In late April 2008, a civil trial jury ordered Conrail to pay one of its former engineers $2.6 million. The verdict in the occupational illness lawsuit followed from the jurors’ determination that near-constant exposure to diesel exhaust fumes caused the then-65-year-old plaintiff’s debilitating asthma.
The retired engineer had worked for the defendant railroad for 23 years, primarily crewing switcher locomotives in rail yards around Detroit. According to the ruling, failing to protect its employee from toxic diesel exhaust violated the Locomotive Inspection Act, which created strict liability for the rail corporation under the Federal Employers Liability Act.
- What, Exactly, Is the Federal Employers Liability Act (FELA)?
- Railroads Must Protect Employees From Injuries by Inspecting, Properly Equipping Locomotives and Rail Cars
- A Virginia FELA Attorney Discusses Toxic Diesel Fumes and the Locomotive Inspection Act
Conrail split into CSX and Norfolk Southern in 1999, but employees of the older company retain the right to bring FELA claims for work-related illnesses and wrongful deaths. This is especially important for engineers, conductors, machinists, switchmen and trackmen who were regularly exposed to asbestos on the job.
During the roughly one-week trial, the plaintiff’s attorneys, E.J. Leizerman and Ryan Gembala, presented evidence that their client developed his lung disease as a result of inhaling engine exhaust on hundreds, if not thousands, of occasions. The lawyers also demonstrated that Federal Railroad Administration (FRA) regulations in effect at the time prohibited diesel exhaust fumes from entering the crew cab of a locomotive. Jurors did not believe testimony from the doctors who were hired by the defense to say that the retired engineer’s lung disease must have some other cause than breathing in diesel exhaust.
Shortly after the conclusion of this trial, the U.S. Environmental Protection Agency issued Regulations for Emissions From Locomotives. Those rules, which largely superseded the one enforced by the FRA, mandate emissions monitoring and mitigation. They have since prevented much disability and suffering, but the EPA rules do nothing to undo the damage done to railroad employees’ lungs and bodies in earlier decades.
The health dangers of diesel exhaust have become increasingly well-recognized over the past 30 years. Even when smoke is not visible, emissions from diesel-fueled locomotives contain fine particles that directly damage the delicate tissues of the mouth, windpipe and lungs. The chemical components of diesel fumes include numerous carcinogens. Cases like the one reported here illustrate that railroads that did not take diesel exhaust risks seriously can be held accountable for sickening and killing their employees.