An interesting railroad worker cancer lawsuit is currently under way in Illinois. The plaintiff, who began working on tracks and in rail yards during the late 1970s for a company that was later purchased by Union Pacific, is now dying from acute myeloid leukemia (AML). He blames his fatal blood cancer on massive workplace exposures to toxic chemicals used to preserve, waterproof and insectproof wooden rail ties. The railroad corporation is arguing that no conclusive evidence links creosote and benzene to AML — though correlations have been found. Union Pacific is also claiming that it bears no liability for creating or maintaining an unsafe work environment because treating rail ties with creosote remains legal.
The now-59-year-old plaintiff worked for Chicago and North Western Railroad and, later, Union Pacific until 2008. Health problems caused by AML forced his earlier retirement. In a statement submitted to the court hearing his case, he describes “frequently return[ing] home from work covered from head to toe with creosote [with] his t-shirt, pants and shoes … soaked.”
Creosote is a name for coal tar. It can also be produced from some kinds of pine tar. Heavy and ongoing exposure to creosote is known to cause skin cancer. This and other health risks led federal government agencies to recommend against using creosote-coated lumber for residential construction and private landscaping. Some states make most nonindustrial uses of creosote illegal.
Benzene, which is a chemical component of creosote, is one of the most carcinogenic substances known. It is present in small amounts, though, which is a reality that allows Union Pacific’s defense team to question the dose the plaintiff received while handling rail ties.
When a railroad company negligently violates any employee safety law or regulation, it immediately becomes liable for paying injury and wrongful death claims brought under the Federal Employers Liability Act (FELA). Neither Union Pacific nor the smaller rail corporation it took over committed such a clear act of negligence. Union Pacific could still be found liable for compensating its former worker, however, if evidence presented at trial shows that company managers and supervisors failed to provide adequate protections to the plaintiff. For instance, were coveralls, gloves and masks required when moving railroad ties by hand? Were steps taken to limit exposures to creosote and benzene at times when the employee was not handling rail ties?
As a Carolina FELA attorney since the 1990s, I have helped many former railroad workers and their families hold rail corporations accountable for doing too little to keep employees’ safe and healthy. I have heard many disingenuous arguments from company lawyers like the one made in the Illinois courtroom that because “benzene is everywhere,” the plaintiff experienced no additional risk from rail ties. Countering such misdirection can be difficult, but doing so is necessary to achieve justice.
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