BNSF sued for cancer

[eolafan]

You'll have to excuse us novices who look at such litigation with something of a jaundiced eye as we do so based on the extreme levels of unjustified litigation in this country in recent decades.

You can't deny there's a level of truth to that either.

Actually, I do deny that. Maybe I don't get out much, but the cases I see, even the headline makers, almost always have a sound basis for the jury award, although one of the key causes of high verdicts in some cases is simple corporate arrogance, brought into the courtroom by arrogant corporate counsel. And, the jury gets mad.

The Ford Motor Co. Pinto case is a good example. The jury there heard the testimony that Ford's actuarial calculations on the Pinto gas tank design would "only" result in 8 deaths per year, and that Ford could fight off the resulting litigation far more cheaply than the cost of building the safer tank and supporting structure. It was the corporation's decision to choose litigation as the result of choosing a design they knew would result in deaths, rather than choosing an alternative to a safer design.

They built the cost of knowingly killing people into the manufacturing cost and calculated rate of return on the Ford Pinto -- "the Barbeque that seats four".

Then, "corporate counsel" argued to the jury that the company had every right to build a design that they knew would kill people: "the job of the corporation is to make money."

It's expensive to handle these cases. Any lawyer handling one has to make an assessment as to the viability of the case -- a purely business judgment since in these cases, the clients don't have the money -- unlike the corporation -- to litigate, and so it is all on the lawyer's dime that the litigation is commenced. It is entirely a personal financial risk on the part the lawyer, and that adds a very clarifying element to assessing the risks of ever filing such a case.

 

OK, yes I did say enough is enough on this post, but after you deny above that there is a horrendous amount of frivolous litigation I can only say two things to you and then I will end my participation in this thread...those two things are...

GET "REAL" FELLOW and GET A LIFE!

[MichaelSol]

You'll have to excuse us novices who look at such litigation with something of a jaundiced eye as we do so based on the extreme levels of unjustified litigation in this country in recent decades.

You can't deny there's a level of truth to that either.

Actually, I do deny that. Maybe I don't get out much, but the cases I see, even the headline makers, almost always have a sound basis for the jury award, although one of the key causes of high verdicts in some cases is simple corporate arrogance, brought into the courtroom by arrogant corporate counsel. And, the jury gets mad.

The Ford Motor Co. Pinto case is a good example. The jury there heard the testimony that Ford's actuarial calculations on the Pinto gas tank design would "only" result in 8 deaths per year, and that Ford could fight off the resulting litigation far more cheaply than the cost of building the safer tank and supporting structure. It was the corporation's decision to choose litigation as the result of choosing a design they knew would result in deaths, rather than choosing an alternative to a safer design.

They built the cost of knowingly killing people into the manufacturing cost and calculated rate of return on the Ford Pinto -- "the Barbeque that seats four".

Then, "corporate counsel" argued to the jury that the company had every right to build a design that they knew would kill people: "the job of the corporation is to make money."

It's expensive to handle these cases. Any lawyer handling one has to make an assessment as to the viability of the case -- a purely business judgment since in these cases, the clients don't have the money -- unlike the corporation -- to litigate, and so it is all on the lawyer's dime that the litigation is commenced. It is entirely a personal financial risk on the part the lawyer, and that adds a very clarifying element to assessing the risks of ever filing such a case.

 

[sgtbean1]

On the other hand, BNSF are still innocent until PROVEN guilty.

Well, the lawsuit isn't a criminal proceeding, and you are referring to a criminal standard.

I know. But the essence is the same: if BNSF did nothing wrong, then they shouldn't have to pay up, right?

 

... I don't know what kind of "emotion" these posters worry about when corporate executives, pulling down milllions of dollars in pay and options, create a condition that they know will ultimately kill people, possibly hundreds -- their own hard-working employees and their families -- causing them to die horrible, painful deaths.

Thank you for proving my point, however unintentionally. That's exactly the emotion I refer to. Just so you know: I'm not against you, or the people of Somerville. I'd like to know the facts. And I hope the jury will judge the case on those very facts.

[MichaelSol]

On the other hand, BNSF are still innocent until PROVEN guilty.

Well, the lawsuit isn't a criminal proceeding, and you are referring to a criminal standard.

However, just across the street from me, executives from W.R. Grace Co. are, in fact, facing Federal criminal charges, possible fines and up to twenty year prison sentences for knowingly permitting toxic substances into the air, water and soil at Libby, Montana during their operation of a vermiculate (asbestos) mine there.

Just from reading the papers, I can see that BN is in full panic mode on the Somerville case.

Various posters here worry about a jury awarding damages based on "emotion". I don't know what kind of "emotion" these posters worry about when corporate executives, pulling down milllions of dollars in pay and options, create a condition that they know will ultimately kill people, possibly hundreds -- their own hard-working employees and their families -- causing them to die horrible, painful deaths.

On a scale of ultimate justice, "jury emotions" are pretty far down my list of worries for these poor beseiged corporate execs.

 

[sgtbean1]

And this goes to my objections to the comments on this thread: if a railroad is involved, a good portion of the occupants here all too automatically flock to condemn the injured, dead, and dying and make the railroad company, perversely, the victim even as it earns record profits.

You may have a very valid point here, but as Eolafan already pointed out:

You'll have to excuse us novices who look at such litigation with something of a jaundiced eye as we do so based on the extreme levels of unjustified litigation in this country in recent decades.

You can't deny there's a level of truth to that either.

But anyway, my first reaction to this story was "another one of those". Your contributions, founded in experience and knowledge of the subject, have caused me to see this story in a somewhat different light. This story may not be as far fetched as others. On the other hand, BNSF are still innocent until PROVEN guilty. My fear in these cases is always that a jury may come to a verdict based more on emotions than actual facts.

As always the truth will most likely be somewhere in the middle, not pure or simple.

[spokyone]

Barkley said that MSDS were kept on file in the main office, where rank-and-file employees were not permitted.

Now I wonder what year that policy changed. I showed each new employee exactly where they were located. (On a shelf out on the shop floor, right next to the time clock.)We attended a yearly class on their use. Per WISHA in WA.

[MichaelSol]

Once again, in a town with 1700 residents, statistics show that almost 700 of them should be diagnosed with cancer in their lifetime. 

Well, I don't know about the opinions, but the statistics you propose don't support what you are saying at all. But, if you are accepting the statistical base as true, then it offers some relevant facts.

If 700 people were to be diagnosed with cancer in a static population of 1700 residents, over their lifetimes, the odds of anyone in the population having cancer at any given point in time is about 0.41% -- that is, in this town, 7 people total would be statistically expected to have cancer at any given point in time. Thirty people are identified as having cancer of some type -- over four times the national average according to your statistic.

There are 12 cases of stomach cancer alone in Somerville. Based on the usual rate of stomach cancer, we would expect, statistically, no one to have stomach cancer, and the probability of anyone having it at any given point in time as .01%. The stomach cancer rate is over 60 times the national average.

Two cleft palate births in the past three years are identified by name; others are referenced. In a town the size of Somerville, you would statistically expect one cleft palate birth every 23 years. Even at only two such births in the time period, this is over 15 times the national average of "normal" cleft palate births, again, using your statistical representation.

You put your statistics on here, but carefully misrepresented them for this population size, attempting to show the exact opposite of what they actually mean. Why? 

News Item:

In depositions, former Somerville tie plant superintendents Samuel Barkley and Vernon "Gene" Welch both admitted they had no clue what chemicals constituted creosote or whether any were considered carcinogenic. Though ultimately responsible for worker safety, both said they never informed employees about potential health risks.

They also expressed a general belief that exposure to low concentrations of creosote and the other heavy-duty pesticides used at the plant did not require any special precautions.

"I don't recall that we gave them-that I gave them any instruction," said Barkley, superintendent from 1971 to 1986, in an April 2003 deposition. "I mean, I would assume that they would make every effort not to get anything on them."

Barkley said that MSDS were kept on file in the main office, where rank-and-file employees were not permitted.

"...I never knew that there was a hazard in creosote," he said, adding that he never researched the subject or received any special training from his corporate bosses at the railway company.

...

In a sworn statement, Robert Urbanosky, who worked at the tie plant from 1977 to 1995 and now serves as a Burleson County justice of the peace, said he frequently suffered from headaches and nosebleeds while at the facility. He also testified that the treating chemicals were commonly used for dust control.

"I would never do that; that's against the law," Shaw, the Koppers representative, said in his deposition, adding that creosote has been a federally registered pesticide since the 1980s. "I don't think you can spray any pesticides on the roads for dust control or spray any pesticides just for the hell of it..."

Mendoza said in his deposition that Pentacon, a powder form of the federally registered pesticide pentachlorophenol [PCP/Dioxin], was often sprayed to kill weeds and control dust from the late 1960s through the 1980s.

He also testified that on rainy days back in the 1970s, Superintendent Barkley would open the valve tanks on the cylinders and flush the chemicals into unlined ditches behind the plant. Workers called it the "Santa Fe flush."

The tie plant routinely discharged wastewater into local creeks, Mark Stehly, BNSF assistant vice president of environmental research and development, affirmed in an August 2007 deposition.

When asked about the potential hazards of creosote, Stehly said: "There are constituents within creosote that can cause cancer; there's lots of constituents in creosote that don't cause cancer."

In his deposition, Welch said he never warned employees against taking chemicals home on their skin and clothes: "It was such a minimal thing that I wouldn't have been concerned with it."

Regarding protective equipment, Welch said: "I don't know that anybody ever came to me and said, 'I need a respirator...If he would've we would've investigated to see why he needed a respirator and if we felt like it was justified he would have been furnished a respirator."

 

[Krazykat112079]

I saw and understood exactly what you meant: that if these people won one red cent from the railroad company, they should be punished appropriately by being laid off and the factory torn down; that it would be "poetic" if suffering and dying people were so punished and lost their jobs and medical coverage.

Even though the "facts" didn't point anywhere, your attitude surely did. Yours may be one of the most objectionable comments I have ever read on Trains forums.

And this goes to my objections to the comments on this thread: if a railroad is involved, a good portion of the occupants here all too automatically flock to condemn the injured, dead, and dying.

I see.  Opinions are faux pas, even when twisted and contorted.  Since the debate is stale and you want to argue the acceptability of my comments as you percieve them, then have at it.  I'm done.

[MichaelSol]

causing many (myself included) to somewhat naturally assume such litigation is founded in greed rather than in fact.

Ah, but that is my contention.  The facts do not point anywhere yet. 

They seemed to point somewhere for you quite easily yesterday:

If damages are awarded, it would be poetic justice for the companies to produce the funds by laying off all the employees and liquidating the factory. 

You seemed to have missed a conditional modifier in there.

I saw and understood exactly what you meant: that if these people won one red cent from the railroad company, they should be punished appropriately by being laid off and the factory torn down; that if a jury actually found the charges true, it would be "poetic" if suffering and dying people were punished and lost their jobs and medical coverage.

Even though the "facts" didn't point anywhere, your attitude surely did. Yours may be one of the most objectionable comments I have ever read on Trains forums.

And this goes to my objections to the comments on this thread: if a railroad is involved, a good portion of the occupants here all too automatically flock to condemn the injured, dead, and dying and make the railroad company, perversely, the victim even as it earns record profits.

The Railroad increased its profits by not installing proper equipment, by not spending any money on training, not lifting a d*** finger to make that plant safe.

As an earlier poster said, it's all about greed.

Inexplicably, he meant on the part of the dead and dying.

 

 

[Krazykat112079]

causing many (myself included) to somewhat naturally assume such litigation is founded in greed rather than in fact.

Ah, but that is my contention.  The facts do not point anywhere yet. 

They seemed to point somewhere for you quite easily yesterday:

If damages are awarded, it would be poetic justice for the companies to produce the funds by laying off all the employees and liquidating the factory. 

You seemed to have missed a conditional modifier in there.

[eolafan]

Folks, with all due respect to all posters here, this subject has taken up lots of everybody's time and energy, and while it may indeed be a subject worthy of such passion...it is not directly a railroad related subject (despite the railroad being sued) so let's lighten up a bit here and get back to our "happy and pleasurable" passion...RAILFANNING!  Agreed?

[MichaelSol]

causing many (myself included) to somewhat naturally assume such litigation is founded in greed rather than in fact.

Ah, but that is my contention.  The facts do not point anywhere yet. 

They seemed to point somewhere for you quite easily yesterday:

If damages are awarded, it would be poetic justice for the companies to produce the funds by laying off all the employees and liquidating the factory. 

 

[Krazykat112079]

causing many (myself included) to somewhat naturally assume such litigation is founded in greed rather than in fact.

Ah, but that is my contention.  The facts do not point anywhere yet.  Especially with the partial view that the media gave us.  So one man said his child was born with a cleft palate?  Cleft palates occur at a rate of 1 in 700 births in the US.  A town with a population of 1700 should have at least 2 residents, statistically, that were born with cleft palates.  There is also no one  definite cause for cleft palates.  Toxic chemicals are only one suspected cause.  There are several other suspected causes as well, including genetics.  Birth defects as a whole occur 1 in 33 births in the US with cleft palates being the most common.

Also, they interviewed a lady who had many sick friends.  Well, there is a lot of story missing there.  Are all of her firends sick?  Does she consider everyone in town her friend?   Most of my grandmother's friends are all sick, but no one is calling her town a toxic dump.  Once again, in a town with 1700 residents, statistics show that almost 700 of them should be diagnosed with cancer in their lifetime.  The media tells the tale of a man that lost his brother, father, and uncle to cancer.  By the time I am this man's age, I expect that I will have lost as many if not more family members to cancer.  According to the state of Texas, the cancer rate for the county is not above normal, something the lawyers and townsfolk dispute, but no numbers have been reported to support their claim.

 

 

Incidentally, in my searches I came upon some interesting not-really-related trivial knowledge:

1. Somerville is named for the Santa Fe VP of the time, Mr. Frank Somers.  This is disputed info, though, and some claim it was named for the first president of the Gulf, Colorado, and Santa Fe Railway Company, Albert Somerville.

2. The tie plant was built in 1897 and been in continuous operation since 1906.

3. The government created a resevoir for municipal water supply, called Lake Somerville, in 1966 (started in '62). 

[eolafan]

MichaelSol, seems to me there is more to your passion over this subject than meets the eye of most of us, care to share it or simply tell us to mind our own businesses?

I grew up on railroad property. It was 24/7. Played on the tracks, the tie piles, had the section crews over for lunch or Friday afternoon picnics in the summer all the time. I recall the company memo, in the early 1970s, advising that creosote had been suspected to be hazardous, with a list of precautions to take. Well, some people have railroading "in their blood" but it has a little different meaning in this context.

When I went to work for the government in R&D, I was fortunate in that my job allowed me to put in 40 hours a week, and still be able to work on a doctorate in biochemistry. The engineering school was too far away to finish a masters in Chem E, but I don't like to sit still, there was a good biochem program, and so I did that. My emphasis was Neurochemistry. At the same time, as the only guy in our project with any authentic Chem E credentials, I was in charge of our analytical chemistry section, the metal fatigue and corrosion lab, and I was also the safety officer. We contracted to do research for a variety of agencies, including the US Army and the US Air Force Chemical Weapons Labratory. That last one was an eye-opener.

It was a great time in my life. I still stay in touch with everyone even though this was 35 years ago. Our retired Wind Tunnel Manager happens to be on my appointment calendar this afternoon as an odd coincidence to this conversation.

In the course of those experiences, I became sensitized to the environmental problems caused by negligent industrial and research practices. In particular, biological systems are particularly susceptible to polycyclic aromatic compounds in the environment which are for practical purposes in my book inherently not only carcinogenic but mutagenic.

And that is what turned on the red light for me in reading about Somerville: the birth defects, in particular the cleft palates. None of the articles that I have read mention this, but cleft palates in a population are almost always an indicator of some kind of polycyclic chemical contamination. Babies don't get that birth defect from their mother's smoking or because of spicy food. And maybe I am too sensitive to God's creatures, but malformed babies as the result of some corprorate practice passes far beyond any line of outrage that I can imagine.

The cleft palates are what told me, instantly, that this lawsuit was firmly grounded, perhaps more so than they realize, and that this tie plant was completely mismanaged by the railroad. They knew exactly what the dangers from creosote were by the mid-1970s and there is nothing in the published record that shows that they did a d**** thing to protect these people; instead, telling them all was well.

Now, personally?

I have been a consultant to the Burlington Northern Railway through one of it's lead law firms regarding hazardous waste sites, including diesel fuel and creosote issues, based on historical knowledge of where they are or were and my opinion of the hazards based on specific historical knowledge of the sites. BN lawyers spent a half a day in my office as recently as 2006 reviewing the available historical record. I have provided a written report and documentation. We communicate from time to time. I had a request by email just last week as part of ongoing communications about hazardous waste sites and issues and a request for some additional documentation.

None of those communications involve Somerville.

 

Thanks for sharing, this clears up quite a few questions in my mind.  Absolutely seriously...it certainly sounds like your passion for this issue is well founded in research and fact.  You'll have to excuse us novices who look at such litigation with something of a jaundiced eye as we do so based on the extreme levels of unjustified litigation in this country in recent decades.  Such levels of litigation (in my opinion) have gotten way out of hand, are driving up our insurance and other costs, and are causing many (myself included) to somewhat naturally assume such litigation is founded in greed rather than in fact.

[selector]

MichaelSol, seems to me there is more to your passion over this subject than meets the eye of most of us, care to share it or simply tell us to mind our own businesses?

Huh? Passion is okay in a discussion, as long as it doesn't get personal.  It seems you have decided the direction with your own comment above.

If I may be permitted to step in, Michael darned well should be passionate about what he says here because it is so often misattributed, misunderstood, or misreprepresented.  Despite his attempts to offer many sources to bolster what he contends, he finds himself having to repeat and to seek yet more supporting material in an attempt to deal with the subject constructively for the sake of onlookers who are not actively posting, but who are nevetheless interested in developing an informed opinion.

These shouldn't be arguments of the Monty Python kind where simply denying another's assertions, particularly when supported, is to be taken as a polite or fruitful form of discourse, and then not bothering to support your denial's basis.  It isn't honourable, nor is it fair.  Passion may merely be frustration, even pique.  Why does he even bother, in other words.  Is he in this for his health?

So, minding one's own business...no, I don't think there's an shortage of that going on around here.

[MichaelSol]

MichaelSol, seems to me there is more to your passion over this subject than meets the eye of most of us, care to share it or simply tell us to mind our own businesses?

I grew up on railroad property. It was 24/7. Played on the tracks, the tie piles, had the section crews over for lunch or Friday afternoon picnics in the summer all the time. Old ties were sometimes burned. Creosote was present on a daily basis. I recall the company memo, in the early 1970s, advising that creosote had been suspected to be hazardous, with a list of precautions to take. Well, some people have railroading "in their blood" but it has a little different meaning in this context.

When I went to work for the government in R&D, I was fortunate in that my job allowed me to put in 40 hours a week, and still be able to work on a doctorate in biochemistry. The engineering school was too far away to finish a masters in Chem E, but I don't like to sit still, there was a good biochem program, and so I did that. My emphasis was Neurochemistry. At the same time, as the only guy in our project with any authentic Chem E credentials, I was in charge of our analytical chemistry section, the metal fatigue and corrosion lab, and I was also the safety officer. We contracted to do research for a variety of agencies, including the US Army and the US Air Force Chemical Weapons Laboratory. That last one was an eye-opener.

It was a great time in my life. I still stay in touch with everyone even though this was 35 years ago. Our retired Wind Tunnel Manager happens to be on my appointment calendar this afternoon as an odd coincidence to this conversation.

In the course of those experiences, I became sensitized to the environmental problems caused by negligent industrial and research practices. In particular, biological systems are particularly susceptible to polycyclic aromatic compounds in the environment which are for practical purposes in my book inherently not only carcinogenic but mutagenic.

And that is what turned on the red light for me in reading about Somerville: the birth defects, in particular the cleft palates. None of the articles that I have read on Somerville are mentioning this, but cleft palates in a population are almost always an indicator of some kind of polycyclic chemical contamination. Babies don't get that birth defect from their mother's smoking or because of spicy food. And maybe I am too sensitive to God's creatures, but malformed babies as the result of some corporate practice passes far beyond any line of outrage that I can imagine.

The cleft palates are what told me, instantly, that this lawsuit was firmly grounded, perhaps more so than they realize, and that this tie plant was completely mismanaged by the railroad. They knew exactly what the dangers from creosote were by the mid-1970s and there is nothing in the published record that shows that they did a d**** thing to protect these people; instead, telling them all was well.

Now, personally?

I have been a consultant to the Burlington Northern Railway through one of it's lead law firms regarding hazardous waste sites, including diesel fuel and creosote issues, based on historical knowledge of where they are or were and my opinion of the hazards based on specific historical knowledge of the sites. BN lawyers spent a half a day in my office as recently as 2006 reviewing the available historical record. I have provided a written report and documentation. We communicate from time to time. I had a request by email just last week as part of ongoing communications about hazardous waste sites and issues and a request for some additional documentation.

None of those communications involve Somerville.

 

[TomDiehl]

Incidents like this were the reason for the passage of the Hazard Communication Standard in 1983. Before this, the supervisors at any plant could make statements that their processes or chemicals were of no hazard, probably because they were told this by their suprvisor. There were no channels easily accessible to check the information given by the higher ups. The HAZCOM Act (common name) required any company producing hazardous materials to originate a Material Safety Data Sheet (MSDS) and provide copies of these to all customers of the material. All employees that can possibly be exposed must have access to the MSDS copies and be trained how to read them. The company is responsible for any contamination and must take precautions to prevent it.

Before this act, people could be exposed to any hazardous material and not told anything about it. Look at how asbestos was handled in the days of steam.

[eolafan]

Sounds like Mr Sol does have a more personal connection to this situation.

Exactly my suspicion.

[vsmith]

Sounds like Mr Sol does have a more personal connection to this situation.

[n012944]

Based on the data you have produced, MichaelSol, they have suspected that something was amiss since the 70's.  Would you not consider then that the town also bears partial responsibility for not addressing the issue 30+ years ago? 

Good grief.

The railroad said that creosote was not dangerous. The plant manager received no warning from the company that there was a problem. The creosote was incinerated in an ordinary incinerator. It was dumped in the creek.

Have you complained to a company lately about them poisoing the town?

Did you keep your job?

I can tell you exactly what happened to any whisteblower in the 1970s. They were fired.

They left town.

They died of cancer somewhere else; probbly couldn't even afford the medical care and the family went broke.

And no one noticed.

And I would just bet there are people here who say they deserved it for squealing on their employer. That's how some of you think.

 

In any event, there appears to be a number of suffering people involved. The situation doesn't warrant the usual armchair judgments from afar.

 

Funny, it seems that you are doing just that.  From what I have read here, it appears that you have already convictied the BNSF.

[eolafan]

Based on the data you have produced, MichaelSol, they have suspected that something was amiss since the 70's.  Would you not consider then that the town also bears partial responsibility for not addressing the issue 30+ years ago? 

Good grief.

The railroad said that creosote was not dangerous. The plant manager received no warning from the company that there was a problem. The creosote was incinerated in an ordinary incinerator. It was dumped in the creek.

Have you complained to a company lately about them poisoing the town?

Did you keep your job?

I can tell you exactly what happened to any whisteblower in the 1970s. They were fired.

They left town.

They died of cancer somewhere else; probbly couldn't even afford the medical care and the family went broke.

And no one noticed.

And I would just bet there are people here who say they deserved it for squealing on their employer. That's how some of you think.

 

 

 

 

MichaelSol, seems to me there is more to your passion over this subject than meets the eye of most of us, care to share it or simply tell us to mind our own businesses?

[MichaelSol]

Based on the data you have produced, MichaelSol, they have suspected that something was amiss since the 70's.  Would you not consider then that the town also bears partial responsibility for not addressing the issue 30+ years ago? 

Good grief.

The railroad said that creosote was not dangerous. The plant manager received no warning from the company that there was a problem. The creosote was incinerated in an ordinary incinerator. It was dumped in the creek.

Have you complained to a company lately about them poisoning the town? And they said everything was OK. What were you to do? Complain some more?

Did you keep your job?

I can tell you exactly what happened to any whisteblower in the 1970s. They were fired.

They left town.

They died of cancer somewhere else; probably couldn't even afford the medical care and the family went broke.

And no one noticed.

And I would just bet there are people here who say they deserved it for squealing on their employer. That's how some of you think.

The Company knew about this in the 1970s. It had the expertise to know there was in fact a problem, and it alone had the ability to fix it.

In the intervening 30 years, it did nothing.

What do you think it takes to get corporate attention on such matters?

Perhaps a lawsuit?

 

[Krazykat112079]

Based on the data you have produced, MichaelSol, they have suspected that something was amiss since the 70's.  Would you not consider then that the town also bears partial responsibility for not addressing the issue 30+ years ago?  If your car smells funny, but no indication lights come on and you continue driving it for hundreds of miles until it bursts into flames, do you not bear responsibility for not investigating the smell?  I refuse to believe that the townsfolk were completely ignorant to the hazards as presented in the case, especially after suspecting something was amiss back in the 70s.  Sure, the plant and the companies that operate(d) it bear a level of responsibility and the suffering that these people endure is tragic.  Is it not also tragic when a mother of 4 kills herself driving around the gates of a grade crossing?

My point was not that BNSF should get off scott-free.  They bear responsibility to a degree.  What I was intending to convey is that I do not have faith in our justice system enough to recognize that and remain blind to the tragedy, which is not relevant to justice.  In my opinion, BNSF and the other company should immediately detoxify the land.  I admit, I have no idea what is involved, but maximum haste should be used.  In addition, it would not be outside the realm of justice for them to pay medical bills related to cancer for those townsfolk over the age of 30.  Everyone else, that burden lies with the town and the people that inhabit it. 

[MichaelSol]

How can anyone demonstrate that a cancer was rooted in a given cause?  

With statistics.

It is rare, for instance, for people to die of mesothelioma. When a cluster of people do, there is a problem, and spicy food isn't one of them ...

News Item:

The large number of deaths in Libby, Montana gave rise to concern in the health department. In collaboration with the Montana Department of Public Health and Human Services, the Agency for Toxic Substances and Disease Registry, studied the mortality statistics for Libby, Montana for a 20 year period from 1979 to 1998.

It was noticed that most of the people were dying of respiratory diseases, lung cancer, mesothelioma, digestive cancer and diseases of pulmonary circulation. Most of these people died decades after working in asbestos mines. It was concluded that most of these diseases and deaths were the direct result of asbestos exposure from vermiculite mine.

In this regard, death certificates were also reviewed to judge the accuracy of such claims. Most of these certificates were witness to the fact that people living in Libby had died from various lung and respiratory diseases and mesothelioma due to asbestos exposure. This 20 year period review also showed that the mortality rate in Libby was up to 40% to 60%, higher than other states of the US.

 

[MichaelSol]

Michael the whole premise of the lawsuit is highly suspect.  No one is claiming that creosote isn't harmful.  It's just that when you never actually step foot in the plant and yet you still claim to have creosote poisoning I've got to wonder.  You could have gotten poisoned from the electric pole in your front yard.  If your house of really old construction - say 1890's-1900's - I've seen them use creosote to treat the joists.  There are all kinds of sources for the chemical.  ...  Railroads have nothing to do with it.  The lawsuit is bogus based on its premise.   

A town with a tie treatment plant, a town practically saturated in creosote, and the creosote came from somewhere else?

And this was the only town that used creosote treated joists -- or had a high incidence of cancer from them? 

Whew, a creosote plant, dioxin, a chip burner with no pollution controls, old ties burned out in the open, a creosote-polluted water supply, the plant manager didn't know that creosote was dangerous, the safety committee was never told anything about the stuff, 200 people in a town of 1700 have [or had] various rare cancers .... and the railroad had "nothing to do with it?"

News item:

Some workers in Somerville say that ...  workers there handled creosote with their bare hands and wore it home on their clothes.  They say workers even burned treated ties at night, spreading what they say were toxic fumes over the town.

Now, some say that exposure is killing them.

"The problem is we don't know what we're catching because every cancer seems to be some rare form of cancer," said Dennis Davis, who can rattle off more than two dozen people from Somerville with cancer.  "It's like a plague has come down on us."

This year, he joined the list.

"(The doctors) diagnosed that I have pancreatic cancer," he said.

That's why Davis joined a list of more than 160 other Somerville residents touched by cancer taking on the railway in a company town.

"This has been the most horrific, awful thing I've been involved in my entire life and it's sad and sickening," he said.

Faust never worked at the plant, but her husband does, and ...  she laundered his clothes blanketed with creosote.  She says she ate vegetables from her garden, which she now believes was tainted with ash from the improperly burned creosote. Her garden was trimmed with railroad ties. 

"I handled it daily," she said.  "We were told it wouldn't hurt us."

The creosote got into the water supply. She drank toxic stew with every drink of water.

The argument that she might have gotten cancer anyway is an old and cruel defense tactic: "she was probably going to die anyway, so what if we also poisoned her and just sped it up?"

There is always a problem of ultimate causation of cancer in humans; however, it's not a defense to say we could just let this stuff go all over, on the workers, in their clothes, in the air, into their food, and into their water -- even though we know it is carcenogenic and just forgot to tell the plant manager -- because they were all going to die someday from something, and whatever they die from its probably their own fault anyway.

Which is pretty much what you suggest that the BN should be permitted to argue.

And when the angry jury returns a headline-making judgment, you will continue to wonder why juries do those things ...

Appendix:

Houston Press:

Toxic Town: Cancer and Birth Defects in Somerville

In Somerville, chances are far better than normal that you will die of cancer or give birth to a deformed baby

By Todd Spivak 

Published: December 6, 2007

http://www.houstonpress.com/2007-12-06/news/toxic-town/

Dennis Davis thought maybe his family was cursed.

In early 1998, his uncle Don developed an aggressive skin cancer that devoured his face. Several months later, his brother Dale died suddenly at age 46 from stomach cancer. A few weeks after that, his granddaughter Makayla was born with severe birth defects.

Davis started thinking about the other families in his small town that he knew had serious illnesses - the cancers, the brain tumors, the babies born with cleft palates.

He went house-to-house in his neighborhood and was stunned to find that nearly every family he visited was privately dealing with some type of horrendous disease.

"There's a catastrophe in our community," says Davis, who in November 2006 at age 53 was diagnosed with pancreatic cancer. "God knows what we're contaminated with."

Somerville, Texas, a sleepy, one-­stoplight town 90 miles northwest of Houston, is home to a massive wood-treatment facility, which for more than 100 years churned toxic chemicals into the atmosphere while manufacturing phone poles and bridge supports. Locals call it the "tie plant" since it was once the nation's largest producer of railroad cross-ties.

It was also among the industry's worst polluters, according to several prominent environmental scientists who now say Somerville residents for decades were exposed to wildly elevated levels of arsenic, dioxins and polycyclic aromatic hydrocarbons - all known cancer-causing chemicals considered highly toxic even at low doses. (For more detailed information, click here.)

Dust samples taken during the last year from several Somerville homes and school buildings reveal contamination levels higher even than those found 30 years ago in Love Canal, the notorious chemical landfill in Niagara Falls linked to high rates of cancers and birth defects, according to James Dahlgren, a clinical assistant professor of medicine at UCLA School of Medicine who has been retained by plaintiff attorneys in several pending lawsuits against the plant.

"The situation in Somerville is a ­public-health emergency," Dahlgren says. "The government should be called in to investigate."

A Houston Press investigation found as follows:

• Though incidences of stomach cancer across the country have plummeted during the last several decades, now representing just 2 percent of all new cancer cases, Somerville residents are contracting the disease at a rate as much as 40 to 60 times the national average, according to Dahlgren
• Though industry standards have existed for decades regarding ­industrial-waste management, the tie plant as recently as the mid-1990s neglected to install any air-pollution controls on smokestacks, routinely flushed chemical waste into local creeks and improperly used wood-waste boilers as incinerators, causing an incomplete combustion that increased the toxicity of chemicals released into the air
• Though the Texas Commission on Environmental Quality has never conducted any off-site testi

[selector]

How can anyone demonstrate that a cancer was rooted in a given cause?   There is no way except that we have accepted that smoking causes a great deal of the lung, tongue, and esophageal cancers we see, but so does alcohol...or so I heard years ago...maybe they've changed their minds.  But that's my point, we don't really know.  We assume that a lung cancer was caused by a person's smoking, but we don't know. 

My mother died a few years back from a rare cancer that effectively forced her to starve to death...it was a lyo-myo-sarcoma...extremely rare and highly resistant, as are all myo-sarcomas, to radiation therapy.  The tumour was at the side of her esophagus, and it slowly grew to squeeze it shut.  She had undergone several rounds of dental implantations over the preceding three years, the result of an auto accident.  Was there something about the compounds used in her implant treatment, maybe the various X-rays that led to her cancer?  Who is to say.?  Maybe auto accidents are at the root of some cancers since they precede them in many instances.  Pos hoc, ergo propter hoc.

I know my mother, though.  She would not sue her endodontist because she suspected his service to her had led to her untimely demise.  She really wanted to have a realistic smile, and smile she did, even as she lay dying.

-Crandell

[vsmith]

Interesting, a lifetime of Smoking had nothing to do with it, yeahhh...right!

Smoking causes stomach cancer?

Dad died of smoking related cancer, care to guess where his cancer was?

I don''t care to get into an argument with you. I don't happen to agree that anyone's experience, with your Father or otherwise, justifies mocking terminally suffering people because they smoked or ate spicy food and that breathing burning creosote residue in the air, or drinking the creosote in the drinking water was somehow their fault too.

Every time this stuff comes up, some of you treat people's deaths like a spectator sport and try and figure out how many ways the victim must have "deserved" their pain, suffering, agony and death. I find it repulsive and offensive.

 

 

My POINT was that the smoking is more that likely the primary cause of the plaintifs illness, creosote might be a contributing factor, but smoking has a very well documented cancer link compared to non-smokers going back 50 years. If this person wasn't a smoker I would be more inclined to your POV.

[solzrules]

Huh? So even though most people had someone in their family working at the plant, nobody knew they were using toxins on a daily basis? Seems a little odd to me. 

News item:

BN has already settled one case out of court:

"A case filed by one-time employee Don Hightower has settled for an undisclosed amount, just before he died from cancer that ate away at his face."

There was a genuine management problem at this plant:

"In a court deposition, former plant superintendent Gene Welch said he was unaware creosote might require special handling.  "... you know, I don't know that I ever had anybody come to me and complain about creosote hurting (them).""

One worker went to work at the railway in 1971 and served on the Railway Safety Committee. "Nobody ever addressed us about the chemicals." "We never had the proper equipment to keep the vapors and fumes from breathing them."

"Creosote can pose a significant danger to soil and groundwater supplies, if mishandled. Once it enters the soil or groundwater, it begins to break down, which can take years."

"According to records at the Texas Commission on Environmental Quality, the plant is still struggling to clean toxic waste from groundwater."

If damages are awarded, it would be poetic justice for the companies to produce the funds by laying off all the employees and liquidating the factory. 

Interesting that people here find profound human suffering and death not tragic enough whatever the cause, that because a railroad is involved the suffering should be intentionally multiplied and compounded by the "poetic justice" of a layoff and losing medical coverage as well.

 

Michael the whole premise of the lawsuit is highly suspect.  No one is claiming that creosote isn't harmful.  It's just that when you never actually step foot in the plant and yet you still claim to have creosote poisoning I've got to wonder.  You could have gotten poisoned from the electric pole in your front yard.  If your house of really old construction - say 1890's-1900's - I've seen them use creosote to treat the joists.  There are all kinds of sources for the chemical.  Or, you could smoke your whole life.  This has been known to lead to all kinds of cancer as a result.  My grandfather died from bladder cancer - and he smoked for 35 years before he quit.  You wouldn't think that organ had anything to do with smoking, but the doctors told us that after 35 years the carcinogens in the cigarettes can and do break down basic tissue functions all over the body.

I think this a case of a lawyer looking for a new tobacco company.  Why didn't he just sue the cigarette companies?  Maybe because their tapped and they've gotta find a new source of free money?  Railroads have nothing to do with it.  The lawsuit is bogus based on its premise.   

[MichaelSol]

Interesting, a lifetime of Smoking had nothing to do with it, yeahhh...right!

Smoking causes stomach cancer?

No, but according to a couple of web sites I visited, neither does creosote.

Incomplete combustion of creosote creates polycyclic aromatic byproducts. These have been positively identified to cause skin, lung, stomach, liver, colon and bladder cancers in laboratory animals. It is assumed that there can be a link to human cancers of the same type, but as always, human "testing" cannot be carried out, creosote contamination and its long term effects on humans is difficult to measure because of the very isolated population samples, and pockets of unusual cancers like this one appears to be generally are one of the rare "samples" that health authorities get a chance to look at, often as the result of lawsuits bringing the matter to the attention of health authorities.

Less is known about creosote breakdown in groundwater because the conditions are quite variable. These plants are often associated with PCP treatment as well, and Dioxin is a known by-product, which is fat soluble, highly toxic, and accumulates in body tissues.

News item:

"Sitting in a Fort Worth courtroom, Linda Faust scribbled the names of sick friends and neighbors on a sheet of notebook paper.

"Joe Moya, Patricia Thomas and Frank Kromar have colon cancer. Holly Monk, Victor Fonseca and Bud Archer have lung cancer. Dale Davis, Elaine Flannigan and Mary Archer, like Faust, have been diagnosed with stomach cancer.

"Seventy-six names in all.

"What do they have in common? They've lived, worked or had a loved one employed at the huge railroad tie plant in the small Central Texas town of Somerville.

""We've got 13 streets in our town, and if you go up and down them, there is cancer after cancer after cancer. Unusual cancers," Faust said, her wrinkled face pocked with the acne that her attorneys say came after being exposed to dioxins. "It is just rampant.""

This doesn't sound like any typical small town sampling of cancer that I am aware of.

In any event, there appears to be a number of suffering people involved. The situation doesn't warrant the usual armchair judgments from afar.

 

[MichaelSol]

Interesting, a lifetime of Smoking had nothing to do with it, yeahhh...right!

Smoking causes stomach cancer?

Dad died of smoking related cancer, care to guess where his cancer was?

I don''t care to get into an argument with you. I don't happen to agree that anyone's experience, with your Father or otherwise, justifies mocking terminally suffering people because they smoked or ate spicy food and that breathing burning creosote residue in the air, or drinking the creosote in the drinking water was somehow their fault too.

Every time this stuff comes up, some of you treat people's deaths like a spectator sport and try and figure out how many ways the victim must have "deserved" their pain, suffering, agony and death. I find it repulsive and offensive.