[Cite as Turner v. Certainteed Corp., 2016-Ohio-7776.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103475
BOBBY TURNER, ET AL. PLAINTIFFS-APPELLEES
vs.
CERTAINTEED CORPORATION, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-820027
BEFORE: Keough, J., Jones, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 17, 2016 ATTORNEYS FOR APPELLANTS
Richard D. Schuster Perry W. Doran, II Stephen C. Musilli Daniel E. Shuey Vorys, Sater, Seymour & Pease, L.L.P. P.O. Box 1008 52 East Gay Street Columbus, Ohio 43216
ATTORNEYS FOR APPELLEES
Christopher J. Hickey Kevin E. McDermott McDermott & Hickey, L.L.C. 20525 Center Ridge Road, Suite 200 Rocky River, Ohio 44116
Keith W. Binder Jerome H. Block Donald Blydenburgh Levy Konigsberg, L.L.P. 800 Third Avenue, 11th Floor New York, New York 10022 KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Union Carbide Corporation, appeals the trial court’s
decision denying its renewed motion for administrative dismissal pursuant to R.C.
2307.92 and 2307.93. For the reasons that follow, we affirm.
{¶2} In April 2013, plaintiff-appellee, Bobby Turner, was diagnosed with lung
cancer. In January 2014, Turner and his wife filed a lawsuit against Union Carbide and
other named defendants,1 alleging that his lung cancer was caused by his occupational
exposure to asbestos as a drywall finisher from approximately 1962 until 1978. In
February 2014, Union Carbide moved to administratively dismiss Turner’s complaint
pursuant to R.C. 2307.93, contending that Turner failed to submit prima facie evidence
pursuant to R.C. 2307.92 within the prescribed time.
{¶3} In response, Turner filed an affidavit stating that during the year of 1956 he
smoked one cigar a month, but quit thereafter. He stated that he is “a nonsmoker and
[has] been since approximately 1957.” Additionally, Turner attached some of his
medical records supporting his contention that he was a nonsmoker. Included was a
record from his treating pulmonologist, Dr. Jay Kumar, dated April 17, 2013, that
provides: “Any Info: COPD/50 cigar years”; a record dated April 25, 2013 from
Regional Medical Center at Bayonet Point, that provides: “He never smoked and does
Defendants, Certainteed Corporation, Clark Industrial Insulation Co., Georgia Pacific 1
Corporation, Kaiser Gypsum Company, Inc., Red Seal Electric Company, R.T. Vanderbilt Company, Inc., Technical Products, Inc., and Akron Sales Company are not parties to the appeal. not drink”; record dated May 10, 2013 that provides: “Smoking hx from nursing assess
Current SOME day smoker; Social history: Denies alcohol, drugs, smoker”; a record
dated April 29, 2013, from Bayonet Point that provides: “never smoker” “Adult cigarette
smoking history w/in last year — No,” “Currently Uses Tobacco Products — N,”
Smoking Cessation Information Given — Y”; a record dated April 30, 2013 from
Bayonet Point that provides: “never smoker,” and provides “no” answers for “adult
cigarette smoking history w/in last year” and “currently uses tobacco products”; a record
from Bayonet Point dated May 10, 2013 that provides: “Denies any history of smoking
or alcohol use”; a record dated May 10, 2013 from Bayonet Point Center that provides
under “Social History,” “former smoker,” “adult cigarette smoking history w/in last year -
No,” “Smoking Cessation Information Given: Y.”
{¶4} Based on Turner’s affidavit response and corresponding medical records,
Union Carbide withdrew its motion to administratively dismiss Turner’s complaint. The
case proceeded forward for the next 16 months.
{¶5} However, approximately two weeks prior to trial in August 2015, Union
Carbide filed a renewed motion for administrative dismissal challenging the adequacy of
Turner’s prima facie evidence of physical impairment. Specifically, it claimed that
based on recently obtained medical records and deposition testimony, Turner is a smoker
as defined in R.C. 2307.91(DD), and therefore failed to meet the minimum medical
requirements for a tort action alleging asbestos exposure as prescribed in R.C.
2307.92(C). In support, Union Carbide identified fourteen instances in Turner’s medical records that indicated that Turner smoked cigars for 40 years. Union Carbide attached to
its motion Turner’s medical records purporting to evidence the same, including some of
the records Turner attached to his affidavit in response to Union Carbide’s initial motion
to dismiss in February 2014. Also attached to its motion was deposition testimony from
Turner’s general physician, Dr. Joel Nunag, that purportedly also established that Turner
was a smoker. Additionally, Union Carbide attached a medical expert affidavit and
supporting documents linking the effect of cigar smoking to lung cancer.
{¶6} Turner opposed Union Carbide’s motion contending that the totality of
Turner’s medical records and testimony of his treating pulmonologist confirm that Turner
is not a smoker. Turner also stated that even if Union Carbide’s assertion was true that
he smoked an occasional cigar until 2012, he still does not qualify as a “smoker” under
R.C. 2307.91 because the definition does not include cigar smoking or the occasional use
of tobacco.
{¶7} Following a hearing on the matter, the trial court denied Union Carbide’s
motion. In its written opinion, the trial court found that the parties submitted conflicting
evidence, which included inconsistent references that Turner was an occasional smoker.
However, the court concluded that the overwhelming majority of notations in Turner’s
medical records support his claim of no recent smoking history. Accordingly, the court
held that Union Carbide “failed to prove that Mr. Turner is a smoker, as defined in R.C.
2307.91(DD).” {¶8} Union Carbide appeals, raising as its sole assignment of error that the trial
court erred when it denied its renewed motion for administrative dismissal under R.C.
2307.92 and 2307.93. The following issue is raised Union Carbide:
In an asbestos tort action alleging lung cancer, when there is evidence that a plaintiff has smoked in the past fifteen years, does the plaintiff have the burden of proving, through a “written report of a competent medical authority,” that he is not a smoker as defined by R.C. 2307.91(DD).2
Union Carbide does not challenge the trial court’s ultimate decision that Turner is not a
smoker; rather, only maintains that the trial court applied the wrong standard and should
not have weighed the evidence to make that determination. This purely legal issue
renders this court’s review de novo. See Squire, Sanders & Dempsey, L.L.P. v.
Givaudan Flavors Corp., 8th Dist. Cuyahoga No. 92366, 2009-Ohio-2490, ¶ 38 (where a
court has misstated the law or applied an incorrect legal standard, giving rise to a purely
legal issue on appeal, the reviewing court applies a de novo review).
{¶9} Essentially, this case centers around the question of when there is conflicting
evidence of plaintiff’s smoking status, does the plaintiff need to present a written report
of competent medical authority to withstand his burden of proving he is a nonsmoker.
This court provided the answer to this question in Farnsworth v. Allied Glove Corp., 8th
Dist. Cuyahoga No. 91731, 2009-Ohio-3890.
Union Carbide acknowledges, and we agree, that the trial court erroneously concluded that 2
Union Carbide was required to prove Turner is a smoker. The law is clear that the plaintiff bears this burden. However, Union Carbide does not raise this issue as reversible error. {¶10} In Farnsworth, this court held that when there is a dispute as to whether an
exposed person is a smoker, the parties must first submit evidence regarding his smoker
status and then the trial court must review the evidence submitted by both parties to
resolve the issue. Id. at ¶ 31. If the defendant submits competent, credible evidence
establishing that the exposed person is a smoker, then the burden shifts to the plaintiff to
establish that the exposed person is not a smoker as defined in R.C. 2307.91(DD) because
“the plaintiff * * * has the ultimate burden to prove that the exposed person is not a
smoker[.]” Id. at ¶ 32.
{¶11} However, Union Carbide asks this court to modify Farnsworth because of
the Ohio Supreme Court’s subsequent decision in Renfrow v. Norfolk S. Ry. Co., 140
Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173. Union Carbide contends that
although Farnsworth properly placed the burden on the plaintiff to prove the smoking
status, it improperly ignored and deleted the statutory requirement that a plaintiff meet
that burden through a “written report of a competent medical authority” as provided in
R.C. 2307.91(DD). It argues that Renfrow mandates that Farnsworth be modified to
include that the plaintiff must establish that the exposed person is not a smoker with “a
written report of a competent medical authority.” We disagree because this court
considered and rejected this argument in Farnsworth. Additionally, our reading of the
Ohio Supreme Court’s decision in Renfrow does not require this court to revisit this issue.
{¶12} In Farnsworth, this court considered and addressed Union Carbide’s current
argument, by concluding that the determination of whether a person is a smoker is a threshold question that must be determined prior to requiring a plaintiff to submit a
written report of a competent medical authority as prima facie evidence of the exposed
person’s physical impairment that meets the minimum medical requirements under R.C.
Chapter 2307.
{¶13} Robert Farnsworth and his wife filed an asbestos-related claim alleging that
Robert’s exposure to asbestos during his employment caused him to develop lung cancer.
In response, the defendants moved to administratively dismiss the case, arguing that
because Robert was a smoker for purposes of R.C. 2307.92 and 2307.93, the Farnsworths
were required to establish a prima facie case through competent medical authority, which
they failed to do. In their brief in opposition, the Farnsworths argued that Robert was not
a smoker as defined under R.C. 2307.91(DD) and, therefore, they did not have to
establish a prima facie showing. The trial court found that Robert was a smoker and
granted the defendants’ motion to administratively dismiss the case. The Farnsworths
appealed.
{¶14} The Farnsworth court noted,
R.C. 2307.92 outlines the minimum medical requirements for tort actions alleging asbestos claims. R.C. 2307.92(B), (C), and (D), respectively, prohibit plaintiffs from maintaining asbestos actions based upon: (1) nonmalignant conditions; (2) smoker lung-cancer claims; * * * and (3) wrongful death, unless the plaintiffs in each of these situations can establish a prima facie showing in the manner described in R.C. 2307.93(A).
Farnsworth, 8th Dist. Cuyahoga No. 91731, 2009-Ohio-3890, at ¶ 10.
{¶15} Under R.C. 2307.93(A)(1), any plaintiff who bases his claim on R.C.
2307.92(B), (C), or (D), must file a written report and supporting test results constituting prima facie evidence of the exposed person’s physical impairment. A defendant may
challenge the adequacy of the plaintiff’s prima facie evidence under R.C. 2307.93(B).
However,
the court “shall determine from all of the evidence submitted” whether the proffered prima facie evidence meets the minimum requirements for cases involving nonmalignant conditions, smoker lung cancer, or wrongful death, as specified in R.C. 2307.92(B), (C), or (D). If the court finds, after considering all of the evidence, that the plaintiff failed to make a prima facie showing, then “[t]he court shall administratively dismiss the plaintiff’s claim without prejudice.” R.C. 2307.93(C).
Id. at ¶ 12.
{¶16} On appeal, the Farnsworth defendants argued that a lung cancer claimant
who contends that he is exempt from establishing a prima facie case must bear the burden
of proving he is exempt through competent medical authority. The Farnsworths argued
that the defendants had the burden to prove through competent medical authority that the
exposed person is a smoker.
{¶17} Pursuant to R.C. 2307.91(DD), “smoker” means “a person who has smoked
the equivalent of one-pack year, as specified in the written report of a competent medical
authority pursuant to sections 2307.92 and 2307.93 of the Revised Code, during the last
fifteen years.” Although R.C. 2307.91 does not define a “nonsmoker,” the Tenth District
noted that “by implication, a party must have smoked less than one pack per year during
the last 15 years to be deemed a nonsmoker.” Penn v. A-Best Prods. Co., 10th Dist.
Franklin Nos. 07AP-404, 07AP-405, 07AP-406, and 07AP-407, 2007-Ohio-7145, ¶ 26.
A “pack year” is a term used to “measure the amount a person has smoked over a long period of time.” Fields v. CSX Transp., Inc., 8th Dist. Cuyahoga No. 98612,
2013-Ohio-822, ¶ 15, quoting NCI Dictionary of Cancer Terms,
http://cancer.gov/dictionary (accessed Jan. 22, 2013). “A pack year is calculated by
multiplying the number of packs of cigarettes smoked per day by the number of years the
person has smoked.” Id.
{¶18} In examining R.C. 2307.91(DD), the Farnsworth court found that the
definition of “smoker” is ambiguous. The court stated that:
The definition refers to terms to define “smoker” that only apply to plaintiffs who are smokers. The phrase refers to a medical doctor’s written report that a plaintiff must submit to meet the prima facie showing — after it has already been determined that the person is a smoker. It is nonsensical. It raises the question (or more colloquially, begs the question): what comes first, the smoker or the written report; the smoker or competent medical authority?
(Emphasis sic.) Id. at ¶ 23.
{¶19} The court concluded that “the smoker must come first — since the written
report, which will include the diagnosis from a competent medical authority, is not
required until after it has been determined that the person is a smoker.” Id. at ¶ 24. If it
is determined that the exposed person is a smoker, “then the plaintiff must meet the
requirements under H.B. 292 by filing the written report establishing a prima facie case
through competent medical authority and the other evidence that is required. See R.C.
2307.92 and 2307.93.” Id. at ¶ 25.
{¶20} Accordingly, the court stated
[t]hat at this preliminary stage of the litigation, when courts are simply attempting to prioritize its asbestos docket, neither plaintiffs nor defendants are required to use a competent medical authority — which again is a medical doctor who provides a diagnosis for purposes of establishing prima facie evidence of an exposed person’s physical impairment — to prove that an exposed person is or is not a smoker.
Id. at ¶ 30. Therefore, a party does not need to use a competent medical authority to
prove whether a person is a smoker; this is an underlying determination that must be
made to determine which subsection of R.C. 2307.92 applies — what is the prima facie
showing, i.e. what are the minimum medical requirements for the tort action alleging an
asbestos claim.
Thus, when there is a dispute as to whether a person is or is not a smoker, the parties must submit admissible evidence to prove their contention, which may very well include the exposed person’s medical history. Whether a person is a smoker may be very clear. It may be equally as clear that a person is not a smoker. But when there is a question as to whether the person is or is not a smoker * * * the trial court must review the evidence submitted by both parties to resolve the issue.
Based on the requirements of these provisions, it logically follows that if a defendant submits competent, credible evidence establishing that a plaintiff is a smoker, then the burden should shift to a plaintiff to establish that the exposed person is not a smoker as defined in R.C. 2307.91(DD). The plaintiff has the ultimate burden to prove that the exposed person is not a smoker, since it is the plaintiff who ultimately must establish a prima facie case, if the exposed person is indeed a smoker, to prevent the case from being dismissed.
Farnsworth, 8th Dist. Cuyahoga No. 91731, 2009-Ohio-3890, ¶ 31-32.
{¶21} Whether someone is a smoker is a factual determination, not a medical
determination. Under the law, competent medical authority is necessary to make a
medical determination that an exposed person’s diagnosis of lung cancer was a result of
asbestos exposure, and not from smoking. The General Assembly’s intent of requiring competent medical authority was for this purpose and not for a determination whether a
person was a smoker. As the statute reads, a “competent medical authority” is “a
medical doctor who is providing a diagnosis for purposes of constituting prima-facie
evidence of an exposed person’s physical impairment that meets the requirements
specified in section 2307.92 * * *.” R.C. 2307.91(Z). A “competent medical authority”
is not defined as a medical doctor to prove a plaintiff’s smoker status.
{¶22} To hold the opposite would mean that all plaintiffs, whether a smoker or
nonsmoker, would potentially be required to submit a written report from a competent
medical authority in order to maintain any action alleging an asbestos claim based on lung
cancer of an exposed person. This requirement is contrary to the statute that requires
only certain asbestos litigants provide a written report of a competent medical authority.
See R.C. 2307.92 and 2307.93(A).
{¶23} Accordingly, plaintiffs are not required to submit “the written report of a
competent medical authority” until it has been determined that they are smokers.
Farnsworth at ¶ 40. This conclusion is consistent with the Tenth District’s observation
that R.C. 2307.92 and 2307.93 fails to impose any requirement upon a nonsmoker
alleging an asbestos claim based on lung cancer to submit evidence via a competent
medical authority to indicate his smoking status. Penn, 10th Dist. Franklin Nos.
07AP-404, 07AP-405, 07AP-406, and 07AP-407, 2007-Ohio-7145, at ¶ 27.
Accordingly, Union Carbide’s argument on appeal in this case fails much like the
arguments raised by both the plaintiffs and defendants in Farnsworth — neither plaintiffs nor defendants are required to use competent medical authority to prove a person’s
smoking status. Farnsworth at ¶ 30.
{¶24} Moreover, the Ohio Supreme Court’s decision in Renfrow does not require
this court to revisit this issue. Union Carbide contends that the Ohio Supreme Court
made it clear that when the General Assembly requires a plaintiff to provide a report from
a “competent medical authority,” courts may not deviate from that requirement.
{¶25} In Renfrow, the court was presented with an asbestos litigant who was
attempting to establish a prima facie showing as required under R.C. 2307.92 and
2307.93 to prevent administrative dismissal. The court was asked to review whether
plaintiffs who do not have traditional doctor-patient relationships as described in R.C.
2307.91, like Veteran’s Affairs patients, must still satisfy the minimal medical
requirements in establishing a prima facie case, and, if so, does Ohio law governing
asbestos litigation deprive such litigants their substantive rights granted by the Ohio
Constitution because VA physicians are prohibited from providing an expert report or
opinion.
{¶26} In response to the first issue, the Ohio Supreme Court held that a
smoker-plaintiff who brings an action alleging an asbestos claim based upon lung cancer
must provide a diagnosis by a competent medical authority that the exposed person has
primary lung cancer and that the exposure to asbestos is a substantial contributing factor.
This requirement applies equally to VA patients. {¶27} The Ohio Supreme Court concluded that the physician who issued the report
in support of Gerald Renfrow’s case did not satisfy the definition of “competent medical
authority” because he did not treat Renfrow or have a doctor-patient relationship with him
as required by R.C. 2307.91(Z). Additionally, the report did not establish that Gerald
Renfrow’s exposure to asbestos was the predominate cause of his lung cancer.
{¶28} However, the court did not decide if a strict application of “competent
medical authority” would be upheld if an asbestos litigant was prohibited from satisfying
the definition of competent medical authority. The Renfrow plaintiff contended that the
“competent medical authority” requirements found under R.C. 2307.91(Z)(2) deprives a
VA asbestos litigant of substantive rights because it requires the litigant to produce an
expert report from the VA physician who are prohibited from giving that expert opinion
under federal law. The Ohio Supreme Court, recognizing this obstacle, noted that while
federal law prohibits a VA physician from giving an expert report, the law does not
prohibit a litigant from issuing a subpoena to a VA official for that expert report. The
Renfrow plaintiff did not issue the subpoena. Therefore, because the plaintiff did not
attempt to subpoena the VA treating physician, the Ohio Supreme Court held that plaintiff
still had an available remedy; thus, no substantive rights were violated.
{¶29} Therefore, whether R.C. 2307.92 and 2307.93 deprived the plaintiff of a
substantive right under the constitution was not addressed because the case was resolved
on a procedural deficiency, not on substantive grounds. Therefore, despite the
nontraditional patient who utilize VA physicians, the statutory requirements must still be met, until it is shown that the asbestos plaintiff has exhausted all attempts to comply and
is prevented under federal law.
{¶30} Accordingly, as Justice Pfeifer noted in his concurring opinion, “one does
wonder whether the outcome would have been different had counsel subpoenaed the [VA
doctors] who treated Renfrow. At a minimum, that action would have prevented this
court from concluding that Cleo Renfrow had abandoned her efforts to comply with R.C.
2307.92.” Renfrow, 140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173, at ¶ 34
(Pfeifer, J., concurring). Thus, the ultimate underlying issue was not resolved —
whether a strict application of law deprives nontraditional patients access to the courts for
asbestos litigation.
{¶31} Contrary to Union Carbide’s assertion in this appeal, no new guidance was
established by the Ohio Supreme Court in Renfrow regarding how courts should interpret
the laws governing asbestos litigation. The Ohio Supreme Court merely reiterated that,
until it can be proven that an asbestos litigant is prohibited from satisfying the
requirements under Ohio law, to establish a prima facie tort action alleging an asbestos
claim based on lung cancer requires a person who is a smoker to include a diagnosis by a
competent medical authority as defined under R.C. 2307.91(Z) that the exposure to
asbestos is a substantial contributing factor. Renfrow at paragraphs one and two of the
syllabus. That issue is not in dispute in the case before this court. The issue here is
whether competent medical authority is needed to prove a threshold question before getting to the prima facie evidence stage. That issue was addressed and resolved in
Farnsworth as previously discussed.
{¶32} Accordingly and following this court’s holding in Farnsworth, the
determination of whether the plaintiff is a smoker is a threshold question that the trial
court considers based on the evidence presented and determines prior to a plaintiff
submitting prima facie evidence pursuant to R.C. 2307.92 and 2307.93.
{¶33} Although not specifically challenged by Union Carbide, reviewing the
evidence presented to the trial court, the court’s decision finding that Turner does not
meet the statutory definition of a “smoker” is not against the manifest weight of the
evidence. When conducting a manifest weight review, every reasonable presumption
must be made in favor of the trial court’s finding, and when the evidence is susceptible of
more than one construction, reviewing courts are bound to apply an interpretation that is
consistent with the trial court’s decision. CSX II at ¶ 18, citing Eastley v. Volkman, 132
Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 21. “An appellate court should not
substitute its judgment for that of the trial court where some competent and credible
evidence supports the trial court’s factual findings.” Farnsworth at ¶ 42, quoting
Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 355, 617 N.E.2d 1136 (1993),
citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).
{¶34} The record demonstrates that trial court considered all the evidence
submitted by both parties on the issue. During its review, the trial court attempted to
reconcile an apparent contradiction with Turner’s history of smoking. Additionally, our review revealed that even within the same medical documents, contradictions appeared
concerning Turner’s smoking history. The court noted that an “overwhelming majority
of notations in Mr. Turner’s medical records support his claim of no recent smoking
history.” The trial court concluded that based on Turner’s medical records, deposition
testimony by Turner and Drs. Kumar and Nunag, and affidavits of friends and relatives, it
was more likely that mistakes were made in the notations in Turner’s medical records
indicating that he was a smoker; or that he was, at best, an occasional cigar smoker.
{¶35} Accordingly, the record establishes that the trial court had competent,
credible evidence before it to support its decision finding Turner to be a nonsmoker. The
trial court’s decision was not against the manifest weight of the evidence. Union
Carbide’s assignment of error is overruled.
{¶36} Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., A.J., and EILEEN T. GALLAGHER, J., CONCUR