Railroads Could be Culpable in Mesothelioma Suits

On June 3, Burlington Northern Santa Fe (BNSF) announced the demolition of employer-built sleeping rooms in four buildings in Laurel, Montana.

The buildings, erected in 1972 and located on East Main Street, are already being sealed off and the remediation firm, Rapid City, S. Dakota's Horsely Specialties, has posted asbestos warning signs on the doors advising the area is a risk for developing cancer and lung disease and is accessible only to authorized personnel.

On the Friday before Memorial Day, workers had already begun dismantling the roof of one building, with the perimeter ringed in yellow plastic warning tape to prevent incursion by pedestrians or the merely curious.

According to John Podolinsky with the Montana State Asbestos Removal and Disposal Program, the asbestos removal and remediation permit issued to BNSF specifies two buildings believed to contain asbestos-laden sheet vinyl flooring, shingles and insulation - hazards confirmed by BNSF spokesman Gus Melonas. Both individuals expressed their confidence in the asbestos-remediation expertise of Horsley Specialties.

Even so, this rigidly correct remediation process is something of a surprise, given the fact that many railroads in the past either failed to recognize the dangers of asbestos, or failed to acknowledge them, and many have been successfully sued by workers (and former workers) claiming the railroad was negligent in advising employees about the hazards of asbestos and equally negligent in providing for their safety via appropriate masks, breathing equipment, and protective clothing.

Suits settled or in progress for this negligent attitude on the part of railroads include Victoria Martinez of Colorado, who claims she was exposed to asbestos through her husband, who worked for a railroad and brought the mineral home on clothing. Another victim, Elaine McCann, was exposed via both her father (a railroad worker) and her husband, a mechanic. A further case dating from 2003 has Freeman Ayers suing Norfolk & Western Railway Co., where he worked as a brakeman for over a decade and was exposed to asbestos commonly used in train wheels and brake assemblies.

Ayers was one of a group of six employees who sued the railroad and won on the grounds that mental anguish (i.e., the potential for developing asbestos-related diseases) was sufficient grounds for seeking compensation from an employer.

The initial ruling, which disputed mental anguish, was later reversed by the Supreme Court, with Justice Ruth Bader Ginsberg writing the majority opinion, that mental anguish was indeed just cause under the Federal Employers Liability Act, or FELA. A jury awarded Ayers almost a million dollars.

The list of plaintiffs goes on: Doyle Johnson ($1.2 million in compensation), Carl Butler ($1 million), John T. Shirley ($1 million), James Spangler ($900,000), and Clifford Vance ($800,000).

In each case, railroad lawyers pointed to the plaintiffs' use of cigarettes as exonerating the railroad for its exposing employees to asbestos. In every case, juries disagreed, awarding record sums on the basis that "genuine and serious fears" over the possibility of developing asbestos-related cancers were a legitimate legal grievance.

Perhaps the most famous award in a railroad case came with Thurston Hensley, who worked for CSX Transportation, Inc., for a number of years and subsequently sued the company both for real injuries as well as mental anguish. The jury awarded him $5 million.

In 2008, 11 lawsuits were filed against the former Illinois Central Railroad alone. The number merely adds to what a local newspaper cites as the "dozens" that have been filed in recent years. The charges, by Memphis-based employees, all revolve around FELA and the Federal Locomotive Boiler Inspection Act of 1911, and charge negligence on the part of the railroad, which was bought by Canadian National Railway in 1998. According to the newspaper, nearly 100 lawsuits have been filed locally that make the same allegation.

Railroad work is, and always has been, considered a high risk occupation relative to asbestos exposure and disease. The dangers began with the era of the steam locomotive, in 1829, and asbestos use only increased over the decades because it was the single most effective solution to the problems associated with heat buildup and temperature variations in boilers, fireboxes, and steam piping.

Asbestos even went into insulating boxcars and cabooses, and when the diesel engine came on the scene in the early 1900s, the trend continued.

It is not surprising that so many railroads are, or have been, on the hook for asbestos-related damages by present and former employees. However, the actions of BNSF in Montana may signal a new era of responsibility toward railroad workers and asbestos in general. If so, it couldn't have happened at a more auspicious time, now that the not-guilty verdict in the W.R. Grace trial has many Americans up-in-arms about corporate negligence and disregard.

Sources: Memphis Daily News, Madison Record, The Laural Outlook, On The Docket

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