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New Jersey occupational lung cancer case restored in appeal

Bergen County employers are obligated to maintain safe workplaces. The task becomes difficult when employees are exposed regularly to dangers because of the type of work they perform. When known hazards are present, companies must make every effort to remove or reduce threats to workers' health.

A widow's case against a railroad company was restored recently by an appellate panel's decision. The wrongful death suit concerns a former conductor for Consolidated Rail Corp., known to most New Jersey residents as Conrail. The man died nearly six years ago after being diagnosed with lung cancer, which his widow claimed was caused by inhaling train diesel fuel smoke.

The decedent was assigned to several jobs at Conrail and the railroad's previous owners over a career of more than three and a half decades. A judge in Hudson County Superior Court agreed to the defendant's motion for a summary judgment. The judge dismissed the plaintiff's case, filed under the Federal Employers' Liability Act because evidence of negligence lacked a railroad safety expert's testimony.

The plaintiff relied on a report by a pathologist from Harvard Medical School who concluded that the railroad worker's fatal lung disease likely developed due to unprotected diesel fume exposure. A witness who worked with the decedent stated that he and his co-worker breathed diesel exhaust, churned out of the smokestack of an old-style locomotive, without protective respiratory gear.

An appellate panel tossed out the judge's ruling and several defendant objections. The panel felt the claim had merit and adequate expert testimony, considering FELA cases have lower standards of negligence than other liability claims.

Some medical conditions, like silicosis or lung cancer, occur as a result of repeated exposure to a dangerous substance. Occupational illnesses can occur as the result of long-term touching, inhaling or accidentally ingesting harmful, sometimes invisible toxins. Attorneys can advise which legal course is wisest when a worker is seriously injured or dies.

Source: New Jersey Law Journal, "Wrongful-Death Suit vs. Conrail Over Diesel Fumes Revived" David Gialanella, Aug. 11, 2014

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