Over the last 30 years, Doran & Murphy has represented many railroad workers in cancer cases under the Federal Employers Liability Act, or FELA. These workers held many different railroad jobs (“crafts”), including engineers, firemen, conductors, brakemen, carmen, trackmen, machine operators, machinists, mechanics, pipefitters, electricians, welders, laborers, signal maintainers, bridge and building workers, yardmasters and clerks. All of these railroad workers suffered from cancer which was caused or contributed to by their railroad exposures to hazardous dusts and fumes. Most of these cancer cases have involved exposures to asbestos, diesel exhaust or silica, but some cases were related to other lesser-known exposures to cancer causing substances, including creosote, benzene, solvents/degreasers and welding fumes. Published medical studies have linked these different exposures to various types of cancer: mesothelioma, lung, throat, laryngeal, esophageal, oropharyngeal, nasopharyngeal, colon, intestinal, kidney, stomach, and bladder, as well as blood cancers such as leukemia and non-Hodgkin lymphoma.
The railroads’ safety response to these potentially dangerous exposures as a general rule can be summed up in the old saying, “too little, too late.” Other blogs have discussed that railroad medical departments attended annual meetings sponsored by the Association of American Railroads, or AAR, and openly discussed that asbestos could cause cancer at least as far back as 1958 and that diesel exhaust contained cancer-causing substances back in 1955. The incredible fact is that most railroads did not take adequate action to protect workers despite knowing that these substances, which were regularly found in the railroad workplace, could cause cancer.
In multiple cancer cases brought by current or former Norfolk Southern Railway (NS) rail workers, the railroad has denied any awareness of dangerous working conditions. In effect, NS has ignored that its own medical department personnel were part of the AAR meetings back in the 1950s at which these cancer hazards were discussed. Similarly, we have uncovered evidence that there was a prior asbestos lawsuit filed against NS as far back as 1951 and that railroad medical directors were discussing increasing cancer claims back in 1965 according to AAR meeting minutes: “The pulmonary disease project is assuming greater importance each year, with increasing claims for pulmonary fibrosis, pulmonary emphysema, and carcinoma of the lung.”
So what did NS do with this knowledge about these cancer hazards back in the 1950s? Nothing! Our office has been provided with various safety rule and operating rule books in effect at NS and their predecessor railroads (i.e.- Norfolk & Western, Southern Railway, Wabash, Nickel Plate and others) going back decades and not one of these rule books warns workers about the hazards of cancer-causing substances!
Despite the overwhelming evidence to the contrary, NS has issued sworn statements in cancer lawsuits that prior to 1983, it “was not aware that its employees were at risk for developing asbestos-related disease.” NS takes the position that it was not until 1983 that published studies came out linking railroad work to cancer and therefore it did not know any better. In effect, NS choose to ignore what they knew from the AAR meetings and its own asbestos claims experience as far back as 1951.
NS’s legal argument is that upon supposedly first learning of these asbestos hazards in 1983, it did the responsible thing and warned current and former employees so these workers could talk to their doctors and get medically screened for asbestos- related disease. In support of its far-fetched position, NS points to a 1/4 page advertisement published in a company magazine on a single occasion in September 1983; this advertisement doesn’t even mention the word “cancer,” instead simply advising employees that asbestos exposure “can contribute to respiratory ailments.” NS ignores the fact many employees didn’t even read this magazine! Similarly, NS choose to omit any mention of any cancer hazards related to occupational exposures in any of its safety rule books and training. Importantly, railroad employees also undergo periodic physicals with railroad medical department personnel. NS could have easily had its physicians educate workers about potential cancer hazards during these physicals and could have recommended annual cancer screening procedures such as chest x-rays. The railroad chose not to do this, likely because it feared that cancer injury lawsuits could result.
A letter written by NS President H.H. Hall in 1983 recognized that, “[b]ecause some of our employees are, by necessity, going to come in contact with asbestos-containing products, it is extremely important that we take steps to protect them against any resulting risk to their health or safety…We should also provide guidance to our employees on how to deal with such situations in a safe manner.” Despite this mandate, NS dragged its feet. While it is true that NS began an effort in the 1980s to purchase non-asbestos products, it completely ignored the risk to employees who had already been exposed to asbestos for years and were at risk of developing cancer. Sadly, NS did not implement any medical surveillance program or warn employees of their increased risk of developing cancer. It also was slow to remove older asbestos products from the workplace, such as insulation, transite boards, and locomotive gaskets. For instance, NS did not implement a formal asbestos abatement program for its aging fleet of locomotives until the 1990s. Such a decision unnecessarily exposed countless employees to cancer risks. NS locomotive asbestos abatement documents from the 1990s evidence that each of these older locomotives had approximately 200 linear feet of asbestos containing pipe insulation, despite the railroad’s awareness of asbestos cancer hazards back in the 1950s.
Other documents uncovered in cancer lawsuits show that NS began an Asbestos Task Force in 1983 to focus on asbestos hazards and what to do about them. Unfortunately, certain documents highlight that the motivation was not employee safety, but rather avoiding liability in employee cancer claims. Meeting minutes from an Asbestos Task Force Meeting held on January 10, 1984 stated that, “A general discussion of the relationship of the Asbestos Safety Program to litigation was held. There was general agreement that while the Program will not affect current lawsuits, it will aid in future litigation.” Apparently, NS cared more about protecting its pocketbook in the future than about worker safety.
The lackluster efforts of NS and its “too little, too late” approach to worker safety have contributed to the current explosion in the number of longtime railroad workers and railroad retirees who suffer from cancers caused by workplace exposures. The unfortunate thing is that had Norfolk Southern acted on the information about cancer hazards which it learned about back in the 1950s, these cancers could have been prevented.
