Virginia Beach Personal Injury Lawyer - General Personal Injury

Long Term Railroad Worker Diesel Exhaust Fume Exposure Linked to Asthma Lung Disease and Cancers-Part 2 of Two Reports

Rick Shapiro — Wed, 26 Mar 2008 22:37:15 GMT

By: Rick Shapiro, Attorney
Shapiro, Cooper, Lewis & Appleton Law Firm

Focus on Federal Regulations and Railroad Historical Knowledge of Health Dangers

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 such railroad workers/employees. Railroad worker injury claims against their employer-railroads fall under a federal act called the Federal Employers Liability Act. This article (Part 2 of this series of articles) discusses long term railroad worker diesel fume lung disorders and covers new federal regulations that are clamping down on excessive railroad locomotive engine diesel fumes, as well as historical knowledge and legal cases against railroads such as CSX and Norfolk Southern over the last several decades.

What is diesel smoke or diesel exhaust fumes?

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.

Federal regulation of diesel exhaust fumes and diesel smoke at railroads

In current litigation, it is common for railroad defense lawyers and their experts to claim that the railroad worker has no evidence any dangerous level of diesel exhaust fumes was in their workplace or engine cab. In some cases, the railroads have contended that the worker has not shown diesel fumes ever exceeded some permissible exposure limit. The problem for the railroad position is that there is no permissible exposure limit for several of the dangerous toxic constituents or particulates found in diesel exhaust fumes. In other words, a number of the individual constituent particles in typical diesel fumes are known carcinogens. There is no known "safe" level of exposure to carcinogens.

It is the government, not railroad worker lawyers, who have been discussing the cancer-causing constituents in diesel exhaust fumes. The occupational safety and health administration (OSHA) has required sellers of toxic substances to provide written warnings since 1985, and these documents are called material safety data sheets (MSDS). Employers are required to make MSDS's known to workers. The sellers of diesel fuel have disclosed that particulates may be cancer-causing agents and exposure may cause serious lung diseases since the early 1990s. The railroads have received these MSDS documents since the 1990s, but they knew of the dangers of long-term exposure to diesel fumes decades earlier.

In calendar year 2000, the Clinton administration United States Environmental Protection Agency (EPA) stated in a news release:

"Anyone who has ever driven behind a large truck or bus is familiar with the smell of diesel fuel and the clouds of thick exhaust emissions. Today's action will dramatically cut harmful air pollution by up to 95 percent. New trucks and buses run as cleanly as those running on natural gas." said EPA Administrator Carol M. Browner...One huge benefit of today's action will be the greatest reduction in harmful emissions of particulate matter, or soot, ever achieved from cars and trucks."

"An older, dirtier diesel vehicle can emit almost eight tons of air pollution each year. EPA has determined that diesel exhaust is likely to cause lung cancer in humans. This action will reduce 2.6 million tons of smog-causing nitrogen oxide emissions each year once the program is fully implemented. Emissions of soot, or particulate matter, will be reduced by nearly 110,000 tons each year. As a result, today's action will prevent 8,300 premature deaths, 5,500 cases of chronic bronchitis, and 17,600 cases of acute bronchitis in children. It will also avoid over 360,000 asthma attacks and more than 386,000 cases of respiratory symptoms in asthmatic children annually. The action will prevent 1.5 million lost work days, 7,100 hospital admissions and 2,400 emergency room visits for asthma every year. "

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. Estimates show that, without the emission reductions from this final action, by 2030 locomotive and marine diesel engines would contribute more than 65 percent of national mobile source diesel PM2.5, or fine particulate, emissions and 35 percent of national mobile source NOx emissions, a key precursor to ozone and secondary PM formation.
As of October 10, 2007, air quality data show that about 144 million people live in areas that violate air quality standards for ground-level ozone, also called smog, and about 88 million people live in areas that violate air quality standards from PM. These pollutants contribute to serious public health problems that include premature mortality, aggravation of respiratory and cardiovascular disease, and aggravation of existing asthma, acute respiratory symptoms and chronic bronchitis. Beyond the impact these diesel engines have on our nation's ambient air quality, exposure to diesel exhaust has been classified by EPA as being likely carcinogenic to humans. Children, people with heart and lung diseases, and the elderly are most at risk.
Locomotive and marine diesel emissions reductions will particularly benefit those who live, work, or recreate in and along our nation's coastal areas, rivers, ports, and rail lines. Such reductions will also have beneficial impacts on visibility impairment and regional haze, as well as reducing crop damage and acid rain.

The finalized requirements cover all locomotives and many marine diesel engines already subject to EPA emission standards, as follows:

Locomotives: With some limited exceptions, the regulations apply to all diesel line-haul, passenger, and switch locomotives that operate extensively within the United States including newly manufactured locomotives and remanufactured locomotives that were originally manufactured after 1972.

The new 2008 EPA final rule was further summarized by EPA as follows:

Locomotive engines are significant contributors to air pollution in many of our nation's cities and ports. Although locomotive engines being produced today must meet relatively modest emission requirements set in 1997, they continue to emit large amounts of nitrogen oxides and particulate matter (PM), both of which contribute to serious public health problems.
In May 2004, as part of the Clean Air Nonroad Diesel Rule, EPA finalized new requirements for nonroad diesel fuel that will decrease the allowable levels of sulfur in fuel used in locomotives by 99 percent. These fuel improvements will create immediate and significant environmental and public health benefits by reducing PM from existing engines.
In March 2008, EPA finalized a three part program that will dramatically reduce emissions from diesel locomotives of all types -- line-haul, switch, and passenger rail. The rule will cut PM emissions from these engines by as much as 90 percent and NOx emissions by as much as 80 percent when fully implemented.
This final rule sets new emission standards for existing locomotives when they are remanufactured--to take effect as soon as certified systems are available, as early as 2008. The rule also sets Tier 3 emission standards for newly-built locomotives, provisions for clean switch locomotives, and idle reduction requirements for new and remanufactured locomotives. Finally, the rule establishes long-term, Tier 4, standards for newly-built engines based on the application of high-efficiency catalytic aftertreatment technology, beginning in 2015.

Apparently, the new EPA rules do not set the strict emissions requirements on any engines manufactured before 1972, under a "grandfather" clause, unless the "remanufacturing" clause of the regulation becomes applicable. Of course, the older engines still in operation are likely the worst polluters as well due to a lack of pollution control technology when manufactured.

It is clear that railroads have operated "under the radar" for decades as to the adverse effects of diesel fumes on their own workers, much less the public at large. With the increased EPA attention to all diesel exhaust fume pollution, it appears that the adverse effects of prolonged exposure in railroad workers should gain more attention.

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 on whether their condition could have been caused by diesel exhuast fume exposure.

How long have railroads known of the dangers?

The nation's railroads, such as Norfolk Southern, CSX and Amtrak, as well as the other major railroads, participate in a national research and trade organization known as the Association of American railroads (AAR). An affiliated organization is called the medical and surgical section of the AAR, allowing the railroad staff medical doctors to exchange information and have seminars-the physicians met annually as early as the 1930's. Likewise, there is yet another affiliated organization of the claims representatives of the nation's railroads, allowing these staff to exchange information and hold educational meetings and seminars. As early as the 1950s, the claim representatives of the railroads were discussing the health effects of diesel exhaust fumes. Historical documents have shown that these doctors and claims representatives discussed railroad worker claims relating to diesel exhaust fumes, and that discussions of the health effects was covered in detail.

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." He noted that availability of "atmospheric testing" could help determine the degree of hazard to which workers were exposed. Straub went on to state that he had completed a survey of the majority of the railroads and as of 1955 had found a total of six cases involving diesel fume exposure, and he categorized the jury verdicts as between 18,000 and $19,000. He categorized the payments as relatively unimportant and stated that "from a claim and law standpoint, this field has been relatively unimportant...."

Several years later, in 1961 the same AAR railroad industry organization, the claim agent's subsection, published an article in its journal mailed nationwide to its members, called The Bulletin (volume 46, number 10), reporting on a notable legal decision involving the Missouri Pacific Railway Co. and a pipefitter's injury claim against Missouri Pacific. The appeal involved a personal injury verdict in favor of Mr. Sims, a Missouri Pacific pipefitter, and the case outlined that the pipefitter contended that because of alleged insufficient ventilation in the shop, he suffered injuries from inhaling the diesel fumes and gases given off by railroad locomotives. He complained about the harmful effects on his body upon being required to work in a place where diesel fumes were concentrated in large quantities.

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.

By 1971, the Occupational Safety and Health Administration was created in the U.S. During the 70s and 80s, OSHA enacted a large number of workplace protective regulations pertaining to respiratory protection, workplace protections in general and the communication to workers of hazards relating to toxic substances.

Around the same time, the National Institute for Occupational Safety and Health (NIOSH) issued what it called Intelligence Bulletin 50 setting forth many of the dangers of diesel exhaust fumes, as established by many peer reviewed scientific and medical studies reporting on adverse health effects of prolonged diesel exposures. A study by NIOSH is typically widely distributed to general industry including railroads.

A review of published legal decisions against railroads
by workers alleging diesel fume lung disease, asthma or Cancers

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. It was shown that Norfolk Southern knew by 1985 that various locomotive crews were reporting medical problems and complaining about excessive diesel exhaust. Baker's exposures were all before 1991, and he had stated before his death that black smoke routinely flooded the engine cab. Baker explained that the engine cabs were usually 20 or 30 degrees warmer than the outside temperature and he had no choice but to open the engine windows, because locomotives at Norfolk Southern at that time were typically oriented for the engineer to operate the engine in the long hood forward position, placing it in front of the engine cab, and the exhaust openings were mounted on the body of the engine, at the top, and this allowed exhaust to trail into the engine cab. There was considerable evidence from a pulmonary expert specializing in diesel exhaust about the connection between Baker's cancer and the diesel exhaust exposure over the long term. The court also noted that it was appropriate for the jury to consider whether the diesel exhaust fumes were improperly invading the engine in violation of the locomotive inspection act as well as the particular regulation that requires that diesel exhaust only be expelled outside engine cabs. 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. He worked for only six months for the railroad in the 1970s, but then was re-hired with Norfolk Southern in the 1980s first as a fireman (similar to a brakeman/conductor worker) and then he was promoted to an engineer. 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. He explained that this put the exhaust stack in front of him, causing smoke and fumes to travel back toward the engineer location inside the cab. Cutlip also explained deadheading, a practice by which an engineer would ride in a second engine once he had worked the maximum number of hours in a day, which provided a ride back to a workplace. However, Cutlip explained that this often meant that diesel fumes from the lead engine would trail back to the second engine in which he was located. This railroad worker's doctor diagnosed him with reactive airway disease (RADS) and/or asthma. His doctors testified about his reduced breathing test results, called pulmonary function tests, and their meaning relating to asthma symptoms, caused by diesel fume exposures.

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. The doctor ruled out emphysema based on the pattern of the breathing tests. A second lung doctor, also testified about the connection between smoking and asthma but said that smoking could causing aggravation of asthma symptoms, but that it did not cause asthma. This second lung doctor explained pulmonary function testing in great detail and explained how patients are first tested without bronchodilators and are tested again after having used a bronchodilator. If the patient has medical asthma, the patient will respond to the bronchodilator and the second half of the tests will produce results showing much improved lung function, and the doctors explained that Cutlip responded well to the bronchodilators.

The same lung doctors at his trial admitted that they could not quantify the volume of diesel exhaust fumes to which Cutlip was exposed in the railroad workplace, explaining that clinical doctors normally do not do such things. Also, an industrial hygienist experienced in examining workplace health and safety testified in the Cutlip trial. The industrial hygienist explained the proper procedures and protections that industrial employers can utilize to prevent lung diseases such as diesel exhaust 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.

In December, 2006 a different Ohio appeals court considered yet another jury verdict against Norfolk Southern for Eugene Hager who had a long career with Norfolk Southern and it earlier railroads, who worked first as a mail handler, beginning in 1943, and as of 1971 Hager became a fireman, which was similar to a brakeman position. Hager claimed that he was exposed to many workplace toxic dusts including diesel exhaust fumes. In 1973, Hager was promoted to locomotive engineer, a position he worked until age 61 when he retired at in 1987. Hager had a fairly rare disease called Kartagener's Syndrome, which makes the fine cilia of the lungs hypersensitive to particulate matter. Hager claimed that his lung disease was aggravated by toxic dusts, including diesel fumes and silica and asbestos exposures. The railroad appealed from a $250,000 verdict in favor of Hager.

Because the Locomotive Inspection Act includes provisions requiring that products of combustion must be exhausted outside the engine cab, Hager also asserted that the railroad was in violation of this specific regulation. The appeals court found Hager's evidence sufficient on this point, and the court refused to reverse the jury verdict despite the fact that the railroad argued that there was no meaningful evidence to show that the regulation was violated, and NS argued that the regulation did not mean what it said (arguing that the Federal Railroad Administration "informally" permitting some diesel fumes inside the engine cabs).

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 impact of diesel fumes on COPD and decreased lung function arising after decades of such workplace exposures.

[For a discussion of basics of how diesel exhaust fumes affect the lungs, for information about diesel induced cancer studies, and other similar information, see Part 1 of this article series by the author.]

Originally posted at InjuryBoard by Rick Shapiro

Long Term Railroad Diesel Exhaust Fume Exposure Linked to Asthma Lung Disease and Cancers-Part 1 of Two Reports

Rick Shapiro — Tue, 25 Mar 2008 22:15:36 GMT

This article discusses railroad worker long term diesel exhaust fume lung disorders, as well as medical studies relating to diesel fume lung diseases and lung cancers, and another related article in this series covers new federal regulations that are clamping down on excessive railroad locomotive engine diesel fumes, as well as historical knowledge and diesel exhaust lung disease legal cases against railroads such as CSX and Norfolk Southern over the last several decades.

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. This article discusses railroad worker long term diesel fume lung disorders, as well as medical studies relating to diesel fume exposure, and another related article in this series covers new federal regulations that are clamping down on excessive railroad locomotive engine diesel fumes, as well as historical knowledge and legal cases against railroads such as CSX and Norfolk Southern over the last several decades.

What is diesel smoke or diesel exhaust fumes?

According to a scholarly 2001 American Cancer Society medical article (also published at CA Cancer J Clin 2001; 51:193; doi: 10.3322/canjclin.51.3.193), 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. Diesel engines are the predominant source of industrial power throughout the world for engines up to about 5,000 horsepower. A much larger percentage of passenger vehicles in Europe are powered by diesel engines than in the US.
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.

The particulate portion of diesel exhaust, also known as soot, is mainly composed of elemental carbon, organic material (including PAHs), and traces of metallic compounds. Thus PAHs are found in both the gaseous and particulate fractions of diesel exhaust.

Emissions of organic compounds from gasoline (both leaded and unleaded) and diesel engines are qualitatively similar, but there are quantitative differences. Older, light-duty diesel engines (automobile and light trucks), for instance, can emit 50 to 80 times more particulate mass, and heavy-duty diesel engines emit 100 to 200 times more particulate mass than catalytically equipped gasoline engines, although the difference has decreased substantially with newer models. Gasoline engines without catalytic converters produce a similar quantity of PAHs compared with diesel engines.
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 asthma, and in some cases exposure has been linked to cancer.
Workers have described, over many decades, how diesel exhaust fumes and diesel smoke can be seen, can be felt (while breathing), and can even be tasted, on the tongue after prolonged exposure. But most railroad workers are not aware of the long term, permanent lung disease associated with this toxic exposure.

Where and how are railroad workers exposed?

With regard to railroad engineers and conductors, many describe exposure to diesel fumes as occurring in locomotive engines, even though this is a place that should not have diesel fumes. 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. For example, air conditioning was not available and is still not available in many types of railroad engines. Many locomotive engines were normally operated with windows opened, because of the extreme heat inside and also to afford an engineer or conductor a better view of ground operations by looking out the side window of the cab. 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.

Also, during the 1980's/early 1990's, Norfolk Southern and some other railroads used various diesel engines in the long hood forward position for decades, until union members and workers repeatedly complained about the diesel exhaust fumes and the health effects of repeatedly breathing the fumes. The problem for Norfolk Southern was that the engineer console was set up to run long hood forward, therefore Norfolk Southern was going to be required to modify its engines and/or to modify the locomotive exhaust stacks to prevent the streaming of the diesel fumes into the cab, and this would cost money. Eventually, NS made the modifications and the long hood forward cab engine issue partially was resolved involving one class of engine.

Workers with virtually every major railroad involved in rail yard switching or industry switching have worked with older engines affectionately called "butthead" engines, many manufactured in the 1950's by EMD (General Electric and EMD are presently two of the major diesel locomotive manufacturers in the U.S.. These yard switcher butthead engines were manufactured by EMD and many of these engines were called "smokers." Many variations situated the engineer on the right side of the engine cab, with the long hood forward, and this placed the diesel exhaust stack or pipe right in front of the cab, at a height fairly near the top of the cab-the engineer would face this stack in normal forward operations. This meant in long hood forward moves, that the exhaust trailed right back toward the cab and most times the windows were opened due to lack of closed ventilation or air conditioning. How long were these butthead switchers used? For decades. Some of the 1950's EMD engines are still in operation.

Car repair/carmen, with many railroad such as CSX, Norfolk Southern (NS/N & W) and Amtrak, worked inside of shops or tunnels, where ventilation was less than ideal to say the least. Even for workers not situated inside the engine cab, constant and repeated work in a poorly ventilated area around idling locomotive engines exposed these workers to significant diesel exhaust fumes over many years. This type work exposure can always be aggravated by significant work spent inside tunnels or mostly in closed areas such as shops.

What should railroads do to protect railroad workers?

According to industrial hygiene and industrial safety specialists, there are at least four different methods to control exposure to diesel exhaust fumes: 1) engineering controls should be implemented, such as isolation areas, appropriate shelters for employees, or actual engineering changes to equipment that subjects workers to diesel exhaust fumes, and this could include changing diesel exhaust stacks on engines to assure that fumes do not trail into locomotive engine cabs, providing air conditioning and/or pressurizing and sealing engine cabs so that fumes will not enter the cabs through openings, etc.; 2) implementing administrative controls, which means rotating a railroad worker in and out of a particular job that might expose the worker to excessive diesel exhaust ; 3) changing work practice controls, which means choosing the manner of doing a particular job so as to minimize exposure to diesel exhaust hazards; and 4) mandating personal protective equipment such as masks or respirators or other similar protective equipment. All of these principles are typical industrial health and safety controls, not only in the railroad industry, but for general industry.

A related health and safety practice, is to monitor the workplace-meaning to do air samples and air tests. Air testing has been a routine part of industrial health and safety since as early as the 1930s. Some railroads and or some state or federal inspectors have done air testing for various toxic substances earlier than even 1950. This author's research has shown the railroads occasionally did air testing for various toxic substances, but were very mindful that if the test returned a toxic air result above an acceptable limit, this could provide worker evidence to support claims. Accordingly, at least after the 1970s, the nation's major railroads were extremely careful as to who they allowed to do any air testing, anywhere on railroad property, including locomotive engines. Typically, railroads such as CSX and Norfolk Southern carefully selected "friendly" industrial safety experts that they knew they could count on to advocate their side. Railroad lawyers representing workers in the last 15 to 20 years have discovered that several of the industrial health and safety experts retained by railroads have testified literally hundreds of times, always on behalf of railroad defendants in injury lawsuits. Naturally, we do not believe that testing is valid when presented by an expert who has been paid by the railroads to do the testing, and who is again paid handsomely to testify on behalf of railroads in court hundreds of times.

Cancers and Prolonged Diesel Exhaust Fumes Exposure

In September 2002, under the Bush Administration, the EPA added 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. Earlier reports said that diesel truck drivers, mechanics, and people whose occupations expose them constantly to diesel exhaust have higher lung cancer rates. But the 2002 EPA report focused on those who breathe diesel exhaust in the air around them, whether they work directly with diesel engines or not.

However, the EPA, after 2002, delayed implementing the new regulation due to suits by the distributors of diesel fuel. The air-cleaning regulation was delayed when oil refiners sued the EPA to stop it, but eventually a federal appeals court ruled the EPA could go ahead and the agency said it would do so, according to news reports.

Epidemiology includes the scientific study of statistics and medical causes. According to Frumkin & Thun's 2001 medical journal study/article, prolonged diesel exhaust fume exposure has been linked to increased lung cancer rates, per this excerpt:

The major cancer suspected of being linked to diesel exhaust is lung cancer. Epidemiologic studies of lung cancer risk in diesel-exposed workers are affected by the usual challenges of epidemiologic studies, especially the difficulty of correctly defining and quantifying occupational exposure, and confounding by other exposures such as smoking and concurrent workplace exposures.
Epidemiologic studies of workers exposed to diesel exhaust have shown small but significant elevations in risk of lung cancer. A case-control study found that railroad workers with at least 20 years of service were significantly more likely to die from lung cancer than were members of the general population. A cohort study of over 55,000 railroad workers by the same researchers found that lung cancer risk increased with duration of exposure to diesel exhaust; the relative risk was 1.72 among workers with the longest exposure (as much as 22 years).
Several studies of teamsters also linked diesel exhaust exposure with lung cancer. Still another study analyzed the lung cancer incidence of almost half a million American males in relation to their occupational exposure to diesel exhaust; men with the heaviest and most prolonged exposures, such as railroad workers, heavy equipment operators, miners, and truck drivers, had higher lung cancer mortality than unexposed workers.

Also, the International Agency for Research on Cancer (IARC) studies exposures that may be cancer causing/carcinogenic. This organization classified diesel exhaust as "probably carcinogenic to humans."

The Environmental Protection Agency (EPA) uses a classification system very similar to that of the IARC. EPA considers diesel exhaust "likely to be carcinogenic to humans by inhalation at any exposure condition."

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.)"
How long have railroads known of the dangers?

By 1971, the Occupational Safety and Health Administration was created in the U.S.. During the 70s and 80s, OSHA enacted a large number of workplace protective regulations pertaining to respiratory protection, workplace protections in general and the communication to workers of hazards relating to toxic substances.

[For a discussion of federal regulations, and legal decisions against railroads for workers alleging lung disorders, see Part 2 of this article series.]

Originally posted at InjuryBoard by Rick Shapiro

How Railroad Injury Attorneys Analyze Ergonomics to Prove Railroad Negligence

Rick Shapiro — Sun, 03 Feb 2008 09:43:49 GMT

Also, when a railroad claims there is "no need" for an ergonomic assessment of a railroad worker job or task which has caused numerous injuries, showing the 1991 CSX ergonomic study of electricians totally refutes such nonsense.

What does ergnonomics have to do with railroad worker injuries involving heavy lifting or even repetive stress injuries? Alot, and even the railroads held seminars in 1990 to learn how ergonomics could prevent a wide variety of railroad worker injuries.

The word ergonomics has several definitions, but most experts agree that it involves designing workplace tools or equipment to make them more user-friendly and safe for workers. Most of us are familiar with lawn and garden tools that are made with a handle or grip that is more comfortable, and this is a very basic form of ergonomics. However, the field involves not only changing a grip or a way to hold a tool, but more broadly involves changing work tasks themselves, to prevent repetitive stress injuries before they ever happen. Changing the way work tasks are done is known as an "administrative change." Changing the actual tool or the equipment is known as an "engineering change." These are the two most common ways ergonomics affects railroad workers and workers in any field that repetitively use hand tools or power equipment, that is used nearly every day at work

Although there were discussions about repetitive stress injuries earlier, it wasn't until 1990 that the Association of American railroads decided to hold seminars to explain how ergonomics could help railroads reduce injuries in the workplace. Our law firm has obtained many of the materials which were shared with the nation's railroads, which were a part of these AAR trade organization educational seminars in 1990 and 1991, including "draft" materials. At first, the major railroads were eager to learn about ergonomics--it made sense to learn how to avoid injuries in the workplace because it saves the railroads money in the long run. It was only after rail worker attorneys used the very same materials AGAINST the railroads that the discussion of ergonomics seemed to go "underground." On the one hand, the AAR championed ergonomics, but then when the railroads failed to carry through the prevention methods to various types of rail workers, the same materials are irrefutable proof of railroad negligence in avoiding preventable injuries--that are continuing to occur.

The seminars were incredibly detailed. The railroads in the ergonomics seminars of 1990 and 1991 learned that they must review the total number of claims that were injuring workers, to help analyze which specific tasks were causing injuries so they could be addressed and changed. The supervisors with the railroads were taught how to go about doing a complete ergonomic evaluation in the workplace-after analyzing safety data on previous injuries, railroads learned that slip and fall injuries as well as low back injuries from lifting, were two of the biggest areas that the railroads knew were repetitively causing injuries and which needed attention. The railroad safety supervisor was advised to take pictures of how the tasks that were causing injuries were being done. Further, the supervisors with railroads learned about the National Institute of Occupational Safety and Health "lifting criteria." To avoid low back injuries caused by repetitive or heavy lifts, NIOSH had developed guidelines on safe amounts that could be lifted at any one time, much less repetitively. And this was called the NIOSH criteria. A simple NIOSH chart visually showed the railroad supervisor, what amount could be lifted and the criteria explained how the heavier the amount, and the further it was lifted above the waist and away from the body, the less a worker could safely lift on a repetitive basis, or even one time. Not only this, many railroad purchased computer software that could evaluate lifting an repetitive lifting tasks--this was called two dimensional or three dimensional software. Thus, railroads learned how to prevent heavy lifting injuries, and knew that the tasks should be ergonomically changed, as one example of many.

The broad study of ergonomics didn't just include lifting in 1990. Railroad supervisors looked into ergonomic changes to the office environment for clerical railroad workers, and even looked into of prevention of slips, trips and fall injuries. Changing flooring to a non-skid surface, changing the surfaces of work shoes or boots, involves either engineering or administrative changes to prevent slips trips and falls. As a matter of fact, railroad injuries caused by slips, trips or false are one of the specific troublesome injury prevention areas that railroads examined in 1990.

Although all the major railroads studied ergonomics as early as 1990, our firm has developed interesting information with regard to CSX. One of its safety supervisors took the knowledge from the 1990 ergonomics seminars and went into the CSX workplace to evaluate electrical worker/electrician injuries. He followed all of the ergonomic training criteria, by using the NIOSH criteria, studying the type of injuries that were repetitively seen. By analyzing prior claims, conducting photographs of the work tasks, interviewing the workers to determine what was causing the injuries, he applied these principles to help reduce injuries to electricians. What is amazing is that the track maintenance workers with CSX had by far the highest number of low back injuries, and also suffered a significant amount of slips, trips and falls, but CSX and never conducted detailed ergonomic evaluations of these track maintenance workers in the 90s or even up till now. This can be good evidence of inadequate evaluation of ergonomics in the workplace. Also, when a railroad claims there is "no need" for an ergonomic assessment of a railroad worker job or task which has caused numerous injuries, showing the 1991 CSX study of electricians totally refutes such nonsense.

Any railroad worker should be mindful of the fact that claims against the railroad fall under the Federal Employers Liability Act, which provides for a three-year statute of limitations from when the claim arises/accrues. In repetitive stress injury situations, careful legal analysis must be applied to determine when the three-year statute of limitations begins to run, ("accrues" in legal jargon") If you believe that you or a family member may have a repetitive stress injury, you should seek legal advice as soon as possible, because the statute of limitations analysis usually requires legal advice and a careful analysis of not only the legal situation but a review of all applicable prior medical care for that particular type of injury involved. Please contact our law firm ( our firm website is: hsinjurylaw.com ) if you would like to have a free initial consultation. We handle these types of cases on a contingent legal fee, which means that our firm recovers a legal fee only if we recover for you or your family member's injury

Originally posted at InjuryBoard by Rick Shapiro

CHOOSE YOUR PERSONAL INJURY ATTORNEY WISELY

Rick Shapiro — Fri, 18 Jan 2008 14:41:53 GMT

Authored By: Richard N. Shapiro

If you are involved in an accident in Norfolk, Virginia Beach, Chesapeake or anywhere else, choose your lawyer wisely.

A lawsuit is a stressful experience by anyone's account. As the client, you should find comfort in knowing that your case is in good hands. Far too often, clients tell me that they meet with an attorney originally and then never see that attorney again until it becomes time for trial or depositions. This won't happen at our firm. We want you to put a face with a name. We feel it is very important to be available to our clients any time they need us.
In choosing a lawyer, take the time to compare law firms and attorneys in your area. Websites such as the International Society Of Primerus Law Firms and Martindale-Hubbell are great resources to use to research attorneys and their areas of practice. Generally speaking, you want someone with enough experience under their belt to overcome any issues that might arise while handling your case.
If you choose our firm, you will meet with the attorney handling your case as soon as you are available. We will discuss, in detail, how you came to be injured. We will also discuss the areas of concern you might have about your case. You should always ask questions. After all, this is your case and these are your injuries. We will do all we can to make sure you are justly compensated for your injuries or loss. At our firm, all we handle is injury law, and this includes every staff person and investigator.

Originally posted at InjuryBoard by Rick Shapiro

Dirty, Dastardly Deeds of Injury Defense Attorneys (Not Done Dirt Cheap)

Rick Shapiro — Sat, 05 Jan 2008 09:51:04 GMT

There is a famous classic rock song entitled "Dirty Deeds Done Dirt Cheap" and in my practice as a personal injury lawyer for victims we deal every week with dirty, dastardly deeds (not done dirt cheap) by defense lawyers fighting our personal injury clients' cases. We deal with several large corporations or railroads that find themselves sued for personal injury often. They usually don't rely on what's in legitimate doctor or hospital records about the personal injuries. They routinely hire private investigators to stake out and shadow our clients. Yes, just like a movie, depending upon their orders, investigators will sit inside a van with tinted windows with a hidden video camera. Examples of dastardly defense lawyer deeds in personal injury cases are meaningful because sometimes a potential injury client looking to retain a personal injury lawyer simply has no exposure or real understanding of how evil and downright nasty (some) personal injury defense lawyers behave once cases are in court.

There is a famous classic rock song entitled "Dirty Deeds Done Dirt Cheap" and in my practice as a personal injury lawyer for victims we deal every week with dirty, dastardly deeds (not done dirt cheap) by defense lawyers fighting our personal injury clients' cases. What do I mean, when I say dastardly? What "dirty deeds"? In the last few months I have been busy prosecuting several major personal injury cases. In at least one of them, on our motion well before the trial, the judge ruled that the jury is only to decide the amount of compensation to my client because the corporation is "legally liable" for violations of law to our injury victim. So the defense lawyer representing the big corporation realizes it's just a matter of how much personal injury compensation the jury will award.

You would imagine that this corporation would now direct its lawyers to sit down and try to settle the case. Wrong! In this circumstance, rather than work seriously toward settling the case, the big corporations often give the defense lawyer a green light to spend any amount of money necessary to smear, attack, confuse or delay. I have had claim representatives actually state that they would rather pay the money to their defense lawyers than pursue more serious settlement discussions. Often they say "your client is in the ozone on what she wants." Many times, we don't think so. Because our lawyers handle personal injury cases well beyond Virginia Beach and Norfolk, Virginia, such as in North Carolina, West Virginia and throughout the entire Eastern U.S., we get exposure to not only Va. injury defense lawyers, but many from the other southern states.

Examples of dastardly defense lawyer deeds in personal injury cases are meaningful because sometimes a potential client looking to retain a personal injury lawyer simply has no exposure or real understanding of how evil and downright nasty (some) personal injury defense lawyers behave once cases are in court:

1. Subpoena everything: when cases go into court, it is very customary for lawyers representing insurance companies and corporations to subpoena not only every medical record of a personal injury victim, but medical records before the day of the actual accident or collision, even going back for years. They do not stop with medical records-they often subpoena employment records, high school or college transcripts, psychological consultation records, everything under the sun depending upon how significant the injury victim is injured. Some of these lawyers routinely subpoena the state criminal records available, unless we as the injury victim lawyer object! If we object, the insurance defense lawyer thinks we are trying to hide something, when in fact, what we are trying to protect is a basic level of privacy. Insurance and railroad defense lawyers argue that there is no privacy whatsoever, because of the filing of an injury suit, and it is often up to a judge to decide on the validity of invasive criminal background checks and other privacy issues. One injury defense law firm routinely sends out a list of every medical provider, health insurance company, prior employer, criminal records, and I would not be surprised to see a subpoena for elementary school transcripts from this law firm!

2. Private investigators: we deal with several large corporations and railroads that find themselves sued for personal injury often. They don't believe what's in legitimate doctor or hospital records. They hire private investigators routinely to stake out and shadow our clients. Yes, just like a movie, depending upon their orders, they will sit inside a van with tinted windows with a hidden video camera. Better yet, we have been involved in cases where private investigators dressed in camouflage suits, climbed trees, and shot videotape with a telephoto lens from long distances through open fields or woods. We've had cases where female private investigators actually walk a dog through our client's neighborhood, and using false pretenses actually ask a neighbor to walk to their backyard to take pictures of the pretty lake behind it. In actuality, the investigator was trying to get a better view of the backyard of our client's home next door. Oh, and there are scams that the investigators will pull. Our personal injury clients walk outside in the morning to find one of their car tires has gone completely flat overnight. The personal injury client might not realize that parked down the street is the van with the tinted windows and the investigator with the hidden video camera inside. The investigator is hoping to report back to their superiors that the personal injury victim was able to stoop and bend to change the tire. During this type of personal injury surveillance, the investigator will also follow the injured person to or from medical or physical therapy appointments checking out the physical capacities of the injury victim. They pull simple scams to learn of appointment dates, at times calling the office and pretending they are the client. We simply tell our clients do not attempt physical activities beyond the physical duties or capacities that they are given by their treating doctors. We have to be alert to the existence of this type of surveillance and to videotape to prevent it being edited falsely or used in any improper way by the defendant. We had one case where the defense claimed it was our client, and was his cousin instead in a few of the images. Amazingly, court procedures sometimes protect a defense lawyer from producing these videos or photos, and we must request that the judge order them produced. Each state and federal court has different rulings on when or whether the materials must be coughed up. The rules should be crystal clear and hopefully the Court rules will be modified in the future.

3. Harassment of the doctor-none of our clients had any idea how evil and paranoid lawyers for corporations and insurance companies can behave simply because your treating doctor or surgeon believes you are disabled or that your serious injuries are caused by an accident or collision. The flavor of the year is that these lawyers argue that the doctor is simply a pawn of the victim's lawyer, and that the doctors are just a mouthpiece for a lawyer. The conspiracy theories of the defense lawyers know no boundaries. In other words, you would think that the court process and conducting a deposition of a treating doctor or surgeon allows the defense lawyer to fully probe the basis of the doctor or physician opinion about impairment, disability, and a personal injury client's ability to return to a prior job. Wrong! Lately, what the defense lawyer (for an insurer or company) will do is try to harass the doctor is issue a ridiculously long and cumbersome subpoena to the treating doctor or surgeon asking them to produce financial information, going back several years relating to their medical practice. So, the dispute isn't about producing the medical file on the patient, it's about financial data. The subpoena will try to force the doctor to engage in some major analysis, administratively, of the number of referrals the doctor had from a personal injury lawyer or from the personal injury victim's lawyer or law firm. The insurance defense lawyer or corporation's defense lawyer has a secret agenda: try to harass every doctor who was willing to treat a personal injury victim so that they will hate the legal system and every personal injury lawyer due to the harassment. This is a serious issue that requires protection by judges due to the improper motives of defense lawyers, as they can get this basic information in a standard deposition. Often, we go into a court hearing, and ask judges to quash or prohibit this type of harassing subpoena, which of course is barely relevant to any main issue which is really the extent of a person's injuries. The subpoena only goes to the side issue of whether a doctor is accommodating to personal injury victims or their lawyers as opposed to insurance defense lawyers or their agenda. What gets lost in this harassing subpoena strategy is the real issue is simply whether the person is injured from the accident, the permanency and prognosis.

4. Motion to exclude the personal injury victim's doctors-the defense lawyer looks for any way to try to convince a court to prevent a personal injury victim's treating doctor or surgeon from giving a deposition or from even providing testimony in support of the patient's injuries. How? The defense lawyers try to dream up anything that can be presented with a straight face. Sometimes they claim a personal injury victim's doctor is trying to testify about something that was not in their records or office notes, or they argue that some part of a doctor's opinion had to be disclosed under a court rule or deadline, and wasn't disclosed adequately or with enough detail. We as personal injury victim lawyers have the burden of proof and must be careful to set forth opinions of doctors and other experts by a deadline. The defense lawyers will look for any angle available that has nothing to do with the legitimate opinions of the doctor. As a matter of fact, we routinely must attend depositions of doctors and experts where the defense lawyer does not ask the doctor or expert one single question relating to their opinions about the patient for up to an hour to two hours into the deposition. Most states, amazingly, have no time limit the deposition of a doctor or expert. If a lawyer feels that the insurance or corporate defense lawyer is abusing the process, it's usually too late or creates more work, because it requires a personal injury lawyer to simply terminate a deposition and argue in a later hearing before the judge that the defense lawyer is taking too long or is abusing the process. This court hearing route can actually take more time away from the case for the personal injury lawyer and let's remember that virtually all defense lawyers are paid by the hour and the more hours they bill, the more they earn.

5. Filing numerous meritless court motions-another strategy of insurance or corporate defense lawyers is to file a whole bunch of motions in court requiring hearings. Many times, the motions are virtually frivolous, but these lawyers are careful to allege just enough in the motion so that we as personal injury lawyers cannot convince a judge to sanction or penalize them for filing such motions. It is very unusual for a judge to award court costs or attorneys fees to the personal injury victim's lawyer for having to battle what we believe is a frivolous motion. It is rare to obtain costs to fight such a frivolous motion. Often, the defense lawyer thinks that anything that is tying up a personal injury lawyer in court on a side issue is good because it is distracting the personal injury lawyer from concentrating on damages and how to argue to a jury for a fair award for the victim. We know that this happens, and we will not take our eye off the ball: presenting evidence that supports the maximum compensation for our personal injury victim/client. We will continue to fight and follow the high road for our clients.

We will not stoop to the level of filing harassing motions, unnecessary court pleadings, or presenting evidence that is not properly supported by medical or expert opinions. These examples did not come up in every case, because many cases actually do get settled without the filing of a lawsuit, and in those situations, only the private investigator surveillance outlined above would apply because the corporation being sued can order surveillance even if no suit is pending.

Originally posted at InjuryBoard by Rick Shapiro

COURT ORDERED MEDIATION IN PERSONAL INJURY CASES

Randy Appleton — Fri, 14 Dec 2007 13:36:46 GMT

Authored by: Randall Appleton

Many courts throughout the country are utilizing court ordered mediation as an alternative dispute resolution tool to assist parties in resolving cases prior to jury trials. Although the procedure varies from jurisdiction to jurisdiction (primarily in the timing of the mediation conference in the litigation process) the format is relatively consistent.

Of course, a lawsuit is initiated when the plaintiff files a Complaint in an appropriate court and has the Complaint served upon the defendant. The parties typically engage in discovery by sending written questions concerning the case to each other to be answered within a time frame prescribed by statute. Depositions may also be conducted which involves the attorneys representing each party making arrangements to pose questions in person to a witness or opposing party who has been placed under oath by a court reporter. Typically, once the parties have concluded the initial discovery in a case, the court will issue an Order directing the parties to participate in a mediation conference to discuss the case with the opposing party and a neutral party or mediator.
The plaintiff's counsel is usually charged by the court with the responsibility of scheduling the mediation conference and the opposing attorney will typically agree on a mediator to conduct the conference; however, in some jurisdictions the court appoints the mediator and it is the mediator who schedules the conference. Each party is typically required to be represented by an individual who has the capacity to agree to terms which will ultimately lead to settlement of the case. This means the plaintiff and a representative of the defendant's claims department or insurance company with the authority to obtain funds in an amount sufficient to settle the case for a reasonable amount are usually in attendance.
Each party is typically represented by counsel at the mediation conference. The mediation session typically begins with the plaintiff and defendant along with their attorneys meeting with the mediator jointly in a conference room. The mediator will typically introduce himself or herself to the parties and explain the guidelines for the process and their fee. Mediators are typically paid an hourly rate for their preparation for, and participation in, the mediation.
Once the mediator has made the initial introductions and provided an explanation of the process, the plaintiff's attorney will typically provide a brief description of the plaintiff's case as well as any settlement negotiations that were conducted prior to the mediation conference. The defense counsel will typically provide a brief description of the defenses available in the case following the plaintiff's counsel's summary.
Following the statements by both attorneys, the mediator will typically place the defendant and defense attorney in one room and the plaintiff and plaintiff's attorney in another and will meet with each party separately. At this time the mediator will begin eliciting settlement proposals from each party and communicating it to the opposing party with hopes that these communications will ultimately lead to a settlement of the case.
If the parties are able to reach an agreement which settles the issues in a case, the mediator will reduce the terms of the settlement to writing and have the attorneys and parties sign the agreement to indicate their consent to the settlement. If the parties are unable to settle a case at mediation, the mediator will report to the trial court that the mediation failed and the case should proceed to trial.
There are some important things to know about mediation. Mediation is generally a voluntary process in that the mediator is not empowered to force a party to take any action involuntarily. The mediator simply facilitates focused discussions concerning the potential for settlement of the case. However, if the parties do reach an agreement which settles a case, that agreement is in essence a contract and both parties are bound to comply with the terms of the agreement.
Mediation offers advantages to both parties. It allows the parties to meet and explore the potential settlement prior to incurring all the costs associated with a jury trial and a potential subsequent appeal. Mediation also allows the parties to meet relatively early in the litigation process (in most cases) which may also lead to an early resolution fo a case to the benefit of all parties. Of course the potential benefits of mediation are tempered by the conduct of the parties. If either party maintains an unreasonable position, the chances of resolving a claim are essentially nonexistent. On the other hand, if each party realistically evaluates the case and enters the mediation session with an open mind, the process may work to the benefit of all parties involved in the case.

Originally posted at InjuryBoard by Randy Appleton

Big Verdict Against Fringe Baptist Church Members Who Protest At Military Funeral--Family Outraged and Apparently Maryland Jury Was Too!

Randy Appleton — Tue, 06 Nov 2007 16:18:57 GMT

By Randy Appleton, HSCLA Attorney

Imagine that you are the parent of a young patriotic man who desires to serve in the United States
Military and who ends up traveling to Iraq. Months later your son is killed in Iraq and you have
the unthinkable task of attending the funeral of your own child. Last, add to the unthinkable funeral that dozens of protesters suddenly show up at the cemetery carrying signs such as "God hates you!" and "God is your enemy!" and other signs which suggest that war in Iraq is punishment on the United States for tolerating homosexuality. A sci-fi movie? No.

In fact, this is exactly what happened at a funeral of Marine Lance Corporal Matthew Snider, who was killed in Iraq, buried in York, Pennsylvania, and picketed by devout members of the Westboro Baptist Church, a fundamentalist Kansas church that has picketed military funerals out of a belief that society is being punished with the war in Iraq because of tolerance of homosexuality.
The family, through attorney Craig Trebilcock, convinced a Maryland jury to award a total of $11 million in damages in favor of the family. The award broke down as $2.9 million in compensatory damages, and then in a second verdict considering punitive damages, the jury awarded $6 million more for invasion of privacy and $2 million for emotional distress. The Snider's attorney was quoted as saying "that says don't do this in Maryland again. Do not bring your circus of hate to Maryland again." The church members routinely picket military personnel killed in Iraq and Afghanistan, and they carry signs as above mentioned and others that say "Thank God for dead soldiers."
While one might believe that everyone has a first amendment right to protest, the U.S. Supreme Court has long held that restrictions on free speech that are reasonably tailored, are constitutional. For example, protesters that want to protest outside of the White House must obtain permits and meet other requirements and similar restrictions are placed on protests around funeral sites, in various states. Actually, Congress has also passed a law prohibiting such protests at federal cemeteries. The main theory of the lawsuit was invasion of privacy and intent to inflict emotional distress, and the verdict was rendered by a federal jury. According to published reports this was the first such lawsuit around the country brought on behalf of a military family relating to such protest.

Originally posted at InjuryBoard by Randy Appleton

Federal Regulatory Agencies-Are They Too Cozy with Big Business? CPSC Chairs Accepted Travel Monies From Manufacturers

Rick Shapiro — Sun, 04 Nov 2007 21:48:03 GMT

According to published reports of the Washington Post, the chief of the Consumer Product Safety Commission has been flying around the country to various events, all paid for by toy, appliance and children's furniture industries that they are supposed to be regulating! Many trips were covered by lobbying groups and lawyers representing these manufacturers.

The trips were taken by Nancy Nord or Hal Stratton, chairpersons, and involved at least a combined 30 trips since 2002, according to the Washington Post. The value of the trips, hotels and meals also combined to total nearly $60,000. For the last several years, critics of the agency have argued that the agency has become too close to the regulated industries it is supposed to regulate.
We all think of the Consumer Product Safety Commission is one of the ultimate watchdog organizations of our government-and it used to be-but not anymore.

Actually, CPSC officials have tried to defend the industry "bought and paid for" trips as a way for the agency to be in contact with manufacturing officials and to learn their concerns. One official with a consumer nonprofit advocacy group, Public Citizen, stated: "This is a blatant violation of the ethics code," adding that nonfederal sources can pay for trips "but not if you're a private party with business pending before the agency." And yes, several examples exist of upcoming issues that concerned some of the manufacturers involved.

The commission has also been under fire due to the recall of large number of Chinese toy products during 2007 and an overall lax attitude toward product safety.

The trips covered or partly paid for by lawyers and trade groups for industries included San Francisco, travel to China, New Orleans, New York, Fort Lauderdale, Florida and Orlando, Florida trips.

Another amazing example of the cozy relationship with the regulated industries, is that Nancy Nord, the agency's acting chair person, accepted more than $2000 in travel and accommodation monies from the Defense Research Institute to attend one of its product litigation trends seminars. The Defense Research Institute has 3000 members which are mostly lawyers representing companies involved in product liability or manufacturing issues. According to the DRI, the seminar was all business, and Nord spoke to the lawyers about the processes and procedures of the CPSC etc. Of course, there is nothing wrong with the commission and chair addressing this group, what is wrong is accepting money to travel to the seminar! It just doesn't smell right.

The Federal Railroad Administration-
Another Major Under-Achieving Federal Agency

On September 12, 2007, David Vladeck, a professor at Georgetown University Law School testified before the U.S Senate Judiciary Committee on current activities of several federal regulatory agencies, and as to the Federal Railroad Administration he offered the following:

The Federal Railroad administration (FRA) has also pushed regulatory preemption. The FRA cites the express preemption of the federal railroad safety act (FRSA) as support for its broad preemption theory. But that statute preempts only a state "law, regulation or order" that covers the "same subject matter" as the federal rule....

The 9/11 Act [enacted in August 2007] makes explicit that actions "under state law seeking damages for personal injury, death, or property damage" are preserved, and are preempted when, but only when, they are "incompatible with" federal mandates. Notwithstanding this clear preservation of state damages law, the FRA now claims, in every rule that it is developing, that the rule, once finalized, will preempt any common law theory of liability. Consider one particularly egregious case of overreaching by the FRA. Only three days after Congress passed the 9/11 Implementation bill, the FRA included significant preemption language in its notice of proposed rulemaking regarding passenger equipment safety standards. In the preamble, the FRA claims that the rule preempts "any state law, regulation, or order it including state common law, concerning the operation of a cab car....or [multiple unit] MU locomotive as the leading unit of a passenger train" ....However, if [any courts defer] to the FRA's preamble claim of broad preemption, California law, and the law of every other state that requires railroads to exercise due care for the safety of passengers, will be swept aside....

I could go on. But as this list makes clear, this administration has seized on regulatory preemption as a way to cut back dramatically on state law remedies for those injured by products and services Americans depend on every day for their health and well -- being-medicines, medical devices, motor vehicles, the matress on which we and our children sleep, and the commuter trains millions of us take to work every day.

Hopefully, the message of Professor Vladeck about the biased roles these regulators are now adopting is getting through to the present Congress.

The Federal Railroad Administration is probably the absolute weakest regulatory agency in the U.S. government. The administrators are lobbied heavily by the industry supposed to be regulated, and there are very few well organized citizen/consumer groups whose message gets through to the agency compared to the railroads themselves. Also, there have been several high level FRA officials that have left the FRA to significant jobs in the railroad industry, ...surprise.

For more information on this subject, please refer to the section on Defective and Dangerous Products.

Originally posted at InjuryBoard by Rick Shapiro

Norfolk Southern Issues "Injured at Work" Brochure Pressing Workers Not To Retain Lawyers

Rick Shapiro — Sun, 28 Oct 2007 08:05:24 GMT

In the recent past, several insurance companies have issued controversial guides about what to do if you are in a car accident--the controversy arises from the not so subtle message NOT to retain an attorney. Actually, several lawsuits forced insurers to change or alter their materials. Now, Norfolk Southern, which is subject to claims falling under the Federal Employers' Liability Act ("FELA") has issued a brochure called "Injured At Work" and is sending it to every employee that reports an injury or on the job disease or disorder. The brochure is so full of deception and inaccuracies that our law firm, which handles railroad injury claims and suits, has issued a point by point "rebuttal" to set the record straight. An excerpt is issued below, and the full rebuttal is available free from our law firm (800-752-0042, Hajek, Shapiro, Cooper, Lewis & Appleton).

Many railroad workers believe that the injury system is workers compensation (workers compensation is a "no fault" system, meaning compensation occurs whether an employer is at fault/negligent or not, but railroad workers hurt on the job fall under a unique federal law system, the FELA, and are only compensated by showing negligence or a statutory/regulatory violation of the railroad or its agents. For a full discussion of the FELA, visit our website at www.HSInjurylaw.com and locate complete articles on this topic.

NS statement:

"[T]he company will make every effort to reach a settlement of the claim that is fair to everyone."

REAL RESPONSE: Well, in fact NS is trying to make a settlement that is fair to NS and really does not have a great deal of regard to whether the settlement is fair to the worker. We have seen many cases in which the total goal of the railroad lawyer is to deny a penny of compensation to a railroad worker and we don't believe a statement that NS is seeking a settlement fair to everyone is accurate.

NS statement:

Q: If it is necessary for me to obtain medical attention, will my supervisor go with me to the hospital or the doctor's office?

A: "Yes. Your supervisor is charged by the company with seeing that you receive proper medical attention promptly.... He or she can also provide the doctor or hospital with information concerning payment of medical bills, the processing of forms and procedures for obtaining prescribed medications."

REAL RESPONSE: We have been involved in many cases where the supervisor intervenes with the railroad worker's doctor, pleading with the doctor not to prescribe prescription medications that would make an injury a "federal reportable" injury. Other examples are well known as well. And by the way, what does your supervisor have to do with your personal medical care? We don't think they have a right to know a thing about your personal medical care except for the fact that NS wants your first medical visit to be to a doctor that it has a prior relationship with (hopefully this doctor will "help" the railroad to avoid an FRA reportable injury, but this will not medically help you the patient!) You as a worker have no duty to let a supervisor know anything about your medical condition and the only duty you have is to have your first medical visit at a place that the company suggests if in fact there is a clinic convenient to where you are located. In an emergency situation the railroad can not demand that you go to some pre-approved railroad company approved doctor-you should get the closest available emergency care of course.

NS Statement:

Q: Since my case could go to court, and I have the right to sue, doesn't it make sense for me to have a lawyer representing me from the beginning?
A: You should hire a lawyer only after careful consideration of whether it is in your best interest to do so....you should remember that you have three years from the time of your injury to start a court action, so there is not need to hire a lawyer immediately. It is a good idea to try to reach a suitable agreement with the claim agent before employing a lawyer.

REAL RESPONSE: Examples are best to explain why this is a deceptive answer by NS-amazingly NS essentially is saying: don't call that lawyer! Wait a year or two!. Remember those commercials where you see a house burn down and the insurance agent is there to give a check to the poor homeowner standing where the home once was? The problem with getting that quick settlement is that the poor homeowner probably has no idea of the value of all the contents of the burned down house and likewise a railroad worker has no idea of the value of their claim right away, without obtaining legal advice from a skilled railroad injury lawyer. NS says here there is no rush to hire a lawyer because you have three years to sue! What about that important issue called "preserving the evidence?" The biggest problem we see with cases where we are retained after a year or two years or more, is that the evidence is gone, the workers who can provide evidence are difficult to locate and there are innumerable changes to the involved equipment or scene of the accident. The precise reason you need to consult with a lawyer is so you can obtain attorney-client privileged advice before you decide to retain us. For example, we might just know whether your circumstances could involve a regulatory violation which would eliminate a need to prove that the railroad even knew about the violation, unlike the legal standards for negligence cases against railroads. The railroad claim agent will never explain this to you. Of course, the railroad claim agent will consult with the railroad's lawyers and the railroad law department on an attorney-client privileged basis and you will never know that. Why shouldn't you consult on attorney on your side if the claim agent is secretly doing so to protect the railroad? You should always seek a free initial consultation with a skilled railroad injury lawyer before deciding on a rapid settlement, under which you may have no idea what the value of your claim is, and you may have failed to appreciate just how extensive your personal injuries are. How can you know if a settlement offer is "good" if you do not understand all that you may be entitled to under the law?

NS Statement:

A: An attorney...will usually require you to sign an agreement covering the fees he will be paid for handling your case....from 25% to 40% of your settlement (or court verdict), plus the expenses of the attorney and others in his office to research, travel, meals, consultant fees, etc. Although an attorney may sue for a large amount, the attorney cannot guarantee the outcome....

REAL RESPONSE: No ethical lawyer will guarantee an outcome-this is true, but the rest of this response omits a lot of important points. First, the railroad is hoping you will not get a privileged, confidential "free consultation" from a lawyer. There is no obligation to sign a contract with our law firm and we will provide that free initial consultation. Why shouldn't you have legal advice if the railroad claim agent and railroad supervisors are getting it on a confidential basis themselves? The nonpartisan General Accounting Office of the U.S. Congress was asked by Congressmen, during the 1990's, to evaluate whether the railroad injury law system was outdated and costly, and should be replaced with some railroad workers compensation system that the railroads have sought since the early 1900's-to replace the existing Federal Employer's Liability Act. The study covered many aspects of this railroad injury law called the FELA, but it statistically found that attorneys recovered far more on average than railroad workers who did not have representation. The railroads know this and they work hard to see that injured workers do not get legal representation because the settlements are statistically bigger and it costs the railroads a lot more when the railroad worker and their skilled lawyer demand compensation that is fair and covers all present and future aspects of the injury claim.

Lets talk about the case expenses that NS claims a lawyer may "spend," as this is a favorite NS scare tactic. Our law firm advances any of these court costs and expenses for you, and ONLY WHEN WINNING YOUR CASE REQUIRES IT. The client repays these necessary expenses only upon the settlement, resolution, or upon a verdict in court. For example, if your surgeon requires an hourly fee to give a deposition about the extent of your injuries, we must pay this on your behalf. Or, if we need to get a medical illustration to show exactly how complicated and problematic your surgery was, we want to have this illustration so a jury will understand how significant your problems will be and what future implications there are. The railroad doesn't want a jury to see those exhibits because they want an early, cheap, settlement where you have no idea what all the implications of your injuries are. It is simple economics and that is why lawyers obtain larger settlements. Also, knowledge is power. One example: lets say you already had surgery and are dealing with a claim agent and do not have a lawyer and are beginning negotiations. Do you really think the NS claim agent will contact your surgeon and ask: "Doctor, how permanent is the affect of this surgery, and what future issues should NS consider before we settle the claim?" You must be kidding! However, this is but one of many, many things your lawyer will always do. Last, our firm, like most, does not charge any attorney fees unless we win a settlement or verdict for you, and the contingent percentage is only by written agreement discussed with you before you retain our firm. We explain all issues with you before you retain us. Yes, our clients retain us because they believe that they will recover fair compensation using our services, and usually this CLEARLY MEANS CLIENTS BELIEVE THEY WILL DO BETTER THAN DEALING WITH THE RAILROAD CLAIM AGENT WITHOUT LEGAL REPRESENTAION.

NS Statement:

Q: What about recommendations from friends or strangers?
A: Some lawyers employ investigators or runners who primary function is to solicit personal injury cases for the lawyer....Often, if they are successful in obtaining a case, the lawyer pays them a lump sum or a percentage of your settlement.

REAL RESPONSE: In Virginia where our law firm is based it is unethical, if not down right illegal to pay an investigator or any other person a fixed sum of money as direct compensation for getting a railroad worker to retain a lawyer. This railroad statement is baseless and deceptive and certainly is not what happens at our law firm, or any firm in compliance with state laws. Obviously, our investigators, particularly the ones who are retired railroad workers, have great background in understanding railroad injuries and accidents, and not only in assisting clients with various questions after a worker retains our law firm, but our investigators help us locate evidence and witnesses, interpret and identify railroad rules and procedures that apply in the case, and in overall strategy for your case. An investigator for out law firm, in many ways is no different than a railroad claim agent who is paid by the railroad. The claim agent is supposed to gather evidence to defend the railroad. Our investigator is employed to help you obtain evidence and information that will help your claim against the railroad. What is the difference? As a matter of fact, the railroad claim agent is probably given bonuses by keeping the amount of your claim to the lowest extent possible. And that is legal! Our law firm, under the law, cannot promise our investigators (or any other person) a sum of money to try to convince a worker to retain our law firm. We rely on the biggest time tested factor: our track record. Study our law firm website: www.HSInjurylaw.com and you will learn why railroad workers and their family members have entrusted our lawyers with their claims and why the railroad invested big money to publish its brochure just to convince you not to obtain a free initial consultation with an experienced railroad injury law firm.

For more information on this subject, please refer to the section on Airline, Cruise, Bus and Other Mass Transit Accidents.

Originally posted at InjuryBoard by Rick Shapiro

Independent Panel Finds Virginia Tech Mishandled Student Cho Massacre

Rick Shapiro — Thu, 27 Sep 2007 11:20:48 GMT

As parents, we think we've done our jobs well when our children turn 18 and go off to college. At college, we expect they will be safe and secure- safe to have a happy college experience and prepare for a bright future. This is what the parents of dozens of Virginia Tech students expected when they sent their children off to college. And tragically, this is not what happened. On April 16, 2007 mentally-disturbed student gunman Seung-Hui Cho entered Virginia Tech dorm West Ambler Johnston Hall and fatally shot two students, and several hours later opened fire in the Norris Hall academic building, killing 30 more students and faculty, setting the terrible U.S. record for the most deadly shooting by a lone gunman.

This month, an independent investigation panel formed by Virginia Governor Tim Kaine, upon reviewing thousands of documents and interviewing over 200 people, found that lives could have been saved had Virginia Tech handled the Cho situation differently in several ways.

First of all, it found that, despite "clear warnings of mental instability" that were widely known by various individuals and departments in the university, the university "did not intervene effectively" and that "no one connected all the dots." For example, one of Cho's professors, famous writer Nikki Giovanni, was so disturbed by Cho's writings and classroom behavior in the fall of 2005 that she told the head of the English department she would resign if Cho were not removed from her class. According to the panel's report, the university began preliminary proceedings to have Cho's mental health evaluated after this incident, but somehow Cho fell through the cracks and no one followed through with getting him psychiatric treatment. Around this same time, campus police were receiving complaints from female students that Cho was stalking them and engaging in other strange behaviors, but appropriate parties were not made known of these incidents. Eventually, Cho was even institutionalized in a mental health facility, an incident his parents never even knew about.

One of the reasons for the university's ineffective response to Cho's condition was that it misunderstood federal laws regarding privacy of health and education records - the university did not believe it could legally communicate Cho's mental health problems to other university departments and Cho's parents, when in reality, federal and state laws "afford ample leeway to share information in potentially dangerous situations" such as this situation. Had the university not made this mistake, students and faculty may not have lost their lives. In addition to this incorrect interpretation of privacy laws, the panel also found that the Cook Counseling Center at Virginia Tech "failed to provide needed support and services to Cho" due to a lack of resources and simple passivity, yet another fatal mistake on the university's part.

In addition to errors made before April 16, Virginia Tech and its police department also made some huge mistakes on the day of April 16. The two shootings that occurred in West Ambler Johnston Hall occurred several hours before the shootings in Norris Hall, yet most of the campus community never knew about the earlier shootings and had no reason to believe they needed to be more vigilant in their activities that day. The campus police made the mistake of assuming that their initial lead in the two early-morning shootings was a good lead and that the suspect was really off the campus. Tragically, they did not "take sufficient action to deal with what might happen if the initial lead proved erroneous." According to the panel, the police should have requested a campus-wide notification be sent out that two people had been killed and that the campus needed to be alert and vigilant, and senior administrative officials should have made sure such notification was sent out. Just perhaps, had this notification been sent, the death toll that day might have stayed at two instead of 32.

This Virginia Tech shooting is one of the most tragic events that has ever occurred in American history, much less on a college campus, typically assumed to be a place of low need for security. Our sincere and deepest sympathy goes out to the many victims and victims' families of that day-especially since our personal injury law firm, Hajek, Shapiro, Cooper Lewis & Appleton, P.C., is based in Virginia.

For more information on this subject, please review our section on Wrongful Death.

Originally posted at InjuryBoard by Rick Shapiro