Jury’s verdict that CSX was liable for negligently causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial addressing damages, holds Tennessee Supreme Court.

By Daniel A. Horwitz

A massive jury verdict finding the railroad company CSX liable for causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial on the damages awarded to the employee’s widow, the Supreme Court of Tennessee has held.

Between 1962 and 2003, Winston Payne worked for CSX Transportation as a switchman, a switch foreman, and a brakeman.  Less than three years after he retired, he was diagnosed with lung cancer.  In 2007, Mr. Payne filed a lawsuit against CSX both under the Federal Employers’ Liability Act and based on a common law negligence theory, alleging that CSX had negligently exposed him to asbestos, diesel engine exhaust fumes, and radioactive materials, and further alleging that CSX had violated several statutes and regulations designed to protect the safety of railroad employees.  According to Mr. Payne, all of these failures contributed to his developing lung cancer.

In contrast, CSX contended that Mr. Payne had instead developed lung cancer due to his history of cigarette smoking.  Furthermore, CSX contended if the jury decided to award damages to Mr. Payne based upon its negligence, then any damages award should be reduced by virtue of the impact of Mr. Payne’s cigarette smoking.  Mr. Payne died from lung cancer in 2010, and his widow continued the lawsuit in his place.

During the trial, the late Mr. Payne’s legal team presented evidence that Mr. Payne had regularly been exposure to asbestos, diesel engine exhaust fumes, and radioactive materials during the forty-one years that he had been employed by CSX; that CSX had never warned him of the dangers of exposure to asbestos; that CSX had not offered him protective equipment during the term of his employment; and that CSX had failed to comply with multiple laws and regulations designed to protect railroad workers.  Mr. Payne’s legal team also introduced the deposition testimony of a CSX representative who “acknowledged the presence of asbestos on the Defendant’s train engines, brakes, and cabooses, and the possible presence of plutonium” at one of Mr. Payne’s work sites.  Multiple expert witnesses also testified that asbestos, diesel engine exhaust fumes, and radioactive materials can cause lung cancer, and that “cigarette smoke and asbestos multiply[] their impact on workers with respect to lung cancer.”  For example, according to one expert witness, there is a “special relationship between smoking and asbestos” in that the chance of getting lung cancer increases by “fifty times . . . . if you are exposed to asbestos and you smoke.”

Taken together, several doctors who testified in support of Mr. Payne concluded “to a reasonable degree of medical certainty” that  asbestos, radiation, diesel exhaust exposure, and Mr. Payne’s smoking had all contributed to Mr. Payne developing lung cancer.  CSX, for its part, presented conflicting evidence in its defense that disputed all of these conclusions.

After considering all of the evidence presented, the jury found that CSX had violated several applicable statutes and regulations by failing to provide a reasonably safe workplace with regard to asbestos, diesel fumes, and radioactive materials.  The jury also found that that these failures contributed to Mr. Payne developing lung cancer.  Consequently, the jury found CSX liable not only for standard negligence, but also found CSX liable for “negligence per se.”  Under the doctrine of “negligence per se,” “if a plaintiff proves that a statutory violation has occurred[,] he need not prove the traditional negligence elements of foreseeability, duty and breach, but he is still required to prove causation.”[1]  The jury found that CSX’s failure to comply with applicable safety regulations was a contributing cause of Mr. Payne’s lung cancer as well.

Having found CSX liable for causing the lung cancer that ultimately killed Mr. Payne, the jury initially returned a verdict against CSX assessing $8.6 million in damages.  In delivering that verdict, however, the jury also found that Mr. Payne was himself 62% at fault for his lung cancer due to his history of smoking.

In a typical common law negligence case, “contributory  negligence” by an injured plaintiff results in damages being reduced by the amount that the plaintiff was himself at fault.  Thus, a jury award of $8.6 million would traditionally be reduced to $3.268 million if the jury found that the plaintiff was 62% responsible for his own harm.  Not so in Mr. Payne’s case, however.

Under federal law applying to railroad workers, contributory negligence does not apply.  As the U.S. Supreme Court explained in Rogers v. Missouri Pac. R. Co., the Federal Employers’ Liability Act “expressly imposes liability upon the employer to pay [full] damages for injury or death due ‘in whole or in part’ to its negligence.”[2]  Thus, even though the jury found that Mr. Payne was 62% at fault himself, that fact is legally irrelevant here, because in this case, the jury not only found CSX liable for ordinary negligence, but also found CSX liable under the more protective provisions of the Federal Employers’ Liability Act.

Instead of entering the jury’s $8.6 million damages award, however, after the jury announced its verdict, the trial judge explained to the jury that its award could not be reduced based on contributory negligence due to the requirements of the Federal Employers’ Liability Act.  As a result, the jury resumed its deliberations, and it then returned an award of $3.2 million against CSX “at 100% percent.”  The trial judge then entered the jury’s $3.2 million verdict, and both parties claimed that the trial court had erred.  CSX wanted the whole case dismissed due to several alleged trial errors.  In contrast, Mr. Payne’s widow wanted the full $8.6 million damages award reinstated.  Eventually, Tennessee Supreme Court took up the case.

In an extremely thorough, 47-page opinion authored by Justice Gary Wade, the Tennessee Supreme Court systematically rejected every claim of trial error that CSX raised on appeal, and it held that the jury’s determination that CSX was liable for negligence per se would stand.  The Tennessee Supreme Court also agreed with Mr. Payne’s widow that “it was error for [the trial judge] to provide additional instructions and allow the jury to change the amount of its verdict.”

Even so, however, the Tennessee Supreme Court rejected Ms. Payne’s request to reinstate the full $8.6 million damages award.  Under a tradition that is fairly unique to Tennessee law, trial judges must independently approve or reject all jury verdicts by acting as a “thirteenth juror.”  Based on this rule, the Court explained that under applicable precedent, “[n]o verdict is valid unless approved by the trial judge acting as the thirteenth juror.”[3]  As a result, because the trial judge in this case had never approved the jury’s initial $8.6 million verdict, the Tennessee Supreme Court held that there would have to be a new trial on damages alone.

Read the Tennessee Supreme Court’s unanimous opinion in Payne v. CSX Transportation, Inc. here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Capriotti v. Consol. Rail Corp., 878 F. Supp. 429, 434 (N.D.N.Y. 1995).  See also Cook By & Through Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994) (“The standard of conduct expected of a reasonable person may be prescribed in a statute and, consequently, a violation of the statute may be deemed to be negligence per se.”); Smith v. Owen, 841 S.W.2d 828, 831 (Tenn. Ct. App. 1992) (“The doctrine of negligence per se is firmly established in our case law. In order to recover on the basis of negligence per se, three elements must be established. First, it must be shown that the defendant violated a statute or ordinance which “imposes a duty or prohibits an act for the benefit of a person or the public.” Second, the proof must show that the injured party was within the class of persons whom the legislative body intended to benefit and protect by the enactment of that particular statute or ordinance. [Third,] the plaintiff must . . . show that such negligence was the proximate cause of the injury.”) (internal citations omitted).

[2] 352 U.S. 500, 507, 77 S. Ct. 443, 449, 1 L. Ed. 2d 493 (1957) (emphasis added).

[3] Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 420 (Tenn. 2013)