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FELA Lung Cancer Case Stays in Norfolk

In a retired railroad engineer’s FELA suit alleging he developed lung cancer from asbestos and/or diesel exhaust exposure, a Norfolk Circuit Court rejects defendant railroads’ request to dismiss the case because Ohio or Pennsylvania courts would be a more convenient forum, and retains the case in Norfolk, the forum preferred by plaintiff, a Florida resident.

Plaintiff Gale Littleton is a retired railroad engineer who was employed by defendants from 1969 to 2011, first by Penn Central, then Consolidated Rail, with retirement from Norfolk Southern in 2011. Norfolk Southern is also American Premier Underwriters’ and Consolidated Rail’s successor in interest.

In February 2013, Littleton, a non-smoker, was diagnosed with lung cancer. He contends the cancer was caused in whole or in part by prolonged exposure to toxic and pathogenic particulate matter, dusts, and/or gases, associated with either asbestos and/or diesel exhaust fumes, all encountered while he was working as a fireman and engineer for the railroads. He contends defendant railroads failed to comply with the Federal Employers’ Liability Act and the Locomotive Inspection Act and the regulations thereunder. Plaintiff alleges the railroads provided defective and unsafe locomotive crew cabs which contained and included dangerous and toxic asbestos containing materials and equipment and airborne asbestos fibers or diesel exhaust fumes emanating from engine exhaust stacks.

Defendants contend Norfolk is an inconvenient forum; that the state and federal courts in and around Ohio or Pennsylvania are more convenient to the parties and witnesses; and the case should be dismissed in favor of the more convenient forum. Plaintiff argues that asbestos claims arising under FELA are not subject to dismissal under Va. Code § 8.01-265 and the railroads have not met their burden because Florida, where plaintiff and his diagnosing physician reside, is an even more convenient forum than Ohio or Pennsylvania.

While the railroads have shown that some witnesses will be substantially inconvenienced by trial in Norfolk, good cause has not been shown to justify dismissing the action. Dismissal may eliminate an inconvenience for witnesses from Ohio and Pennsylvania but will create a similar inconvenience for witnesses in Norfolk. In turn, plaintiff argues that because a number of witnesses reside in Norfolk and Florida, the railroads have not shown good cause to dismiss the action in favor of Ohio or Pennsylvania.

Even though it appears from the motions filed that a greater number of witnesses may reside in Ohio and Pennsylvania, the court agrees with the principle that application of forum non conveniens is not simple math where the court totals the number of witnesses on each side and goes with the majority. Instead, the court must balance various factors. One such factor is the presumption that plaintiff’s choice of forum is correct. In this case, potential witnesses reside in the current forum and therefore the fact that witnesses reside elsewhere, even a majority of witnesses, is insufficient to rebut the presumption in favor of plaintiff’s choice of forum.

While the Virginia Supreme Court has held that good cause is not limited to substantial inconvenience to the parties and the witnesses, the court has also held that the degree of nexus, or lack thereof, between an action and the forum does not alone provide good cause.

Since the court holds that the level of inconvenience to the witnesses alone does not constitute good cause to dismiss the case, the railroads are left only to argue the degree of nexus between the action and Norfolk. Even if such argument were valid, plaintiff is entitled to the presumption that his choice of forum is correct and both Norfolk Southern’s principal place of business and some potential witnesses for the parties reside in Norfolk. Plaintiff also asserts the files necessary to the litigation, such as his personnel and medical files, are located in Norfolk. While files can be easily transported, the totality of the circumstances demonstrates a greater nexus to the action in plaintiff’s chosen forum than was present in Norfolk & W. Ry. Co. v. Williams, 239 Va. 390 (1990).

Good cause to dismiss the action pursuant to Code § 8.01-265(i) has not been shown because dismissal will only transfer the inconvenience from witnesses in Ohio and Pennsylvania to witnesses in Norfolk. The court will retain the case in Norfolk.

Littleton v. Norfolk Southern Ry. Co. (Poston) No. CL 13-5447, Dec. 12, 2013; Norfolk Cir.Ct.; Richard N. Shapiro for plaintiff; Samuel J. Webster for defendants. VLW 013-8-239, 6 pp.

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