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Evidence of Toxic Exposure, Not Dose, Required for a Railroad Employee’s Cancer Claim Under FELA

Note: This information on how personal injury attorneys handle cancer cases involving rail employees is adapted from railroad injury/FELA attorney Rick Shapiro's July 2011 invited lecture to the American Association for Justice Railroad Law Section. Here, he shares his expertise on how rail workers with cancers that can be caused by on-the-job exposures to carcinogens like diesel fumes, asbestos and radiation do not need to present specific evidence regarding doses or durations of exposures to the toxic and disease-causing substances. Rick has represented FELA plaintiffs for nearly 25 years and, in 1999, coauthored the American Jurisprudence Trials volume titled Railroad Health and Safety: A Litigator's Guide.

Clients who developed cancers they believe were caused by on-the-job exposures often ask me how they can prove they got exposed to a disease-causing amount of diesel fumes, asbestos and radiation. Lawyers defending Amtrak, CSX, Norfolk Southern and other railroads regularly challenge me with the same request.

The answer to both a lifelong NS engineer and a CSX attorney is the same: Only evidence of exposure is required. For decades, state appeals courts and U.S. Supreme Court justices have ruled that "quantification of dose" is not an applicable standard for establishing railroads' liability for diseases that can be clearly link to some level of exposure to toxic substances.

The Federal Employers' Liability Act, or FELA, states, in part and with emphasis added, that a railroad

"Shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employee, to his or her personal representative ... for such injury or death resulting in whole or in part from the negligence of any of its officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence in its cars, engines ...or other equipment."

The extent of railroad companies' liability for employees' injuries and occupational illnesses was made clear in Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108,116 (1963). In its Gallick decision, the Supreme Court stated that there can be a jury question of causation when there is "evidence that any employer negligence caused the harm, or, more precisely, enough to justify a jury's determination that employer negligence had played any role in producing the harm."

Then, in 1993,the Tennessee Court of Appeals stated that a railroad worker's "burden to prove causation is slight" when bringing a FELA claim for asbestos disease against his former employers. In Denton v. Southern Railway Co., 854 S.W. 2d 885, 888 (Tn. Ct. App. 1993), the appellate judges stated, "While it is still undoubtedly true that there must be some shreds of proof both of negligence and causation ... there appears to be little doubt that under [FELA], jury verdicts for the plaintiff can be sustained upon evidence which would not be sufficient in the ordinary negligence action."

The Tennessee appeals court also explicitly rejected CSX railroad's "quantification of dose" arguments in a FELA cancer case in 2003. The railroad had argued t trial in Wilson v. CSX Transportation, Inc., 2003 WL1233536 (Tenn. Ct. App.) court that a medical expert who provided testimony about the causation of the plaintiff's (Wilson's) cancer was not qualified to testify because the doctor admitted he had no quantification data about solvent exposure, only data about the nature and quality of solvent exposures. The trial court judge permitted the doctor's expert testimony, and the appeals court upheld that decision.

 

Read the other articles in this series:

 

In retrospect, it seems a little surprising that CSX would mount a quantification of dose challenge in Wilson because the railroad had already been denied that defense against liability in an earlier case. In Fulmore v CSX, 557 S.E. 2d 64 (Ga. Ct. App. 2001), the Georgia Court of Appeals rejected CSX's dose defense in 18 combined asbestos occupational disease cases. The appellate judges relied favorably on a February 2000 Georgia FELA opinion of U.S. District Judge Alaimo (S. D. Ga.), which states,

 

"It is appropriate in this context to allow the jury to infer that Defendant had been negligent -- despite the absence of exposure evidence -- from the fact that the Railroad failed to take samples of the air which Plaintiffs would have breathed. ... A reasonable jury could conclude that sampling of levels of asbestos exposure was an element of the Railroad's duty to observe ordinary care, and by failing to take such samples regularly, it breached that duty. The Court need not determine whether the events giving rise to this lawsuit qualify as "extraordinary" so as to justify an inference of negligence under the doctrine of res ipsa loquitur because the failure of Defendant to monitor the level of asbestos is itself evidence that the Railroad breached its duty of care to Plaintiffs."

 

In short, then, a quantity of dose is not required in a FELA cancer case so long as medical causation is supported by an appropriate differential diagnosis for the rail worker.

Learn more: As Virginia and Carolina attorneys specializing in FELA and railroad injury law, we offer hundreds of pages of information to help you learn your rights and recover compensation if you've been hurt on the job, riding trains or crossing rail tracks. You may find our list "What Not to Do After a Railroad Accident" especially helpful.


RR/EJL
Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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