Rail Workers With Mesothelioma to Find Suing Asbestos Manufacturers Tougher

Retired railroad workers facing the slow, painful death sentence of mesothelioma brought on by on-the-job asbestos exposure lost a major legal battle when the U.S. Supreme Court severely limited a sick persons' ability to hold companies liable for putting their health and lives at risk. In a 6-3 decision published on February 29, 2012, the Court ruled that personal injury and wrongful death suits cannot be brought in state courts under the federal Locomotive Inspection Act when those claims are based on findings of product defects or failure to warn.

The majority of the justices, led by Clarence Thomas, based their decision on the fact that the LIA explicitly permits the use of asbestos and asbestos-containing parts on locomotives. I'll get to why that decision makes no sense below, but here is the background of the case.

Background on Kurns

The plaintiff in the case that reached the high court as Kurns et al. v. Railroad Friction Products Corp. et al., spent 27 years repairing train cars for the Chicago, Milwaukee, St. Paul & Pacific Railroad. One of his principal jobs was removing and replacing brakes assembled from multiple components made with asbestos. After being diagnosed with mesothelioma decades following his retirement, the former rail employee sued dozens of brake parts makers on the grounds that the companies produced inherently defective products and consistently failed to provide warnings about the dangers of breathing in asbestos fibers. He brought the claims under the LIA, which is the successor of a federal law first enacted in 1911 as the Boiler Inspection Act.

To learn more about asbestos and mesothelioma cancer affecting railroad workers, please read the following articles:

Two of the named defendants -- Railroad Friction and Viad Corp. -- fought the claims, arguing that LIA made their products presumptively safe because they are allowed and that, therefore, they had no obligation to warn users. The plaintiff died in the 5 years it took the case to reach conclusion; his widow kept the lawsuit moving forward.

As noted, the Supreme Court ruled in the companies' favor. As unjust as that is for the deceased railroad employee and his family, the effect of absolving the companies of any obligations to ensure their products do not harm users or to alert users of dangers goes far beyond this individual case. While retired railroaders will continue to have recourse to recovering damages for occupational diseases such as mesothelioma and lung cancer under FELA, the Kurns decision takes a powerful arrow out of the quiver of rail workers who contracted deadly illnesses in the course of their employment.

A Senseless Decision

Beyond that legal defeat, though, the decision simply beggars common understanding of the duties manufacturers owe users of their products. First, a product permitted to exist is not, by law and certainly not by fact, automatically safe. Cars and fentanyl are both perfectly legal, but both claim lives every day.

Second, the practical translation of any court's decision to lift a product maker's duty to warn is "the user should have known the risks." While this is sometimes true, it is most certainly not true in the case of asbestos. History shows, and courts have repeatedly found, that companies actively conspired to keep knowledge of asbestos dangers from people who worked with the material on a daily basis.

Last, consider the timelines for Kurns. The LIA contains much of the language of a law that took effect a century ago. Asbestos parts are allowed under the law because 100 years ago, few people recognized how dangerous such parts were. Much later, the U.S. government all but banned asbestos use in 1989. The plaintiff claimed working with the defendants' products no later than 1974. Certainly no complete rewrite of the Locomotive Inspection Act would bless asbestos use or be read with the understanding that rail workers exposed to asbestos before about 1980 would just know the risk they faced.

While I recognize that the 1974 version of LIA has to apply to the fact presented in Kurns, I also know that companies always had obligations to alert people about known dangers. Even if the Court was correct in precluding the defective product claim, dismissing the failure to warn claim simply makes no sense.

Reemphasize Duty to Warn About Asbestos

It's unclear when, or if, the Supreme Court will revisit its senseless Kurns decision.
Failing court action, it falls to regulators, railroads and parts makers to minimize asbestos dangers for employee on trains and in rail yards. A significant first step would be for the Federal Railroad Administration, as Justice Sonia Sotomayor suggested in a concurring opinion, to enact regulations that ban asbestos on all engines. FRA could do this by January 1, 2013, and also significantly strengthen worker protections by ordering that warning placards be placed in highly visible locations in all locomotive cabs when engines have parts containing asbestos.


Richard N. Shapiro
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
Hi,really great article.And really people don,t now a lot information about mesothelioma , when and where to apply for claim...
by Roma Da March 6, 2012 at 05:50 PM
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