Cahill & Perry partner brought this landmark lawsuit against Metro-North Railroad in 1989 and pursued it all the way to oral argument before the United States Supreme Court in 1997.
In the mid-1980s Metro-North Railroad ordered its workers to rip up old pipe insulation in the steam tunnels under Grand Central Terminal, and those workers became known as the ‘Snowmen of Grand Central Terminal’ because when they emerged from the tunnels the were completely covered with white insulation dust. In September 1989 the New York Attorney General and MTA Inspector General’s offices issued a joint report confirming that the pipe insulation was asbestos and that Metro-North knew it was asbestos but did not provide the Snowmen with any protective equipment. It became evident that Metro-North had ordered its own unqualified workers to remove the asbestos pipe insulation in order save the hundreds of thousands of dollars it would cost to hire certified asbestos handlers.
Understandably, the Snowmen were enraged about being exposed to massive amounts of airborne asbestos fibers and worried about their future. Most were young men who now had to wait between 15 and 40 years for signs of asbestos disease to show up in their lungs. However, everyone told them they had no right to sue because the law required them to have an actual clinical diagnosis of asbestos disease (e.g., asbestosis, lung cancer, mesothelioma) before they could hold Metro-North accountable. But in 15 to 40 years, documents would be gone, witnesses would be dead, the Railroad itself could be gone. So how could they bring a meaningful civil action then? It would be one thing if criminal charges were pressed against those responsible, but for political reasons that are still not clear, the Manhattan District Attorney did not bring criminal charges against the Metro-North managers who knowingly exposed their workers to a known carcinogen for several years.
The Snowman came to Cahill & Perry partner and asked if there was anything the firm could do to force the legal system to give them some remedy for the wrong they had suffered, the consequences of which they would live with for the rest of their lives. knew what they had been told by everyone else: Not every wrong in life has a legal remedy, and as it stood the law would not allow them any recovery until they were sick or dying in the distant future. But what had happened to them was so egregious and so outrageous, the firm felt they had no choice but to do whatever possible to force the courts to expand the boundaries of FELA tort law so that employers such as Metro-North would be held accountable for such conduct.
After all, the Federal Employers Liability Act was passed in 1908 by President Teddy Roosevelt with a two-fold purpose: “The purpose and policy of Federal Employers’ Liability Act legislation is to promote adequate recovery for negligently injured railroad workers and thereby promote safe operating conditions” on railroads. Kozar v. Cheaspeake and Ohio Ry. Co., 320 F. Supp. 335, 387 (WD Mich. 1970). Railroads are the ultimate economic animal, and the genius of FELA is that it converts railroads’ economic self-interest into a positive force for workplace safety by giving railroads an economic incentive to provide their employees with safe work places. But here, the Metro-North Railroad had actually saved a significant amount of money by exposing the Snowmen to a known carcinogen, and was not being held accountable at all. This was a perversion of the purpose and policy underlying FELA, and Cahill, & Marurer felt it had no choice but to do whatever was possible to provide some measure of justice for the Snowmen.
In October 1989 drafted the novel Complaint for the Snowmen and filed it in the federal district court in Manhattan. The Complaint admitted the Snowmen were not yet clinically ill, but asserted they should be entitled to the costs of yearly medical monitoring (so they could catch the earliest signs of cancer and hopefully treat it) and something for the mental anguish of having to live with time bombs ticking in their chests, time bombs that may never go off, but which they have to live with every day for the rest of their lives.
proceeded to battle the Railroad for the seven years it took to go through discovery (voluminous document production and depositions), the jury trial before Judge Whitman Knapp, and the appeal to the Second Circuit. After hearing the plaintiff’s evidence, Judge Knapp dismissed the case on purely legal grounds, confirming the state of the law that unless and until the Snowmen become clinically ill, they could not recover anything.
The United States Court of Appeals for the Second Circuit, however, issued a ground- breaking decision that expanded the boundaries of tort law to allow for the Snowmen to recover damages now for medical monitoring and mental anguish. And in the future, if and when they became clinically ill, the Snowmen would have a whole new cause of action for that diagnosed disease. Buckley v. Metro-North Com R.R., 79 F.3d 1337(2nd Cir. 1996).
However, that was not to be the end of this novel case. In November 1996 the United States Supreme Court granted a Writ of Certiorari and scheduled the case for oral argument in February of 1997. filed the brief and then argued the appeal on February 18, 1997. On June 23, 1997 the Supreme Court issued its ruling in the Snowmen of Grand Central Terminal case.
The Snowmen case raised two novel questions the Supreme Court had never ruled on before: whether railroad workers who are exposed to a toxic substance but do not yet have any symptoms of toxic disease are entitled to recover (a) for emotional distress and (b) for medical monitoring.
The Supreme Court held that such a worker cannot recover for emotional distress “unless and until he manifests symptoms of a disease” and cannot recover the costs of medical monitoring in a lump sum. The Court left open the door for possible recovery of medical monitoring costs in some form other than a lump sum, as for example a court-monitored fund. Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997).
The important points of this landmark decision are:
Thus, by bringing this case, Cahill & Perry, P.C. succeeded in protecting railroad workers’ future legal rights for toxic exposure and cleared the way for holding Metro-North accountable for any symptoms of asbestos disease the Snowmen of GCT develop in the future.
And in fact, six years later, the United States Supreme Court used the Snowmen’s case as the basis for affirming an award of damages to railroad workers who exhibit symptoms of asbestos disease. Ayers was a FELA case where the workers had been awarded damages for fear of developing asbestos cancer in the future, and the Supreme Court upheld the jury verdict in favor of the workers by expressly following the path marked in Buckley.
We established the right of unions to strike when its members are working under hazardous conditions and successfully defended union officers against the Railroad’s claim for monetary damages and successfully fought for their reinstatement with full back pay.
On November 4, 1985 the union representing the conductors on the former Boston and Maine Railroad conducted a system-wide refusal to work under hazardous conditions. The same day the B&M Railroad obtained a temporary restraining order from the United States District Court in Boston ordering all employees back to work. The B&M fired the General Chairman and his Local Chairmen and at the same time filed a Civil Complaint seeking millions of dollars in damages from the General Chairman and his Local Chairmen, both individually and in their capacity as union officers.
Although the trial judge sided with the railroad, we convinced the United States Court of Appeals for the First Circuit in Boston to reinstate all the union representatives and to dissolve the liens the Railroad had placed on their homes for allegedly conducting an illegal strike. In a landmark Federal Railroad Safety Act opinion, B&M vs. Lenfest, et al.,799 F.2d 795 (1st Cir. 1986), the First Circuit Court of Appeals held that this was not an illegal strike but was a protected refusal to work under hazardous conditions pursuant to Section 10 of the Federal Railroad Safety Act. The Railroad immediately reinstated all the dismissed employees with seniority unimpaired. The dispute concerning back wages thereupon was referred to a Public Law Board.
The dismissed Local Chairmen were represented by former B&M General Chairman Roger Lenfest through several sessions, voluminous submissions, and oral arguments. Due to the perseverance of General Chairman Lenfest, the Public Law Board awarded back wages on February 27, 1990. The back wages were calculated to be approximately $400,000.00. Still, the Railroad balked at paying the damages.
After filing a lawsuit in July of 1991, to enforce the Public Law Board Awards, Cahill, & DiPersia engineered a full and final settlement with the Railroad’s Law Department which required it to pay all the lost wages to the Local Chairmen in weekly payments by December, 1991. All the former B&M Local Chairmen now have received all of the back time to which they were entitled. In addition, the Railroad’s action for civil damages against the Local Chairmen was dismissed.
The courage of these union officials and the perseverance of their General Chairman resulted in the first lawful refusal to work under the Federal Railroad Safety Act. We congratulate them on the successful conclusion of their six-year battle against unsafe working conditions.
Read the judgment.
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