An Overview of the Gillon Case Against CSX

Upholds Release Of Future Claim For Asbestos-Related Cancer

On October 11, 2011, the Supreme Court of Appeals of West Virginia affirmed a Circuit Court ruling in favor of railway giant CSX Transportation. The ruling held that an employee's signed release settling an asbestosis claim against the company in 1995 barred that employee's future claim against the railway for an asbestos-related cancer not diagnosed until almost eight years later. The case — Gillon v. CSX Transportation, Inc., No. 11-C-0498 (W.Va. Oct. 11, 2011) — sets a new precedent for West Virginia courts handling personal injury claims related to asbestos exposure.

History Of The Case

On May 18, 1995, an employee — Jimmie Gillon — signed a release agreement with CSX settling his asbestosis claim for $12,000. According to its language, the release discharged CSX "from all claims for all known and unknown, manifested and unmanifested, suspected and unanticipated occupational diseases or injuries, including cancer, arising from or contributed to by exposure to any and all toxic and pathogenic particulate matter, including but not limited to, asbestos..."

The release also stated that a "portion of the monies paid for this release agreement is for... possible future manifestation of either the effects of and/or injury or disease due to alleged exposure to such substances ..." It was also expressly stated in the release that Mr. Gillon "executed this agreement upon the advice and approval of [his] attorney and that [he] had this release agreement explained to [him] by [his] attorney..."

Almost eight years after signing the release — in March of 2003 — Mr. Gillon was diagnosed with asbestos-related lung cancer. Shortly thereafter, he filed another lawsuit against CSX, this time to recover compensation for his lung cancer. The suit was premised upon Mr. Gillon's contention that his cancer claim was not barred by his earlier settlement of the asbestosis claim. The trial court disagreed, however, and granted the railroad's motion for summary judgment (a method of quickly closing a case when the judge determines that no actual dispute exists).

The Appellate Process

On appeal, Mr. Gillon argued that the release of his asbestosis lawsuit, which purported to release all claims for illnesses which might develop in the future, violated federal law, specifically Title 45, Section 55 of the United States Code. That law is designed to prevent freight companies classified as "common carriers" under the law from using contracts or other legal devices to unfairly free themselves from the liability imposed by the Federal Employers Liability Act (FELA). FELA was passed in 1908 to provide compensation to injured railroad workers.

He asserted that a previous federal case — Wicker v. Consolidated Rail Corporation, 142 F.3d 690, 701 (3d Cir. 1998) — limited the reach of releases signed by railroad workers to those risks known to the parties when the release is signed, and that claims relating to unknown risks cannot fairly be waived and still comply with 45 U.S.C. §55. Furthermore, Gillon argued that the release he signed in 1995 did not set out the "quantity, location and duration" of his exposure to asbestos, as required under the Wicker case.

Mr. Gillon also noted that the 1995 release contained the term "cancer," but did not specifically mention "lung cancer;" that the settlement amount of $12,000 was not nearly large enough to signify compensation for the future diagnosis of a potentially deadly cancer and that the filing of his lawsuit reflected his sincere belief that he had not released any claim for lung cancer when he signed the 1995 agreement.

For its part, CSX claimed that the term "cancer" in its release included "lung cancer" and all other cancers; that the precedent set by the Wicker case does not require specificity as to the "quantity, location and duration" of exposure contrary to Mr. Gillon's contention; that extrinsic evidence (i.e., the fact that he filed a lawsuit seeking compensation for his lung cancer) concerning Mr. Gillon's intent and knowledge cannot be used to alter the unambiguous terms of the release; that Mr. Gillon had the burden of showing that the release was invalid but failed to do so; that the court could not "second guess" the amount of the settlement in light of Mr. Gillon's present circumstances and that Mr. Gillon's regret for signing the release is not a valid basis for voiding it.

The Supreme Court's Decision

In a short, unsigned memorandum decision, the Supreme Court of Appeals upheld the trial court's summary judgment order in favor of CSX. The Supreme Court's conclusion was based on its finding that it is "clear from the unambiguous terms of the release, which [Mr. Gillon] signed with the advice of legal counsel in an earlier FELA claim, that [Mr. Gillon] was aware that he was releasing, inter alia, any future claim that he might have associated with the development of cancer and, that under the Wicker standard, CSX is entitled to judgment in its favor on the basis of the prior release." Their ruling built on an earlier opinion in another case — Ratliff v. Norfolk Southern Railway Co., 224 W.Va. 13, 680 S.E.2d 28 (2009) — in which the court held that release language in a voluntary separation (buyout) agreement did not bar a claim for mesothelioma, an asbestos-related cancer, that was not diagnosed until 19 years after the separation. The Ratliff decision, however, indicated that in cases involving the settlement of a personal injury claim, properly worded language could release known risks of future injury.

If you or a loved one has contracted mesothelioma or any other asbestos-related cancer, contact a skilled personal injury attorney in your area to learn more about possible legal claims you may have.