Ohio’s Eighth District Court of Appeals recently 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. In
his work for the railroads, Howell was exposed to asbestos inside railroad
signal case alongside railroad tracks in Crestline, Shelby and New London,
Ohio as well as other locations in the state. Howell claimed that as a
part of his job, he was required to drill holes in dusty, asbestos-containing
boards and work closely with diesel-powered railroad track equipment which
constantly stirred up dust and fumes alongside the railroad tracks where
he did his work. Howell was never provided with any respiratory from the railroad.
Shortly after his retirement, 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. Because he was also a cigarette smoker,
Ohio’s asbestos statute required that he submit evidence from his own physician that asbestos
was a “substantial contributing factor” in the development
of his lung cancer, as well as evidence that he had “substantial
occupational exposure to asbestos” while working for the railroad.
Without this proof, Howell’s claim would be dismissed.
Howell submitted affidavits from his coworkers and the report of his own
Dr. Robert Exten to meet the requirements of the law. Dr. Exten concluded that Howell did,
in fact, have “substantial occupational exposure to asbestos”
and that “asbestos, silica dust, and diesel fuel exhaust fumes”
were “substantial contributing factors” in causing his cancer.
The trial court ruled in Howell’s favor allowing his case to proceed
to trial. The railroads, however, appealed the decision delaying Howell’s
trial for almost a year.
Mr. Howell’s position, written and argued primarily by
Mike Torcello, along with the otherattorneys at Doran & Murphy, was persuasive. The appellate court recently decided in Howell’s
favor finding that he had submitted all the evidence required by Ohio
law and his case could proceed to trial. The railroad may now appeal to the
Ohio Supreme Court and further delay Howell’s day in court. For a complete copy of
the appellate court’s decision, click