No one can legitimately deny the link between exposure to asbestos and developing the nearly always fatal cancer known as mesothelioma. Nor should anyone in all honesty and good conscience refuse to admit that older railroad workers experienced almost constant exposure to asbestos on trains, along tracks and in rail yards.
As Virginia railroad injury and wrongful death attorneys who have taken rail companies to court dozens of times, however, my colleagues and I know that Amtrak, BNSF, CSX, Norfolk Southern and almost every other freight and passenger rail company tries numerous legal tricks to deny liability for putting its employees’ lives and health at risk by failing to limit asbestos use. Overcoming railroads’ defenses during lawsuits on behalf of former engineers, conductors, brakemen, trackmen, machinists and others who contracted asbestos-caused diseases requires hard work, expertise and dedication.
Over the past three decades of helping sick and dying former railroaders, we have developed many tactics for countering the disingenuous arguments of railroads about asbestos and mesothelioma and other cancers. Each case is different, but the following information always applies in some way.
Everything Starts With a Complete Work History and a Confirmed Diagnosis
Showing that a man or woman worked near asbestos-containing materials and breathed in asbestos fibers while employed by a railroad is easy. Asbestos, with no exaggeration, was everywhere in and around trains and rail yards from the late 1800s through the 1990s. In addition to its ubiquitous use as insulation, asbestos appeared in concrete, wallboards, brake pads and protective clothing. Anytime such equipment got serviced, moved, cut or trashed, dust infused by asbestos fibers became airborne.
When a potential railroad mesothelioma client comes to us, we ask where he or she worked, what the person did at each site and how long the person spent doing each job. The duration of asbestos exposure does not matter as much as the intensive nature of the exposure. For instance, an administrative assistant who worked in a building insulated with asbestos is at risk after many years, while a machinist who spent just six months grinding brake shoes to achieve a custom fit would also be in danger of experiencing harmful asbestos exposures.
Making a case for railroad work leading to mesothelioma also requires presenting unimpeachable medical evidence that the client suffers from the disease. Diagnosing mesothelioma is not easy, as an occupational illness expert explains in the following video:
Contrary to popular misconceptions, mesothelioma is not the same as lung cancer. Mesothelioma affects the lining that covers the lungs. The only known cause of mesothelioma is asbestos exposure, whereas lung cancer can be caused by many carcinogens and conditions, including breathing in asbestos fibers.
Once a confirmed diagnosis gets made, drawing the connecting between a client’s mesothelioma and former railroad work makes sense.
During trial, evidence of illness would include
- Chest X-rays showing tumors and scarring on the lungs
- Poor and declining performance on pulmonary function tests
- Physical symptoms of lung disease (e.g., difficulty breathing, chest pains)
- Written and, often, oral testimony from medical doctors and other experts
It is also worth mentioning that asbestos exposure is associated with higher risks for laryngeal, lung, pharyngeal, stomach and colorectal cancers. Establishing clear lines between on-the-job asbestos and one of these diseases is tougher, but my colleagues and I have done so.
Derailing Railroad Companies’ Mesothelioma Denials
Work histories and medical records only go so far in mesothelioma lawsuits. The first tactic railroad usually try to blame a former employer for causing his or her cancer is arguing that the person smoked. While it is true that smoking is common among mesothelioma patients, smoking by itself is not a primary risk factor for the disease. In fact, smoking without asbestos exposure has not been shown to increase the risk of this terrible terminal disease.
Next, despite all historical evidence to the contrary, railroads will try to convince judges and juries that no asbestos exposures occurred at work. We have detailed the history of asbestos use in the U.S, railroad industry elsewhere.
Last, railroads will attempt to misuse medical science and statistics to create doubt about whether asbestos exposure at work really was problematic. The best counter to that tactic is to remind judges and jury members that no client — no person actually dying from mesothelioma or already deceased because of the disease — is a number.
Allow me to recount an exchange I had in court several years ago with an oncologist who had treated my railroad client for many years. Notably, the client had been a cigarette smoker during the time he got exposed to asbestos.
The railroad’s expert witness kept returning to the point that many more smokers get lung cancer than develop mesothelioma after smoking, breathing in asbestos fibers and working in an atmosphere full of diesel fumes. Acknowledging this, I asked my client’s doctor:
Q: How many patients have you treated that reported asbestos, smoking, radiation and diesel exhaust exposure …?
A. I don’t recall any others, to be honest.
Q. We know there’s at least one.
A. Yeah.
In sum, railroad injury lawyers prove mesothelioma was caused by on-the-job exposure to asbestos by having the facts on our side and by treating victims as humans in need of help.
EJL