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44 PAGES • A GANNETTNEWSPAPER • LOUISVILLE, KENTUCKY www.courler-Journal.com MONDAY,MAY14, 2001 • 50 CENTS

THETOXICWORKPLACE
Railroaders, solvents
andsickness

Doctors
linkillness
tosolvents
Somedisagreethat
exposurecauses
brain damage
Second of four parts

ByJAMES BRUGGERS
The Courier-Journal
It began as a trickle of pat ients
in the late 1980s and quickly
turned into a flood.
Indepen dently, medical special-
ists working in six states came to
the same conclusion: Hund reds of
railroad workers had suffered
brain damage.
The workers' symptoms were
alarming: lack of short-te rm mem-
ory, poor balance, moodiness, irri-
tability and decreased mental
function.
After ruling out other explana-
tions, the speciali lltS determined
the most likely cause was work-
. ers' persistent, heavy ~xpos~re to
,. the solvents used m railroad
maintenance shops.
"The evidence is very clear in
my view," said Dr. Howard Frum-
kin, professor and chairman of
the Department of Environmental
and Occupatio nal Health at
Emory University's School of Pub-
lic Health in Atlanta.
"There are dozens of studies
that show evidence of chronic
neuro logical deficits following
high-dose solvent exposure. Sev-
THECOURIER✓OURNAL
BY PAMSPAULDING, eral international consensus state -
CSX has found its strongest medical ally in Dr. James Albers, a neurologist at the University of Michigan in Ann ments reach that conclusion, and
Arbor who has concluded that none of the workers he examined suffered from solvent-Induced brain damage. most major textbooks in the field
now describe the syndrome as es-
tablished."
INSIDE "The evidence is very clear in
my view. There are dozens of
And it's likely, the doctors say,
that severa l thousand railroad ers
who worked with these chemica ls
MIXTURE: CSX had been studies that show evidence of since the 1960s have similar but
cautioned about chemical undiagnosed brain damage.
interaction . chronic neurological deficits fol- The worker diagnoses, first
CONCERNS: A doctor lowing high-dose solvent expo- made 15 years ago, se_tin !llot\~n
warned about the dangers a little -noticed but epic sc1ent1flc
of solvents In the 1960s. sure." and legal battle over whet~er
- Dr. Howard Frumkin, Jong-term, heavy exposu re to in -
RESEARCH: Studies dustrial solvents such as trichlor-
proposed in 1996 remain professor and chair of the Departmentof oethylene, 1,1,1-trichlorethane and
undone. Environmental and Occupational Healthat Emory See SOME
Stor ies Page 9 University's Schoolof PublicHealth in Atlanta Page 8, col. 1, this section

YESTERDAY: ThePeopleandtheProblem TODAY: TheScience TOMORROW: TheLaw WEDNESDAY: Solvent

s: Societyat Risk
 I I

8 THE COURIER-JOURNAL• FROM PAGE ONE• MONDAY, MAY 14, 2001

THETOXICWORKPLACE
Railroaders,
solventsand sickness

Somedoctorslinkillnessesto solvents,butothersdisputediagnoses
Continuedfrom PageOne
perchloroethylene could have
given workers toxic encephalo-
pathy - a form of permanent
brain damage. . ·
Through their courtroom tes-
timony and sworn depositions,
some of the country's top ex-
perts on solvents have opened
up for debate an issue impor-
tant not only to railroaders but
to current and future workers
in industries from dry cleaners
to semiconductor manufactur-
ers.
Florida-basedCSX Transpor-
tation Inc., the railroad com-
pany that has been the target of
more than 600 solvent lawsuits
and claims, disagrees that the
degreasing chemicals .made
anyone·ill.
CSX considers the medical
problemscited b:r-their employ-
ees who filed claims merely the
physicalinsults of age.
"Some of them have adult-
onset diabetes," said JosephM. .
Ke11y,.senior director of CSX's
risk management department.
" Some of them have hyperthy-
roidism, untreated. Some of
them have high blood pressure,
untreated."
" ... And yes, when they go
in and see (an occupationaland
environmental medicine spe-
cialist with a bias) thef get the
right type of diagnosis.'
The company has found its
strongest medical ally in Dr.
James Albers, a neurologist at
the University of Micnigan
School of Medicine who w.as
hir ed by CSX to test workers
who were suing the company.
In the last several years,
Albers artd his colleague, neur-
opsychologist Stanley Berent,
examined dozens of previously
diagnosedrailroad workers and
concluded none suffored from
sol:V ent-inducedbrain damage.
Albers, who is co-director of
the medical school's Neurobe-
liavioral Toxicology Program,
summedup his meaical O{linion
in a 1998 Louisville tnal in
which former Kentucky rail-
road worker Gary Stone was
seeking compensation for his
toxic encephalopathydiagnosis.
"All of us have been in the
situation ... where someneigh-
bor, will come up with het
spouseand you can't remember
his name, although you have
lq}own that personfor 10years.
''You probably don't go home
and say, my God, I'm brain-
damaged," Albers told the jury.
But Dr. Douglas H. Linz, .
medical director for TriHealth
Corporate Health Services. in
Cincinnati and adjunct.associ-
ate professor at the University
of Cincinnati College ofMedi-
cine, said the problem is more
than normal forgetfulness.
"My wife tells me I need to
go to the store and pick up
three items," Linz said, ,.giving
an example of how a worker
might be affected. "She gives
me a list with those three items
written down.
" I drive to the store. I go into
the store, forget why I'm there.
I forget I havea list.
"I buy five items, only one of
which happens to be on the list. Neuropsychologl
And then I walk home from the evidence that a PETscan may show solvent-Induced damage.
store, forgetting that I drove."
CLAIMS SUPPORTED about
Expertise,equipment
for diagnosisdebated
Dr . Alan Ducatman, an occu- fessorof neurology, pharmacol-
pational and environmental ogy and environmental health,
medicine specialist and chair- and chairman emeritu s of the
man of the Department of Department of Neurology at the
Community Medicine at West Boston University School of
Virginia University School of Medicine, said many rely too
Medicine in Morgantown, said heavily on medical tests, such
he began diagnosing railroad as MRI brain scans, that aren't
workers with toxic encephalo- sensitive enough to reveal
pathy sevenyears ago.
"A physician in a small town
in Maryland, who I never had better," Feldmansaid.
Dirty trains, toxic chemicals
ppm: Paria~r million. A way of
measuring tiny amountsof a
chemicalif! air or water.One part
. per millionIs equivalentto the
concentrationof one-halftablet ot J
r-
aspirin disijolved ih a full bathtub
of water,, or, about on!;Iminutein •
two years.
, OSHA PI L: The maximum " per-
missible exposure limit'' set by
. OccupationalSafetyand Health
Administration. the federalgovern-
ment'sworkplacesafetyagency.
This is the legallimitemployees
may be exposedto in any OSHA-
.regulatedworkplace, averaged
overan eight-hourwork day,
NIOSH REL: The "recommend-
ed exposurelimlt" sel by the
NationalInstitutetor
Occupa1ionalSafetyand Aealth,
.a fed~ralagencythat makes rec-
ommendationsto .OSHA.The·
recommendedlevel, averaged
overa 10-hourwork day, does
not havethe force of law. NIOSH
stan~.:t rds tend to be more
restrictivethan OSHA's because
N!OSH's recommendationsare
:. science-based,whereasOSHA
11
J11Ust by law considerthe cost for
;, employersto implementan expo-
sure level.
ACGIHTLY: The "threshold
. limit value," averagedover an
: eight-hourwork day. determined
.. by a privatoprofessJonal group,
,;,• the AmericanConferenceof
· GovernmentalIndustrial ! A petroleum-derived
: Hyglenists. OSHAadopted many . }
. of ACG!H's recommendedlimits - f vent still used by CSX.
in the 1970s,but since then,
AGGIHhas revisedsome of its
· standa(ds , making them !Qwer
, than OSHA's. I Exposure
. ----·
SOURCES: NationalSafetyCouncil's Crossroadsdatabase; Agencyfor Toxic Substancesand DiseaseControl'sToxFAQs and chemical profiles; U.S. Environmental
ProtectionAgency; U.S. OccupationalHealthand SafetyAgency; Occupational & EnvironmentalNeurotoxicologybyRobertG. Feldman, 1999; Halogent1tedSolvents
IndustryAlliance;EnvironmentalDefense'sScorecard;AmericanConferenceof GovernmentalIndustrialHygienists;ToxicsA to Z: A Guideto Everyday Pollution
Hazards,by John Harte, CherylHoldren,RichardSchneider,ChristineShirley;NewJerseyDepartmentof Healthand Senior Services'hazardous substance fact
sheets;variousMaterialSafetyDataSheets,staff research.
st Marc Haut of WestVirginia Universityfound
rologists don't know enough
how chemicals affect the
nervoussystem to make that di-
agnosis.
Dr. Robert G. Feldman, pro-
chemical-causedproblems.
"Neurologists don't know
only waged in medicaljournals.
It also movedinto the courts.
In a pivotal 1995hearing, an
internationally recognizedphy-
sician who played a key role in
Whenchlorinatedsolventswere introducedin the 1930s, they were regardedas powerful,non-flammable"miracle the government's understand-
cleaners." Medicalresearchhas since shownthey are also harmfulto the liverand kidneys.Some medical re earch has in~ of solvent neurotoxicity tes-
also linked long term exposureto chlorinatedsolventssuch as those below to long-lastingor permenantdarr1ageto the tified on behalf of workers.
Dr. Edward L. Baker Jr., a
brain and peripheral nervoussystem.
former Harvard University pro-
Overthe last 50 years, railroadcompanieshave used a seriesof solventsto clean greaseand oil from locarnotives. CSX
fessor and former de{luty direc-
TransportationInc. officials,tor example, say they switchedchemicalsas newer,saferor better products beoHme available.
tor of NIOSH, testified at a
hearing before Davidson Coun-
CARBON TETRACHLORIDE
ty (Tenn.) Circuit Court Judge
One of the first solventsused on the railroad,carbon tet fell out of popular use by the 1960s. Now bannedin most con- Marietta M. Shipley, overseeing
sumer products becauseof its toxic qualities, carbon tet is still used to manufactureother chemicals. 82 CSX solvent cases,to deter-
Health effects: Believedto be cancer-causing.Low exposureirritatesthe eyes, nose, throat and skin. Higfl exposure mine if toxic encephalopathy
the can causeliver,kidney and centralnervoussystemdamage.Alcoholconsumption greatly increaseshealthri§ks. diagnoses were the result of
Exposure guide line s: OSHAPEL: 10 ppm; NIOSHREL:Reduceexposureas much as possible;ACGIHfl- V: 5 ppm "junk science."
Baker pointed to evidence of
solvent toxicity, including de-
TRICH LOROETHYLENE (TCE) pression and memory problems
Still a popularmetaldegreaser,TCEwas used by railroad companiesin machines called "vapor phasedegr8asers," where showing up as early as the 19th
parts were loweredinto heatedsolventfumesfor cleaning.The chemicalalso was used as an all-purposecleaner. CSXoffi- century among Frenchworkers.
cials said its use was discontinuedin the 1970s. Reports of simil ar problems
Health effects: Believedby some public healthagenciesto be cancer-causing.Low exposureirritateseyes, nose, throat increased in· the 20th century.
and skin. High exposuredamagesliver, kidney and centralnervoussystem. Dozens of medical studies on
Exposure guidelines: OSHAPEL:100 ppm; NIOSH REL:25 ppm; ACGIH TLV: 50 ppm the effects of solvents led to
two international conferences
PERCHLO ROET HYLENE (PCE) in 1985, one of them organized
by tJ:ieWorld Health Organiza-
The chemicalused by most dry-cleanerstoday, PCEwas was used in vapor degreasersand, on the L&N railroad,was tion, said Baker, currently as-
mixedwith 1,1,1-trichlorethaneto makea cleanercalled L&N No. 3 that workerssprayedor swabbed onto locomotivesto sistant surgeon general in
clean them. CSXsaid it stopped using L&N No. 3 in the mid-1980s. charge of the public health
Health effects: Suspectedof causingcancer. Breathinghigh concentrations may cause central nervous systemeffects practice program at the Centers
such as dizziness, headacl'\e,nauseaand difficulty in speakingand walking. Long-term exposure can damage kidneyand for DiseaseControl and Preven-
liver, and has been associatedwith reproductivedisorders. tion in Atlanta.
They were follo wed, Baker
Exposure guldellnes: OSHAPEL: 100 ppm; NIOSH REL: Reduce exposureas much as possible; ACGIH TLV: 25 ppm
testified, by a 1987NIOSH bul-
letin that stated there were
1,1,1-TRICHLOROETHANE (TCA)
" statistically signifi cant · in•
Phasedout nationwidebeginningin 1996 becauseof its ozone-depletingqualities, TCA once wasa popularall-purpose creases in neurobehavioral ef-
degreaserbecauseof Its relativelylow toxicity.Used by CSXin bulk form, alone and mixed with PCE, until tho mid-1980s,
fects in workers chronically ex-
and in aerosolform until the earlyto mid-1990s. posedto organicsolvents."
Health effects: Breathinghigh levelsmay causeheartarrhythmiaand kidney and liver damage. Central nervoussystem Baker further testified that
depressant, causingdizziness, nausea, vomitingand diarrhea. the 1988 Gade publication '~in
EXl"SUre guidelines: OSHAPEL:350 ppm; NIOSHREL:not set; ACGIH TLV: 350 ppm no way takes away from the
(other studies) that have helped
j
MINERAL SPIRITS establishthe link betweenlong-
solventconsideredlesstoxic than its chlorinatedcousins,mineral spirits are now the only type of sol- term solvent exposure and
brain damage."
Health effects: Breathingfumes may causecentral nervoussystem impairment, including headaches,dizzinessand
After four days of testimonY.,·
Shipley sided with the railr.oad-
j prolongedreactiontime. Irritateseyes, skin and throat.Repeatedexposuremay cause a rare type of anemia in some peo- ers. "This is not 'junk ~ci-
j ple. . ence,' " Shipley ruled. "It is
OSHAPEL:500ppm;NIOSHREL: 60 ppm; ACGIHTLV: varies100-300
guidelines : ppm groundedin scientific theory."
{::SXapp~aledto the Tennes-
see Supreme Court, which I.IP·
held Shipley's ruling. Then the
companytried, but failed, to $et
the U.S. Supreme Court to in-
tervene. _
In 1998and 1999, the railroad
company settled 81 of the 82
Nashvillesolvent cases.
EXPOSUREDEBATED
Amountto cause brain
How solvents affect the body damage part of dispute
ROUTES OF EXPOSURE: Part of the medical dispute
has centered on how heavily
workers were exposed tQ _sof-
vents and how much exposure
was needed for a toxic effect.
Stopher, Albers and CSX of-
ficials don't dispute that severe
Centralnervoussystem• Maycause overexposure to these solvents
irritability,nervousness, weakness,
can cause permanent brain
tiredness,dizziness, sleeplessness, damage. But they say it re-
disorientation, confusion,
quires oxygen deprivation to
unconsciousness,changes in thinking, the point of the person falling
memory and personality. into a coma. ~
Court testimony from work-
Respiratorysystom • May produce ers and their supervisors, inter-
bronchitis, chronic cough views and internal company
documents suggest that many
Peripheralf1ervoussystem - railroaders were heavily ex-
ome solvents damage nerves posed to solvents over many
in muoctes and sensory years.
organs, cousingweakness, In addition, the workers' doc-
lossof sensation, and paralysis tors have conclued that work-
ers suffered brain damageeven
if they didn't fall into a coma.
Eyes-
Causes - --- Liver - May causea typ~
Many workers reported feel-
ing dizzy, lightheaded and nau-
irritation, of hepatitis. seous and needing fresh air to
burning recover, the doctors said. This
Cancer- Somestudies link type of exposure over a sus-
Heart -
solvent exposureto cancer,especially tained period could be acute
Can cause of the liver or kidney enough to causemild to severe
arrhythmia. permanent brain damage, doc-
Kidney- May causepermanent damage tors such asDucatmansaid.
" Yes, people passedout. and
Skin - Reproductive system- Somesolvents yes, the fresh-air break to clean
Breaksdown fat and are believedto causemiscarriages, one's headwas part of the job,"
oil in skin, causing fertilityproblemsor birth defects said Ducatman, the West Vir-
ginia University doctor.
dermatitis

SOURCE: American Lung

f •- Blood• Some solvents m?Ydamage
blood cells, causinganemia
CSX, meanwhile, said that
the solvent fumes, which were
heard of, sent me three _patients In fact, diagnosing toxic en- Association , staffresearch rarely monitored, never
on the same day, whlch was cephalopathy requires such Skin • Becomesthick, reachedacutelevels.
very unusual," Ducatman said. specialized knowledge and ex- BYJOANNE MESHEW, Tl1E C✓ dry, hard, cracked Railroad officials maintain
" So I called the guy up and pe1iencethat there are relative- PHOTOS BY PAMSPAULDING, THE C✓
that feeling dizzy, li~ht-headed,
said, 'What do you think about ly few doctors in the United Dr. Douglas H. Linz of nauseous - needing to_ get
thesethree men? States who are considered ex- Cincinnati supports the SOLVENTRESEARCH painters previously diagnosed ceeded federal limits, as they fresh air - does not constitute
"He said, 'If you think these perts in the field, Feldman said . diagnosis of toxic with brain damage. believe the CSX railroad work- the kind of heavy, acute expo-
Some studiesshow "Previous impressionsof sig- ers were.
guys are interesting, I have an- Examining doctors need to encephalopathy.
sure neededto produce perma•
other 50.'"
no link, othersdo nificant intellectual impairment And, the Albers study nent brain damage.
understand the central and pe- With CSX in the lead, the could not be confirmed," Gade tracked workers only for six Peter Spencer,a neurotoxico•
Linz was working full time at ripheral nervous systems as eluded, researchershad consis-
the the University of Cincinnati railroad companies have at- concluded. years; most railroaders with logist at Ore~on Health Sci-
tently found neurobehavioral
in the early 1990s when CSX well as toxicology, epidemiolo- deficits in solvent-exposed tacked the toxic encephalo- Stopher called the Gade arti - settlements claimed exposure ences University and co-editpr
asked him to becomeinvolved. gy and occupational medicine, workers. pathy diagnoses as emanating cle "a retraction," and said that over 10years, he said. of "Experimental and Clinical
The company sent him four Feldmansaid. from ''junk science." it all but ended the scientific Albers and his co-authors ac- Neurotoxicology," a widely
CSX workers who had been di- Dr. Go,effrey A. Kelafant, an To get around the limitations CSX points to a 1979 study debateon toxic encephalopathy knowledgedas much in the two used medical school textbook,
agnosed with toxic encephalo- occupational and environmental of traditional diagnostic tools, by Scandinavian researcher P. worldwide. articles, which concluded that disafeed.
pathy and who had claims medicine specialist in Mattoon, such as MRis and EEGs, some Ar lein-Soborg of 70 house He also pointed to two re- their inabilit y to replicate the "I m not sure that (the CSX)
pending a~ainstthe company. 111., explained the complexities doctors are exploring other painters exposedto organic sol- search studies, one published in Scandinavian studies "could position can be sustained any
The railroad asked Linz to of a toxic encephalopathydiag- technology. vents over many years. The Ar- 1985and the other in 1987, that have been due to the shortness longer," said Spencer, who di-
perform an independent medi- nosis in a 1994 article published Last year, for example, neur- lein-Soborg research identified Albers · participated in that of the duration of workers' ex- rects the Portland university's
cal evaluation. Linz confirm ed in the Journal of Industrial opsychologist Marc Haut of brain damage in 39 of the looked at furniture makers, posure''.and other factors. Center for Research on Occu-
they had solvent-related brain Medicine. WestVirg inia University School workers, and named the illness printers and automotive work- But the Michi gan doctor pational and Environmental
damage. " The exposures are often of Medicine found evidence "chron ic painters' syndrome," ers in the United States. pointed to two other studies Toxicology and who has not
CSX never sent Linz ·any mixed, and the exposure levels that a newer kind of imaging or toxic encephalopathy. The research by Albers and that he published in 1999 and been involved in solvent law-
more patients. The company are often unknown or unreli- called digitized positron emis- The study made quite a several co-authors, supported 2000 that examined railroad suits.
then retained Albers at the Uni- able," he wrote as lead author sions tomography - a PET splash in the scientific and by the National Instit ute for Oc- workers who had been diag- " I think ... we need to ac•
versity of Michigan. of the article. scan - may reveal solvent-in- medical communities,said Lou- cupational Safety and Health nosed with toxic encephalo- cept, that three to IO years of
"We live in a consumer-sup- Kelafant, while worki ng at ducedbrain damage. isville attorney Edward H. (NIOSH), found no link be- pathy and had been sent to him gross overexposure may result
plier marketplace for medical Cardinal Hill Rehabilitati on Wit h several co-authors, in- Stopher, who has been han- tween solvents and brain dam- in connectionto the lawsuits. in persistentdeficits."
opinions," said Linz about the Hospital in Lexington, Ky., cluding Ducatman, Haut pub- dling many of CSX's solvent age. None of them has the ill- And that's what happened
CSX decision not to use him identified 28 rail road workers lished a study last year in the casesand said he has defended "Epidemiological studies are ness,he concluded. w ith the railroaders, many of
anymore. He later testified for who he believed had suffered journal Neuropsychology, at least two against the Norfolk inconsistent, and this so-called Those studies were funded in whom worked. in pits beneath
workers claiming brain qamage Southernrailroad. painters' syndromehas not been part by CSX and carry a dis- locomotives where heavier-
from solvent exposure. ' brain damage from solvent use. which concluded that the What followed, said Stopher, reproduciblewith any statistical claimer: "Th e authors have at than-air solvent fumes settled,
CSX has strongly maintained "Symptoms such as moodi- brains of many railroad work-
was a flurry of other research significance to any degree of times been retained as consul- s?id Lihz, the Cincinnati physi-
that only neurologists such as ness, fatigue and irritabi lity are ers showed signs of impair- in several countries, including reliability," Stophersaid. tants by finn s or companies cian.
Albers - who specialize in the non-specific and difficult to ment. the United States, seeking to Physicians such as Frumkin, concerned with the manufac- "The dose was, in fact, very
structure, function and diseases evaluate.Other symptoms such " The study would generally replicate the Arlein-Soborg re- Linz and Ducatmandisagree. ture or use of solvents.'' high, both in terms of intensity
of the nervous system - are as impaired memory and de- support the idea that the frontal sults. Linz pointed out that Albers' as well as duration," Linz said.
qualifi ed to diagnose toxic en- creased concentration may re- lobes don't seem to be working Then in 1988,one of the co- 1985 and 1987 studies, pub- LEGALBAffLES "At times people passedout. At
cephalopathy. quii:e lengthy and expensive correctly," Haut said, adding authors of the Arlein-Soborg lished in the British Journal of times people became so con-
But a neurologist who has neuropsychological testing to that the research needs to be research - A. Gade - pub- Industrial Medicine, involved Tennesseecourt rulings fused and disoriented they
not been involvei:I in the rail- corroborate." duplicated before it it can be lished a follow-up articl e based workers who were never ex- lead to settlements needed to be extricated by co-
road liti gation said many neu- Nevertheless, Kelafant con- consideredconclusive. on a re-evaluation of 20 of the posed to acute levels that ex- The scientifi c battle was not workers."

HANDLING OF CHEMICALS
CSXcautioned
abouthighly
toxicmixture
ByJAMESBRUGGERS
The Courier-Journal
Railroad workers could al-
ways tell when the caustic
soaps and degreasing solvents
applied side-by-side to clean
locomotives sometimesmixed.
The fluid would be "running
down the same ~utter, boiling
as it went, stinking," said
Larry Elmore, who led a safety
committee at the Louisville &
Nashville Railroad's Louisville
shops in the 1970s.
"We didn't have a name for
it, but we just knew you better
get the hell out of Dodge."
By 1981, after L&N had be-
come a subsidiary of CSX
Corp.,the companyunderstood
there could be a problem, too.
Mixing the industrial sol-
vent 1,1,I-trichlorethane (f CA)
with alkaline substances
(brown or pink or 1-LAsoaps)
produced fumes far more toxic
than those from TCA alone,
company industrial hygienist
Mark E. Badders wrote on
Aug. 17, 1981, to Dr. Charles
A. Mead, who was chief medi-
cal officer.
CSX acknowledges settling
466 solvent-exposure claims,
with 80 pending, and paying a
total of up to $35 million in
awards to current or former
workers who were diagnosed
with toxic encephalopathy. It
denies any link between sol-
vents and brain damage.
Badders' memo may figure
in a new round of lawsuits
stemming from a research
project by a Louisville neuro-
psychologist. In it, Badders in-
dicated be was concerned
about the formation of '' irri-
tant gases" hydrogen chloride,
pnosgene and dichloroacety-
lene.
Dichloroacetylene is so toxic
the Occupational Safety and
Health Administration sets the
maximum permissible expo-
sure limit at one part per mil-
lion; it's 350 parts per million
forTCA.
Phosgene has been a chemi-
cal warfare agent. Its OSHA
limit is even lower: 0.10 parts
per million.
The OSHA limit for hydro-
gen chloride, which is corro-
sive to the eyes, skin, and mu-
cous membranes, is 5 parts
per million.
CSX officials told The Cou-
rier-Journal that they were not
aware that workers ever
mixed the solvents or that the
practice might result in health
problems.
"I've never heard any com-
plaint about the two of them
being mixed," said Joseph M.
Kelly, senior director of the
CSX risk management depart-
ment.
However, Kelly acknowl-
edged that the caustic soap
and degreasing solvents would
have mixed in drains leading
to the facility's sewer system.
GLOSSARY
OF TERMS
CHLORINATED SOLVENTS:
Powerfuldegreasers manufac-
tured by combiningchlorinecom-
pounds withhydrocarbonsol-
vents to make them less flamma-
ble and more efficient.
TOXIC ENCEPHALOPATHY :
A formof braindamage charac-
terized by short-termmemory
loss, depression, anxiety,loss of
balance, diminishedmentalfunc-
tion and sometimes nerve dam-
age in the arms and legs.
OSHA: The U.S. Occupational
Safetyand HealthAdministration,
created by Congress in 1970 to
regulateworkplacesafety. It sets
acceptable exposure levels for
toxicworkplacechemicals.
NIOSH: The NationalInstitute for
OccupationalSafetyand Health.
It studies workplacehazards and
recommends changes to OSHA.
NEUROLOGY : The branch of
medicineconcerned withthe
structure,functionand diseases
of the nervoussystem.
OCCUPATIONAL HEALTH
AND ENVIRONMENTAL
MEDICINE: The branch of med-
icine concerned withworkplace
illnesses;frequentlydeals with
long-termexposure to noxious
substances.
HEUROPSYCHOLOGY : The
branch of psychologyconcerned
withbrain-behaviorrelationships.
THE COURIER..JOURNAL
"In the waste system when
they're all floating down, they
would be mixed."
Martine RoBards, the Louis-
ville neuropsychologist, said
she believes that while heavy
use of the degreasing solvents
by themselves harmed her 90
railroad patients, their likely
mixture with caustic soaps,
heat and light added to the se-
verity of their problems.
Unlike workers exposed to
TCA over 10, 20 or 30 years
and diagnosed with toxic en-
cephalopathy, some of Ro-
Bards' patients were exposed
for as little as two years, she
said.
"My perception is at this
point anyone who was ex-
posed two years at severe lev-
els has a permanent neurologi-
cal disability,"RoBards said.
Some had previously been
diagnosed with other illnesses,
such as Parkinson's disease,
depression and anxiety disor-
der, and even multiple sclero-
sis, she said.
RoBards got involved in
1999, she said, based on what
former CSX employee Deb-
orah Schleicher, 44, told her
about conditions in the Louis-
ville shops. Schleicher, of
Clarksville, Ind., was the first
woman to win a machinist cer-
tification at the South Louis-
ville Shops. She was later pro-
moted to foreman, then to
safety director.
Her attorney, Willinm Ken-
ealy of Louisville, declined to
allow Schleicher to be inter-
viewed.
RoBards said she felt the Martine RoBards, a Louisville neuropsychologlst, believesthe mixingof solventswith caustic soaps, heat and light added
need to corroborate to the severity of worker ailments. RoBardsand anotherresearcherhave presentedtwo scientificpaperson their findings.
Schleicher's story, so she be-
gan to contact some of
Schleicher's fonner co-work-
ers and found they had the
same symptoms. RoBards ran
the workers through tests to
measure memory, attention,
concentration, motor skills
and perception.
Along with co-researcher
and neuropsychologist Chris-
topher Allen of Lexington, Ro-
Bards presented two scientific
papers on their findings at the
29th annual meeting of the In-
ternational Neuropsychologi-
cal Society in Chicago in Feb-
ruary.
Three of RoBards' patients
have filed lawsuits: Schleicher,
David Ray Burton of Oldham
County and Terry Williams of
Corbin, Ky.
Louisville attorney Edward
H. Stopher, who represents
CSX, said he would closely
scrutinize the theory that mix-
ing solvents with caustic PHOTOCOURTESY
soaps, heat and light creates Deborah Schleicher,
medical problems if the plain- pictured here in the 1980s,
tiffs' lawyers raise these issues went from the shops ' safety
in court. director to solvent plaintiff.
LACK OF COMPREHENSIVE RESEARCH
Exposurestudies proposedby panel in '96 remain undone
ByJAMESBRUGGERS
The Courier-Journal
Alarmed by sick railroad
workers showing up by the
hundreds at health clinics in
four states, doctors, govern-
ment officials, researchers and
railroad representatives met in
1996to discuss how to investi•
gate solvent exposure.
They proposed three main
steps:
• Survey health and safety
conditions in the industry, fo.
cusing initially on CSX Trans-
portation Inc.
• Convene a panel of labor,
management, government and
academic representatives to
stimulate and oversee re-
search.
• Establish a registry of
railroad workers to identify
participants in studies.
Five years later, nothing has
been done.
No industry survey was ever
undertaken. No research com-
mittee was established. And
no registry of railroad workers
was created.
"Follow-up was both justi-
fied and necessary," said Dr.
Howard Frumkin, professor
and chainna n of the Depart-
ment of Environmental and
Occupational Health at Emory
University's School of Public
Health in Atlanta, and presi-
dent of the American Associ-
ation of Occupational Clinics
at the time of the meeting.
"There is still a lot we need
to know about that industry,"
said Frumkin, who was co-or-
• FROM PAGE ONE • MONDAY,MAY14, 2001
THETOXICWORKPLACE
Railroaders,
OF LARRYELMORE
John O'Bannon, right, who workedat the South LouisvilleShops , attended a presentat ion
on solvent exposure at the University of Louisville. He talked with attorney William
Kenealy, left, and study co-author Michael RoBards, son of Martine RoBards.
Dr. Alan Ducatmanof the West Virginia UniversitySchool of Medicine In Morgantown
patient John Collins, said a continuingneed exists for research on how solvents affect humans.
ganizer of the meeting.
For the National Institute
for Occupational Safety and
Health, which paid for the
1996 meetini in Washington,
D.C. and which was identified
as "well-positioned" by par-
solvents
andsickness
PHOTOS BY PAMSPAU~NG , THECOURillhl OURNAL
BY PAM$PAULDINGTHECOURIER-JOU
ticipants to lead research ef-
forts, it became a question of
competing priorities, said Fred
Blosser,agency spokesman.
David Otto, an Environmen-
tal Protection Agency neuro-
toxicology researcher who at-
RNAL
, right, with
tended the meetin~, said there
wasn't enough evidence pre-
sented to make him believe
the problem warranted an in-
vestigation, given NIOSH's
tight budget.
.Joseph M. Kelly, senior di-
I I
9
MEDICAL CONCERNS
Mayodoctor
warnedof
harmin '60s
ByJAMESBRUGGERS
The Courier-Journal
The railroad industry's doctors
have known about neurological and
other disorders involving solvent-
exposed workers at least since the
mid-1960s.
A transcript of an annual meet-
ing of the nation's railroad medical
directors in 1965includes the men-
tion of a warning letter from a doc-
tor at the Mayo Clinic in Minnesota
to the Baltimore & Ohio Railroad,
which later became part of CSX
TransportationInc.
The Mayo doctor, who was not
identified in the transcript, said he
had seen a number of patients with
heavy exposure to volatile hydro-
carbons and solvent mixtures who
had peripheral neuritis, a nerve in-
flammationof the arms and legs.
The condition can weaken and
waste the muscles, produce a loss
of sensation, decrease reflexes and
cause pins-and-needles-typepain.
It has affected some of the rail-
road workers who have been diag-
nosed with toxic encephalopathy in
the past decade, including Stephen
Penrod, 49, of Ridgeley,W.Va.
Penrod worked in the B&O/CSX
shops in Cumberland, Md., from
1969to 1997, much of that time, he
said, without respiratory protection.
"I have no reflexes ... and no feel-
ing in my extremeties."
Accordingto the transcript of the
Association of American Railroads
meeting, the B&Omedical depart -
ment asked for clarification from
the Mayo Clinicdoctor, who replied
that he believed "there is a rela-
tionship between peripheral neuri-
tis and exposure to hydrocarbons
in these instances."
The doctor's letter went on to say
one patient who had been exposed
to solvents at work developed "se-
vere" neuritis, and said the condi-
tion went away after the exposure
stopped.
Later at the meeting, Dr. I. Kap•
Ian, medical director at B&O,noted
that men working in the pits have
become unconscious through inhal-
lation of volatile hydrocarbons such
as trichloroethylene, carbon tetra•
chloride and 1,1,1-trichlorethane.
"They act as anesthetics, and in
addition can exert their toxic effec.t
on the health through cardiac
standstill," Kapla n noted.
By the 1940s,after the introduc-
tion of chlorinated solvents, the na-
tion's industrial hygienists began
recommending limited exposure to
solvent fumes and proper ventila-
tion and respiratory protection.
At the same 1965 meeting, Kap-
lan, the panel moderator, acknowl-
edged that "even today, not all
shops are equipped with ventilatocy
fans, and not all fans are in work-
ing order," and that "men are actu-
ally working under conditions less
than ideal."
BY MARYANN LVONS, THECOURIER·JOURNAL
Joseph Kelly, seniordirectorof risk management at CSX,
said a health and safety reviewwas no longer needed
becausethe railroadhas stoppedusing chlorinated solvents.
rector of risk management at chairman of the Department
CSX, said an investigation of Community Medicine at
was no longer needed. That's West Virginia University
because CSX, the railroad School of Medicine in Mor-
with the largest number of iantown and the other organ-
solvent exposure claims, izer of the 1996 meeting, said
stopped using chlorinated sol- there is a continuing need for
vents in bulk in the rnid-1980s, study on :how solvents affect
and in spray cans by the early humans.
to mid-1990s, he said. The railroaders would have
The three other major U.S. providedthat chance, he said.
railroads have snid they too "Normallyto do this kind of
have stopped using chlorinat- experiment," he said, "you·d
ed solvents. have to go to the developing
But Dr. Alan Ducatman, world."

44 PAGES • A GANNETTNEWSP.tt' ER • LOUISVILLE,KENTUCKY
Sick workers win payments
after long, difficultbattles
Attorney F. Tucker Burge looked through some case records in his firm's Birmingham, Ala., offices. He and
partner James H. Wettermark have won settlements for about 300 railroaders and one jury award of $1.1 million.
Settlementswith CSX total about $35million
Third of four parts
By JAMES BRUGGERS
The Courier-Journal
BIRMINGHAM,Ala. - From
the 23rd floor of the tallest
downtown office building , attor-
neys F. Tucker Bur~e and James
H. Wettermark in l 89 launched
a hiih-stakes legal battle against
a railroad giant.
The reverberation s are still
being felt.
This firm of seven attorneys
spent more than a half-million
dollar s in research, depositions
and expert witnesses attempting
to help hundreds of railroad
workers who doctors say suf-
fered brain damage from their
exposure to toxic solvents.
Over a decade, the lawyers
battled CSX Transportation Inc.
in Georgia, Tennes see and Ken-
tucky, winning settlements for
roughly 300 workers diagnosed
with toxic encephalopathy.
Alon~ the way, the firm won
key rulmgs that helped lawyers
around the country secure
scores of settlements in other
railroad-solvent lawsuits.
The& and the other attorneys
and t eir expert medical wit-
nesses helped shed light on
what Wettermark calls a "dis-
graceful" period in railroad his-
torr
SX has acknowledged 466
solvent sett lements totaling up
to $35 million. The avera§e set-
tlement was about $70,0 0, ac-
SUNDAY: The Peopleand the Problem YESTERDAY: The Science
TODAY: The Law TOMORR OW: Solvents: Society at Risk
.'
Page 10
www.c ourier -journal.com TUESDAY, MAY 15, 2001 • 50 CENTS
THETOXICWORKPLACE
Railroaders,
solvents andsickness
BY PAM SPAULDING, THE COURIER.JOURNAL
ONLINE INSIDE
To read the series onllne go to CLAIMS:
www.c
ourler-journal.com Railroaders .,
aren't
covered by
to workers, the com/aanysaid. workers'
"I think to this ay, CSX and compensatio n
their lawyers believe every one and must file
of these cases was bo~s," Wet- suits under a
termark said. "And I now they 1908 law. 11
blame us. They think somehow LOUISVILLE
we concocted this whole thing,
which is preposterous." MAN: Forme r
The latest big-money solvent worker lost
victory for the railroaders came his case as
in late November, when attorney his
Roger Lane of Brunswick, Ga., backgrou nd
won a $765,000 jury award for proved to be
BY MARYANN LVONS, THE C.J the widow of Roy Lee Berry Jr. , a liability. 12
Louisville lawyer Edward H. a former CSX electrician from CORBIN
Stopher, who has represented Hamlet, N.C. CASE: Jurors
CSX in many solvent suits, said Because of challenges and ap- wanted to
the claimsare withoutmerit. pea ls, the case took ei ht years
cording to a CSX document of-
8
to reach a jury. Berry idn't see
it. He succumbed to pancreatic
send a
message to
CSX with a
fered at a recent Florida trial. cancer in 1995.
Ten CSX cases have gone to Louisville attorney Edward H. $1 .1 million
jury tri al, with six verdicts pro- Stopher, who has handled many award. 12
ducing awards for the plaintiffs of the solvent cases for CSX, WARNING:
ranging from $40,000 to $10 mil- said claims by workers of reek- A top railroad
lion; the $10 million award was less, unsafe use of solvents are doctor called
later sett led on appeal for $1 exaggerated and without merit. for non-toxic
million, according to CSX. Medical science fails to sup - cleaners in
In four cases, juries gave no port that any CSX employees 1967. 12
awards. suffered brain dama~e from sol-
vent exposure, he sai . HISTORY: A
At least 80 solvent cases are
pending and other solvent law- Joseph Kelly, senior director timeline
shows three
suits against the railroad are ex- of risk management at CSX,
blames the lawsuits on worker decades of
pected to be filed this year .
Another 54 claims against warnings,
CSX were closed by the com- See WORKERS exposure an d
pany without any compensation Page 11,col. l, this section lawsuits. 12
11 THE COURIER-JOURNAL•TUESDAY,MAY 15, 2001

THETOXICWORKPLACE
Railroaders,
solvents
andsickness
FELA
Workersgain RAILROADWORKERSAT RISK
Accordingto doctorsandlawyers,peoplewhoworkedinrailroad
shopsinthesestateshavebeendiagnosed
withtoxicencephalopathy. Claims
paymentsafter pursued
legal battles under
Continuedfrom Page Ten from prolonged or repeated ex-
·,1908law
posures; irritation, central ner-
reaction to the company's clos- vous system depression. Avoid 'By JAMESBRUGGERS
ing of facilitiesin Louisvilleand prolonged or frequent skin J11e Courier-Journal
other corporatedownsizingthat contact.
resulted in the relocation of "Avoidbreathing vapors, Va- All of the railroad solvent
wW'!5ers ; beginning_in_I~8~. . · · pors are heavier than air and ; 1a·ws.uifa li~
ve:_been file.cl\l pde(,
-Kelly said' CSX has, settled collect in low areas, such as · the Federal ·Employers Lial:lilitr
ciss p.nly out of bott0m-line.., pits and other -confined areas. Act, a neaily centur~old ,Jaw.
concerns. Do not enter these areas where that serves as the workers'
"It's a business decision," vapors are expected unless Underthe Federal compensation system for the
Kelly said. "We have to decide special breathing apparatus is Employees Liability • Shoplocaton railroad industry.
if it's time to cut our losses." Act,railroadworkers Under the system, workers
used." whoareinjuredonthejob bringactual lawsuits inorderto winfinancial
Attorney Larry W. Lockwood The attorneys went to Cor- compensation fortheirinjur
ies.Theyareallowedto file lawsuits
anywhere may file lawsuits to recover
Jr. of Virginia Beach, Va., who bin and met with workers. theiremployerconductsbusiness.Somelawfirmsspecializein FELA damages for on-the-job injuries.
won the $10 million verdict in They explained how FELA lawsuits,so workers fromonestateoften endup hiringan attorneyfrom They may also file a claim with
1997, said the workers' injuries works, and told the railroaders another. the company and negotiate
are not only valid but have car- that if they were experiencing with their employer, with or
ried with them a high cost in symptoms of solvent exposure, Following is the resultofa Courier-Journal
surveyofmostofthe lawyers without an attorney.
human suffering. they should see their doctor whohavehandledsolvent-in ducedtoxicencephalopathy cases: FELAallows compensation if
"You have divorces. You and ask for a referral to one of BY MARY ANN LYONS, THE COURIER-JOURNAL the railroad is judged responsi-
have suicides. You have crimi- several occupational and envi- Joseph Kelly, senior director of risk management at CSX, Total:524settlements/awa
rds. or-neys;c!war Co~
___J
tt_

onaldRuzicka ble for even a "scintilla" of

nal activity,"Lockwoodsaid. ronmental medicine specialists. said the railroad has settled cases only out of bottom-line fiere: ii.ilanta negligence and workers can be
"I've heard so many stories In most cases, the workers concerns. "It's a business dec ision," he said. Tucker urgeand
Attorneys: Cases:20 settlements compensated by juries for pain
I've gotten numb to them." could pick from a list of a few James-We~ ---- Location ofworkers : Kentucky , North and suffering.
Where:Birmingham, Ala. Carolina.
physicians who had special Cases:300 settlements,one Railroads don't like the law
SOLVENTSUITS training in the effects of $1.1 million
juryaward. fAttomey: NHollanJr. and have tried to get it
Corbin man's case chemical exposure on people Location Kentucky,
of workers: 'wfiere:
'J'acl<sonvilfe, Fl_a-_-- changed.
spurs others to file
and clinical experience in diag- Tennessee,
Georgia
, North
Carolina
, Cases:45 settlement s "Workers call it the CSX lot-
nosing toxic encephalopathy, Florida,
WestVirginia. Location of workers : Kentucky. tery,'' said Joseph M. Kelly,
One of the first to file a Wettermarksaid. Alabama.
claim was a 59-year-old electri- AttQJ'.m!_y;j.,~o_ijjt,
_ _ ___ that company's senior director
One such physician was Dr. of risk management.
cian named Jasper Wages who R. Michael Kelly of Lansing, Where:Pittsburgh ttomt . C~"Biil"Tu.ck ~
worked in CSX's Corbin, Ky., Mich., an occupational and en- Cases:47 settlements Where:Birmingham , Ala. Unions say it's a good law.
facility. Location Kentuc
· of workers: ky, Cases:8 settlement s But workers can go years with-
vironmental medicine special- WestVirg
inia, Maryland
, Georgia. Location of worker s: Kentucky out receivirg any compensation
Wages filed against a subsid- ist in private practice who is
for wor =-relatedinjuries, said
iary of CSX, Seaboard Sys- also on the teaching faculty at
tems, in 1986, the year before Michigan State University
. ttomey: :t
.~art\1loG!ffio'o"q
Where:VirginiaBeach,Va.
[Attomey:!4..§1
Wfiere:Houston
Jacl<sn.__ _.
attorney Gary Easom of Jack-
several hundred Louisville MedicalSchool. Cases:39 settlements andfourjury Cases:5 settlements . sonville, Fla., one of the first at-
workers were relocated from verdicts:
$12 million,$410,000, Location of workers: Kentucky torneys to take a CSX Trans-
Kelly told The Courier-Jour- portation Inc. solvent case to
the city's old South Louisville nal that he diagnosed between , · $60,000,andonewherejurydivided
Shops to such places as Cor- 200 and 400 railroad workers negligencebutdid notgrantaward. trial.
bin, Huntington, W.Va., and with toxic encephalopathy out of workers:Maryland,
Location "There's discovery.There are
Waycross,Ga. of as many as 1,500 he saw NorthCarolina,WestVirginia. depositions, and the whole nine
"I'm just like a bulldog from several railroad compa- yards,'' he said.
when I get turned onto some- nies. Wl!l@Dl
orMY; H_O§.$~
FELAwas enacted in 1908at
Where:Missoula,Mont.
thing," said Wages, now 74, a "Initially a lot of them Cases:8 settlements a time when railroad jobs were
former local chairman of the weren't bein9. treated at all," Locationof workers:Montana, known for their dangers and
International Brotherhood of Kelly said. ' Some were told BY PAMSPAULDING,THE COURIER-JOURNAL Iowa. more than a million people
ElectricalWorkers. they were just depressed." "I think to this day, CSX and their lawyers believe every worked in the industry.
_uomey: GaiYJ:ruiQID
,_ _ _
Wages said he agreed in 'Some workers diagnosed one of these cases was bogus," worker attorney James H. Where:Jacksonville,Fla.
The law defines negligence
1987to a $450,000 settlement, with toxic encephalopathy de- Wettermark said." . .. They think somehow we concocted as the railroad's failure to exer-
which after attorney fees and cided not to file lawsuits, doc- this whole thing, which is preposterous." Cases:25 settlements
, oneverdict cise "reasonable care" in its
expenses yielded about tors and some workers told the with$32,000 award. obligationto the employee.
Location ofworkers:Kentucky,
$260,000. newspaper. Some decided it Initially, it looked promising World Health Organizationsol- Georgia. By contrast, typical workers'
As word spread, lawyers wasn't worth the emotional for CSX. The company won a vent conference in Denmark compensation does not require
who specializedin Federal Em- stress. victory in Florida's Duval and another who was president an injured worker to pin any
ployers LiabilityAct claims be- County Circuit Court, in the of the Association of Occupa- negligence on his or her com-
gan hearing from workers and CSXFIGHTSBACK Roy Lee Berry Jr. case when tional and Environmental Clin- ln case after case, CSX one into a coma from oxygen pany. But such claims can nev-
taking on cases. Judge Michael Weatherby ics and was on the editorial would present each worker's deprivation." er recover losses for pain and
"There was almost this ca- Railroad fails in attempts ruled to exch.ide Berry's doc- board of the journal Industrial history of alcohol use, if' any. suffering. Payment of workers'
tharsis effect," Wettermark re- to get ca ses dismissed tors. Meaicine. Doctors say heavy drinking CLAfMS CONTINUE comp claims is based on a pre-
called. "These guys who had The first big challenge to·th'e Berty appealed the tlecision Shipley, in her ruling, noted over many years can cause Some workers say determined schedule of bene-
Norked there for 25 to 30 Burge and Wettermark cases and it was overturned in 1998 that the three CSX experts had many of the same symptoms
as toxic encephalopathy. payouts were too low fits.
vear~ would hear from some- was a CSX attempt to have by the First District Court of either "not written on these FEI.Arequires that the courts
one who was having the same them thrown out because of a Appealin Florida. types of cases or testified on The company also tested Solvent-exposure injury
each plaintiff's intelligence Jev- claims continue to be filed, consider what's called a com-
problems as they were, and three-year statute of limita- CSX "really put a lot into the subject prior to this specif- parative negligencestandard.
they would break down in tions. this case," said Lane, Berry's ic litigation," had not "read el and compared it to workers' fried or settled 15 years after
schoolrecords. CSX said it stopped using "The jury will hear how neg-
tears because (there was a ba- Too many years had passed attorney. "It was kind of a test anything in this field before" ligent the defendant railroad
sis for) these symptoms they between when the workers had case on the science." or had "no prior experience." "We are trying to determine chlorinatedsolventsin bulk.
in these cases whether there is The attorneys working the has been, and they will also
were having." first noticed symptoms such as A jury finally heard the Ber- Buoyed by the win, Burge weigh how negligent the plain-
Because of legislation adopt- being dizzy at work and the ry case last November, award- and Wettermark prepared for any impairment or reduction in cases say they are difficult,
ed in 1908, railroad employees time they filed claims in 1990, ing $765,000 to his widow. the trial, in suburban Atlanta, an individual's cognitive abili- time consumingand C?stly. tiff may have been, and com-
seeking compensation for job- the company argued in a Geor- CSXhas appealed. ties," Stopher said, explaining "They were expensive to put pare the negligence of one ver-
of the claim brought by Corbin sus the other,'' Easom said.
related injuries must file a law- gia trial court in the early Some. 2,000 miles away in pipefitter Terrelf Monhollen. the strategy. on,'' said Birmingham attorney
suit if they can't successfully 1990s. Montana, a lower court earlier CSX had offered Monhollen Attorney Alva A. Hollon Jr. W.C. "Bill" Tucker, who se- In the first CSX solvent trial
negotiate a claim directly with of Florida, who has won settle-. cured settlements for eight in 1994, for example, a Jack-
The court ruled in favor of had tossed out six of 27 solvent separate settlementsof $10,000 sonville, Fla., jury found that
their company. It's their ver- the workers, a decision that cases involving Burlin~on an9 $25,000, both of which he ments for about 40 solvent-ex- workers. "But 1 think every-
sion of workers' compensation. was later upheld by an appeals Northern locomotive mamte- had turned down. posed workers from shops in body, all of us thflt were doing Louisville resident Danny Gou-
While this law lets workers sue court in 1993 and the Georgia nance workers on similar is- In a trial notable for its de- Mobile, Corbin and Louisville, them, believed that something sha had suffered solvent-in-
for pain and suffering, they Supreme Court in 1994. CSX sues. A 1994appeal to the U.S. pictions of the poor working said the workers' medical his- wrong had been done to these duced brain damage while
must prove employer negh- appealed to the U.S. Supreme Ninth Circuit Court of Ap~eals conditions of the CSX mainte- tories made trying cases diffi- poor guys. working at the South Louisville
gence. cult. . "The railroad felt like they Shops and in Corbin, Ky. But it
Court, which refused to take also went ih the company s fa. nance shops, the jury found determined that Gousha was 80
Nearly all the litigation was up the matter. vor. for Monhollen. It set damages "Diabetes, high blood pres- paid too much," Tucker said.
aimed at CSX, though other The attorneys then settled Missoula, Mont., attorney at $1.6million but decided that sure - if you have a client "And the people felt like they percent responsible for his
railroads were also targeted; their first several cases, Wet- William Rossbach took over, Monhollen was 30 percent re- with a number of confounding got too little." medical problems, assigning
those included Norfolk South- termark said, for $500,000 to prepared new cases, and se- sponsible, making his final factors - that will affect the Perhaps that means every- CSXthe other 20 percent.
ern and Burlington Northern, 600 000 cured settlements for eight of award $1.1 million. value of the case. You get peo- thing came out as it should, he A $200,000 award was re-
which later merged with Santa $ , per case. the remaining 21 Montana rail- CSX appealed to the Georgia pie in their 40s and 50s - no- added. duced to $40,000 - or 20 per-
Fe. At the same time, some of roaders, despite the earlier de- Appeals Court and lo.st. body has perfect health - so Some workers say they are cent of the total, Easom said.
Burge and Wettermark ~ot the leading occupational and feat on the science issue. "Monhollen has presented they are going to have these . satisfied with the outcomes Gousha declined to be inter-
involvedin 1989after receiving environmental medical doctors But perhaps the biggest evidence both that CSX's neg- confoundingfactors." · · viewed, saying only that the
calls from three Corbin work- in the country, along wit]:la showdown-in the scientific de- ligence played a part in pro- Other lawyers said it also is and some say they should have lawsuit "left a bad taste in my
ers who believed they were few neurologists, were diag- bate over whether solvent ex- ducing his injury, and that the a problem when juries see receivedmore money. mouth."
made sick by the chemical sol- nosing railroad workers with posure could cause brain dam- possibility of injury was fore- plaintiffs who don't look in- Steven Bemis, 55, of Louis-
vents. brain damage from an ever- age came in Nashville, Tenn., seeable to CSX,'' the appeals Jured. ville, bounced between several
The two lawyers said work- widening circle. Patients were in 1995. court determined. "By and large . . . if you lawyers before joining the
ers told them how the solvents being referred from Waycross, With 82 workers' lawsuits at In 1997, the Tennessee Su- were to sit in a room and talk Burge and Wettermark cases,
had been used like water for Ga.; Huntington, W.Va.; Cum- stake, Davidson County Circuit pren:ieCourt ruled on the CSX with these guys, you'd say he and wasn't happy with his con-
many years, how they and oth- berland, Md.; Mobile, Ala.; Court Judge Marietta M. Ship- appeal of Shipley's Daubert may be a bit quiet, but he fidential settlement. According GLOSSARY
ers m Louisville and Corbin Nashville,Tenn.; West Burling- ley ordered a so-called "Dau- decision. That also went seems pretty normal;" said to a CSX court document, Be-
sometimes had been overcome ton, Iowa; and Livingston, bert" hearing. againstthe company. Florida attorney Gary Easom, mis received a settlement of OF TERMS
by fumes while using the in- Mont. In "Daubert" proceedings, Again, to no avail, CSX who has negotiated 25 settle- $200,000. CHLORINATED SOLVENTS:
dustrial degreasers in pits un- Burlington Northern Santa judges hear evidence regarding called on the U.S. Supreme ments for solvent-exposedrail- Bemis said his settlement Powerfuldegreasers manufac-
derneath locomotives and in Fe spokesman Gus Melonas scientific knowledge, theory Court to intervene. road workers. was large enough to pay off tured by combiningchlorine
other close quarters. acknowledged his company and methodplogy in determin- So as the 1990s moved to- "Of course, the jury doesn't their mortgage and some bills compounds withhydrocarbon
Workers also said no one settled more than a half-dozen ing whether expert witnesses ward an end, CSX sat down at know him back when he .was but. not large enough to pre-
ever told them they must use solvent lawsuits but said the can come before a jury. talkat ive and was able to solvents to makethem less flam-
the negotiating table with troubleshoot the electrfcal sys- vent his wife, Carolyn, from mable and more efficient.
respirators when applying sol- company doesn't believe it . If the complicated science is Burge arid Wettermark. And
vents - at least not until late ever exposed the plaintiffs to allowed to go before a jury, they began to settle the firm's tern of a locomotive without a having to find a job.
1980sor early 1990s. hazardous levels of solvent cases can be especially difficult cases, one by one. blueprint." · Wettermark called the settle- TOXIC ENCEPHALOPATHY:
"What we found when we fumes. for attorneys, said Huntington Ineverycase, the.companyhas Both sides have tried to use ment phase especially difficult. Aform of brain damage charac-
started investigating the cases Melonas noted that his com- attorney James Turner, who denied responsibility for the material safety data sheets to "Among our cases, we had terized by short-term memory
was they had been using huge pany succeeded in having six has handled several solvent problems claimedby workers. their advantage. some really splendid cases that loss, depression, anxiety,loss of
amounts of trichloroethylene other cases thrown out of cases on behalf of CSX. To the plaintiffs, the docu- were entitled to substantial set- balance, diminishedmental
(TCE), l ,l,l-trichloroethane court. Juries made up of "average "If you look at the (466) ments showed dangers of the tlements," Wettermark said. functionand sometimes nerve
(TCA), and perchloroethylene A Norfolk Southern spokes- folks" wind up being asked to cases we've settled, with the solvents. "And we got them substantial damage inthe arms and legs.
(PCE)," Wettermarkrecalled. woman, Susan Bland, declined decide controversial medical some 20,000 workers we had CSX's Stopher said the doc- settlements. We had some
Also being used at the shops to say if her employer had had questions before the science is in the shops over the years," uments only sound ominous cases that were entitled to lit-
FELA: The Federal Employers
was sometning called Dow- any claimsfiled against it. prepared to do so itself, he Kelly said, "there were a few because chemical makers are tie, if anything. So trying to
Clene, or L&N No. 3. lt was Bland said Norfolk Southern said. that had symptoms. trying to guard against the po- handle the people side was LiabilityAct,whichis the rail-
three-fourths TCA and one- does not believe any of its em- Both sides hired the best ex- "We found other reasons for tential of lawsuits. very difficult." roaders' versionof workers'
fourth PCE. ployees "now or in the past" perts they could find. After some of their medical prob- He gave an example from a Bemis and some others wish compensation. Railroad workers
The lawyers obtained mate- have been exposed to injurious four days of testimony and lems. We don't accept these portion of the safety data they could have persuaded are allowedto fileclaimswith
rial safety da a tsheets for the levels of toxic fumes on com- cross-examination, Shipley people were injured from ex- sheets for Flintstones vitamins: their attorneys to take their their employeror lawsuitsto
solvents. Chemical manufac- pany property. ruled against CSX. posure to the chemicals." "Clinical findings include mild cases to trial. recoverdamages for on-the-job
turers prepare these papers to "It's clear that there are Wettermark said simply: "I lethargy, stupor, shock and Jesse Haven of London re- injuries.
offer instructions on how to 'JUNKSCIENCE' studies that support the causa- really feel vindicated." coma. Can cause the following ceived a settlement of
use the products safely. Re- CSX tries to discredit tive factor and studies that do side effects: Blurred vision, $470,000, according to a CSX DAUBERT HEARING: A 1egal
quired since the 1970s, employ- not," Shipleysaid. SOMEGOTO TRIAL dizziness, headache, unusual summary of solvent cases from
ers have had to make them diagnoses - and loses However, she cited the fact tiredness and weakness, pain a recent trial in Florida, before proceeding in whicha Judge
available to workers since For the railroaders, the most that the solvents themselves CSX digs up medical, in ankles and feet, pain in he died last year after falling hears evidence regarding scien-
1985. siinifi cant legal hurdle was have acute effects in high personal histories bones and muscular pain may into a dementia that his neu- tificknowledge, theory and
"As soon as we saw how the still ahead. doses; that a link between the In the cases in which no set- occur." rologist blamed on ~hemicals. methodologyin determining
'tlanufacturers were recom- Using a "junk science" de- chemicals and brain damage tlement could be reached, the What is not listed in the His wife, Sharon, said the set- whetherexpertwitnesses can be
nending (the solvents) be used fense, CSX began an effort in was the focus of several inter- CSX courtroom strategy was to safety data sheets of the sol- tlement wasn't enough. allowedto testifybefore a jury.
and saw how the railroad were the mid-1990s to have judges national conferences; and that use both its "junk science" de- vents in question is important, "I would rather had it go to
using them, it was pretty much declare the science behind the "medical textbooks also pre- fense and the FELAprovision Stopher said. trial and have a jury hear it, RESPIRATORY
apparent to us that there was toxic encephalopathy diag- sent the causative factor as a that allows juries to assign a "There is no warning of any and even if we didn't get a PROTECTION PROGRAMS :
significant abuse of this stuff," noses invalid. If successful, it truism." percentage of responsibility in toxic encephalopathy, or brain thing, have everyone see and Occupational Safetyand Health
Wettermarksaid. would prevent workers' doc- The workers' four doctors, a verdict. damage, or permanent central hear what was done to him, Administrationrequirementsthat
For example, the 1980safety tors from testifying. she observed, all had extensive The latter often meant a nervous system damage, ex- and maybe that would help
data sheets for DowClenecon- At stake was the railroad experience in the field, includ- close scrutiny of each plain- cept in the instance of where other cases," she said. governwhen and under what
tained this warning: workers' ability to take their ing one who had represented tiff's medical condition and there was an overexposure on "I just wanted the world to conditions workersare to be
"Possible organic injury claims to trial. the United States at a 1985 personal history an acute basis that puts some- know what had happened." given respirators.

LOUISVILLE CASE
Workerhistories
proveliability
duringtrials
By JAMES BRUGGERS
The Courier- Journal
For mer railroader Gary M.
Stone Sr. paces the small living
room of his south Louisv ill e
home.
He rubs his chin and taps his
head, imitating how Edward H .
Stopher, the lawyer fo r CSX
Transportatio n I nc., questioned
witnesses and addressed the
Jefferson Circuit Court jury
that in 1998 rejected Stone's at-
tempt to win compensat ion for
what had been diagnosed as
solvent-induced brain damage.
Stone remembers every
Stopher mannerism, not just
because he lost, but because of
how Stopher won.
How the attorney cite d
Stone's lower-than-average IQ
and poor academic perform-
ance as far back as t he fi rst
grade. How Stopher document-
ed Stone's past alcoho l and
marij uana use.
The case illustrates how CSX
defends itself agai nst claims by
solvent-exposed wor kers, and
the chall enges those wo rkers
face convi nci ng juries that the
chemical s were to blame for
their medical proble ms.
Stone, 45, was granted a
medical disability by the Rail -
road Retirement Board in 1997
after several doctors concl uded
he was suffe r ing from head-
aches, dizzy spells and poor
cognitive function "to the poin t
of dementia," accord ing to
court records.
In 1990, t hree years after a
heavy locomotive part crushed
his ankle, Stone received a
$150,000 settle ment from the
rail road. He was off for two
years becauseof the injury.
When Stone filed his solvent
lawsuit in 1995, CSX responded
aggressively, one of hi s attor -
neys said.
"I can tell you, CSX, they are
hardball players," said Sanford
Berman, a Louisv i lle lawyer
who helped represent Stone
and who helped several other
railroade rs win solvent settle-
ments.
T he company, w hi ch has
MEDICAL WARNING
Railroaddoctorcalledfor non-toxiccleanersin '67memo
By JAMES BRUGGERS
The Courier-Journa l
A top rail road doctor warned sometimes inadequ ate and that
more than three decades ago proper respiratory protection
that some chlorinated hydrocar- was requi red . Th e B&O Rail-
bon solvents were putting road later became part of CSX
workers at r isk of injury and Tra nsportation Inc ., which de-
tnat lawsuits were possible.
Baltimore & Ohio Rai lroad ments.
nedical di rector Dr. I. Kapla n
n 1967 distr ibuted a memo to
company officials identifying
trichloroethylene as toxic and
saying " lube rooms" had inda- ing the use of a new solvent,
dequate ventilation.
The doctor recommended the over trichloroethy lene (fCE),
railroad find a non-toxic alter - because T CA was considered
native for some degreasing op- less toxic. The same memo rec-
erations.
"Even though it mig ht be a apply solvents use full -face res-
little more expensive, it may ul- pirato rs with an external supply
timately save the company of air - something tha t work-
thousands of dolla rs in law- ers and the ir lawyers say rarely
suits," Kaplan wrote.
The memo is among several th roughout the Southeast.
internal documents that show
some in the ind ustry recog- ville Rai lroad memo in which
Three decades of solvent warnings, worker exposure and lawsuits
1967: B&O medical director
Dr. I. Kaplan warns in an inter-
nal memo that trichloroethylene
(TCE) is being used too broad-
ly and in rooms without ade-
quate ventilation. He encour-
ages the company to find a
" non-toxic" alternative for
deg reasing small parts, and
predicts potential lawsuits.
1986 : Jasper Wages of
Corbin, Ky., files a lawsuit
against
Seaboard
Systems, a
CSX sub-
sidiary at the
time, blaming
his diag-
nosed brain
damage on
Wages the solvents
he was
expected to use in his work as
an electrician.
1986: CSX says it stops
bulk use of chlorinated solvents
in shops but still uses spray
cans.
1987: Wages settles his
lawsuit for $450,000. His share,
after expenses and attorney
fees, is roughly $260,000.
198 7: Hundreds of jobs are
lost at CSX's South Louisville
Shops when the company clos-
es many of the facility's opera-
paid a total of up to $35 million
in solvent settl ements and jury
verdicts, denies that any of its cur-
rent or fo rmer employees suffer
fro m solvent-induced brain dam-
age.
The company has spent more
tha n $16 million defendi ng it-
self against hundreds of solvent
claims, accord i ng its insurance
companies.
Some workers may be sick,
Stopher said, but their medical
problems can be explained in
other ways, such as depression
or high blood pressure.
Looking at Stone's grades
and IQ test result was not un-
usual, Stopher said. CSX rou-
t inely checks for early aca-
demic perfor mance and com-
pares it to pretrial tests pla in-
tif f s must take.
"It wou ld be ideal if befo re
these indiv iduals went to work
for the rai lroad that they had
had a battery of tests that we
could compare to their abilit ies
today," Stopher said.
"That does not exist. So the
next best thing is to look at
their inte ll ectual performance,
as it was purportedly obj ective-
ly measured by third parties,
their teachers and in some in -
stances their professors, in col-
leges and the like. "
Wit h Stone, CSX compared a
grade school IQ test to one he
was give n before trial. The re-
sults were essentially the same.
Stopher also subpoenaed
Stone's medical records from a
monthlong voluntary stay in
1986 at a Lou isvi lle alcohol re-
habil itat ion center.
Records of Stone's intake in -
terview, offe red during the tri-
al, characterized him as some-
one wit h a "severe" drin k ing
prob lem in the 1980s. They also
indicated Stone regu larly
smoked marij uana.
Stone told The Courier-Jour-
nal he exaggerated his sub-
stance use to make sure he was
accepted in to the program. He
said he stopped drinking and
last smoked mar ijuana more
than 12years ago.
Stone, wh o qu it his rail road
j ob in 1990, after 17 years,
nized decades ago that chlori-
nated solvents were dangerous,
that vent il ation in shops was
cli ned to comment on the docu-
Others include :
• A 1957 Chesapeake & Ohio
Rail road internal memo order-
1,1,1-tri chl oroethane (fCA),
ommended that employees who
happened at railroad shops
• A 1978 Louisville & Nash-
1987: An empty locomotiveshop in south Louisville.
tions. Workers and families are
moved to Corbin; Huntington,
W.Va.; Waycross, Ga.; and
Hamlet, N.C.
1989 -1992: Attorneys
Tucker Burge and James
Wettermark, along with lawyers
from other states, investigate
railroad workers' claims of
heavy solvent exposure in sev-
eral southeastern states and
begin to prepare dozens of law-
suits.
1992: Danny Gousha files a
lawsuit against CSX, alleging
that the degreasing solvents he
used in the Louisville and
Corbin railroad shops were
responsible for his brain dam-
age.
1992: Terrell Monhollen of
Corbin f iles a solvent lawsuit
THE COURIER-JOURNAL• TUESDAY,MAY 15, 2001
THETOXICWORKP
Railroaders
Gary M. Stone Sr. demonstrated how he washed his hands in solvents. At trial, a CSX lawyer
cited Stone's lower-than-average IQ as evidence that he hadn't suffered brain damage.
hadn' t suffered brain damage,
Stopher told the ju ry.
Instead, his short-te rm mem-
ory loss, dizz iness, fatigue and
inability to concent rate could
be explained as nor mal aging,
the attorney said.
"I'm 13 years older than he
is. All I can say is, 'Welcome to
middle age,'" Stopher said.
Dr. Douglas H . Linz, a Cin-
cinna ti occupat ional and envi-
ronmental medicine specialist,
who diagnosed Stone, said
Stone's past alcohol consump-
tion or blood pressure were not
the frimary cause of his illness.
" fe lt the overw helmin g
an assistant vice president en-
deavored to correct "a serious
sit uat ion concerning the use of
electrica l parts cleaner L&N
No.3 ."
The memo instructs shop su-
perintendents to make sure that
the cleaner only is used on
electr ical equipment and that
wo r kers who are applying it
use respirators with an external
air supply.
In the Louisville and Corbin,
Ky., shops, there's evidence
that electr icia ns, pipefitters,
mechanics and laborers who
cleaned and repaired locomo-
tives thro ugh at least the mid-
1980s were rare ly required to
use th is ki nd of respirator.
In a 1996 deposition, Charles
Ray, a departmental foreman at
the Louisv ill e shops from 1978
to 1983, said he did not correct
workers who he saw using the
wrong type of respirator .
• A 1978 safety manual from
L&N pointing out that "when
against CSX.
1992 : Roy Lee Berry Jr. of
Hamlet, N.C., files a solvent
lawsuit against CSX.
1992 : Twenty-seven
Burlington Northern workers file
suit in U.S. District Court in
Billings, Mont., alleging they
suffered a variety of ailments
from their exposure to solvents
at the BN shop in Livingston,
Mont.
1992·1995: CSX phases
out all chlorinated solvents
from its locomotive mainte·
nance and repair shops, sys-
temwide.
1994: Gousha case goes to
trial. The jury grants him a
$200,000 award, but places 80
percent responsibility on
Gousha. His award is reduced
12
LACE
, solventsand sickness
CORBIN CLAIM
Jurorsto CSX:
Youhaveproblem
By JAMES BRUGGERS Avoid breath ing vapors ... Va-
The Cour ier-J ournal pors (are) heavier than air and
will collect in low places such
It was one of the earliest as pits, degreasers, storage
railroad solvent cases to go to tanks, and other confin ed
tr ial. A lot was on the line. areas. Do not enter these areas
After nine days of trial, the . . . unless special breathing
suburban Atlanta jury in Gwin- apparatus is used and an ob-
nett County handed a $I.I mil- server is present for assis---
lion award to Terrell Monhol- tance." ,.;
len, a railroad worker from While the CSX safety man-
Corbin , Ky ., who had been di- ual gave supervisors the re- -
agnosed with toxic encephalo - 5ponsibility of deciding wheth -
'r .someone should use a respi -
pathy, a type of brain dama~e.
·1tor, Hedrick said that as a
And in the process, the Jury
dealt a sharp blow to his for- ~upervisor and foreman he had
mer employer , CSX Transpor - not required anyone to wear a
tation Inc . respirator before 1985.
Recalling t he trial, foreman Hedrick told the ju ry that
Russell Artz said he and his the Corbin shop didn 't institute
fellow jurors were appalled by a respiratory protection pro-
working conditions at the CSX gram until 1991. OSHA first re-
Corbin maintenance shops. qu ired respiratory protection
They wanted to send the com- programs in 1971, though
agencies responsible for en-
pany a message,he said.
"The j ury wanted to tell the forcing OSHA regulations
railroad , 'Hey , you have a didn 't secure jurisdiction in the
problem,'" Artz told The Cou- railroad shops for roughly a
rier-Journal. "You are try ing to decade.
hide all this crap. Just recog- Monhollen's attorney, James
nize it and deal H. Wettermark of
w ith it." Birmingham, Ala.,
A CSX lawyer
"They said CSX and its
downplayed the
importance of
ignored the corporate prede-
cessors did not
the verdict and
the appell ate
clear and monitor the air or
provide respirato -
court decision to unambiguous ry protection.
uphold it. "They ignored the
"For what ever warning clear and unam-
reason, the sci- biguous warning
entific issues signs that signs that some-
weren 't really thing was terribly
presented in that something wrong in this shop,
trial," said Ed- people getting
ward H. Stopher
was terribly dizzy and drunk."
BY PAM SPAULDING, THE COURIER-JOURNAL
of Louisville,
who assisted an-
wrong in Railroad
lawyers insisted
other attorn ey, th is shop, the case was pri-
Jack H. Sentor- marily about
cause for this problem was the showed Stone's solvent expo- fitt, in defend ing people whether
organ ic solvent exposure asso- sure hampered his abi l ity to Monhollen had suf-
CSX and wtnt
ciated with his work at the rai l- learn. on after the I 995 getting dizzy fered brain dam-
road," Lin z said in a 1998 depo- In depositions, family mem- tri al to becorne age. He did not,
sition. bers and a close friend told the company's and drunk." they said.
IQ tests are not always a Stopher that Stone had not lead outside coun- "Mr. Monhollen's
good measure of whether sol- complai ned to them at the time sel. - James H. intellectual ability
vents have damaged someone's Someattorncys
about working conditions in the Wettermark, today is no different
brain, Linz also told The Couri-
Louisville shops, nor that he believe t1
1e attorney for Terrell than what it was
er-Journal. court victory, before he went to
Between 1993 and 1997 Stone was affected by the solvents. while not preced- Monhollen work for the rail-
was unable to hold down any "Wouldn't you expect that ent-setting, road," Senterfitt
of 15 jobs, such as janitor or Mr . Stone wo uld complain to helped lead to set- told the jury.
handyman, Stone's lead attor- his fami ly and to his good tlements in other solvent cases. He cited result s from IQ
ney, Thomas J. Joyce III of friend?" Stopher asked the In the trial, one of CSX's tests taken before and after
Philadephia, told the jury in his jury . own key witnesses could not Monhollen worked for the rail-
closing arguments. Stone's lawyers did not ap- refute that workers cleaning road, which showed virtually
Attorney Berman said t his peal the verdict. locomotiv es were using sol- no change.
vents contrary to manufactur - And if Monhollen had suf-
ers' recommendations and in fered brain damage, it was his
apparent viol ation of both Oc- own fault, Senterfitt argued.
cupationa l Safety and Health "Mr. Mon hollen testified
Administration regulations and that every time he used this
the company's own safety (solvent) he got dizzy .. . and
manual. yet he would continually wash
Thomas J. Hedrick, who his hands in it. What's wrong
PERS
ONAL PROTEC
TIVE worked in Corbin from 1966 to with that picture?"
1993, eventually serving as Jury members believed that
lOlllSVIU.E
&
EQUIPM
ENT
--
• m'IIUEalllROU1:9
,
1..-- ***
general foreman, told the jury Monhollen did suffer brain
that no worl (ers ever com- damage, and that Corbin shop
plained to hin1 about solvent managers had not enforced
SAFET
Y
RUUS r---..
Whenworkinvolving fumes , fumes, and thtit he didn't be- safety ru les, jury foreman Artz
lieve they were harmfuL . said . They set damages at $1.6
e dustorsandisdone,theneed But on cro1> s-exammat10n, million but attributed 30 per-
_i....,,.,m willbe
fora respirator he acknowledged that he had cent of the negligence to Mon-
become dizzy while using the hollen, ~iving him an award of
-- determinedbythesupervisor cleaners as a machinist and $1.1million.
that others did, too. CSX appealed. In 1997, the
incharge. Pg.12
Hedr ick said he was aware Court of Appeals of Georgia
that some workers needed upheld the verdict. The com-
BY PAM SPAULDING
. THE COURIER-J
OURNAL ''fresh -air breaks" after being pany knew the chemicals were
Despite this rule , some railroad supervisors said they would around the fumes. toxic to the centra l nervous
let workers decid e whether to use a respirator. This photo is It was comm on practice for system, the court's 12-page
of an exhibit in the Terrell Monhollen trial. workers to wash their hands, opinion said.
gloves and clothes in solvents. "Monhollen presented evi-
work i nvolving fumes, dust or lawsuit that respirators were He had done those things him - dence that CSX's negligent act
sand is done, the need for a available to workers who want- self, Hedrick said. consisted of mainta ining work -
respirator will be determined ed them but their usage was But the manufacturer's ma- ing conditions which continu -
by the supervisor in charge." not enforced. terial safety data sheet in 1978 ously exposed him to danger-
Former Corbin general fore - Hedrick said he didn't think for a commonly used solvent, ous chemicals without ade-
man Thomas Hedrick testified respirators were needed until DowClene, said: quate safeguards for his health
for CSX in the 1995trial of pipe- 1985, when he learned solvents "Avoid prol onged or fre- and safety," the ruling also
fitter Terr ell Monhollen's were potentially harmful. quently repeated sk in contact. said.
to $40,000. potentially devastating blow to dated McDaniel case. Burlington Northern workers
the case and is widely circulat- who were part of the original
1994: Georgia Supreme 1997 : In a solvent-exposure
Court upholds lower court rul- ed throughout the country by trial in Gwinnett County, Ga., a 1992 lawsuit.
defense attorneys.
ings that allow two CSX work- jury decides against awarding 1999 : In the Cumberland,
ers to proceed with their brain- 1995: Davidson County any money to Bryant R. Sherrill, Md., solvent case of Gary
damage lawsuits, even thoug h Circuit Court Judge Marietta a railroader who worked in Blacker vs. CSX, the jury deter-
the men first noticed symptoms Shipley consolidates 82 Burge CSX's Hamlet, N.C., shops. mines that each party was
prior to a three-year statute of and Wettermark solvent cases equally at fault and declines to
1998 : Harold Twigg, repre-
limitations. from Nashville, Tenn., under a make an award.
sented by Larry Lockwood,
1994 : The Ninth Circuit suit by Kenneth McDaniel in
wins a $405,000 jury award in 1999 : Cumberland worker
Court of Appeals in San order to hold a "Daubert" hear-
Cumberland, Md. Twigg settles Gary Mongold, represented by
Francisco upholds the decision ing. This follows an attempt by
for $150,000 upon appeal, Larry Lockwood, wins a
by lower federal court in CSX to prevent the workers'
according to CSX. $65,000 verdict against CSX in
Montana that threw out the first doctors from testifying because
their "j unk science" lacks cred- 199 8 : The U.S. Supreme the Circuit Court of Monongalia
six Burlington Northern solvent
ibility. Shipley determines the Court refuses to overturn the County, W.Va.
cases. The court ruled that affi-
workers' doctors have sufficient Tennessee Supreme Court in
davits from workers' doctors 2000: The estate of Berry
credibility to testify, saying, the consolidated McDaniel
failed to support claims that wins $765,000 in jury trial.
'This is not junk science." case.
solvents used in the Livingston 20 01 : CSX acknowledges
shops made them sick. A new 1997: The Florida Appeals 1998 : The District Court of that it has settled 466 toxic
attorney, William Rossbach Court overturns the lower court Appeal in Florida overturns the encephalopathy lawsuits, pay-
lower court ruling that had pre-
from Missoula, Mont., takes on ruling that had denied Berry the ing a total of up to $35 million
10 of the original clients and opportunity to have his doctors vented Berry's doctors from to current or former workers.
prepares new lawsuits. testify about his condition. testifying in his trial. Some 80 cases are pending.
1995: Berry dies of panc;re- 199 7: William Crouch, rep- 1998 : Gary Stone, repre- Attorneys who represented
atic cancer at age 53. resented by attorney Larry sented by Thomas Joyce and workers estimate the number of
1995: Monhollen, represent- Lockwood, wins a $1O million Sanford Berman, loses his sol- CSX settlements at 485 and
ed by Burge and Wettermark, award at a trial in Portsmouth, vent trial in Jefferson County agree more are still in litigation
wins $1.1 million from CSX Va. After an appeal by CSX, the Circuit Court. or will be filed.
Hamlet, N.C., man settles for
from a suburban Atlanta jury. 1998- 1999 : Burge and 200 1: A trial is held in Duval
$1 million, according to CSX. Wettermark settle 81 of 82
1995 : Duval County (Fla.) County (Fla.) Circuit Court to
1997 : The Court of Appeals cases that were covered under
Circuit Judge Michael decide if CSX can recoup from
Weatherby, following a of Georgia refuses to overturn the McDaniel Tennessee its insurance companies any of
Monhollen's jury award. Supreme Court ruling.
"Daubert"-style hearing, grants the millions it spent defending
a CSX motion to prevent 1997 : The Tennessee 1998-1999: Montana attor- itself against solvent lawsuits
Berry's docto rs from testifying Supreme Court upholds ney William Rossbach secures and paying settlements to
in his trial. The ruling deals a Shipley's ruling in the consoli- settlements for eight of 1O workers.