Jury Rejects Cancer Patient’s Claims in Texas Railroad Tie Lawsuit

February 13, 2008

Jurors in Fort Worth, Texas, on Feb. 11 rejected a cancer survivor’s claim that toxic chemicals from a Texas railroad tie plant where her husband worked caused the disease that required the removal of her stomach.

Linda Faust had sued BNSF Railway Co. for at least $6 million. She never worked at the Somerville, Texas, plant but said she got cancer after 15 years of washing her husband’s chemical-tainted clothes and boots.

Jurors made their decision in the five-week trial after more than two days of deliberations. BNSF attorneys had blamed Faust’s condition on her half-pack-a-day cigarette smoking habit and a bacteria that causes stomach ailments.

“I think the verdict is wrong,” said Faust, who was not in court. “I know what (BNSF) did here.”

BNSF spokesman Patrick Hiatte said the company was pleased the jury ruled there was no reliable scientific evidence that Faust was exposed to levels of chemicals from the plant that would have caused her condition.

BNSF still faces lawsuits from hundreds of people – many in a class-action lawsuit – who blame the plant on various cancers, birth defects and property damage. Faust’s suit was the first to go to trial.

“We intend to continue to vigorously defend other cases like this one,” Hiatte said.

The month-long trial was in Fort Worth because that’s the headquarters of Burlington Northern Santa Fe Corp., which oversees BNSF. It sold the Somerville plant to Pittsburgh-based Koppers in 1995 but remains its largest customer. Somerville is about 90 miles northwest of Houston.

Faust said she was not in court because she was not feeling well. Her attorney, Jared Woodfill, said the verdict in the case likely hinged on Faust’s history of smoking.

“We knew that was the biggest hurdle we were facing,” he said.

Faust washed her husband’s stained clothes daily for nearly two decades. They were covered with coal-tar creosote, used to treat railroad ties to withstand weather and termites for up to 30 years. After her 1998 diagnosis, doctors removed her stomach, and now food moves directly to her intestines.

Faust’s attorneys had argued that BNSF, ignoring advice from the chemical manufacturer and its own legal department, failed to warn employees that creosote can cause cancer or provide them with protective gear. Her attorneys said the plant burned treated wood in boilers with no pollution control devices, sometimes at night so the community would not be alarmed by the black smoke.

But BNSF attorneys said no studies show that creosote causes stomach cancer and said manufacturers’ warnings about the product referred only to skin cancer. They said the plant burned treated wood with the proper permits and that studies show that doing so does not produce cancer-causing emissions.

Since the early 1980s, critics have blamed the plant for what they call a cancer cluster and birth defects, such as infants born with cleft palates. They say a study by Texas health officials that found no unusual incidence of cancer in Burleson County was flawed.

Faust’s case first went to court last fall but the judge declared a mistrial after a witness mentioned the other lawsuits.

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