The Diesel Particulate Matter Litigation

Diesel engines create diesel exhaust particles (diesel particulate matter). Working around harmful diesel fumes can be like unknowingly and unwillingly smoking cigarettes.

A questionnaire sent to retired members of the MTA surface division (buses) showed that 41.7% of the respondents suffered from cancer, though only 16.4% were smokers. 67% were exposed to diesel particulate matter more than 6 hours a day, thoughout their long careers.

The Court of Appeals of the District of Columbia performed a review of the studies on diesel fumes, and concluded that the overwhelming weight of the epidemiological evidence establishes that diesel particulate matter causes significant adverse health effects.

The Mine Safety Health Administration analyzed 47 epidemiological studies from 1957 to 1999, as well as two meta-analyses that aggregated data from the earlier studies.  An association between occupational Diesel Particulate Matter exposure and an excess prevalence of lung cancer was reported in 41 of the 47 studies reviewed by MSHA.

The Court of Appeals stated that:

"studies of both cohort and case-control design have quite consistently shown that chronic exposure to diesel exhaust, in a variety of occupational circumstances, is associated with an increased risk of lung cancer.  With only rare exceptions, involving too few workers and/or observational periods too short to have a good chance of detecting excess cancer risk, the human studies have shown a greater risk of lung cancer among exposed workers than among comparable unexposed workers."

There are also many studies proving an increased risk of cardiovascular disease, like heart disease and stroke; and respiratory diseases, like chronic obstructive pulmonary disease.

These NYC bus workers have not received workers compensatiton or disability benefits, and are entitled to compensation for their occupational injuries.

The manufacturers of the diesel bus engines that emit the fumes were told by the EPA, at least by 1988, that the diesel particulate matter from their engines was causing cancer.

They did nothing about it, and fought higher emissions standards, knowing that people were getting cancer from their products.

Children in the Bronx are getting asthma and other lung diseases at much higher rates than other counties, because of the diesel fumes from trucks and buses in their neighborhoods.

California is trying to force the manufacturers to retrofit their buses and trucks with filters to remove the harmful particles.

We are doing our part to help achieve that goal, here in New York. We have sued the manufacturers of diesel engines and diesel buses, on behalf of the workers using their products who got sick.

The Chrysler Engine Oil Sludge Products Liability Litigation

Chrysler's bankruptcy has served to remove from court a class action, represented by our firm, on behalf of all NY State residents who purchased certain vehicles containing 2.7 liter engines, such as the 1998, 1999, 2000, 2001, 2002, and 2003 Chrysler Sebring and Concord, Dodge Intrepid and Stratus.

Over one million vehicles were made with that engine, and there are thousands of people whose engines have seized and become worthless due to the oil sludge damage.

Sludge clogs oil passageways in the cylinder block. These passageways, which are about the circumference of pipe cleaners, are like arteries. Once the passages are clogged, moving parts such as valves, pistons and camshafts are starved of oil. They can seize, causing engine-destroying failures.

The Center for Auto Safety asked Chrysler to extend the engine warranty to 10 years and unlimited mileage on 2.7-liter V-6s used in a variety of vehicles. There are thousands of claims against Chrysler regarding that engine.

The Durst Law Firm is a professional corporation of trial lawyers.

We represent thousands of individuals who have been injured by defective products.

We are proud to say that lawyers from our office have recent verdicts of $16 million, for asbestos-diesel exposure, $12 million, for lead exposure, and $4.9 million, for defective machine guarding.

We focus exclusively on individuals with serious injuries. If you are seriously injured, we will use all our skills and experience to find every possible way to help you.

We are very proud of our role in the legal process.

The website also has research tools for other trial lawyers.

John Durst has published books for lawyers on Discovery, Cross-Examination, Products Liability and Evidence, as well as numerous articles on other areas of personal injury law. They are available from Lexis Publishing. They are made available here free of charge for the temporary research use of our referring attorneys.

Case Law News

Important Case - - Fasso v Doerr - Court of Appeals - 2009 NY Slip Op 01320

This case establishes important law which must be considered in drafting a Release in virtually every personal injury case where a medical lien exists.

The injured party in Fasso sued her doctor for medical malpractice. She had medical expenses of $780,000 that were paid by her health insurance carrier. The carrier moved to intervene in the medical malpractice action to assert an equitable subrogation claim against the doctor for reimbursement of their payments. The plaintiff argued that since there was only 2 million in coverage for the doctor, there would be nothing left to satisfy the subrogation claim. At trial, the insurer said it would rely upon the plaintiff 's proof. The plaintiff reached a settlement of $900,000, and the plaintiff and defendant agreed to dismiss the subrogation claim, without the insurer's participation in the negotiations or consent. The insurer moved for a mistrial to obtain their own witnesses for the trial. The court denied the mistrial, approved the settlement, and dismissed the subrogation complaint, holding it did not survive settlement of the case. The Appellate Division affirmed.

The Court of Appeals reversed. The doctrine of equitable subrogation holds that an insurer who pays money to an insurer can recover that money from the wrongdoer who caused the injury. As a corollary, if the injured party receives money from the wrongdoer that duplicates what was paid by the insurer, the insurer may recoup that money from its insurer. A limitation on the rule is the "made whole" rule, which holds that if the funds for compensation are limited, the injured party's claim gets paid first, taking precedence over the subrogation rights of the insurer. "If the recovery the injured party receives, whether determined by settlement or verdict, is greater than the wrongdoers assets and available insurance coverage, there is nothing left for the insurer to execute its subrogation rights against and the made whole rule prevents the insurer from sharing in the insured's judgment or recovery."

In Fasso, there was 1.1 million in remaining insurance coverage after the settlement. It was therefore error to dismiss the subrogation claim. The right to subrogation cannot be altered by the insured. The wrongdoer and the insurer cannot agree to terminate the insurers claim without its consent. The Court of Appeals therefore remanded the matter back to the trial court for a trial on the subrogation claim.

Comment

The Court of Appeals accepts a settlement which apportions the money to pain and suffering, not medical expenses. Whether stating in the Release "this settlement is for pain and suffering, only", eliminates the health insurer's right to reimbursement from the settlement fund is an important question. It is important to consider this issue carefully and explicitly in the written Release in every case.

If the Release states it covers only pain and suffering, the subrogation claim still exists. The health insurer could then commence a subrogation lawsuit against the wrongdoer.

Phenergan Suits Not Preempted

Directly injecting the drug Phenergan into a patient’s vein creates a significant risk of catastrophic consequences. A Vermont jury found that petitioner Wyeth, the manufacturer of the drug, had failed to provide an adequate warning of that risk and awarded damages to respondent Diana Levine to compensate her for the amputation of her arm. The warnings on Phenergan’s label had been deemed sufficient by the federal Food and Drug Administration (FDA) when it approved Wyeth’s new drug application in 1955 and when it later approved changes in the drug’s labeling.

On March 5, the Court held that the FDA’s approvals DO NOT provide Wyeth with a complete defense to Levine’s tort claim