Virginia Beach Personal Injury Lawyer - workplace injuries

Conrail Rocked by 2.6 Million Diesel Exhaust Asthma Verdict

Rick Shapiro — Thu, 08 May 2008 19:52:40 GMT

In late April 2008, an Ohio state court jury ordered Conrail to pay $2.6 million to its former locomotive engineer, for negligently causing his diesel exhaust asthma lung disease. Frank Battaglia, worked in the Detroit, Michigan rail yards for Conrail for 23 years as a railroad engineer, before he was eventually diagnosed with diesel exhaust fume asthma. Ohio based attorneys represented Battaglia, and Conrail retained Pittsburgh, Pennsylvania lawyers who specialize in defending railroads, including defending claims involving diesel fume type cases.

Apparently, the jury bought the worker's side of the serious lung damage story and rejected the Conrail side.

Battaglia’s lawyers presented evidence that his lung disease was the result of inhaling fumes hundreds, if not thousands of occasions while he worked as a railroad engineer usually involving his location inside locomotive engine cabs. His attorneys argued that federal railroad administration (FRA) regulations prohibit diesel exhaust fumes from entering into the locomotive engine cab, and that this regulatory violation directly led to lung disease in Mr. Battaglia.

Conrail is a subsidiary of Norfolk Southern, and one of Norfolk Southern’s medical doctors also gave testimony to defend Conrail, along with other doctors that were specially retained on behalf of Conrail. Conrail denied the worker suffered any disease from diesel fumes.

The jury received testimony for an entire week, and then deliberated five hours before returning the $2.6 million verdict in favor of Battaglia. This is the second major verdict attorney Leizerman has obtained in a diesel exhaust fume trial, with an earlier verdict for another railroad locomotive engineer several years earlier, who sued Norfolk Southern. That earlier verdict was upheld on appeal in the state of Ohio appeals court system.

Rail workers most exposed to diesel fumes are railroad locomotive engineers, railroad conductors, railroad carmen, and railroad shop workers who have worked around diesel engines for decades. Medical experts have documented an increased incidence of lung cancer in railroad workers with these long-term exposures to diesel fumes as well. Our law firm has received an increasing number of inquiries from railroad workers who believe they may suffer diesel asthma lung disease. An experienced occupational medical physician can determine if your particular form of lung disease symptoms are consistent with this often undiagnosed form of “diesel asthma," and the doctor must also evaluate any other occupational exposures to dusts, fumes and similar irritants.

The Environmental Protection Agency, in 2008, finally put into effect new regulations governing diesel engine emissions in railroad locomotives as well as trucks and other types of motors using diesel fuel. Soon, there will be monitoring requirements for what types of emissions are coming from the engines, but this will have no affect on workers who may have been exposed in the past. There have been a number of medical journal articles discussing the pervasive adverse health affects of diesel fumes, and the awareness of the dangers of long term exposures have now been well documented. The public is just now starting to understand the issue.

My viewpoint: The serious long term effects of diesel exhaust fumes are well documented. The medical community and the public are paying more attention.

Originally posted at InjuryBoard by Rick Shapiro

Railroad Diesel Exhaust Fume Disease & Pollution: Interview with Dr. Dick Van Steenis, British Authority on Diesel Pollution

Rick Shapiro — Fri, 18 Apr 2008 10:03:00 GMT

Diesel exhaust fumes health and safety issues have been pushed to the forefront of health news by passage of new U.S. governmental regulations pertaining to railroad locomotive engines and other diesel spewing engines, as well as publication of a number of diesel exhaust fume studies, which showed that prolonged exposure caused “diesel asthma” and also are linked to increased incidence of lung cancer.

One of the leading authorities on the health and safety dangers of diesel exhaust fumes is Dr. Dick Van Steenis, a specialist in occupational medicine and scholar, who lives in Great Britain. After the exchange of email discussions with Dr. van Steenis on current topics of interest relating to diesel fumes, I thought it would be a great idea to interview him on this important health and safety topic. The interview follows:

Q: For those persons in the United States reading this article, I wanted to first note that you are actually a resident of England and are also a medical doctor by background and training. Can you tell us briefly about your medical career and how you became interested in health issues relating to diesel exhaust fumes?

A: I have been researching the health effects of industrial air pollution for 13 years. I used to be a general medical practitioner and in 1995 was asked by the Campaign for the Protection of Rural Wales to sort out health aspects of a power company application. I clearly needed to learn the subject and was in contact with leading experts located at Harvard, Denver & elsewhere, and extensively read and studied this subject over many years. I am now published in 4 medical publications & have lectured at 4 international medical conferences including 2 in USA (Dallas & Hot Springs).

Q: Tell us about some of the adverse health effects of diesel exhaust fumes you have studied in the United Kingdom?

A: My research includes effects of emissions from using various qualities of diesel ranging from "city diesel" which is between road diesel & kerosene, down to dirty industrial diesel mixes including waste oils with solvents. Diesel quality in trains in the UK varies with each company. Virgin are cleanest & First Great Western worst. The particulates emitted from diesel finally become PM1 to PM2 in size and contain carbon, polyaromatic hydrocarbons, other items and in the case of waste oil mixes also heavy metals. Carbon monoxide, carbon dioxide and nitrogen oxides are also emitted. Inhalation of carbon monoxide is not healthy, nor is inhalation of particulates of the PM1 to PM2.5 size all of which go into the depths of your lungs.

Q: Here in the United States, diesel fuel is not used with nearly the frequency it is in Great Britain or Europe as virtually 99% of the automobiles in this country use gasoline and not diesel. Based on your research what would you consider the worst polluters of diesel exhaust fumes in the United States and is this the same in Great Britain?

A: The worst polluters in the UK are earth moving equipment. One such machine was tested using industrial diesel and emitted as many fine particulates as 900,000 Volvo V70 cars and most were of the PM1 size. Four "bulldozers" working on a development in Brighton (UK) June 2007 caused air levels as high as 1100ug/m3 (safe level about 5ug/m3). The second worst emitters are some trains of old technology using inferior quality diesel fuel. (I am only discussing diesel vehicles, not oil refineries or incinerators, which have huge health effects in the UK).

Q: Based on your research, is there a clear consensus as to what part of diesel exhaust fumes are likely causing the increased lung cancer rates that have been studied and analyzed?

A: Lung cancer can be caused by polyaromatic hydrocarbons always present in diesel emissions, and by any heavy metals present such as nickel, cadmium or chromium.

Q: In one of our email exchanges you explained that particulate size (PM)of diesel exhaust fumes is a very important medical and health factor in relation to disease process in the lung. Can you please explain this so it is easily understood for a reader?

A: When PM1 & PM2.5 diesel emissions are inhaled, the soluble content goes into the blood stream. The rest is dealt with by macrophages and T-lymphocytes of the immune system. That leaves the body unprotected against infections and vaccines as the T-lymphocytes are busy in the lungs. The remnants of the particles are walled off by fibrous tissue causing COPD. The reaction sets up an inflammation causing platelets & red cells to become more sticky which can lead to a heart attack. Any nickel present messes up the heart's electrical system. Other content alters the blood cholesterol making it more dangerous.

Q: Is diesel fuel sold in the United States now, since the year 2000, essentially the same as diesel fuel that was sold in the 1970s and 1980s as far as pollution or health effects?

A: The quality of road diesel sold in USA & UK has improved since 1990 and of non road diesel it has improved in USA due to the USEPA stipulating reductions of sulphur content by 99%. Further improvements can only be made in purity & viscosity.

Q: Thanks very much for agreeing to this interview!

A: You are very welcome.

Originally posted at InjuryBoard by Rick Shapiro

Railroad Industry Diesel Exhaust Fume Diseases: Interview With Industrial Hygienest Leonard Vance

Rick Shapiro — Thu, 17 Apr 2008 09:19:18 GMT

The author has been exploring health and safety issues relating to diesel exhaust fume asthma and pollution and personal health and safety, especially in the railroad industry In reviewing several legal decisions involving diesel exhaust asthma in railroad workers, I noticed that a Richmond, Virginia industrial hygienist was quoted by the Court decisions. I decided to catch up with this expert, Leonard Vance, and interview him about current issues relating to diesel exhaust pollution and health issues, especially at railroads. Dr. Vance is also a lawyer, and a professor in the Epidemiology Department at the Medical College of Virginia Campus of VCU in Richmond.

Q:        Dr. Vance, what do you teach at the Medical College of Virginia and in what department are you working?

A:       I’m in the Department of Epidemiology and Community Health within the School of Medicine. I teach 5 graduate courses: a required course entitled Principles of Occupational & Environmental Health, a two semester course in industrial hygiene, a course in Public Health Law, and a course in chemical law and regulation as my Ph.D. is in chemistry. And I teach several VCU continuing education courses covering hazardous waste, asbestos, and lead issues.

Q:         You have unique credentials because you are both a Virginia lawyer and a hygienist. Since what year have you been a lawyer, and do you still handle cases or are you just working as an industrial hygienist?

A:       As a professor, I work on a 9 month contract. So I do have the summers off and I practice both law and industrial hygiene during that time. As a lawyer, I represent mainly defendants in OSHA enforcement cases. And I still do field industrial hygiene air monitoring, as well.   The primary benefit of being a professor is that the work is never routine.

Q:         I’ve known you since the mid 1990s since we co-authored a Treatise article entitled “Railroad Health and Safety; A Litigator’s Guide” that was published by Thomson West in American Jurisprudence Trials. However, when we wrote that book length treatment in the 1990s we barely paid attention to diesel exhaust fume safety. What new information has become available to industrial hygienists and medical doctors doctors with regard to prolonged exposure to diesel exhaust fumes?

A: Numerous studies of the health effects resulting from diesel exhaust have been published. Many of them are referenced in a recent publication from EPA discussing EPA’s reasons for tightening its regulations on diesel exhaust. Some of the effects associated with diesel exhaust exposure are cancer, chronic obstructive pulmonary disease, asthma, heart and lung diseases, a variety of cardiac effects, increased cough, poor lung function, and premature mortality.

Q:         Do any of the medical articles or studies discuss whether diesel exhaust fumes cause lung disorders in railroad workers, or are associated with increased rates of cancers?

A:        A lot has been written about lung cancer, diesel exhaust exposure, and railroad workers. Here’s what EPA recently published[1] about that topic in the Federal Register on March 14:

Retrospective health studies of railroad workers have played an important part in determining that exposure to diesel exhaust is likely to be carcinogenic to humans by inhalation from environmental exposures. Key evidence of the diesel exhaust exposure linkage to lung cancer comes from two retrospective case-control studies of railroad workers….

* * * *
… EPA reviewed 22 epidemiologic studies on the subject of the carcinogenicity of workers exposed to diesel exhaust in various occupations, finding increased lung cancer risk, although not always statistically significant, in 8 out of 10 cohort studies and 10 out of 12 case-control studies within several industries, including railroad workers. Relative risk for lung cancer associated with exposure ranged from 1.2 to 1.5, although a few studies show relative risks as high as 2.6. Additionally, the [EPA] also relied on two independent meta-analyses, which examined 23 and 30 occupational studies respectively, which found statistically significant increases in smoking-adjusted relative lung cancer risk associated with exposure to diesel exhaust, of 1.33 to 1.47. These meta-analyses demonstrate the effect of pooling many studies and in this case show the positive relationship between diesel exhaust exposure and lung cancer across a variety of diesel exhaust-exposed occupations.

So, yes, studies have confirmed the adverse health affects on railroad workers.

Q:        Did you notice that in March 2008, the Environmental Protection Agency (EPA) issued new regulations that provide for new pollution controls and for testing, relating to railroad locomotives, and are these new regulations tighter and stricter then before?

Q:        They are quite a bit stricter than the rules they replace. And those rules were fairly new themselves. EPA said its March rule would annually prevent up to 1,380   premature deaths, 120,000 lost work days, 120,000 school day absences, and 1.1 million minor restricted-activity days. Now that’s from the rules effect on both locomotives and marine engines, but it’s pretty dramatic.

Q:        Thanks for taking the time for this interview.

A:        You are very welcome.

Dr. Vance is a life-long Virginian, with his B.S. from Virginia Tech and his doctorate from UVA. His email address is vance@vcu.edu.

__

[1] EPA Final Rule, Control of Emissions of Air Pollution from Locomotive Engines … ., Federal Register, March 14, 2008; available at http://www.epa.gov/otaq/regs/nonroad/lm-preamble.pdf

Originally posted at InjuryBoard by Rick Shapiro

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

Radiation and Radioactive Exposures May Have Impacted Railroad Workers

Rick Shapiro — Fri, 01 Jun 2007 11:50:06 GMT

Our law firm, Shapiro, Cooper, Lewis, and Appleton, has a special concentration in railroad injury matters, as well as all forms of personal injury. We have recently been retained on cases involving railroad workers who have developed cancer and other radiation related illness and disease as a result of exposure to radiation and radioactive substances while working for railroads that routinely transported cargo into and out of nuclear weapons facilities while working as railroad engineers, conductors or even as railroad track maintenance workers. In a number of areas of the country, nuclear weapon facilities required all kinds of uranium and radioactive material in order to build the often secret nuclear weapons. It is very common to have the primary source of transport of these materials and byproducts to be by railroad/train. Just as one example of many, there is evidence of ground contamination by radioactive substances in many areas outside of Oak Ridge weapons facilities in Tennessee (also often called Oak Ridge National Laboratory). The government Department of Energy, in an official report in the 1990's, on the ground contamination near Oak Ridge, concluded that the radiation originated from radioactive sources within concrete casks, transported years earlier by rail. It is clear that even concrete casks cannot contain all "low level" radiation emissions.Mostly beginning in the 1990's, there was an increased awareness of the potential dangers of what had historically been called low level radioactive waste being associated with many sorts of cancers. Thyroid cancer is very commonly associated with radiation exposure but there are many other cancers that are also associated with excessive exposure to radiation or ionizing radiation. Our office has reviewed a number of government reports that we have obtained under the Freedom of Information Act relating to radiation and toxic substances cleaned up from areas around Oak Ridge. The Department of Energy has actually paid for many clean ups around Oak Ridge, including at various scrap yards, and even on the CSX spur, which directly lead to Oak Ridge. Railroad workers commonly handled switching of the Oak Ridge waste materials, both in and out of the Oak Ridge National Laboratory. Most people realize that the first nuclear weapons were largely made at Oak Ridge as part of the top secret Manhattan Project.
Another site that has been the subject of contaminated radioactive clean ups as well as clean up of various other toxic substances is the Paducah facility in Kentucky, which also contributed many parts and components related to secret nuclear and chemical weaponry. There have been reports and newspaper articles relating to various types of contamination arising from Paducah, Kentucky, and also there have been concerns over many byproducts associated with these weapons that are extremely toxic substances. Some of these include Uranium, Hexafluoride, as well as Phosgene. All of these substances are highly toxic substances that are associated with cancers.
Radiation has been known since the time of the 1940's to present ultra hazardous dangers to humans. Even when transporting low level radioactive waste, special protections must be employed to any workers associated with these known highly toxic substances. Many years ago the Department of Energy or Nuclear Regulatory Commission provided guidelines and standards for potential exposure limits for radioactive substances. Later, the Occupational Safety and Health Administration (OSHA) has also been involved in regulating radioactive substances and further, with regard to railroad activities the Federal Railroad Administration (FRA) has relatively new regulations pertaining to radioactive materials although many of the regulations have been passed since the circumstances of September 11.
When a railroad worker has a disorder or cancer believed to be associated with the exposure to radioactive substances, careful analysis must be made by a doctor specializing in occupational medicine and it is important for a railroad injury lawyer to be familiar with the types of toxic substances or radioactive exposures that a railroad worker may have been exposed to while working for any particular railroads. Careful review of the occupational history is necessary, careful selection of a doctor with familiarity with radioactive exposure is also required. Other types of experts may be necessary in these types of cases, such as an epidemiologist, who is important to analyze statistical information relating to cancer rates relating to such exposure, and also a certified industrial hygiene expert would be an important expertise in any particular case to determine whether appropriate workplace safety measures were taken.
Railroads are fairly large companies and have always maintained a medical department. Railroad claims departments also keep up very carefully with industry trends and medical conditions. It is always incredible to learn as a railroad injury lawyer representing railroad workers how few important workplace safety measures were taken by railroads and this would include the most basic protections against the toxic potential exposure to highly radioactive substances being transported by railroads.
Several railroad workers that this author has interviewed explained that no respiratory protection was provided to railroad workers working in and out of certain nuclear weapons facilities, even though the particular railroad in question knew that only by products of radioactive weaponry were being transported either in or out of the facility. Inside the plant workers may have been wearing space suits, but as soon as the train car crossed the threshold and was moved by the railroad, no radioactive exposure safety measures were employed by the railroad moving the same materials.
With increased knowledge of the types of cancers associated with radiation, and new scientific and medical techniques, it may be increasingly easier to associate certain types cancers and occupational exposures with the lack of workplace safety measures by railroads.

Originally posted at InjuryBoard by Rick Shapiro