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FELA Railroad Lawyer

Long Term Railroad Diesel Exhaust Fume Exposure Linked to Asthma Lung Disease and Lung Cancers

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Editor: Rick Shapiro
Profession: FELA Attorney

March 27, 2008

By Rick Shapiro

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Category: FELA News

By: Rick Shapiro, Attorney
Shapiro, Cooper, Lewis & Appleton Law Firm, www.HSinjurylaw.com

There is a growing body of evidence that long-term railroad worker exposure to diesel exhaust fumes can lead to a condition called "diesel asthma" a form of COPD, and additional evidence shows an increased incidence of lung cancer rates among railroad workers/employees. Railroad worker injury claims against their employer-railroads fall under a federal act called the Federal Employers Liability Act. Diesel exhaust, also called diesel smoke or diesel fumes is a chemical mixture containing literally hundreds of compounds, including sulfur dioxide, nitrogen oxides, poly-systematic hydrocarbons, benzene, and many other compounds. Many of these individual particulates are known carcinogens, and have been known cancer-causing agents for over 30 years. In the railroad industry, diesel fuel runs nearly all locomotives, and has since the 1960's. When the diesel fuel is combusted, the chemicals change. They are changed into a gaseous state, and they are carried through the air by what are known as particulates. Particulates are the part of diesel exhaust fumes and diesel smoke that can be seen. But some particulates are so small that they cannot be seen and some of these get into the tiniest part of the lung tissue, deep in the lungs. Some of these dangerous chemicals can damage, inflame and destroy lung tissue. Also, the irritation over time can cause "hypersensitivity" disorders.
According to a scholarly 2001 American Cancer Society article authored by Doctors Howard Frumkin and Michael Thun:
"While diesel engines can operate with less highly refined fuel and consume less fuel per unit of work performed, they typically emit more particulate mass than catalytically equipped gasoline engines....The exhaust from diesel engines consists of both gas and particulate fractions, each of which is composed of thousands of different substances. The gas portion of diesel exhaust contains primarily carbon dioxide, carbon monoxide, nitric oxide, nitrogen dioxide, sulfur oxides, and hydrocarbons, including polycyclic aromatic hydrocarbons (PAHs). PAHs are produced as pyrolytic products during the combustion of any fossil fuel, including diesel fuel."
There are a number of railroad worker jobs that can expose workers to repeated and continuous diesel fume exposure, including brakeman, switchman, engineer, conductor, diesel engine and locomotive repair shop workers and carman/car repair workers, to name the most obvious. This type of work, over many years, can lead to various types of lung diseases and lung disorders, including aggravation to chronic obstructive pulmonary disease conditions (COPD), aggravated "diesel asthma", and other medical studies have proven that long term exposure has been linked to increased lung cancer rates in railroad workers.
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Properly functioning railroad locomotive engines should deposit all diesel exhaust fumes outside an engine cab, but over many years it has been shown that the engine exhaust stack location has not prevented the fumes from entering a large number of engine cabs--based on methods of locomotive use and based on exhaust stack height or location. Many types of older yard and switching engines actually were run in the long hood forward orientation. In many yard and switching engines, this meant that the diesel exhaust stack was in a position forward of the engineer cab. As the engine moved forward, this would stream the diesel fumes back toward the open windows of the engine cab.
In September 2002, the EPA confirmed that "long-term exposure to diesel engine exhaust (DE) in the air is linked to lung cancer. The human evidence from occupational studies is considered strongly supportive of a finding that diesel exhaust exposure is causally associated with lung cancer, though the evidence is less than that needed to definitively conclude that diesel exhaust (as a whole) is carcinogenic to humans," the EPA report said. "Overall, the evidence for a potential cancer hazard to humans resulting from chronic inhalation exposure to [diesel emissions] is persuasive," the report said.
The National Institute for Occupational Safety and Health (NIOSH) recommends that "whole diesel exhaust be regarded as a potential occupational carcinogen as defined in the Cancer Policy of the Occupational Safety and Health Administration (OSHA.)
In 1955, a railroad industry attorney gave a formal presentation to the major railroad claims representatives. The attorney, Robert Straub, was employed at the time with the Chesapeake and Ohio Railways Company, which was at a later date folded into CSX. The presentation was entitled "potential dangers from exposure to diesel locomotive exhaust." Referring to the gases that made up diesel exhaust, Straub stated "it appears that continuous or prolonged exposure to atmospheres containing any of the above mentioned gasses in excess of the established maximum could initiate harmful results." Later, in 1965, the nation's railroad medical doctors had their annual seminar, and the seminar discussions were transcribed. The annual meeting was moderated by Dr. Kaplan, a Baltimore in Ohio Railway Co. staff physician (this railroad was later folded into CSX). The dangers of diesel fumes and the potential association of diesel fumes with cancer was a topic of discussion at the annual meeting.
In March, 2008, the EPA announced final regulations would take effect relating to railroad locomotive diesel exhaust emissions, explaining the regulations as follows:
Locomotive and marine diesel engines contribute significantly to air pollution in many of our nation's cities and towns. EPA anticipates that over the next few decades, these engines may account for an even greater share of overall emissions as other emission control programs take effect for cars and trucks and other nonroad emissions sources.
In 1999, a Georgia appeals court reported on the jury verdict in favor of NS worker Baker against Norfolk Southern Railway Company. Baker had worked as a railroad locomotive engineer for 18 years when he was stricken with naso-pharyngeal cancer (a form of cancer inside the mouth) and he later died. His widow alleged his fatal cancer was caused by prolonged exposure to diesel exhaust from Norfolk Southern's diesel powered locomotives, and that Norfolk Southern failed to provide a safe place to work in violation of the Federal employers liability act (" FELA") and he also claimed that the railroad violated the Locomotive Inspection Act, because essentially diesel exhaust fumes were products of combustion and were supposed to be released only outside of the locomotive cab pursuant to 49 CFR 229.43 (a), one regulation under the Locomotive Inspection Act. The appeal involved a verdict in excess of $5 million from the jury, which concluded that Baker was exposed to high levels of diesel exhaust inside the cab, up to six days a week, four to 12 hours a day and that diesel exhaust was the cause of his cancer. The appeal Court in Georgia agreed that the jury had properly decided the case, but did find a legal error in a jury instruction relating to wrongful death damages, and the jury decision was otherwise upheld on the railroad's liability for diesel exhaust violations.
In 2003, an Ohio appeal court affirmed a jury verdict in favor of a Norfolk Southern fireman/engineer by the name of Mr. Cutlip, who alleged diesel exhaust fume disease against Norfolk Southern, his employer. Railroad worker Cutlip offered evidence that the doors of the locomotive cabs were ill fitting and did not have a proper seal, and additionally that there were holes in the engine cab floors that typically allowed diesel fumes inside. Cutlip explained that workers regularly applied various types of tape in an effort to create a seal, but this was not always successful. Cutlip also talked about the long hood forward problem on many locomotives used by Norfolk Southern at the time. Cutlip had also smoked during a portion of his lifetime, and had quit in 1990, 7-8 years before the jury trial. His lung doctor stated that a very negligible part of his lung problems were caused by cigarette smoking. One of the doctors testified that smoking can cause emphysema and chronic bronchitis, but that smoking does not cause asthma. After a long and thorough analysis of the legal principles, the appeals court in Ohio affirmed the jury's verdict of $625,000 in favor of Mr. Cutlip.
There have been dozens upon dozens of railroad worker FELA claims filed since 1995 asserting adverse lung disorders caused by diesel exhaust fumes, with many settlements, and other claims winding their way through the nation's courts.
As information grows about the harmful and carcinogenic agents hitching a ride on the particulates that comprise diesel exhaust fumes, workers and physicians may begin taking a much closer look at the harmful impact of diesel fumes on COPD and decreased lung function .
Railroad workers with prolonged diesel exhaust fume exposure (such as over 20 years) and a diagnosis of lung cancer and/or chronic obstructive pulmonary disease (COPD), coupled with medical confirmation of abnormal pulmonary function/breathing tests, should seek information from one of our lawyers on whether their condition could have been caused by diesel exhaust fume exposure.


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