SPRING 2004
Diesel Exhaust and Second Hand Cigarette Smoke: A Deadly Combination for Railroaders
The American railroad industry first recognized the hazards of diesel exhaust to its workers almost 50 years ago. In 1956, claims agents from various railroads met and heard a presentation by an attorney employed by one of the national railroads. In the presentation, the attorney told the claims agents that diesel exhaust contains carcinogens.
In 1965, various medical officers from American railroads again discussed the hazards of diesel exhaust. The minutes from this program lists lung cancer as a possible consequence of exposure to diesel exhaust.
In the late 1970s and early 1980s, a group of researchers from Harvard University studied the incidence of lung cancer in railroaders exposed to diesel exhaust. These studies concluded that there is a link between exposure to diesel exhaust and lung cancer. A later comprehensive study of the question by the Environmental Protection Agency supports
this conclusion.
The link between cigarette smoke and lung cancer was also proposed as early as the 1950s. By the mid to late 1960s, the composition of cigarette smoke was well known to contain many hazardous substances including many lung carcinogens. By the 1970s, it was known that exposure to second hand smoke or environmental tobacco smoke (ETS) could be hazardous to non-smokers.
In 1986, the United States Surgeon General published a major study on the hazards of ETS. This study, entitled The Health Consequences of Involuntary Smoking, concluded that exposure to ETS could cause lung cancer in non-smokers. Later studies have also linked heart disease and benign lung disease to ETS.
For decades, railroad employees have been exposed on a daily basis to large amounts of diesel exhaust and ETS. The greatest exposures have occurred to those workers in the shop, transportation crafts, and clerks. For example, engineers, fireman, brakeman, and conductors since the 1950s have ridden in the cabs of locomotives and trailing locomotives laden with diesel exhaust and the ETS from smoking co-workers. Clerks also spent decades in offices where smoking was common and widespread.
Railroad Diesel Exhaust and Lung Cancer
Establishing a Viable Claim Under FELA
Diesel exhaust has been identified as a cause of lung cancer among railroad workers. The medical evidence supporting the link is substantial enough that the National Institute for Occupational Safety and Health has recommended that "whole diesel exhaust be regarded as 'a potential occupational carcinogen' as defined in the Cancer Policy of the Occupational Safety and Health Administration."
The first component is called the gaseous phase and includes such gases as carbon monoxide, carbon dioxide, formaldehyde, acrolein, nitrogen oxide, and nitrogen dioxide. This phase produces acute effects such as burning and watering of the eyes and irritation of the respiratory tract. Acute effects are usually temporary and disappear with cessation of exposure.
The second component, called the particulate phase, contains most of the carcinogens found in diesel exhaust. This phase consists of tiny particles of unburned carbon that appear as dark smoke or soot. Most particles are of respirable size-that is, they range between .2 and .5 microns in diameter, so they can be inhaled and retained in the terminal points of the lungs, the bronchioles and alveoli.
Attached to the particles are more than 1,000 organic chemicals, including polycyclic aromatic hydrocarbons (PAHS). Some PAHS are confirmed or suspected human lung carcinogens. The most common is benzo(a)pyrene, which has been identified as the most potent lung carcinogen in cigarette smoke. Medical studies have also identified nitrated polynuclear aromatic hydrocarbons as potential carcinogens.
Exhaust particles have rough, irregular surfaces and high surface areas, facilitating their absorption of chemicals. The particles act as carriers, delivering carcinogens to the deepest points in the lungs, where they produce cancer.
Epidemiological studies of diesel-exposed railroad workers have estimated that shop craft workers like electricians, machinists, and shop foremen, who work indoors, are the most heavily exposed to diesel exhaust. This is due to the common practice of allowing locomotives to idle indoors. These studies found that engineers, firemen, brakemen, and conductors have also been exposed.
An employee claiming occupational illness caused by diesel exhaust is usually able to demonstrate that the railroad negligently failed to:
- provide a safe place in which to work,
- warn the employee of the danger of diesel exhaust,
- alter work practices to reduce diesel exhaust exposure,
- provide adequate workplace ventilation, or
- provide respiratory protection devices,
in addition to any other specific failures of the railroad in question.
American railroads have known for decades that diesel exhaust is hazardous.
Most of the railroads are members of an industry organization known as the Association of American Railroads. Through the years, it has established and maintained committees, staffed by employees of the member railroads, that addressed issues of concern to the industry.
A committee known as the Medical Section was and is composed of the chief medical officers and other health and safety employees of the member railroads. The minutes of the March 3, 1970, meeting of one of the section's subcommittees, the Joint Medical-Legal Committee, show that the section discussed the issue of diesel exhaust and personal injury claims as early as 1970: "Results of such [diesel-exhaust] studies are needed in connection with the defense of suits alleging physical disabilities to have been caused by exposure to and inhalation of exhaust from railroad diesel locomotives." The minutes were distributed to the member railroads.
The Medical Section continued to monitor the development of knowledge concerning diesel exhaust and lung cancer throughout the 1970s and 1980s. Discovery will more than likely show that the railroad took little, if any, action to safeguard employees from diesel-exhaust exposure even though the chief medical officer knew that medical science was establishing a link between diesel exhaust and lung cancer.
Another way to show the railroad's knowledge is through medical literature. More than 200 articles arguably link lung cancer with diesel exhaust. By the mid1950s a number of investigators had identified benzo(a)pyrene as a possible lung carcinogen, and the chemical had been identified in diesel exhaust and cigarette smoke. Throughout the 1950s, 1960s, 1970s, and 1980s, medical evidence of the link continued to accumulate.
Some studies concluded that no causative link existed. But the most exhaustive epidemiological studies concluded that exposure to diesel exhaust causes a statistically significant increased risk of lung cancer in occupationally exposed railroad workers. These studies were undertaken early in the 1980s by researchers from Harvard University.
Latest Gao Report Denies Med Mal Crisis; Says AMA and Others Misled Public, Legislators, Media, and Doctors
The latest report of the non-partisan General Accounting Office proves that the supposed "crisis" of access to medical care as a result of medical malpractice insurance premium increases, as alleged by the AMA, the insurance industry, and some politicians, doesn't exist or has been extremely overblown. The report Implications of Rising Premiums on Access to Healthcare, GAO-03836, August 2003, was requested by three House Republican leaders. The comprehensive analysis suggests that the AMA, which has sought to delay the release of the report until it could influence data, misled the American people, state and federal legislators, the news media and even doctors. "The problems we confirmed were limited to scattered, often rural, locations and in most cases providers identified long-standing factors in addition to malpractice pressures that affected the availability of services," said that report. "We also determined that many of the reported physician actions and hospital-based service reductions were not substantiated or did not widely affect access to health care." For a copy of the report, go to www.gao.gov. For an analysis of the report by the Center for Justice and Democracy, go to www.centerjd.org.
Vested Interest, October 2003, Volume 14, Number 3
P/C Insurers' Nine-Month Income Tops $21 Billion
The U.S. property/casualty insurance industry's net income for the nine months of 2003 hit $21.11 billion, more than four times the $5.02 billion generated during the same period of 2002, according to a recent survey. The study, which was prepared by Insurance Services Office, Inc. and the National Association of Independent Insurers, also found that the industry's consolidated surplus for the first nine months of 2003 rose to an estimated $319.92 billion. That compares with $273.46 billion during the first nine months of 2002. Net underwriting losses for the period stood at $5.7 billion, a significant improvement from the $18.24 billion in losses during the year-earlier period. The industry's combined ratio also improved, dropping to 100.3 percent from 105 percent. In addition, net investment income grew 3.2 percent to $27.7 billion.
Business Insurance-December 29, 2003
Railroads Liable for Disease Caused by Diesel Exhaust and ETS
Gavin Law Firm has successfully represented a number of railroad employees who developed lung cancer and other diseases as a result of their exposure to diesel exhaust and ETS during their employment on the railroad. These claims were brought under the Federal Employers' Liability Act and the Locomotive Boiler Inspection Act. Gavin Law Firm has developed voluminous evidence to demonstrate that American railroads knew or should have know on the hazards of diesel exhaust and ETS but failed to take adequate steps to protect their workers. The evidence also demonstrates that the presence of diesel exhaust and ETS in locomotive cabs made the locomotives unreasonably dangerous.
Gavin Law firm has successfully represented railroad employees afflicted with lung cancer, bladder cancer, and pancreatic cancer in cases where environmental tobacco smoke contaminated the workers' work places.
ATV Suit Successfully Concluded
Gavin Law Firm recently successfully concluded a products liability suit against a major manufacturer of an all terrain vehicle (ATV) and the manufacturer of one of its components. The suit was brought on behalf of a man seriously injured when the axle on his ATV suddenly fractured causing an accident.
Expert testimony showed that the axle was defectively designed. The design of the axle was not sufficient for it to withstand the stresses the axle would experience during reasonably anticipated uses. The evidence also demonstrated that the manufacturers did not perform any testing on the axle to determine what stresses it would experience before they marketed the axle. Discovery conducted by Gavin Law Firm also demonstrated that there had been as many as 85 similar incidents. Gavin Law Firm demonstrated the existence of these other incidents by obtaining the fractured axle from one of the other incidents and obtaining the testimony of a woman injured when the axle on her ATV fractured.
The injured rider represented by Gavin Law Firm had just launched a business venture prior to the incident in which he was injured. The venture failed because the man's injuries prevented him from working at the venture. Gavin Law Firm demonstrated the value of the failed venture by presenting forensic economic testimony.
World's Biggest Insurer Reports 27% Rise in 3rd Quarter Profits
American International Group, Inc. the world's largest insurer, said its' third quarter earnings rose 27 percent, buoyed by the highest prices on property and casualty coverage in nine years. AIG is benefiting from price increases that followed insurers' losses stemming from the Sept. 11 terrorist attacks, a bear market in stocks, and higher than expected claims. AIG and its competitors are charging the highest commercial insurance rates in the U.S. since 1984 - more than $7 for every $1000 in revenue, according to the Insurance Information Institute.
Bloomberg News - October 30, 2003
Despite Malpractice "Reforms," Florida Clears Huge Rate Hike
Despite brand-new "reforms" that promised to rein in skyrocketing medical malpractice premiums, one of Florida's few remaining carriers has sought and gotten state approval for a rate hike nearly six times higher than the average predicted by the state less than two months ago. GEMedicalProtective said in a statement that the Florida Office of Insurance Regulation approved its request to raise rates by an average of 45 percent. The regulator had said on November 10 that the medical malpractice bill Gov. Jeb Bush signed into law last August would hold rate increases to an average of 7.8 percent. That figure based on a lengthy analysis of the medical-liability market the state had commissioned from the account firm Deloitte & Touche LLP as part of the efforts at "reform."
ATLA Law News Digest - January 8, 2004
ABA Open Letter to the U.S. Chamber of Commerce
"Why can't the U.S. Chamber of Commerce be honest with the American people? Once again, you've camouflaged a campaign against judges in fabricated figures and a phony opinion poll, shifting responsibility for U.S. job loss and the nation's financial woes from your own members to the legal system that serves ordinary people...Judges in America work every day to ensure that the rights of ordinary people are protected, that everyone who comes to court is treated fairly - including businesses. But the Chamber is out to eviscerate the legal system and the accountability that it imposes on business...You
cite an opinion poll for the proposition that some states are more or less fair than others. Fair to whom? Conveniently, you did not ask consumers what they thought. The only people you polled were senior corporate lawyers, or the private lawyers who serve them...You claim lawsuit excess costs every American $809 a year. Your claim is patently untrue. First, you include in a figure the standard overhead costs of insurance companies. Then you throw in the cost of claims by auto owners involved in fender-bender accidents that never reach the desk of a lawyer, much less the bench of a courtroom...you
even include expenses from no-fault insurance cases, where litigation is prohibited...Waging war on the judges who protect the rights and safety of Americans is waging war on your own consumer base. When you learn the lessons of torts, when you work with and through the legal system to assure your customers the best products and services you can possibly provide, that is when you do business the American way, and assure your own survival into the future."
Dennis W. Archer, President, American Bar Association
New Consumer Study Shows Insurers Price Gouging Doctors Without Basis
Americans for Insurance Reform announced the release of a comprehensive study of medical malpractice based on new insurance data through 2002. First, contrary to what the insurance industry and medical lobbies have alleged, the years 2001 and 2002 saw no "explosion" in medical malpractice insurer payouts or costs to justify the sudden rate hikes. Rather than just exploding, inflation-adjusted payouts per doctor dropped from 2001 to 2002. Payouts (in constant dollars) have been essentially flat since the mid-1980s. Second, medical malpractice insurance premiums rose much faster in 2002 than was justified by insurance payouts. The 2002 hike is similar to the rate hikes of the past, which occurred in the mid-1980s and mid-1970s and were not connected to actual payouts. In sum, the results of AIR's analysis are startling; premiums rise and fall with the insurance industry's economic cycle. For a complete copy of the report, go to www.insurance-reform.org.
Vested Interest, December 2003, Volume 14, Number 5
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