In a recent decision, Ohio’s Eighth District Court of Appeals ruled in favor of a Doran and Murphy client suffering from lung cancer. Kevin Howell worked for CSXT, Consolidated Rail Corporation and Penn Central in the railroad signal maintenance department for 38 years. During his time working for the railroads, Mr. Howell was exposed to asbestos inside railroad signal case alongside the tracks throughout Northern and Central Ohio. Mr. Howell claimed that work on the railroad often would require him to drill holes into asbestos boards, also called transite boards, in addition to being exposed to diesel fumes, and silica-containing rock. He was never provided with any respiratory protection, dust control measures, or warnings about the dangerous conditions.
Shortly after retiring, Mr. Howell developed lung cancer and brought suit against his railroad employers under the FELA claiming that his exposures to asbestos, diesel exhaust and silica dust while working for the railroad where, in part, a cause of his cancer. After the conclusion of an eight-day jury trial, the jury returned a verdict in favor of the Plaintiff, awarding him: $2,038,488.40 for medical expenses to date, $970,000.00 for future medical expenses, $1,000,000.00 for pain and suffering to date, and $500,000 for future pain and suffering; resulting in a total verdict of $4,508,488.40. The verdict was reduced for the 40% and comparative negligence found by the jury and by a stipulation of the parties regarding the medical expenses.
Following trial, Conrail promptly filed an appeal with the Ohio’s Eighth Appellate District Court of Appeals, presenting six assignments of error for the court to review, calling for the for the jury’s verdict to be reversed. The appellate court did not find that there was substantial evidence to overturn the previous ruling and to award Conrail another trial, affirming the decision of the lower court. It held that Howell met the standard of evidence required by the FELA. That is, there was sufficient evidence that Conrail’s negligence played “any part, even the slightest” in the development of Mr. Howell’s lung cancer. The court also determined that the trial court was within its discretion to preclude the railroad’s witness from testifying, to permit the inclusion of OSHA evidence, to allow Mr. Howell’s treating physician to testify as to causation, and to accept Howell’s closing argument. The appellate court affirmed the findings of the trial court and overruled the railroad’s appeal holding that Conrail had already had a fair trial. The railroad has filed a motion for reconsideration. We will keep you posted.
