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Shapiro & Appleton

CSX Facing 'Secondhand Asbestos' Wrongful Death Lawsuit

In making the following statement in its ruling for the plaintiff in Cynthia Simpkins v. CSX Transportation, Inc. on March 22,, 2012, the Illinois Supreme Court established what could be an important legal argument for any person sickened or killed by a lung disease caused by exposure to so-called "secondhand asbestos":
If a course of action creates a foreseeable risk of injury, the individual engaged in that course of action has a duty to protect others from such injury. This does not establish a “duty to the world at large,” but rather this duty is limited ... . An independent “direct relationship” between parties may help to establish the foreseeability of the injury to that plaintiff (as either an individual or as a member of a class of individuals) but is not an additional requirement to establishing a duty in this context.


The justices were considering whether the daughter of a woman who developed and died from mesothelioma after being exposed to asbestos her husband brought home on his clothes and skin after working shifts at a CSX rail yard could pursue wrongful death claims against the railroad. The state supreme court affirmed the daughter's right to present evidence to a lower court that CSX failed to protect everyone who could be harmed by its employees' on-the-job exposure to asbestos.

Unsurprisingly, the railroad has been trying to avoid its liability for creating risks from take-home asbestos. CSX has presented defenses ranging from an assertion that it did not know asbestos was toxic and could cause cancer until 1965, the year after the deceased woman's husband stopped working for the rail company, to a legal theory that only people directly using dangerous brake components and insulation required protection against breathing in asbestos fibers.
As a personal injury and wrongful death attorney based in Virginia (VA) who has helped many railroad employees and their families hold rail corporations responsible for the health problems caused by asbestos, I know that CSX's arguments are ridiculous. The health risks of asbestos were known as early as the 1930s.
I am 100 percent in agreement with Ted Gianaris, whose Illinois (IL) law firm is representing the Simpkins family and who said, “The railroad wanted blanket immunity, claiming its responsibility ended with its workers. The railroad wants us to forget that it knew asbestos was deadly and was likely to leave the rail yard and make it home with the workers.”
It is good to know that a majority of justices on the Illinois Supreme Court also believe that CSX cannot be allowed to completely evade its liability for asbestos-related illnesses. An even better outcome will be if other state courts follow Illinois and allow all mesothelioma victims to have their days in court against CSX, Norfolk Southern, Amtrak and other railroads that failed to meet their duty to minimize asbestos exposure in all settings.
EJL
Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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