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Why Railroad Corporation’s Standard Defenses in FELA Lawsuits Involving Cancer Should Fail

This article is adapted from a presentation that firm co-founder Richard N. Shapiro made at the American Association for Justice Convention in Vancouver, British Columbia, during July 2010. The information on how railroad corporations put workers at risk for developing cancer and how the companies fight lawsuits brought by individuals who suffer from occupational illnesses such as mesothelioma remains relevant.

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Former railroad workers are at elevated risk for developing cancers of the lung, colon, bladder, brain and blood. This troubling reality has been seen among engineers, conductors, switchmen, carmen, track maintenance technicians and machinists. Even office staff such as clerks have been diagnosed with cancer.

The dangers arise from on-the-job exposures to toxic substances such as asbestos, diesel exhaust containing numerous carcinogens, and radioactive materials. A diagnosis of a work-related cancer gives a former railroader the right to file claims under the Federal Employers Liability Act, or FELA, for the payment of medical expenses and other forms of compensation.

Rather than settle, railroad corporations typically contest FELA claims related to occupational illnesses. A common defense is that a FELA claimant cannot identify a single instance of unhealthy exposure. Corporate defense attorneys will also point to the lack of official test results showing the presence of toxins and cancer-causing substances. Some defense teams also purse an argument that the ill former employee cannot name a specific manufacturer or supplier of parts and equipment that incorporated asbestos or other potentially harmful materials.

Courts have consistently batted down these kinds of defenses. For instance, strong precedents exist to affirm that a FELA claimant has no duty to produce the results of safety tests that were never conducted. Similarly, courts recognize that cancers and other occupational illnesses almost always result from repeated or prolonged exposures rather than one-time events.

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The challenge for FELA claimants and their railroad illness lawyers is to show that the corporations knew about health risks to employees and failed to mitigate those risks.

Asbestos Exposures Were Common for Decades

Asbestos has long been known to have a causal association with cancers of the lungs, bladder and colon. The strongest link between breathing in asbestos fibers and developing a potentially fatal disease exists for mesothelioma, which primarily affects the outer lining of the lungs. Asbestos fibers easily become airborne in high concentrations, especially when a person does something like operate a locomotive with worn brakes or replaces those worn brakes.

The individual fibers are far tinier than a single human hair, making them invisible to the naked eye. Corporate records prove that railroad executives knew these facts as early as the 1930s but did practically nothing to minimize the use of asbestos in train components and office building insulation until the 1980s.

Diesel Fumes Are linked to Breathing Disorders

A growing body of medical literature links regularly breathing in diesel fumes with the onset or worsening of conditions such as asthma, reactive airways disease syndrome and chronic obstructive pulmonary disease. This dawning recognition joins the understanding that the exhaust from diesel engines is packed with carcinogens.

During the administration of President George W. Bush, the Environmental Protection Agency issued regulations that required cleaner diesel locomotives. As railroad corporation come into compliance, engineers and conductors continue operating in conditions that raise their risks for breathing disorders.

One reason for this has been that railroads resisted calls for equipping crew cabs with air conditioning systems. Exhaust stacks streamed particulates directly into the windows engineers and conductors opened to find relief from the high temperatures in their workspaces.

Faced with FELA claims related to diesel fume exposures, railroad corporations typically argue that no evidence exists to show that exposures were sustained or concentrated enough to damage the former employee’s airway. Courts have consequently ruled that a worker does not need to prove an exact measurement of diesel fume exposure. Additionally, a worker can point to multiple sources of on-the-job exposures to diesel fumes.

Introducing expert testimony from an industrial hygienist helps the FELA claimant’s case. The occupational safety specialist can render opinions on whether a workplace complied with applicable standards, as well as on what noncompliance could mean for workers.

It is also essential to present diagnoses and determinations from medical doctors regarding the extent to which diesel fume exposures contributed to causing the worker’s illness. The more clearly that diesels fumes are shown to be an independent factor, the better for securing a settlement or winning a jury award.

Radiation as a Risk Factor

I've represented retired railroad workers and family members of deceased retirees in cases involving claims that blood and brain cancers resulted from radiation exposures. While few rail employees encounter radioactive materials, trains are actually the principal means of transporting radioactive waste and the radioactive components of nuclear weapons. This situation puts employees of CSX who service the U.S. Department of Energy’s Oak Ridge facility at particular risk for unhealthy radiation exposures and the development of life-threatening conditions such as leukemia and myelodysplastic disorders.

Predictably, a defendant railroad corporation has argued that no contemporaneous corporate or independent reports document excessive radiation readings. The counter to this was, again, that tests that were never performed led to no reports being written. Relying on other types of documentation such as cargo manifests and route logs, as well as reports from industrial hygienists served the FELA claimants well.

Cancer Victims’ Pain and Suffering Cannot Be Ignored

When railroad defense attorneys recognize that they cannot deny the link between on-the-job exposures and a former employee’s cancer, the corporation’s legal representatives inevitably downplay the physical, emotional and psychological suffering of the FELA claimant. One of the most solemn duties of a railroad occupational illness lawyer is to develop this part of the case, to demonstrate how the diagnosis, treatment and stress of cancer inflicts tolls on the patient and their family that are, in many ways, comparable to being placed in prison with no chance of parole.

Pain and suffering are fully compensable under a FELA lawsuit, and there is no cap on the amount a jury can award for noneconomic damages. Arriving at a fair sum requires the FELA lawyer to interview the client, the client’s relatives, and the client’s friends to develop a sense of just what the work-related cancer took from everyone’s lives. Consultations with oncologists and chemotherapy techs provide snapshots of the cancer patient’s physical suffering.

My work advising and representing families that have lived through this devastation for months or years has taught me much about the human costs of cancers developed while employed by a negligent and uncaring railroad. What motivates me more than anything else is the fact that occupational illnesses would not afflict employees if companies simply adhered to industrial safety rules and standards. Each railroad cancer lawsuit is an opportunity to emphasize this basic, lifesaving lesson and to hold a corporation accountable for never seeming to learn it. This may not save the worker with cancer, but it might spare others.

EJL

 

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