Hedgecorth v. Union Pacific R. Co.

Citation210 S.W.3d 220
Decision Date22 August 2006
Docket NumberNo. ED 86817.,ED 86817.
PartiesTimothy P. HEDGECORTH, Plaintiff/Respondent, v. UNION PACIFIC RAILROAD COMPANY, Defendant/Appellant.
CourtCourt of Appeal of Missouri (US)

Patrick J. Hagerty, St. Louis, MO, for respondent.

Tracy J. Cowan, Karen M. Volkman, Thompson Coburn LLP, St. Louis, MO, for appellant.


Plaintiff, a railroad employee, filed a lawsuit against his employer, the defendant railroad, under the Federal Employers' Liability Act [FELA], 45 U.S.C. sections 51, et. seq., to recover damages for personal injuries suffered from exposure to asbestos. The jury returned a verdict in plaintiff's favor upon which the trial court entered judgment. On appeal, the railroad claims that the trial court erred 1) in denying its motion for JNOV because, it argues, plaintiff's evidence established only a mere possibility of exposure to asbestos, and 2) in refusing to give the railroad's fear of developing cancer instructions. We affirm.

1. The Parties

Plaintiff, Timothy P. Hedgecorth, was an employee of defendant, Union Pacific Railroad Company (Union Pacific), and its predecessor, Missouri Pacific Railroad Company (Missouri Pacific), from 1971 through the time of trial. Missouri Pacific and Union Pacific merged in the mid-1980s. From 1971 until 1983, plaintiff worked on the fifth floor of Missouri Pacific's twenty-two-story office building in St. Louis, Missouri. From 1983, until the building closed in 2004, plaintiff worked on other floors in the building.

2. Chronology

Prior to 1970, insulation-wrapped pipes ran under the building's ceilings. These pipes were later covered by dropped ceilings. Sometime after 1971, Missouri Pacific engaged in a remodeling project that involved removing the dropped ceilings and drilling through the floors to run computer wiring.

When Missouri Pacific was removing the dropped ceiling on the fifth floor and drilling through the sixth floor to the fifth floor ceiling in order to run the computer wiring, plaintiff was working on the fifth floor. When the ceiling was removed, the insulation-wrapped pipes in the ceiling were exposed. The insulation around the pipes was in very poor condition, chipping and coming loose. During that construction, which lasted close to a year, dust and larger particles would fall from the ceiling onto plaintiff's and his co-workers' desks. Every morning, plaintiff and his co-workers would have to wipe away a thick, heavy coating of dust and other particles on their desks with wet towels. The dust and debris collected on the desks several times a day.

In January 1988, Harmon Engineering Associates, Inc. conducted an asbestos survey of the building. Harmon found white to gray paper type insulation material on the straight portion of almost all steam piping and approximately half of the domestic water piping. All forty-three samples taken of this material contained asbestos ranging from fifty-five to one hundred percent. Harmon found white, gray or tan cementitious pipe fitting insulation on the pipe joints, fittings, and valves of almost all of the steam, chilled water, and domestic water piping. Fifty-one of fifty-two samples of this material contained asbestos ranging from twenty to seventy-eight percent. The water piping insulation was moderately friable in fair to poor condition, and was found above the ceiling in the occupied floors one through twenty-two. The steam piping insulation was also moderately friable in fair to poor condition, and was found in the main pipe chase. Additionally, there were asbestos-wrapped chilled water pipes in the main pipe chases and branches to the air handling units on each floor.

The survey reported that although the pipe insulation in the ceiling was protected by the dropped ceiling, the potential for exposure may be increased when disturbed by physical damage or by improperly conducted maintenance operations. The survey recommended the removal of the asbestos-wrapped pipes above the dropped ceilings on all floors.

The "Union Pacific St. Louis Office Building Asbestos Operations and Maintenance Plan" (the Asbestos Plan), dated January 1990, indicated that most of the pipe and duct insulation in the building contained asbestos greater than one percent by volume. The Asbestos Plan assessed the condition of the asbestos-containing materials in the building from "fair" to "significantly damaged." The Asbestos Plan indicated that routine maintenance tasks could disturb existing asbestos-containing pipe and duct insulation, including electrical service connections, cable pulling through pipe chases, conduit runs through pipe chases, sprinkler system repair, HVAC equipment balancing, and any work in which asbestos insulation materials could be accidentally or intentionally disturbed.

In 1996, AMI Group, Inc. provided a Periodic Reassessment of asbestos in the building for Union Pacific. The reassessment indicated that the pipe/duct insulation in the attics was in poor condition with large amounts of debris and dust, which was a cause for concern because the dust was pulled down the pipe chases where it had the potential to spread throughout the building.

In the late 1990s, Union Pacific began the process of having contractors remove asbestos from the building. Among other notices, Union Pacific notified employees that asbestos was being removed from the building, including the fifth floor in the area where plaintiff had previously worked, as well as the eighth floor computer room where plaintiff was then working. Union Pacific also announced that asbestos was being removed from the air handling system.

Prior to July 2000, plaintiff had a chest x-ray taken that was positive for asbestosis. On July 3, 2000, plaintiff consulted Jill Ohar, M.D., a board-certified physician in internal medicine and pulmonary medicine, who had researched and published in the area of asbestos-related lung diseases. At the time of plaintiff's examination, Dr. Ohar was a pulmonary specialist at St. Louis University. Dr. Ohar advised plaintiff that he had a mild case of asbestosis, and described the serious health problems, including cancer, that were associated with asbestos exposure.

In her videotaped deposition at trial, Dr. Ohar explained asbestosis as the scarring in the lungs that is caused by the inhalation of asbestos fibers and the resulting inflammation. Dr. Ohar testified that inhalation of asbestos fibers causes an inflammatory response in the lungs. Some fibers are cleared, but a large number are retained in the lungs and continue to incite ongoing inflammation that eventually results in scarring. Dr. Ohar further explained that to make a diagnosis of asbestosis, there must be 1) inhalation of asbestos fibers or an exposure, 2) a minimum latency period of ten years, and 3) x-ray evidence of scarring in the lungs or pathologic evidence. Dr. Ohar elaborated that the latency period is required because it takes at least ten years for the scarring to develop from the inflammation caused by inhaled fibers.

Dr. Ohar testified that she obtained an exposure history from plaintiff. Plaintiff told her about the constant remodeling and how he would enter his work area and find his computer and desk covered with thick dust from the remodeling. He also told her about Union Pacific's subsequent efforts to clean out asbestos tiles and remove asbestos from the dropped ceiling and around pipes above him. Dr. Ohar reported that plaintiff's x-ray showed mild scarring on the lungs and that two other doctors who read the x-ray, including a board-certified radiologist and a B-reader, concurred.

Dr. Ohar gave her opinion to a reasonable degree of medical certainty that plaintiff had a very mild case of asbestosis on July 3, 2000. She based her opinion on her examination and testing of plaintiff; plaintiff's description of his history of asbestos exposure; the latency period; the radiographic findings, including the chest x-ray that demonstrated abnormalities consistent with asbestosis; and her medical background. Dr. Ohar further testified that after reviewing the medical reports of Union Pacific's experts, her diagnosis was unchanged.

Dr. Ohar testified that exposure to asbestos under the circumstances described by plaintiff would cause plaintiff's asbestosis. Dr. Ohar also testified that if the dust on plaintiff's desk had been asbestos-related dust, then the asbestos waste could have caused exposure levels that were as bad as that caused by the actual removal of asbestos from the pipes. Dr. Ohar cited as authority several published papers that demonstrated that sweeping or cleaning up asbestos waste caused these similar exposure levels.


On February 1, 2002, plaintiff filed a petition against Union Pacific to recover damages under the Federal Employers' Liability Act [FELA], 45 U.S.C. section 51, et. seq., for his injuries from asbestos exposure. The case was tried before a jury. During the instruction conference, Union Pacific offered two not-in-MAI instructions addressing recovery of damages based on emotional distress from fear of developing cancer, which the trial court rejected. The jury returned a verdict assessing eighty percent fault to Union Pacific and twenty percent fault to plaintiff. The jury found the total amount of plaintiff's damages, disregarding plaintiff's fault, to be $300,000.00. The trial court entered judgment against Union Pacific in the amount of $240,000.00. Union Pacific raises two points on appeal.1

I. Submissibility

In its first point, Union Pacific asserts that the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiff failed to make a submissible case in that plaintiff's...

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