Shesler v. Consol. Rail Corp.

• Decision Date: 24 January 2003
• Docket Number: No. 80950.,80950.
• Citation: 784 N.E.2d 725,2003 Ohio 320,151 Ohio App.3d 462
• Parties: SHESLER et al., Appellees and Cross-Appellants, v. CONSOLIDATED RAIL CORPORATION, Appellant and Cross-Appellee, et al.
• Court: Ohio Court of Appeals

784 N.E.2d 725

151 Ohio App.3d 462

2003 Ohio 320

SHESLER et al., Appellees and Cross-Appellants, v. CONSOLIDATED RAIL CORPORATION, Appellant and Cross-Appellee, et al.

No. 80950.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided January 24, 2003.

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Doran & Murphy, L.L.P., Michael H. Doran and Brian A. Goldstein, for appellees and cross-appellants.

Burns, White & Hickton and David A. Damico, for appellant and cross-appellee.

FRANK D. CELEBREZZE JR., Judge.

{¶ 1} The appellant, Consolidated Rail Corporation, appeals the judgment of the Cuyahoga County Court of Common Pleas, Civil Division, in which the lower court denied the appellant's motion for judgment notwithstanding the verdict, motion for new trial, motion to set off, and motion for remittitur.

{¶ 2} The appellees, Richard Shesler and Donald Speidel Jr., were employed by the appellant and its predecessors for over 40 years. During the course of their employment, the appellees worked as engineers in the appellant's yards and on the appellant's locomotives. Often, they worked up to 16 hours a day, 7 days a week, and traveled throughout the appellant's rail network.

{¶ 3} In time, it was discovered that the appellees had developed progressive respiratory symptoms, and subsequent evaluations determined that they had contracted asbestosis, a disease process consisting of fibrous scar tissue within the lung caused solely by the inhalation of asbestos fibers.

{¶ 4} As a result of this diagnosis, the appellees initiated the instant action with the lower court claiming that their injuries were a result of their unprotected exposure to asbestos during their employment with the appellant. Specifically, the appellees brought this action under the Federal Employers' Liability Act ("FELA"), Section 51 et seq., Title 45, U.S.Code, which requires rail carriers to provide a safe working environment and imposes liability for negligence when employees are injured.

{¶ 5} Additionally, the appellees brought this action under the Locomotive Inspection Act ("LIA"), Section 20701 et seq., Title 49, U.S.Code, which imposes absolute liability for rail carriers that use or allow to be used a locomotive whose parts and appurtenances are not in proper condition and safe to operate resulting in unnecessary danger of personal injury. Section 20701, Title 49, U.S.Code.

{¶ 6} At trial, the appellees presented several witness, both lay and expert, to bolster their contention that their injuries were caused by exposure to asbestos-related products during their employment with the appellant and its predecessors.

{¶ 7} First to testify was appellee Richard Shesler. Shesler's initial testimony related to his employment with the railroad, but he was prevented from testifying about the "composition of certain materials" alleged to contain asbestos because he allegedly did not have personal knowledge of the materials' composition, according to the lower court.¹

{¶ 8} Therefore, in order to establish a foundation for this line of testimony, appellee Donald Speidel Jr. took the stand. Speidel testified that (1) he worked on the railroad from 1947 until he retired in 1993; (2) he was able to identify asbestos on the railroad because he unloaded bags of asbestos on the railroad, the bags were marked "asbestos," that he observed bills of lading marked "asbestos," and he observed workers applying these bags of asbestos to the locomotives; and (3) he identified specific asbestos manufacturers as Johns-Manville and Owens-Corning.

{¶ 9} After establishing this foundation, the appellees recalled Shesler to the stand to continue his testimony. Thereafter, Shesler testified that he worked on the railroad for over 43 years and that he slept in bunkhouses above the area in which asbestos was being removed during engine repairs. Specifically, he testified that he witnessed laborers applying materials to locomotives and removing it from them during repairs. Last, Shesler testified that it was common practice on the railroad for employees to rest their feet on the water piping wrapped in the asbestos material. As a result of resting their feet on this piping, the material would become worn and deteriorated, thereby releasing asbestos-containing dust into the air.

{¶ 10} Further, the appellees introduced into evidence the appellant's responses to plaintiffs' request to admit. In sum, the appellant admitted the following: (1) asbestos-containing products were used to cover water lines on EMD Diesel locomotives utilized during the years 1955-1960, 1960-1965, 1965-1970, 1970-1975 and 1975-1980; and (2) asbestos-containing products were used by other diesel locomotive manufacturers, including EMD, Baldwin and GE, throughout the years of service during which the appellees worked.

{¶ 11} Additionally, the appellees offered the testimony of several other individuals with knowledge of the use of asbestos-containing materials in the railroad industry. Dr. William Longo, a Ph.D. in material sciences, conducted a work-practice study utilizing approved EPA, OSHA NIOSH, and ACGIH standards which demonstrated asbestos release resulting from the very work practices testified to by the appellees, i.e., the resting of feet on the asbestos-covered cab heater pipes over an extended period of time. Dr. Longo testified that these activities over an extended period of time caused the asbestos wrapping on the heater pipe to become friable, thereby releasing airborne asbestos dust.

{¶ 12} The appellees' second expert was Dr. Michael Ellenbecker, Ph.D., an industrial hygienist, who testified via video deposition. Ellenbecker testified that, in his opinion, the appellees were exposed to significant levels of airborne asbestos in the early 1950s and in the diesel era as well. Some of the documents on which Ellenbecker based his opinions were originally ruled admissible, but later inadmissible at trial. In order to cure this defect, the lower court gave the jury a corrective instruction to disregard the reference to the documents, since ample evidence existed to reach a conclusion based on Dr. Ellenbecker's years of experience and knowledge in the instant area.

{¶ 13} The appellees also presented the videotaped testimony of Ramon Thomas, Manager of Industrial Hygiene for the appellant. In sum, Thomas testified that he saw asbestos on diesel locomotives as recently as 1999 and that asbestos-containing materials were used to cover cab heater pipes. Specifically, the appellees offered a memorandum generated by the appellant which outlined the appellant's utilization of fiberglass as a substitute for asbestos as insulation on cab heater piping to indicate the appellant's knowledge of asbestos-related materials on their locomotives.

{¶ 14} At the close of testimony, the jury was formally charged and, after deliberation, returned a verdict in favor of the appellees finding the appellant negligent and in violation of FELA and LIA. From this verdict, the instant appeal now stems.

{¶ 15} The appellant presents five assignments of error. The first assignment of error states:

{¶ 16} "I. The trial court erred in not granting a new trial, where the plaintiffs failed to establish a foundation for testifying that the products that they saw on locomotives contained asbestos."

{¶ 17} The appellees assert one cross-assignment of error having a common basis in both law and fact to the appellant's first assignment of error. Accordingly, both will be addressed together. The appellees' cross-assignment of error states:

{¶ 18} "I. The lower court's ruling regarding Goldman was error and severely prejudiced plaintiffs."

{¶ 19} The appellant argues that the appellees failed to establish a foundation for testifying that the products they saw on locomotives contained asbestos. The appellant bases this contention on Evid.R. 602, which states that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." Further, the appellant points to Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 514 N.E.2d 691, in which the Ohio Supreme Court held that the wife of a former bakery worker could not offer affidavits from several witnesses that they "believed" and "were told" that certain products in the bakery contained asbestos because they were not based on the personal knowledge of the witnesses.

{¶ 20} In reviewing the record, it is clear that the instant matter differs greatly from the facts of Goldman. Unlike Goldman, the case at hand is replete with the appellees' familiarity and personal knowledge of asbestos. At trial, Speidel testified that during his 46 years of working on the railroad, he became familiar with asbestos and its applications. Moreover, he testified that he observed men mixing bags of asbestos, that he saw the label "asbestos" on the bags, that he saw bills of lading marked "asbestos" and that he was intimately familiar with the product's use. Further, Shesler worked on the railroad for over 43 years and had personal knowledge of asbestos on the appellant's locomotives. Although admittedly Shesler did not actually "see" the word "asbestos," the evidence reflects that he had personal knowledge of the materials that he worked with during his 43 years of employment. Additionally, substantial evidence reflected that both men were exposed to the locomotive cab heater pipes, which were wrapped with asbestos insulation. Evidence indicated that during the appellees' employment with the railroad, it was common practice to rest their feet on the exposed asbestos insulating pipe wrapping, which in time would cause the asbestos insulation to become worn, releasing asbestos-containing dust into the air.

{¶ 21} In contrast, the witnesses in Goldman admitted that they did not have personal knowledge of whether asbestos was present at the defendants' bakery, only...