I was privileged to be an invited presenter at the National American Association for Justice Convention in Vancouver just outside the United States border. I was invited to talk about occupational cancers (including mesothelioma) which are seen in railroad workers and this article discusses what I have learned about how railroad companies fight lawsuits by railroad workers that allege contraction of occupational cancers.
What Types of Cancers are Striking Railroad Workers?
First, asbestos exposure is a major cause of a variety of cancers in railroad workers such as engineers, conductors, switchman, carman, track maintenance, machinists, and has even been seen in clerk type workers. Asbestos has a well-known causal association with lung cancer, mesothelioma (a horrible terminal cancer that first strikes the lining outside the lung), bladder or colon cancers, and a variety of other human cancers. Toxic asbestos fibers are far tinier than a single human hair thickness and are virtually invisible to the normal eye unless in a ridiculously abundant amount in the air. Because a toxic exposure to asbestos can be invisible, it is a common railroad company tactic to fight lawsuits by any type of worker with the argument that the worker was not exposed to a sufficient amount of asbestos to cause the cancer in question.
Typically, despite the fact that railroad companies knew about health hazards of exposure to asbestos since the 1930's, the railroad companies never inspected or tested asbestos levels inside of train locomotive engines, yard offices, or reporting places of the railroad workers. Railroads often argue that since the worker can point to no workplace test by the railroad or a government organization, that worker cannot show a significant exposure to asbestos fibers. Fortunately, many court cases have ruled that the lack of an actual formal test for asbestos is not a necessary foundation to prove a lawsuit for asbestos causing cancer such as mesothelioma in a railroad worker. These are some of the more prominent defenses but another is that the railroad worker cannot identify the name of the manufacturer or supplier of a particular asbestos product that they think they may have been exposed to at work. As experienced railroad injury attorneys we have located innumerable railroad industry documents and other asbestos injury documents which prove asbestos containing insulating materials were part of a variety of types of railroad equipment including insulation at railroad yard offices or reporting places of workers.
Diesel Fume Exposures
There is an increasing body of medical and scientific knowledge proving that diesel fumes are a major occupational health hazard associated with permanent breathing disorders (occupational asthma, reactive airways disease syndrome (RADS) asthma like symptoms) and it is well known that diesel fumes include dozens of known occupational carcinogens.
As a matter of fact, even under the Bush administration, the Environmental Protection Agency (EPA) enacted regulations that require far cleaner diesel engines including railroad diesel locomotives in the coming years. As part of the EPA study, the EPA published findings that showed that prolonged exposure to diesel fumes is connected to increased lung cancers. These studies about lung cancers and diesel fumes are essentially unrebutted, meaning that there is a clearer higher association of lung cancer.
Of course, railroad engineers and conductors in the U.S. are exposed to as much diesel fumes as any occupation, and likely even more so than, say, truck drivers. One of the reasons railroad workers are so over exposed to diesel fumes is that for decades the railroads did not have air conditioning systems in locomotive engines, compared to most trucks or buses having good pressurized air conditioning. Moreover, exhaust stacks on older locomotive engines were placed in a position on the roof of diesel freight engines where because of locomotive engines and yards often moving in forward and reverse with windows open, prolonged exposure to levels of diesel fumes was common.
The railroad companies defend the worker lawsuits by arguing the same types of defenses that exist in asbestos cases - the worker must not have been exposed to a sufficient amount of diesel fumes day in and day out, and there were no formal workplace tests that showed the exact level of cancer causing agents or carcinogens in the air. Again, courts have ruled that the worker need not prove an exact measurement of diesel fume exposure and a worker can prove over exposure in a variety of ways by producing appropriate evidence.
For example, an experienced railroad injury attorney will often have an industrial hygiene (industrial safety) occupational professional review materials and provide opinions about whether the railroad workplace complied with industry and railroad standards with regard to diesel fumes. An experienced railroad injury attorney will provide information to the railroad worker's medical doctors and seek a formal medical opinion about whether diesel fumes was one underlying cause of not only lung cancer but of any particular lung condition that may be associated with over exposure to diesel fumes.
About Exposure to Radioactive Substances or Radiation
I've represented at least two railroad workers, or family members, who claim either cancer or life threatening blood disorders as a result of radiation exposure. I know radiation is rarer in the railroad industry. However, railroads were one of the prime transporters of radioactive waste and radioactive components for nuclear weapons, there are more and more cases of cancers associated with radioactive substances. Take for example, Oak Ridge, Tennessee (TN) area. CSX and its earlier Louisville and Nashville Railroad were the exclusive railroad handling certain kinds of radioactive waste and scrap out of the Oak Ridge National Laboratories and the railroad cargo often moved through Knoxville yards now owned by CSX. It is well known that radioactive substances can cause all sorts of cancers including lung cancer, brain cancer and virtually any other type of cancer.
Excessive radiation causes cell change which can, years later, become a cancer of any type in the human body. Again, the railroads argue that there was not excessive radiation exposure to cause cancer in whatever worker brings a suit against the railroad. Again, it requires the railroad worker attorney to obtain a series of industrial safety professionals and medical doctor's opinions to prove that a lung cancer, or other sort of cancer, was caused at least in part by radiation exposure at the railroad yards or on the railroad equipment involved in the claim.
Radiation exposure is known to be associated with leukemia and a blood disorder that is like a cancer called MDS. Of course, there must be prolonged or obvious exposure to radioactive substances in order for any professional to make an association between these radioactive substances and a blood disorder or cancer.
The Devastating Affect of a Permanent Blood Disorder or Cancer
The railroad companies, in defending any railroad worker lawsuit involving a cancer attempt to minimize in every way possible the intangible psychological or mental affect on the railroad worker. This means that while the railroad in no way can ignore that cancers are devastating, the railroad will attempt to minimize the pain, mental anguish or stress, on the worker and the family members. In railroad worker lawsuits against the big railroad companies, pain and suffering of the worker is fully compensable and a jury can award a fair sum for such damages. And, there is no cap or ceiling on what a jury may award in compensation for the psychological or mental anguish. This means that a railroad injury attorney representing a railroad worker must interview and develop this important and intangible evidence by interviewing chemotherapy nurses, hospital staff associated with administering radiation to a patient, oncologists and any other medical professional who treat cancer.
The effect of the diagnosis, treatment for cancer, and carrying the psychological burden of a cancer diagnosis are tremendous. It's hard to imagine any worse psychological trauma. Imagine spending your life working for a company and then discover your career may have contributed to your development of a life-threatening disease. It's awful for the victim.
One of the solemn tasks of a railroad injury attorney is to develop this part of the cancer case which has no quantifiable dollar value, but is probably the equivalent of being placed in prison with no chance of parole, at least with regard to advanced stage cancers. I have personally worked with families that have lived through this devastation for months and years and feel that I have learned so much about the human toll that these cancers extract. What motivates me more than anything else is the simple thought that these types of occupational cancers are completely and wholly preventable if railroad companies merely follow good industrial safety in their workplaces. Every railroad occupational cancer lawsuit is an opportunity to emphasize to railroads that failure to vigilantly protect workers against known carcinogens will extract a major financial penalty against their corporate bank account-which gets their attention. True, it may not save the worker with cancer, but it may continue to save lives of present and future railroad workers.