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.

Other federal courts

• Metro-North Commuter R. Co. v. Buckley (1997). Under FELA, a worker exposed to asbestos who has no symptoms or disease cannot recover for negligently inflicted emotional distress, because mere exposure is not a "physical impact". FELA also does not support an unqualified tort rule of lump-sum medical monitoring damages for an asymptomatic worker.

Pennsylvania

• Anderson v. Consolidated Rail Corporation (2023). In a FELA case, which applies a relaxed causation standard, an expert report should not be rejected on summary judgment over methodology concerns. If the trial court questions the expert's methodology, the proper step is a Frye hearing. A statute of limitations defense turns on fact questions that are ordinarily for the jury.
• Jarrett v. Consol. Rail Corp. (2018). Following the Third Circuit's Wicker test, a FELA release does not violate section 5 if it was executed for valid consideration as part of a settlement and is limited to risks known to the parties when signed. The party attacking the release bears the burden of showing it is invalid.
• Kurns v. Soo Line RR (2013). When a case is removed to federal court, earlier state-court interlocutory orders become orders of the federal district court, so an appellant who does not challenge them in the federal appeal cannot raise them in a later state appeal.

Tennessee

• Payne v. CSX Transportation, Inc. (2015). In a FELA case a jury verdict of negligence per se stands unless the evidentiary and instructional errors were substantial, and FELA bars reducing damages for the employee's contributory negligence where the railroad violated a safety regulation. Experts need not have specific dose information to testify on causation, particularly where the railroad never monitored exposure, and a differential diagnosis is a reliable method.
• Russell v. Illinois Central Railroad Company (2015). Expert causation opinions based on differential diagnosis and a qualitative assessment of workplace exposure can be reliable and admissible even when the dose of the exposure was not quantified. Under 45 U.S.C. § 55 and the railroad health and welfare agreement, a railroad may set off medical benefits the plan paid, even though the employee paid part of the premium.
• Blackmon v. Illinois Central Railroad Company (2014). Under the Wicker approach, a FELA release is valid only if given for valid consideration in a settlement and limited to risks known to the parties when it was signed. A boilerplate release listing asbestos and mesothelioma among many hazards, with no other evidence of the employee's knowledge, does not conclusively bar a later claim at summary judgment.
• Denton v. Southern Ry. Co. (Eastern Section, 1993). Under FELA, the employee's causation burden is slight and other causes do not reduce recovery against a negligent employer, and a plaintiff with asbestosis may present evidence of reasonable fear of cancer and future cancer-monitoring costs, with federal law governing the measure of damages.

Texas

• Fisher v. BNSF Railway Company (2nd District, 2022). A FELA release given in settlement of an existing asbestos claim that clearly covers future asbestos-related cancer is enforceable under Section 5, whether tested under the Wicker rule or the Mendoza-Gomez analysis. Once the employer shows the release, the party attacking it must produce evidence of invalidity.
• Payne v. BNSF Ry. Co. (2nd District, 2022). A release of known and unknown future claims, including cancer, given as part of settling an existing FELA asbestosis claim is not barred by FELA Section 5 and is enforceable where it shows the parties' intent to cover such claims. Once the release is shown, the plaintiff bears the burden of raising a fact issue on its invalidity.
• In re Kansas City Southern Railway Company (14th District, 2011). Because Texas Civil Practice and Remedies Code section 51.014(a)(11) allows an interlocutory appeal from an order denying a section 90.007 motion to dismiss, the party has an adequate remedy by appeal and mandamus is not available.
• Payne v. BNSF Railway Company (2nd District, 2002). A release given as part of settling an existing FELA claim is not barred by FELA Section 5 and can bar later claims for future injuries, including cancer, when the release language shows that was the parties' intent. Once the release is shown, the plaintiff must produce evidence raising a fact issue on its invalidity or on intent. The court declined to adopt the Babbitt bright-line rule against releasing unknown future injuries.

Virginia

• Cole v. Norfolk Southern Railway Company (2017). A release does not violate § 5 of FELA if it is executed for valid consideration as part of a negotiated settlement and is limited to risks known to the parties when it was signed (the "risk of harm" test). The question is whether the employee intended to release the known risk, a fact question.

West Virginia

• Ratliff v. Norfolk Southern Ry. Co. (2009). A release signed in connection with a voluntary separation program, rather than in settlement of a specific FELA claim, is void under 45 U.S.C. § 55 unless it reflects a bargained-for settlement of a known claim for a specific injury.
• Adams v. Consolidated Rail Corp. (2003). Under FELA, a railroad employee's smoking can be raised as contributory or comparative negligence that reduces damages, and a court may exclude smoking evidence where the disease is mesothelioma, which smoking does not bear on.
• Lamphere v. Consolidated Rail Corp. (2001). A trial judge may weigh the evidence and assess credibility in ruling on a new trial motion and may set aside a verdict against the clear weight of the evidence, even if supported by substantial evidence; the decision is reviewed only for abuse of discretion.