Pennsylvania Record

Monday, September 23, 2019

Litigation from estate of ex-employee against Norfolk Southern Railway company likely to be refiled in Georgia court

State Court

By Nicholas Malfitano | Sep 10, 2019


Norfolk Southern Railway Company

PHILADELPHIA – A Federal Employers Liability Act-based lawsuit brought against Norfolk Southern Railway Company for alleged workplace negligence leading one of its former employees to contract lung cancer, is likely to be refiled in a Georgia court, per a recent voluntary dismissal.

On Aug. 21, counsel for plaintiff Reginald Walker filed a praecipe to dismiss the litigation from a Philadelphia court without prejudice, under terms that suggest it will be raised once again in a Georgia jurisdiction.

“Plaintiff, Reginald Walker, Personal Representative for the Estate of Harry Walker, Jr., and defendant, Norfolk Southern Railway Company, by and through their attorneys, hereby stipulate and agree to dismiss plaintiff’s FELA wrongful death and survival action, without prejudice, without costs and without attorney fees, to be refiled in the appropriate state or federal court where Harry Walker, Jr. worked in Georgia within 90 days of the date of this stipulation,” the dismissal motion read.

“If plaintiffs’ complaint is refiled within 90 days in the appropriate state or federal court where Harry Walker, Jr. worked in Georgia, then the filing date to be used for statute of limitations purposes in Georgia will be Sept 11, 2018, which is the date plaintiff’s complaint was originally filed in Philadelphia in the above-captioned FELA wrongful death and survival action.”

Reginald Walker (representing the Estate of Harry Walker Jr.) of Macon, Ga. first filed suit in the Philadelphia County Court of Common Pleas on Sept. 11, 2018, 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 claimed Harry was exposed to “excessive amounts of diesel exhaust/fumes, creosote and asbestos.”

Moreover, Reginald argued 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 claimed 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, 2018, 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 one week later on Nov. 12, 2018, 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.

This past Aug. 21, plaintiff counsel filed the dismissal without prejudice.

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, Tobi A. Russeck, Luke T. Pepper and Matthew Richards 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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