(The following story by Steve Ritea appeared on the Newsday website on July 24.)
NEW YORK — Testimony began yesterday in a case brought by a former Long Island Rail Road conductor who claims he developed cancer after years of walking through smoke-filled cars to collect commuters’ tickets before smoking was banned on the railroad in 1988.
“It made your clothes smell, it made your hair smell,” said the plaintiff David Hepburn, 56, of Miller Place, from the witness stand at the federal courthouse in Central Islip. “It was so smoky you could hardly see through the car.”
Although Hepburn’s lawyer vowed in opening statements to establish a clear link between secondhand smoke and the head and neck cancer her client developed, John A. Bonventre, an attorney for the railroad, said there is no solid proof of a connection.
Bonventre also said the railroad was no different from public buildings all across the state during those years and banned smoking on its cars more than a year before New York State enacted such a ban.
“The issue is not what we know now, the issue is what we knew then, in the 1970s and 1980s,” he said. “Smoking was allowed, as a practical matter, everywhere.”
Diane Paolicelli, Hepburn’s lawyer, described her client as a “guy who took care of himself” and never smoked.
Even after the railroad’s 1988 ban, Hepburn said he was still subjected to smoke from other railroad employees, in the rooms where he turned in cash he collected, ate meals and waited for the trains he would work on to arrive.
He made numerous complaints to his supervisors, Hepburn said, and made hundreds of attempts to collect hazard pay, but was routinely denied.
Before the ban, smoking cars sometimes contained 100 or more smokers and poor, if any, ventilation, Hepburn testified. “Oftentimes the smoke gummed up the ventilation system,” he said.
Hepburn said he left his job shortly after he developed an advance form of head and neck cancer in 2002, undergoing surgery and a “devastating” round of radiation therapy that put him on a feeding tube for several months.
Hepburn has not required any cancer treatment for several years, Paolicelli said outside the courtroom, although he has trouble producing enough saliva and frequently chokes on his food as a result of the treatments.
U.S. District Court Judge Leonard D. Wexler told the eight-member jury yesterday he expects the case to last nearly two weeks.
Hepburn’s case follows several other, similar suits that have met with varying degrees of success.
In May 2005, big tobacco won a jury verdict in a case filed by a flight attendant who claimed she was injured by exposure to cigarette smoke on the job. A month earlier, a retired New York City Police detective who sued the city in a dispute over smoking in the workplace won a settlement that allowed him to recover about $103,000 in back pay and an extra $12,000 annually for the rest of his life.
Hepburn’s original suit, filed in 2004, asked for $10 million in damages, although Paolicelli said outside court yesterday they are not seeking a specific amount.