Court of Appeals of Ohio, Eighth District, Cuyahoga
KEVIN E. HOWELL, Plaintiff-Appellee,
CONSOLIDATED RAIL CORPORATION ET AL., Defendants-Appellants.
Appeal from the Cuyahoga County Court of Common Pleas, Case
& Murphy, P.L.L.C., Michael L. Torcello, Christopher M.
Murphy, and Colleen M. Blinkoff; McDermott & Hickey,
L.L.C., and Kevin E. McDermott; and Gavin Law Firm, L.L.C.,
and William P. Gavin, for appellee.
White, L.L.C., Kevin C. Alexandersen, and Holly
Olarczuk-Smith; and Mayer Brown, L.L.P., and Dan Himmelfarb,
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, JUDGE
Defendant-appellant Consolidated Rail Corporation
("Conrail") appeals from a judgment on the jury
verdict and the order granting plaintiff-appellee Kevin E.
Howell's ("Howell") motion for a protective
order and excluding trial testimony of a witness. For the
reasons that follow, we affirm.
and Substantive History
2} Howell worked for Conrail from 1975 until his
retirement in 2013. Howell initially worked in track
maintenance and later transferred to the signal department,
where he worked as a signal maintainer. Howell's job
involved repairing and maintaining railroad signals and
signal boxes alongside railroad tracks throughout Northern
and Central Ohio. Asbestos boards, also called transite
boards, were used inside many of the signal boxes. Howell
routinely worked with and around these boards, drilling holes
in the boards and breathing in the dust that had been
released into the air. Howell also worked alongside tracks
where diesel equipment worked in a way that disturbed
silica-containing rock, called ballast, along the road beds.
As such, Howell was exposed to silica dust and diesel
exhaust. Howell's work environment lacked proper
respiratory protection, dust control measures, or warnings
about these dangerous conditions.
3} Howell began smoking when he was 17. For most of
his adult life, he smoked at least one pack of cigarettes a
day. Howell quit smoking in February 2018.
In April 2015, Howell was diagnosed with lung cancer and lung
disease. On June 3, 2015, Howell filed a complaint against
Conrail,  alleging that his condition was the result
of his exposure to asbestos, asbestos dust, and toxic silica
and diesel fumes and dust over the course of his employment.
Howell sued Conrail under the Federal Employers Liability Act
("FELA"), 45 U.S.C. 51-60, which imposes liability
on a railroad for injuries to an employee resulting from the
railroad's negligence. Conrail moved for an
administrative dismissal, arguing that Howell had not
complied with R.C. 2307.92(C), the Ohio asbestos statute.
R.C. 2307.92(C) requires a plaintiff in an asbestos action
based upon lung cancer who is a smoker to make a prima facie
showing that his or her exposure to asbestos is a substantial
contributing factor to the medical condition. The trial court
denied Conrail's motion, and this court affirmed the
denial of Conrail's motion to dismiss. Howell v.
Conrail, 2017-Ohio-6881, 94 N.E.3d 1127 (8th Dist).
6} An eight-day jury trial was held. Howell called
six witnesses: a former coworker, an industrial hygienist, an
occupational medicine physician, Howell's treating
physician, Howell's wife, and Howell himself. Conrail
called no witnesses at trial. At the conclusion of the trial,
Conrail moved for a mistrial. The trial court denied this
motion. The jury returned a verdict in favor of Howell,
finding that Conrail was 60 percent responsible for
Howell's cancer and Howell was 40 percent responsible.
The jury awarded Howell damages in the amount of $4, 508,
488.40. The trial court reduced the award to $2, 705, 093.04
due to Howell's comparative fault. By stipulation and
upon Conrail's motion for remittitur, the verdict was
amended to $2, 334, 139.81.
7} Conrail appeals, presenting the following
assignments of error for our review:
I. The trial court erred in denying the motion for a
directed verdict made by Conrail, because the evidence that
any accidental exposure to asbestos or other toxic
substance was a factual cause of the lung cancer of
plaintiff-appellee Howell, a lifelong smoker, was
insufficient as a matter of law.
II. The trial court erred in precluding Conrail from
calling a former employee, Gary Blum, who would have
testified that Howell spent little time working around
III. The trial court erred in permitting Howell to offer
irrelevant and inflammatory evidence of asbestos-related
violations of regulations issued by the Occupational Safety
and Health Administration ("OSHA") at a Conrail
facility in Delaware, where Howell never worked.
IV. The trial court erred in permitted Robert Exten,
Howell's treating physician and a witness who had no
training or experience in the subject, to offer an expert
opinion that Howell's lung cancer was caused by
exposure to asbestos, silica, and diesel exhaust.
V. The trial court erred in failing to prevent or remedy
Howell's counsel's arguments during rebuttal
summation that Conrail had not called any witnesses and
that its lawyers were not telling the truth and should not
VI. Conrail is entitled to a new trial because of the
cumulative effect of the foregoing trial errors.
8} In its first assignment of error, Conrail asserts
that the trial court erred in denying its motion for a
directed verdict because there was insufficient evidence that
Howell's exposure to asbestos was a factual cause of his
lung cancer. Specifically, Conrail argues that Howell offered
no evidence that any employment-related exposure to asbestos,
silica, or diesel exhaust was a necessary or sufficient cause
of his lung cancer. Instead, Howell presented evidence that
this exposure contributed to his lung cancer and interacted
synergistically with his smoking to cause his lung cancer.
9} In the alternative to the argument in its first
assignment of error, Conrail argues that the trial court made
four critical errors - presented as his second, third,
fourth, and fifth assignments of error - that, alone and in
combination, deprived it of a fair trial.
Motion for a ...