4 Diné file suit against railroad due to illness

By Bill Donovan
Special to the Times

WINDOW ROCK, March 15th, 2012

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F our Navajos, all former workers for the Burlington Northern Santa Fe Railroad, have filed a lawsuit claiming that the company failed to protect them from dangerous work conditions.

All four, who have been diagnosed with lung disease, claim their illness was caused by their exposure to unhealthy conditions on the job which damaged their lungs and respiratory systems.

The four plaintiffs in the case are Andrew Ashley of Houck, Jimmy Bowman of Window Rock, Jack Gilmore of St. Michaels and Hoskie Yonnie of Yah-Ta-Hey.

All four worked for years as trackmen and track machine operators for the Atchison, Topeka and Santa Fe Railroad, which is now part of BNSF.

The suit claims that the four had to work under unhealthy conditions, including exposure to toxic ballast rock, gravel, coal dust and fibers, all of which caused them to contract occupational lung diseases.

Over the past century, thousands of Navajos have worked for the railroad, helping to lay track and then later in other areas.

Gilmore said he began working for the railroad in 1943, followed by Yonnie in 1947, Ashley in 1968 and Bowman in 1969. All of them claim that as part of their working conditions, they had to work in areas where they were exposed to materials that were not healthy.

All four said they were unaware of the potential health problems that they could encounter by working with these toxic materials.

John Roven, who along with Los Lunas, N.M., law firm of Michael Sanchez and Cindy Mercer, said BNSF has to accept their role in causing these employees to suffer from their current health problems.

"While helping lay miles of railroad tracks in New Mexico and Arizona, these men worked with tools, heavy equipment and machinery that stirred up tremendous amounts of toxic particles and dust," he said.

"BNSF failed to provide ventilation, warnings and protection that constitutes a safe work environment. We believed the polluted dust, dusty and unhealthy conditions have impaired their enjoyment of life as well as their earning capacity and interfered with their right to a healthy retirement," he added.

Navajos who worked for the railroads basically had two jobs, he said, laying track or they would be promoted to be a machine operator.

Machine operators worked in cabs without ventilation or any kind of respiratory equipment spending their entire days breathing a cloud of dust, Roven said.

It wasn't until the 1980s, he said, that the railroad spent the money to provide ventilation and air conditioning and then, a decade or so later, respiratory devices to protect the workers.

Roven said he has been handling cases for the past five or six years on behalf of a number of Navajo railroad workers suffering from the same problems and has managed to get settlements.

Their suit comes just a week after the U.S. Supreme Court issued a decision dealing with railroad workers and their ability to sue for having contracted a lung disease because of unhealthy conditions on the job.

In that case, a railroad worker named George Corson claimed that after working for the railroad for 30 years under similar conditions experienced by the Navajo workmen, he contracted lung problems because of his exposure to asbestos in the work place.

Corson, however, didn't sue the railroad who employed him during that time. Instead he sued two companies - Railroad Friction Products Corp. and Viad Corp - the two companies that provided the asbestos products and didn't give workers any warning about how dangerous they could be.

The Supreme Court ruled against him, saying that Locomotive Inspection Act passed in 1911 protected companies that did business with railroads from suits like the one Corson filed.

However, that decision does not affect suits, like the one the four Navajos filed, Roven said, because they went after the railroad and not the asbestos companies.

The Federal Employees Liability Act allows workers to file suit against employers instead of asbestos manufacturers.

Roven said many of the thousands of Navajos who have worked for the railroad over the past 50 years may also have encountered health problems contracted because of their working conditions.

"The effects of harsh labor conditions on a worker's lungs and respiratory system often go unnoticed until years later," he said, adding that the symptoms of occupational lung disease include shortness of breath, chest pain, chest tightness and abnormal breathing patterns.

All of these, he said, could resemble other medical conditions which is why it is important to make sure that these kinds of problems are brought to the attention of the person's doctor.

He urged Navajo railroad workers who suffered these kinds of working conditions and who now have lung problems to contact his office because they may have legitimate claims against the railroad.

If the worker has died, the law still allows for cases to be brought, he said, but there is a three-year window after the worker's death as to when the suit can be brought.

He said elderly Navajos who are more comfortable speaking in Navajo should contact Ann Spencer at 928-313-0287. Others can call his office in Houston, Texas, at 713-465-8522.

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