(The following story by Ben Schwartz appeared on the North Platte Bulletin website on March 4, 2010.)
NORTH PLATTE, Neb. — Lincoln County District Court John Murphy dismissed the lawsuit of a man who claimed Union Pacific exposed him to toxic chemicals.
Murphy cited the Nebraska Supreme Court’s finding in McNeel v. Union Pacific Railroad Company (2008) in his decision to dismiss Lavern Golden’s lawsuit against UP.
In McNeel, the Nebraska Supreme Court found that in a toxic tort case the toxin must be identified.
Golden and his attorney never identified the toxin he was allegedly exposed to, and could not prove to the Supreme Court’s satisfaction that the brain damage he suffered was a result of exposure to toxins.
However, Murphy wrote, “This Court believes that McNeel is too broadly decided and that it precludes any plaintiff who suffers inhalation damage from proceeding in his case simply because they are unable, as they will be in most cases, to identify the specific toxin that they inhaled.”
He continued, “In the (Golden) case there is sufficient evidence… that the plaintiff suffered some injury after inhaling some substance.”
Murphy urged Golden to appeal his decision to the Nebraska Supreme Court “so that McNeel may be reconsidered so that individuals who do suffer toxic damage may pursue their injury in the courts of these states without having to first specifically identify the toxin that caused the injury.”
The lawsuit
Even if Golden’s case is not appealed further, it has already traveled a long and circuitous road. Initially filed in Douglas County Feb. 24, 2004, the case was transferred to Lincoln County later in 2004.
Additionally the case was dismissed for lack of prosecution and reinstated three times, in 2005, 2007, and 2008.
Golden asserted in his complaint that on two occasions he was exposed to toxic fumes while on the job for Union Pacific.
The first incident was March 12, 2001. Golden’s complaint stated he was westbound on a train between Sutherland and Ogallala when a defect in locomotive UP8240 caused him to be exposed to toxic fumes and gases.
The second instance was January 19, 2002, when Golden was again on a westbound train. Near Ruhton, Nebraska, a defective monitor in the locomotive exposed him to toxic fumes and gasses, according to the complaint.
As result of the exposure to the fumes, Golden stated, he was diagnosed with “post-traumatic encephalopathy.” Simply put, encephalopathy is a brain injury.
Golden said UP violated federal requirements by failing to provide him with a safe work environment. He sued for medical expenses, lost wages, and damages.
In an answer filed March 2, 2004, UP alleged that it was not faulty equipment that caused Golden’s exposure, if there was any, but rather the plaintiff’s own negligence.
An affidavit from Dr. Janet Bernard (who identified herself as Golden’s physician since 1986) said after his exposure to the fumes, Golden suffered from headaches, dizziness, short-term memory loss, poor energy, and lightheadedness.
Bernard stated that Golden had never exhibited these symptoms prior to the exposure to the fumes.
Bernard wrote, “It is my opinion, to a reasonable degree of medical certainty, that the symptoms experienced and injuries sustained by Mr. Golden are directly attributable to the workplace exposure incidents on March 12, 2001, and January 19, 2002.”
On October 12, 2009, UP filed a motion to exclude Bernard’s testimony because she lacked the required scientific knowledge to make the determination that toxic fumes caused the injuries.
Murphy upheld that motion when he dismissed the lawsuit, saying that he was bound by the McNeel decision.