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WV Supreme Court Rules in Favor of CSX in Asbestos Case

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  • WV Supreme Court Rules in Favor of CSX in Asbestos Case

    West Virginia Supreme Court Rules in Favor of CSX in Asbestos Exposure Case
    Oct 26, 2011 12:18 PM EST
    By Andrea Lannom


    West Virginia Supreme Court justices decided in an October opinion that a former CSX Transportation employee cannot bring forth claims of disease from asbestos exposure because of an earlier settlement reached between parties.

    Jimmie Gillon initially brought claims against CSX under the Federal Employers' Liability Act in Virginia for injuries resulting from occupational asbestos exposure.

    Parties settled the case in 1995 for $12,000, and CSX maintained that Gillon signed away his right to bring future claims because the agreement specifically outlined cancer arising from exposure to "all toxic particulate matter," the opinion states.

    However, Gillon was diagnosed with lung cancer eight years after signing the release and brought another suit against CSX in Harrison County Circuit Court.

    Gillon argued that he did not know there was a possibility of developing the disease and also did not know that asbestos exposure could cause it, the opinion states.

    The case was later transferred to Kanawha County Circuit Court as part of a mass litigation lawsuit.

    However, CSX's motion for summary judgment was granted in October 2010, finding that Gillon had indeed given up the right to bring forth cancer claims because of the 1995 agreement.

    Gillon appealed the ruling to the state Supreme Court saying the judge should not have granted the motion for summary judgment because the agreement did not free CSX from liability.

    He argued that the release did not bar his claims for several reasons. Gillon's first reason stated discovery had not been conducted to determine his intent when he signed the release and that he hadn't been questioned about whether the risks were explained to him at the time.

    Gillon also argued that the $12,000 settlement did not prohibit claims of future death-causing illnesses.

    "Petitioner argues that while the term ‘cancer' is in the release, the term ‘lung cancer' is not, which should have been fatal to CSX's motion for summary judgment," the opinion states.

    However, CSX argued that the release was unambiguous, and Gillon should have known that he could not bring additional future claims.

    "CSX contends that it is a matter of common sense that the word ‘cancer' means cancer and all its forms," the opinion states.

    Justices unanimously agreed with CSX saying, "it is clear from the unambiguous terms of the release, which petitioner signed with the advice of legal counsel in an earlier claim, that petitioner was aware that he was releasing… any future claim that he might have associated with the development of cancer."
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  • #2
    Gillon

    Gillon v. CSX, Cause No. 11-0498 (October 11, 2011 Supreme Court W.Va.).docDear All - First of all, I apologize for not being here as much as I should. I'll not get into the multitude of reasons why, I just say I am sorry. I also do not make any promises I will be better as I cannot do so at this time. I will say that I do monitor everything posted here and will respond to something of sgnificance. Which leads me to:

    Second: THANK YOU NSRLink for being the resident FELA Lawyer!!

    Third: This opinion's importance should not be understated. The holding is a correct one but it is a harsh one.
    When you go into these "large" paper milll firms that handle what is called "mass tort" you have to remember that the Plaintiff's lawyer makes their money on numbers. Numbers of people and the fees associated to those numbers. Gillon only settled his "asbestos" claim for $12K. I am not sure what the fee was but if it was the DLC rate of 25% or the max non-DLC rate of 40% the most it was $4K. Do you think that keeps on the lights? Hell no. But if you get some railroad guy to "sign here" and you run some quick tests that all come out negative and you get him/her some quick cash, then all is good right? Wrong.
    The issue in this case is: Did Gillon release his later diagnosis of lung cancer because he settled earlier for chump change when part of a large group of alleged asbestos claimants. Unfortunately for Gillon, the answer is yes. I do not do mass tort cases as a rule but from what I have seen they are fraught with potential potholes for the claimant and for the practitioner. I have heard that there are some lawyers that literally send out trucks that do tests on the scene for asbestos. If you do not have it, I have heard that you are actually encouraged to still make a claim because you have been "exposed' and you "might" contract it "someday". Once you do this, the lawyer needs to move your claim forward and it ultimately must be resolved by dismissal, being tried or settling. If you settle, the wording of the release will be a "blanket" type wording and, rest assured, will protect the railroad. If your practitioner objects, the company will just say "screw it" and not offer the money. If this happens, then you are down to dismissal or to try it. How do you try a claim that does not exist? You don't. Now here is the sticky wicket: Does the lawyer say "You really don't have asbestos and if you take this money and you get it, you will be barred from making a real claim?" I will let you answer that question. More than likely, the lawyer will say :Go ahead and take the money and they, of course, will take their share whatever it is.

    Moral of the Story:
    If you are part of one of these mass claims, you should think long and hard about taking any money especially "little money".

    Steve
    Last edited by FELA FELLA; 10-28-2011, 09:12 PM.
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
    FELA Lawyer Blog
    Serving Injured Railroad Employees Nationwide
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    800-773-6770

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