Virginia Beach, VA (PRWEB) December 19, 2010
A Knoxville, TN state circuit court jury awarded $8.6 million to the widow of Winston Payne, a switchman for L&N/CSX railroad on November 30, 2010.
Payne was exposed to radiation, asbestos, and diesel fumes during his 40-year career with the railroad and lost his life due to lung cancer. Payne’s lead attorney, Richard N. Shapiro, of Shapiro, Cooper, Lewis & Appleton law firm (Va. Beach, VA) and TN attorney Sidney Gilreath, argued that Payne’s cancer was caused by four decades of on the job exposure to these workplace toxic carcinogenic chemicals and fumes. Lead trial attorney Shapiro worked on the case for four years leading up to the jury's verdict.
The highest settlement offer by CSX was $250,000 prior to the 10-day trial in Knoxville. The jury of 12 deliberated for a full day before returning the $8.6 million verdict finding negligence and statutory violations by CSX under the federal law governing the case (the Federal Employers' Liability Act, "FELA").
Payne’s attorneys issued Freedom of Information Act requests to the DOE-Oak Ridge and to the Tennessee Radiological Health regulators prior to the lawsuit. Shapiro also issued further subpoenas which uncovered the extent of radioactive contamination Payne was likely exposed to, including enriched uranium, “”yellowcake” and even plutonium surface contamination at a notorious metals recycling scrapyard outside Knoxville, TN. This Witherspoon scrapyard became a state Superfund site in 1991 and was closed down and required 15 years to be cleaned up. L&N/CSX had workers like Payne switch cars loaded with radioactive cargo for decades, in and out of the scrap yard, with no radiation protections whatsoever. Many other freight railroads, such as Norfolk Southern (NS) and others, have historically handled radioactive material transport by rail with very little public awareness of the risks posed by these hazardous substances.
Payne’s attorneys brought in a nuclear health physicist to testify that the railroad violated radiation transport regulations by never surveying the train cars entering and exiting the scrap yard, and by exposing workers to cars loaded with radioactive scrap and even with radioactive placarded barrels in the cars. 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 by allowing diesel exhaust to routinely seep into crew cabs of diesel engines.
CSX argued that asbestos exposure was irrelevant because Mr. Payne did not suffer mesothelioma, asbestosis or pleural plaques and pointed to Mr. Payne’s 26 year history of cigarette smoking (Payne quite smoking in 1988 and was diagnosed with lung cancer in 2005) as the sole cause of his lung cancer. The railroad called ten witnesses, including industrial hygienists, doctors and fact witnesses, and also challenged that diesel exhaust fumes cause increased lung cancers.
Payne’s attorneys countered the smoking argument by offering 16 witnesses including the treating oncologist, a cancer specialist, epidemiologist, nuclear physicist, industrial hygienists and many factual witnesses to establish that the exposure to asbestos, diesel fumes, and radiation were likely to have contributed to, or actually caused the lung cancer.
When the jury returned from deliberations, they found two statutory violations of the Locomotive Inspection Act, and at least one radioactive transport regulatory violation. They also assigned 62 percent contributory fault to Payne under general comparative negligence. The Federal Employers Liability Act, at 45 USC sec 53 and 54a, does not allow a worker 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, Payne’s attorney 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.
After the verdict, Winston Payne’s widow stated, “I had so much faith in Mr. Shapiro and Mr. Gilreath [local counsel] and knew that the jury would do the right thing and hold the railroad liable for not providing my husband a safe workplace and no protective gear while he worked around these carcinogens.”
For further information about this jury verdict (and similar verdicts), and about asbestos, mesothelioma, and railroad worker radiation exposure, visit our firm’s website at http://www.HSInjuryLaw.com or our railroad worker FELA blog at http://railroadaccidentfelalawyers.com/.
Case Name: Estate of Winston Payne v. CSX
Case Location: Knoxville Circuit Court, TN
Case Number: Case 2-231-07
Tags: asbestos, asbestosis, mesothelioma, lung cancer, CSX, rail, railroad, rail worker, switchman, chemicals, diesel fumes, radiation, cancer, cancers, mesothelioma cancer