Conrail must pay $2.6 million to former engineer

Frank Battaglia, 65, of Canton, Mich., worked for several years as an engineer in the locomotives used to move rail cars in metro Detroit train yards. The 23-year Conrail employee filed the lawsuit in Lucas County on the advice of his union, the Brotherhood of Locomotive Engineers and Trainmen, which felt he would receive a fairer verdict. Lawsuits can be filed where the incident occurred or where the company does business.

Attorney E.J. Leizerman, who represented Mr. Battaglia, said Judge Denise Ann Dartt had ruled that his asthma was a result of inhaling the fumes and that there were violations of both the Federal Employees Liability Act and the Locomotive Inspection Act. After a week of testimony, a jury deliberated about five hours to decide the amount of damages.

Mr. Leizerman said it is against federal regulations for diesel fumes to be in the cabin of a locomotive.

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$625,000 awarded in asthma case called first of its kind

“This is the first case of its kind in the country. There had never been a case in which an employee successfully claimed that diesel fumes caused asthma,” said E.J. Leizerman, a Toledo attorney who represented Mr. Cutlip.

According to Mr. Leizerman, his client filed the suit, in part, to get Norfolk Southern to address the fumes in the engineers’ compartment, providing a safe workplace for him and his co-workers.

The jurors heard testimony from employees about the railroad’s practice of operating trains in “long hood forward,” which placed the locomotive engineers at the back of the engine and the smoke in front of them, thereby exposing them to more fumes.

In addition, Mr. Cutlip’s co-workers testified that Norfolk Southern often engaged in “deadheading,” a practice in which engineers were kept in train locomotives at the end of their work shift. Instead of using vans to get the employees home, they were returned to a train yard in a passenger car behind the engine, where they were subjected to the down-wind path of diesel fumes.

Despite the jury award, Norfolk Southern has not addressed the issues raised at Mr. Cutlip’s trial, said John Bentley of the Brotherhood of Locomotive Engineers in Cleveland. The union represents about 35,000 engineers, conductors, and other employees.

“There is no evidence that Norfolk Southern made any improvements to locomotive cabs to reduce the possibility of diesel exhaust entering the cabs. There is not evidence the railroad improved insulation in the cabs or anything of that nature,” he said.

Rudy Husband, a Norfolk spokesman, said the railroad would not commenton the Cutlip case, and it has a policy of not talking about lawsuits filed against the company. He also would not discuss the conditions of locomotives or its practices of long hood forward and deadheading.

Mr. Leizerman said Norfolk did not appeal the jury verdict to the U.S. Supreme Court. He said the railroad settled the case with his client, paying him the $625,000 jury award and about $100,000 in interest.

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