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$8.6M Verdict Against CSX For Retired Employee With Cancer

By The Law Office of WT Johnson on January 8, 2014

Personal Injury AttorneyRailroads are an important part of American life and the employees of railroads contend with difficult and dangerous conditions to keep the trains and their cargo moving across the country. In Texas alone, there are more than 10,000 miles of track and almost 20,000 employees of many different rail lines, according to the Association of American Railroads.

The Tennessee Court of Appeals just awarded Winston Payne $8.6 million for cancer he developed after retiring from a long career with CSX. Payne had been a trainman and switchman from 1962 until 2002. In 2005, he was diagnosed with lung cancer. He underwent many rounds of chemotherapy and radiation treatments. In 2007, Payne filed a lawsuit against CSX alleging they were negligent in exposing him to asbestos, diesel fumes, and radioactive materials. He also alleged CSX was guilty of negligence per se because they had violated several statutes and regulations regarding the safety of employees. Payne had also smoked from 1962 until 1988, about 26 years. Payne died on February 24, 2010; his widow substituted as a plaintiff for the appeal.

The jury trial took ten days, and they returned a verdict in Mr. Payne’s favor. They had been given jury instructions that were very specific to the elements necessary for finding negligence, and regulations for determining if the regulations had been violated. A condensed version of the jury instructions and their written response follows:

1. Was the defendant negligent? Yes
2. If, yes, did the negligence cause in whole or part the harm he suffered? Yes
3. If negligent, was the defendant negligent with regard to:
Asbestos? Yes
Diesel? Yes
Radiation? Yes
4. Did the defendant violate the Locomotive Inspection Act? Yes
Concerning Asbestos? Yes
Concerning Diesel Fumes? Yes
Concerning Radioactive Materials? Yes
5. If yes, was the plaintiff negligent with regard to the harm he suffered? Yes
6. If yes, what percent did the plaintiff’s negligence cause the harm he suffered? 62 percent
7. The amount you find without deduction for the plaintiff’s part: $8.6 million

The judge read the jury instructions aloud, and the jury foreman responded. That should have concluded the case. However, the judge made additional comments to the foreman regarding a legal conflict between the answer the jury gave in question “4”, and the percent the plaintiff caused harmed to himself by smoking. The jury again left the court and returned with the following correction: 3.2 million at 100 percent.

Question “4” and the 3 parts of question “4”, ask about the Locomotive Inspection Act. When the jury agreed that CSX had violated the Locomotive Inspection Act, which is a statute, CSX was guilty of negligence per se, which is automatically negligent. By violating the statute, CSX broke the law, which could have criminal penalties associated with it. The statute was written to set a standard of care, by violating the statute, CSX automatically failed to uphold their duty to care for their employee.

This was the break CSX needed to ask the court of a new trial. The judge agreed that the jury verdict would be set aside, and a new trial was needed. A new trial date was set with a new judge, who excluded all of the expert witnesses’ testimony from the first trial. Then he granted CSX summary judgment and dismissed the case altogether.

Tennessee Court Of Appeals Looked At Three Questions

1. Did the first lower court err by further instructing the jury, and by permitting further debate?
The Appeals court found that the jury instructions were acceptable under the Federal Employers’ Liability Act (FELA). This act was conceived in the late 1800’s when thousands of railroad workers were being injured and some killed. FELA was enacted by Congress in 1908 to provide compensation for railroad workers and their families when the railroad is liable for injury or death due to negligence. It was broadly written to encourage railroads to take steps to prevent injury to their employees.

CSX asserted a defense of contributory negligence by the plaintiff because he had smoked for years. FELA is very clear about contributory negligence, by stating,

“the fact that the employee may have been guilty of
contributory negligence shall not bar a recovery, but the
damages shall be diminished by the jury in proportion to the
amount of negligence attributable to such employee: Provided,
That no such employee who may be injured or killed shall be
held to have been guilty of contributory negligence in any case
where the violation by such common carrier of any statute
enacted for the safety of employees contributed to the injury or
death of such employee. 45 U.S.C.A. § 53

When the jury answered “yes” to question “4” and all of its parts, it was under the law, negligence per se and contributory negligence was no longer a consideration. Neither the plaintiff nor the defense gave the jury instruction of negligence per se, which is a matter of law. When the jury reversed their original verdict of $8.6 million to $3.2 million, roughly a 62 percent decrease, it was as if the jury nullified the language and intent of FELA.

2. Did the first lower court err by granting a new trial to CSX?
The Appeals court found that the “incompleteness” of the first trial was only in regards to the jury not being given clear instructions about negligence per se, and how, if found, it would affect competitive negligence. The first court granted a new trial based on the perceived errors of law.

3. Did the second lower court err by dismissing the complaint?
The Appeals court found that the second court erred by not allowing the evidence presented by the expert witnesses as to the causation of the plaintiff’s injuries. They were all found to be qualified by the first trial judge, and their testimony was never called into question. The order for a new trial was reversed, as was, the order granting summary judgment.

Mr. Payne did not live to see this day. However, his case has sent a message to CSX and other companies who do not take their employees health seriously. A case in Tennessee may not seem important to anyone in Texas, but the same conditions might be found in any train yard if precautions are not taken, and if Federal regulations are disregarded by the railroad.

If you have suffered an injury due to the negligence of another, contact the professionals at W.T. Johnson for legal help.

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