Amtrak wants FELA complaint of deceased electrical technician's spouse dismissed

By Nicholas Malfitano | Nov 5, 2018


A Union Pacific train.  

PHILADELPHIA – The widow of a former electrician and technician for Amtrak argues his death from colon and lung cancers was the result of his fulfilling his work duties for Amtrak in an unsafe environment, while the rail entity believes the complaint fails to state a claim and is ripe for dismissal.

Sarah Jane Lowe of Hollywood, Md. filed suit in the Philadelphia County Court of Common Pleas on Aug. 3 versus National Railroad Passenger Corporation (Amtrak) of Philadelphia.

According to the lawsuit, decedent James Lowe worked for the defendant as an electrician and rider technician from April 2006 to October 2015, based out of Amtrak’s Ivy City yard, located in Washington, D.C. He would often troubleshoot Amtrak’s locomotive engines along the Northeast Corridor, including in Philadelphia.

During that time frame, Sarah Jane alleges he was exposed to “excessive amounts of diesel exhaust/fumes, solvents, creosote and asbestos.”

Moreover, Sarah Jane avers the cumulative exposures were behind the decedent’s later development of colon and lung cancers, which claimed his life in July 2017.

“Plaintiff decedent’s exposure to diesel exhaust/fumes, solvents, creosote and asbestos, in whole or in part, caused or contributed to his development of colon cancer and lung cancer,” according to the litigation.

Sarah Jane claims Amtrak violated FELA by negligently failing to provide the decedent a proper, safe place to work and failing to “minimize or eliminate plaintiff’s exposure to diesel exhaust, solvents, creosote and asbestos,” among several other allegations.

In an answer to the complaint filed on Oct. 9, Amtrak denied the allegations in their entirety, only to admit that the decedent once worked for them.

In new matter, Amtrak argued the complaint was barred due to it supposedly failing to state a claim upon which relief could be granted, the decedent failing to mitigate his damages, and by a number of provisions, including the doctrines of comparative/contributory negligence, issue preclusion, res judicata and judicial estoppel.

Amtrak also objected to the location and venue choice for the lawsuit.

“Plaintiff’s decedent did not reside in Philadelphia, Pennsylvania at the time of the incidents and/or occurrences alleged in the complaint. Plaintiff’s decedent was not employed by Amtrak in Philadelphia, Pennsylvania. The incidents and/or occurrences alleged in the complaint giving rise to this action occurred during plaintiff’s decedent’s employment based in Washington, D.C. Philadelphia County is an inconvenient forum for the witnesses in this case,” Amtrak’s answer read, in part.

For a lone count of negligence, the plaintiff is seeking damages in excess of $50,000 plus costs and an eight-person jury trial. However, Amtrak filed notice that it is seeking a jury of 12 members, plus two alternates.

The plaintiff is represented by Thomas J. Joyce III and Tobi A. Russeck of Bern Cappelli, in Conshohocken.

The defendant is represented by Andrew J. Kornblau and Alexis Grose of Landman Corsi Ballaine & Ford, also in Philadelphia.

Philadelphia County Court of Common Pleas case 180703696

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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Amtrak Philadelphia County Court of Common Pleas

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