By:  LINDSEY O'NEILL, ESQ.

According to the U.S. Occupational Safety and Health Administration an estimated 1.3 million workers face significant asbestos exposure on the job. Asbestos is commonly used as an acoustic insulator, and in thermal insulation, fire proofing and other building materials. Many products in use today contain asbestos.  The inhalation of asbestos fibers by workers can cause serious diseases of the lungs and other organs that may not appear until years after the exposure has occurred.  Workers in the construction, railroad, ship-building, manufacturing of asbestos related products, automotive brake/clutch repair, custodial workers in affected buildings, and workers in other industries are exposed to the highest risks of asbestos and other lung-related diseases on the job.

You might not think that a lawsuit over lung related diseases of railroad workers is big news today, but you’d be surprised.  In fact, the U.S. Supreme Court just reviewed such a case.  I am referring to the case of Thurston Hensley, a retired electrician who sued the railroad company he worked for, CSX Transportation, Inc., alleging that the railroad negligently caused him to contract asbestosis—a noncancerous scarring of lung tissue caused by long-term exposure to asbestos.  Hensley sought damages his lung injuries, as well as for pain-and-suffering, based in part on his fear of developing lung cancer in the future.  After reviewing the case, the jury found in Hensley’s favor and awarded him $5 million in damages. 

Under regular workers compensation systems, workers obtain medical care for injuries sustained on the job without having to go to court…. though the trade-off is that they can’t generally sue for damages like pain and suffering.  Unlike in employees covered by state workers compensation systems, railroad industry workers are covered by the Federal Employers’ Liability Act (FELA), which allows them to sue their employers in court and recover potentially substantial damages for their work-related injuries caused in whole or in part by their railroad employers. 

Does a $5 million jury award sound high to you?  The courts sure think it’s possible that jury awards can get out of control…  and idea of “verdict control devices” is even being carefully discussed within the legal community.  For instance, in the Hensley case, at issue before the Supreme Court was whether the jury was property instructed about awarding “fear of cancer” damages.  This was considered a “verdict control device” because, as the court mentioned, “…..a jury, without proper instructions, could award emotional distress damages based on slight evidence of a plaintiff’s fear of contracting cancer…” In fact, the court held that in some cases, “…a properly instructed jury could find that a plaintiff’s fear [of cancer] is not “genuine and serious.” 

Whether Hensley’s fear of cancer is “genuine and serious” enough for the $5 verdict to stand, we’ll have to wait and see.  If you had a serious lung injury after numerous years of exposure to asbestos related materials as a railroad worker, wouldn’t you be seriously and genuinely worried about developing lung cancer? 

If you or someone you love may have been exposed to asbestos or have experienced symptoms of a lung disease after working in one of the exposed industries, contact an attorney for more information about how best to protect your legal rights.

Read the Supreme Court's decision in the Hensley case by clicking here.  Find an attorney experienced in railroad accidents and injuries by clicking here.