Diesel Exhaust Emissions: A New Liability


In August 2014, Dorata Nigro won a landmark job-related death claim before the Workers Compensation Board regarding the death of her husband, Anthony Nigro. Mr. Nigro was a bus mechanic with the Metropolitan Transportation Authority (MTA) in New York for 28 years and was diagnosed with lung cancer in 2012, shortly after his retirement. Dorata Nigro claimed that her husband's lung cancer was a result of his occupational exposure to diesel exhaust emissions.

Mrs. Nigro initially joined a civil suit in a case brought by New York transit workers against General Motors and other makers of diesel engines for personal injury and wrongful death. In that case, the transit workers argued that the engine makers were liable for diesel-related injuries because the manufacturers of the engines failed to provide adequate warnings regarding the hazards associated with inhaling fumes. The New York Court of Appeals determined that the engine companies could not be found liable for such injuries because the engines were manufactured in accordance with EPA emissions standards and are protected under the federal Clean Air Act.

After the New York court dismissed the case, Mrs. Nigro filed a worker's compensation claim alleging that her husband's occupational exposure to diesel exhaust emissions was a "substantial contributing factor" to his development of lung cancer. Workers' Compensation Judge Jay Leibowitz agreed and ruled in favor of Mrs. Nigro. The Nigro family was awarded a weekly benefit of $773.00, approximately $100,000.00 in retroactive payments, and $6,000.00 for funeral expenses. This is the first case where any court has recognized a causal relationship between occupational exposure to diesel exhaust emissions and an injury.

In contrast, the scientific and medical communities have already adopted the notion that diesel exhaust emissions are harmful to humans. In March 2012, a major study published by the Journal of the National Cancer Institute followed 12,000 miners for 50 years and found that those exposed to the highest levels of diesel exhaust emissions, with no history of smoking, were seven times more likely to develop lung cancer than those exposed at the lowest levels. Later the same year, the World Health Organization (WHO) upgraded diesel exhaust from a "probable carcinogen" to a "known human carcinogen," placing it on the same list as arsenic and asbestos. However, the U.S. Environmental Protection Agency (EPA) still identifies diesel exhaust as only "likely" to cause cancer to humans, in line with the classification of diesel exhaust as a "potential" occupational carcinogen by the National Institute for Occupational Safety and Health (NIOSH).

As expected with any potentially precedent setting decision, Judge Leibowitz's ruling has stirred discussions in the legal arena with some analysts already comparing the case to the early beginnings of asbestos litigation. Many had anticipated a flood of diesel-related litigation after the WHO upgraded the carcinogenic classification of diesel exhaust, but various regulations and legal hurdles kept the flood gates closed. Although the full ramifications of Mrs. Nigro's case are yet to be known, the outcome has undoubtedly created a chink in the armor that once insulated companies from liability. What is certain is that now, more than ever, manufacturers, suppliers, and employers are vulnerable to litigation related to diesel exhaust emissions.

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