Fields v. CSX Transportation, Inc. , 197 Ohio App. 3d 561 ( 2011 )

[Cite as Fields v. CSX Transp., Inc., 197 Ohio App.3d 561, 2011-Ohio-6761.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96831
FIELDS,
APPELLEE,
v.
CSX TRANSPORTATION, INC.,
APPELLANT.
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-663226
BEFORE: S. Gallagher, J., Blackmon, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: December 29, 2011
ATTORNEYS:
Doran & Murphy, P.L.L.C., Michael L. Torcello, Christopher Murphy, and Colleen M.
Blinkoff, for appellee.
Burns White, L.L.C., Patrick C. Booth, David A. Damico, and Ira L. Podheiser, for
appellant.
SEAN C. GALLAGHER, Judge.
{¶ 1} Defendant-appellant, CSX Transportation, Inc., appeals the decision of the
Cuyahoga County Court of Common Pleas that found that the decedent was not a smoker
pursuant to R.C. 2307.91(DD). For the reasons stated herein, we reverse the decision and
remand the matter to the trial court for further consideration.
{¶ 2} In June 2008, plaintiff-appellee, Pearl Fields, as representative of the estate
of Paul H. Fields, filed an action against CSX under the Federal Employers’ Liability Act,
45 U.S.C. 51 et seq., and the Locomotive Inspection Act, 49 U.S.C. 20701 et seq. Pearl
alleged that CSX negligently allowed her husband, Paul, to be exposed to various
substances, including asbestos and asbestos dust, during the course of his employment as a
trainman and conductor for CSX. She further alleged that these exposures caused severe
and permanent injuries, including lung cancer, aggravated the development of Paul’s
respiratory problems, and resulted in his subsequent death.
{¶ 3} In January 2009, CSX filed a motion to administratively dismiss the
complaint for failure to comply with the prima facie filing requirements of R.C. 2307.92
and 2307.93. The trial court denied this motion and also denied the first motion for
reconsideration thereof. CSX appealed to this court in Fields v. CSX Transp., Inc., 189
Ohio App.3d 268, 2010-Ohio-3877, 938 N.E.2d 68 (“Fields I”). This court reversed the
trial court’s decision and remanded the matter for application of Farnsworth v. Allied
Glove Corp., Cuyahoga App. No. 91731, 2009-Ohio-3890.
{¶ 4} More specifically, in Fields I, we found as follows:
The trial court’s decision * * * predates Farnsworth. Clearly, as
this court stated in Farnsworth, when there is a dispute as to whether a
person is a smoker, the parties must first submit evidence, and then the trial
court must review the evidence submitted by both parties to resolve the issue.
If the defendant submits competent, credible evidence establishing that a
plaintiff 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.” Farnsworth, 2009-Ohio-3890, 2009 WL 2400867, at ¶ 32.
If the trial court determines 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.” Id. at ¶ 25. If the
exposed person is not a smoker, then “the plaintiff does not have to establish
a prima facie case * * *.” Id. at ¶ 24.
Fields I at ¶ 23-24. Because the trial court had not resolved the disputed issue of whether
Paul was a smoker, we remanded the matter to the trial court for a determination as
outlined in Farnsworth.
{¶ 5} Upon remand, Pearl filed a motion for a judicial determination that Paul is a
nonsmoker under the statute. Following a hearing, the trial court granted the motion,
finding that Paul did not meet the statutory definition of a “smoker” under R.C.
2307.91(DD). The court further ordered the case to proceed without requiring a prima
facie showing under the asbestos statute. CSX timely filed this appeal.
{¶ 6} As an initial matter, we address whether there is a final, appealable order to
confer appellate jurisdiction. The trial court’s order was not merely a determination of
Paul’s smoking status, but rather, the order effectively denied CSX the opportunity for an
administrative dismissal.
{¶ 7} In In re Special Docket No. 73958, 115 Ohio St.3d 425, 2007-Ohio-5268,
875 N.E.2d 596, the Ohio Supreme Court stated as follows:
In the case before us, the trial court’s order denies the appellants’
motion to apply the prima facie filing requirements in R.C. 2307.92, which
the General Assembly enacted with the intent to “give priority to those
asbestos claimants who can demonstrate actual physical harm or illness
caused by exposure to asbestos” and to enable courts to administratively
dismiss the claims of those claimants who cannot present prima facie
evidence of an impairment caused by exposure to asbestos. Am.Sub.H.B.
No. 292, Section 3(B), 150 Ohio Laws, Part III, 3991. If the appellants in
this matter are unable to challenge the trial court’s finding in an interlocutory
appeal, they will be unable to obtain the remedy set forth in the legislation
upon an appeal from a final judgment—it would be meaningless at that point
either to require a claimant to present prima facie evidence, or to
administratively dismiss a claimant’s case for failure to present prima facie
evidence, after the case has proceeded to a final judgment on the merits. As
we stated in State v. Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852
N.E.2d 711, at ¶ 18, “without immediate judicial review, that mistake is
uncorrectable.”
Id. at ¶ 31. See also Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584,
876 N.E.2d 1217 (order that determined the action with respect to the prima facie showing
and prevented a judgment in favor of defendants with respect to the prima facie showing
was final and appealable).
{¶ 8} Here, the trial court initially denied CSX’s motion for an administrative
dismissal and reconsideration thereof. In Fields I, we reversed the ruling and remanded
the matter for the court to determine whether Paul was a smoker. The trial court resolved
the issue by finding that Paul was not a smoker as defined in R.C. 2307.91(DD). This
determination obviated the prima facie requirements of R.C. 2307.92(C)(1) and (D)(1) and
effectively denied the provisional remedy of an administrative dismissal, which had been
sought by CSX.1 It also prevented CSX’s ability to obtain an administrative dismissal
under R.C. 2307.93(C). Further, as was the case in In re Special Docket No. 73958, a
review of the issue following final judgment would not afford CSX a meaningful or
effective remedy. See also Sinnott at ¶ 24-26. Therefore, we find that the subject order
is a provisional remedy that satisfies the requirements for a final, appealable order under
R.C. 2505.02(B)(4).
{¶ 9} In this appeal, CSX has presented three assignments of error for our review.
Because they are related, we shall address them together. The assigned errors provide as
follows:
1. The trial court erred in finding Paul Fields (Decedent) was not a
“smoker” pursuant to the Ohio Asbestos Statute.
2. The trial court erred in determining that the undisputed medical
records establishing [Paul’s] smoking history were inadmissible hearsay and
could not be used to establish that [he] was a “smoker” under the Ohio
Asbestos Statute * * *.
3. The trial court erred by not considering the “Asbestos
Questionnaire,” completed by [Paul], which is admissible pursuant to Evid.
R. 804(B)(3).
{¶ 10} Am.Sub.H.B. No. 292, Section 3(B), 150 Ohio Laws, Part III, 3991, which
enacted R.C. 2307.91 through 2307.98, created a procedure to prioritize the administration
and resolution of asbestos-related claims. See, generally, Ackison v. Anchor Packing Co.,
120 Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, ¶ 17; Norfolk S. Ry. Co. v. Bogle,
115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919, ¶ 16. The provisions establish
1
In Fields I, this court determined that an order that denies a motion to administratively dismiss an
asbestos-related complaint is a final, appealable order.
certain minimal evidentiary requirements for bringing a tort action alleging asbestos claims
and allow for an administrative dismissal without prejudice when a proper showing has not
been made. See R.C. 2307.92 and 2307.93. The Ohio Supreme Court has characterized the
provisions as mere administrative procedures that do not impose any new substantive
burdens or bear upon a plaintiff’s substantive right to recover. See Ackison at ¶ 17; Bogle at
¶ 24.
{¶ 11} Insofar as these preliminary proceedings are administrative in nature, we
must recognize that the rules of evidence do not strictly apply. “[E]vidence which might
constitute inadmissible hearsay where stringent rules of evidence are followed must be
taken into account in [administrative] proceedings * * * where relaxed rules of evidence
are applied.” Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41, 44, 430
N.E.2d 468. While the discretion to consider hearsay evidence cannot be exercised in an
arbitrary manner, “[s]tatements that would elsewhere be excluded as hearsay will be
admissible in an administrative proceeding where they are not inherently unreliable, and
may constitute reliable, probative, and substantial evidence.” Vinci v. Ohio State Bd. of
Pharmacy, Tuscarawas App. Nos. 2008 AP 08 0052 and 2008 AP 08 0053,
2010-Ohio-451, ¶ 118.2
{¶ 12} In Fields I, this court remanded the case to the trial court for a determination
whether Paul was a smoker for purposes of applying R.C. 2307.92 and 2307.93. On
2
We recognize that in Farnsworth, 2009-Ohio-3890, this court stated that the parties must submit evidence
that would be admissible under the rules of evidence with regard to a smoker dispute. Id. at ¶ 31. However, this is
not to say that a party must establish the admissibility of the evidence at the administrative stage of the proceedings,
where a relaxed evidentiary standard is applied.
remand, the court found that Paul did not meet the statutory definition of a “smoker”
without giving credibility to evidence submitted by both parties. Rather than applying a
relaxed evidentiary standard, the court refused to consider Paul’s own medical records and
instead relied solely upon the testimony of his wife, who asserted that Paul had quit
smoking in 1991, more than 15 years prior to his diagnosis with lung cancer. 3 The
accuracy of the medical records was not questioned, and there is nothing to suggest that the
records are not reliable. Furthermore, it is undeniable that records containing a medical
history of smoking would be reflective of and relevant to a person’s smoking status.
{¶ 13} As this court recognized in Farnsworth and Fields I, a trial court must review
evidence, including evidence of the exposed person’s medical history submitted by both
parties to resolve whether the exposed person is a smoker. The medical records submitted
in this matter consistently report Paul’s history of having been a smoker for over 40 pack
years, having quit in 1996. The trial court abused its discretion in not considering this
evidence.
{¶ 14} This is not to say that the medical records are absolute evidence that Paul was
a smoker. Rather, the medical records as well as Pearl’s affidavit are among the evidence
that must be considered by the trial court in making its determination. So long as the trial
court’s determination is supported by competent, credible evidence in the record, its
decision should be upheld. See Farnsworth, 2009-Ohio-3890, at ¶ 42 (recognizing that an
3
To be deemed a smoker under R.C. 2307.91(DD), the person must have smoked the equivalent of
“one-pack year” during the last 15 years. A “pack year” is the average number of packs of cigarettes smoked per day
multiplied by the number of years the person has smoked.
appellate court should not substitute its judgment for the trial court’s when the factual
findings are supported by some competent and credible evidence).
{¶ 15} Additionally, notwithstanding that the rules of evidence are to be relaxed at
the administrative stage of the proceedings, the trial court erroneously found that “the
medical records are hearsay and not within the exception provided by Evid.R. 803(4) as the
statements were not made for purposes of medical diagnosis or treatment.” This
determination was not consistent with the rule.
{¶ 16} Evid.R. 803(4) provides for the admissibility of “[s]tatements made for
purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.” The staff
notes to the rule provide: “The circumstantial guaranty of trustworthiness of this exception
is derived from the assumption that a person will be truthful about his physical condition to
a physician because of the risk of harmful treatment resulting from untruthful statements. *
* * The exception is limited to those statements made by the patient which are reasonably
pertinent to an accurate diagnosis and should not be a conduit through which matters of no
medical significance would be admitted.” Staff Notes to Evid.R. 803(4).
{¶ 17} “When examining the admissibility of hearsay statements under Evid.R.
803(4), the primary inquiry is whether the statements were made for the purposes of
medical diagnosis or treatment, as opposed to some other purpose.” State v. Bradley, Van
Wert App. No. 15-10-03, 2010-Ohio-5422, ¶ 48. As expressed by the Ohio Supreme Court:
“[T]he test under Evid.R. 803(4) goes solely to whether a statement was made for purposes
of medical diagnosis or treatment. If a statement is made for purposes of diagnosis or
treatment, it is admissible pursuant to Evid.R. 803(4).” State v. Dever (1992), 64 Ohio
St.3d 401, 414, 596 N.E.2d 436.
{¶ 18} There are instances in which a statement may not be made for purposes of
obtaining a medical diagnosis or treatment, as may arise in the course of the examination of
a child-abuse or rape victim or with regard to personal-injury claims. In Hatfield v.
Andermatt (1988), 54 Ohio App.3d 188, 561 N.E.2d 1023, relied on by the trial court, the
court found that statements of a bicyclist who was in a collision with a police cruiser
concerning the cause of the injury or the manner in which the accident happened were not
admissible insofar as they were not pertinent to the diagnosis or treatment of the patient.
This is not such a case.
{¶ 19} Here, the statements reporting Paul’s smoking history were made for
purposes of his medical diagnosis or treatment. A person’s smoking history is regularly
provided to treating physicians in connection with obtaining medical diagnosis or
treatment and is obviously pertinent thereto. Moreover, it would be reasonable for a doctor
to rely on such information, and there is no reason to suspect that a person would be
untruthful about his smoking history. Whether the information was provided before or after
diagnosis of lung cancer is irrelevant. Therefore, Paul’s medical records would be
admissible under Evid.R. 803(4). Further, the evidence could prove to be admissible under
the business-records exception of Evid.R. 803(6) through a qualified witness at trial.
Accordingly, we find that the trial court clearly abused its discretion in failing to consider
this evidence.
{¶ 20} Insofar as CSX also submitted an asbestos questionnaire purportedly signed
by Paul, much of the document is handwritten, while the pertinent section of the smoking
history is typewritten. CSX argues that the evidence would be admissible as a statement
against interest pursuant to Evid.R. 804(B)(3). CSX further claims that the evidence
qualifies as an adoptive admission under Evid.R. 801(D)(2)(b) because the questionnaire
purportedly was submitted by Paul in the course of other legal proceedings. However,
because the typewritten section is suspect, it was within the trial court’s discretion to
exclude it from consideration at this stage of the proceedings. This is not to say that the
authenticity and reliability of the document could not later be shown.
{¶ 21} Because the trial court failed to properly consider the evidence before it, we
must again remand the matter to the trial court for compliance with the administrative
provisions. The trial court must follow the mandate herein and also must adhere to this
court’s decisions in Fields I and Farnsworth. We reiterate that in resolving the issue of
Paul’s smoking status, the trial court must consider all competent, credible evidence
submitted by the parties, which would include the medical reports of Paul’s smoking
history. As we stated in Farnsworth: “[I]f 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(D). * * * [I]t
is the plaintiff who 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.”
2009-Ohio-3890, at ¶ 32.
{¶ 22} Accordingly, we sustain the second assignment of error, overrule the third
assignment of error, and decline to address the first assignment of error as it remains
premature.
Judgment reversed and cause remanded.
BLACKMON, P.J., and CONWAY COONEY, J., concur.