These stories summarize why I love being an injury attorney. I work for months and years on worthy causes helping to level the playing field in favor of a client or family against big companies who try to shirk responsibility and deny legitimate compensation.
By Richard Shapiro, FELA Lawyer in VA
I was in a mediation the other day on a personal injury case for my clients, representing nice parents whose eight-year-old son was seriously injured in a car accident due to the fault of a truck driver. At typical mediations, there is a lot of waiting time as the mediator, who is usually a semi-retired judge, is shuttling back and forth between conference rooms trying to get the parties to a fair settlement. The mother of the injured child asked me what the best part of being an attorney was and what I enjoyed the most. Before I answered, she said “Do you really use a lot of your skills or only once in a while?” It made me think….
It’s true that we don’t use the skills that we learn in law school or the skills that we use in the courtroom every day. However, when you represent a client for years through the litigation process and are able to achieve a successful verdict or settlement, it is the best part of being an injury attorney by far. Here are some of my most memorable examples:
1. Lung cancer caused by exposure to asbestos, radiation, and diesel fume exposure, not history of smoking
I fought for four years on a case in which my client developed lung cancer and did not believe it was from cigarette smoking (he quit 17 years before his diagnosis) but rather was from exposure to carcinogens (asbestos, radiation, diesel exhaust fumes) during his 40‑year career while working for CSX Railroad.
My client explained that he knew he had been exposed to radioactive contamination because the railroad moved thousands of tons of metals in open-top train cars for years. He also told me that he believed there was asbestos on the diesel engines for decades. Finally, he was exposed to diesel fumes which remain a health issue for those riding on diesel engines that are not air‑conditioned since the fumes blow back into the crew cab.
I liked my client and wanted to believe him, but I knew that I had nothing without starting to develop medical evidence that could show that carcinogens beside cigarette smoke contributed to his lung cancer. The case required that I get the evidence to prove the key issues and I issued Freedom of Information Act requests to the federal government, and Open Records Act request to the State of Tennessee. I had to deal with experts in fields that I was fairly unfamiliar with, including nuclear health physicists. The particular railroad would not offer even half of the medical expenses of the family even though this took into account none of the five years of cancer treatment which eventually caused the death of my client. So, with much advance work involving experts, pretrial motions and briefs, the case went before a jury in November 2010.
When the jury returned its verdict after ten days of trial, I still wasn’t sure whether they would find totally in favor of the railroad and give no money damages to the estate of my client, who passed away during the litigation process. When the jury returned an $8.6 million verdict, it was one of the greatest moments of my legal career and I hugged his widow for what seemed like an eternity as the jury left the courtroom. That is a great moment as an injury attorney.
2. Represented mesothelioma asbestos cancer victim against Conrail
A railroad engineer retired to Florida after 35 years with Pennsylvania Railroad, which became Conrail. While enjoying his retirement and playing golf three or four times a week, he noticed that he was short of breath a few times while he played so he scheduled an appointment with his doctor. One test led to another and then this otherwise healthy man received the horrible diagnosis of mesothelioma cancer, which is known to only be caused by asbestos. Given that his entire adult-life career was with the railroads, he knew that he had been on engines with asbestos and with asbestos on steam generators that supplied heat to passenger cars—as well as asbestos on diesel engines.
When I took his case, my client was doing very well, but mesothelioma is a terminal cancer with an average life expectancy of somewhere between several months and 12 to 18 months maximum. It is a cruel disease that is not subject to any surgical cure. We promptly filed suit and when the railroad sought his testimony. I worked for a couple of weeks to prepare for my client’s videotaped deposition because in these types of cases you realize the horrible truth that your client may or may not be alive if several months go by before a trial occurs.
Many months later, after other depositions before trial, we agreed to a mediation session in Philadelphia with the railroad. I traveled with my client and we were able to settle his case for a very substantial sum of money. However, the cold hard truth is that money is not going to make my client’s terminal cancer go away.
For this reason, my client spent much time stressing over how he would provide for his daughter and for his wife and it was very important to him to be able to settle the case while he was not hospitalized and able to make financial decisions for his loved ones. We might have been able to push this case to a jury trial and obtain a larger sum of money, but my client knew that we couldn’t guarantee it, and his doctors couldn’t guarantee that he would be able to do so. How a person diagnosed with mesothelioma pushes through every day knowing what they face is one of those mysteries of life that makes you contemplate and treasure every day you walk this earth in good health.
3. Justice attained through appeal – Mesothelioma case thrown out based on written release buried in resignation 17 years earlier
I represented an engineer who had been employed for 45 years for N&W/Norfolk Southern. He began work in 1947 on steam locomotives which were covered with asbestos insulation in virtually every part of the engines.
Many processes going on inside these engines caused asbestos fibers, which are completely invisible to the naked eye, to flow in the crew cab every day. Unfortunately, the railroad knew, since the 1930s, that asbestos could cause permanent asbestos lung diseases but simply did not protect workers by warning them about the dangers of asbestos.
My client retired in 1986 and the railroad did what is called a “buy‑out” where the railroad paid some money in order to convince a worker to retire early and give up their union seniority. It is a common method for companies to reduce their total workers and offer a little carrot to a worker involving a sum of money and possible other benefits. In this case, the railroad offered about $50,000 and the worker needed to release claims relating to their employment and seniority. This vague release in the buy‑out agreement never talked about a railroad worker’s potential future injury or disease claims, and never stated that under what is called the Federal Employers’ Liability Act (FELA) that this or any other potential future unknown claim was going to be released.
We felt this was totally unfair and illegal when the railroad raised the release during the course of his mesothelioma cancer injury lawsuit. In other words, the railroad said that it should not be sued because the buy‑out included a general release of all claims. The trial judge in West Virginia (WV) bought this argument lock stock and barrel and threw the entire case out just weeks before trial. Shocking, but true.
I told my client’s family that I would appeal this case to the West Virginia Supreme Court and argue that a release such as this could not wipe out or serve as a legal bar to a completely unknown, future arising claim under the FELA, which is the exclusive remedy for railroad workers or their families for on-the-job injuries caused by the neglect of a railroad, as well as for the violation of a safety statute or regulation by a railroad.
The case took nearly two years to get to the WV Supreme Court including all the briefs and other papers. Eventually, in a unanimous decision, the WV Supreme Court ruled that a general release could not release unknown, future arising, claims against a railroad including, but not limited to, a mesothelioma cancer case like ours. This precedent extended well beyond just mesothelioma claims, but to any unknown claims when a standard retirement resignation is signed, for example.
The WV Supreme Court remanded the case back to the trial court judge for a jury trial as we had originally been planning. The railroad then agreed to voluntary mediation on this case. Eventually, it was settled at voluntary mediation satisfactorily to the family of my deceased railroad engineer, who was still survived by his widow and his sons.
4. Justice attained through appeal – Amtrak Engineer injured in derailment; case initially dismissed at trial against Amtrak/CSX
I was retained by the engineer who was operating an Amtrak passenger train that derailed when traveling at a fairly high rate of speed through Lake City, South Carolina (SC). Numerous passengers were hurt in the derailment, which could have been far worse but for fairly heroic efforts by the Amtrak engineer who was my client for his own personal injuries. However, his employer, Amtrak, and CSX, which owned the railroad tracks, did not see it this way and defended the action rather than pay compensation for his personal injuries. Essentially both his employer Amtrak and CSX claimed that they were completely free of any neglect and should not be sued, blaming a private street sweeper company driver who had run a stop sign and traveled up onto the railroad right of way and smashed into the CSX owned railroad tracks.
Yes, the street sweeper operator was clearly negligent but our post-accident investigation showed that the reason the street sweeper operator’s truck bumper smashed the railroad track was because CSX did not have anything approaching a normal amount of ballast rock surrounding the railroad track at that area. Federal regulations were enacted that require a railroad to follow its own written rules with regard to continuous welded rail which is the common mainline railroad track in many areas and CSX had neglected proper maintenance and allowed the level of necessary structural ballast rock to erode and wash away for numerous years.
We proceeded to trial against the sweeper company, as well as CSX and Amtrak. The railroad attorneys, on the morning of trial, moved to have the judge throw the case out against them arguing that they had no negligence. The judge agreed. This left us with a case only against the street sweeper company and the big problem was that there were other passenger claims and there was almost no insurance left for our engineer’s serious permanent injuries, and he was out of work as an engineer due to his personal injuries.
We obtained our verdict against the street sweeper company for over $800,000 but, again, almost all of it was uncollectible because there was no insurance left. Accordingly, we appealed the case to the South Carolina Supreme Court arguing that both railroads were responsible also.
I wrote the drafts of our briefs, and recited what our accident reconstruction engineer had testified to in a videotape deposition – the lack of appropriate ballast rock maintenance by CSX was a concurring cause of the derailment. In other words, even though the street sweeper operator was definitely negligent, had the proper ballast rock section been lining the tracks in that area, our accident reconstruction engineer did various engineering analyses that proved that the track would not have been knocked out of alignment but for the failure to have the proper ballast rock at the railroad track area.
We had an additional big problem: another crew member’s case had been thrown out by a different judge in South Carolina—a case I was not involved in. The South Carolina Supreme Court agreed with the trial judge and properly dismissed the other crew member’s case against Amtrak and CSX. Big problem!
We dealt with this head on by telling the South Carolina Supreme Court in our briefs that our case was completely different than the other crew member’s case because we proved through accident reconstruction that CSX failed to maintain the track and this directly contributed to the derailment. Also, Amtrak, as the operator of its passenger trains, has a duty that it cannot delegate out of under the FELA which requires that Amtrak also must inspect and assure that the railroad track is safe. We argued the trial judge made a mistake when he dismissed these railroads in our case.
In a unanimous opinion, the Supreme Court reversed the trial judge who had dismissed the case against both railroads and reinstated our case for a new trial. Fortunately, very soon before the new trial date, we were able to settle the case against both of the railroads satisfactorily to our engineer client.
These stories summarize why I love being an injury attorney. I work for months and years on worthy causes helping to level the playing field in favor of a client or family against big companies who try to shirk responsibility and deny legitimate compensation.
About the Editors: Shapiro, Cooper Lewis & Appleton is an injury law firm with a long history of representing hundreds of railroad workers in FELA/ railroad injury cases. Check out our railroad injury case results to see for yourself. Our offices are in Virginia Beach, Virginia (VA) and Elizabeth City, North Carolina (NC). Our lawyers hold licenses in VA, NC, SC, WV, KY, FL and DC and have handled railroad injury and FELA cases throughout the eastern U.S. We would like to send you one of our FREE reports about railroad injury and FELA cases, including Do’s and Don’ts When Injured at a Railroad – The Railroad Worker’s FELA Rights and What Railroad Claim Agents Won’t Tell You (But You Must Know). We are ready to talk to you by phone right now—we provide free initial confidential injury case consultations, so call us toll free at 1-800-752-0042 before giving any statement or talking to a railroad claims agent. Our injury attorneys also host an extensive injury law video library on Youtube . Furthermore, our lawyers proudly moderate the Yardlimits Railroad Community Forum and donate to the Fallen Brother Fund. PA
