Tennessee Court Revives Verdict for CSX Worker who Died of Lung Cancer Posted on March 12, 2014 by Andrew Findley CSX Transportation may have to pay up to $8.6 million in lawsuit After three years of legal wrangling, the tide of justice is finally turning back in favor of the now-deceased CSX railroad switchman in a case against the railroad. The estate of Winston Payne, a former CSX switchman who lost his life to lung cancer, obtained an $8.6 million verdict from a Knoxville, Tennessee, jury in 2010. Later, the trial judge granted CSX a new trial. However, before the second trial, a Knoxville Circuit Court judge dismissed the case entirely. The Tennessee Court of Appeals decided that the estate Mr. Payne should now receive the original jury verdict, unless the trial judge now determines that the verdict is contrary to the evidence presented. Mr. Payne worked for CSX, a rail, shipping and trucking company, for 40 years. During his career with CSX from 1962 to 2002, he was exposed to asbestos, diesel exhaust fumes, and radiation, including enriched uranium and plutonium. In 2005, he was diagnosed with lung cancer and had to endure 43 rounds of chemotherapy and 44 radiation treatments. Payne sued CSX in 2007 under the Federal Employers’ Liability Act (FELA), after being diagnosed with lung cancer in 2005. Payne died in February 2010, and his wife Anne was substituted as plaintiff before the trial in November of that year. Following a ten-day trial, the jury returned a verdict that “adequate compensation” for Payne’s injures was $8.6 million, although it said Payne’s smoking was responsible for 62% of the damage. According to court documents, Payne started smoking the same year he was hired at CSX in 1962, and smoked about a pack a day until he quit the habit in 1988. After the jury returned its verdict in favor of Payne, the judge then instructed the jury that because CSX violated FELA safety regulations, the plaintiff should recover 100% of the damages, and sent the jury back for further deliberations. The jury then returned an amended verdict of $3.2 million at 100%. Six months later, CSX was granted a new trial before a different judge, who dismissed the case and ruled that the testimony of all the plaintiff expert witnesses was inadmissible. However in late December 2013, the Tennessee Court of Appeals in Knoxville revived the case and ruled that the jury in the first trial had returned a verdict that was “complete, consistent and based on the instructions earlier provided to it by the trial court.” The appeals court sent the case back to the first judge to determine whether to grant the first amount of $8.6 million or the second verdict of $3.2 million. No decision regarding the jury award has been announced. Plaintiff attorneys are National Trial Lawyers Top 100 attorneys Richard Shapiro of Shapiro, Cooper, Lewis & Appleton in Virginia Beach, Virginia and Sidney Gilreath of Gilreath & Associates of Knoxville, Tennessee. Cary Bauer of Gilreath & Associates also worked on behalf of the plaintiff. The case is Anne Payne v. CSX Transportation, Inc. Appeal from the Circuit Court for Knox County No. 2-231-07, Harold Wimberly, Judge. The Court of Appeals ruling is No. E2012-02392-COA-R3-CV.