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PHILADELPHIA – A lawsuit alleging the railroad companies that a deceased switchman worked for violated the Federal Employers Liability Act and Locomotive Inspection Act by failing to protect the decedent from exposure to toxic substances, has been discontinued by its plaintiffs.
On Nov. 20, counsel for the plaintiffs filed a praecipe to discontinue the litigation without prejudice as agreed upon by all parties concerned, for possible re-filing in Ohio or another venue.
“Plaintiff, Casey Ann Carter, Administrator of the Estate of Ronald L. Mussetter, and defendants, Consolidated Rail Corporation, American Premier Underwriters, Inc. formerly known as Penn Central Corporation and CSX Transportation, Inc., hereby stipulate and agree that this action is dismissed, without prejudice, costs, or attorney fees, to be re-filed in Ohio, or other appropriate jurisdiction, if any,” the praecipe read.
“If this action is re-filed within 90 days of the date this stipulation of dismissal is filed, then the filing date to be used for statute of limitations purposes in the refiled action shall be June 12, 2018.”
Carter, of Sabina, Ohio, first filed suit in the Philadelphia County Court of Common Pleas on June 12, 2018 versus Consolidated Rail Corporation of Philadelphia, CSX Transportation, Inc. of Jacksonville, Fla. and American Premier Underwriters, Inc. of Harrisburg.
Per the litigation, Mussetter worked for the defendants in the locomotive switchman role from 1969 to 1999. During that time frame, Carter claims Mussetter was exposed to “diesel exhaust, asbestos, polycyclic aromatic hydrocarbons and second-hand cigarette and cigar smoke” in the course of his duties, and was not provided respiratory protection, nor warned of the dangers of his exposure to those dangerous substances.
“As a result of this exposure to diesel exhaust, asbestos, polycyclic aromatic hydrocarbons and second-hand cigarette and cigar smoke, decedent was diagnosed with metastatic small cell lung cancer, which metastasized to his brain, which caused his death on March 24, 2016,” the lawsuit read.
Carter claimed the defendants violated the federal laws in question by negligently failing to provide Mussetter 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,” in addition to other charges.
Defendant American Premier Underwriters filed an answer to the lawsuit on Sept. 12, 2018.
The company’s counsel categorically denied the allegations and counter-claimed that the lawsuit is barred by the applicable statute of limitations, that a Philadelphia court is an inappropriate venue and the decedent’s failure to mitigate his own damages, combined with other claims.
Matthew Decker, counsel for Penn Central, Conrail and CSX Transportation initially filed a motion to dismiss on April 26, 2019 for reasons of improper venue, believing that a Philadelphia County court was not the right forum in which litigate claims made against a Harrisburg-based company (American Premier Underwriters, Inc.) and one from Jacksonville, Fla. (CSX Transportation, Inc.)
Prior to discontinuance and for violations of both the Federal Employers Liability Act and Locomotive Inspection Act, the plaintiff is seeking damages in excess of $50,000.
The plaintiff was represented by Luke T. Pepper of Bern Cappelli in Conshohocken and Matthew Richards of McEldrew Young Purtell, in Philadelphia.
The defendants were represented by Matthew Decker, Sharon L. Caffrey and Jeffrey S. Pollack of Duane Morris in Philadelphia, plus Daniel L. Jones and Nicholas W. Timeless of Blank Rome, in Cincinnati.
Philadelphia County Court of Common Pleas case 180601119
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com