Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County
This matter arises from the decedent’s allegation that his work as a merchant marine on ships, including repair and cleaning of asbestos-insulated steam lines, exposed him to asbestos and contributed to his development of lung cancer. After conducting discovery, the defendants filed a motion to dismiss contending that the plaintiff failed to meet the requirements of Ohio Revised Code Ann. 2307.92 (“Minimum medical requirements for tort action alleging asbestos claim”), including that the plaintiff failed to provide prima facie evidence that the decedent’s asbestos exposure was a substantial contributing factor to his development of lung cancer. After reviewing the proffered evidence, including two doctor’s reports who opined that his exposure to asbestos was a substantial factor that contributed to his lung cancer, the trial court granted the defendants’ motion to dismiss. Thereafter, the plaintiff filed a motion to reinstate the matter and submitted a revised report from the decedent’s treating oncologist, which included the new language that “Mr. Stewart’s combined exposure to asbestos and tobacco history were the predominate causes of Mr. Stewart’s lung cancer. But for Mr. Stewart’s exposure to asbestos and smoking history, Mr. Stewart would not have developed lung cancer.” (emphasis added). As a result, the trial court granted the plaintiff’s motion to reinstate, and defendant Ford appealed.
First, the trial court rejected Ford’s argument that the trial court failed to apply the “but for” causation standard, where “a competent medical authority determine that ‘without the asbestos exposures the physical impairment of the exposed person would not have occurred.’” Ackison v. Anchor Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118 (2008). The Appeals Court noted the trial court’s reliance on the decedent’s treating oncologist’s report is not in conflict with Ackison. Specifically, the Ackison court stated that exposure to asbestos does not need to be the only cause of the disease. Instead, the asbestos exposure must be a substantial contributing factor. Ford also relied on two opinions (Renfrow v. Norfolk S. Ry. Co., 140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173 and Holston v. Adience, Inc., 8th Dist. Cuyahoga No. 93616, 2010-Ohio-2482) where the court found that the respective doctor’s reports were insufficient to establish that asbestos was a substantial contributing factor to the plaintiff’s disease. In those matters, the doctors opined that asbestos exposure contributed in part to the plaintiff’s disease. Here, the Appeals Court noted that the trial court’s finding of the sufficiency of the expert reports is consistent with Renfrow and Holston. Specifically,the plaintiff’s reports opined that asbestos exposure was a substantial contributing factor of the decedent’s lung cancer and that the decedent would not have developed lung cancer but for his asbestos exposure, which the reports in Renfrow and Holston failed to do.
In addition, when construing the evidence most strongly in the plaintiff’s favor, the Appeals Court affirmed the trial court’s decision that the plaintiff’s prima facie evidence satisfied the statutory requirements of R.C. 2307.92. The Appeals Court set forth several considerations when explaining its reasoning, including that the decedent’s treating oncologist met the requirement of a competent medical authority, he had treated the decedent for years prior to his passing, his reports noted the decedent’s 27-year career wherein he was exposed to asbestos, and was diagnosed with lung cancer more than ten years after his last exposure. The Appeals Court also reiterated its conclusion that the reports noted that asbestos exposure was a substantial contributing factor of the decedent’s lung cancer. Thus, the Appeals Court affirmed the trial court’s decision.