As a fireman, Shepard was exposed to asbestos while working on the engines and in the buildings, especially in the roundhouse where the steam engines got repaired. The steam engine pipes of the locomotives lined in asbestos were “raggedy,” causing torn-up asbestos to be piled up on the floor and against the walls in the roundhouse—Shepard even recalled needing to “walk through” loose asbestos on the floor.
Shepard was also exposed to diesel fumes that would “come into your cab and just about suffocate you.” Due to the locomotive cabs’ leaky windows and doors, Shepard and his coworkers would sometimes stuff the cracks with paper towels to keep the fumes out.
RESULTING LARYNGEAL CANCER & COPD:
Shepard began to experience breathing problems by 1986 and was diagnosed with Chronic Obstructive Pulmonary Disorder (COPD) that December. He also had heart surgery in the late 1980s and was diagnosed with laryngeal cancer in August of 2000. He testified that prior to 1987, his doctor told him that his COPD could have been caused by his environment, although his doctor was unaware of what Shepard did for a living. He also testified that although he was aware of what asbestos and diesel exhaust were, he was unaware of the issues the substances could cause to his health.
Shepard filed his case under the Federal Employers Liability Act (FELA) and the Locomotive Inspection Act, alleging that during his employment, he was exposed to asbestos and diesel fumes, which contributed to his COPD diagnosis, heart conditions, and laryngeal cancer.
Shepard’s coworker testified at trial that diesel fumes would often come into the cabs through the leaky windows, but also from “everywhere feasible. There [was] no way to escape it. It’s an impossibility to escape.” He further testified that opening the windows was the only way to obtain relief from the overwhelming fumes.
Dr. Arthur Frank provided testimony at trial regarding Shepard’s laryngeal cancer. Dr. Frank spoke of studies from both sides of the issue as to whether there is a causal relationship between laryngeal cancer and railroad asbestos exposures. Both Dr. Frank and Grand Trunk’s expert, Dr. Pierre Lavertu, agreed that “although the relationship between asbestos and laryngeal cancer is still controversial, many studies have shown a possible association.” Though Grand Trunk tried to get Dr. Frank’s testimony thrown out for lack of scientific information, the court found that it was sufficient to help Shepard’s case.
The jury found Grand Trunk negligent under the FELA, as well as the Locomotive Inspection Act. Even though Shepard was comparatively negligent because of his history of cigarette smoking, the court concluded that Grand Trunk was not entitled to a reduction of damages because the railroad was strictly liable under the Locomotive Inspection Act. As a result, Shepard was given the full award of $872,756.
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