Norfolk Southern Railway denied stay motion in Ga. man's FELA lawsuit

By Nicholas Malfitano | Mar 13, 2019

Norfolk Southern Railway Company  

PHILADELPHIA – Litigation over whether Norfolk Southern Railway Company’s alleged negligence caused one of its former employees to contract lung cancer was recently rejected for a stay motion filed by the railway company.

On Dec. 11, counsel for Norfolk Southern had filed to stay Reginald Walker’s action, pending the resolution of the Superior Court of Pennsylvania sitting en banc in Murray v. LaFrance, LLC. Walker opposed the motion and on Jan. 22, Philadelphia County Court Common Pleas Judge John M. Younge ordered the stay motion was denied.

Reginald Walker (representing the Estate of Harry Walker Jr.) of Macon, Ga. initially filed suit in the Philadelphia County Court of Common Pleas on Sept. 11 versus Norfolk Southern Railway Company, of Norfolk, Va.

According to the lawsuit, decedent Harry Walker Jr. worked for the defendant as a switchman, brakeman and conductor from 1966 through 2002, working on Norfolk Southern’s locomotive engines. During that time frame, Reginald claims Harry was exposed to “excessive amounts of diesel exhaust/fumes, creosote and asbestos.”

Moreover, Reginald argues the combined exposures were behind the decedent’s later development of lung cancer, which Harry succumbed to in September 2015.

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

Reginald claims Norfolk Southern 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, creosote and asbestos,” in addition to other allegations – and added less than three years before the action was filed, Reginald learned that Harry’s lung cancer was caused or contributed to by the negligence of the defendant.

In preliminary objections filed Nov. 5, Norfolk Southern countered that Walker had not established specific and general jurisdiction over it in Pennsylvania.

“Norfolk Southern should not be subject to personal jurisdiction here simply because it followed the law and complied with Pennsylvania’s business registration statutes. If the consent argument is allowed to be a means of establishing jurisdiction, any company that does any business in Pennsylvania (and follows the rules by registering its business) automatically becomes subject to general personal jurisdiction in Pennsylvania,” the railway company’s objections stated.

In answering the preliminary objections on Nov. 12, plaintiff counsel argued the defendant does in fact do substantial business in Philadelphia and denied that there was no legal or factual basis for the plaintiff to assert specific and general jurisdiction over Norfolk Southern.

“Consent by registration, under the laws of Pennsylvania, is a valid form of establishing general personal jurisdiction. By voluntarily registering as a foreign corporation in Pennsylvania, Norfolk Southern has consented to general personal jurisdiction within the Commonwealth,” the answer read.

For a lone count of negligence, the plaintiff is seeking damages in excess of $50,000 plus costs.

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

The defendant is represented by David A. Damico, Jeffrey A. Jackson and Nicole E. Bazzy of Burns White, in Pittsburgh.

Philadelphia County Court of Common Pleas case 180900948

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

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