Elements of a FELA/Railroad Asbestos Cancer Case: Notice and Failure to Act
When we are contacted by a railroad worker - or surviving family member of a worker - with cancer from railroad exposures, one of the things we need to show is that the railroad was negligent. One of the ways we do that is showing the many documents we have accumulated over time that show that the railroad had NOTICE. The railroad knew or should have known of a hazard and didn’t do anything to protect the workers. Throughout our years of litigating cases against railroads, we have amassed documents from various locations pertaining to various railroads.
In this blog, we are looking at one of the documents we received through a Freedom of Information Act (FOIA) request, and how that helps us show notice and failure to act.
The document: OSHA File for Inspection #302550645
How we got it: In 2016, our office made a FOIA request to OSHA for an inspection that they did in Selkirk, NY at the car shop and locomotive shop for Conrail/CSX in 1999.
Overview: Someone made a complaint to OSHA in June of 1999 about the presence of asbestos hazards in Selkirk. OSHA came in and found that insulation “exposed” in “poor condition” and that birds had nested on the pipes potentially disturbing the material. Worse yet, OSHA found that there was a warning sign, but it had been painted over.
What is most interesting about this document comes next. OSHA found that the employer had knowledge of the hazards, because Conrail had undertaken an asbestos survey two years prior.
Is it possible that the railroad knew it was asbestos for two years, but it was in good shape and posed no danger? Maybe, except the OSHA file includes the relevant portions of the survey.
Of course, we believe that the railroad should have known that the asbestos was there and harmful before 1997 (other blogs in this series will show that the railroads met together and talked about the dangers of asbestos decades before this survey was undertaken), but this document shows actual knowledge of damaged, friable asbestos in the Selkirk car shop since at least 1997, and didn’t do anything about it for two years, until someone complained and OSHA came in.
As we can see from the asbestos survey in 1997, the absolute best thing that Conrail could have done was abate the asbestos insulation, costing approximately $13,000 to abate the asbestos insulation. They didn’t do it. It would appear that they didn’t do anything. Instead, two years later, someone complained to OSHA about the same problem. So, at this point, did they (Conrail now being CSX at this point) completely remove the asbestos insulation?
No. But they did re-wrap the asbestos and fix the sign.
A document like this helps us to help railroad workers injured by exposure to asbestos at the railroad. Various asbestos related cancers, like lung cancer and mesothelioma take years to develop after a worker breathes the fibers into their lungs. By keeping and maintaining these documents, we hope to help railroad workers long into the future as they develop diseases from their exposures.
If you are a railroad worker who worked at the Conrail/CSX car or locomotive shop in Selkirk, NY and you have developed an asbestos related cancer, contact us to see if we can help you to bring a claim under the Federal Employers’ Liability Act.