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Howell v. Consolidated Rail Corp.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

KEVIN E. HOWELL, Plaintiff-Appellee,

          Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-15-846529

          Doran & 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.

          Burns White, L.L.C., Kevin C. Alexandersen, and Holly Olarczuk-Smith; and Mayer Brown, L.L.P., and Dan Himmelfarb, for appellants.



         {¶1} 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.

         Procedural 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.

         {¶4} In April 2015, Howell was diagnosed with lung cancer and lung disease. On June 3, 2015, Howell filed a complaint against Conrail, [1] 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.

         {¶5} 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 asbestos.
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 be believed.
VI. Conrail is entitled to a new trial because of the cumulative effect of the foregoing trial errors.

         Law and Analysis

         {¶ 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.

         I. Motion for a ...

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