What Does a Railroad Worker Need to Prove in a Mesothelioma or  Asbestos Lung Cancer Claim Against the Railroad?

Mesothelioma is a rare and aggressive type of cancer that develops in the tissues lining a person’s lungs. It is solely caused by exposure to microscopic airborne asbestos fibers and is wholly preventable through workplace safety to control or eliminate asbestos-containing products.   Sadly, railroads such as CSX, Norfolk Southern, and many others continued using asbestos-insulated cars and engines for decades and only removed the asbestos due to the growing threat of lawsuits brought by conductors, engineers, and track maintenance workers who were dying from exposure, and the exposure itself can occur decades before the cancer appears in a worker.  The latency period before asbestos cancer develops can be 25 or even 40 years after exposure occurs.  There is no complete cure for mesothelioma cancer, although other forms of cancer can have successful outcomes due to medical advances.  

This article also discusses lung cancer caused by asbestos-which can have many causes besides asbestos exposure.  Keep in mind, that asbestos-induced lung cancer has multiple causes and can be remedied, unlike mesothelioma (which is incurable and strikes the outer lining of the lung, the portions of lung tissue within the lobes).  Because of the asbestos-containing products and the airborne asbestos fibers being released, even between 2016 and 2020, 350 deaths and 442 new cases of mesothelioma occurred in Virginia alone, on top of the several thousand cases of lung cancer and asbestosis cases diagnosed within that same five-year period. Asbestosis is simply permanent scarring of the lungs caused by asbestos, but it can bring on permanent disability and labored breathing. Connecting the dots between a mesothelioma diagnosis and inhaling asbestos fibers during the course of your railroad employment is just one of many steps toward holding your former railroad employer liable for your illness. A successful wrongful death or personal injury claim is always brought against a rail employer under the Federal Employers Liability Act (FELA) and this federal statute generally requires proving that the rail company was aware of the dangers of asbestos, was negligent in eliminating or mitigating those dangers, and any lawsuit must be filed within the FELA statute of limitations. If you are a railroad worker who was diagnosed with mesothelioma or asbestos-induced lung cancer, contact the experienced Virginia Beach FELA attorneys at Shapiro, Washburn & Sharp as soon as possible. We will be happy to discuss your claim in a free consultation and we have successfully settled or won verdicts in these types of complicated FELA cancer cases.

How Are Railway Workers Exposed to Asbestos?

Railroads were, at one point, the backbone of our nation’s economy, making it possible for an agrarian society to transform into an industrial one. Essential supplies such as building materials, food, and fuel were transported first by steam engines, and then by diesel engines, to both rural and urban communities throughout the United States, allowing them to thrive. The accelerated pace of America’s Industrial Revolution was due in no small part to the dedication and labor of railway workers during the 19th and 20th centuries.    

Although almost never legally used today in products due to stringent OSHA and EPA laws, asbestos may still be present in older railroad engines, cars, or older rail yard buildings. This is because nearly every steam train manufacturer used it as insulation for boilers, pipes, and fireboxes. Boxcars, cabooses, and even train cars were often lined with asbestos insulation. When diesel engines became dominant in the 1960s, these engines had many types of asbestos-containing insulating materials.

Other materials containing asbestos include:

  • Sealing cement
  • Gaskets
  • Asbestos Rope
  • Miscellaneous insulating materials with asbestos
  • Brake linings and clutches
  • Water pipe insulation on engines

Workers whose jobs required them to be around and in steam trains or inside of repair shops were exposed to damaging asbestos dust fibers, and in some cases, worked directly with the harmful material. Asbestos fibers could even be seen floating in the air in railroad repair shops, and employees were seldom equipped with any respiratory protection.

In many instances, railroad workers inadvertently brought tiny asbestos fibers home with them, on their car seats, in their hair, or on their work clothes, unwittingly endangering their own families. 

Researchers have suggested that machinists and other railroad workers were most frequently exposed to the chrysotile form of asbestos, which according to the World Health Organization, is a recognized carcinogen that can cause cancers of the ovaries, larynx, and lungs, as well as mesothelioma and asbestosis. However, every form of mined asbestos causes cancers including mesothelioma, and no “safe level” of exposure is known to medical science. It simply must be safely removed by asbestos contractors who must follow extensive OSHA regulations during such processes. When the nation’s railroads began removing asbestos over the last several decades at their rail yards (using OSHA-approved methods) the work was often shrouded in secrecy so as not to generate any more claims from workers who might discover the exposures they had for decades before.

Compensation for Railroad Workers Under FELA

Although historically, conductors, engineers, and track maintenance railway workers have been exposed to a litany of on-the-job hazards, this does not excuse rail companies from their duty to provide a reasonably safe working environment as required by the FELA. When a company’s breach of this duty results in worker illness or injury, the railroad may be held liable, often by a jury. The mere fact that a worker is aware the railroad industry is dangerous is not a defense in a FELA case.

The Federal Employers Liability Act summarizes the liability of railroads for worker illness and injuries caused by employer negligence. Workers’ comp is not available to railway employees. Why, you may wonder? It’s because when states began enacting workers’ compensation laws, railroading was the most dangerous interstate job in the USA. Congress refused to “insulate” railroad liability to their workforce as Congress believed providing workers comp to railroads would lead to worse safety measures, so the FELA is exclusive to railroad workers who may prove employer negligence and get a jury trial free from arbitrary monetary “caps” on damages. So, the FELA is better than workers comp and is the sole remedy for workers pursuing financial compensation from railroad employers for occupational injuries or illnesses. State worker’s compensation is “no-fault” meaning if a worker is hurt on the job, they can get limited compensation without any proof their employer knew of an unsafe condition. A major difference between the FELA and workers comp is railroad workers must prove the employer was negligent but if they do, they can recover past and future lost earnings, past/future medical expenses, and recovery for impairment, pain and suffering set by the jury. In contrast, state workers’ compensation claimants may receive partial wage loss, and medical benefits, but are prohibited from suing their employers for intangible damages such as decreased quality of life, and pain and suffering. 

For example, in one of our FELA cases, the estate of a retired railroad worker who passed away after a five-year battle with lung cancer won an $8.6 million wrongful death jury verdict from CSX Transportation for occupational exposures to radiation, diesel fumes, and asbestos. In this case, we were able to show:

  • The company was aware of dangerous exposures to its employees
  • The company failed to take the necessary precautions to ensure the safety of its workers
  • The company failed to warn its employees of the danger
  • As a result, our client/railroad worker became ill, contracted lung cancer, and died as a result

The real tragedy is that since the symptoms of mesothelioma can take as long as 40 years after exposure to manifest, workers are often not diagnosed until after they retire; after they pour a lifetime of dedication and energy into a job and come to learn their employer couldn’t even be bothered to take their health and safety seriously. Fortunately, the federal law of FELA claims recognizes the discovery rule on the statute of limitations, meaning the limitation statute begins to run only when the worker knew or should have known their disease was caused at least in part by their railroad work exposures. In cases of asbestos cancers, that can occur even decades after their retirement when the worker believed they were totally healthy.

Bringing an Asbestos Claim Against a Railroad

In a FELA lawsuit, the plaintiff can be anyone who was employed in any capacity by a railroad. Our wrongful death and personal injury lawyers have represented conductors, engineers, clerks, brakemen, trackmen, and firemen. Family members who develop mesothelioma from asbestos fibers carried home on workers’ hair or clothing are not entitled to sue under the FELA but can still sue a railroad under regular negligence laws instead.

To achieve a successful outcome on a mesothelioma claim against a rail company, you will need to prove that you were exposed to asbestos in a company facility, in a rail yard, or on engines or train cars. The company will be found liable only if the asbestos exposure was due to some form of negligence, such as failing to provide proper supervision or training, knowingly concealing asbestos dangers despite employer knowledge of the dangers, or disregarding state or federal safety statutes.

The “discovery rule” often allows claims decades after leaving the railroad. 

Medical Evidence

Another vital element in proving that your railroad job was the cause of your mesothelioma is providing medical evidence that you have the disease. Once you have been formally diagnosed, a connection between your condition and your occupation can be established and we often locate highly qualified expert doctors or professionals to explain how and when a worker handled asbestos, even in cases where the railroad hid the knowledge of airbornes microscopic exposures and concealed the information from their workers.

Strong medical evidence that supports your asbestos cancer claim can include: 

  • Pulmonary function (breathing) tests that indicate poor performance
  • Chest X-rays that show scars or tumors on your lungs 
  • Testimony from medical professionals and your treating physician about your history of exposure 
  • In some situations, blood tests and pathology reports may be relevant

Cigarette Smoking Does NOT Rule Out Asbestos Was the Culprit

Many former railroad workers incorrectly believe that a history of cigarette smoking wipes out a FELA claim. This is not true. Long-standing medical research has proved that mesothelioma is not caused by cigarettes at all, but is definitely caused by asbestos fibers, and even short exposures. Just a few days of exposure is believed to be enough. However, cigarette smoking is a known cause of lung cancer, so if a rail worker smoked and develops lung cancer, our lawyers must prove that asbestos contributed to the cause, even if cigarettes did too. The point here is that cigarette smoke is carcinogenic, but asbestos is carcinogenic too, so our attorneys review each and every case on its own facts to decide if we can help.

FELA Statute of Limitations

As previously mentioned, mesothelioma and lung cancer symptoms can remain dormant until 20 to 40 years after exposure to invisible, airborne asbestos fibers. Fortunately, the statute of limitations does not take this time into account when filing a FELA claim. The three-year statute does not begin when a worker becomes disabled, retires, or otherwise leaves their job. It begins when a worker is diagnosed with mesothelioma or cancer caused by railroad work or at such a time that their symptoms become so debilitating that a reasonable worker would know their symptoms were caused by occupational asbestos exposures.

Contact a FELA Attorney

By partnering with a Virginia Beach FELA attorney from Shapiro, Washburn & Sharp, you will be working with a law firm with decades of experience in FELA claims, we have successfully resolved hundreds of FELA claims for workers all over the eastern USA.  Attorney Rick Shapiro co-authored a major treatise on railroad health and safety, still maintained and available in nearly all the nation’s law libraries. Our experienced FELA law firm can perform a full investigation, and collect records, statements, and other evidence that supports your claim and maximizes your damages. Using these methods, we were able to obtain a $5 million wrongful death award which benefitted the family of a Norfolk Southern employee railroad worker who died from asbestosis caused by on-the-job exposure. 

If you are a railroad worker who has been diagnosed with mesothelioma or any other asbestos-induced occupational cancer or illness, or you lost a loved one to a railroad-related asbestos illness, call our nationally recognized FELA attorneys at (833) 997-1774 or fill out our simple contact form to schedule your free consultation. Although our offices are located in Virginia Beach, Norfolk, Hampton, and Portsmouth, our law firm represents injured and deceased railroad workers across the eastern United States.