Trial Journal Summer 2014.indd - Illinois Trial Lawyers Association

The FELA Case for Cancer Caused by Environmental Tobacco Smoke and Diesel Exhaust
by William P. Gavin
I. Introduction
For decades, environmental tobacco smoke (ETS)1 and diesel exhaust
were ubiquitous pollutants in the workplaces of America’s railroad employees.
The International Agency for Research
on Cancer (IARC) has characterized
both pollutants as Group 1 carcinogens.2
The State of Illinois3 has declared:
[T]obacco smoke is a harmful
and dangerous carcinogen to human beings and a hazard to public health. Secondhand tobacco
smoke causes at least 65,000 deaths
each year from heart disease and
lung cancer according to the National Cancer Institute. Secondhand tobacco smoke causes heart
disease, stroke, cancer, sudden
infant death syndrome, low-birthweight in infants, asthma and exacerbation of asthma, bronchitis and
pneumonia in children and adults.
Secondhand tobacco smoke is the
third leading cause of preventable
death in the United States. Illinois
workers exposed to secondhand
tobacco smoke are at increased risk
of premature death. An estimated
2,900 Illinois citizens die each year
from exposure to secondhand tobacco smoke.
The General Assembly also finds
that the United States Surgeon
General’s 2006 report has determined that there is no risk-free
level of exposure to secondhand
smoke; the scientific evidence that
secondhand smoke causes serious
diseases, including lung cancer,
40
Trial Journal
heart disease, and respiratory illnesses such as bronchitis and asthma is massive and conclusive….
Lung cancer is caused by both
ETS and diesel exhaust according to
IARC. Also, scientific literature shows
workplace exposures to ETS and diesel
exhaust have been implicated in other
cancers and non-malignant diseases.
There is evidence that the pollutants
may cause:
ed uptake of tobacco smoke constituents by involuntary smokers
are compelling arguments for the
hypothesis that secondhand smoke
would increase the risk of cancer
in other smoking-related sites in
nonsmokers.13
II. American Railroads and Other
Employers Knew or Should Have
Known of the Hazards of ETS and
Diesel Exhaust Exposure Decades
Ago
ETS:
Coronary heart disease;4
Breast cancer;5
Nasal sinus cancer;6
Oropharyngeal cancer;7
Laryngeal cancer;8 and
Pancreatic cancer.9
Diesel Exhaust:
Bladder cancer;10 and
Pancreatic cancer.11
Polycyclic aromatic hydrocarbons
(PAHs),12 a class of chemicals found in
both ETS and diesel exhaust, are also
implicated in cancers of other organs.
The 2006 Surgeon General’s report
on “involuntary smoking” also contains this powerful statement:
Active smoking is firmly established as a causal factor of cancer
for a large number of sites including lung, urinary tract, upper
aerodigestive tract, liver, stomach,
pancreas, and many others…. The
absence of a threshold for carcinogenesis in active smoking, * * * the
presence of the same carcinogens
in mainstream smoke and sidestream smoke, and the demonstrat-
A. ETS Knowledge
The constituents of cigarette
smoke have been well known since the
Surgeon General published a report on
smoking in 1967 entitled “The Health
Effects of Smoking.”14
Cigarette
smoke contains numerous carcinogenic substances including PAHs (e.g.,
Benzo(a)pyrene), N-Nitrosamines, Polonium 210, Selenium, and phenols.15
In 1979, the Centers for Disease
Control issued Current Intelligence
Bulletin 31, entitled “Adverse Health
Effects of Smoking and the Occupational Environment.” This bulletin
concerns smoking tobacco products in
the workplace, but also addresses “any
by-products from their burning and/or
use.” The bulletin states:
Smoking can interact with worker
exposure to toxic materials found
in the workplace resulting in more
severe health damage than that
anticipated from adding the separate influences of the occupational
exposure and smoking. Asbestos
provides one of the most dramatic
examples of severe health damage
resulting from interaction between
Volume 16, Number 2  Summer 2014
the smoking of tobacco products
and workplace exposures.16
In 1986, the United States Surgeon
General issued the report “The Health
Effects of Involuntary Smoking.”17
The report states in its summary, “Involuntary smoking is a cause of disease, including lung cancer in healthy
nonsmokers. * * * The simple separation of smokers and nonsmokers * *
* may reduce, but does not eliminate,
the exposure of nonsmokers to environmental tobacco smoke.”18
The book Active and Passive Smoking
Hazards in the Workplace was published
in 1990.19 The author noted “More recently, the effects of inhalation of ETS
by non-smokers have become a pressing public health concern. * * * Many
of the known toxic and carcinogenic
agents found in mainstream cigarette
smoke have also been shown to be
present in sidestream smoke.”20
In 1991, the National Institutes
for Occupational Safety and Health
(NIOSH) issued Current Intelligence
Bulletin 54, “Environmental Tobacco
Smoke in the Workplace: Lung Cancer
& Other Health Effects.”21 The bulletin states
“NIOSH therefore recommends
that ETS be regarded as a potential
occupational carcinogen in conformance with the OSHA carcinogen
policy, and that exposures to ETS
be reduced to the lowest feasible
concentration. Employers should
minimize occupational exposure to
ETS by using all available preventive measures.”
B. Diesel Exhaust Knowledge
The capacity of the constituents
of diesel exhaust to cause disease has
been the subject of study literally for
hundreds of years. Sir Percivall Pott
was an English surgeon, and is thought
to be the first to link an occupational
exposure to cancer. He demonstrated
in 1775 that young chimney sweeps
were experiencing an increased rate of
scrotal cancer due to their exposure to
soot (containing PAHs) as they sat on
chimneys to do their work. The advent
of the diesel engine and the diesel era
in the American railroad industry fu-
eled continued research on the constituents of diesel exhaust and whole
diesel exhaust throughout the 1900s.
The first known actual notice to
the American railroad industry that
diesel exhaust could be a carcinogen
among railroad workers dates back almost sixty years. In 1955, Mr. Robert
Straub, a general claims attorney for the
Chesapeake & Ohio Railway Company,
presented a paper entitled “Potential
Dangers From Exposure To Diesel Locomotive Exhaust” to various claims
representatives at a meeting of the
General Claims Division of the Association of American Railroads (AAR).
To support his presentation, Mr.
Straub cited numerous scientific and
industry publications.22 His presentation to the railroad claims representatives accurately explained the constituents of diesel exhaust, including
carcinogenic chemicals, and how the
respirable particles in diesel exhaust
carry the carcinogenic chemicals to the
depths of the lungs.23 His presentation
was generally published in 1955 in a
the fela case continued on page 42
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medical journal.24
Diesel exhaust contains particulate
matter consisting of tiny particles of
unburned particles of carbon that appear as dark smoke or soot from the
exhaust of a diesel engine. Many of
these particles are small enough to be
respirable (inhaled). More than 1,000
organic chemicals are attached to the
respirable particles, including benzo(a)
pyrene, PAHS, and nitrated PAHs.
When breathed, the smallest of these
respirable particles carry the carcinogenic chemicals deep into the lungs.
Studies have shown that the PAHs on
the respirable particles can be absorbed
in the lungs and cause mutations in cellular DNA.
Physicians employed by American
railroads continued to discuss the hazards of diesel exhaust at AAR meetings
held in the 1960s, 1970s, and 1980s.
Minutes from a 1965 meeting of the
physicians lists lung cancer as a possible illness caused by diesel exhaust.25
Minutes from other AAR meetings
show that the physicians renewed their
discussions of the hazards of diesel
exhaust in the 1980s after the publication of several epidemiological studies demonstrating an increased risk of
lung cancer among diesel exhaust exposed railroad workers.
In 1988, NIOSH issued Current
Intelligence Bulletin 50, “Carcinogenic
Effects of Diesel Exhaust,”26 where it
is noted “NIOSH recommends that
whole diesel exhaust be regarded as ‘a
potential occupational carcinogen’…..”
This warning was based, in part, on
medical studies in the 1980s that
showed an elevated incidence of lung
cancer among railroad workers.27
In 2002, the United States Environmental Protection Agency issued a
report “Health Assessment Document
For Diesel Engine Exhaust,” which
concluded that diesel exhaust is “likely
to be carcinogenic to humans by inhalation.”28 This comprehensive report
notes its conclusion is based on the totality of evidence from human, animal
42
Trial Journal
and other supporting studies.
III. The Federal Employers Liability Act and Locomotive Inspection
Act
A railroad worker who develops illness because of exposure to ETS and/
or diesel exhaust in his workplace may
have a cause of action against his employer railroad for compensatory damages. The Federal Employers Liability
Act (FELA) provides that a railroad operating in interstate commerce whose
negligence causes injury to an employee is liable for compensatory damages
to the injured employee.29 Under the
FELA, an occupational illness is considered an injury.30
The effect of a second Act of
Congress, the Locomotive Inspection
Act (LIA), requires that a locomotive
operated on a railroad’s line be free of
conditions which create unnecessary
danger of personal injury.31 The failure to provide a locomotive that is
safe to operate on the railroad’s line
without unnecessary danger of personal injury violates the LIA, m a k i n g the railroad strictly liable under
the FELA. A railroad is also strictly
liable w h e n it fails to comply with
regulations issued by the Federal Railroad Administration (FRA).32 Several
regulations are applicable to diesel exhaust exposure cases. Section 229.7 of
49 C.F.R.33 states that the Federal Rail
Safety Laws (e.g., the LIA):
make it unlawful for any carrier to
use or permit to be used on its line
any locomotive unless the entire
locomotive and its appurtenances
(1) Are in proper condition and
safe to operate in the service to
which they are put, without unnecessary peril to life or limb; and (2)
Have been inspected and tested as
required by this part.
Section 229.43 of 49 C.F.R., entitled “Exhaust and Battery Gases,”34
states “Products of combustion shall
be released entirely outside the cab and
other compartments. Exhaust stacks
shall be of sufficient height or other
means provided to prevent entry of
products of combustion into the cab
or other compartments under usual
operating conditions.”
The LIA is a strict liability statute,
unlike the FELA, and contributory
negligence of the injured employee
does not operate to reduce the recovery under the FELA.35 Assumption of
the risk is not a defense in an action
under the FELA. 45 USC §54.
IV. Evidence Necessary for a Submissible Case
The evidence in a suit brought
by a railroad worker under the FELA
for occupational disease due to exposure to harmful substances must show
that the worker was exposed to the
substance, that the railroad was negligent in causing or failing to eliminate
the exposure, and that the exposure
caused, in whole or in part, the illness.
In a claim under the LIA, the evidence
must show that an unsafe condition of
a locomotive operated on the railroad’s
line caused, in whole or in part, the illness. The presence of diesel exhaust in
a locomotive cab being operated on a
railroad’s line is a violation of the LIA,
which establishes a prima facie LIA violation.36 There is no reported similar
ruling for ETS in a locomotive cab, but
the Surgeon General’s statement that
there is no risk-free exposure to ETS is
a significant basis for the assertion that
exposure to ETS while occupying a locomotive operated on a railroad’s line is
a violation of the LIA.
V. Exposure
The plaintiff in an FELA suit will
be an important source of information about his exposures. For example,
a locomotive engineer will be able to
explain the daily presence of diesel
exhaust in the locomotive cab and the
frequency that his co-workers smoked
in the locomotive cab, in crew transportation vans, and in office buildings
where he will have often reported for
work and received assignments. A conVolume 16, Number 2  Summer 2014
ductor/brakeman will have had similar
exposures in locomotives, as well as
exposures to ETS when they rode in
cabooses.37
The greater the exposure that can
be established, the stronger the case
will be, since most occupational diseases due to ETS and diesel exhaust
are felt to be “dose response” diseases.
Further, the greater the exposure, the
more credible the case. It is always important to interview the plaintiff ’s coworkers to identify witnesses who will
corroborate the plaintiff ’s testimony
about exposure.
Exposures to diesel exhaust and
ETS in railroad workers have been
studied by a number of investigators.38
Two studies that considered the exposure of railroad workers to diesel exhaust also tangentially considered the
presence of ETS in the workplace of a
railroad worker.39
VI. The Railroad’s Non-Delegable
Duty Arises From Its Knowledge
Every railroad operating in interstate commerce has a continuous, non-
delegable duty to provide its employees
with a reasonably safe place in which to
work.40 “This continuous duty to provide a reasonably safe place to work,
while measured by foreseeability standards, is broader under the [FELA]
than a general duty of due care.”41 The
duty becomes more imperative as the
risk to the employee increases.42
The continuous duty of care requires a railroad employer to know
the nature of the substances used in
its business.43 Foreseeability is “an essential element” of negligence under
the FELA.44 Thus, establishing the
railroad’s actual or constructive knowledge of the hazards of ETS and diesel
exhaust is crucial to a claim under the
FELA.
Documents from the AAR and
possibly, a railroad’s internal documents
may show that the railroad had actual
knowledge of the hazards of ETS and
diesel exhaust. The 1955 claims minutes referenced above show that claims
representatives from various railroads
were told that diesel exhaust contains
carcinogens, and that railroads should
be concerned about its capacity for
causing cancer. There are additional
documents from the AAR which show
that physicians employed by railroads
discussed no-smoking policies and diesel exhaust throughout the 1960s, ‘70s,
‘80s and ‘90s.45
A plaintiff is not required to establish the railroad’s actual knowledge of
the hazards in its workplace to establish
a prima facie case.46 The railroad may be
found liable on the basis that it should
have known of the hazards of substances in its work place, but failed to
act reasonably in the face of this constructive knowledge.47 The availability
of medical information about the hazards of a substance is one method of
establishing constructive knowledge of
the hazards.48 The United States Court
of Appeals for the Tenth Circuit has
stated:
But medical evidence was adduced
and reference was made to medical
publications which tended to show
that for some time prior to the disability and death of the deceased,
the fela case continued on page 44
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Volume 16, Number 2  Summer 2014
Trial Journal 43
the fela case continued from page 43
it was known that inhaling fumes
and mists containing vaporized oil
may bring about lipoid pneumonia. Accordingly, the continued
inhaling of the smoke and fumes
arising from the tank containing
quenching oil presented an industrial hazard of which the defendant
was required to have knowledge.49
VII. Negligence
Once evidence of the railroad’s actual or constructive knowledge of the
hazards of ETS and diesel exhaust is
introduced, the focus turns to whether
the railroad acted reasonably in the face
of this knowledge. Evidence of the
railroad’s failure to educate its workers
about the hazards, failure to take steps
to minimize or eliminate exposures,
and failure to take steps to implement
a no-smoking policy will be some evidence of negligence. The following allegations of negligence are typical in a
complaint from such a suit:
a. Negligently failed to provide Plaintiff with a reasonably safe place in
which to work; and/or
b. Negligently failed to provide plaintiff with safe or adequate equipment to
protect them against exposure to diesel exhaust and environmental tobacco
smoke; and/or
c. Negligently exposed plaintiff to
diesel exhaust and environmental tobacco smoke; and/or
d. Negligently failed to warn plaintiff of the hazards of exposure diesel
exhaust and environmental tobacco
smoke when it knew or should have
known of such hazards; and/or
e. Negligently permitted unsafe work
practices to become routine work practices; and/or
f. Negligently failed to implement
steps it knew would be effective to protect against, reduce, and/or eliminate
exposure to diesel exhaust and environmental tobacco smoke.
The following allegations of violations of the LIA are typical in a complaint from such cases:
a. Failed to provide plaintiff with locomotives whose appurtenances were
in proper and safe conditions; and/or
b. Required plaintiff to work on or
near locomotives, which were unsafe
because they were contaminated with
diesel exhaust and environmental tobacco smoke; and/or
c. Required plaintiff to work on or
near locomotives with diesel exhaust
present in the cabs of the locomotives
in violation of 49 C.F.R. 229.43.
Again, the testimony of the plaintiff
and his co-workers will be important
evidence of the railroad’s negligence
and violations of the LIA.
It is also well established that evidence of the practices of other railroads is relevant to the issue of a defendant railroad’s reasonable conduct.50
The practices of another railroad,
therefore, may be proved to show the
defendant railroad did not act reasonably. For example, if the defendant/
railroad did not institute a no-smoking
policy until 2002, evidence that another
railroad banned smoking in 1988 may
be some evidence of the defendant
railroad’s negligence.51
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Trial Journal
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Volume 16, Number 2  Summer 2014
IX. Causation
The railroad’s negligence (or violation of the LIA) need only be a cause
of the alleged injury to impose liability.
It need not be the only cause, major
cause, proximate cause, or even a significant cause.52 If the negligence or
LIA violation is a cause to any extent,
no matter how slight, the causation
element is established.53 Accordingly,
a submissible case can be established
even if the worker was exposed to substances other than ETS and/or diesel
exhaust, on the job or off the job, that
might have contributed to his cancer.
Relatively recently, the United
States Supreme Court affirmed the
principle that the railroad is liable for
the full extent of the injury if its negligence played any part in producing the
injury.54 There is no apportionment of
damages among the railroad and other
tortfeasors/causes, if any.
IX. Expected Railroad Defenses
A defendant railroad can be expected to spend much of its efforts
on the subject of whether the alleged
exposures caused the disease alleged,
especially if the disease is other than
lung cancer. The railroad usually files
a motion asking the court to rule that
the opinions of the plaintiff ’s experts
should be excluded because the basis
for their opinions and the methodology they used to reach their opinions
are unreliable and scientifically unsound. The plaintiff ’s attorney must
foresee this by insuring that the plaintiff ’s experts are reputable and have
reliable and substantial evidence of
exposures,55 have received and considered the plaintiff ’s medical history and
medical records, and have considered
and relied on relevant epidemiologic
literature.
Some railroads have conducted air
monitoring tests in later years to detect
constituents of diesel exhaust. These
samplings, however, have been sporadic at best and likely will not have been
made on the locomotives the plaintiff
occupied or during his work on the locomotives or in his workplace. Because
exposures to ETS and diesel exhaust
are highly variable due to a variety of
factors, a strong argument can be made
that any such air monitoring samples
are irrelevant to the case at hand.
X. Conclusion
While an FELA claim for cancer
caused by exposure to ETS and/or diesel exhaust can be complex and challenging, there is a meritorious scientific
basis for making such a claim. In addition to helping a stricken employee,
a global benefit of such claims is that
they create an impetus for railroads to
provide safer workplaces.
Endnotes
Also known as second-hand tobacco smoke or involuntary smoking.
2
Carcinogenic to humans. There are
currently 111 carcinogens in IARC’s
group 1 classification. IARC classifies
substances based on available scientific
literature.
3
410 ILCS 82/5 (2012).
4
United States Surgeon General, The
Health Consequences of Involuntary Expo1
the fela case continued on page 46
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Volume 16, Number 2  Summer 2014
Trial Journal 45
the fela case continued from page 45
sure to Tobacco Smoke (2006), 532.
5
Id., at 480.
6
Id., at 484.
7
Yuan Chin Amy Lee, et al., “Involuntary Smoking and Head and Neck
Cancer Risk: Pooled Analysis in the
International Head and Neck Cancer
Epidemiology Consortium,” Cancer
Epidemiol Biomarkers Prev. 17(8) August
2008 (2008): 1974-1981. Yuan Chin
Amy Lee, et al., “Active and Involuntary
Tobacco Smoking and Upper Aerodigestive Cancer Risks in a Multicenter
Case-Control Study” Cancer Epidemiol Biomarkers Prev.18 (12) December
(2009): 3353-3361. Sophie Paget-Bailly, et al., “Occupational Exposures to
asbestos, polycyclic aromatic hydrocarbons and solvents, and cancers of
the oral cavity and pharynx: a quantitative literature review,” Int. Archiv. Occup. Environ. Health 85 (2012): 341-45.
Jian-MinYuan, et al. “Non-Dietary Risk
Factors Nasopharyngeal Carcinoma
in Shanghai, China,” Int. J. Cancer 85
(2000): 364-69.
8
International Agency for Research
on Cancer, Monographs on the Evaluation
of the Carcinogenic Risk of Chemicals to
Humans, Vols. 1 to 105 (Lyon: IARC).
9
Alina Vrieling, et al., “Cigarette
smoking, environmental tobacco
smoke exposure and pancreatic cancer
risk in the European Prospective Investigation into Cancer and Nutrition,”
Cancer 126 (2010): 2394-2403 and Paul
Villeneuve, et al., “Environmental tobacco smoke and the risk of pancreatic cancer: finding from a Canadian
population-based case-control study,”
Canadian J. of Public Health (2004): 951.
10
D.T. Silverman, et al., “Motor Exhaust-related Occupations and Bladder
Cancer,” Cancer Research 46 April (1986):
2113-16, and Paolo Boffetta, et al., “A
Meta-Analysis of Bladder Cancer and
Diesel Exhaust Exposure,” Epidemiology
12 (2001): 125-130.
11
I. Anneli Ojajarvi, et al., “Occupational exposures and pancreatic cancer:
a meta-analysis,” Occup. Environ. Med. 57
(2000): 316-24.
46
Trial Journal
Also sometimes referred to as polynuclear aromatic hydrocarbons.
13
United States Surgeon General,
The Health Consequences of Involuntary
Exposure to Tobacco Smoke (2006), 446.
14
United States Public Health Service, The Health Consequences of SMOKING A Public Health Service Review, 1967;
Publication No. 1696.
15
Id., at 127-139. See also International Agency for Research on Cancer, Tobacco Smoking, 38 (Lyon: IARC 1986),
86-120.
16
DHHS (NIOSH) “Current Intelligence Bulletin 31: Adverse Health Effects of Smoking and the Occupational
Environment,” February 5, 1979 Publication No. 79-122.
17
DHHS “The Health Consequences
of Involuntary Smoking,” Publication
No. (CDC) 87-8398.
18
Id., at 7.
19
Judith Douville, Active and Passive
Smoking Hazards in the Workplace, (New
York: Van Nostrand Reinhold 1990).
20
Id., at 42.
21
DHHS (NIOSH) “Environmental Tobacco Smoke in the Workplace:
Lung Cancer & Other Health Effects,”
91-108.
22
M.A. Elliott, et al., “Composition
of Diesel Exhaust Gas,” S.A.E. Quarterly Transactions 4 July (1959): 330. U.
Henderson, et al., Noxious Gases and the
Principles of Respiration Influencing The Action, (New York: Reinhold Publishing
Corp.1943). Paul Kotin, et al., “Aromatic Hydrocarbons: III. Presence in
the Particulate Phase of Diesel Engine
Exhausts and the Carcinogenicity of
Exhaust Extracts,” A.M.A. Archives of
Indus. Health, 11 February (1955): 113.
H.H. Schrenk, et al., “Composition of
Diesel Engine Exhaust Gas,” Am. J.
Public Health and Nation’s Health 31 July
(1941): 669. A.A.R. Central Research
Laboratory, Atmosphere in Diesel Locomotive Cabs.
23
Mr. Straub’s presentation can be
found in the minutes of the General
Claims Division’s Sixty-Sixth Annual
Meeting held on May 4-6, 1955, compiled and maintained by the Associa12
tion of American Railroads, pp. 63-72.
24
Robert Straub, “Potential Dangers
from Exposure to Diesel Locomotive
Exhaust,” Indust. Med. Surg. 24 (1955):
353-358.
25
Minutes from the 1965 Forty-Fifth
Meeting of the Medical and Surgical
Section of the Association of American Railroads March 3, 4 & 5, 1965, pp.
151-53.
26
DHHS (NIOSH), “Current Intelligence Bulletin 50: Carcinogenic
Effects of Diesel Exhaust,” August
(1988) Publication No. 88-116.
27
Eric Garshick, et al., “A Case-Control Study of Lung Cancer and Diesel
Exhaust Exposure in Railroad Workers,” Am. Rev. Respir. Dis. 135(6): 124248.
28
National Center for Environmental Assessment Office of Research
and Development U. S. Environmental
Protection Agency, Health Assessment for
Diesel Engine Exhaust, pp. 1-7.
29
45 USC §§51, et seq.
30
Urie v. Thompson, 337 U.S. 163, 187
(1949).
31
McGinn v. Burlington Northern Railroad Co., 102 F.3d 295, 298-99 (7th Cir.
1996).
32
Mosco v. Baltimore & Ohio R.R. Co.,
817 F.2d 1088, 1091 (4th Cir. 1987),
cert. denied, 484 U.S. 851 (1987).
33
49 C.F.R. §229.7.
34
49 C.F.R. §229.43.
35
Lilly v. Grand Trunk W. R.R. Co.,
317 U.S. 481, 491 (1943).
36
Battaglia v. Conrail, 2009 Ohio 5505,
2009 Ohio App. LEXIS 4639 **38
(Ohio App. 2009); Norfolk Southern
Ry. Co. v. Baker, 237 Ga.App. 292, 514
S.E.2d 448, 296 (1999); and Missouri Pacific RR. Co. v. Brown, 862 S.W.2d. 636,
638-39 (Ct.App.Tex. 1993).
37
Major railroads phased out cabooses in the 1980s.
38
See, e.g., M.B. Schenker, et al., “Diesel exposure and mortality among railway workers: results of a pilot study,”
British Journal of Industrial Medicine,
41:320-327 (1984).
39
S.R. Woskie, et al., “Estimation of
the Diesel Exhaust Exposures of RailVolume 16, Number 2  Summer 2014
road Workers: I. Current Exposures,”
American Journal of Industrial Medicine
13:381-394 (1988) and S.R.Woskie, et
al., “Estimation of the Diesel Exhaust
Exposures of Railroad Workers: II.
National and Historical Exposures,”
American Journal of Industrial Medicine
13:395-404 (1988).
40
45 USC §51 and Bailey v. Cent. Vermont Ry., 319 U.S. 350, 352-53 (1943).
41
Ackley v. Chicago & N.W. Transp.
Co., 820 F.2d. 263, 267 (8th. Cir. 1987)
citing Ragsdell v. Southern P. Transp. Co.,
688 F.2d. 1281, 1283 (9th Cir. 1982).
42
Bailey, 319 U.S. at 352-53.
43
Del Raso v. Elgin, J. & E. Ry. Co., 84
Ill.App.2d 344, 228 N.E. 2d 470, 479
(1967) and Evinger v. Thompson, 265 S.W.
2d. 726, 731 (Mo. 1954).
44
Gallick v. Baltimore & Ohio R.R. Co.,
372 U.S. 108, 117 (1963).
45
For example, a June 6, 1984 memo
from Dr. Thomas Davison (Illinois
Central Gulf Railroad) to Marvin
Pelon of the AAR states that smoking
policies were discussed by the Environmental Health Committee of the AAR
but no action was taken.
46
Nivens vs. St. Louis S.W. Ry. Co., 425
F.2d 114, 118 (5th Cir. 1970).
47
Gallose vs. Long Island R.R. Co., 878
F.2d 80, 84-85 (2nd Cir. 1989).
48
Atchison, T. & S. F. Ry. Co. v. Preston,
257 F.2d 933, 936 (10th Cir. 1958); Holladay v. Chicago, B. & Q. R.R. Co., 255
F.Supp. 879, 883-84 (S.D. Iowa 1966);
and Sadowski v. Long Island R.R. Co., 292
N.Y. 448, 55 N.E.2d 497, 500 (Ct.App.
NY 1944).
49
Atchison, T. & S. F. Ry. Co. v. Preston,
257 F.2d 933, 936 (10th Cir. 1958).
50
Eggert v. Norfolk & W. Ry. Co., 538
F.2d. 509, 512 (2d Cir. 1976); Eaton v.
Long Island R.R. Co., 398 F.2d 738, 742
(2d Cir. 1968) (railroad argued that
a judgment should be reversed because the plaintiff failed to introduce
evidence of the practice of other railroads); Kuberski v. New York C. R.R. Co.,
359 F.2d 90, 93 (2d Cir. 1966); Santoro
v. Lehigh Valley R.R. Co., 148 F. Supp.
594, 595 (D.NJ. 1957); Wilson v. Norfolk
& W. Ry. Co., 109 Ill.App.3d 79, 440
Volume 16, Number 2  Summer 2014
N.E.2d 238, 64 Ill.Dec. 686, 696 (5th
Dist. 1982); and Crabtree v. St. Louis - S.
F. Ry. Co., 89 Ill.App.3d 35, 411 N.E.2d
19, 44 Ill.Dec.113, 116 (5th Dist. 1980).
See also 2 Wigmore, Evidence §§379,
461 (Chadbourn Rev. 1979).
51
As of June 2013, 28 states had
banned smoking in all enclosed public places. Illinois is among these 28
states. In Illinois, the Smoke Free Illinois Act went into effect on January 1,
2008, banning smoking in all enclosed
workplaces, including bars, restaurants,
and casinos, and within 15 feet of such
places. The Act exempts certain retail
tobacco stores, private and semiprivate rooms in nursing homes occupied
exclusively by smokers, no more than
25% of designated smoking rooms in
hotels/motels on the same floor, and
private residences. Smoking is prohibited in private residences when defined
as a place of employment such as when
used for child care or foster care. Local governments may regulate smoking
more strictly than the state.
Ten states had not enacted any
statewide ban on smoking in nongovernmental sites: Alabama, Alaska,
Kentucky, Mississippi, Missouri (Missouri does have a clean air act), Oklahoma, South Carolina, Texas, West Virginia, and Wyoming.
“List of smoking bans in the United
States,” accessed January 11, 2014,
http://en.wikipedia.org/wiki/List_
of_smoking_bans_in_the_United_
States#Statewide_bans_on_smoking_
in_all_enclosed_public_places.
52
Hausrath v. New York C. R.R. Co.,
401 F.2d 634, 637 (6th Cir. 1968).
53
Rogers v. Missouri P. R.R. Co., 352
U.S. 500, 506 (1957) and Baker v. Baltimore & Ohio R.R. Co., 502 F.2d 638, 643
(6th. Cir. 1974).
54
Norfolk & W. Ry. Co. v. Ayers, 538
U.S. 135, 141 (2003).
55
It is usually advisable and effective to retain an industrial hygienist to
evaluate the plaintiff ’s exposure based
on testimony of the plaintiff and coworkers in light of industrial hygiene
principles. This report can then be
supplied to the plaintiff ’s causation experts to provide additional foundation
for their causation opinions.
Bill Gavin concentrates his law practice
in the litigation of FELA toxic exposure
injuries, products liability, propane gas
explosions, and general negligence claims.
He is a 1980 graduate of St. Louis
University School of Law and practices as
Gavin Law Firm with offices in Belleville,
Illinois and Memphis, Tennessee. Mr.
Gavin is board certified by the National
Board of Trial Advocacy in Civil Trial
Advocacy and Pre-Trial Practice.
How can YOU GET INVOLVED in ITLA?
Take advantage of the many membership benefits included
with your ITLA membership.
- AMICUS INVOLVEMENT The Amicus Curiae Committee offers support for members with significant cases by filing briefs on issues of major importance to Illinois’
citizens.
The extensive volunteer efforts of the Amicus
Committee file “friend of the court” briefs at
the appellate and supreme court levels.
If you need support on a case or want to volunteer your time as an Amicus Committee
member, contact the ITLA office.
Trial Journal 47

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