Staubs v. CSX Transp., Inc.

MARY STAUBS v. CSX TRANSPORTATION, INC.

No. 376

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2020

June 22, 2021

Circuit Court for Baltimore City

Case No. 24-C-20-000541

UNREPORTED

Fader, C.J., Reed, Beachley, JJ.

Opinion by Fader, C.J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This appeal concerns a claim for damages arising from an employer's negligence under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51 - 60. The question we must address is whether a final judgment on a FELA claim based on the plaintiff's development of one disease resulting from toxic exposure bars a subsequent FELA claim based on a different, latent disease resulting from essentially the same toxic exposure, where the second disease was unknown until after the first judgment was rendered. Applying federal law, we hold that it does not.

In 2020, Mary Staubs, in her capacity as the administratrix for the Estate of Floyd L. Staubs, Jr. ("Ms. Staubs"), the appellant, sued CSX Transportation, Inc. ("CSXT"), the appellee, under FELA for negligence resulting in Mr. Staubs's development of kidney cancer and subsequent death due to exposure to toxic substances while employed by CSXT. The Circuit Court for Baltimore City concluded that Ms. Staubs's claims were barred by res judicata based on a 2010 dismissal with prejudice of a prior FELA action, which had been filed on behalf of Mr. Staubs and 99 other plaintiffs in West Virginia. On appeal, Ms. Staubs contends that the court erred in applying res judicata to her claim because (1) she was not in privity with Mr. Staubs at the time of the earlier action, and (2) her present cause of action against CSXT for Mr. Staubs's kidney cancer is not the same as the prior cause of action litigated in West Virginia.

Although we disagree with Ms. Staubs's privity argument, we agree that the present cause of action is not the same as that previously litigated in West Virginia. Under the "separate disease rule," which we conclude applies to FELA actions, a cause of action based on the development of one disease resulting from toxic exposure is not the same asa cause of action based on the later development of a different disease resulting from the same toxic exposure. Because CSXT did not demonstrate that Ms. Staubs's current action premised on Mr. Staubs's development of kidney cancer is the same as the action previously litigated in West Virginia, the circuit court erred in dismissing Ms. Staubs's complaint under the doctrine of res judicata. Accordingly, we must reverse.

BACKGROUND

CSXT operates a line of railroads and conducts business in Maryland and West Virginia, among other states. Mr. Staubs was employed by CSXT as an engineer from 1978 through December 29, 2011. Because CSXT is a "common carrier by railroad" that was engaged in interstate commerce during the term of Mr. Staubs's employment, FELA provides the exclusive right of recovery for injuries he sustained as a result of his employment. See Erie R.R. Co. v. Winfield, 244 U.S. 170, 172 (1917).

The West Virginia Action

In 2002, Mr. Staubs and 99 other individuals were named as plaintiffs in a FELA action filed against CSXT in state court in West Virginia. See Shirley Amos, et al. v. CSX Transp., Inc., Circuit Court for Marshall County, West Virginia, No. 02-C-93K (the "West Virginia action"). The only paragraph of the complaint specific to Mr. Staubs identified his social security number and stated that he was "an adult individual" who resided in West Virginia and had worked for CSXT. Other than paragraphs with similarly limited information identifying the other 99 plaintiffs, the remaining allegations of the complaint were not specific to any particular plaintiff.

The complaint generally alleged that CSXT negligently exposed its workers to a variety of toxic substances and failed to provide them with a safe workplace. The allegations included the following:

• "While working for the defendant, the plaintiffs were exposed to and caused to inhale asbestos fibers, free silica, diesel fumes, solvent fumes, gasoline fumes, fibrogenic materials, carcinogenic materials and other substances deleterious to the respiratory system."

• Within the statute of limitations period, "the plaintiffs learned that he [sic] suffered from an occupationally related lung disease, including, without limitation, asbestosis, asbestos related pleural disease; silicosis, mixed dust pneumoconiosis, chronic obstructive pulmonary disease, occupational asthma, occupational bronchitis, cancer, an increased risk of cancer, and other serious and severe pulmonary diseases."

• "The injuries, disease and disability of the plaintiffs were caused by exposure to the aforementioned deleterious substances while working for the defendant, during the term of his [sic] employment with the defendants [sic]."

• In addition to other negligent acts and omissions, CSXT failed to provide the plaintiffs with a safe workplace and safe working materials; failed to warn them of the dangers of the toxic substances to which they were exposed; and failed to conduct adequate testing and provide adequate instructions, training, and equipment.

• As the result of CSXT's negligence, "the plaintiffs have developed asbestosis, asbestos related pleural disease, silicosis, mixed dust pneumoconiosis, chronic obstructive pulmonary disease, occupational asthma, occupational bronchitis, cancer, an increased risk of cancer, and/or other serious and severe respiratory diseases, and have suffered other bodily injuries, including a greatly increased risk of developing mesothelioma, bronchogenic carcinoma, or other cancerous conditions, and suffer difficulty breathing, as well as other serious and severe injuries which may be permanent. Further, some of these plaintiffs have died as a result of the above conditions[.]"

• As a result of CSXT's negligence, the plaintiffs suffered a variety of types of economic and other damages.

The complaint also identified a series of additional damages applicable to "plaintiff decedent," without identifying the plaintiff(s) to whom that applied.

It appears that the West Virginia action was inactive until April 2009, when the Supreme Court of Appeals of West Virginia transferred "all pending . . . cases in West Virginia asserting claims under FELA for personal injury . . . from exposure to asbestos" to the Circuit Court for Kanawha County for consolidation with In re: FELA Asbestos Cases, Civil Action No. 02-C-9500. See Administrative Order, Supreme Court of Appeals of West Virginia, at 2 (Apr. 29, 2009), http://www.courtswv.gov/lower-courts/mlp/mlp-orders/AsbestosFELALitigation_04-29-09.pdf (last visited June 21, 2021). The West Virginia action was among the cases transferred.

On June 11, 2010, the Kanawha County court entered an order that dismissed with prejudice the claims of the plaintiffs in 14 asbestos-exposure lawsuits, including the West Virginia action, excepting only the claims of 66 individual plaintiffs.¹ Of the claims that were not dismissed: (1) two were to remain on the inactive docket; (2) two plaintiffs were granted leave to file new complaints asserting only malignant injuries; and (3) 62 plaintiffs were identified on a list that their counsel submitted to the court as "accurately summariz[ing] all claims currently pending in West Virginia where plaintiffs are alleging an asbestos-related lung cancer." The list was sent in compliance with a requirement ofthe applicable case management order that plaintiffs "provide[] notice of intent to pursue recovery for malignant injuries" by a date certain. The claims of all remaining plaintiffs in all 14 cases who had not identified malignant injuries, including 97 of the 100 plaintiffs in the Amos case, were dismissed with prejudice. Because Mr. Staubs was not identified as a plaintiff alleging malignant injury, his claim was among those dismissed with prejudice.

The Maryland Action

On August 31, 2016, Mr. Staubs died of kidney cancer. On January 29, 2020, Ms. Staubs filed a complaint in the Circuit Court for Baltimore City under FELA in which she alleged that Mr. Staubs's development of kidney cancer and death were caused by CSXT's negligence (the "Maryland action").² The complaint alleged that while employed by CSXT from 1978 through December 29, 2011, Mr. Staubs "was exposed on a daily basis to excessive amounts of diesel exhaust/fumes, benzene, asbestos, polycyclic aromatic hydrocarbons and second hand smoke," and that he developed kidney cancer as a result of his cumulative exposure to those substances during that period. Ms. Staubs alleged that Mr. Staubs's injuries and death resulted from CSXT's negligence in failing to provide a safe workplace, to test and monitor for exposure to hazardous substances, and to warn of the risks of exposure to those substances. As relief, Ms. Staubs sought "all damages recoverable under the FELA for wrongful death and/or survival actions."

The Motion to Dismiss

CSXT filed a motion to dismiss the Maryland action or, in the alternative, for summary judgment. According to CSXT, the dismissal with prejudice of the West Virginia action barred the Maryland action because the injuries Ms. Staubs alleged, "including cancer and an increased . . . risk of cancer," had also been alleged in the West Virginia action and "ar[ose] out of the same occupational exposures to fumes, substances, and chemicals that [we]re at issue in" that action. In the alternative, CSXT asked the court to enter summary judgment in its favor because Ms. Staubs failed to state a claim under FELA as a matter of law.

In opposition, Ms. Staubs contended that res judicata did not bar the Maryland action both because she was not in privity with Mr. Staubs during the pendency of the West Virginia action and because the...