Baker brought this lawsuit under the Federal Employers Liability Act (FELA) and the Locomotive Boiler Inspection Act, (LBIA) noting that Norfolk Southern failed to provide the decedent with a safe place to work and that Norfolk Southern allowed diesel exhaust to be released inside locomotive cabins.
As a locomotive engineer, Mr. Baker regularly worked on Norfolk Southern’s locomotives, where high levels of diesel exhaust would penetrate the cab. Mr. Baker experienced this exposure an average of “six days a week, for four to twelve hours per day.” Before his death, Mr. Baker noted that “black smoke” routinely flooded the cabs of the locomotives that he operated, and that the exhaust smoke got worse in warmer months, as Norfolk Southern did not provide air-conditioning to the locomotive crew cabs. Because of the lack of airflow, opening the windows was the only option to cool down the cars, which allowed diesel exhaust to enter the cab.
Co-Worker Testimony In Railroad Cancer Claims
One of Mr. Baker’s coworkers testified at trial that he had informed Norfolk Southern officials in 1985 that diesel exhaust was coming into the cabs and causing problems for the crew. Despite the suggestion of adding air conditioning to the cabins or operating the locomotives in a direction that did not place the crew cabins directly behind the exhaust stacks (i.e. running short-nose forward instead of long-nose forward), Norfolk Southern did not adopt any recommendations or policy for correcting the problem.
Another coworker, a conductor, testified that his exposure and Mr. Baker’s exposure to diesel exhaust was so strong that “the fumes that would come in would get in your clothing,…your hair,…[and] you breathe it [and] taste it.” This conductor also testified about his request to run the locomotives short-nose forward so that the exhaust did not enter the cab.
Medical Expert Testimony in FELA Cancer Lawsuits
Dr. Samuel Epstein, a qualified expert in toxicology, cancer causation, and carcinogenic properties of diesel exhaust, was retained to testify at trial. Dr. Epstein was able to show that diesel exhaust contains many carcinogenic elements, including high levels of formaldehyde that have been shown to cause the type of cancer that was discovered in Mr. Baker’s nasopharynx. Diesel exhaust causes nasopharyngeal cancers because of its soot particles, which absorb gases and can be inhaled. According to Dr. Epstein, the lengthy amount of time Mr. Baker spent around diesel fumes “incriminates diesel exhaust as the cause of [his] fatal nasopharyngeal cancer.”
The testimony of Mr. Baker’s coworkers, alongside the expert opinions that were presented at trial, was enough for the court to find Norfolk Southern negligent in providing a safe workplace for its employees, in violation of both the FELA and LIA. The jury returned a verdict of $5,744,225.50 for Mr. Baker’s estate.
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