In November 2010, after a two-week jury trial, I was able to obtain an $8.6 million jury verdict in favor of the estate of a railroad conductor and switchman who had worked for CSX Transportation for more than years. He was diagnosed with lung cancer and battled the disease for 4.5 years before dying a few months before the trial began.
Since my client quit smoking cigarettes 17 years before he was diagnosed with lung cancer, he believed that his cancer was caused by carcinogens in the railroad workplace, including asbestos, radioactive materials and diesel exhaust fume exposure. All three of these are known carcinogens that are associated with, or known to cause, lung cancers and other forms of cancer.
After years of preparation, the two-week trial, and a full day of deliberations, the jury returned the verdict of $8.6 million, which is exactly what I had asked them to award the estate of the railroad worker. The jury rejected the argument by the railroad that cigarette smoking was the sole cause of my client's lung cancer.
Besides finding that the railroad was negligent, the jury concluded on the verdict form that CSX had also violated three statutes or regulations, and the jury found my client had contributed 62 percent to his ultimate injuries due to his cigarette smoking. Under a railroad worker protection law called the Federal Employers' Liability Act, or FELA, there is a special provision that says contributory fault of the worker will not be taken into account if a railroad violates a safety statute or regulation which violation contributed to the injury or death. That is precisely the situation that existed in our case, and the jury determined that the railroad violated statutes and regulations. Nonetheless, in plain violation of the FELA federal statute, the judge still entered a verdict for 62 percent less than $8.6 million, which was $3.2 million. Yes, we are now contending that the trial judge failed to follow the U.S. statute governing the case.
Handling an appeal of a multimillion verdict is a painstaking and time-consuming task. Here is a partial outline of different things that go into just getting ready for this endeavor:
- Reading the court transcript for all pertinent portions that may apply to the appeal;
- Reviewing the trial court's docket showing all pleadings filed which in this case stretched over several years, to select the parts that will be relevant to the appeal;
- I am engaging a law student as a law clerk to work at our law firm over the summer and assist in reviewing documents, transcripts and court precedents that may be relevant to our appeal;
- I am carefully reading the Tennessee Court of Appeals rules, which govern this appeal and set forth exactly what must be in the record on appeal, along with any opinions filed with the brief and which specific parts of the brief much be included, such as a table of contents, table of authorities and a detailed description of exactly what error is asserted to have occurred.
This preparation and filing of the brief for our client and his estate will probably last many months and will involve legal research, and innumerable revisions and edits to the proposed brief in support of the argument that the court should have entered the $8.6 million verdict as Congress dictated in the FELA, which is part of the U.S. Code.
So what happens to the jury verdict? When a jury enters a verdict there is something called the "judgment rate of interest." In Tennessee, the judgment rate of interest is 10 percent and that rate of interest runs from the day a jury returns a verdict. If the TN appeal court finds that our argument is valid and that the judge should have entered $8.6million instead of the $3.2 million wrongful death verdict it entered, then the interest will accrue at a rate of $860,000 per year because of how large the jury verdict was in favor of our client's estate.
While our preference is to have this appeal resolved quickly so our client's family can get the much-needed compensation they deserve from this wrongful death case, the railroad has been foot dragging every step of the way, and the matter is still pending at the Trial court on the railroad's motion for a new trial.
Our Virginia-based injury lawyers are grateful for the trust that our railroad client's family has placed in us, and we feel privileged to handle this appeal on our late client's behalf and on behalf of his family and widow.