Bryant v. Gen. Motors Corp.

2015 Ohio 4911

• Court: Ohio Court of Appeals
• Decided: November 30, 2015
• Docket: 4-15-03
• Status: Published

Opinion

[Cite as Bryant v. Gen. Motors Corp., 2015-Ohio-4911.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

LORETTA S. BRYANT, SURVIVING SPOUSE OF IVAN BRYANT, DECEASED,

PLAINTIFF-APPELLEE, CASE NO. 4-15-03

v.

GENERAL MOTORS CORP.,

DEFENDANT-APPELLANT, -and-

MARSHA P. RYAN, ADMR., OPINION OHIO BUREAU OF WORKERS COMP, ET AL.

DEFENDANTS-APPELLEES.

Appeal from Defiance County Common Pleas Court Trial Court No. 09-CV-40370

Judgment Affirmed

Date of Decision: November 30, 2015

APPEARANCES:

Marc S. Barnes for Appellant

Shawn M. Acton for Appellee, Loretta S. Bryant Case No. 4-15-03

SHAW, J.

{¶1} Defendant-appellant, Powertrain Division, General Motors

Corporation (“GM”), appeals a jury verdict finding that plaintiff-appellee, Loretta

Bryant (“Loretta”), is entitled to participate in the Ohio Workers’ Compensation

Fund as a result of the occupational exposure to asbestos sustained by her

deceased husband, Ivan Bryant (“Ivan”), which contributed to his death from lung

cancer.

Procedural History and Facts

{¶2} Loretta commenced the underlying case as an appeal, pursuant to R.C.

4123.512, after the Ohio Bureau of Workers’ Compensation denied her request for

widow’s benefits of her late husband, Ivan. Loretta alleged that Ivan sustained an

injurious exposure to asbestos as a result of his job duties at GM and that his

asbestos-related lung cancer was the direct and proximate cause of his death. The

complaint claimed that Ivan’s employment with GM created a risk of contracting

asbestos-related diseases and conditions in a greater degree and in a different

manner than the public generally. GM denied that Ivan’s lung cancer was

asbestos-related and denied that he contracted his lung cancer as a result of his

employment at GM’s Defiance facility. Further, GM contended that Ivan’s long-

time habit of smoking one to two packs of cigarettes a day was the sole cause of

his lung cancer.

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{¶3} The case proceeded to a jury trial. Loretta presented Robert Bell, a

former GM employee, who testified to the existence several products containing

asbestos at GM and common practices at the plant relating to the use of those

products. Bell also relayed his interactions with Ivan at GM and his recollection

of their occupational exposure to airborne asbestos. In addition, Loretta presented

the expert testimony of Dr. L.C. Rao who reviewed several medical records

belonging to Ivan and gave his expert medical opinion establishing a causal link

between Ivan’s asbestos exposure at GM, the development of his lung cancer and

his death. Loretta also took the stand and recalled her experience with Ivan’s

employment at GM and his subsequent illness and death.

{¶4} In addition to this testimony, Loretta also submitted Plaintiff’s

Exhibits 5 and 6. These exhibits were documents produced by GM during

discovery which summarized the removal of asbestos from the Defiance facility

between 1981 and 2011 and detailed GM’s 2006 policy regarding the prevention

of airborne asbestos exposure at the Defiance facility.

{¶5} GM presented two medical experts in its defense: Dr. David

Rosenberg and Dr. John Lockey. Both experts reviewed pertinent portions of

Ivan’s medical records and disputed Loretta’s claims that there was any medical

evidence establishing Ivan had suffered an injurious exposure to asbestos.

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Accordingly, the defense experts opined that the lone cause of Ivan’s lung cancer

was his long history of smoking cigarettes for over forty years.

{¶6} GM orally moved for a directed verdict at the end of Loretta’s case-in-

chief. The trial court denied the motion for directed verdict. After the testimony

of their two medical experts, GM renewed its motion. The trial court again

overruled the motion for directed verdict.

{¶7} After the close of all the evidence, the jury entered its verdict in favor

of Loretta’s claim. In specific interrogatories, the jury found that: (1) Ivan was

exposed to airborne asbestos fibers during the course of his employment at GM;

(2) the conditions of Ivan’s employment at GM resulted in a hazard of exposure to

airborne fibers, which distinguished his employment in character from

employment generally; (3) Ivan’s employment at GM created a risk of contracting

lung cancer in a greater degree and in a different manner than the public generally;

and (4) Ivan’s exposure to airborne asbestos fibers was a proximate cause of his

lung cancer. The jury further found that Loretta is entitled to participate in the

Workers’ Compensation Fund.

{¶8} GM filed this appeal, asserting three assignments of error.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED BY DENYING GENERAL MOTORS’ MOTION FOR DIRECTED VERDICT, WHERE THERE WAS NO EVIDENCE DECEDENT WAS

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INJURIOUSLY EXPOSED TO AIRBORNE ASBESTOS AT GENERAL MOTORS.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED BY ADMITTING GENERAL MOTORS’ DOCUMENTS OVER GENERAL MOTORS’ OBJECTIONS.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED BY ADMITTING THE EXPERT OPINION OF DR. L.C. RAO, WHERE THE OPINION WAS BASED ON FACTS, WHICH WERE NOT ADMITTED INTO EVIDENCE.

First Assignment of Error

{¶9} In its first assignment of error, GM argues that the trial court erred in

denying its motion for directed verdict. “A motion for directed verdict tests

whether the evidence is sufficient to warrant a jury’s consideration, so in deciding

whether to grant a directed verdict, a trial court considers neither the weight of the

evidence nor the credibility of the witnesses.” Ahmed v. Wise, M.D., 10th Dist.

No. 12AP-613, 2013-Ohio-2211, ¶ 9. Civil Rule 50(A) sets forth the standard of

granting a motion for directed verdict:

When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

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{¶10} “In deciding a motion for a directed verdict, the trial court must

assume that the evidence presented by the nonmovant is true, must give the

nonmovant the benefit of all reasonable inferences to be drawn from that evidence,

and ascertain whether any substantial probative evidence supports the

nonmovant’s claim.” Snyder v. Manuel, 3d Dist. Hancock No. 5-11-39; 2012-

Ohio-5951, ¶ 16, citing Ruta v. Breckenridge–Remy Co., 69 Ohio St.2d 66, 68

(1982). We employ a de novo standard of review in evaluating the grant or denial

of a motion for a directed verdict. Grau v. Kleinschmidt, 31 Ohio St.3d 84, 90

(1987).

Establishing a Right to Participate in the Ohio Workers’ Compensation System—Elements of Plaintiff’s Claim

{¶11} Under R.C. 4123.68, Loretta is entitled to widow’s benefits if she can

demonstrate that Ivan’s death was caused by an occupational disease. Lung

cancer is not a specified occupational disease included under the statute. Loretta

therefore bears the burden of demonstrating that Ivan’s lung cancer meets the

criteria for an occupational disease.

R.C. 4123.01(F) defines an “occupational disease” as

a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.

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{¶12} In this case, Loretta had to prove that her husband contracted and

died from an occupational disease as a result of an injurious exposure to asbestos

in the course of and arising out of his employment. See Snyder v. Ford Motor Co.,

3d Dist. No. 1-05-41, 2005-Ohio-6415. This includes establishing a direct and

proximate causal relationship between the employment and the condition alleged.

See Fox v. Indus. Comm. of Ohio, et al., 162 Ohio St. 569 (1955), syllabus.

{¶13} Loretta’s burden of proof is a preponderance of the evidence, which

is defined as “the greater weight of the evidence, that is, evidence that you believe

because it outweighs or overbalances in your mind the evidence opposed to it. A

preponderance means evidence that is more probable, more persuasive, or of

greater probative value. It is the quality of the evidence that must be weighed.”

Cawrse v. Allstate Ins. Co., 5th Dist. No. 09COA002, 2009-Ohio-2843.

{¶14} With these foregoing principles in mind, we turn to discuss whether

the trial court erred in denying GM’s motion for directed verdict which requires us

to examine the evidence presented to support the elements of Loretta’s claim.

Evidence Relating to Asbestos Exposure at GM

{¶15} Ivan’s career with GM spanned nearly thirty years. He began

working for GM in 1973 at its Defiance facility and continued working there until

he retired in 2001. Ivan died of lung cancer on February 28, 2007. Robert Bell, a

former co-worker of Ivan’s who also worked at the Defiance facility for nearly

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thirty years, testified that he first met Ivan in the mid-1970’s in Plant 1 at GM’s

facility. He recalled they worked together in the “core room” on line 3 for a “few

weeks.” (Doc. No. 117 at 50-51). After that, Bell remembered Ivan working “up

front” and in the foundry, where he observed Ivan performing “clean-up” and

other jobs. (Id. at 51). Throughout the proceeding years, Bell also passed through

Ivan’s area “to get to the locker room, to the break room, to wherever [he] went.”

(Id. at 77). Bell described the GM facility where he and Ivan worked as one large

open space. He recalled that when he first began working there in the early

seventies “you couldn’t see fifty-six—sixty foot down the plant” because of “the

dust and dirt in the air.” (Doc. No. 117 at 44).

{¶16} Bell testified that he was not initially aware of the dangers of

asbestos when he first began his employment at GM, but later learned about

asbestos from safety meetings conducted at the plant. Bell recalled that these

safety meetings occurred monthly and sometimes weekly. During these safety

meetings the plant foreman warned the employees about asbestos products in the

plant. According to Bell, both he and Ivan were exposed to harmful asbestos at

GM. He testified to working with several products containing asbestos during his

tenure at GM.

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1. “Asbestos Cloth”

{¶17} One such product was referred to by Bell as “asbestos cloth,” which

was material used as heat shields throughout the plant. Bell described the product

as a white cloth fabric that came in ten-foot rolls. Bell testified that the “[a]sbestos

cloth was hung all over. Any place where there was heat they used it as shields.”

(Doc. No. 117 at 37). Specifically, Bell recalled that the heat shields were “placed

[] in areas where the hot irons would be splashed and the cloth would protect

people from getting splash [sic] by that iron.” (Id.). Bell further described the

method customarily used to clean the heat shields. “When those build up so thick

with iron, the heat shields, you take an iron bar and you beat the iron off of these.

And then when you’re beating on them that white powder just flies.” (Id. at 71).

He explained that when the condition of heat shields “did get bad burn up, you

know, where it’s falling apart you would change it.” (Id. at 38). Bell stated that

changing the cloths entailed cutting a new piece of fabric from the ten-foot roll,

which caused dust to emit from the fabric. Bell provided the following testimony

relative to Ivan’s work experience with the heat shields:

Plaintiff’s Counsel: Now when the two of you, you and Mr. Bryant, were working in the cores—

Bell: Um-hm. Yes.

Plaintiff’s Counsel:—now where [sic] you subjected to any asbestos, airborne asbestos at that time?

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Defense Counsel: Objection. Relevancy.

Bell: Yes.

Trial Court: Overruled.

Plaintiff’s Counsel: And how so?

Bell: The cloth was hanging right next to me.

Plaintiff’s Counsel: And during that time, did you see Mr. Bryant being exposed to any airborne asbestos?

Plaintiff’s Counsel: How so?

Bell: He was standing right beside me.

Plaintiff’s Counsel: Right next to the cloths?

(Doc. No. 117 at 52-53). Bell recalled that the management later eliminated the

use of the heat shields in the late 1970s.

2. Pipe Insulation

{¶18} Bell also testified that the pipes located above the employees’ heads

were wrapped in asbestos and were in poor condition. Bell described the

condition of the pipes:

Bell: Well, a lot of time in material, like on your steams [sic] pipes are falling off, breaking, you know, and their water pipes are constantly leaking.

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Plaintiff’s Counsel: Okay. Would you see the insulation from these pipes on the ground anytime?

Bell: Oh, yes you would. Yeah.

Plaintiff’s Counsel: Would that create any dust?

Bell: Yes, it would.

(Doc. No. 117 at 42).

3. Furnaces

{¶19} Bell also observed Ivan performing a specific “clean-up job”

sometime in the 1970’s “[w]hen he worked up front in the core room they tore out

what they called vertical furnaces and he was the one that cleaned them out, and

those was wrapped with asbestos.” (Doc. No. 117 at 53). Bell’s testimony

continued:

Plaintiff’s Counsel: You saw him cleaning these vertical—

Bell: I saw him cleaning it up.

Plaintiff’s Counsel: Okay. And there was asbestos?

Plaintiff’s Counsel: Did you see dust?

Plaintiff’s Counsel: Did you ever see Mr. Bryant wear anything—anything, any type of mask when he was working.

Bell: I can’t say so.

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(Id. at 53-54). Regarding the asbestos wrapped ovens, Bell explained that “[o]ver

a period of years they did away with them. Over probably, all the way up until the

‘90’s * * * they tore them out.” (Id. at 78).

4. “Firebricks”

{¶20} In addition, Bell described “firebricks” made with asbestos that lined

the furnaces. (Doc. No. 117 at 39). He explained that employees replaced the

“firebricks” when needed and described the method customarily used by the

employees to replace the “firebricks,” which created a “dusty situation.” (Id. at

40). “Well I tore ‘em out when they got burned up. When a furnace gets so

warm, burn out, you go inside of it and you tear ‘em out. That’s done with a jack

hammer. You know, and then after you get all the fire brick tore out then you

have to replace it with all new—you know, we handled it the whole time.” (Id.).

Bell testified that eventually the employees were told by plant foremen to wear

protective masks because the firebricks contained asbestos. (Id. at 74). Bell

recalled that the employees “were still passing fire bricks in the ‘80s.” (Id. at 73).

5. Ladles

{¶21} Bell also described the process for making ladles which required the

mixing of water and a powdery material into a mold.

Bell: They bring them in and—the material’s brought in, in bags and it’s set upon the deck and you bust the bags open, put in the—it’s more like a big concrete mixer.

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Plaintiff’s Counsel: okay

Bell: You add water and the materials to it.

Plaintiff’s Counsel: And what are that—what are [sic] the contents of that bag look like?

Bell: It’s a greyish white material.

Plaintiff’s Counsel: Okay. Was there a label on that bag?

Bell: Yes there is.

Plaintiff’s Counsel: What was it labeled?

Bell: Label, uh—

Plaintiff’s Counsel: What did it say on the bag?

Bell: It’s says asbesto [sic]—.

Plaintiff’s Counsel: Okay.

Bell: —on the bags.

Plaintiff’s Counsel: Now would you be pouring that in and mixing it together yourself?

Plaintiff’s Counsel: Again would dust—

Bell: Oh yes.

Plaintiff’s Counsel:—emanate?

(Doc. No. 117 at 40-41).

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{¶22} Bell testified that he was responsible for cleaning up the dust and

described the practice of using air hoses to clear the settled dust off surfaces and

materials. He was also involved in the removal of the “asbestos cloth” from the

facility. He recalled the removal being “kind of like an OSHA thing, we had to

get rid of it all. So what we did just cut it down put it in tubs and haul it out back.”

(Id. at 43). Bell further stated that to the best of his knowledge there were still

asbestos products in the plant at the time he retired from GM in 2000. (Id. at 55).

He explained that he personally removed asbestos products and placed them in

back rooms. (Id.).

{¶23} Loretta also provided testimony at trial. She and Ivan married in

1956 and she recalled when he began his employment at GM. She remembered

Ivan working many overtime hours at GM and often working seven days a week.

She described Ivan’s routine of using the downstairs shower in their home after

coming home from GM. She recalled that Ivan typically looked like a “coal

miner” and that he was “[v]ery dirty. Dusty. His face would be so dirty that when

he take his glasses off you could see where his glasses were.” (Doc. No. 117 at

100, 104). Loretta stated that Ivan was a long-time smoker of approximately forty

years. She recalled his diagnosis of lung cancer in April of 2005 and his death in

February of 2007.

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Discussion

{¶24} On appeal, GM claims that Loretta failed to establish Ivan suffered

an injurious exposure to asbestos while employed at GM. Specifically, GM argues

that the testimony of Robert Bell was insufficient to establish Ivan’s asbestos

exposure at the Defiance facility. GM takes issue with the fact that Bell testified

he only worked with Ivan for a “few weeks” in the mid-1970’s and could not

recall whether Ivan was present during the time when the heat shields made from

“asbestos cloth” were struck with iron bars and produced dust. GM further

contends that Bell’s limited knowledge regarding which asbestos products Ivan

was exposed to and the fact that Bell admitted to never testing or knowing of any

tests performed on the dust to confirm whether it contained asbestos fibers

rendered his testimony deficient to establish that airborne asbestos was even

present at the GM facility, let alone that Ivan suffered an injurious exposure.

{¶25} With respect to the existence of airborne asbestos at GM, Bell

identified several products he worked with on a regular basis that contained

asbestos. He also testified from first-hand knowledge as to how these products

were used which caused a significant amount of dust to emit from the product and

become airborne. Notwithstanding the fact that Bell’s testimony indicated that

some of these products were either labeled with word “asbestos” on the package—

i.e., the ladle mix, or were commonly referred to as being made from asbestos—

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i.e., the heat shields or “asbestos cloth,” Bell also testified to participating in

monthly, sometimes weekly, safety meetings where the hazards of asbestos were

discussed, and to assisting in the removal of specific asbestos products from GM’s

facility.

{¶26} Notably, GM failed to present any testimony countering Bell’s

assertions that these asbestos products were present in the plant and that these

products were used in the manner described by Bell. To the contrary, the

documents submitted by GM during discovery which were admitted as Plaintiff’s

Exhibits 5 and 6 (the summary of asbestos removal and asbestos prevention

policy) corroborate Bell’s testimony to the extent that he discussed the existence

and use of several asbestos products throughout the plant.

{¶27} Also, we are not persuaded by GM’s argument that Bell’s lack of

empirical knowledge confirming whether the dust at GM contained friable

asbestos fibers somehow rendered his testimony inadequate to establish the

presence of airborne asbestos at GM’s facility. Bell was qualified to provide

testimony from his first-hand knowledge of the things he had actually perceived as

an employee at the plant for nearly thirty years, which included his perception as

to the existence of and his exposure to airborne asbestos. See Evid.R. 602; see

also Welsh v. Ford Motor Co., 8th Dist. No. 94068, 2011-Ohio-448, ¶ 28 (finding

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the decedent’s co-worker qualified to testify to the existence of asbestos in the

facility as well as to the decedent’s specific asbestos exposure).

{¶28} Turning to Bell’s testimony regarding Ivan’s injurious exposure to

asbestos, Bell recalled that he and Ivan worked in close proximity to the “asbestos

cloth” heat shields that were hung throughout the facility and that were

periodically beaten to remove excess build-up, which according to Bell generated

a considerable amount of dust. Bell also witnessed Ivan performing a “clean-up”

job of a vertical furnace which was known by Bell to be wrapped in an asbestos

product. Bell noted that this particular “clean-up” job involved the disturbance of

a significant amount of dust and debris.

{¶29} Moreover, Bell described the GM facility where he and Ivan worked

as a large open-air building that was filled with so much airborne dust and debris

that it limited visibly across the plant. Bell further testified to a common practice

in the plant of employees using air hoses to clear the dust and debris off surfaces,

which in turn redistributed the settled dust back into the air. Loretta also provided

testimony that Ivan typically came home from his shifts at GM covered in dust and

debris. Notably, there was also testimony from the medical experts on both sides

indicating that the visible dust emitting from an asbestos product contains millions

of friable asbestos fibers, which is a greater amount of asbestos fiber than that

generally found in the ambient air. (Doc. No. 79 at 21; Doc. No. 76 at 53.)

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Loretta’s expert, Dr. Rao, further testified that there is no safe level of exposure to

airborne asbestos.

{¶30} We also find it noteworthy, that several documents contained in

Ivan’s medical records submitted at trial demonstrate that Ivan’s treating

physicians listed “asbestosis” either as a secondary diagnosis or as part of his past

medical history. Some of these pages even notate that Ivan had been

“compensated for asbestosis” in the past or “had a disability for environmental

lung disease.” (see, e.g, Plaintiff’s Ex. 3, page 69 “History & Physical” Apr. 23,

2005; Plaintiff’s Ex. 3, page 85 “Consolation Report” Apr. 23, 2005). Also of

note, is an “Information Sheet” from the Northwest Oncology Center completed

and signed by Ivan on May 4, 2005. In this document, Ivan specifically indicated

that he had been exposed to asbestos during his work experience. (Plaintiff’s Ex.

3).

{¶31} In sum, as it pertains to establishing Ivan’s injurious exposure to

asbestos at GM, we find that there are numerous factors supporting the trial court’s

decision to overrule GM’s motion for directed verdict. For example: (1) Ivan’s

co-worker, Robert Bell, identified several asbestos products used at the GM

facility during the time of Ivan’s employment; (2) Documents produced by GM

corroborated Bell’s testimony that asbestos products were used at GM during

Ivan’s employment; (3) According to Bell, these products were inherently dusty

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and generated significant amounts of dust during use; (4) After that use, the

products deteriorated or were removed in a process that generated substantial

amounts of dust and residue; (5) In addition to the use, the cleaning of the products

and other surfaces generated additional dust; (6) Expert testimony established that

dust seen emanating from asbestos products contains millions of harmful asbestos

fibers; (7) Bell witnessed Ivan working in close proximity to some of these

asbestos products and engaging in clean-up activities in the locations of asbestos

products that generated a significant amount of dust; (8) Loretta stated that Ivan

often worked seven days a week during his nearly thirty-year tenure at GM and

regularly came home covered in dust and debris; (9) GM’s Defiance facility was a

large open-air building permitting dust and debris to drift from one department to

the next; (10) Bell described the limited visibility in the facility at times due to the

amount of floating dust and residue in the air; (11) Several documents in Ivan’s

medical records referenced conditions associated with a harmful exposure to

asbestos; and (12) Expert medical testimony from Loretta’s expert indicated that

there is no safe level of exposure to airborne asbestos.

{¶32} After construing this evidence most strongly in favor of Loretta, our

standard of review requires us to also give her the benefit of all reasonable

inferences that may be drawn from the evidence. In applying this standard of

review, we find there is sufficient evidence, if believed, relating to the issue of

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Ivan’s occupational exposure to asbestos at GM to permit reasonable minds to

reach different conclusions on this issue. Accordingly, we conclude that the trial

court did not err in determining there was sufficient evidence as to this element of

Loretta’s claim in order for it to be submitted to the jury. See O’Day v. Webb, 29

Ohio St. 2d 215, 220 (1972) (“[i]t is uncontestably the duty of a trial court to

submit an essential issue to the jury when there is sufficient evidence, if believed,

relating to that issue to permit reasonable minds to reach different conclusions on

that issue”).

Medical Evidence Regarding the Causal Relationship

{¶33} In addition to demonstrating that Ivan sustained an injurious

exposure to airborne asbestos while employed at GM, Loretta must also establish a

direct and proximate causal relationship between the employment and Ivan’s lung

cancer. Cook v. Mayfield, 45 Ohio St.3d 200, 204 (1989) (A Workers’

Compensation claimant seeking the right to participate for an injury arising from

an industrial accident must show by a preponderance of the evidence, medical or

otherwise, the existence of a direct and proximate causal relationship between the

accident and the injury).

{¶34} “Proximate cause” is “ ‘a happening or event which as a natural and

continuous sequence produces an injury without which the result would not have

occurred.’ ” Williams v. Parker Hannifin Corp., 188 Ohio App.3d 715, 2010–

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Ohio–1719, ¶ 31 (12th Dist.), quoting Randall v. Mihm, 84 Ohio App.3d 402, 406

(2d Dist.1992). An injury may have more than one proximate cause. Murphy v.

Carrollton Mfg. Co., 61 Ohio St.3d 585, 587 (1991); McRoberts v. Gen. Elec. Co.,

12th Dist. Butler No. CA2012-10-216, 2013-Ohio-3083, ¶ 21. “In Ohio, when

two factors combine to produce damage or illness, each is a proximate cause.”

Norris v. Babcock & Wilcox Co., 48 Ohio App.3d 66, 67 (9th Dist.1988). Expert

medical testimony is generally necessary to establish both general and specific

causation. Walker v. Ford Motor Co., 8th Dist. Cuyahoga No. 100759, 2014-

Ohio-4208, ¶ 21.

1. Plaintiff’s Expert

{¶35} At trial, Loretta presented an expert in support of her claim that Ivan

contracted an asbestos-related disease during the course of his employment with

GM. Dr. L.C. Rao testified that he is board certified in internal, forensic, and

pulmonary medicine, and that he is also a “B-reader,” which means that he has

specialized training to read chest x-rays for the detection of occupational-related

lung disease. He is one of approximately 240 B-readers in the world.1

{¶36} Dr. Rao explained that asbestos is fibrous mineral that was

extensively used in many industries in the past for its heat resistant properties and

that a person can be both directly and indirectly exposed to asbestos. Direct

1 Dr. Rao’s testimony was presented to the jury by way of a video-taped deposition taken on September 10, 2014.

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exposure consists of handling asbestos fibers—i.e., asbestos bundles of fibers

wrapped around pipes or preparing the asbestos cement or asbestos “mud.” (Doc.

No. 79 at 20). Indirect exposure occurs when the asbestos becomes fragmented, is

disseminated into the ambient air, and the asbestos fibers are inhaled into the

lungs. He explained that the dust seen coming from an asbestos product contains

hundreds and hundreds of millions of microscopic asbestos fibers. (Id. at 21).

{¶37} According to Dr. Rao, there are cancerous and non-cancerous

conditions associated with asbestos exposure and inhalation-related lung injury.

The two cancerous conditions are (1) lung cancer, due to the fact that asbestos is a

well-known carcinogen; and (2) mesothelioma, which is specifically the cancer of

the pleura or the membrane covering the lung.

{¶38} The first non-cancerous condition is called asbestosis, which occurs

when the asbestos fiber is inhaled and penetrates the lung tissue resulting in

irritation and tissue damage. The body reacts by forming a specific pattern of scar

tissue called interstitial fibrosis when it heals. Dr. Rao explained that asbestosis

typically produces an interstitial thickening in both lung bases and is considered a

chronic interstitial lung disease.

{¶39} The second non-cancerous condition is called pleural plaque or

diaphragmatic plaque. According to Dr. Rao, this kind of plaque is the scarring of

the pleura, which can be damaged by the penetration of asbestos fibers and can

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lead to an inflammation called pleurisy. When the pleurisy heals, it causes

scarring or pleural fibrosis, and over the years it can become a pleural plaque or a

diaphragmatic plaque depending on the location. If the scarring is located around

the chest wall, it is pleural plaque. If it is located at the bottom of the lung, it is

diaphragmatic plaque.

{¶40} Dr. Rao also discussed a latency period associated with asbestos-

related diseases and cancers; specifically, that it may take anywhere from five, ten,

fifteen, or twenty plus years from the time of the asbestos exposure to the

development of the asbestos-related disease. He further indicated that the

presence of asbestosis or diaphragmatic plaque indicates that someone has been

exposed to a significant amount of asbestos. However, he also stated that even a

minimal exposure in the remote past could later give rise to an asbestos-related

disease. Accordingly, he opined that there is no safe level of exposure to airborne

asbestos fibers.

{¶41} Dr. Rao reviewed a chest x-ray of Ivan, taken on December 11, 2000,

five years before Ivan was diagnosed with lung cancer. Dr. Rao found bilateral

interstitial fibrosis in the lower portion of Ivan’s lungs, which he indicated is

consistent with mild asbestosis. In his report dated April 16, 2006, Dr. Rao

concluded “[i]n the presence of a significant occupational exposure history to

asbestos dust, and latency period, the radiological findings are consistent with the

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diagnosis of bilateral interstitial fibrosis due to asbestosis and asbestos associated

diaphragmatic plaque on the left side. In addition, there is evidence of chronic

obstructive pulmonary disease.” (Doc. No. 79, Ex. 4). At trial, Dr. Rao identified

the scarring in Ivan’s lungs as being consistent with asbestosis and distinguished it

from the kind of scarring related to smoking. (Doc. No. 79 at 37-38). Similarly,

Dr. Rao stated that the presence of the diaphragmatic plague is consistent with

asbestos-related plural disease and is not caused by smoking. (Id.).

{¶42} Next, Dr. Rao reviewed a chest x-ray of Ivan, taken on October, 3

2005, five months after Ivan was diagnosed with lung cancer. He identified

shadowing consistent with bilateral interstitial fibrosis due to asbestos. In

addition, Dr. Rao noted evidence showing that the asbestos-related diaphragmatic

plaque was now present in both lungs, whereas it was only present on the left side

in the 2000 x-ray. He stated that this finding was consistent with the progression

of an asbestos-related disease. Dr. Rao also observed evidence of Ivan’s lung

cancer and the radiation changes from the cancer treatment, which did not appear

in the 2000 x-ray. Dr. Rao distinguished the asbestos-related diaphragmatic

plaque from the pleural thickening attributable to the cancer and cancer radiation

treatment. Specifically, he indicated that the diaphragmatic plaque found on the

bottom portion of Ivan’s lungs was related to solely to his asbestos exposure and

was not caused by smoking or cancer radiation treatment. (Doc. No. 79 at 41-42).

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Dr. Rao’s conclusions regarding this x-ray were included in a report dated

September 6, 2014. (Doc. No. 79, Ex. 5).

{¶43} In addition to the two x-rays, Dr. Rao also reviewed several

documents from Ivan’s medical records relating to the diagnosis and treatment of

his lung cancer. One document was a CT scan report dated January 12, 2007,

which was created approximately six weeks prior to Ivan’s death. (Doc. No. 79,

Ex. 6). Dr. Rao highlighted a specific finding by the reporting physician

identifying the presence of “interstitial thickening in both lung bases which may

represent chronic interstitial lung disease.” (Id.). Dr. Rao testified that this

finding is consistent with a diagnosis of asbestosis and that this specific type of

scarring is not caused by smoking. (Doc. No. 79 at 51-52). Dr. Rao again noted

that the changes related to the progression of the asbestos-related diaphragmatic

plaques were located at the bottom of the lungs, whereas the changes related to the

lung cancer and the radiation treatment were isolated to the top of the lung. (Id. at

52-53).

{¶44} Dr. Rao reviewed two additional documents, marked Exhibits 7 and

8. Exhibit 7 is a Toledo Hospital “Facesheet” from April 23, 2005 to May 2,

2005, which was compiled during Ivan’s hospital visit when he first was

diagnosed with lung cancer. Dr. Rao noted in the document that the treating

physician listed asbestosis as a “secondary diagnosis” to the primary diagnosis of

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lung cancer. Exhibit 8 is the April 23, 2005 Emergency Room Report from the

treating physician at Defiance Regional Hospital where Ivan was first seen prior to

being transported to the Toledo Hospital and where Ivan initially received his lung

cancer diagnosis. Dr. Rao noted asbestosis listed by the treating physician in the

“past medical history” section of the report.

{¶45} Dr. Rao explained that occupational exposure to asbestos creates an

increased risk of developing lung cancer and can cause lung cancer in all areas of

the lungs. He further elucidated that smoking and occupational exposure to

asbestos dust multiplies the risk of developing lung cancer:

The occupational exposure to asbestos dust, especially in a person who is a smoker, increases the risk of lung cancer synergistically. In other words, it is not one and one is equal to two. It’s one and one is equal to probably five or ten just to give you an example. If you’re just exposed to asbestos and you are a non-smoker, chances is [sic] 5 in 100 of developing lung cancer. If you are just a smoker but not exposed to asbestos, chances are 10 in 100 of developing lung cancer. But if you’re a smoker at the same time you are exposed to asbestos, chances are 50 in 100. The—it is not a cumulative effect. It’s called as a synergistic effect of the smoking and asbestos giving rise to this exponential increase in the incidence of lung cancer.

(Doc. No. 79 at 57-58). Dr. Rao continued to state that asbestosis is not a

prerequisite to the development of asbestos-related lung cancer. Instead, asbestos

exposure alone is sufficient to cause lung cancer. He discussed several peer-

reviewed articles supporting this conclusion.

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{¶46} Relying on the assumption that Ivan was exposed to and breathed in

a significant amount of airborne asbestos dust during his long tenure with GM and

that Ivan smoked one to two packs of cigarettes a day for 47 years, Dr. Rao opined

that the “inhalation of respirable asbestos dust while employed by General

Motors” was the cause of Ivan’s asbestosis and diaphragmatic plaques. (Doc. No.

79 at 72). Dr. Rao also opined that Ivan was at “an increased risk of development

of lung cancer because of his exposure to respirable asbestos dust while working

at General Motors.” (Doc. No. 79 at 73). Finally, Dr. Rao offered his expert

opinion that the “inhalation of respirable asbestos dust in association with the

smoking combination caused [Ivan] to develop lung cancer and eventual death.”

(Id. at 72).

2. Defendant’s Experts

{¶47} GM presented two experts in defense of its case: Dr. David

Rosenberg and Dr. James Lockey, both board certified pulmonologists,

occupational medicine specialists, and “B readers.”2 Both experts agreed that the

interaction between smoking and asbestos-related diseases, such as asbestosis and

pleural plaques, elevates an individual’s risk of developing lung cancer. Dr.

Rosenberg characterized the effect of asbestos and smoking overall as “more than

additive, less than multiplicative.” (Doc. No. 76 at 56). Dr. Lockey noted that

2 The testimony of both defense experts was presented to the jury by way of a video-taped deposition played at trial. Dr. Rosenberg’s deposition was taken on September 5, 2014 and Dr. Lockey’s on September 22, 2014.

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historically there was a “synergistic effect” identified between smoking and

asbestos exposure and recent studies have “refined” the risk to show that people

with asbestosis are at a higher risk than those with pleural plaques. (Doc. No. 77

at 26-29). Both experts stated their opinion that radiological evidence of

asbestosis was necessary in order to causally relate lung cancer to asbestos.

However, they both acknowledged that there was conflicting medical research

regarding this issue.

1. Dr. Rosenberg

{¶48} Dr. Rosenberg explained that asbestos only poses a danger when it is

no longer encapsulated and becomes friable, meaning that the asbestos fibers

become loose, are dispersed into the air, and can be inhaled into the lungs. He

stated that only a small minority of people will develop an asbestos-related disease

because the development of these disorders requires a significant exposure to

friable asbestos over time.

{¶49} Dr. Rosenberg testified to the findings contained in his July 6, 2009

report which was based upon his examination of several documents, medical

records and radiologic studies. During his testimony, he specifically discussed his

review of a chest x-ray taken of Ivan on April 23, 2005, when Ivan was initially

diagnosed with lung cancer. He also spoke of his review of a chest x-ray taken of

Ivan on October 3, 2005, five months after Ivan was diagnosed with lung cancer.

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Dr. Rosenberg noted evidence of scarring on Ivan’s lungs which he attributed to

the cancer and radiation from the cancer treatment. However, he concluded there

was no evidence of asbestosis or asbestos-related pleural plaque formation. He

further opined that Ivan did not have an asbestos-related disease or disorder and

that Ivan’s “lung cancer and ultimate demise were related to his long smoking

history.” (Doc. No. 76 at 39).

2. Dr. Lockey

{¶50} Dr. Lockey initially recalled his 2009 evaluation of a selected

amount of Ivan’s medical records, which he performed at the request of the Ohio

Bureau of Worker’s Compensation. He stated that the records were “relatively

scanty.” (Doc. No. 77 at 30). He was later provided with additional medical

records pertaining to this litigation several days before his deposition. Dr. Lockey

discussed his review of these records which contained the reports of radiologists

and oncologists treating Ivan’s lung cancer. He searched the documents for

notations by the radiologists of changes in the x-rays or CT scans consistent with

asbestos exposure, such as evidence of pleural plaques or interstitial fibrosis due to

asbestos exposure.

{¶51} Dr. Lockey specifically discussed a CT scan report from April 23,

2005 wherein the treating radiologist identified “pleural plaques but no calcified

pleural plaques” and “chronic interstitial lung patterns.” (Doc. No. 77 at 32, Depo.

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Ex. D, p. 356). Dr. Lockey determined these findings to be “nonspecific” and

stated that calcification suggests the plaques have “been around for a long time.”

(Id. at 32). He also reviewed the April 23, 2005 CT scan and testified that he did

not find any pleural plaques or interstitial changes consistent with the diagnosis of

asbestosis. In addition, Dr. Lockey discussed his review of a chest x-ray taken of

Ivan on October 3, 2005. Again, he noted markings in the x-ray film that he

attributed to the lung cancer, but stated that he saw no indication of pleural

plaques or other interstitial changes in Ivan’s lungs consistent with asbestos

exposure. Based on his review of Ivan’s medical records along with various x-

rays and CT scans pertaining to the diagnosis and treatment of Ivan’s lung cancer,

Dr. Lockey opined that Ivan’s lung cancer was related to his “forty to eighty pack

year history of cigarette smoking” and “the potential exposure to asbestos was not

a significant contributing factor for his development of lung cancer.” (Id. at 41).

{¶52} In examining the medical evidence pertaining to a causal relationship

between Ivan’s lung cancer and his employment at GM, we note all three experts

testified that occupational exposure to airborne asbestos can lead to the

development of lung cancer. It was also well-documented in the record that Ivan

had a long history of smoking a pack to two packs of cigarettes a day, a habit

which can also lead to the development of lung cancer. Thus, the critical issue as

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it relates to causation is establishing a connection between Ivan’s occupational

exposure to asbestos at GM and his lung cancer.

{¶53} All three experts testified that the combination of an occupational

exposure to asbestos and smoking significantly increases a person’s risk of

developing lung cancer as compared to the general population—i.e., smokers who

are not exposed to asbestos and non-smokers who are occupationally exposed to

asbestos. The majority of Ivan’s medical records, including the radiologic studies,

submitted at trial pertained to his diagnosis of lung cancer in 2005 and the

subsequent cancer treatment until his death in 2007. Ivan’s death certificate stated

the cause of death as “Carcinoma of lung—metastatic to brain.”3 GM maintains

that Ivan’s long history of smoking was the only cause of Ivan’s lung cancer.

Both of their experts rendered opinions supporting this conclusion on the basis that

they did not find any evidence of an asbestos-related disease in the radiologic

studies.

{¶54} However, Dr. Rao identified specific characteristics on the x-rays he

reviewed which he opined to be consistent with asbestosis and diaphragmatic

plaques—both of which are markers of an asbestos-related disease. Specifically,

Dr. Rao identified the presence of bilateral interstitial fibrosis due to asbestosis

and pleural plaques in the lower portion of Ivan’s left lung on the December 11,

3 GM argues that the fact asbestosis was not included on Ivan’s death certificate is somehow dispositive to prove that his lung cancer was not asbestos-related. However, Dr. Rao testified that it is not unusual for a secondary diagnosis of asbestosis to be omitted from the death certificate. (Doc. 79 at 130).

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2000 x-ray—which was taken almost five years prior to Ivan’s lung cancer

diagnosis. (Doc. No. 79 at 88, Ex. 4). Dr. Rao distinguished the findings

indicative of asbestos-related diseases from other evidence on the x-ray which he

attributed to chronic obstructive pulmonary disease related to Ivan’s smoking.

According to Dr. Rao’s testimony, there was radiologic evidence of Ivan having

an asbestos-related disease years before he was diagnosed with lung cancer.

{¶55} All three experts also provided similar testimony regarding the

latency period between the injurious exposure to asbestos and the development of

an asbestos-related disease. Dr. Rao also reviewed much of the same medical

evidence as GM’s experts and reached a different conclusion regarding the

characteristics of the radiologic changes; specifically, where GM’s experts

attributed those changes solely to Ivan’s lung cancer, Dr. Rao distinguished the

progression of the asbestos-related diseases from the changes associated with the

lung cancer and its treatment.

{¶56} Given this evidence, a reasonable juror could conclude that Ivan

developed lung cancer as a result of his employment with GM. The question of

whether the medical evidence supports the conclusion that Ivan had an asbestos-

related disease which contributed to the development of his lung cancer could

reasonably be resolved either way. The parties put on a “battle of the doctors.”

Which doctors to believe was up to the jury to decide. Construing the evidence

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most strongly in favor of Loretta, we find that she presented sufficient evidence to

support the jury’s verdict that she was entitled to participate in the Ohio Workers’

Compensation System for Ivan’s condition of asbestos-related lung cancer.

Therefore, because reasonable minds could have reached more than one

conclusion based on the evidence submitted, GM was not entitled to judgment as a

matter of law, and the trial court properly denied GM’s motion for directed

verdict. Accordingly, GM’s first assignment of error is overruled.

Second and Third Assignments of Error

{¶57} On appeal, GM argues that the trial court erred in admitting certain

evidence at trial. We review the trial court’s rulings on admissibility of evidence

under an abuse of discretion standard. Estate of Johnson v. Randall Smith, Inc.,

135 Ohio St.3d 440, 2013-Ohio-1507, ¶ 22. Presuming that the trial court is in a

better position to evaluate the evidence and assess its credibility, we will not

reverse the trial court’s evidentiary ruling unless it was “contrary to law,

unreasonable, not supported by the evidence, or grossly unsound.” Schwarck v.

Schwarck, 3d Dist. Auglaize No. 2-11-24, 2012-Ohio-3902, ¶ 16.

Plaintiff’s Exhibits 5 and 6

{¶58} GM claims the trial court erred in admitting Plaintiff’s Exhibits 5 and

6 at trial. Both of these exhibits were documents produced by GM during the

course of discovery and tend to establish the presence of asbestos at GM’s

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Defiance facility. It should be noted the record suggests that over a matter of

several months GM impeded the discovery process by refusing to comply with

numerous requests for discovery. It is only after the trial court finally ruled in

favor of Loretta on these issues that GM produced the documents at issue.

{¶59} Exhibit 5 is a six-page document detailing GM’s safety policy for the

prevention of exposure to asbestos fibers which was implemented in March of

2006. Exhibit 6 is entitled “Asbestos Removal Summary” and lists the removal of

specific amounts of asbestos by department and date. The list spans as far back as

1981 and extends into 2011. GM argues that the documents are not relevant and

are unduly prejudicial because they cover a timeframe which is outside of Ivan’s

employment with GM and do not indicate whether the asbestos removed was

friable or otherwise hazardous.

{¶60} Evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Evid.R. 401. “Although

relevant, evidence is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.” Evid.R. 403(A). We are not persuaded by GM’s complaints

regarding the admissibility of these documents. The existence of asbestos at the

GM facility is a fact of consequence to the determination of this action. These

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documents produced by GM were therefore relevant in tending to establish this

fact which was essential to Loretta proving her claim.

{¶61} Moreover, GM has failed to persuade us that the admission of these

exhibits somehow had a prejudicial effect on its case based on its own assertions

that asbestos is not dangerous unless is its friable and airborne. These documents

only establish the mere presence of asbestos in the facility and do not specify the

condition of any of the products. Moreover, the jury heard extensive expert

testimony distinguishing the safety of encapsulated asbestos from the hazards of

friable asbestos and explaining the presence of a nominal amount of asbestos to

which the public is generally exposed that poses no danger or health risks. Thus,

we find no support for GM’s position that the admission of these documents

permitted the jury to make an improper inference regarding Ivan’s injurious

exposure to asbestos. Therefore, we are not convinced by GM that the trial court’s

admission of this evidence was so unreasonable, arbitrary, or unconscionable that

it was an abuse of discretion. See Cunningham v. Goodyear Tire & Rubber Co.,

104 Ohio App. 3d 385, 391 (9th Dist.1995) (finding no abuse of discretion in a

trial court’s decision to admit evidence of an employer’s asbestos removal after

decedent’s employment). Accordingly, GM’s second assignment of error is

overruled.

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Dr. Rao’s Expert Opinion

{¶62} GM also argues that the trial court erred in admitting Dr. Rao’s

expert opinion over its objection on the basis that his testimony assumed facts not

in evidence. GM claims that Dr. Rao’s expert opinion finding a causal

relationship between Ivan’s work responsibilities at GM and his lung cancer

should have been stricken because it was based on the assumption of three facts:

(1) that Ivan “worked for General Motors from approximately 1973 to 2001;” (2)

that Ivan “was occupationally exposed to and breathed in asbestos dust and fibers

while working for GM between 1973 and 2001;” and (3) that Ivan “smoked one to

two packs of cigarettes a day for approximately 47 years.” (Doc. No. 79 at 70-71).

{¶63} “Experts have the knowledge, training and experience to enlighten

the jury concerning the facts and their opinion regarding the facts.” Ramage v.

Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97, 102 (1992), citing McKay

Machine Co. v. Rodman, 11 Ohio St.2d 77 (1967). Ohio Evidence Rule 703

provides that the “facts or data in the particular case upon which an expert bases

an opinion or inference may be those perceived by the expert or admitted in

evidence at the hearing.” See also Evid.R. 705 (providing “[t]he expert may

testify in terms of opinion or inference and give the expert’s reasons therefor after

disclosure of the underlying facts or data. The disclosure may be in response to a

hypothetical question or otherwise”).

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{¶64} The contents of a hypothetical question posed to an expert witness

must fairly reflect the facts established by the evidence and upon which the

witness is prepared to give an opinion. Price v. Daugherty, 5 Ohio App.3d 157,

158–59 (2d Dist.1982), citing Surman v. Ohio & Pennsylvania Oil & Gasoline

Co., 116 Ohio App. 453 (8th Dist.1962), paragraph four of the syllabus. Thus, the

facts underlying an expert’s opinion must be either part of the expert’s personal

knowledge or admitted into evidence at the hearing or trial. Frazier v. Ohio State

Univ. Hosp., 10th Dist. No. 95API06-774 (Dec. 19, 1995). “If there is no

evidence to support an assumed fact * * *, the trial judge should intervene and

sustain an objection to the use of a hypothetical question containing such fact.”

Price at 160.

{¶65} “Where there is conflict in the evidence concerning the existence of a

fact which is material to the expert’s forming an opinion, counsel propounding the

hypothetical question is entitled to include as an assumed fact his version of the

evidence on the disputed fact. It is then for the trier of the facts to resolve the

factual dispute and, depending upon its findings, to determine what weight it will

give to the opinion-answer.” Mayhorn v. Pavey, 8 Ohio App.3d 189, 191-192

(1982).

{¶66} At trial, Loretta provided evidence in support of each hypothetical

question asked of Dr. Rao in rendering his expert medical opinion. On appeal,

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GM specifically takes issue with Dr. Rao assuming the fact that Ivan “was

occupationally exposed to and breathed in asbestos dust and fibers while working

for GM between 1973 and 2001.” However, as discussed in the resolution of the

first assignment of error, we found there was substantial evidence presented at trial

to sufficiently establish Ivan’s occupational asbestos exposure at GM to permit the

issue to be determined by the jury. Thus, there was independent evidence in the

record to support Dr. Rao’s assumption on this disputed fact. Accordingly, we

find no abuse of discretion in the trial court’s decision to allow the trier of the fact

to resolve the factual dispute as to the issue of Ivan’s occupational asbestos

exposure and to determine the weight to accord Dr. Rao’s expert opinion. GM’s

third assignment of error is also overruled.

{¶67} For all these reasons the judgment is affirmed.

ROGERS, P.J. and PRESTON, J., concur.

/jlr

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