Williams v. Csx Transp., Inc.

• Decision Date: 07 March 2006
• Docket Number: No. COA05-488.,COA05-488.
• Citation: 626 S.E.2d 716
• Parties: Shirley T. WILLIAMS, Executrix of the Estate of Raymond W. Williams, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant.
• Court: North Carolina Court of Appeals

626 S.E.2d 716

Shirley T. WILLIAMS, Executrix of the Estate of Raymond W. Williams, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant.

No. COA05-488.

Court of Appeals of North Carolina.

March 7, 2006.

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Appeal by defendant from judgment entered 1 October 2004 and orders entered 6 January 2005 by Judge B. Craig Ellis in Scotland County Superior Court. Heard in the Court of Appeals 9 January 2006.

Jones Martin Parris & Tessener Law Offices, P.L.L.C., by H. Forest Horne, Jr. and E. Spencer Parris, Raleigh, for plaintiff-appellee.

Millberg, Gordon & Stewart, P.L.L.C., by Frank J. Gordon, Raleigh, and Jordan & Moses, by Randall A. Jordan and Mary Helen Moses, St. Simons Island, GA, for defendant-appellant.

MARTIN, Chief Judge.

Raymond Williams (Williams) filed this action against his employer, CSX Transportation, Inc. (CSX), under the Federal Employers' Liability Act (FELA), alleging that he was regularly exposed to asbestos and asbestos containing materials by CSX and that CSX failed to warn him about the dangers of asbestos exposure. He further alleged that as a direct and proximate result of CSX's negligence, and his exposure to asbestos, he developed malignant mesothelioma requiring the surgical removal of a lung. The parties stipulated that Williams worked for CSX and its predecessor railroad from 1962 until his retirement in 1999.

At trial, plaintiff Williams introduced evidence that tended to show that CSX, as a member of the Association of American Railroads (AAR), knew as early as 1937 that asbestos generated "toxic dusts." A report from the AAR annual meeting in 1937 discussed ways to identify these hazards and reduce employee exposure. In addition, there was testimony that the AAR's meeting minutes for 1958 contained information that asbestos was carcinogenic and their official industrial hygiene publication summarized articles about asbestos exposure and dust control.

Dr. John Dement, an industrial hygienist, testified that "most researchers would accept 1960 as the date" where a causal relationship between mesothelioma and asbestos exposure was definitively established. Dr. Dement further testified that the federal government, under OSHA, required air sampling and other asbestos protections beginning in the 1970s. Dr. Dement opined that information about the dangers of asbestos exposure and necessary precautions to protect workers was widely available while plaintiff worked for CSX. Williams also introduced a letter from the railroad's Chief Medical Officer, dated 1977, indicating that mesothelioma was linked to asbestos exposure.

There was evidence that CSX did not conduct any air sampling for asbestos hazards until sometime after hiring Mark Badders, CSX's first industrial hygienist in 1980. A 1986 asbestos air sampling report prepared for CSX established that asbestos dust in excess of safe levels was created when asbestos siding was cut with a saw. It also noted that these results may have been low due to other dust particles in the air sample. A 1996 survey of CSX's Hamlet, North Carolina facility, where Williams worked for the majority of his career, indicated large quantities of asbestos in pipe insulation and siding, wall, and roof panels. Asbestos was also used in various train components, such as brakes.

Williams introduced evidence that he was exposed to asbestos dust while working around craftsmen who manipulated asbestos containing materials and while working around the construction, repair, and demolition of buildings containing asbestos siding. Williams and his former co-workers testified that asbestos debris was regularly cleaned up using air hoses and brooms, which moved dust into the air, and that they were never instructed by CSX to take precautions because asbestos was harmful.

Williams and his family testified that as a result of developing mesothelioma, his entire left lung was surgically removed and his stomach then migrated into his empty chest cavity and required a second surgery. He underwent several rounds of chemotherapy to treat his cancer. He also testified as to his pain, which required the daily use of pain medication.

Dr. David Harpole, Williams' lung surgeon, and Dr. John Anagnost, Williams' oncologist, both opined that Williams' asbestos exposure caused his mesothelioma. They further attested to his poor prognosis, pain, and shortened life expectancy. Cell biologist Dr. Arnold R. Brody, an expert in lung pathology, industrial hygienist Dr. Dement, and pathologist Dr. Steven Dikman all testified that Williams' exposure to asbestos caused his mesothelioma.

Williams also presented the videotaped deposition of another pathologist, Dr. Victor Roggli, who examined four sections of his lung tissue for "asbestos bodies" with an electron microscope. Dr. Roggli reported asbestos bodies counts of 37, 27, 3.3, and 3.2 in the four lung tissue samples and averaged the results of these samples to get levels of asbestos bodies that were below his laboratory's "normal" value of 20. This led him to conclude that Williams' mesolthelioma was idiopathic, or not related to his asbestos exposure.

On cross-examination, however, Dr. Roggli also testified that his conclusion was based solely on his review of these tissue samples and that consideration of other factors would be appropriate. Dr. Roggli further explained that 94% of pleural mesotheliomas in males were caused by asbestos exposure and acknowledged the possibility that Williams' mesothelioma was related to asbestos exposure. He explained that tissue testing was not a perfect indicator and admitted asbestos fibers may have cleared from Williams' lung thereafter, rendering them undetectable by fiber burden analysis.

Williams presented expert testimony regarding Dr. Roggli's test results. Dr. Brody explained the ability of the lungs to clear asbestos and that fiber burden analysis and other tests for presence of asbestos in lung tissue are not the sole factor in diagnosing mesothelioma. He noted that it was not necessarily common practice to average asbestos body counts as Dr. Roggli had done and testified that in his scientific opinion the high sample amounts indicated asbestos exposure. Dr. Dement testified that even brief or low exposures of asbestos at work could be considered related to mesothelioma. Dr. Dement also testified that it was his scientific opinion that Williams' mesothelioma was attributable to occupational asbestos exposure.

At the close of Williams' evidence, CSX moved for a directed verdict, which the trial court denied. CSX then presented evidence, including expert testimony from industrial hygienists Mark Badders, Larry Liukonen and Dr. Francis Weir, pulmonary medicine experts Dr. Bernard Gee and Dr. James Crapo, pathology expert Dr. Michael Graham, and radiology expert Dr. Peter Barrett, all of whom testified to their belief that Williams' mesothelioma was not caused by asbestos exposure for which CSX could be held liable.

The parties agreed upon the jury instructions at the charge conference with the exception of defendant's request to charge the jury on comparative or contributory negligence. CSX requested a charge on "contributory" negligence, contending that plaintiff's history of smoking gave rise to the issue. The trial court denied the request, citing the fact that both Williams' and CSX's experts testified that smoking is irrelevant to the development of mesothelioma. The trial court agreed, however, to instruct the jury to consider Williams' health, habits, and constitution in determining plaintiff's life expectancy when calculating the amount of damages. Defendant also requested additional jury instructions regarding its contentions, which the trial court denied.

The jury returned a verdict by which it found that defendant CSX was negligent, that such negligence caused injury to plaintiff Williams, and that Williams had been damaged in the amount of $7,500,000.00. Defendant's motions for judgment notwithstanding the verdict and for a new trial were denied, and the judgment was entered on the verdict. After the entry of the verdict, plaintiff died and Shirley T. Williams, Executrix of the Estate of Raymond W. Williams, was substituted as plaintiff-appellee. CSX appeals.

On appeal, defendant brings forward twenty-six assignments of error in eleven arguments. Defendant argues that the trial court made numerous errors by I) allowing cross-examination of witnesses, II) admitting nonexpert testimony regarding plaintiff's asbestos exposure and causation of his mesothelioma, III) admitting evidence of foreseeability without a proper foundation as to CSX's knowledge, IV) denying defendant's requested jury instructions, and V) denying defendant's post-trial motions. After careful consideration of CSX's arguments, we find no error.

I. Cross-examination

CSX alleges four discrete errors in rulings by the trial court regarding the cross-examination of witnesses. CSX contends that the trial court erroneously 1) denied CSX the opportunity to cross-examine Williams' pathology expert, Dr. Steven Dikman, regarding tests he ordered and reviewed; 2) allowed plaintiff to cross-examine and impeach CSX expert Dr. James Crapo; 3) admitted testimony about photographs of a steam era locomotive; and 4) allowed plaintiff to cross-examine his own witness by playing the cross-examination from Dr. Roggli's videotaped deposition which was initially taken by CSX.

Rule 611(b) of the Rules of Evidence provides: "A witness may be cross-examined on any matter relevant to any issue in the case, including credibility." N.C. Gen. Stat. § 8C-1, Rule 611(b) (2005). "The trial court is vested with broad discretion in controlling the scope of cross-examination and a ruling by the trial court should not be disturbed absent an abuse of discretion and a showing that the ruling was so arbitrary that it could not have...