Venue fight over widow's case surrounding her poisoned train repairman husband to be decided in May

By Nicholas Malfitano | Apr 11, 2019


PHILADELPHIA – The case of a widow of a locomotive repairman for Conrail and CSX Transportation who claims those companies did not abide by both the Federal Employers Liability Act (FELA) and Locomotive Inspection Act (LIA) by not protecting her deceased husband from harmful substances will see its chosen venue determined in May.

Per a March 25 order from Philadelphia County Court of Common Pleas Judge John M. Younge, a rule to show cause shall be issued upon the moving defendant to show cause why a motion to dismiss should be granted. The meeting for such a ruling was scheduled before Younge on Wednesday, May 22.

“This court will accept affidavits or deposition evidence and upon application, for cause shown, live testimony, relevant to the question of venue or jurisdiction. No later than five days prior to the date of this rule returnable, the parties shall file on the docket any affidavits, deposition testimony, or other evidence that they wish to present at said rule returnable,” Younge stated.

Diane F. Moro (acting as Administrator of the Estate of Thomas F. Moro) of Pennellville, N.Y., first filed suit in the Philadelphia County Court of Common Pleas on June 5 versus Consolidated Rail Corporation of Philadelphia, CSX Transportation, Inc. of Jacksonville, Fla. and American Premier Underwriters, Inc. (formerly known as “Penn Central Corporation” and c/o C.T. Corporation System) of Harrisburg.

According to the lawsuit, Thomas worked for the defendants in the locomotive repairman role from 1971 to 2011. During that time frame, Diane claims he was exposed to “diesel exhaust, asbestos, polycyclic aromatic hydrocarbons and second-hand cigarette and cigar smoke” in the course of his duties, and not provided respiratory protection, nor warned of the dangers of his exposure to those dangerous items.

“As a result of this exposure to diesel exhaust, asbestos, polycyclic aromatic hydrocarbons and second-hand cigarette and cigar smoke, decedent was diagnosed with carcinoma of the upper lobe of his right lung in December 2015, which metastasized to his brain, causing his death on Sept. 30, 2017,” the lawsuit said.

Diane alleges the defendants violated the federal laws in question by negligently failing to provide Kevin with reasonably safe and sufficient personal safety apparel and equipment and failing to minimize or eliminate the plaintiff’s decedent’s exposure to “diesel exhaust, asbestos, polycyclic aromatic hydrocarbons and second-hand cigarette and cigar smoke,” plus other charges.

All three defendants filed individual responses to the lawsuit on Aug. 21.

Counsel for Conrail and CSX Transportation argued the suit failed to state a case upon which relief can be granted, failed to state proper causes of action, was subject to forum non conveniens and that Kevin’s passing was instead related to pre-existing medical conditions, in addition to separate counter-arguments.

Attorneys for American Premier Underwriters made further counter-arguments on forum non conveniens, alleged failure to state proper causes of action and limited courses of remedy provided through statute, in addition to other claims.

For violations of both the FELA and LIA, the plaintiff is seeking damages in excess of $50,000.

The plaintiff is represented by Luke T. Pepper and Tobi A. Russeck of Bern Cappelli, in Conshohocken.

The defendants are represented by Matthew Decker, Sharon L. Caffrey and Jeffrey S. Pollack of Duane Morris in Philadelphia, plus Daniel L. Jones of Blank Rome in Cincinnati.

Philadelphia County Court of Common Pleas case 180600208

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

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