VA-Based FELA Plaintiff’s Attorney: Work-Related Cancers Developed by Railroad Employees, Part 6 | Shapiro, Washburn & Sharp

Note: This information on how personal injury attorneys handle cancer cases involving rail employees is adapted from railroad injury/FELA attorney Rick Shapiro’s July 2011 invited lecture to the American Association for Justice Railroad Law Section. Here, he shares his expertise on how juries hearing an occupational disease case brought by a former employee against a railroad are allowed to rule on the cause of the rail worker’s illness. Neither doctors nor health experts must explicitly state that a disease such as mesothelioma was directly caused by on-the-job exposure to asbestos for the plaintiff to succeed in his or her claim under the Federal Employers’ Liability Act. Rick has represented FELA plaintiffs for nearly 25 years and, in 1999, coauthored the American Jurisprudence Trials volume titled Railroad Health and Safety: A Litigator’s Guide.

When defending themselves in lawsuits brought by former employees who developed cancer after years or decades of being exposed to asbestos, diesel fumes or radiation, railroads such as Amtrak, CSX and Norfolk Southern often try to convince jury members that plaintiffs making occupational disease claims cannot provide evidence that the toxic substances they encountered at work made them sick.

Such evidence can include scientific studies linking, say, mesothelioma to working with asbestos or respiratory failure to having to breathe in large concentrations of diesel fumes. Plaintiffs in cases brought under the provisions of the provisions of the Federal Employers’ Liability Act, or FELA, can also present testimony from doctors, industrial hygienists and any number of health professionals in order to educate jurors about how on-the-job exposures to toxic substances can cause irreversible harm that may not become fully apparent for many years.

FELA occupational disease lawsuit plaintiffs do not, however, need to send an expert to the witness stand to say specifically that it is “reasonably probable” that the disease was caused by one or a series of exposures. Nor do experts have to declare “with reasonable medical certainty” that the cancer or illness had a definite cause. All the plaintiff and his or her personal injury attorney must do is present enough evidence that jurors can decide for themselves that past on-the-job exposures and current health problems are related. Juries can also be relied upon to make the final decision regarding the extent of the injuries to the plaintiff’s health, whether the disease was caused in whole by workplace conditions or was an aggravation of a preexisting condition, and the amount of money needed to pay for future medical treatments for the occupational disease.


Read the other articles in this series:

The most important U.S. Supreme Court decision in clarifying that rail employees and workers from other industries can rely on a jury to rule on the cause of an occupational disease is Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959). In ruling for the plaintiff, the justices wrote:

The jury’s power to draw the inference that the aggravation of petitioner’s tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs. The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation. They were entitled to take all the circumstances, including the medical testimony, into consideration.”

The case involved a merchant seaman who, while on duty during heavy seas, had been thrown to the deck of his ship and carried a considerable distance by the wash of the wave. Shortly thereafter, he developed a severe case of tuberculosis. The man filed a claim under the Jones Act, and the Sentilles decision is relevant in FELA lawsuits because the Jones Act is in pari materia — Latin for “upon the same subject matter” and meaning in practice “to be considered the same” — with FELA.