A railroad worker brought an action under FELA (Federal Employers Liability Act) after developing lung cancer.  Thaxton routinely left his home on Sundays and slept in company-provided bunk cars located at or near the job site or rail yard where he worked from Sunday nights until either Thursdays or Fridays.  He shared the bunk cars with 8 to 12 co-workers many of whom smoked.  Although he complained about this exposure to ETS, the company did not adopt a no-smoking policy.  According to his complaint, after 13 years of exposure to ETS at the worksite four to five days per week, 4 to 7 hours per day, Thaxton “contracted irreversible non small cell lung cancer and is now unable to continue performing his job.”  The plaintiff also alleges that a company-sponsored lung X-ray revealed a spot on his lung which was later diagnosed as lung cancer but that the company waited more than two months before informing him of this.  In its answer, the defendants allege that Mr. Thaxton’s contraction of lung cancer was, insofar as the defendants are concerned, “a pure accident unmixed with any negligence on the part of these defendants.”

After Thaxton died, his widow moved to add Norfolk Southern Corporation (NSC) and Western Railway Company as defendants.  The trial court denied the motion; however, the Court of Appeals of Georgia granted an interlocutory application to determine whether that motion was properly denied.  The court reversed at 239 Ga. App. 18, 520 S.E. 2d 735, 1999 Ga. App. LEXIS 1284.  Thaxton had originally sued Norfolk Southern Railway but learned, through discovery, that it was NSC that was responsible for decisions relating to the no-smoking policy.  “In light of NSC’s exclusive role in setting the policy of which Thaxton complains, the court should have allowed NSC to be added as a party,” the Court of Appeals ruled, remanding the case to the trial court.  The case was settled in January 2006.

Civil Action No. 96VS0109725, State Court of Fulton County (GA)(1996).