A Tennessee appeals court has reinstated an $8.6 million jury verdict favoring a longtime switch operator for CSX Transportation Inc. who was found to have developed fatal lung cancer from on-the-job exposure to asbestos, diesel fumes and radioactive materials. The Court of Appeals of Tennessee reinstated the verdict, ruling that CSX had negligently caused Winston Payne’s injuries and had violated the Locomotive Inspection Act or related safety regulations. The case was sent back by the appeals court to the trial judge to review the evidence “as thirteenth juror” to determine if the $8.6 million figure was reasonable.
The jury had found $8.6 million to be adequate compensation to the decedent’s estate. But the jurors also found that the worker’s own contributory negligence had caused 62 percent of his harm. The trial court then informed the jury that under the Federal Employers Liability Act (FELA), the finding of a statutory violation against CSX meant the Plaintiff would be entitled to 100 percent of the damages determination. This resulted in the jury amending its verdict to a reduced total of $3.2 million.
Six months later, however, that verdict was vacated and a retrial ordered based on the purportedly improper jury instructions. The appeals court subsequently ruled that the trial judge had erred in instructing the jury on a purely legal issue regarding the apportionment under a FELA violation. But the appeals court said the trial judge had also erred in granting a new trial. That was because the judge had not made any prejudicial evidentiary rulings and the judge’s jury instructions were clear, correct and complete.
Payne spent four decades as a trainman and a switchman for CSX. After he retired, he was diagnosed with lung cancer. Payne sued CSX in 2007, claiming the company had been lax in its worker safety protections and negligent in exposing him to asbestos, diesel fumes and radioactive materials. CSX had argued that Payne’s injuries were more likely due to the fact that he was a pack-a-day smoker for 26 years. Payne’s estate is represented by Shapiro Lewis Appleton & Favaloro, a firm located in Virginia Beach, Va.
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