A prior blog discussed the risk to railroad workers of developing mesothelioma because of the huge amounts of asbestos used by railroads from the 1940s and into the 1980s. Unfortunately, many railroads chose to ignore government warnings and allowed asbestos to be present in the workplace even into the 1990s and 2000s. As a result, railroad workers remain at risk for developing mesothelioma and other cancers because of the long “latency period” (delay) between their toxic exposures and getting the disease. For mesothelioma, it is well known in the medical community that this type of cancer can develop up to 50 years after the hazardous exposure to asbestos. Unfortunately, it does not take a lot of asbestos exposure to get mesothelioma. In fact, the Occupational Safety and Health Administration (OSHA) has stated that:
“There is no ‘safe’ level of asbestos exposure for any type of asbestos fiber. Asbestos exposures as short in duration as a few days have caused mesothelioma in humans. Every occupational exposure to asbestos can cause injury of disease; every occupational exposure to asbestos contributes to the risk of getting an asbestos related disease.”¹
Thankfully, there have been many advances in medicine that have increased cancer survival rates and, in some cases, even helped cure certain types of cancer. Unfortunately, mesothelioma has persisted as an almost always fatal disease. While extensive research concerning mesothelioma has not yet found a cure for this lethal disease, it has yielded some helpful information. One such area concerns discoveries by scientists who have been investigating the BAP1 gene and its role in mesothelioma.
BAP1 is a gene that plays a part in human cell growth, division and death. BAP1 acts as a “tumor suppressor” gene and can be genetically inherited from a parent. When the BAP1 has damage (also known as a gene mutation), the person’s natural defenses to fight cancer are not as effective as compared to a person without BAP1 gene damage. This does not mean that a BAP1 mutation causes cancer! Rather, a person with a BAP1 mutation is more susceptible to cancer causing substances, particularly asbestos. Over time researchers have determined that a person with BAP1 mutation is more likely to develop malignant mesothelioma from even minimal asbestos exposure.
The National Institute of Health has done significant research concerning the relationship between BAP1 and mesothelioma and has concluded:
“Studies suggest that environmental and lifestyle factors help determine which types of tumor develop in individuals with BAP1 tumor predisposition syndrome. For example, exposure to asbestos likely contributes to the development of malignant mesothelioma. While asbestos increases the risk of malignant mesothelioma in the general population, the risk is even higher in individuals with a BAP1 gene mutation. It is not clear why certain tumor types are particularly associated with BAP1 tumor predisposition syndrome.”²
Over the last 10 years, many additional scientific studies have confirmed that people with BAP1 damage are more susceptible to the effects of asbestos. This information is important for railroad workers who may not even know that they have a BAP1 mutation, given all the asbestos used in the rail industry.
Railroad workers are protected by the Federal Employers Liability Act (FELA). The FELA recognizes the “eggshell plaintiff rule” which means that railroads take their workers as they are. Because of this legal concept, railroads can’t blame a worker for having a gene, such as BAP1, which makes them more susceptible to disease. A well-known legal case highlights this point: In Pierce v. Southern Pacific, 823 F.2d 1366, 1372 (9th Cir. 1987), a federal appeals court affirmed a jury’s verdict for a railroad worker based on the railroad’s negligent treatment of the worker following his work-related accident. The court concluded that the railroad’s negligent treatment of the employee following an accident rendered the railroad liable to the worker for the total damages, although his previously unknown congenital heart disease was a factor in his subsequent heart attack. As another court succinctly stated, a railroad “is fully liable for any damages resulting from its wrongful act even if the victim had a pre-existing condition that made the consequences of the wrongful act more severe for him than they would have been for a person without the condition.”³
Under the FELA, a railroad can be liable to a railroad worker and his/her family if they develop mesothelioma, even though the railroad worker had the BAP1 gene. Simply put, the BAP1 gene makes workers more susceptible to developing mesothelioma as a result of asbestos exposure and does not give the railroad a “free pass.” In other words, had the railroads not used asbestos in their operations, workers with BAP1 likely would not have developed mesothelioma! Workers in all different railroad jobs were exposed: sheet metal workers, machinists, mechanics, conductors, brakemen, engineers, firemen, trackmen, machine operators, signal workers, welders, carmen, electricians, and clerks. All of the asbestos exposure over so many years is the main reason there have been so many asbestos mesothelioma lawsuits against railroads.
If you would like to learn more about the rights of injured railroad workers, call the railroad injury lawyers at Doran and Murphy at 1-800-374-2144. They have represented hundreds of railroad workers in work-related cancer cases against railroads under the FELA as result of exposures to asbestos, diesel exhaust, silica, ballast dust, welding fumes, creosote, weed sprays and solvents.
¹1. https://www.osha.gov/asbestos
²2. https://medlineplus.gov/genetics/condition/bap1-tumor-predisposition-syndrome/#causes
³3. McLaughlin v. BNSF, 300 P.3d 925 (2012).
