Donna Payne, individually and as representative of the Estate of Neil Harrah v. BNSF Railway Company, (Individually and as Successor-in Interest to the Burlington Northern & Santa Fe Railway Company, Atchison and Quincy Railroad Company, Burlington Northern, Inc., and Burlington Northern Railroad Company

Fort Worth, Texas – Personal Injury lawyer represented Appellant with suing for exposure to asbestos that ultimately resulted in his death from cancer.

In 1957, Harrah began working for what is now BNSF Railway Company. He

was a fireman and locomotive engineer. While working on (or near) BNSF's

locomotives and facilities, he was exposed to asbestos and other toxic substances. He

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voluntarily retired around 1994, at age 62. He later developed and was diagnosed with

asbestosis, a non-cancerous occupational lung disease.

Harrah sued BNSF in Arizona state court in 2015. In his complaint, he alleged

that his asbestosis resulted from BNSF's negligence and sought "money damages for

the injuries suffered as herein alleged.” In January 2017, Harrah and BNSF settled

Harrah's asbestosis claim. The settlement was spelled out in a six-page agreement

titled "Full and Final Settlement Agreement.” Hereinafter referred to as the

2017 Release, it provided,

I, Neil Harrah, . . . hereby release . . . BNSF . . . from any and all claims

and liabilities of every kind or nature, for occupational disease, personal

injury, or wrongful death, INCLUDING CLAIMS FOR INJURIES,

ILLNESS, OR DAMAGES, IF ANY, WHICH ARE UNKNOWN AT

THE PRESENT TIME, arising out of or resulting from any alleged

exposure to toxic or harmful substances, as described in Releasor's

petition, complaint, statement, discovery, including any expert

reports and medical records, allegedly caused, in whole or in part, by

the Released Parties.

. . . .

I understand . . . that the diseases . . . released herein include . . .

asbestosis, . . . cancer of any kind, and increased risk of cancer, including lung

cancer . . . or other allegedly asbestos-related cancer of any form, whether

such cancer exists on or before the date of this Release or develops in the future;

death, emotional distress of any kind, including fear of cancer, whether

or not Releasor ever suffered from such injury, condition or disease.

It is the intention of both the Releasor and BNSF that this Release and

Settlement Agreement constitutes an immediate and permanent

settlement of all of Releasor's claims that may arise, even though not

now existent from the occupational exposures to asbestos and other

toxic materials described in Releasor's complaint, petition, deposition,

statement, expert report, or medical records. The occupational exposures

Releasor described in such complaint, petition, deposition, statement,

expert report, or medical records suggest that Releasor may have been at an

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increased risk for future development of cancer, including, but not limited to lung

cancer and malignant mesothelioma. Releasor acknowledges awareness of

this information.”

. . . [T]he parties agree that the above settlement amount accepted by

Releasor includes consideration to fully and finally resolve the Releasor's risk of

developing cancer and/or malignant mesothelioma as a result of the alleged exposures

to asbestos and other toxic materials referred to above. Releasor acknowledges

and agrees that the amount accepted in settlement includes compensation for the risk of

future cancer and is fair and reasonable considering the extent of any increased risk of

malignancy. Releasor expressly recognizes and appreciates that he/she may be at risk

of the future development of additional conditions, including cancer or mesothelioma,

as well as other injuries and death, and damages as a result of my alleged exposures.

Notwithstanding, it is Releasor's informed intent to release any and all such

conditions, injuries, and damages with this settlement.

Releasor hereby. acknowledges that acceptance of this settlement amount

forever precludes any further recovery from BNSF for the development of any

malignancy caused in whole or in part, by occupational exposures to asbestos . . . .

Releasor expressly acknowledges that he/she is aware of the risk of potential

development of additional related conditions including cancer and malignant

mesothelioma as a result of the exposures referred to above, and it is the intent of

Releasor to include such potential future conditions in this Release and Settlement

Agreement. [Bold emphasis in original. Italics emphasis added.]

At the end of the release, above Harrah's signature, the release contained what

might be described as a black box warning. The following language is contained in a

box outlined by a bold black line, with the following language in bold black letters,

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Harrah executed the 2017 Release before a notary public. Although the release

included a preprinted line marked "Approved” by "Attorney for Plaintiff,” the line is

unsigned. And two additional preprinted signature lines marked "Witness” are

likewise unexecuted. In exchange for this release, BNSF paid Harrah the sum of

$14,500. In December 2018—two years later—Harrah was diagnosed with lung

cancer. He died from its effects in September 2020.

In March 2021, Payne—acting in her individual capacity and as representative

of Harrah's estate—sued BNSF for negligence, negligence per se, gross negligence,

and wrongful death under the FELA. She alleged that BNSF breached its duties to

provide Harrah with a reasonably safe workplace, to warn him of the substances'

toxicity, to provide him with appropriate protective equipment, and to comply with

governing standards. As a proximate result of that breach, Payne alleged, Harrah

developed asbestosis and later lung cancer, the latter of which led to his death.

BNSF moved for summary judgment, arguing that the 2017 Release barred

Payne's lawsuit. According to BNSF, that release fully settled "all past and future

claims against BNSF for occupationally-related diseases (and death) resulting from

alleged workplace exposures during Harrah's former employment at BNSF,”

including Payne's claims arising out of her father's lung cancer and resulting death.

Payne disagreed. She did not dispute the prior suit or the fact of the 2017 Release. She

instead argued that the release was limited to, at most, asbestosis. She then explained

why, under Section 5 of the FELA, the release did not bar her claims for her father's

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lung cancer. In particular, Payne argued that the 2017 Release was not effective in

releasing unknown future claims under Babbitt v. Norfolk & Western Railway Company,

104 F.3d 89, 93 (6th Cir. 1997) (holding that release given as part of a settlement of an

existing FELA claim is enforceable as to injuries known to exist at the time of the

settlement but not unknown future injuries). Alternatively, Payne contended that this

release was ineffective to release Harrah's cancer claim because BNSF failed to

establish that such was the intent of the parties when the release was signed, under

Wicker v. Consolidated Rail Corporation, 142 F.3d 690, 702 (3d Cir. 1998) (holding that a

release of future claims made as part of the settlement of an existing FELA claim is

enforceable if the release of future claims was within the intent of the parties and the

future claim was within the scope of the release). Although Payne alleged there were

fact issues on the intent of the parties to this release regarding coverage for risk of

future injuries, she did not bring forward any evidence in response to BNSF's

summary judgment motion to support this contention. The trial court entered a

written order granting BNSF's summary-judgment motion "on the basis of” the

2017 Release. Having resolved all of Payne's claims against BNSF, the trial court later

granted BNSF's unopposed severance motion. This appeal followed.

II. Legal Standards

This Court reviews an order granting summary judgment de novo. Godoy v.

Wells Fargo Bank, N.A., 575 S.W.3d 531, 536 (Tex. 2019). We consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence favorable

to the nonmovant if reasonable jurors could, and disregarding evidence contrary to

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the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable

inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker,

249 S.W.3d 392, 399 (Tex. 2008). We must consider whether reasonable and fairminded jurors could differ in their conclusions considering all of the evidence

presented. See Wal–Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of

Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005). In a traditional summary

judgment case, the issue on appeal is whether the movant met the summary judgment

burden by establishing that no genuine issue of material fact exists and that the

movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann

Frankfort, 289 S.W.3d at 848. Traditional summary judgment is improper if there is

more than a scintilla of probative evidence raising genuine issues of material fact. Petit

v. Maxwell, 509 S.W.3d 542, 546–47 (Tex. App.—El Paso 2016, no pet.).

When a defendant moves for summary judgment on an affirmative defense,

"he has the burden to conclusively prove all the essential elements of its defense as a

matter of law, leaving no issues of material fact.” Garza v. Williams Bros. Const. Co.,

Inc., 879 S.W.2d 290, 294 (Tex. App.—Houston [14th Dist.] 1994, no writ). If the

defendant meets his initial burden by "establish[ing] his right to an affirmative defense

as a matter of law, the burden shifts to the plaintiff to produce controverting evidence

that raises a fact issue on the defendant's affirmative defense.” Id. at 294–95. Even

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then, the burden remains on the defendant to negate the issues raised to conclusively

establish its right to summary judgment. Id. at 295.

A contractual release is an affirmative defense. See Tex. R. Civ. P. 94. To

establish its elements, "the party asserting the defense of release is required to prove

the elements of a contract.” In re J.P., 296 S.W.3d 830, 835 (Tex. App.—Fort Worth

2009, no pet.). Because the FELA is a federal statute, "FELA cases adjudicated in

state courts are subject to state procedural rules, but the substantive law governing

them is federal.” St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S. Ct. 1347,

1348 (1985); BNSF Ry. Co. v. Phillips, 485 S.W.3d 908, 910 (Tex. 2015).

BNSF, as summary judgment movant, initially bore the burden of showing

there was no genuine issue of material fact and that it was entitled to judgment as a

matter of law. See Tex. R. Civ. P. 166a. The review begins with the release language.

Callen v. Pa. R.R. Co., 332 U.S. 625, 630, 68 S. Ct. 296, 298 (1948) (noting that releases

of railroad employees stand on the same basis as the releases of others and are entitled

to prima facie validity); Mendoza-Gomez v. Union Pac. R.R. Co., No. 4:19-CV-4742,

2021 WL 3469998, at *4 (S.D. Tex. July 27, 2021) aff'd, No. 21-20397,

2022 WL 1117698 *3 (5th Cir. April 14, 2022). Where it is undisputed that an

employee signs a release of the FELA claim, federal law shifts the burden to the

nonmovant to establish the invalidity of the release. Callen, 332 U.S. at 630, 68 S. Ct.

at 298 ("[O]ne who attacks a settlement must bear the burden of showing that the

contract he has made is tainted with invalidity . . . .”); Fisher, No. 02-21-00369-CV, slip

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op. at 6; Wicker, 142 F.3d at 696; see also Jarrett v. Consol. Rail Corp., 185 A.3d 374,

380 (Pa. Super. Ct. 2018); Blackwell v. CSX Transp., Inc., 102 A.3d 864, 868 (Md. Ct.

Spec. App. 2014); Jaqua v. Canadian Nat. R.R., Inc., 734 N.W.2d 228, 232 (Mich. Ct.

App. 2007).

III. Analysis

In Fisher, the same legal arguments were presented that are being advanced in

this case and the facts, while not exactly identical, are very similar. We find our

holdings in Fisher govern the disposition of this case.

In that case, we declined to adopt the Babbitt bright-line rule, which declares

unenforceable any release of unknown future injuries or conditions made as part of a

settlement of an existing FELA claim. Fisher, No. 02-21-00369-CV, slip op. at 8. Like

that case, we also need not choose between the Wicker rule or the analysis in MendozaGomez, because the result is the same using either analysis. Id. at 15.

As in Fisher, BNSF, as movant, was required to establish its right to summary

judgment as a matter of law. See id. at 5. It attached Harrah's 2017 Release, which

Payne did not contest. The release was therefore entitled to prima facia validity. As is

readily apparent from the case history and the release provisions set out above,

Harrah filed a lawsuit against BNSF alleging that he developed asbestosis from his

occupational exposure to asbestos and that his settlement was made as part of that

existing claim. Such being the case, the settlement was not barred by the FELA's

Section 5. Callen, 332 U.S. at 631, 68 S. Ct. at 298–99. The 2017 Release clearly

covered Harrah's claims for future injuries, whether known or unknown, arising out

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of his exposure to asbestos, including cancer. The parties made it perfectly clear in the

release language that it was their intent to cover risks of unknown future injuries

arising from asbestos exposure. They even went so far as to outline such intent in a

black box warning above Harrah's signature. BNSF therefore established that the

release was intended to, and did, apply to future risk of cancer from exposure to

asbestos. The burden then shifted to Payne to bring forward evidence to raise a fact

issue on the invalidity of the release. Fisher, No. 02-21-00369-CV, slip op. at 18–19.

Payne did not do so. Further, as we held in Fisher, Payne failed to raise a fact issue on

intent. Her legal arguments were insufficient to raise a fact issue, and having advanced

no evidence, there is no evidence upon which a fact issue could exist. Id. at 19; see also

Jarrett, 185 A.3d at 379–80 (applying Wicker); Mendoza-Gomez, 2021 WL 3469998, at

*4 (rejecting both Wicker and Babbitt). We overrule Payne's issue that the trial court

erred in granting the summary judgment.

Finding no reversible error in the record, we affirm the judgment of the trial

court