FELA Railroad Claims in Asbestos Cases

Decisions in our library in which the court ruled on FELA claims by railroad workers: 66 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

For workers it covers, the Federal Employers' Liability Act (FELA, 45 U.S.C. § 51 and following) replaces state workers' compensation as the remedy against the railroad. It lets employees of railroads engaged in interstate commerce sue their employer for injuries caused "in whole or in part" by its negligence. Railroad workers were exposed to asbestos in locomotives, brake shoes, pipe insulation and shop buildings.

FELA cases differ from ordinary asbestos suits:

• The worker must prove the railroad's negligence played some part, even the slightest, in the injury. A violation of a federal railroad safety statute, such as the Locomotive Inspection Act, that contributed to the injury can establish liability without separate proof of negligence.
• Suit must be filed within three years after the claim accrues. For a latent disease, that is generally when the worker knew or reasonably should have known of the disease and its work-related cause; a death claim accrues at death.
• The worker's own negligence reduces damages rather than barring recovery, and does not reduce them at all when a railroad safety-statute violation contributed to the injury.
• The U.S. Supreme Court has held that a worker with asbestosis may recover for a genuine and serious fear of developing cancer (Norfolk & Western Railway v. Ayers, 2003), but that workers exposed to asbestos without symptoms of disease cannot recover for emotional distress or medical monitoring costs (Metro-North Commuter Railroad v. Buckley, 1997).

The Locomotive Inspection Act can preempt state-law claims against makers of locomotive parts, but not a worker's FELA claim against the railroad.

Alabama

• Greene v. CSX Transp., Inc. (2002). The Urie-Kubrick latent-injury discovery rule applies only to discovery by railroad employees themselves, not to personal representatives bringing 45 U.S.C. § 59 personal-injury survival claims; such a claim accrues no later than the employee's death.
• Ex parte Wilkerson (2000). A FELA claim accrues when the plaintiff has sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known; when the evidence on that date is disputed, accrual is a question of fact for the jury.
• Wilkerson v. Burlington Northern RR Company (1999). A FELA claim accrues when the worker knows or reasonably should know of the injury and that it is work-related; a final or confirmed diagnosis is not required to start the limitations period.

Arkansas

• Gray v. BNSF Railway Company (2023). Under FELA Section 5, a release containing a broad laundry list of unknown future claims and exposures does not bar a later claim. The 2004 release failed under both the Sixth Circuit's Babbitt and the Third Circuit's Wicker tests, and the 2017 release was ineffective as an overbroad general release.

California

• Quiroz v. BNSF Railway Company (2nd Appellate District, 4th Division, 2015). In asbestos litigation the plaintiff must first show threshold exposure to asbestos. A defendant can shift the burden on summary judgment by showing through factually devoid discovery responses that the plaintiff cannot prove exposure, and an expert opinion with no factual basis that the materials contained asbestos cannot create a triable issue.
• Frastaci v. Vapor Corporation (1st Appellate District, 4th Division, 2007). The Locomotive Boiler Inspection Act preempts state tort claims against locomotive manufacturers over the design and materials of locomotives, including asbestos, whether or not the locomotive was "in use" or off line in a roundhouse or repair shop.

District of Columbia

• Consolidated Rail Corp. v. Ray EX rel. Boyd (2010). The Rail Act's requirement that rail assets be conveyed "free and clear of any liens or encumbrances" covers in rem property interests and does not categorically bar state-law successor liability for in personam FELA tort claims arising from pre-conveyance asbestos exposure.

Georgia

• Bowers v. CSX Transportation, Inc. (2023). The relaxed causation standard in FELA cases does not relax the standard for admitting expert testimony, which is still governed by Rule 702. A trial court acting as gatekeeper does not abuse its discretion by excluding a specific-causation opinion whose use of studies and differential diagnosis it finds unreliable.

Illinois

• Smith v. Illinois Central R. Co. (4th District, 2015). In an asbestos case a defendant may present evidence of the plaintiff's other asbestos exposure to rebut proximate cause, without conceding the disease or disclosing its own causation expert. Excluding that evidence was not harmless where the plaintiff's case relied on dust from the neighboring UNARCO plant.
• Fennell v. Illinois Central Railroad Company (5th District, 2012). A defendant seeking forum non conveniens dismissal must show the plaintiff's chosen forum is inconvenient to the defendant and that another forum is more convenient to all parties; where the private and public interest factors do not strongly favor the alternative forum, the trial court does not abuse its discretion by denying the motion.
• Laverty v. CSX Transportation, Inc. (5th District, 2010). A nonresident plaintiff's choice of forum gets less deference. Where the plaintiff and decedent never lived in Illinois, the exposure and witnesses are all outside Illinois, and the public-interest factors weigh against Illinois, denying a forum non conveniens dismissal is an abuse of discretion.

Indiana

• Aurand v. Norfolk Southern Railway Company (2010). Under FELA, a release is evidence of the parties' intent but not conclusive, and boilerplate lists of waived claims are viewed skeptically. Whether the release covered a particular disease depends on disputed facts about the parties' intent and the employee's knowledge, which a jury should usually decide.

Kansas

• Little v. the Budd Company, Inc. (2020). The Safety Appliance Act preempts state regulation only of the safety devices listed in the Act, so state tort claims about unlisted equipment such as asbestos pipe insulation are not preempted. A preemption theory not raised in the district court is waived on appeal.
• Little v. Budd Company (2018). Certification of an interlocutory appeal under 28 U.S.C. § 1292(b) requires a substantial ground for difference of opinion on a controlling question of law. The defendant did not show one on whether the Safety Appliance Act preempts state claims about devices the statute does not specifically list.

Kentucky

• Fleischman v. CSX Transportation, Inc. (2007). Under Babbitt, a FELA release that settles a specific, pending asbestos claim for payment can bar a later mesothelioma claim when mesothelioma was a known possible result of asbestos exposure at signing. Under FELA's discovery rule, a claim accrues when the plaintiff knows or reasonably should know both the injury and its cause.
• Heizer v. New Orleans and Pacific Railway Co. (2004). A FELA survival claim accrues when the worker knew or should have known of both the injury and its cause, and the three-year period is not extended here by mental incapacity. A FELA wrongful death claim is extinguished only if the survival claim's limitations period expired during the worker's lifetime; otherwise it runs three years from death.

Louisiana

• Ditcharo v. Union Pacific Railroad Company (2024). A defendant that raises a colorable federal contractor defense and acted under a federal officer may remove the whole case under § 1442(a)(1). The court may then exercise supplemental jurisdiction over the related state claims and over FELA claims that § 1445(a) would otherwise make non-removable.
• Bouck v. Kansas City Southern Railway Co. (2021). The Locomotive Inspection Act's preemption of state-law claims against locomotive parts manufacturers (Kurns) does not preclude a railroad worker's FELA negligence claim against his employer for asbestos exposure from locomotives and locomotive parts.

Maine

• Coffin v. Ametek, Inc. (2021). Under FELA's low threshold, foreseeability turns on actual or constructive notice and is ordinarily a jury question; a railroad's general knowledge of asbestos hazards and disputed evidence of escaping dust prevent summary judgment on foreseeability.
• Coffin v. Ametek, Inc. (2020). An expert's opinion that a plaintiff's cumulative asbestos exposure caused his mesothelioma rests on good grounds and is admissible under Daubert, and challenges to its factual basis or its power to prove a particular defendant's liability go to weight and are for cross-examination. The same Daubert reliability standard applies to FELA claims.
• Coffin v. Ametek, Inc. (2020). A court may deny leave to implead a third party under Rule 14(a) when the request comes late, would unduly delay the case, and would prejudice the plaintiff by adding unrelated issues, even if the contribution or indemnity claim is colorable.

Maryland

• Staubs v. CSX Transportation, Inc. (2021). The separate disease (two-disease) rule applies to toxic-exposure claims under FELA, so a judgment on a claim for one exposure-related disease does not bar a later claim for a different disease from the same exposure unless that disease was or could have been raised in the first action.
• Crowe v. CSX Transportation, Inc. (2019). A railroad employee engaged in maritime employment is covered by the LHWCA as amended in 1972, and because a latent occupational disease injury occurs at manifestation, applying the Amendments to a post-1972 diagnosis is not retroactive; the LHWCA remedy is exclusive and bars a FELA claim.

Michigan

• Grand Trunk Western Railroad, Inc. v. 37th Circuit Court Judge (2008). Michigan Supreme Court Administrative Order 2006-6 bars "bundling", meaning aggregating cases to pressure settlement. Trying two asbestos cases simultaneously before separate juries is not bundling and does not violate the order.
• Jaqua v. Canadian Nat. RR, Inc. (2007). A FELA release does not violate § 5 if it is executed for valid consideration as part of a settlement and its scope is limited to risks known to the parties when it was signed, so it can release known risks of future injury such as cancer. A settlement with the injured person also bars a later claim by his personal representative.

Minnesota

• Kath v. Burlington Northern R. Co. (1989). Failure to object at trial to a special verdict form or to refused instructions waives the objection on appeal. Averaging juror damage estimates is not misconduct without proof of an advance agreement to be bound by the average.

Mississippi

• Illinois Central Railroad Company v. Oakes EX rel. Hagan (2018). Under FELA, a railroad defendant is entitled to a dollar-for-dollar (pro tanto) setoff against a verdict for money already paid to the plaintiff for the same injuries; Ayers bars apportioning fault to nonparties but does not bar setoffs.
• Illinois Central Railroad Company v. Gregory (2005). Plaintiffs may be joined under Rule 20 only if their claims arise from a distinct litigable event linking them, and asbestos cases are not exempt from this requirement; plaintiffs must also specify who they sue, when and where each was exposed, their injury, and the common event.

Montana

• Gallegos v. BNSF Railway Company (2023). Spoliation sanctions are not warranted for destruction of evidence the movant was not entitled to obtain; a Rule 35 autopsy request requires an affirmative showing of good cause, which BNSF did not make.

Nebraska

• Butler v. Union Pacific R. Co. (2020). Under FELA § 5 (45 U.S.C. § 55), a release is valid only if it compromises a specific controversy. A release of an asbestosis claim is therefore limited to asbestos-related injuries and cannot bar claims for harm from other toxins, even if it uses broad 'laundry list' language.

New York

• New York City Asbestos Litig (2019). A party relying on a seaman's release must show it was executed freely and with full understanding of his rights under Garrett's heightened admiralty standard, and where the release does not clearly cover a later mesothelioma and the record is silent or ambiguous on consideration and advice, summary judgment is inappropriate.
• South v. Chevron Corp. (Matter of New York City Asbestos Litig.) (1st Dept., 2017). Texaco, which bore the burden in this admiralty case, did not show that a 1997 asbestos release covered a later mesothelioma claim; even under the more lenient Third Circuit (Wicker) test, the release did not show that South understood and knowingly released the actual risk of mesothelioma.
• South v. Texaco (In re New York City Asbestos Litigation) (2016). Under the Jones Act and general maritime law, the party relying on a seaman's release bears the burden of showing it was fairly made and fully understood, and a release of future claims is not enforced where the proof beyond its language does not show the seaman understood he was releasing a future mesothelioma claim, whether the Sixth Circuit or Third Circuit standard applies.
• Horvath v. Acf Indus., LLC (2014). A forum non conveniens movant bears a heavy burden of showing the plaintiff's chosen forum is inappropriate, and that burden was not met where there were many defendants, some based in New York, and the plaintiff testified to months of asbestos exposure in New York City.
• Bailen v. Air & Liquid Sys. Corp. (2013). A defendant seeking forum non conveniens dismissal bears a heavy burden even when the plaintiff is a nonresident, and the 'special circumstances' rule applies only to transitory motor vehicle cases. Evidence of asbestos exposure in New York supports keeping the case there.
• Neuer v. American Art Clay Co., Inc. (2012). Under FELA, with its relaxed causation standard, a plaintiff's own testimony of asbestos exposure plus expert opinions linking the exposure to his mesothelioma raise triable fact issues, and the plaintiff need not quantify his exposure to defeat summary judgment.
• Aguirre v. Long IS. Rail RD. Co. (2007). In a FELA case tried in state court, plaintiffs still need expert testimony to show causation, but under New York law (Parker v. Mobil Oil) exposure need not be quantified precisely if the expert's method is generally accepted. Awards that materially deviate from reasonable compensation may be reduced under CPLR 5501(c).
• Aguirre v. Long Island Railroad Co. (2007). In a FELA case tried in state court, plaintiffs still need expert proof of causation, but under New York law exposure need not be quantified precisely and may be shown through work history and qualitative evidence. A verdict stands if some valid line of reasoning could lead rational jurors to it.
• Caradonna v. AW Chesterton Co., Inc. (2007). The Locomotive Boiler Inspection Act preempts conflicting state-law claims but does not preempt another federal statute, so a railroad worker's FELA negligence claim against the railroad, including a duty to warn of workplace hazards, is not preempted.
• Buckley v. Metro-North Commuter RR (1996). Under FELA, a jury could find that a worker with massive, prolonged asbestos exposure suffered a physical impact that supports a negligent infliction of emotional distress claim, even without clinical signs of disease. The cost of reasonably necessary future medical monitoring is also recoverable as damages.

North Carolina

• Williams v. CSX Transportation, Inc. (2006). Under the FELA, the trial court acted within its discretion in its evidence rulings, its jury instructions and its handling of the trial. Conflicting expert testimony on causation properly went to the jury, so the post-trial motions were rightly denied.

Ohio

• Nuckols v. Consol. Rail Corp. (6th Appellate District, 2022). Under FELA's discovery rule, a claim accrues when the plaintiff knew or reasonably should have known of both the injury and its cause. Whether a worker should have connected his cancer to workplace exposure is a fact question for the jury when the evidence leaves it genuinely disputed.
• Arpin v. Consol. Rail Corp. (8th Appellate District, 2016). Following the Sixth Circuit's bright-line rule, a release is valid under Section 5 of FELA only if it reflects a bargained-for settlement of a known claim for a specific injury. A release of future claims for injuries that had not yet accrued is invalid.
• Jackson v. AC Product Liability Trust (2009). A verdict is against the weight of the evidence when there is no testimony showing the plaintiff's actual, substantial asbestos exposure on the defendant's vessel. Expert hypotheticals must rest on facts in the record, and a verdict that shocks the conscience is excessive.
• Oglesby v. Consol. Rail Corp. (6th Appellate District, 2009). Ohio Civ.R. 10(D)(2), which requires a merit affidavit with a medical claim, is procedural and constitutional, and a plaintiff who substitutes real parties for John Doe defendants after the one-year service period cannot use relation back where the limitations period has run.
• Riedel v. Consolidated Rail Corporation (8th Appellate District, 2009). Ohio's administrative dismissal provision (R.C. 2307.93(C)) applies only to the asbestos-related claims specified in R.C. 2307.92, so non-asbestos claims joined in the same action are not dismissed and may be severed and proceed.
• Anderson v. AC & S., Inc. (8th Appellate District, 2003). Under FELA, a release is valid only if it settles an accrued claim for a known injury; a 1986 release for asbestosis could not bar a later-diagnosed mesothelioma claim that had not yet accrued, and Section 55 voids such a release to that extent.

Other federal courts

• Consolidated Rail v. Ray ex rel. Estate of Boyd (2011). The Rail Act's conveyance of failed railroads' assets to Conrail "free and clear of any liens or encumbrances" covers property-based claims, not personal injury tort claims. The Act therefore does not bar FELA liability for an employee's asbestos exposure that occurred before the conveyance.
• CSX Transp., Inc. v. Hensley (2009). Under Norfolk & Western R. Co. v. Ayers, a trial court must, on a defendant's request, instruct the jury in a FELA asbestosis case that fear-of-cancer damages require proof that the fear is genuine and serious. Sufficiency-of-the-evidence review does not replace that instruction.
• Norfolk & Western R. Co. v. Ayers (2003). Under the FELA, a railroad worker who has asbestosis may recover, as part of pain and suffering, for a genuine and serious fear of developing cancer. The FELA does not require apportioning damages among other tortfeasors, so a negligent railroad is liable for the full damages and must seek contribution elsewhere.