Norfolk Jury Returns $5 Million Verdict in Railroad Disease Wrongful Death Case

Stephen Fowlkes (Left)Stephen Fowlkes worked at Norfolk Southern's Lambert's Point car repair shop between 1979 and 1990 often servicing and changing out asbestos-containing brake shoes at the shop. In 1988, Norfolk Southern hired abatement contractors to remove asbestos from the car shop. Once Fowlkes became critically ill and was in hospice care in 2017, he suspected asbestos caused his lung disease. After his death, Fowlkes' daughter obtained an autopsy that revealed asbestos was in fact in his lung tissue. Fowlkes' daughter contacted Randy Appleton, one of the firm partners, who accepted the case after reviewing the autopsy.

Norfolk Southern claimed Fowlkes never suffered asbestosis and must have developed pulmonary fibrosis from an unknown cause, or that his long-term cigarette smoking caused his lung disease.  Our law firm believed there was sufficient evidence to prove a causal link between Fowlkes' exposure to asbestos and the development of his lung disease.

Key Strategies

The autopsy of Fowlkes was conducted in 2017, which was approximately 27 years after his last day of employment with Norfolk Southern. The challenge for our attorneys was to build a case of proof that his death was caused by asbestosis and not other factors. To do so, we located a number of co-workers who worked at the Norfolk, Virginia Lamberts Point car repair shop with Fowlkes.

Unfortunately, the Virginia Beach medical examiner pathologist who conducted the autopsy in 2017 passed away about one week after providing our office his autopsy report. We had to make arrangements to get the slides from the autopsy in the hands of another pathologist to review the results microscopically. The second pathologist also found evidence of asbestos in the lung tissue. Then, we had an occupational medical specialist also review the case. He provided the opinion that his lung disease was caused by asbestos exposure presumably at his Norfolk Southern workplace and that the asbestosis lung condition contributed to cause Fowlkes' death. Both the pathologist and the occupational medical doctor believe that Fowlkes' asbestosis was not only caused by his railroad work exposures, but contributed to cause his death.

In these types of cases, it is helpful to also obtain a review by an industrial hygienist. This is someone considered to be an industrial safety specialist who can review all of the available information from the railroad workplace, interview co-workers and offer opinions on whether appropriate industrial safety measures were implemented during the timeframe in question when Fowlkes worked at the Norfolk Southern car repair shop.   In this case, the industrial hygienist found that the railroad failed to provide a safe place to work at the Norfolk car repair shop at Lambert’s Point.

Last, we also located friends and neighbors who could verify the slow decline of our client who experienced shortness of breath and chest pain going back for 15 years before his untimely death at age 67.

Another major issue was our client’s considerable smoking history. He had a 1-to-2 pack per day smoking history for 30 to 40 years before he quit smoking entirely in 2013. We offered medical evidence that proves that asbestosis lung disease is never caused directly by smoking.

Conflicting Evidence

The railroad argued that there was little to no risk of developing asbestosis from the railroad brake shoe dust, but our attorneys offered substantial evidence that hundreds of thousands of invisible asbestos fibers can become airborne during brake servicing when up to 100 asbestos containing brake shoes were handled in a single day by railroad car men.  Railroad brake shoes were manufactured with asbestos for about 20 years and the lifespan of asbestos brake shoes on railcars extended many years after the manufacturing was discontinued. On top of that, there was asbestos pipe insulation throughout the car shop and it was in the friable, meaning deteriorating, condition that could cause individual asbestos fibers to get into the air.

Outcome

 $5 million verdict, with 80 percent contributory fault assessed by the jury. After reviewing the evidence, the jury determined that our client’s cigarette smoking was an 80 percent contributory factor to his death. This meant the $5 million verdict was reduced to a net $1 million verdict.

 

Law Firm Attorneys

Randall E Appleton and Richard N.  Shapiro

Staff

Becky W., Paula M.,  paralegals

5,000,000