PHILADELPHIA – Norfolk Southern Railway Company says a lawsuit filed against it by a former flagman, conductor and engineer - one who accuses it of negligence under the Federal Employers Liability Act (FELA) in providing an unsafe work environment and causing the plaintiff to contract colon, prostate and throat cancer - lacks appropriate jurisdiction.
Walter J. Parker of Tignall, Ga., filed suit in the Philadelphia County Court of Common Pleas on Nov. 29 versus Norfolk Southern Railway Company, of Norfolk, Va.
Per the litigation, plaintiff Walter J. Parker worked for the defendant as a flagman, brakeman, conductor, car inspector and engineer from 1969 through 2005, working on Norfolk Southern trains mostly out of Virginia, from Alexandria to Orange and Potomac to Monroe, in addition to those from Hagerstown, Md., to Salisbury, N.C.
During that time frame, Parker claims he was exposed to “excessive amounts of diesel exhaust/fumes, herbicides/pesticides, silica and asbestos.”
Moreover, Parker argues the combined exposures were behind his later development of colon, prostate and throat cancer, which he continues to fight in the present day.
“Plaintiff decedent’s exposure to diesel exhaust/fumes, herbicides/pesticides, silica and asbestos, in whole or in part, caused or contributed to his development of colon cancer, prostate cancer and squamous cell carcinoma of the larynx,” according to the lawsuit.
Parker claims Norfolk Southern violated FELA by negligently failing to provide him a proper, safe place to work and failing to “minimize or eliminate plaintiff’s exposure to diesel exhaust/fumes, herbicides/pesticides, silica and asbestos,” in addition to other allegations – and added less than three years before the action was filed, the plaintiff says he learned his multiple forms of cancer were caused or contributed to by the negligence of the defendant.
In an answer filed March 13, Norfolk Southern countered that Parker had not established specific and general jurisdiction over it in Pennsylvania.
“Defendant alleges improper venue in the Court of Common Pleas of Philadelphia County, Pennsylvania, and respectfully request that these causes of action be transferred to an appropriate court,” the railway company’s answer stated.
It further alleges the plaintiff failed to state claims upon which relief could be granted and their complaint was barred by all applicable statutes of limitation.
In replying to the answer on April 2, plaintiff counsel rebuffed the defendant’s assertions.
“The allegations in these paragraphs are legal conclusions to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent the allegations are deemed to be factual, those allegations are specifically denied, and strict proof thereof is demanded at trial,” the reply read.
“To the extent these allegations attempt to interpret, discuss, or characterize Pennsylvania substantive or statutory law, the law speaks for itself and any interpretation, discussion or characterization of the law by defendants is specifically denied.”
For a lone count of negligence, the plaintiff is seeking damages in excess of $50,000 plus costs.
The plaintiff is represented by Luke T. Pepper and Tobi A. Russeck of Bern Cappelli, in Conshohocken.
The defendant is represented by David A. Damico, Daniel B. Donahoe and Ashley E. Horton of Burns White, in Pittsburgh.
Philadelphia County Court of Common Pleas case 181103261
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com