Renfrow v. Norfolk S. Ry. Co.

[Cite as Renfrow v. Norfolk S. Ry. Co., 2013-Ohio-1189.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98715
CLEO J. RENFROW
PLAINTIFF-APPELLEE
vs.
NORFOLK SOUTHERN RAILWAY COMPANY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-764958
BEFORE: Blackmon, J., S. Gallagher, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: March 28, 2013
ATTORNEYS FOR APPELLANT
Patrick C. Booth
David A. Damico
Ira L. Podheiser
Burns White, L.L.C.
Four Northshore Center
106 Isabella Street
Pittsburgh, PA 15212
ATTORNEYS FOR APPELLEE
Michael L. Torcello
Christopher M. Murphy
Doran & Murphy, P.L.L.C.
1234 Delaware Avenue
Buffalo, NY 14209
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Norfolk Southern Railway Company (“Norfolk Southern”)
appeals the trial court’s denial of its motion to administratively dismiss the complaint of
appellee Cleo Renfrow (“Mrs. Renfrow”), as personal representative of the estate of
Gerald B. Renfrow (“Mr. Renfrow”). Norfolk Southern assigns the following error for
our review:
I. The trial court erred when it found that the decedent, Gerald
Renfrow’s treatment at a VA facility meant that he did not have to
submit a report from a competent medical authority, when he
presented no medical records indicating that he was exposed to
asbestos or that asbestos caused his lung cancer.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
{¶3} Mr. Renfrow was a veteran who served in the United States Air Force as an
airman from February 15, 1961 to May 7, 1964. Mr. Renfrow later worked for Norfolk
Southern as a brakeman beginning in 1968 until 1992 when he retired due to back
problems. For more than 50 years, Mr. Renfrow smoked one-and-one-half packs of
cigarettes per day.
{¶4} In March 2010, Mr. Renfrow was diagnosed with lung cancer and utilized
the Veterans Administration for his healthcare. Mr. Renfrow was treated for lung cancer
at Richard L. Roudebush VA Medical Center, the CBOC VA Health Care System and
VA Marion, Indiana. During the course of treatment at the Veterans Administration, Mr.
Renfrow did not have a regular treating doctor, but a variety of doctors and nurse
practitioners. On January 22, 2011, Mr. Renfrow passed away while receiving palliative
care treatment in a hospice care center.
{¶5} On September 22, 2011, Mrs. Renfrow, as representative of the estate of
Mr. Renfrow, filed suit against Norfolk Southern alleging asbestos-related injuries under
the Locomotive Boilers Inspection Act (“LBIA”), seeking relief pursuant to the Federal
Employers’ Liability Act (“FELA”). Mrs. Renfrow alleged that during her husband’s
career with the railroad, he was continuously exposed to various toxic substances,
including diesel exhaust and asbestos, in violation of federal law. Mrs. Renfrow further
alleged that the exposures to asbestos caused Mr. Renfrow to develop lung cancer.
{¶6} On April 15, 2012, Norfolk Southern moved to administratively dismiss
Mrs. Renfrow’s claims, alleging she had failed to comply with the prima facie filing
requirements of R.C. 2307.92(C). That statute requires a smoker bringing a tort action
alleging an asbestos claim to provide certain medical documentation before a prima facie
claim may be made.
{¶7} Mrs. Renfrow responded by submitting her husband’s Veterans
Administration’s medical records relating to his treatment for lung cancer. She also
offered an affidavit from Darl Rockenbaugh, a railroad coworker, detailing Mr.
Renfrow’s exposure to asbestos throughout his tenure with Norfolk Southern.
Rockenbaugh, who worked with Mr. Renfrow throughout Indiana, Ohio, Illinois, and
Michigan averred that from 1968 when Mr. Renfrow was hired, he was exposed to
asbestos on a regular basis.
{¶8} Specifically, Rockenbaugh averred that he had first-hand, personal
knowledge of the use of asbestos containing products on the railroad; that he and Mr.
Renfrow sometimes worked 8-to-16 hour shifts seven days per week. Rockenbaugh
averred that the condition of the asbestos insulation was poor from wear and tear, poorly
maintained, and the two men regularly breathed the asbestos dust.
{¶9} Rockenbaugh also averred that the locomotives the two men worked on
contained significant amounts of asbestos throughout the units. He stated that the cabins
were heated with hot water and the pipes feeding the radiators were wrapped with white
asbestos insulation. The pipes were at floor level and Rockenbaugh and Renfrow came
in regular contact with the worn, frayed, and dusty asbestos containing insulation
throughout their respective tenure with Norfolk Southern.
{¶10} In addition, Mrs. Renfrow submitted an expert report from Dr.
Laxminarayana C. Rao. Dr. Rao, is board certified in internal medicine and pulmonary
medicine; he is also a NIOSH certified B-reader, specifically trained in the detection of
pneumoconiosis on chest x-ray.
{¶11} The case proceeded to a hearing, and the trial court denied the motion to
administratively dismiss. The trial court found that Mrs. Renfrow submitted evidence,
“consisting of Mr. Renfrow’s hospital records, history of smoking, asbestos exposure, and
a report from a competent medical authority is sufficient to establish a prima facie case as
required by R.C. 2307.92 and 2307.93.” Norfolk Southern now appeals.
Administrative Dismissal
{¶12} In the sole assigned error, Norfolk Southern argues that the trial court
should have administratively dismissed the complaint because Mrs. Renfrow failed to
present prima facie evidence from a “competent medical authority” that exposure to
asbestos was a “substantial contributing factor” to the development of Mr. Renfrow’s
lung cancer.
{¶13} On September 2, 2004, Am.Sub.H.B. 292 became effective, and its key
provisions were codified in R.C. 2307.91 through 2307.98. Farnsworth v. Allied Glove
Corp., 8th Dist. No. 91731, 2009-Ohio-3890. The statutes require plaintiffs who assert
asbestos claims to make a prima facie showing by a competent medical authority that
exposure to asbestos was a substantial contributing factor to their medical condition
resulting in a physical impairment. Cross v. A-Best Prods. Co., 8th Dist. No. 90388,
2009-Ohio-3079; Am. Sub. H.B. 292, Section 3(A)(5).
{¶14} “Substantial contributing factor” is defined as “[e]xposure to asbestos [that]
is the predominate cause of the physical impairment alleged in the asbestos claim” and
that “[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.” Link v. Consol. Rail Corp., 8th Dist. No. 92503,
2009-Ohio-6216; R.C. 2307.91(FF)(1) and (2). In Ackison v. Anchor Packing Co., 120
Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, the Ohio Supreme Court construed
the statute as requiring that asbestos exposure be a significant, direct cause of the injury to
the degree that without the exposure to asbestos, the injury would not have occurred. Id.{¶15} Directly relevant to this case, specifically because Mr. Renfrow smoked a
pack and a half of cigarettes per day for more than 50 years, 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 plaintiff in one of these situations can establish a prima facie showing in the manner
described in R.C. 2307.93(A).
{¶16} Any plaintiff who bases his claim on any of the three circumstances listed
in R.C. 2307.92(B), (C), or (D), must file “a written report and supporting test results
constituting prima facie evidence of the exposed person’s physical impairment” meeting
the requirements specified in those sections. R.C. 2307.93(A)(1).
{¶17} Specifically, R.C. 2307.92(C)(1) sets forth the requirements a smoker with
lung cancer must present to establish a prima facie case, including, evidence from a
competent medical authority that the exposed person has primary lung cancer, and that the
exposure to asbestos is a substantial contributing factor; evidence that there was a latency
period of ten or more years since the exposure and the diagnosis of lung cancer; and
evidence of either the exposed person’s substantial occupational exposure or evidence
that the exposure to asbestos was at least equal to 25 fiber per cc years as determined to a
reasonable degree of scientific probability by a certified industrial hygienist or safety
professional.1
{¶18} Under R.C. 2307.93(A)(1), defendants may challenge the adequacy of the
plaintiff’s prima facie evidence. R.C. 2307.93(B) provides that if the defendant does
challenge the adequacy of the plaintiff’s prima facie evidence, the court “shall determine
from all of the evidence submitted” whether the proffered prima facie evidence meets the
minimum requirements for cases involving smoker lung cancer, as specified in R.C.
2307.92(C). The trial court shall resolve the issue of whether the plaintiff has made the
prima facie showing required by division (B), (C), or (D) of section 2307.92 of the
Revised Code by applying the standard for resolving a motion for summary judgment.
R.C. 2307.93(B).
{¶19} If the court finds, after considering all of the evidence, that the plaintiff
failed to make a prima facie showing, then “[t]he court shall administratively dismiss the
plaintiff’s claim without prejudice.” Wilson v. AC&S, Inc., 169 Ohio App.3d 720, 2006
Ohio 6704, 864 N.E.2d 682 (12th Dist.); R.C. 2307.93(C). Summary judgment is
reviewed de novo on appeal. Parenti v. Goodyear Tire & Rubber Co., 66 Ohio App.3d
1The Ohio Supreme Court has determined that “[t]he prima facie filing
requirements of R.C. 2307.92 are procedural in nature, and their application to
claims brought in state court pursuant to the FELA and the LBIA does not violate
the Supremacy Clause, because the provisions do not impose an unnecessary
burden on a federally created right.” Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455,
2007-Ohio-5248, 875 N.E.2d 919. Therefore, the prima facie requirements contained
in R.C. 2307.92(C)(1) do apply to this case.
826, 586 N.E.2d 1121 (9th Dist. 1990). Summary judgment is proper only when the
movant demonstrates that, viewing the evidence most strongly in favor of the
non-movant, reasonable minds must conclude that no genuine issue as to any material fact
remains to be litigated, and the moving party is entitled to judgment as a matter of law.
Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
{¶20} Furthermore, summary judgment “must be awarded with caution. Doubts
must be resolved in favor of the non-moving party.” Sinnott v. Aqua-Chem, Inc., 116
Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, citing Murphy v. Reynoldsburg, 65
Ohio St.3d 356, 359, 1992-Ohio-95, 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.
{¶21} In the instant case, Norfolk Southern contends the trial court should have
administratively dismissed the case because Mrs. Renfrow never produced any records
from her husband’s treating physician or hospitals that discuss asbestos exposure or
discuss a link between asbestos and his lung cancer.
{¶22} However, in denying Norfolk Southern’s motion to administratively dismiss
the case, the trial court relied on our decision in Sinnott v. Aqua-Chem, Inc., 8th Dist. No.
88062, 2008-Ohio-3806, which addressed the issue of whether a veteran utilizing his
veterans’ benefits for the treatment of his lung cancer, without a traditional treating
doctor, is bound by the prima facie filing requirements of R.C. 2307.92(C).
{¶23} In Sinnott, as well as in the present case, the plaintiff’s treating physicians
were employed by the Veterans Administration, which we have found to limit plaintiff’s
ability to experience the typical doctor-patient relationship that was envisioned by the
statute. There, we recognized that achieving the typical doctor-patient relationship in the
statute is not a bright line test, nor is it the sole factor in the statute. Id. The fact that
plaintiff was examined by a doctor employed by the Veterans Administration does not
diminish the value of the evidence contained in the medical records. Id.{¶24} 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.
{¶25} Recently, in Whipkey v. Aqua-Chem, Inc., 8th Dist. No. 96672,
2012-Ohio-918, a case also involving a nontraditional patient, utilizing veterans’ benefits
for treatment of lung cancer, we reaffirmed our decision in Sinnott. In Whipkey we
considered it immaterial that plaintiff’s experts were not his treating physicians. Id. We
concluded that R.C. 2307.92 was not intended to penalize a nontraditional patient like the
decedent who was properly diagnosed by competent medical personnel and had medical
records and other evidence to support his claim. Id.{¶26} Dr. Rao, is a competent medical authority; he reviewed Mr. Renfrow’s
medical records, and he opined in pertinent part as follows:
I have come to the conclusion within a reasonable degree of medical
certainty that Mr. Renfrow had inoperable lung cancer with brain
metastasis. * * * I have also come to the conclusion, based upon his
occupational exposure to asbestos dust and diesel fumes and exhaust,
that he was occupationally exposed to these carcinogens. Asbestos
dust and diesel fumes and exhaust are known carcinogens, and
exposure to these increases the risk of lung cancer substantially. In
addition he was a smoker. Smoking increases the risk of lung cancer
substantially in the presence of occupational exposure to asbestos dust,
diesel fumes and exhaust. Therefore it is my opinion within a
reasonable degree of medical certainty that occupational exposure to
asbestos dust, diesel fumes and exhaust in part contributed to the
development of his lung cancer and eventual death.
{¶27} Here, without utilizing magic words, Dr. Rao’s opinion supplied the causal
link between Mr. Renfrow’s occupational exposure to asbestos dust, diesel fumes, and
exhaust and him developing lung cancer and eventually dying. Dr. Rao opined that Mr.
Renfrow’s exposure to these known carcinogens, acted synergistically with his cigarette
smoking to greatly increase the risk of developing lung cancer beyond what would have
been expected from only smoking or only being exposed to asbestos dust.
{¶28} Consequently, because Dr. Rao’s report provided the crucial causal link
between Mr. Renfrow’s occupational exposure to asbestos dust, diesel fumes and exhaust
and him developing lung cancer, the trial court was on firm ground in concluding that
Mrs. Renfrow had established a prima facie case as required by R.C. 2307.92 and
2307.93.
{¶29} Unlike, for example, the situation we faced in Rossi v. Conrail, 8th Dist. No.
94628, 2010-Ohio-5788, where decedent’s treating physician’s belief that asbestos
exposure “may have” played a role in the development of his lung cancer, did not state an
opinion to a reasonable degree of medical certainty. There, “may have” was purely
conjecture and could not suffice to make a prima facie case. Id.{¶30} We also note that the decedent’s estate in Rossi also offered the opinion of a
certified B-reader who conducted a records review of decedent’s medical files. However,
the defendant railroad challenged whether the B-reader met the statutory definition of a
“competent medical authority” found under R.C. 2307.91(Z). The railroad argued that
there was nothing in the record to show that B-reader had treated decedent or had a
doctor-patient relationship with decedent. Instead, the record showed that decedent was
consistently treated by a single doctor and was never treated by the B-reader.
{¶31} Unlike the instant case, the decedent in Rossi was without the benefit of our
pronouncement in Sinnott, 8th Dist. No. 88062, 2008-Ohio-3806, which allows a
plaintiff who is treated by a team of doctors at a Veterans Administration hospital to
sufficiently demonstrate a doctor-patient relationship for purposes of R.C. 2307.91(Z).
Consequently, we were constrained to conclude that no medical authority had
competently testified to a reasonable degree of medical certainty that decedent’s exposure
to asbestos was a substantial contributing factor to his lung cancer.
{¶32} The situation in Holston v. Adience, Inc., 8th Dist. No. 93616,
2010-Ohio-2482, provides yet another example of conjecture, which is insufficient to
establish a prima facie case. In Holston, one of plaintiff’s treating physicians, stated in
pertinent part as follows: “In my medical opinion I feel that Mr. Holstons [sic] work
history and his history of tobacco use directly contribute to his diagnosis of Lung
Cancer.”
{¶33} “I feel” in Holston, is just as inadequate as “may have” in Rossi, and, thus
failed to establish a prima facie case as required by R.C. 2307.92 and 2307.93. Here, Dr.
Rao’s expert opinion, within a reasonable degree of medical certainty, laid out the causal
link between Mr. Renfrow’s occupational exposure to asbestos dust, diesel fumes, and
exhaust and him developing lung cancer and eventually dying.
{¶34} Pivotally, R.C. 2307.91(GG) defines “substantial occupational exposure to
asbestos” as employment for a cumulative period of at least five years in an industry and
an occupation in which, for a substantial portion of a normal work year for that
occupation, the exposed person did any of the following:
(1) Handled raw asbestos fibers;
(2) Fabricated asbestos-containing products so that the person was
exposed to raw asbestos fibers in the fabrication process;
(3) Altered, repaired, or otherwise worked with an asbestos-containing
product in a manner that exposed the person on a regular basis to
asbestos fibers;
(4) Worked in close proximity to other workers engaged in any of the
activities described in division (GG)(1), (2), or (3) of this section in a
manner that exposed the person on a regular basis to asbestos fibers.
{¶35} Here, in addition to Mr. Renfrow’s medical records from the Veterans
Administration and Dr. Rao’s expert report, Mrs. Renfrow submitted the affidavit of
Rockenbaugh, her husband’s coworker for more than two decades. As previously stated
in the affidavit, Rockenbaugh gave a detailed account of Mr. Renfrow’s exposure to
asbestos and asbestos products on an ongoing basis throughout his long tenure with
Norfolk Southern. We have upheld the use of this selfsame evidence to establish
substantial occupational exposure to asbestos. See Hoover v. Norfolk S. Ry. Co., 8th
Dist. Nos. 93479 and 93689, 2010-Ohio-2894.
{¶36} Along with Rockenbaugh’s affidavit detailing Mr. Renfrow’s asbestos
exposure, along with the Veterans Administration’s hospital records documenting his
diagnosis of lung cancer, history of smoking, as well as the report of Dr. Rao, a
competent medical authority, Mrs. Renfro provided ample evidence demonstrating that
her husband’s occupational asbestos exposure was a substantial factor in causing his lung
cancer.
{¶37} The above evidence, when viewed collectively, is sufficient to survive an
administrative dismissal. As such, the trial court did not err when it denied Norfolk
Southern’s motion to dismiss. Accordingly, we overrule the sole assigned error.
{¶38} Judgment affirmed.
It is ordered that appellee recover from appellant 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.
PATRICIA ANN BLACKMON, JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR