Damico & Olarczuk-Smith Obtain Summary Judgment for Railroad Carrier

Attorneys David Damico and Holly Olarczuk-Smith obtained summary judgment for a major railroad carrier in a rectal cancer case filed in the Cuyahoga County Court of Common Pleas. Plaintiff brought the survival personal injury claim and a wrongful death claim under the Federal Employers’ Liability Act (“FELA”) alleging that the railroad negligently exposed the decedent-employee to diesel exhaust and secondhand smoke during the course of his railroad employment that caused rectal cancer, which led to the employee’s death. In the summary judgment motion, the railroad relied on the employee’s bankruptcy filings, which listed the FELA claim against the railroad as an asset of the bankruptcy estate, to prove that the employee was aware of his personal injury claim more than three years before the claim was filed, thus showing that the survival claim was time-barred. In addition, the railroad argued that the wrongful death claim was subject to dismissal due to the absence of pecuniary loss evidence because Plaintiff failed to produce any evidence by the discovery deadline.