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The Ninth Circuit Court of Appeals recently denied Burlington Northern Santa Fe's attempt to block a class-action lawsuit, enabling the hearing-damage-related suit filed by about 2,800 workers to move to trial.

Filed in March 2001, the lawsuit claims BNSF entered into a "secret deal" to provide workers hearing-damage claim settlements that were drastically lower compared with similar claims in actual court cases, according to a prepared statement. In exchange, lawyers agreed not to litigate the claims of present and future railroad clients.

The lawsuit aims to set aside releases workers signed when settling their claims and enable class-action members to again seek compensation for their hearing loss. The suit also seeks a refund of all attorneys' fees paid by plaintiffs, estimated to exceed $4 million.

As early as 1966, BNSF knew hearing loss from excessive noise was an occupational hazard, but failed to acknowledge the issue, according to the suit. When the railroad realized it faced hundreds of millions of dollars in exposure because of hearing-loss claims, it coordinated the lawyer deal to reduce liability, the suit claims.

After plaintiffs received class-action certification in July, BNSF and its law firm filed separate petitions in the appellate court to overturn the certification.