CSX asks asbestos complaint dismissed

Steve Gonzalez Oct. 23, 2008, 7:18am

CSX Transportation wants Madison County Circuit Judge Andy Matoesian to dismiss a wrongful death complaint filed by a Virginia family.

CSX argues count one of a complaint filed by the estate of Edgar Goodman should be dismissed because it is not brought pursuant to the Federal Employers' Liability Act (FELA).

According to CSX, count one is a common law negligence claim and as a railway employee, Goodman's claims are governed by FELA.

Goodman's widow, Barbara Goodman of Charlottesville, Va., filed a five-count suit alleging during the course of his employment, Edgar was exposed to and inhaled, ingested or otherwise absorbed large amounts of asbestos fibers emanating from products he was working with and around.

Edgar was employed from 1947 to 1951 as a signalman for CSX.

Passed by Congress in 1908, FELA was designed to protect and compensate railroaders who sustain injuries while working.

Unlike state workers' compensation laws, FELA requires the injured worker to prove that the railroad was "legally negligent," at least in part, in causing an injury.

Edgar's estate alleges his exposure and inhalation, ingestion or absorption of the asbestos fibers was completely foreseeable and could or should have been anticipated by CSX.

Goodman was diagnosed with mesothelioma July 1, 2005.

CSX also argues that count two of the complaint, which is brought pursuant to FELA, should be dismissed because it fails to identify with sufficient specificity the products to which Edgar was allegedly exposed, the dates of the alleged exposure and the locations of the alleged exposure.

In addition, CSX argues count two fails to allege that any exposure to asbestos at their premises was a substantial factor in the proximate cause of Edgar's injuries.

CSX further argues counts three and four, which are brought pursuant to Locomotive Boiler Inspection Act and Safety Appliance Act, should be dismissed for the same reasons count two should be dismissed.

According to the complaint, Edgar worked with and around pipe and block insulation, sheet rock, joint compounds, gaskets, packing, cements and brake shoes, all of which contained asbestos.

His estate alleges CSX violated provisions of FELA by negligently failing to provide him a safe place to work, failing to furnish suitable tools and equipment including adequate protective masks, failed to warn of the true nature and hazardous effects of asbestos and failing to provide instructions for the safe use of asbestos.

In addition, Edgar's estate alleges CSX failed to test asbestos containing products prior to requiring employees to work with them, failed to provide safe and proper ventilation systems in the repair facilities, failed to exercise reasonable care in enforcing a safety plan and method of handling and installing asbestos and required employees to work with an ultra hazardous product.

Lastly, CSX argues count five of the complaint which alleges a loss of consortium claim on behalf of Barbara Goodman should be dismissed because loss of consortium claims are not available under FELA.

Under FELA, injured workers can seek compensation for past and future wage losses, medical expenses and treatments, pain and suffering, and for partial or permanent disability.

If an employee dies, survivors are entitled to recover damages which they have suffered because of the death, under the federal law.

After proving negligence, the injured worker is entitled to full compensation, which is usually many times greater than that provided by state workers' compensation benefits for non-railroaders which provide benefits on a no-fault basis.

Elizabeth Heller and Robert Rowland of Edwardsville represent Goodman's estate.

Kurt Reitz and Erick VanDorn of Thompson Coburn in Belleville represent CSX.

Matoesian has not set a hearing date for the motion.

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