Must-Knows About Railroad Mesothelioma Claims | Shapiro, Washburn & Sharp

Filing a lawsuit against a railroad company seems like a tough proposition at any time. Unease and trepidation only intensify for railroad workers, often retirees, who must take on mega corporations such as Amtrak, CSX or Norfolk Southern while battling a deadly occupational illness.

This is the situation for thousands of mesothelioma victims who were negligently exposed to airborne asbestos fibers on the job. Yes, the Federal Employers Liability Act (FELA) gives these individuals and their family members the right to hold railroads accountable, but the prospects of pursuing an injury or wrongful death claim remains daunting.

Having spent nearly four decades representing engineers, conductors, repairers, machinists, trackmen and other rail employees in FELA cases, I cannot sugarcoat the reality. The cases are often difficult. Lawyers who defend the rail corporations do all they can to transfer blame from the railroad to the dead or dying plaintiff. They also work hard to belittle and intimidate plaintiffs.

I have also learned that knowing what to expect when pursuing a FELA lawsuit helps my plaintiffs alternately ignore and respond productively to the legal, but unempathetic, tactics employed by railroad defense lawyers. With that in mind, here are three things every work-related mesothelioma victim should understand when they file their FELA claim.



Railroads Blame the Victim

Defense lawyers will point to almost anything—smoking, genetics, the plaintiff’s home and neighborhood—other than on-the-job exposures to asbestos as a cause for the plaintiff’s mesothelioma. It will not matter to the defense lawyer that cigarette smoking has never been shown to cause mesothelioma or that a plaintiff spent decades working on trains or in shops where asbestos fibers were as common as oxygen.

Defense lawyers will even argue that since a plaintiff never saw asbestos fibers while operating a diesel locomotive or replacing a brake shoe, the rail employee never encountered the toxic substance at work. Of course, asbestos fibers are microscopic. That does not matter to the lawyer representing the railroad company.

In one of our cases, the lawyer defending the railroad even went so far as to question whether our client even had cancer. In short, the defense lawyer accused the man of volunteering to undergo painful and debilitating chemotherapy treatments that he did not need just to manufacture evidence.

An Employee’s Exemplary Performance Will Count for Nothing

As soon as a person files an occupational illness or wrongful death claim under FELA, the plaintiff’s history as a longtime valued employee will count for nothing. Any minor note in the plaintiff’s employee record will be portrayed as a major scandal for which the person should have been fired, if not actually prosecuted. “And,” the defense lawyer will ask in so many words, “if the plaintiff could not be trusted to do that thing safely, isn’t it possible that they violated safety rules and harmed themselves?”

Time Is on the Railroads’ Side

Defense lawyers use every trick to delay and drag out FELA cases. The first goal is to exhaust the resources of plaintiff’s attorneys, who typically do not take fees until a settlement or jury award is secured. Second, railroads cynically and cruelly calculate that a sick or disabled worker will either accept a lowball settlement just to end the proceedings and receive something or die before a resolution is reached.

Do not let any of these facts discourage you from fighting a railroad for the compensation it owes you for sacrificing your long-term health for its short-term profits. Just know that a FELA lawsuit amounts to a pitched battle. The railroad and its legal team will do all the law allows to avoid paying a settlement or judgment. Enlisting an experienced and caring FELA plaintiff’s attorney will give you the ally you require.