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Important Info on Railroad Asbestos Cancer & Mesothelioma Claims Affecting Railroad Workers - Advice from a Virginia (VA) FELA Lawyer

Richard N. Shapiro
Recognized as Virginia "Super Lawyer" in Law & Politics Magazine (since '10)

A challenge with asbestosis/asbestos disease (including mesothelioma) cases is that the railroad worker does not know what equipment or train cars may have led to the asbestos exposure. After handling many cases involving railroad asbestos disease cases (as well as wrongful death cases due to asbestos cancers), I wanted to share some things that rail workers need to be aware of:

1. Steam Locomotives/Boilers - An array of railroad equipment, locomotives, or train cars are associated with asbestos diseases and cancers. One of the most dangerous asbestos sources causing cancers and asbestosis is the insulating materials used on steam locomotives. Many railroads, including N & W, CSX and others used steam locomotives in the 1940's, 1950's and through to the 1960's. Steam locomotives were loaded with asbestos, not only on the outside of the engine, under the outer metal shell, but inside the engine cab.. The outside of the steam locomotives were covered with asbestos insulation called “lagging”. Also, this was at one time called magnesia or magnesium. Magnesium was simply huge asbestos insulating blankets. These were sold for many years by Johns-Manville, and several other companies that have now changed names. Further, the asbestos insulation covered the areas of what was called the boilerand the firebox inside the steam locomotives. Steam locomotives also had a tender which was a separate car that had a direct connection or shoot between the car and the boiler on the steam locomotive.

However, the fireman (a form of engineer at an earlier time) was responsible for keeping the fire up on the steam locomotive. Asbestos insulation totally surrounded the boiler. Also, steam pipes covered with asbestos insulating tape or material was all over these steam locomotives. Several railroad worker witnesses involved in testimony in asbestosis disease case described the size of the locomotive cab as about four feet by four feet, although there were some variations in other steam locomotives. Workers needed to keep the fire going in the steam locomotive, which meant that the coal needed to keep the fire up in the engine “firebox.” It is apparent that the asbestos fibers from these insulating materials and pipes were often manipulated and vibrated by many movements, and would get into the air and be breathed into the lungs. First, even invisible amounts of airborne asbestos fibers can cause permanent lung disease or cancer. However, it appears that these old steam locomotives would allow enough asbestos to blow inside the engine cab to become visible dust and this was obviously far in excess of what could cause serious disease. Asbestos was almost an invisible killer because the period over which it would actually develop into disease can be from 15- 40 years, depending on many factors. The delay is called the “latency” period.

2. Cabooses - We have obtained documents from several of the railroads showing that only after decades of knowledge that their cabooses contained asbestos insulation did these same (wealthy) railroads actually have a scientific test done to confirm what they really knew: celings and stove pipes were asbestos containing. The ceiling insulation inside cabooses had asbestos content and most cabooses had a stove for heating which usually had insulating materials composed of asbestos–until “abated” or substituted for a non toxic insulating material. Most railroads had cabooses through to the 1960's or 1970's but the railroads did nothing to substitute out the asbestos on most cabooses. Instead, they just retired the cabooses! Far too late for many conductors who often rode in them for years.

3. Diesel Locomotives - There was a big fiction put out by the railroads that diesel locomotives did not have asbestos. This is a total fraud because all of the diesel locomotives had some amount of asbestos insulation. First, there were many gaskets that were made of asbestos. It has been proven that microscopic asbestos fibers are given off by even a small gasket that has no visible sign of wear. Many tests have been done to show that just one small asbestos gasket can give off more invisible asbestos fibers than are permitted by OSHA standards. Besides the gaskets in diesel locomotives, there were other areas that had asbestos such as the Wabco locomotive radios. Even the radios had a small sheet of asbestos and, of course, the workers were in close proximity to these radios. There were other portions of diesel locomotives that contained asbestos. For example, Norfolk Southern Railway Company and Norfolk and Western Railway Company were just substituting and abating asbestos from their diesel locomotive engines, systemwide, during the 1990's. Amazingly, Norfolk Southern was aware there was asbestos on the locomotives as early as the 1970's but did not systematically test and then eliminate all asbestos until twenty or more years later! In the meantime, NS did not accurately test the engines for asbestos in any real way, to confirm they were or were not safe over a typical workday. Since Norfolk Southern used the same locomotives that were being manufactured around the county (there were only 2-3 major companies producing the engines) it is apparent that all of the railroads were using asbestos laden diesel engines and locomotives into the 1990's as well.

4. Roundhouses and Railroad Shops - First, old roundhouses were an absolute asbestos nightmare. Up until the 1960's, workers were handling sheets of asbestos and repairing asbestos insulation and these workers have turned up with asbestos, asbestos-induced lung diseases, asbestos cancers, and mesothelioma, the deadliest of all. Mesothelioma is a terminal lung cancer for which there is no cure and usually causes death within six months of diagnosis. It is a horrible disease and it tortures the victim.

The roundhouses and shops were constantly handling asbestos into the early 1960's despite the fact that the railroads all knew as of the 1930's that abestos dust could cause permanent lung disease. The shops and roundhouses had no asbestos safety training, no masks or respirators, no air testing, and essentially no industrial safety measures.

5. Brake Shoes - Because asbestos was such a good insulating material, it was used in brake shoes by virtually all railroads at some points between the 1950's through to the 1990's. To replace just one brake shoe causes manipulation of the asbestos fibers along the the brake shoe and there has been much discussion and litigation with regard to just how much asbestos in the air can be caused by changing a single brake shoe. The problem was that many workers involved in changing brake shoes changed hundreds, if not thousands. These workers have suffered asbestosis and cancers, including mesothelioma. Workers who changed out asbestos containing brake shoes were probably exposed to many other forms of asbestos in roundhouses or in enclosed areas. A careful analysis needs to be made as to all other sources of asbestos exposure to the railroad worker, besides just changing brake shoes.

6. Railroad Yard Offices, Hotels and Buildings
- Just using CSX and Norfolk Southern as examples, there was a systematic effort to determine whether railroad yard offices and workplaces were using asbestos as insulating materials, but way, way too late too matter for many workers. Many of the industrial health and safety studies by the railroads did not begin until the 1990's. Why did the railroad’s wait until the 1990's when they knew as early as 1975 about the dangers of asbestos cancers and moreover knew since the 1930's about how to control asbestos dusts in their workplaces? That is one of the questions that is often asked in front of a jury at litigation over any worker diagnosed with any asbestos caused cancers.

WHAT THE RAILROADS KNEW ABOUT ASBESTOS AND WHEN:


Our law firm has collected reams of paper and boxes of materials relating to the significant knowledge of the nation’s railroads about the dangers of asbestos. First, many railroad workers that become our clients do not realize that the railroads actually had a medical and surgical section as early as the 1920's and 1930's. Remember, the railroads were some of the most powerful companies in the United States at that time. Particularly with passenger train traffic being the major form of transportation before air travel.

Medical doctors were on staff at the nation’s railroads and they had fine seminars and conventions where they exchanged information on medical issues. In the 1930's there were annual meetings and the railroad doctors discussed that asbestos dust could cause permanent lung disease that was called asbestosis as early as that time. The meetings and the written notes confirm that the industrial safety recommendations made in the 30's were that you wet down the asbestos, provide respirators, and you control the dust in the work place. The doctors also discussed conducting chest xrays and periodically monitoring the workers–but this never occurred until the 1970's and only sporadically even then. Because this 1930's medical meeting information was so damaging to the railroads, they have tried all kinds of unique defenses to try to convince juries now, that this fairly sophisticated medical information does not apply to them. How could it not apply to the railroads?

One of the arguments the railroads make is that these industrial safety recommendations only apply when a worker is manipulating or cutting asbestos and that these specific types of recommendations would have no application where there was just some asbestos insulation in a locomotive or some other piece of equipment when the worker was not manipulating it or cutting it or something like that. Most juries have rejected the railroad’s arguments that they did not have enough asbestos knowledge in the 1930's. It even got worse for the railroads when juries learn more about their inaction and their failure to protect workers as the asbestos disease information even got better but they still almost ignored it in the workplace.

There were further meetings in the 1950's and 1960's where the railroad doctors were discussing that cancers had been associated with asbestos. This even made it more imperative for the railroads to evaluate the work places, test the air, and remove asbestos from their products. However, the railroads virtually did nothing until litigation arose years later and they started to have to pay serious money to the railroad workers who were getting diseases and cancers. Only then, when the economic impact occurred, did the railroads start really making improvements. This is another reason the “tort” civil justice system works–it makes safety more cost effective for railroads eventually.

One of the prominent railroad doctors who was working for the C&O/B&O Railroad in the 1970's, specifically wrote a letter to his railroad medical colleagues in which he confirmed that mesothelioma had turned up in a railroad worker who had exposure to asbestos. Again, mesothelioma is a deadly terminal cancer virtually only associated with some asbestos exposure in someone’s lifetime. Usually, if a railroad worker or a railroad worker’s wife or family member is diagnosed with mesothelioma, a careful analysis must be done to determine whether that worker or family member had exposure to asbestos in the railroad work place. Our firm has handled a number of cases of railroad workers who are brakeman and conductors being diagnosed with mesothelioma, a railroad secretary/clerk diagnosed with mesothelioma who only worked in work places in the 1960's and 1970's where asbestos was located, as well as railroad engineer/fireman with steam era locomotive and boiler exposure, as examples.

There are many documented cases of railroad workers in every area of railroad work having been diagnosed with asbestosis, lung cancers, or mesothelioma.

ASBESTOS CLAIMS AGAINST RAILROADS - UNIQUE ASPECTS


When a railroad worker brings a claim against a railroad, it falls under the Federal Employers’ Liability Act. Spouses of railroad workers have contracted mesothelioma and that claim is a common law negligence or a wrongful death claim against a railroad for the personal injuries of that spouse.

For railroad worker claims, especially those involving wrongful death, there are some special rules that apply to what damages can be recovered against a railroad. In rail worker wrongful death cases, the following are the main elements of damages recoverable:

  • All pain and suffering and impairment associated with the diagnosis or death caused by the railroad’s negligence or statutory violations;
  • Fear of impending death;
  • Loss of pecuniary benefits to the surviving spouse or minors who already were relying on the worker for support;
  • All medical expenses;
  • Funeral and burial expenses associated with the claim.

These types of wrongful death cases do not allow recovery to the surviving beneficiaries or family members for their own grief and loss of consortium/companionship.

I have also written a book-length treatment of occupational diseases and injuries that is published in West Am Jurisprudence Trials which covers asbestos and occupational disease issues in far more detail. Excerpts are published elsewhere on this website. Our railroad injury attorneys have handled railroad injury/disease case in virtually every state in the Southeastern U.S.A. and in many other states as well.

STATUTE OF LIMITATIONS:

Claims against railroads under the Federal Employers’ Liability Act (FELA) must be brought within 3 years when the worker knew or should have known that the occupational disease/wrongful death was associated with railroad work, and different limitations periods apply to non-railroad workers and spouse claims, and as to claims against parties besides the railroads.

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