Clapper, Patti, Schweizer and Mason

The Federal Employers’ Liability Act (“FELA”) is codified in 45 U.S.C. § 51.  The FELA provides that every common carrier by railroad while engaging in interstate commerce shall be liable in damages for injuries suffered by an employee resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier.  Under the FELA, a continuing duty exists on the part of the railroad to use ordinary care in furnishing its employees with a reasonably safe place within which to work.  In claims arising under the FELA, an act or omission on the part of the railroad that plays any part, no matter how small, in actually bringing about injury is a cause of the injury.

Between approximately the 1940s and early 1980s, numerous asbestos-containing products were used by the railroads including:

·         boiler lagging,

·         pipe insulation,

·         cements,

·         cloth,

·         tape,

·         gaskets,

·         packing, and

·         brakes 

Most of these products were handled in the roundhouse, and various other repair shops by railroad employees including boiler makers, laggers, pipefitters, machinists, sheetmetal workers, mechanics and laborers. 

The removal, installation and handling of these asbestos-containing products on the railroads’ premises by these trades caused the release of unsafe levels of respirable asbestos fiber and dust from the products into the workplace air, thereby contaminating the air with hazardous levels of asbestos. 

The railroad industry was aware of the hazards associated with asbestos exposure as early as the 1940s, and knew how to prevent health risks from asbestos by, among other things, furnishing employees with masks or respirators, utilizing wet-down procedures, and other known safety precautions. 

Most railroads failed to implement these safeguards until the 1980s, thereby failing to provide a reasonably safe workplace, and causing their employees to be exposed to unsafe levels of asbestos during their employment on the railroads’ premises.  Failure to protect led to many workers developing mesothelioma, asbestosis and lung cancer.