toledoblade.com --

Two years ago, a jury in Lucas County Common Pleas Court awarded $625,000 to a railroad employee who contracted asthma from inhaling diesel fumes while working as a locomotive engineer.

At the trial in the lawsuit brought against Norfolk Southern Corp. by Rodney Cutlip, medical experts testified that his asthma was caused by exposure to diesel fumes on the job.

The jury also heard from Mr. Cutlip’s co-workers who testified about ill-fitting and poorly maintained doors on locomotive cabs that allowed diesel fumes to get inside, and said they often used duct tape to seal the cracks.

The jury’s verdict stands because the Ohio Supreme Court declined in December to consider the railroad’s appeal.

While the courts have held railroads liable for similar workplace conditions that have caused cancer, it is believed to be the first for an employee who got sick from inhaling diesel fumes.

"This is the first case of its kind in the country. There had never been a case in which an employee successfully claimed that diesel fumes caused asthma," said E.J. Leizerman, a Toledo attorney who represented Mr. Cutlip.

According to Mr. Leizerman, his client filed the suit, in part, to get Norfolk Southern to address the fumes in the engineers’ compartment, providing a safe workplace for him and his co-workers.

The jurors heard testimony from employees about the railroad’s practice of operating trains in "long hood forward," which placed the locomotive engineers at the back of the engine and the smoke in front of them, thereby exposing them to more fumes.

In addition, Mr. Cutlip’s co-workers testified that Norfolk Southern often engaged in "deadheading," a practice in which engineers were kept in train locomotives at the end of their work shift. Instead of using vans to get the employees home, they were returned to a train yard in a passenger car behind the engine, where they were subjected to the down-wind path of diesel fumes.

Despite the jury award, Norfolk Southern has not addressed the issues raised at Mr. Cutlip’s trial, said John Bentley of the Brotherhood of Locomotive Engineers in Cleveland. The union represents about 35,000 engineers, conductors, and other employees.

"There is no evidence that Norfolk Southern made any improvements to locomotive cabs to reduce the possibility of diesel exhaust entering the cabs. There is not evidence the railroad improved insulation in the cabs or anything of that nature," he said.

Rudy Husband, a Norfolk spokesman, said the railroad would not commenton the Cutlip case, and it has a policy of not talking about lawsuits filed against the company. He also would not discuss the conditions of locomotives or its practices of long hood forward and deadheading.

Mr. Leizerman said Norfolk did not appeal the jury verdict to the U.S. Supreme Court. He said the railroad settled the case with his client, paying him the $625,000 jury award and about $100,000 in interest.

Mr. Cutlip sued his employer under the Federal Employers’ Liability Act, a federal law that provides compensation for railroad employees who were injured on the job.

Enacted by Congress in 1908, the law is used as the basis for civil lawsuits for injuries resulting from a railroad’s negligence, and covers everything from dismemberment, hearing loss, and carpal-tunnel to other health problems caused by exposure to asbestos, chemicals, and solvents.

The law allows railroad employees to sue for compensatory damages, but it does not allow them to receive punitive damages.

Last year, the U.S. Supreme Court upheld a $5.8 million West Virginia jury award to six retired Norfolk Southern employees who believed they were exposed to asbestos at their workplace.

The court ruled that workers, who all have asbestosis, may win damages for their fear of contracting asbestos-related cancer.

Tom White, a spokesman for the Association of American Railroads, said FELA lawsuits cost the industry about $1 billion annually in jury verdicts like the Cutlip case and out-of-court settlements, administrative costs, and attorney fees.

"Lawsuits are filed virtually on anything. They are an unfortunate fact of life in business today, and an awful lot of lawsuits are filed," Mr. White said. "It is definitely a high cost of doing business.

"We are the only industry covered by this law. It puts a greater burden on the railroad than any other business facing employee-related injury cases," he said.

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