Railroad worker settles $2 million case for $34,000

Michelle Massey, East Texas Bureau Oct. 3, 2007, 11:12am

Reed Morgan

MARSHALL -- Last year former railroad worker James Smith sued Union Pacific, seeking more than $2 million as compensation for exposure to the toxic chemicals he blames for his leukemia.

But in January, Smith and Union Pacific agreed to settle the suit for $34,000, significantly less than Smith had originally asked for.

After several months of squabbling over the wording of the settlement agreement, a federal magistrate has stepped in and given Smith a deadline to sign his name to the settlement.

Smith filed the original complaint against Union Pacific Railroad on March 23, 2006, in the Marshall Division of the Eastern District of Texas. According to court records, Smith claims he was exposed to carcinogenic chemicals during a 30-plus year career as a manager of Union Pacific's yard operations to the Longview and Texarkana yards. He believes his diagnosis of hairy cell leukemia in March 2003, was a result of Union Pacific's negligence in allowing the toxic chemical exposure.

Both Union Pacific and Smith agreed to the settlement terms in late January but have since been fighting over the wording of the release documents. In a hearing on Oct. 1, Magistrate Judge Charles Everingham sided with the railroad company and ordered the plaintiff to sign the documents within 15 days or the court would fine him $2,500.

In the original complaint, Smith states his employer was negligent by failing to provide a safe work environment, safe methods to work, protective breathing apparatus and proper instructions, training, warning and supervision. He also alleges that Union Pacific was negligent by failing to warn about the risks of exposure, failing to provide medical screening or monitoring, and "exposing plaintiff to dangerous levels of toxic chemicals when it knew or should have known the risks of harm."

The original suit sought more than $2 million in compensatory damages for lost wages and benefits, loss of earning capacity and seniority time, physical pain and suffering, mental anguish, disfigurement, loss of physical function, medical expenses and loss of enjoyment of life.

Prior to the settlement negotiations, in December 2006 Union Pacific filed a motion for summary judgment. The defendant argued Smith's claims against Union Pacific are barred by the three-year limitation period provided by the Federal Employers' Liability Act. Medical records show Smith was first diagnosed with a form of cancer on March 3, 2003. On March 19, 2003, he saw a second doctor for "his recently diagnosed, previously untreated hairy cell leukemia."

The case was filed on March 23, 2007, just passing the three-year limitation period.

The National Cancer Institute describes hairy cell leukemia (which looks "hairy" under a microscope) as a "cancer of the blood and bone marrow. This rare type of leukemia gets worse slowly or not at all." Demonstrating the rare occurrence of the disease, the Mayo Clinic says each year only about 600 people are diagnosed with this form of leukemia.

In the court documents, Smith alludes to what he believes could be a possible source of his illness, saying he "remembers always smelling irritating fumes during his time in the train yard," and says he was exposed to "strong diesel fuel and creosote fumes on a daily basis for the 37 years he was employed by Union Pacific."

Shortly after the motion for summary judgment was filed, the settlement agreement was announced. Although Union Pacific Railroad Company denies the allegations presented by Smith, it has agreed to settle the case for a gross payment of $34,000.

The release agreement details that about $6,500 of the settlement money will reimburse the Railroad Retirement Board for Smith's benefits paid under the Railroad Unemployment Insurance Act. Union Pacific will also pay all past medical expenses, doctors and hospital bills incurred due to Smith's injuries.

However as his illness progresses, it is Smith who will be responsible for all future medical expenses. He is also be responsible for all of his costs and attorney fees associated with his allegations.

Union Pacific filed documents with the court to enforce the settlement agreement in early August, stating the plaintiff refuses to sign the settlement papers. Smith responded stating the documents contained an overly broad release.

He proposed an alternative agreement, which provides only release regarding claims associated with hairy cell leukemia and a statement that Union Pacific will not retaliate due to this litigation. Stepping in to end the argument, Magistrate Everingham ordered Smith to sign the release.

Representing the plaintiff are attorneys S. Reed Morgan and Mark Chadick of the law firm Morgan and Chadick located in Comfort, Texas, and Pine Bluff, Ark.

Case No.: 2:06cv00113

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