Whipkey v. Aqua-Chem, Inc.

[Cite as Whipkey v. Aqua-Chem, Inc., 2012-Ohio-918.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96672
MARILYN WHIPKEY, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
WILLIAM WHIPKEY, DECEASED
PLAINTIFF-APPELLANT
vs.
AQUA-CHEM, INC., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-521667
BEFORE: Kilbane, J., Celebrezze, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: March 8, 2012
ATTORNEYS FOR APPELLANT
Linda G. Lagunzad
David P. Pavlik
Brent Coon & Associates
Summit One Building
4700 Rockside Road
Independence, Ohio 44131
ATTORNEYS FOR APPELLEES
Steven G. Blackmer
5500 Corporate Drive, Suite 150
Pittsburgh, Pennsylvania 15237
For Allied Glove Corp., et al.
Stephen R. Mlinac
Anne L. Wilcox
Swartz Campbell, LLC
4750 U.S. Steel Tower
600 Grant Street
Pittsburgh, Pennsylvania 15219
For Clark Industrial Insulation Co.
John A. Valenti
The Bradley Building, Suite 305
1220 West 6th Street
Cleveland, Ohio 44113
For Corhart Refractories
Corhart Refractories
Route 6, Box 82
Buckhannon, WV 26201
For E.I. Dupont De Nemours & Co.
E.I. Dupont De Nemours & Co.
CT Corporation
1300 East 9th Street, #1010
Cleveland, Ohio 44114
For General Refractories
General Refractories
225 City Line Avenue
Bala Cynwyd, Pennsylvania 19004
For Honeywell International, Inc.
Melanie M. Irwin
Lola M. James
Willman & Silvaggio
5500 Corporate Drive, Suite 150
Pittsburgh, Pennsylvania 15237
For Riley Stoker Corporation
Matthew C. O’Connell
Christina Tuggey Hidek
Sutter, O’Connell, Mannion, & Farchione
3600 Erieview Tower
1301 East 9th Street
Cleveland, Ohio 44114
For Tasco Insulations, Inc.
Kevin C. Alexandersen
Thomas E. Dover
Daniel J. Michalec
Gallagher Sharp
6th Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
For The Flintkote Company
Barbara J. Arison
Jenifer E. Novak
Michael E. Smith
Frantz Ward LLP
2500 Key Center
127 Public Square
Cleveland, Ohio 44114
For Uniroyal, Inc.
Uniroyal, Inc.
70 Great Hill Road
Naugatuck, CT 06770
MARY EILEEN KILBANE, J.:
{¶1} Plaintiff-appellant, Marilyn Whipkey (Marilyn), as Personal Representative
of the Estate of William Whipkey, appeals the trial court’s decision granting
defendants-appellees’ motion to administratively dismiss her complaint. Finding merit to
the appeal, we reverse and remand.
{¶2} The facts of this case were previously set forth by this court in Whipkey v.
Aqua-Chem, Inc., 8th Dist. No. 88240, 2009-Ohio-3369, 2009 WL 1965451.
On or about February 9, 2004, William and Marilyn Whipkey filed a
complaint against various defendants, including GM and Garlock, alleging
injury due to exposure to asbestos-containing products manufactured and/or
distributed by each defendant. [From 1958-1993, William worked at
Copperweld Steel as a laborer, scarfer helper, handyman, and burner
recorder.] More specifically, the Whipkeys’ claim is based upon William
Whipkey’s development of lung cancer. GM argues in its brief to this
court that Mr. Whipkey’s own admission and medical documentation
indicate that he had been a cigarette smoker for over 40 years of his life,
even continuing to use tobacco following his lung cancer diagnosis.
***
In August 2005, GM moved to administratively dismiss the
Whipkeys’ lawsuit. GM argued that the Whipkeys failed to provide a
prima facie case as required by H.B. 292. Specifically, GM maintained
that the Whipkeys failed to submit a report from a competent medical
authority concluding that William Whipkey’s exposure to asbestos was a
substantial contributing factor to his lung cancer. GM argued that Mr.
Whipkey’s long history of smoking was a substantial contributing factor to
his lung cancer, and the Whipkeys argued that the retroactive application of
H.B. 292 affected a substantial right.
After a hearing in February 2006, the trial court denied GM’s
motion, finding that the Whipkeys filed their complaint in February 2004,
which was prior to the effective date of H.B. 292. Therefore, the court
concluded that the case would proceed under the law that was in effect prior
to September 2, 2004. It is from this order that appellants GM and Garlock
appealed. The Whipkeys moved to dismiss the appeal for lack of final
appealable order. This court granted the claimants’ motion to dismiss in
July 2006.
Appellants then appealed to the Ohio Supreme Court, contending
that the trial court’s decision is a final appealable order. See Whipkey v.
Aqua-Chem, Inc., 112 Ohio St.3d 1440, 2007-Ohio-152, 860 N.E.2d 765.
The Supreme Court reversed and remanded the matter, finding that the trial
court’s decision was a final appealable order pursuant to In re Special
Docket No. 73958, [115 Ohio St.3d 425, 2007-Ohio-5268, 875 N.E.2d 596].
Id. at ¶ 2, 5-7.
{¶3} On September 24, 2007, William passed away at the age of 69. The action
was maintained by Marilyn, individually and on behalf of William’s Estate.
{¶4} On appeal before this court, the Whipkeys argued the trial court erred by
“declining to retroactively apply the provisions of R.C. 2307.91, R.C. 2307.92, and R.C.
2307.93” to their case. Id. at ¶ 9. In July 2009, we reversed the trial court’s judgment,
finding that “[t]he requirements in R.C. 2307.92 and 2307.93, regarding asbestos-related
personal injury litigation, are remedial and procedural in nature and are, therefore, not
unconstitutionally retroactive.” Id. at ¶ 14, citing Ackison v. Anchor Packing Co., 120
Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118.
{¶5} Upon remand, defendant-Ford filed a renewed motion to administratively
dismiss Marilyn’s case for failing to submit prima-facie evidence of an asbestos-related
impairment. Ford argued that Marilyn’s evidence does not meet the threshold
requirement to maintain a smoking-lung cancer claim under R.C. 2307.93(C). Marilyn
opposed, arguing that the medical evidence submitted by her substantively complied with
the prima-facie requirements. After a hearing on the matter, the trial court granted
Ford’s motion to administratively dismiss, finding that:
[H.B. 292] requires a plaintiff to follow a number of steps and submit
detailed asbestos exposure and smoking histories reported by competent
medical authorities. [Marilyn’s] experts have failed to establish a
prima-facie case demonstrating that William Whipkey’s alleged exposure to
asbestos was a substantial contributing factor in causing his lung cancer.
{¶6} It is from this order that Marilyn now appeals, raising the following single
assignment of error for review.
ASSIGNMENT OF ERROR
The trial court erred in granting appellees’ renewed motion to
administratively dismiss for failure to submit prima facie evidence of
asbestos-related impairment pursuant to [R.C. 2307.92 and 2907.93].
Standard of Review
{¶7} Effective September 2, 2004, R.C. 2307.93(A)(1) requires a plaintiff in an
asbestos action to file, “within thirty days after filing the complaint or other initial
proceeding, a written report and supporting test results constituting prima-facie evidence
of the exposed person’s physical impairment that meets the minimum medical
requirements specified in division (B), (C), or (D) of [R.C. 2307.92] * * *.” If the
defendant in an asbestos action challenges the adequacy of the prima-facie evidence of
the exposed person’s physical impairment, the trial court, using the standard for resolving
a motion for summary judgment, must determine whether the proffered prima-facie
evidence meets the minimum medical requirements specified in R.C. 2307.92. See R.C.
2307.93(B).
{¶8} In Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, 876
N.E.2d 1217, the Ohio Supreme Court stated:
The summary judgment standard requires the trial court to grant
judgment for the moving party “when looking at the evidence as a whole,
(1) no genuine issue of material fact remains to be litigated, (2) the moving
party is entitled to judgment as a matter of law, and (3) it appears from the
evidence, construed most strongly in favor of the nonmoving party, that
reasonable minds could only conclude in favor of the moving party.”
Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 686-687, 653
N.E.2d 1196. Furthermore, summary judgment “must be awarded with
caution. Doubts must be resolved in favor of the non-moving party.”
Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 359, 604 N.E.2d 138.
Thus, if a defendant challenges the medical evidence presented by a
plaintiff, the evidence must be construed most favorably for the plaintiff
and against the defendant. Id. at ¶ 29.
Prima-Facie Showing
{¶9} R.C. 2307.92 establishes the minimum medical requirements that a plaintiff
with an asbestos claim must satisfy to maintain the action and requires the plaintiff to
make a prima-facie showing of those minimum medical requirements.
{¶10} The instant case involves a plaintiff who alleged an asbestos claim based on
a malignant condition. Therefore, the claim is governed by R.C. 2307.92(C), which
provides in pertinent part:
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 [R.C.
2307.93(A)], 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) 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;
(b) Evidence that is sufficient to demonstrate that at least ten years have
elapsed from the date of the exposed person’s first exposure to asbestos
until the date of diagnosis of the exposed person’s primary lung cancer.
The ten-year latency period described in this division is a rebuttable
presumption, and the plaintiff has the burden of proof to rebut the
presumption.
(c) Either of the following:
(i) Evidence of the exposed person’s substantial occupational exposure to
asbestos;
(ii) 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
conducted by a certified industrial hygienist or certified safety professional
based upon all reasonably available quantitative air monitoring data and all
other reasonably available information about the exposed person’s
occupational history and history of exposure to asbestos.
{¶11} R.C. 2307.91(FF) defines “substantial contributing factor” as including both
of the following:
(1) Exposure to asbestos is the predominate cause of the physical
impairment alleged in the asbestos claim.
(2) A competent medical authority has determined with a reasonable degree
of medical certainty that without the asbestos exposures the physical
impairment of the exposed person would not have occurred.
{¶12} R.C. 2307.91(Z) defines “competent medical authority” as:
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 [R.C. 2307.92] and who meets the
following requirements:
(1) The medical doctor is a board-certified internist, pulmonary specialist,
oncologist, pathologist, or occupational medicine specialist.
(2) The medical doctor is actually treating or has treated the exposed person
and has or had a doctor-patient relationship with the person.
(3) As the basis for the diagnosis, the medical doctor has not relied, in
whole or in part, on any of the following:
(a) The reports or opinions of any doctor, clinic, laboratory, or testing
company that performed an examination, test, or screening of the claimant’s
medical condition in violation of any law, regulation, licensing requirement,
or medical code of practice of the state in which that examination, test, or
screening was conducted;
(b) The reports or opinions of any doctor, clinic, laboratory, or testing
company that performed an examination, test, or screening of the claimant’s
medical condition that was conducted without clearly establishing a
doctor-patient relationship with the claimant or medical personnel involved
in the examination, test, or screening process;
(c) The reports or opinions of any doctor, clinic, laboratory, or testing
company that performed an examination, test, or screening of the claimant’s
medical condition that required the claimant to agree to retain the legal
services of the law firm sponsoring the examination, test, or screening.
(4) The medical doctor spends not more than twenty-five per cent of the
medical doctor’s professional practice time in providing consulting or
expert services in connection with actual or potential tort actions, and the
medical doctor’s medical group, professional corporation, clinic, or other
affiliated group earns not more than twenty per cent of its revenues from
providing those services.
{¶13} Marilyn, relying on this court’s decision in Sinnott v. Aqua-Chem, Inc., 8th
Dist. No. 88062, 2008-Ohio-3806, appeal not allowed by Sinnott v. Aqua-Chem, Inc., 120
Ohio St.3d 1490, 2009-Ohio-278, 900 N.E.2d 199, argues that the medical evidence she
submitted is in substantial compliance with the requirements of R.C. 2307.92(C). On the
other hand, defendants argue the reports submitted by Marilyn do not satisfy the
prima-facie requirements in R.C. 2307.92(C) because the physicians did not have a
doctor-patient relationship with William, and thus, do not qualify as competent medical
authority. We find Sinnott analogous to the instant case.
{¶14} In Sinnott, the plaintiffs, James and Freda Sinnott, brought an action against
various asbestos manufacturers, alleging James sustained injuries from workplace
exposure to products containing asbestos. Id. at ¶ 2. Plaintiffs filed their initial
complaint in February 2004, which was approximately seven months before the
enactment of H.B. 292. Id. Plaintiffs then filed an amended complaint in January 2005,
and defendants moved to administratively dismiss plaintiffs’ complaint. Id. at ¶ 4. The
trial court denied defendants’ motion, finding “that while the requirements of H.B. No.
292 applied to the amended complaint, appellees had fulfilled those requirements, and the
case could proceed to trial.” Id.
{¶15} Defendants “filed an appeal with this court that was dismissed as
premature pursuant to R.C. 2505.02. * * * [Defendants] then filed an appeal with the
Ohio Supreme Court, who reversed and remanded the case[, determining] * * * that
orders finding that plaintiffs have made the prima facie showings required by R.C.
2307.92 are final and appealable.” Id. at ¶ 5.
{¶16} On appeal, defendants argued that the lower court erred in finding that
plaintiff made a prima-facie showing under R.C. 2307.92. The issue was whether a
doctor-patient relationship was established to satisfy the requirement that the diagnosis of
asbestosis be rendered by a “competent medical authority.” We affirmed the trial court’s
decision, finding that there was “sufficient evidence to establish a causal link between
James’s lung cancer and his asbestos exposure.” Id. at ¶ 19.
{¶17} In reaching our decision, we noted that:
Prior to the enactment of H.B. No. 292, the prior statute,
R.C. 2305.10, set forth the prevailing requirements placed upon an asbestos
litigant:
a cause of action for bodily injury caused by exposure to asbestos * * *
arises upon the date on which the Plaintiff-Appellee is informed by
competent medical authority that the Plaintiff-Appellee has been injured by
such exposure, or upon the date on which, by exercise of reasonable
diligence, the Plaintiff-Appellee should have become aware that he had
been injured by the exposure, whichever date occurs first. [R.C. 2305.10.]
H.B. No. 292, the asbestos litigation bill, became effective on September 2,
2004. The General Assembly found it crucial to codify these criteria
because the “vast majority” of asbestos claims “are filed by individuals who
allege they have been exposed to asbestos and who have some physical sign
of exposure to asbestos, but who do not suffer from an asbestos-related
impairment.” [Section 3(A)(5), H.B. No. 292 (R.C. 2307.91, uncodified
law), Apx. at 9. Id. at ¶ 9-11.
{¶18} In Sinnott, James was diagnosed with a lung mass in August 2003, after
completing a series of tests. The tests included pulmonary function tests and x-rays by
certified pulmonologist and B-Reader, Dr. Robert Altmeyer, M.D. Subsequent tests at the
Veterans Administration Hospital in Huntington, West Virginia confirmed the
malignancy. Later, Dr. Ross “referred James to a pulmonary specialist, Dr. Ammar
Ghanem; also signing was Dr. Nancy Munn. Throughout the records are notations
documenting James’s history. There are comments, such as, ‘patient has significant
asbestos exposure in past when works in a factory for 35-36 years.’ * * * Another report
states, ‘A: Right upper lobe mass with h/o smoking and asbestos exposure make the
patient high risk of lung cancer.’” Id. at ¶ 16.
{¶19} Once these medical tests were complete, Dr. Altmeyer again reviewed
James’s records. He opined that both James’s “‘tobacco smoking history and his
asbestos exposure/asbestos were both significant contributing causes for the development
of his lung cancer.’” Id. at ¶ 17. In addition, board certified pulmonologist Dr. Arthur
Frank, M.D., Ph.D., reviewed James’s records and stated that James “‘developed and
ultimately died of, a cancer of the lung due to his exposure to asbestos in combination
with his cigarette smoking.’” Id. at ¶ 18.
{¶20} In concluding that the evidence submitted was sufficient to establish a
causal link between James’s lung cancer and his asbestos exposure, we stated that:
James’ treating physicians were employed by the Veterans
Administration. This limited James’ ability to achieve the typical
doctor-patient relationship envisioned by the statute. However, achieving
the typical doctor-patient relationship in the statute is not a bright line test.
Nor is it the sole factor in the statute.
As the appellants stated in their brief, part of the rationale behind the
statute is to preserve scarce resources for individuals who are truly sick as a
result of asbestos exposure. The statute is not in place to penalize veterans
or other nontraditional patients who were properly diagnosed by competent
medical authority personnel and have the medical records and other
evidence to support their claim. The evidence in the case at bar supports
the lower court’s ruling. Appellees have satisfied the requirements of the
statute.
James should not be penalized for utilizing his veteran benefits in
order to obtain affordable and necessary health care. Although James may
have lacked a traditional doctor, he was examined by a competent medical
doctor, as defined in the statute. In addition, the evidence in this case
supports James’ doctors’ diagnosis. That fact that he was examined by a
doctor employed by the Veterans Administration does not diminish the
value of the evidence contained in the medical records. We find the lower
court’s decision to be well-founded. Id. at ¶22-24.
{¶21} Sinnott and the case at hand are similar in many aspects. First, the Sinnotts
and Whipkeys were originally designated as coplaintiffs in the same complaint against
defendants. Second, both James and William utilized the benefits available to them in
order to obtain affordable health care — James utilized his veteran benefits and William
utilized his union benefits. Third, both William and James died before it had been ruled
that H.B. 292 applied to their respective cases — James died in August 2005 and William
died in September 2007. Fourth, both the Whipkeys and Sinnotts submitted expert
reports from the same doctors, Dr. Altmeyer and Dr. Frank.
{¶22} We are aware of this court’s recent decision in Bland v. Ajax Magnethermic
Corp., 8th Dist. No. 95249, 2011-Ohio-1247, 2011 WL 917707. In Bland, which is
factually distinguishable from the matter before us, this court affirmed the trial court’s
decision to administratively dismiss plaintiffs’ claim. Bland, however, does not involve
the retroactive application of H.B. 292 to a complaint that was filed before the effective
date of the legislation, and the injured worker died before it was determined that the
legislation could be applied. While we stated that Sinnott did not adopt a substantial
compliance standard, we did acknowledge that the Sinnott court, “found that the
doctor-patient relationship, which is not statutorily defined, varies depending on the
treatment context.” Id. at ¶ 25.
{¶23} In the instant case, just as in Sinnott, William had a nontraditional
treatment context. As a veteran, James utilized his veteran benefits. As a union
member, William utilized his union benefits. Prior to their respective examinations by
Dr. Altmeyer in 2003, neither William nor James had a treating pulmonary physician.
The Whipkeys submitted reports from two expert pulmonologists, Dr. Altmeyer and Dr.
Frank, which are the same doctors who authored reports for the Sinnotts. In Sinnott we
found that James was examined by a competent medical doctor. Id. at ¶ 24.
{¶24} Here, Dr. Altmeyer, a certified B-Reader, initially opined in 2003 that
William’s pulmonary function test and chest x-rays demonstrated impairment and
interstitial changes consistent with asbestosis. He further opined “that the asbestosis was
caused by the inhalation of asbestos fibers in the work place.” Dr. Altmeyer
recommended additional testing because the x-ray revealed a mass in William’s left lung.
Subsequent tests and a lung biopsy confirmed the malignancy. At Dr. Altmeyer’s
recommendation, both William and James consulted with other specialists and learned
that they had lung cancer.
{¶25} Once the additional medical testing was completed, Dr. Altmeyer reviewed
these documents and confirmed his original suspicions. He stated in a report dated June
4, 2004:
[I]t is my opinion that [William’s] prior tobacco use and asbestos
exposure combined in a synergistic or multiplier fashion to greatly increase
his chance of developing lung cancer. Individuals who have had a
significant exposure to asbestos with an appropriate latency period, as is
present in this case, and who are current or fairly recent tobacco smokers
have approximately 80 to 100 times the usual or normal risk of developing
lung cancer.
However, since [William] stopped smoking cigarettes in 1995 and
because he developed lung cancer approximately seven or eight years later,
the risk of developing lung cancer from smoking had declined substantially
during that time. If this smoking history is the correct one, then I believe
that his asbestos exposure was the primary cause of his lung cancer and
cigarette smoking was a secondary cause of his lung cancer. * * * My
opinions in this report are given with a reasonable degree of medical
certainty.
{¶26} Dr. Frank also reviewed William’s medical records and stated:
Based upon my review of the materials sent me, it is my opinion,
held with a reasonable degree of medical certainty, that [William]
developed a cancer of the lung due to his exposures to asbestos, in
combination with his habit of cigarette smoking. The scientific literature
clearly documents that both asbestos and cigarettes, independently, can lead
to the development of lung cancer. However it is also well documented
that addition of asbestos on top of cigarette smoking greatly increases the
risk of developing lung cancer, far beyond that of cigarette smoking alone.
It is not necessary to document underlying asbestosis to relate a lung cancer
to the prior documented history of exposure to asbestos.
Also, it would further be my opinion that each and every exposure, to
any and all products containing asbestos that would have led to the
inhalation of dust, would have contributed to his developing this lesion.
The information in the records documents a wide variety of exposures to
many products, and there is no way to differentiate the asbestos from one
product or another, in terms of its ability to produce disease such as has
occurred in [William’s case.]
{¶27} In addition, Marilyn submitted reports from Dr. Robert DeMarco, M.D., and
Dr. Steven Dikman, M.D. Dr. DeMarco examined William for the Bureau of Workers’
Compensation in December 2003. Dr. DeMarco opined that William’s “carcinoma of
the lung is related to asbestos related disease.” Dr. Dikman reviewed William’s medical
records and stated that in his opinion, “with a reasonable degree of medical certainty,
given the exposure history, clinical evidence of pulmonary asbestosis and a history of
cigarette smoking, that both [William’s] asbestos exposure and cigarette smoking were
significant contributing factors in the development of lung carcinoma that resulted in his
death.” In another report, Dr. Dikman further opined that William’s “asbestos exposure
was a substantial factor in causing his lung cancer.”
{¶28} When the Whipkeys and the Sinnotts filed their complaint against
defendants in 2004, which was before the effective date of H.B. 292, there was no
requirement of 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.” R.C. 2307.92(C)(1)(a). James Sinnott died in August 2005. Similarly, by
the time it had been ruled that H.B. 292 applied to the Whipkeys’ case, William had been
dead for nearly two years, which made it impossible for Marilyn to comply with H.B.
292’s requirements. Neither the Whipkeys nor the Sinnotts had reason to believe that they
would have to prove a prima-facie case under H.B. 292. As Justice Pfiefer stated in his
dissent in Ackison:
R.C. 2307.91(Z) is a special rule for asbestos plaintiffs only and is
designed to attack the way their cases are brought. It changes the type of
evidence necessary to prosecute a claim. It requires Danny Ackison, a
dead man, to find an internist, pulmonary specialist, oncologist, pathologist,
or occupational medicine specialist to become his treating physician.
Without that relationship, there is no claim. No statute or rule of evidence
anywhere approaching that kind of evidentiary requirement existed at the
time Ackison filed his claim. It adds an element to proving a claim that for
Ackison is impossible to achieve. That requirement kills his cause of
action by redefining it into oblivion. (Emphasis in original.) Id. at ¶ 92.
{¶29} In Sinnott, we stated, “[R.C. 2307.92] is not in place to penalize veterans or
other nontraditional patients who were properly diagnosed by competent medical
authority personnel and have the medical records and other evidence to support their
claim.” Id. at ¶ 23. Here, William was not aware of any asbestos-related disease until
2003. He then began the appropriate treatment for his cancer. After his diagnosis, a
lawsuit was filed in 2004, which was in accordance with the then-existing common law.
At that time, there were no prima-facie requirements under H.B. 292. In fact, discovery
was complete and the matter was set for trial in October 2005. Then in August 2005,
defendants moved to administratively dismiss the appeal, which the trial court denied.
{¶30} William passed away in September 2007, and under the authority of
Ackinson, this court found that H.B. 292 could be retroactively applied to Marilyn’s claim
in July 2009. Upon remand, defendants took no further action to have the case
dismissed. On January 21, 2011, the parties agreed to a case management order setting
the matter for trial again, this time in June 2011. Then on January 25, 2011,
defendant-Ford moved to administratively dismiss the case.
{¶31} Alternatively, we note R.C. 2307.93(A)(1) states that “[t]he defendant has
one hundred twenty days from the date of the specified type of prima-facie evidence is
proffered to challenge the adequacy of that prima-facie evidence.” Based on the
stipulated record before us, discovery was completed in 2005. H.B. 292 was applied to
the matter in July 2009. The defendants then moved to administratively dismiss the
matter in January 2011, which is beyond the 120-day requirement in the statute.
Additionally, there is no indication in the record before us that defendants sought leave to
file the motion. Thus, it appears that defendants’ motion was untimely and should have
been denied by the trial court for that basis.
{¶32} Therefore, based on the foregoing, we find in the instant case, just as in
Sinnott, that R.C. 2307.92 is not in place to penalize William as a nontraditional patient,
who was properly diagnosed by competent medical authority personnel and has the
medical records and other evidence to support his claim. Id. at ¶ 23. By submitting
hospital records documenting William’s diagnosis of lung cancer, history of smoking, and
asbestos exposure, and reports from competent medical authority, Marilyn provided
ample evidence demonstrating that William’s occupational asbestos exposure was a
substantial factor in causing his lung cancer. Id. at ¶ 19. See also Hoover v. Norfolk S.
Ry. Co., 8th Dist. Nos. 93479 and 93689, 2010-Ohio-2984, appeal not allowed by Hoover
v. Norfolk S. Ry. Co., 127 Ohio St.3d 1504, 2011-Ohio-19, 939 N.E.2d 1267 (where this
court reviewed the evidence in toto to determine if plaintiff established his prima-facie
case. We stated that “based on our de novo review of the record that the medical records
and reports [plaintiff] submitted * * * was sufficient to establish a causal link between
[his] lung cancer and his asbestos exposure.” Id. at ¶ 22.)
{¶33} H.B. 292 was enacted in order to alleviate the crisis in Ohio regarding the
administration of claims for injuries alleged to have been caused by exposure to asbestos.
See Am.Sub.H.B. 292, Section 3(B). However, there is no crisis in the matter before us.
As the trial court noted “[o]ne would think this case was not part of the announced
purpose of H.B. 292 as the cost and expense of discovery had been completed.”
{¶34} Accordingly, we find that the trial court erred when it administratively
dismissed Marilyn’s complaint.
{¶35} Therefore, the sole assignment of error is sustained.
{¶36} Judgment is reversed and the matter is remanded for further proceedings
consistent with this opinion.
It is ordered that appellant recover from appellees 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.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR