Oral Argument Preview: Clarifying Requirements About Smoking History for Workers Exposed to Asbestos Who Have Lung Cancer. Bobby Turner, et al. v. CertainTeed Corporation, et al.

On February 13, 2018, the Supreme Court of Ohio will hear oral argument in Bobby Turner, et al. v. CertainTeed Corporation, et al., 2017-0004. At issue in the case is whether Ohio law requires any plaintiff who has been exposed to asbestos and who has lung cancer, and who has smoked in the last 15 years, to submit a written report by a competent medical authority to prove he or she has not smoked enough to be deemed a smoker, as that term is defined by R.C. 2307.91 (D)(D).

Case Background

H.B. 292, effective September 2, 2004, and codified at R.C. 2307.91-.98, extensively revised laws governing asbestos litigation in Ohio.   Under Ohio’s comprehensive asbestos tort system, in an asbestos case in which the plaintiff suffers from lung cancer, a plaintiff who has been a smoker must meet certain criteria not required of non-smokers to establish that the asbestos exposure contributed to the plaintiff-smoker’s disease.  Any plaintiff with lung cancer who has a sufficient history of tobacco use must establish with a written report from competent medical authority either that the plaintiff is not a smoker, as that term is defined by statute, or that the plaintiff’s lung cancer was predominately caused by asbestos exposure, and not tobacco use. The dispute in this case turns on how and by whom a plaintiff’s smoking status is to be established.

In 2013, Appellee Bobby Turner was diagnosed with lung cancer.  In January 2014, Turner and his wife filed suit against Appellant Union Carbide Corporation and other named defendants not party to the present appeal. Turner alleged that his lung cancer was caused by his occupational exposure to asbestos as a drywall finisher from approximately 1962 until 1978. In 2014, Union Carbide moved to dismiss Turner’s complaint pursuant to R.C. 2307.93. Union Carbide contended that Turner failed to timely submit prima facie evidence about his smoking status as required by R.C. 2307. Turner responded by filing an affidavit stating that he had smoked a monthly cigar in 1956, but quit thereafter. Turner also submitted various medical records supporting his contention that he was a non-smoker. Based on these documents, Union Carbide withdrew its motion.

However, in 2015, Union Carbide renewed its motion for administrative dismissal, challenging the adequacy of Turner’s prima facie evidence. Specifically, Union Carbide claimed, based on newly obtained medical records and deposition testimony, that Turner qualifies as a smoker as defined under R.C. 2307.91(DD). Therefore, Turner failed to meet the minimum requirements to bring a tort action alleging asbestos exposure. Turner opposed Union Carbide’s motion and contends that the totality of the evidence supports Turner’s proposition that he is not a smoker. Cuyahoga County Common Pleas Judge John J. Russo weighed the conflicting evidence and concluded that the overwhelming weight of the evidence supported Turner’s claim. Accordingly, Judge Russo ruled that Union Carbide failed to prove that Turner is a smoker.

On appeal, the Eighth District, in a unanimous opinion written by Judge Kathleen Keough, and joined by judges Larry Jones and Eileen T. Gallagher, affirmed Judge Russo’s ruling and denied Union Carbide’s motion for administrative dismissal pursuant to R.C. 2307.92 and 2307.93.  The Eighth District found that a plaintiff need not establish that an exposed person is not a smoker with a written report of a competent medical authority. Whether or not a person is a smoker is a factual, not a medical, determination. Written reports by a competent medical authority are only required after it is determined that the exposed person is a smoker, to establish that the plaintiff’s diagnosis of lung cancer was a result of asbestos exposure, and not from smoking. Only plaintiffs who are found to be smokers must submit such reports. Nothing in Renfrow v. Norfolk S. Ry. Co. changes this. Here, the decision of the trial court that Turner was not a smoker was supported by competent credible evidence.

Votes to Accept the Case

Yes:  Justices O’ Donnell, Kennedy, O’Neill, and French.

No: Chief Justice O’Connor, and Justices DeWine and Fischer

Key Statutes and Precedent

R.C. 2307.91(DD) (Asbestos claims—definitions:

(Z) “Competent medical authority” means 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. . .

(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.)(*the National Cancer Institute defines a “pack-year” “as a way to measure the amount a person has smoked over a long period of time. It is calculated by multiplying the number of packs of cigarettes smoked per day by the number of years the person has smoked.)

R.C. 2307.92 (Prima facie showing of evidence of physical impairment:

  1. “bodily injury caused by exposure to asbestos” means physical impairment of an exposed person, to which the person’s exposure to asbestos is a substantial contributing factor.

(C)(1)(a-c) No person shall bring or maintain a tort action alleging an asbestos claim based upon lung cancer of an exposed person who is a smoker, in the absence of a prima-facie showing, in the manner described in division (A) of section 2307.93 of the Revised Code, that the exposed person has a physical impairment, that the physical impairment is a result of a medical condition, and that the person’s exposure to asbestos is a substantial contributing factor to the medical condition. That prima-facie showing shall include all of the following minimum requirements: A diagnosis by a competent medical authority that the exposed person has primary lung cancer and that exposure to asbestos is a substantial contributing factor to that cancer; at least ten years have passed from the date of the person’s exposure to the eventual diagnosis; and either evidence of the exposed person’s substantial exposure to asbestos, or  evidence of the exposed person’s exposure to asbestos at least equal to 25 fiber per cc years as determined to a reasonable degree of scientific probability by a scientifically valid retrospective exposure reconstruction by a qualified professional.)

R.C. 2307.93 (Any plaintiff alleging an asbestos claim shall file, within thirty days of filing the initial complaint, a written report supporting the plaintiff’s physical impairments described in R.C. 2307.92. If a defendant challenges the adequacy of such prima facie evidence the court shall determine whether the evidence meets the minimum requirements of R.C. 2307.92 by the standard for resolving a motion for summary judgment. The court shall dismiss the plaintiff’s claim without prejudice if it finds the plaintiff failed to make an adequate prima facie showing.)

Penn v. A-Best Prods. Co., 2007-Ohio-7145 (10th Dist.)(Neither R.C. 2307.92 nor R.C. 2307.93 place any burden on a party to submit a written report and supporting test results to demonstrate that he or she is a non-smoker.)

Farnsworth v. Allied Glove Corp., 2009-Ohio-3890 (8th Dist.) (The determination as to whether a person is a smoker is a threshold question that must be decided before requiring a plaintiff to submit a report of competent medical authority as prima facie evidence that meets the necessary elements of the statute.)

Renfrow v. Norfolk S. Ry. Co., 2014-Ohio-3666 (One of the statutory prerequisites necessary to establish a prima facie tort action alleging an asbestos claim based upon lung cancer requires a person who is a smoker to demonstrate a diagnosis by a competent medical authority that the exposure to asbestos is a substantial contributing factor.)(First paragraph of syllabus)

State ex rel. Clay v. Cuyahoga County Medical Examiner’s Office, 2017-Ohio-8714 (When statutory construction is possible, the purpose of such construction is to discern the intent of the General Assembly. However, when no ambiguity is present, there is no room for statutory construction or interpretation.)

Union Carbide’s Argument

Under the plain language of the statutes involved, a plaintiff with lung cancer who has a history of smoking must prove with a written report from competent medical authority that he has not smoked enough to be deemed a smoker under the definition set out in R.C. 2307.91(DD). Ohio law requires that current and former smokers who claim that asbestos exposure (and not smoking) is the cause of their lung cancer must first make a prima-facie showing in order to move forward with their case. A claimant’s smoking history is highly probative of the question of whether the lung cancer is genuinely asbestos-related.

Medical records from multiple medical providers show that Bobby Turner smoked cigars. Likewise, deposition testimony from Turner’s treating physicians, shows that they treated Turner as a smoker. Turner’s preexisting conditions, COPD and emphysema, which are smoking-related diseases, make it more difficult for Turner to prove he is not a smoker under the statute. In fact, Turner failed to prove he was not a smoker. Turner failed to present a report from a competent medical authority concluding that he had not smoked the equivalent of one-pack year in the past 15 years, per R.C. 2307.91(DD).

The Eighth District’s opinion fails to comply with established rules of statutory interpretation. By letting Turner bypass the competent medical authority requirement and, instead, letting him rely on self-serving affidavits from friends and family, the Eighth District read out of the statute the phrase “as specified in the written report of a competent medical authority” and substituted in its place the judgment of the court after a weighing of the evidence. This is further evidence of the Eighth District’s animosity toward the statutory term “competent medical authority.” Over the years, the Eighth district has invented exceptions and attempted to repudiate the term. This problem, however, should have been resolved in 2014, when this Court decided Renfrow and said courts may not deviate from the requirement to provide evidence of smoker status by report of a competent medical authority. Just as in Renfrow, Turner likewise failed to present any prima facie evidence by a competent medical authority about his smoker status and should be required to do so. The Eighth District deliberately disregarded this Court’s holding in Renfrow when it said: “no new guidance was established by the Ohio Supreme Court in Renfrow.” Because of the Eighth District’s deliberate disregard of this Court’s holding in Renfrow, this Court should clarify that its pronouncements in Refrow apply when interpreting R.C. 2307.91(DD).

The language of R.C. 2307.91(DD) is clear, but, even if the language is ambiguous, the intent of the General Assembly is clear. To determine the General Assembly’s intent, courts look to the language of the statute, the circumstances under which the statute was enacted, and the consequences of a particular construction. The language of R.C. 2307.91(DD) reflects a legislative compromise intended to allow plaintiffs that have smoked within the last 15 years the opportunity to prove that they have not smoked a sufficient amount to be classified as a smoker. As an essential part of this compromise, the General Assembly established two requirements for such plaintiffs to prove they have not smoked enough to be considered a smoker. First, the plaintiff cannot have smoked more than the equivalent of one pack year in the past fifteen years, and second, a plaintiff must establish this lack of significant smoking through a report of a competent medical authority. Therefore, it is reasonable to require Turner to abide by these requirements and submit a report of a competent medical authority to prove his non-smoker status. Since Turner has not submitted a report by a competent medical authority, he should not be recognized as a non-smoker. Accordingly, the ruling of the Eighth District should be reversed, with instructions to the trial court to apply the correct standard.

Turner’s Argument

Union Carbide’s argument, that Ohio law requires a plaintiff with any smoking history to obtain a competent medical authority’s written report regarding his or her smoking status, is unsupported by the statute’s plain meaning and the intent of the General Assembly. R.C. 2307.92 requires, in relevant part, that prima facie evidence, in the form of a written report by a competent medical authority, be submitted for lung cancer plaintiffs who are smokers. However, non-smokers are not required to submit such evidence of their non-smoker status. Accordingly, to determine whether or not a written report is required from a lung cancer plaintiff, the trial court need first determine whether or not the plaintiff is a smoker; a fact the trial court must determine based on the totality of the evidence. Since this is a factual determination, the trial court’s decision should be affirmed if not against the manifest weight of the evidence, which it was not. Other than the occasional cigar in the 1950’s, Turner is a non-smoker.

R.C. 2307.91(DD) only applies to plaintiffs who are smokers. The General Assembly could have easily written into the statute a similar medical report requirement for the threshold smoking status, but it did not. The only purpose of a competent medical authority’s report is to determine, for individuals already determined to be smokers, whether asbestos is the substantial contributing factor to the illness. The statute specifically states what a written report should address: (1) a diagnosis; (2) attribution (substantial contributing factor); (3) latency; and (4) either (i) evidence of substantial occupational exposure to asbestos; or (ii) evidence of dose reconstruction. Nowhere in the statute does the General Assembly provide that a report by a competent medical authority must address whether a plaintiff is a smoker or not.

Additional support that a written report is not intended to determine whether a plaintiff qualifies as a smoker or not can be found in R.C. 2307.91(Z). Specifically, R.C. 2307.91(Z) defines competent medical authority as a medical provider who provides a diagnosis for purposes of meeting the requisite prima facie evidence requirements. By definition, the term competent medical authority applies only to those medical doctors who are providing a diagnosis for purposes of establishing prima facie evidence of an exposed person’s physical impairment.

Similarly, Union Carbide’s proposed reading of Renfrow is incorrect. Renfrow stands for the proposition that trial and appellate courts may not insert language into a statute that is absent in the statute’s plain language. Despite being a smoker, Renfrow sought to avoid his statutory requirement because he had been treated at a VA hospital, which refused to allow its doctors to draft written reports regarding disease causation. This Court, reading the plain language of the competent medical authority definition and the statute’s lack of exceptions, reversed the Eighth District, and held that, under the statute, smoking lung cancer plaintiffs, despite any potential hardships, must provide a written report by a competent medical authority as defined by the statute. Union Carbide’s brief twists Renfrow’s holding to require a competent medical authority’s written report from non-smoking lung cancer plaintiffs. By contrast, Judge Russo and the Eighth District issued rulings that are entirely consistent with Renfrow by refusing to read language into the statute. Therefore, because the Eighth District’s opinion was entirely consistent with the plain meaning of the Ohio statute and the General Assembly’s intent, the ruling of the Eighth District should be affirmed.

Union Carbide’s Proposed Proposition of Law

In an asbestos tort action alleging lung cancer, when there is evidence that a plaintiff has smoked in the past fifteen years, the General Assembly’s express statutory language requires a plaintiff to prove, through a “written report of a competent medical authority,” that he is not a “smoker” as defined in R.C. 2307.91(DD). A reviewing court must strictly enforce, and may not simply ignore, the General Assembly’s inclusion of the express “competent medical authority” requirement in the statute.

Turner’s Proposed Counter Proposition of Law

The court below applied the appropriate standard consistently held in Ohio Courts that a written report from a competent medical authority is required for a prima facie showing of medical cause only after the lung cancer victim is deemed a smoker by the trial court. This standard is consistent with the plain language of R.C. 2307.91 though R.C. 2307.93.

Amici in Support of Union Carbide

The Ohio Manufacturers’ Association, Ohio Alliance for Civil Justice, and the Ohio Council of Retail Merchants filed a joint amicus brief in support of Union Carbide. This joint brief focuses on the history of asbestos litigation in Ohio and the importance of the “competent medical authority” language in R.C. 2307.91(DD). Specifically, Amici assert that an exposed person who smokes is required to present a written report by a competent medical authority to determine whether or not the person is a smoker. Further, if a plaintiff fails to establish that he or she is not a smoker, the claim is not lost. Rather, the plaintiff must simply establish that the primary source of the disease arose from exposure to asbestos and not by smoking, again by use of a written report by a competent medical authority. Finally, Amici contend that the Eighth District’s opinion must be overturned to preserve the General Assembly’s effort to reform Ohio’s asbestos litigation law.

Student Contributor: Paul Taske

 

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