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Shapiro & Appleton

West Virginia Supreme Court Reinstates Railroad Engineer's Mesothelioma Wrongful Death Suit

The West Virginia Supreme Court reinstated a Federal Employer’s Liability Act (FELA)  mesothelioma wrongful death claim for the widow of a railroad worker in a 5-0 decision handed down on March 12, 2009 (Ratliff v. Norfolk Southern Railway Co, Civil Action No. 05-C-423). 


The Court ruled that a “separation agreement”  release of all claims that train engineer Ratliff signed 19 years before developing mesothelioma, was void under a provision of the FELA which prohibits railroad efforts to exempt itself from liability. 


Ratliff's attorney, Richard N. Shapiro, offered that “on behalf of the Ratliff estate and family, we are grateful that the Supreme Court agreed with our position, that a separation agreement release could not bar a mesothelioma FELA claim, when the disease was first diagnosed 19 years after Mr. Ratliff’s retirement.  This terrible asbestos cancer cut short Mr. Ratliff’s golden years, and in a horrible way at that.”

 

Background:


In April 2005, 19 years after his voluntary separation from Norfolk Southern as an engineer, Mr. Ratliff was diagnosed with mesothelioma.  He died in July 2005. The FELA wrongful death action was filed by Mrs. Ratliff, in her capacity as executrix of Mr. Ratliff's estate, in or around October 2005.  Several months before trial, Norfolk Southern filed a motion for summary judgment asserting that the action was barred by virtue of a release that had been executed by Mr. Ratliff in connection with a reduction in force/voluntary separation program NS (then N & W) offered in 1986 to qualified locomotive engineers. Ratliff’s estate filed a cross motion for summary judgment, asserting the 1987 release was void, as violative of 45 USC sec. 55, a provision of the FELA which prohibits writings the exempt railroads from liability. 


Ratliff, a Virginia resident who worked in Virginia and West Virginia, signed the separation papers, which included a release of all claims, known and unknown, in 1987, when he had no pending claim against N &W, and while unrepresented by counsel.


The Court reversed and remanded the Ratliff mesothelioma wrongful death case back to ththe trial court for a jury trial and it is expected that a new trial date will be set in the future. 

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