Turner v. Certainteed Corp.

• Decision Date: 17 November 2016
• Docket Number: No. 103475.,103475.
• Citation: 66 N.E.3d 802
• Parties: Bobby TURNER, et al., Plaintiffs–Appellees v. CERTAINTEED CORPORATION, et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

66 N.E.3d 802

Bobby TURNER, et al., Plaintiffs–Appellees

v.CERTAINTEED CORPORATION, et al., Defendants–Appellants.

No. 103475.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Nov. 17, 2016.

Richard D. Schuster, Perry W. Doran, II, Stephen C. Musilli, Daniel E. Shuey, Vorys, Sater, Seymour & Pease, L.L.P., Columbus, OH, for appellants.

Christopher J. Hickey, Kevin E. McDermott, McDermott & Hickey, L.L.C., Rocky River, OH, Keith W. Binder, Jerome H. Block, Donald Blydenburgh, Levy Konigsberg, L.L.P., New York, NY, for appellees.

Before: JONES, A.J., KEOUGH, J., and E.T. GALLAGHER, J.

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 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, 2009 WL 1486553, ¶ 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, 2009 WL 2400867.

{¶ 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.

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