When Central Illinois dairy and cattle farmer Eugene Schoepke started falling off his lawnmower, losing his balance, and getting tired, he knew something wasn’t right. Shoepke, of Marshall County, Illinois, had been hale until then.
He looked for medical help in Peoria. Doctors there had trouble finding a diagnosis. In 2022, about a year after he started having symptoms, Mayo Clinic doctors diagnosed him with the rare form of cancer called mesothelioma. Schoepke died about five weeks later. He was 84.
Just about the only way people get that kind of cancer is through asbestos exposure. More than 100 people in Bloomington-Normal have died of mesothelioma and other asbestos-related illness because they were exposed to huge amounts of the fiber when they worked at the former Unarco asbestos plant on the city's west side, according to Mike Matejka, co-curator of an exhibit on the plant at the McLean County Museum of History.
It wasn’t so obvious how Gene Schoepke was exposed.
The mystery
Lawyers who specialize in asbestos liability cases like David Barrett of the Chicago firm of Cooney and Conway tend to ask exhaustive questions about people’s work history to pin down how they were exposed to the cancer-causing fibers. Occupation, home repair history, automotive repairs — it’s all potentially relevant. Lately, attorneys have been asking about hygiene practices, for instance whether they’ve used talcum powder that for many years also contained asbestos.
“Nothing was lighting up,” said Barrett, until they went into the shed behind Schoepke’s house. There they found old boxes of spent Remington shotgun shells. For years, Remington marketed them in distinctive green cases.
Shoepke had been a lifelong hunter and recreational shooter. He lived in Varna, about 45 miles northwest of Bloomington-Normal.
“He was a busy farmer, but whenever he had a moment, he would go hunting. He would go shooting. He would shoot pheasant. He would shoot dove. They planted sunflowers to attract the doves, which are known as God's gift to the ammo makers, and he would go through any number of shells each time he was out hunting,” said Barrett.
That was it.
Schoepke's family filed a lawsuit against ammunition maker Sporting Goods Properties Inc., formerly known as Remington Arms, and against Remington's then-parent company DuPont, the company formerly known as E.I. DuPont de Nemours.
The history
The legal community hasn’t known about shotgun shells containing asbestos for very long.
There’s an extensive history of corporate attempts to conceal the dangers of what was once marketed as a miracle material that became ubiquitous in hundreds of products in America.
“The most shocking thing is already in the '30s, the industry is doing research because they know there is a hazard here. And they’re paying for cancer research, but then they’re declaring their research proprietary because they paid for it,” said Matejka, co-curator of the exhibit on the legacy of the Unarco asbestos plant in Bloomington.
Retired Bloomington-Normal asbestos attorney Jim Walker said back when asbestos lawsuits were just starting in the 1970s, it was "an uphill chug" to overcome that conduct. Lawyers for workers got together and learned.
"We shared these documents. We started having our own seminars, the defense lawyers were all having their own seminars throughout this time. We gained in our knowledge of medicine and disease and so forth, and the tide just slowly turned in our favor," Walker said during a panel discussion at the McLean County Museum of History.
It’s that legacy of cooperation among plaintiff lawyers that helped the Schoepke family.
David Barrett said shotgun shells containing asbestos popped up for the first time in court in 2014 during an environmental exposure case in Bridgeport, Connecticut.
Attorneys there found a brake lining plant in used asbestos in its products. GE had a plant there that made insulated cabling and wiring with asbestos. And Remington had a plant and its headquarters there. The use of asbestos in ammunition came out.
Bang goes the shotgun
Shotgun shells have a priming mixture in the base. When the firing pin hits it, it ignites and causes the gunpowder to explode. A base wad sits at the bottom of the hull of the shell. The wad is there for a couple reasons — to prevent soft lead shot from coming in direct contact with the barrel and reducing the risk of scratching it, and to prevent gases given off by the burning powder from bypassing the shot and reducing propulsion.
The wad in Schoekpe’s shells was made of asbestos.
“Asbestos is a well-known noncombustible,” said Barrett. “DuPont [and its then subsidiary] Remington knew that ... Asbestos is a great binder. It's got great tensile strength.”
Barrett said Remington was the only ammo company to use asbestos wadding and it did so from 1960-1982.
Until 1960, shotgun shells had paper casings and paper base-wads. That year, Barrett said, Remington began making shot shells from plastic — DuPont’s polyethylene because asbestos was known to work well with plastic. This was an improvement because paper casings could swell in rainy weather.
“They composed a base wad with 40% asbestos fiber, some wood flour and a little bit of wax, and they would mold them to shape and press them into the bottom of the shell,” said Barrett.
DuPont owned Remington at the time. The DuPont Company in this lawsuit is no longer the same entity as the current E.I. DuPont de Nemours Inc. The two separated in 2019. The modern DuPont [EIDP] is owned by Corteva Inc. and is not responsible for previous actions. The former Remington Arms Co. became Sporting Goods Properties Inc. in 1993.
A message to Remington/Sporting Goods Properties has not been returned.
For more than 20 years, Barrett said Remington never disclosed the asbestos in its shotgun shells, and with few exceptions, he said every one of their field loads for those two decades had asbestos base wads.
The Environmental Protection Agency and Consumer Product Safety Commission noted shotgun shell wadding in the fine print of a proposed rule in 1979.
"And it was that notice of advanced rule making that set into motion a flurry of activity at Remington to quickly remove, quietly remove, the asbestos in the shot shells," said Barrett.
Exposure amounts
Five-hundred years ago, Swiss physician and chemist Paracelsus came up with a Latin phrase that roughly translated means the dose makes the poison. He’s known as the father of toxicology. It’s hard to say what makes exposure to asbestos toxic. People vary. The kinds of exposures vary. And there really is no control group. Asbestos use was so prevalent in so many everyday products for so many decades, it’s confoundingly difficult to find a sample size of people who have never been exposed.
“That was common knowledge in the '60s, that fairly minor exposures, intermittent exposures, to asbestos, could, decades later, cause mesothelioma and other asbestos-related cancer,” said Barrett.
Some exposures are demonstrably larger than others. Barrett, his partner on the case Devitt Cooney with local counsel Thomas Crumplar of Jacobs & Crumplar, bought about 100 vintage shotgun shells from online shooter supply stores and sent them to materials scientist and microscopist Steven Compton for testing.
Compton determined all the Remington shells of a certain vintage had asbestos. They did test-firing to find out how much asbestos was being released 6 to 8 inches from a shooter’s mouth and nose when the gun went off.
“Concentrations orders of magnitude above background,” said Barrett. And that is even though the asbestos was not fully aerosolized. The wad is not meant to fully disintegrate. Still, he said it’s significant.
“It's hundreds of thousands of fibers put into the breathing zone of a shooter every time a shell is discharged.”
Barrett said Eugene Schoepke was exposed thousands of times over two decades. At trial, he argued it was the bursts of exposure that made a big difference compared with a long period of exposure to background levels present in modern living.
"Mesothelioma is a cumulative dose disease, and each exposure is medically significant," said court documents.
The trial
As is not uncommon, the litigation had several homes — including Chicago and tiny Marshall County, where the total population was roughly 11,000 at the last census. There aren’t a lot of injury lawsuits or product-liability cases in Marshall County. After the company and plaintiff skirmished over venues, the case ended up in Delaware, where Barrett said DuPont and the entity liable for Remington are headquartered.
A handful of similar cases went on the docket there at roughly the same time. The family of a farmer from Iowa settled a case shortly before trial. The Schoepke case was next.
Through Barrett, the Schoepke family declined an interview, though he said they were determined to take the case all the way to a jury. One reason, he said, was that settlements do not provide legal precedents. The amounts are typically not public. They don’t provide evidentiary guidance to other lawyers.
Many employers today also require workers, as a condition of employment, to give up any right to go to court in favor of submitting to binding arbitration. That lessens the opportunity for knowledge of a developing area of the law to spread in the same way it did early in the asbestos-litigation era.
Lawyers for the companies attacked the validity of the Compton study, saying it was a test of fiber release, not of real-world conditions.
"Fatal to their case is Plaintiffs’ utter lack of reliable evidence of exposure to asbestos under the real-world circumstances of the shells’ use—always outdoors," said court documents.
The companies' own expert ran tests using the same batch of shells the plaintiffs had used that found no detectable asbestos release. There was skirmishing over what standard of analysis offered a truer picture of potential release.
Schoepke family lawyers also attacked the company expert, noting a past study of asbestos releases in a case involving Caterpillar was based partly on samples that didn't contain asbestos in the first place.
After a two-week trial, a jury on July 23 returned a verdict awarding $9 million in compensatory damages to the family.
Jurors declined to award punitive damages that come into play for “willful and wanton” conduct, or consciously disregarding a known risk to safety. Barrett said a jury questionnaire had the box for punitive damages checked and then scratched out, which could indicate jurors struggled with that choice.
In post-trial motions, the companies have asked the judge to throw out the verdict, alleging deficiencies in the evidence, because the test was an indoor measurement and not outdoors with other variables such as air exchange and wind.
“The court should exclude such opinion testimony because Compton’s experiment did not replicate either the conditions Plaintiffs actually experienced or the products Plaintiffs actually used,” asserted the companies in a motion.
In their response, attorneys for the Schoepke family have noted the judge's own words from the trial.
“I believe that this experiment and this testing will be helpful to the jury …Whether or not the argument that this was not substantially similar to the conditions that the decedent was under at that time is the subject of cross examination and not admissibility,” according to court documents.
The companies said the shotgun shells tested were old and may have degraded, releasing more asbestos than any ammunition Schoepke may have fired. Lawyers for the family countered with witness observations that the ammunition tested did not appear degraded.
Cooney and Conway cited a 1963 patent application for a new shotgun shell designed to improve reloadability as an indication Remington knew in the early 1960s that its asbestos wadded shotshells were prone to breakdown anyway.
"Current base wad designs are limiting the reloadability and functioning of today’s shotshells. The limiting factors are breakdown of the base wad itself and excessive head expansion during firing due to the base wad failing to seal properly and failing to properly absorb the pressures generated in the shell when fired," said court documents.
And a 1965 article in Gun Digest magazine criticizes the new shells.
The base wad in the field load shells, on the other hand, “leaves something to be desired, as it tends to go to pieces under continued reloading, causing those bloopers that occur because parts of the base wad obstruct the flash hole,” said court documents.
If the judge declines the motions to exclude evidence, a series of appeals could follow.
How Remington treated workers differently than customers
Starting in 1933, Remington was a division of DuPont. Barrett said a lot of the case focused on DuPont and how the company conveyed information about asbestos to medical directors and various divisions in plant offices from the 1960s onward. He said precautions Remington took with its employees showed a “sophisticated understanding” of the hazards.
“Warning signs posted throughout their plant in the late 1960s, respirators, masks for anybody in the plant that was involved with shooting guns or cleaning guns. Educational programs,” said Barrett.
With the passage of the Occupational Safety and Health Act [OSHA] in 1972, Remington and the then-DuPont also came under regulation as a major source of asbestos emissions.
In 1979, the EPA and Consumer Product Safety Commission released a Notice of Proposed Rule Making targeting asbestos containing consumer products. Among those was ammunition shell wadding.
“That set into motion a flurry of activity at Remington to quickly remove, quietly remove, the asbestos in the shot shells,” said Barrett.
He said the fight at the trial centered on whether there was knowledge about this particular use of asbestos and whether compressed asbestos in a shell component should have been known as a danger to consumers.
There could be more Eugene Schoepkes
Barrett said Remington used 500 tons of raw asbestos fiber annually to make ammo.
“Over a million pounds of asbestos fiber each year to produce shot shells at an alarming production rate. They made 600,000 asbestos-containing shot shells every day, hundreds of millions a year for over 20 years,” said Barrett.
There are now close to 20 asbestos/shotgun ammunition cases pending around the country. One of them involves Madison County, Illinois resident James Chorey who gave a dying declaration five days before he passed away in 2023.
"About his lifelong use of Remington shotshells, which shells he had used for hunting and target shooting since the time he was a young boy," said court documents.
Barrett said he expects many more cases will come. During the first case, defendants asked where are all the shooters with mesothelioma?
“No shooter ever knew there was asbestos in the shot shell. No shooter ever reported their use of those shells. So, until we start asking patients, did you use talcum powder on your body? Did you fire shotgun shells? We'll never know. Who knows how many victims there have been?” said Barrett.
Barrett’s firm now asks clients about their hunting practices. Especially in the Midwest, he said a significant percentage say they were seasonal hunters. Some were re-loaders. Some were skeet and trap shooters.
“I think that what is most compelling to me, and I think to the jury, was the fact that nobody knew about the asbestos in the shot shells. And I think that's what really hung the jury up,” said Barrett.
Remaining hazards
From 1960 through the 1980s, there were three major ammunition manufacturers — Remington, Federal, and Winchester. Only Remington used asbestos wads.
“Remington, ever the clever branding company, decided to go with the green in 1970 so every single one of their shells, with the exception of the 20-gauge yellow field loads and target loads, was colored green. If it's a green shell and you're shooting it and you bought it between 1961 and 1982, it probably contains asbestos,” said Barrett.
He said many of his clients still have old shells. And it was easy to buy them online to test.
“Which is part of the reason why we want, and the Schoepke family wanted there to be a trial. They wanted people to know,” said Barrett.
New hazards new cases
Asbestos cancers and other illnesses first took out asbestos miners, and manufacturing workers like the ones at the Unarco plants in Bloomington, Cicero, and the Johns-Manville plant in Chicago. The second wave of deaths happened among insulators, carpenters, drywallers, and others who worked with asbestos products.
Removal of asbestos, remediation and abatement, as it’s called, is still a big industry.
Barrett said the substance continues to produce victims.
“We have about 3,000 people diagnosed yearly in this country with asbestos-related mesothelioma. A large percentage of them are, we believe, [have] talcum powder-related mesotheliomas. That's an exposure that people did not consider 10 years ago, but now they do,” said Barrett.
Another area of new litigation is industrial talc used in a variety of applications. They were, ironically, used as a substitute for asbestos in things like joint compound that still had asbestos in it, just less than before.
“There's going to be a long tail on this litigation. There already has been. There's a long tail on this disease with a latency of up to 60 years,” said Barrett.
And like shotgun shells, newly appreciated hazards from asbestos may yet come to light.
What the family lost
All the big picture talk about trends in litigation, courtroom tactics, and what companies knew and when they knew it can obscure the human cost of asbestos.
Eugene Schoepke had eight children. Three sons have gone on to farm like their dad. He had 25 grandchildren when he died. The family lost a patriarch and a generational connection.
“He was devoting a lot of his time in his last months and years to his grandchildren,” said Barrett. “He's 84. His parents lived to be in their 90s. Gene had time left. He had time left with his kids and with his grandkids, and he deserved better.”
