92 Va. Cir. 379
Roanoke County Cir. Ct.2016Background
- Plaintiff (Executor of Aaron Cole’s Estate) sued Norfolk Southern for Aaron Cole’s 2010 death from lung cancer, alleging employer negligence under FELA.
- Decedent earlier sued Norfolk & Western (predecessor) in the 1990s for injuries including "fear of" and "increased risk of" mesothelioma, lung cancer, and other cancers; that suit settled in May 2000 with a signed release.
- The May 2000 release expressly discharged Norfolk Southern from all claims related to pulmonary-respiratory occupational diseases, increased cancer risk, fear of cancer, and all forms of cancer; decedent initialed each page and was represented by counsel.
- Norfolk Southern filed a plea in bar arguing the release bars the Estate’s later wrongful-death claim, which largely rests on the same facts asserted earlier.
- The court evaluated whether cancer was a known controversy in the first suit and whether the decedent appreciated the risk when signing the release, applying FELA-related federal law and two analytical tests (the Babbitt bright-line approach and the Wicker appreciation-of-risk test).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior release bars a subsequent FELA-based death claim arising from substantially the same facts | Release unenforceable; cancer was not an existing controversy and settlement amount was inadequate for cancer claims | Release valid: decedent asserted fear of and increased risk of cancer in the original suit and bargained away such claims | Release bars the Estate’s claim — court grants plea in bar |
| Whether the decedent appreciated the risk (knowledge of injury and its future consequences) when executing the release | Decedent did not appreciate future cancer risk; settlement value inconsistent with cancer claim | Decedent alleged fear of and increased risk of cancer in original complaint and initialed and signed a release covering cancer risks | Decedent appreciated the risk; release is enforceable under appreciation-of-risk test |
Key Cases Cited
- Babbitt v. Norfolk & Western Ry., 104 F.3d 89 (6th Cir. 1997) (approves enforcing a bargained-for release of known injuries under FELA)
- Wicker v. Conrail, 142 F.3d 690 (3d Cir. 1998) (release valid only if employee knew of injuries and comprehended future repercussions)
- Boyd v. Grand Trunk Western R.R., 338 U.S. 263 (U.S. 1949) (settlement compromising known claims does not contravene FELA)
- Callen v. Pennsylvania R.R., 332 U.S. 625 (U.S. 1948) (party attacking a release bears burden to show invalidity)