Turner v. Certainteed Corp., 2017-0004

• Decision Date: 27 September 2018
• Docket Number: No. 2017-0004,2017-0004
• Citation: 155 Ohio St.3d 149,119 N.E.3d 1260,2018 Ohio 3869
• Parties: TURNER, Appellee, et al., v. CERTAINTEED CORPORATION et al.; Union Carbide Corporation, Appellant.
• Court: Ohio Supreme Court

155 Ohio St.3d 149

119 N.E.3d 1260

2018 Ohio 3869

TURNER, Appellee, et al.,

v.CERTAINTEED CORPORATION et al.; Union Carbide Corporation, Appellant.

No. 2017-0004

Supreme Court of Ohio.

Submitted February 13, 2018

Decided September 27, 2018

Vorys, Sater, Seymour & Pease, L.L.P., Richard D. Schuster, Perry W. Doran II, Daniel E. Shuey, and Damien C. Kitte, Columbus, for appellant.

McDermott & Hickey, L.L.C., Kevin E. McDermott, Rocky River, and Christopher J. Hickey ; and Levy Konigsberg, L.L.P., and Donald P. Blydenburgh, for appellee.

Bricker & Eckler, L.L.P., Anne Marie Sferra, and Kara Herrnstein, Columbus, urging reversal for amici curiae, Ohio Manufacturers' Association, Ohio Alliance for Civil Justice, and Ohio Council of Retail Merchants.

Fischer, J.{¶ 1} When a plaintiff is a "smoker" who alleges that he or she suffers from lung cancer as a result of asbestos exposure, the plaintiff must make a prima facie showing that satisfies the requirements listed in R.C. 2307.92(C)(1), including a "diagnosis by a competent medical authority that the [plaintiff] has primary lung cancer and that exposure to asbestos is a substantial contributing factor to that cancer," R.C. 2307.92(C)(1)(a). A plaintiff who is not a "smoker" need not satisfy those requirements. This case presents the question of how to determine whether a plaintiff is a "smoker."

{¶ 2} In the instant case, plaintiff-appellee, Bobby Turner, did not attempt to make the prima facie showing required under R.C. 2307.92(C)(1). Relying on the definition of "smoker" provided in R.C. 2307.91(DD), defendant-appellant, Union Carbide Corporation argued that medical records demonstrate that Turner has a history of smoking and, therefore, should be required to prove that he is a nonsmoker by means of a written medical report. The court of appeals rejected Union Carbide's argument and held that whether someone is a "smoker" is a question of fact, as opposed to a medical determination.

{¶ 3} We reverse the court of appeals' judgment affirming the trial court's denial of the motion for administrative dismissal filed by Union Carbide and remand the case to the trial court for it to determine whether Union Carbide put the application of R.C. 2307.92(C)(1) at issue by submitting "the written report of a competent medical authority" that "specified" that Turner had "smoked the equivalent of one-pack year * * * during the last fifteen years," R.C. 2307.91(DD).

I. Background

A. Trial-Court Proceedings

{¶ 4} Turner was diagnosed with lung cancer in 2013. He filed a complaint alleging that his cancer was caused by exposure to asbestos while he worked as a drywall finisher between approximately 1962 and 1978. Union Carbide, which manufactured an asbestos product found in joint compounds that Turner used during that time frame, was named as a defendant.

{¶ 5} Union Carbide moved to dismiss Turner's lawsuit, arguing that he is a "smoker" and that he had not made the prima facie showing under R.C. 2307.92(C)(1) that is required of a person who is a "smoker." Turner filed an affidavit and attached some of his medical records. He claimed that he was a nonsmoker but added that he had smoked some cigars several years prior to his exposures to asbestos. The medical reports supported Turner's assertion that he was a nonsmoker. Shortly thereafter, Union Carbide withdrew its motion to dismiss the complaint.

{¶ 6} After discovery had progressed for nearly a year and a half, Union Carbide filed a second motion to dismiss Turner's suit. Union Carbide again alleged that Turner is a "smoker" as defined in R.C. 2307.91(DD) and that Turner had failed to meet his burden to make the prima facie showing required under R.C. 2307.92(C)(1). Union Carbide argued that medical records that became available during discovery demonstrated that Turner is a "smoker." Union Carbide added that the deposition testimony of Turner's physician also showed that Turner is a "smoker."

{¶ 7} Turner responded by submitting affidavits and citing testimony from several people, including family members, who averred that they had never seen him smoke. Turner also noted that the evidence of his smoking history contained in some medical records was inconsistent with other medical records identifying him as a nonsmoker. In addition, Turner argued that the "pack year" referred to in R.C. 2307.91(DD)'s definition of "smoker" does not encompass cigar smoking.

{¶ 8} The trial court rejected Turner's argument that R.C. 2307.91(DD) applied only to cigarette smokers, acknowledged that some of the medical records indicated that Turner had a history of smoking but discounted those notations as likely mistakes, and concluded that Union Carbide had "failed to prove that Mr. Turner is a smoker, as defined in R.C. 2307.91(DD)." The trial court therefore denied Union Carbide's motion to dismiss.

B. Appellate Proceedings

{¶ 9} Union Carbide appealed and argued that Turner needed to submit a "written report of a competent medical authority" stating that he was a nonsmoker. The court of appeals framed the issue as follows: "[W]hen there is conflicting evidence of [a] 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." 2016-Ohio-7776, 66 N.E.3d 802, ¶ 9. To a limited extent, the court of appeals adopted Union Carbide's position when it determined that the trial court had improperly placed the burden of proving that Turner is a "smoker" on Union Carbide. The court of appeals also determined that whether a person is a "smoker" is a question of fact and not a medical issue. Relying on its precedent, the court held that a report by a competent medical authority is required only after a person has been determined to be a "smoker." See Farnsworth v. Allied Glove Corp. , 8th Dist. Cuyahoga No. 91731, 2009-Ohio-3890, 2009 WL 2400867, ¶ 30. The court of appeals ultimately affirmed the trial court's judgment and concluded that the trial court's determination that Turner is not a "smoker" "was not against the manifest weight of the evidence." 2016-Ohio-7776, 66 N.E.3d 802, at ¶ 35.

{¶ 10} Union Carbide filed a discretionary appeal to this court, and we accepted that appeal on a single 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.

See 150 Ohio St.3d 1429, 2017-Ohio-7567, 81 N.E.3d 1271.

II. Analysis

A. Standard of Review

{¶ 11} The standard of review for questions of statutory interpretation is de novo. Ceccarelli v. Levin , 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8. Our main objective is to determine and give effect to the legislative intent. State ex rel. Solomon v. Police & Firemen's Disability & Pension Fund Bd. of Trustees , 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995). We owe no deference to the lower court's decision, nor are we limited to choosing between the different interpretations of the statute presented by the parties.

{¶ 12} When a statute is plain and unambiguous, we apply the statute as written. Portage Cty. Bd. of Commrs. v. Akron , 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). When a statute is unclear and relates to the same subject matter as another statute, we construe the two statutes in pari materia "to discover and carry out legislative intent."

Sheet Metal Workers' Internatl. Assn., Local Union No. 33 v. Gene's Refrig., Heating & Air Conditioning, Inc. , 122 Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444, ¶ 38, citing State ex rel. Ellis Super Valu, Inc. v. Indus. Comm. , 115 Ohio St.3d 224, 2007-Ohio-4920, 874 N.E.2d 780, ¶ 13.

B. The Statutory Definition Applies to Cigar Smoking

{¶ 13} Turner tries to defend the judgment of the court of appeals by repeating his argument that R.C. 2307.91(DD)'s definition of "smoker" does not include cigar smokers and that therefore, he need not make the prima facie showing required under R.C. 2307.92(C)(1).

{¶ 14} The definition of "smoker" provided in R.C. 2307.91(DD) is: "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." Turner rests his argument on the National Cancer Institute's definition of "pack year" in terms of cigarette smoking: "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," https://www.cancer.gov/publications/dictionaries/cancer-terms/def/pack-year (accessed July 19, 2018). We reject Turner's argument that the reference to "pack year" in R.C. 2307.91(DD) refers exclusively to cigarettes. R.C. 2307.91(DD), by its plain text, does not distinguish between different types of smoking. The statute provides the level of consumption necessary for a person to be designated a "smoker" but does not provide any limitation on the vehicle for that consumption.

C. The Statutory Scheme

{¶ 15} Under R.C. 2307.92(C)(1), a "smoker" who is suffering from lung cancer must, for purposes of presenting a prima facie case to support a tort claim involving asbestos exposure, meet all the requirements listed in R.C. 2307.92(C)(1)(a) and (C)(1)(b) as well as one of the two requirements listed in R.C. 2307.92(C)(1)(c). The plain text of the statute dictates that only a "smoker" has the burden...