PHILADELPHIA – A man who worked for two major rail transport companies claims they violated the Federal Employers Liability Act (FELA) by placing him in a work environment which exposed him to carcinogens and later led him to contract bladder cancer, claims the companies categorically deny.
Allan F. Lyndes of Beaver Falls filed suit on Nov. 8 in the Philadelphia County Court of Common Pleas, against Penn Central Corporation (doing business as “American Premier Underwriters, Inc.”) in Harrisburg, Consolidated Rail (Conrail) Corporation in Philadelphia and Norfolk Southern Railway Company, of Norfolk, Va.
“From 1974 through 2007, plaintiff was employed by defendants as a trackman and machine operator who worked at defendants’ various yards and buildings in and around Dearborn, Mich., Lorain, Ohio, Chicago, Ill. and Pittsburgh. From 1974 through 2007, while working as a trackman and machine operator for defendants, plaintiff was required to inspect, repair and maintain railroad track,” the lawsuit says.
“From 1974 through 2007, while working as a trackman and machine operator for defendants, plaintiff was exposed on a daily basis to excessive amounts of diesel exhaust/fumes, creosote and asbestos; that were produced and expelled by running diesel locomotives and diesel-powered track equipment, by walking on rail ties impregnated with creosote, that were found in asbestos rope soaked in diesel fuel, brake shoes on the locomotives and railroad cars and pipe coverings on insulated pipes in buildings and facilities. [This] exposure to diesel fumes/exhaust, creosote and asbestos, in whole or in part, caused or contributed to his development of bladder cancer,” the suit adds.
The plaintiff says his bladder cancer and related diseases of the result of the defendant railroads using known cancer-causing materials in their operations. The plaintiff adds the defendants violated FELA by failing to provide him with a safe work environment and exposed him to materials which were “deleterious, poisonous and highly harmful” to their employees’ health.
Counsel for Conrail filed an answer to the complaint with new matter in Nov. 20, charging Lyndes’s complaint failed to state a claim upon which relief could be granted, that it was barred by the applicable statutes of limitations and other affirmative defenses, a failure to mitigate damages or join all relevant parties and abide by a physician’s advice to stop smoking, manage his weight and treat his hypertension.
In preliminary objections filed Nov. 20 by Norfolk Southern Railway Company, it alleges Lyndes had not ascribed general or specific personal jurisdiction to it.
“Although plaintiff generally alleges that he worked for one of the railroad defendants in Pennsylvania, there is no indication in his employment records that he was ever employed by Norfolk Southern in the Commonwealth,” the objections read, in part.
Furthermore, American Premier Underwriters filed its own answer to Lyndes’s complaint on Nov. 27 and countered that’s the plaintiff’s claim are barred by the applicable statutes of limitations, venue was improper in Philadelphia County and failed to state a claim upon which relief could be granted, among other defenses.
The plaintiff is seeking damages, individually, jointly and severally, in excess of $50,000, plus costs in this matter.
The plaintiff is represented by Thomas J. Joyce III and Tobi Russeck of Bern Cappelli, in Conshohocken.
The defendants are represented by David A. Damico, Jeffrey A. Jackson and Ashley E. Horton of Burns White in Pittsburgh, plus Nicholas W. Temeles and Daniel L. Jones in Cincinnati, Ohio.
Philadelphia County Court of Common Pleas case 180900918
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com