25 railroad workers killed while on the job.
Whenever a railroad employee is injured, any compensation is covered under the Federal Employers Liability Act (FELA). FELA was enacted in 1908 to provide railroad workers and their families federal protection and process for legal recovery in the event of injury or death.
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Although FELA offers protections to railroad workers that are similar to workers’ compensation insurance, which protects and provides injured workers in other industries, there is a major difference when it comes to liability. Unlike workers’ compensation, which does not require an injured worker to prove the employer is liable for their injury, FELA is based on a fault-based system. This means an injured railroad worker must prove that their injury was caused due to the negligence on the part of the railroad. However, FELA does allow an injured railroad worker to sue the railroad for damages, which is something someone covered under workers’ compensation cannot.
Wrongful Death and FELA
When a railroad worker dies from their injuries sustained on the job, their family or estate representative can file a lawsuit under FELA to recover damages. The party filing the lawsuit is a personal representative of the decedent, which can be a spouse or close family member although others can serve in that capacity. Please note, the statute of limitations for filing this claim is only three years from the date of injury or death, so it is critical to contact a Virginia FELA attorney as soon as possible.
The exact date will be determined by the type of injury the victim suffered. When the death was caused by sudden trauma, the three-year date is evident, but when the death was caused by a slow-developing injury, such as an asbestos-related illness, it can be much more complex to determine the three-year period. Your attorney will be able to make that determination for you.
The first step a FELA attorney will take is to determine what act of negligence on the railroad’s part or safety violation caused the victim’s death. Once he or she has established the railroad’s liability, they will then determine what compensation the victim’s family can pursue. FELA allows survivors to obtain financial compensation for the following damages:
- The medical, funeral, and burial expenses the family incurred as a result of the victim’s death.
- The pecuniary (financial losses) the family will suffer as a result of the victim’s death. This can include lost future wages, benefits, and services the victim would have provided for his or her family had they survived. Some of the different services the victim provided their family which can be included in a FELA wrongful death lawsuit can include childcare, household duties (i.e. landscaping, home maintenance, etc.), and any other activities the victim provided the family which they will now have to pay someone to perform.
- The pain and suffering the victim experienced from their injuries before they died, including psychological injuries in fear of impending death and conscious pain and suffering.
Unfortunately, the Federal Employers Liability Act differs from typical state wrongful death statute by prohibiting recovery of grief, loss of consortium, and loss of companionship to the surviving spouse or close family members.
Contact a Virginia FELA Wrongful Death Attorney
In many cases that involve the tragic death of a railroad employee, the railroad may contact the victim’s family to try to offer a quick settlement. The amounts they offer are usually far below the actual amount the family would recover with the help of a FELA wrongful death attorney. Families should never sign or agree to any settlement without first consulting with a Virginia FELA attorney.
At Shapiro & Appleton, we have extensive legal experience advocating for railroad workers and their families. If your loved one has been killed in a railroad accident, call our firm today to find out how we can help your family get the legal and financial justice you deserve.