Denial of Administrative Dismissal Turns on Definition of a “Smoker” Under Ohio State Code Court of Appeals of Ohio, Eighth Appellate District, November 17, 2016

Plaintiff Bobby Turner and his wife commenced an action in April 2013 alleging asbestos exposure caused his lung cancer. The plaintiff was a drywall finisher from 1962 to 1978. Defendant Union Carbide moved to administratively dismiss the claim in February 2014, claiming that the plaintiffs failed to submit prima facie evidence pursuant to R.C. 2307.92. (Under Ohio’s Revised Code General Provisions a plaintiff must meet minimum medical requirements for tort actions alleging an asbestos claim). In response, the plaintiffs submitted an affidavit saying that Mr. Turner was a non-smoker since 1957 and attached is medical records in support. Based on the affidavit, Union withdrew its motion. Two weeks prior to trial, Union renewed its motion. Union argued that based on recently obtained medical records and deposition testimony Mr. Turner is a smoker as defined under R.C. 2307.91(DD) and therefore failed to meet the minimum medical requirements for an action alleging asbestos exposure. The plaintiffs opposed and argued that the occasional use of a cigar doe s not qualify Mr. Turner as a “smoker” under R.C. 2307.91. The court denied Union’s motion. It noted there was conflicting testimony, but the majority of the notations in the medical records support Mr. Turner’s argument of no recent smoking history. Union appealed.

On appeal, Union argued that the court applied the wrong standard. It was Union’s position that the court should not have weighed the evidence in making its decision since under R.C. 2307.91 (DD) when there is evidence that a person has smoked in the past 15 years, the plaintiff has the burden, through a written report of a “competent medical authority,” to prove that he is not a smoker as defined by the Code. On review, the appellate court analyzed who is considered a “smoker” under the definition in the Code and held “the record establishes that the trial

court had competent, credible evidence before it to support its decision finding Turner to be a nonsmoker. The trial court’s decision was not against the manifest weight of the evidence. Union Carbide’s assignment of error is overruled.”

Read the full decision here.


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