Railroad Diesel Exhaust and Lung Cancer
Establishing a Viable Claim Under FELA

William P. Gavin
William P. Gavin is a partner with Brown & Gavin in Belleville, Illinois.

Diesel exhaust has been identified as a cause of lung cancer among railroad workers. ¹ 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." ²

Almost all locomotives used by U.S. railroads are powered by diesel fuel. A railroad's liability to compensate employees injured while employed is generally governed by the Federal Employers' Liability Act (FELA). ³ A railroad employee who is exposed to diesel exhaust and develops lung cancer (and possibly other lung diseases) may have a viable claim under FELA. Exhaust from diesel-powered engines, including locomotives, is the result of incomplete combustion of fuel. Diesel exhaust emissions are generally analyzed as having two component phases. ⁴

The first component is called the gaseous phase and includes such gases as carbon monoxide, carbon dioxide, formaldehyde, acrolein, nitrogen oxide, and nitrogen dioxide. ⁵ This phases produces acute effects such as burning and watering of the eyes and irritation of the respiratory tract. ⁶ Acute effects are usually temporary and disappear with cessation of exposure.

The second component, called the particulate phase, ⁷ 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 ⁸ - 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). ⁹ Some PAHS are confirmed or suspected human lung carcinogens. ¹⁰ The most common is benzo(a)pyrene, which has been identified as the most potent lung carcinogen in cigarette smoke. ¹¹ Medical studies have also identified nitrated polynuclear aromatic hydrocarbons as potential carcinogens. ¹²

Exhaust particles have rough, irregular surfaces and high surface areas, facilitating their absorption of chemicals. ¹³ The particles act as carriers, delivering carcinogens to the deepest points in the lungs, where they produce cancer. ¹⁴

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. ¹⁵ These studies found that engineers, firemen, brakemen, and conductor s have also been exposed. ¹⁶

In recent years more than 500,000 people have worked for railroads. ¹⁷ Exposure to diesel exhaust could have occurred in a wide variety of circumstances. For example, many railroads use diesel-powered forklifts in their supply facilities. ¹⁸ Forklift operators are not listed in the high-risk categories, but they are exposed and expose their co-workers to diesel exhaust indoors.

FELA states that a railroad whose negligence is the cause, in whole or in part, of an employee's injury must compensate the employee for the injury. ¹⁹ The act applies to any railroad that operates in interstate commerce. The employee's duties must directly and substantially affect interstate commerce at the time the injury occurs.

It is significant that the railroad's negligence need only be a cause - no matter how slight ²⁰ - of the injury, not its only cause or even a substantial cause. ²¹ Technically, therefore, the diesel-exhaust-damaged claimant may prevail even if other substances (most notably, cigarette smoke) have contributed to the complained-of illness.

An employee claiming occupational illness caused by diesel exhaust under FELA should allege the railroad negligently failed to

in addition to any other specific failures of the railroad in question.

The Locomotive Boiler Inspection Act (LBIA) may also be applicable. ²² The act states-

It shall be unlawful for any railroad to use... on its line any locomotive unless said locomotive... [is] in proper condition and safe to operate in the service to which the same [is] put, [so] that the same may be employed in active service of such railroad without unnecessary peril to life or limb. ²³

This statute imposes liability without fault for injury caused by a locomotive operating on the railroad line at the time of the injury.

A railroad sued under the LBIA will argue that to establish liability, plaintiffs must first show that the locomotives that emitted the exhaust to which they were exposed were defective. Substantial case law to the contrary exists. ²⁴ For instance, Chicago, Rock Island & Pacific Railroad Co. v. Speth held that liability under the LBIA does not depend on a finding that a mechanical defect caused the injury. ²⁵

Proceeding under the LBIA if the facts warrant is advantageous because the plaintiff need not show that the railroad knew or should have known that diesel exhaust could be harmful, whereas under FELA this showing will probably be necessary. Thus, the so-called "state-of-the-art" issue is not raised under the LBIA. Also, contributory negligence by the victim will not reduce damages in an LBIA claim as it will in a FELA claim.

Defendant's Knowledge

The railroad's knowledge or constructive knowledge of diesel exhaust's carcinogenicity can be shown in at least three ways.

1. Most of these companies 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.

The 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. ²⁶

The Medical Section continued to monitor the development of knowledge concerning diesel exhaust and lung cancer through 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.

2. 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 mid-1950s 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. ²⁷ Throughout the 1950s, 1960s, 1970s, and 1980s, medical evidence of the link continued to accumulate.

Some studies concluded that no causative link existed. ²⁸ 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. ²⁹ These studies were undertaken early in the 1980s by researchers from Harvard University.

Deposing the railroad's current and former chief medical officers will usually yield testimony that these officers have an obligation to keep abreast of new developments in medicine that may be important to employees. The depositions may also show that the former chief medical officers had little if any understanding of the relationship between diesel exhaust and lung disease.

3. The last way to show knowledge is through the railroad's own reports and records of claims of diesel-exhaust injury. Federal law requires that railroads in interstate commerce report certain injuries to the U.S. Department of Transportation (DOT). ³⁰ A Freedom of Information Act request directed to the DOT and/or the Federal Railroad Administration (FRA) may show that the defendant railroad had earlier claims of injury by employees exposed to diesel exhaust. These claims constitute direct knowledge that people were alleging that diesel exhaust could be harmful.

Counsel should immediately submit a request to the DOT and/or the FRA, since the agencies take several months to respond. It should be noted, however, that 45 U.S.C. 41 states-

Neither the report required by section 38 of this title nor any report of the investigation provided for in section 40 of this title nor any part thereof shall be admitted as evidence or used for any purpose in any suit or action for damages growing out of any matter mentioned in said report of investigation. ³¹

Nevertheless, it is helpful to request FRA reports to verify the railroad's denials or admissions as to prior claims of diesel fume injuries. These reports show where the injuries took place, enabling counsel to investigate and find others who were injured. Earlier claims are strong evidence that the railroad had notice of the fumes' toxicity.

Victim's Exposure

The railroad will argue that the victim was not exposed to significant levels of diesel exhaust. Only rarely will quantitative data concerning the exposure be available. However, some railroads have performed air-monitoring studies to measure the levels of diesel exhaust. These studies usually indicate that "acceptable" levels of certain exhaust components were found.

Most studies will be found to have measured nitrogen dioxide, carbon monoxide, and - occasionally- organic compounds lumped into the general category of coal tar pitch. Most will not have monitored benzo(a)pyrene or other specific PAHS. But the reports may contain valuable admissions by railroad industrial hygienists concerning the carcinogenicity of PAHS in general and benzo(a)pyrene in particular.

Exposure evidence will usually take the form of testimony from the victim and co-workers. For example, witnesses may testify that locomotives frequently idled indoors and that diesel exhaust could be seen and smelled daily at levels that caused employees to seek fresh air. The absence of quantitative data is not an insurmountable obstacle since almost all medical studies that have found a link between diesel exhaust and lung cancer are based on qualitative descriptions of exposure rather than quantitative data.

The final defense the railroad wills most likely use is that diesel exhaust does not cause lung cancer (or the lung disease at issue). As noted above, however there is substantial evidence linking the two. There is also some limited evidence suggesting that chronic exposure to diesel exhaust may be a cause of emphysema and lung fibrosis, among other abnormalities, in laboratory animals. ³²

The railroad's causation defense will be stronger if the victim has a significant history of cigarette smoking. But this should not be insurmountable, since under FELA, diesel exhaust need only be a contributing cause of the illness.

Expert Testimony

This litigation is complex and costly and will probably require testimony from expert witnesses. Counsel should consider retaining-

Another important subject for expert testimony is the difference in how evidence is evaluated in public health and in academic research. When there is evidence that a substance poses a threat to public health, people who are charged with safeguarding the health of other should take action to preserve health- even though a pure scientist might not consider that there is enough evidence to prove scientifically that the substance causes a disease. ³³ Similarly, a railroad's chief medical officer should act to protect workers from the reasonable possibility that diesel exhaust causes lung cancer even though academics do not completely agree on the link.

Given the right set of circumstances, a claim under FELA and/or the LBIA for lung cancer caused by exposure to diesel exhaust is viable. There is medical evidence establishing causation, and most railroads have not taken adequate steps to protect employees. However, counsel should be wary of the case involving a substantial history of cigarette smoking, because it will generally not have much jury appeal.

Notes

¹ Garhsick et al., A Retrospective Cohort Study of Lung Cancer and Diesel Exhaust Exposure in Railroad Workers, 137 AM. REV. RESPIRATORY DIESEASE 820 (1988).

² NATIONAL INSTITUE FOR OCCUPATIONAL SAFETY AND HEALTH, CURRENT INTELLIGENCE BULLETIN 50- CARCINOGENIC EFFECTS OF EXPOSURE TO DIESEL EXAUST iii (1988) (hereafter BULLETIN 50).

³ 45 U.S.C. 51-60 (1988).

⁴ Woskie et al., Estimation of the Diesel Exhaust Exposures of Railroad Workers: I. Current Exposures, 13 AM. J. INDUS. MED. 381 (1988).

⁵ Id.

⁶ Woskie et al., Estimation of the Diesel Exhaust Exposures of Railroad Workers, 50 AM. INDUS. HYGIENE ASS'N J. 346 (1989).

⁷ Woskie et al, supra note 4.

⁸ NATIONAL RESEARCH COUNCIL, DIESEL CARS, BENIFITS, RISKS AND PUBLIC POLICY, Final Report of the Diesel Impacts Committee (1982).

⁹ Schenker, Diesel Exhaust- An Occupational Carcinogen?, 22 J. OCCUPATIONAL MED. 41 (1980).

^{10 BULLETIN 50, supra note 2, at 2.}

¹¹ U.S. SURGEON GENERAL, U.S. DEP'T OF HEALTH AND HUMAN SERVS., THE HEALTH CONSEQUENCES OF SMOKING- CANCER (1982).

¹² Wei & Shu, Nitroaromatic Carcinogens in Diesel Soot: A Review of Laboratory Findings, 73 AM. J. PUB. HEALTH 1085 (1983).

¹³ McClellan, Health Effects of Exposure to Diesel Exhaust Particles, 27 ANN. REV. PHARMACOLOGICAL TOXICOLOGY 279 (1987).

¹⁴ See generally Vostal, Health Aspects of Diesel Exhaust Particulate Emissions, 56 BULL. N.Y. ACAD. MED. 914 (1980).

¹⁵ Garshick et al., supra note 1, at 820.

¹⁶ Id.

¹⁷ Brackbill et al., Smoking Characteristics of U.S. Workers, 1978-1980, 13 AM. J. INDUS. MED. 5 (1988).

¹⁸ Smith v. National R.R. Passenger Corp., No. D73853 (Ga., Fulton County Super. Ct. filed Dec. 12, 1990).

¹⁹ 45 U.S.C. 51-52 (1988).

²⁰ Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500 (1957).

²¹ Hausrath v. New York Cent. R.R. Co., 401 F.2d 634 (6th Cir. 1968).

²² 45 U.S.C. 22-34 (1986).

²³ Id. 23.

²⁴ Chicago, Rock Island & pac. R.R. Co. v. Speth, 404 F.2d 291 (8th Cir. 1968); Calabritto v. New York, New Haven & Hartford R.R. Co., 287 F.2d 394 (2d Cir.), cert. denied, 366 U.S. 928 (1961); and Delevie v. Reading co., 176 F.2d 496 (3d. Circ. 1949).

²⁵ Speth, 404 F.2d 291, 293.

²⁶ Deposition Testimony of Marvin G. Pelon, Smith, No. D73853.

²⁷ Cooper et al., The Presence of 3:4 Benzpyrene in Cigarette Smoke, CHEMISTRY& INDUSTRY, Nov. 13, 1954 at 1418; Waller, The Benzpyrene Content of Town, 6 BRIT. J. CANCER 8 (1952).

²⁸ Kaplan, Relationship of Noxious Gases to Carcinoma of the Lung in Railroad Workers, 171 JAMA 2039 (1959).

²⁹ Garshick et al., supra note 1.

³⁰ 45 U.S.C. 32, 32 (1988).

³¹ Id. 41 referring to 45 U.S.C. 38, 40 (1988).

³² See ENVIRONEMNTAL PROTECTION AGENCY, HEALTH ASSESSMENT DOCUMENT FOR DIESEL EMISSIONS (draft) (July 19, 1990); see also Lewis et al., A Chronic Inhalation Toxicity Study of Diesel Engine Emissions and Coal Dust, Alone and Combined, in CARCINOGENIC AND MUTAGENIC EFFECTS OF DIESEL ENGINE EXHAUST 361 (1986); Heinrich et al., Chronic Effects on the Respiratory Tract of Hamsters, Mice and Rats after Long-term Inhalation of High Concentrations of Filtered and Unfiltered Diesel Engine Emissions, 6 J. APPL. TOXICOLOGY 385 (1986).

³³ Wei & Shu, supra note 12, 1087.

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