Mesothelioma Wrongful Death Claim Against Railroad Reinstated by West Virginia Supreme Court | Shapiro, Washburn & Sharp

What Happened

The West Virginia Supreme Court reinstated a Federal Employers Liability Act (FELA) mesothelioma wrongful death claim for the widow of a railroad worker. The unanimous 5-0 decision in Ratliff v Norfolk Southern Railway Co. was handed down on March 12, 2009.

Our Virginia-based railroad injury and wrongful death law firm brought the case on behalf of the retired train engineer who was diagnosed with mesothelioma 19 years after retiring from Norfolk Southern. The man died in 2005 shortly after learning of his work-related cancer.

We asked the state’s high court to decide whether the company could enforce a provision in Ratliff’s separation agreement that stated he released Norfolk Southern from liability for future health problems. In the end, the justices ruled that FELA invalidates any such provision.

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The former Norfolk Southern train engineer whose widow we represented voluntary left his railroad job in 1986, when the company was still known as N&W. He signed the separation agreement that we challenged while he was not suffering from an occupational illness and without consulting a lawyer.

His widow claimed that her husband was not informed of the health liability waiver in the separation agreement prepared by Norfolk Southern and remained unaware of it. Still, the railroad company invoked that clause when presented with a work-related disease claim under FELA.

Asbestos, the sole identified cause of deadly mesothelioma, was used extensively throughout the railroad industry and on trains during the entire time Ratliff worked for Norfolk Southern. Even knowing that it had exposed its former employer to asbestos, the company asked a trial court to throw out his widow’s wrongful death claim. It cited the language of the separation agreement.

Our FELA attorney submitted a cross-motion for an automatic judgment in favor of the widow and the deceased railroad worker’s estate. To support that request, our plaintiff’s lawyer cited the section of FELA that specifically prohibits employment or separation agreements that exempt railroads from liability.

The trail judge ruled for Norfolk Southern, and we immediately appealed. When the West Virginia Supreme Court reversed the initial decision, it sent the case back to the original court and ordered the judge to schedule a jury trial.

Explaining the importance of this victory, railroad wrongful death attorney Richard N. Shapiro said, “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.”

Court and Date: Supreme Court of Appeals, WV, 2009

Staff: Richard N. Shapiro, attorney