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| Shapiro, Washburn & Sharp

My FELA railroad injury lawyer colleague William (Bill) Kvas, a Minneapolis, Minnesota injury lawyer recently reported a $661,500 West Virginia (WV) FELA/railroad worker verdict recovered against defendant CSX (CSX Transportation, Inc.) for an engineer client suffering permanent occupational disease/tracheal bronchiolitis as a result of the rail worker’s toxic fume exposure. The verdict was essentially affirmed by the Fourth Circuit federal appeals court. The verdict was returned in the summer of 2008 in Benson v. CSX, S.D. WV U.S. District Court.

The railroad engineer, Benson, was working in a West Virginia location, moving an engine on a switch — moving tank cars, including a car that contained hydrochloric acid (HCL). HCL began leaking out of a burst rupture disk which is a device at the top of the tank car that is designed to release excess internal pressure. Benson and his attorney Bill Kvas claimed that he evacuated his locomotive engines but that a supervisor ordered him to move the engine with the attached/coupled leaking tank car, from its location over a railroad switch, into another railroad track area. During the switching operation, Benson alleged that more HCL escaped from the tanker car. Benson and his attorney noted that CSX, his employer did not provide him any protective gear or a respirator and he suffered exposure to HCL for least 30-45 minutes during the switching move.

At a later date Benson was diagnosed with permanent breathing disorders as a result of inhaling the HCL. Soon after the accident his symptoms included dry mouth and dry eyes, a strange metallic taste in his mouth, nausea and a choking sensation. His doctor said that he should permanently avoid any strong from fumes, because of his hypersensitivity, and this has prevented him from working as an engineer because of the usual exposure to diesel exhaust fumes in typical engineer work.

Benson was medically disable from working as an engineer, and went back to college to try to earn a degree. Because he could not work at his regular calling, his lost wage claims were between $700,00 and 1.3 million dollars.

His lawyer, Bill Kvas, asserted that CSX, his employer, violated many industry standards which require that a respirator be used when there was a toxic leak, such as an HCL leak. Kvas also proved that there was a federal regulation that prohibited movement of a leaking tank car unless it was absolutely necessary to avoid an immediate threat, which he proved did not require the immediate move that the engineer was ordered to undertake.

CSX had the audacity to argue that the plaintiff quickly moved the engine and the leaking cars, on his own initiative, while Benson and his lawyer asserted that it was a supervisor would ordered him to move the train. Kvas convinced the federal judge to find as a matter of law that CSX, his employer, had approved and ordered the movement in question.

CSX, notorious in the last 10 years, for failing to settle cases of obvious liability and damages, appealed the jury verdict to the Fourth Circuit Court of Appeals, which affirmed every part of the trial court’s rulings except providing CSX a credit for $88,500 which had been paid by other settling parties besides CSX (Benson settled for this sum with other third parties besides CSX before the trial against CSX).

Bill Kvas, is an excellent FELA lawyer, who believes strongly in the jury system and he did a fine job with this case even those CSX fought him every step of the way, and would not offer fair compensation to Benson without a complete trial. Interestingly, Benson may not have been incapable of the “physical” duties of his engineer job, but because of the hypersensitivity in his breathing ability caused by the toxic HCL impairment, he was medically disqualified from daily exposures to diesel fumes, which are a known lung irritant, and the fumes contain numerous well known carcinogens. Railroad workers are in a class of workers known to face repetitive exposures to diesel exhaust fumes, and I have written numerous articles about diesel fume asthma in railroad workers, and also about the increased incidence of lung cancer in railroad workers such as engineers, conductors, and carmen with decades of diesel fume exposures.

My Take: CSX railroad needs to learn when to “hold em, and when to fold em.” CSX needlessly fights cases of obvious liability and then tends to offer nuisance value on cases that juries find to be significant damages cases.

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