Update: On September 27, 2018, the Supreme Court of Ohio handed down a merit decision in Turner v. CertainTeed Corp., 2018-Ohio-3869. In an opinion written by Justice Fischer, joined in full only by Justices French and DeGenaro, the court set forth the requirements in an asbestos case for a plaintiff who is also a smoker, with the key issue being which side has to prove the plaintiff’s smoking status, and when. Chief Justice O’Connor concurred in judgment only. Justice Kennedy concurred in judgment only with an opinion joined by Justice O’Donnell. Justice DeWine concurred in judgment only, with his own opinion. The case was argued February 13, 2018.
This case is hyper technical, and probably of use only to those practicing in this very specialized area of law, so this is just a short summary of the positon of the justices. Those interested are encouraged to read the entire 39 page opinion.
All seven justices agree that the Eighth District, which held that the determination of whether a person is a smoker is a question of fact and not a medical issue, must be reversed. But that is the end of the agreement.
Lead Opinion (Justices Fischer, French and DeGenaro)
The lead opinion, authored by Justice Fischer, holds that the plaintiff does not have to prove he or she is a non-smoker, and only has to make the additional prima facie requirements of R.C. 2307.92(C)(1)if the defendant provides a written report from competent medical authority, as defined in R.C. 2307.91 Z(1), (3) and (4), but not (2), that the plaintiff is a smoker (presumably having learned this through discovery.) And the lead opinion sets out a four step process for how this determination is ultimately made. Only Justices French and DeGenaro signed on to the lead opinion. Chief Justice O’Connor concurred in judgment only.
The Kennedy Position
It is the plaintiff who bears the burden of proving he or she is not a smoker. R.C. 2307.92(C)(1) prohibits anyone from bringing an asbestos claim for lung cancer unless the plaintiff is not a smoker, or within 30 days after the filing of the complaint, the plaintiff submits prima facie evidence showing that the exposure to asbestos was a substantial contributing factor to the lung cancer. When the plaintiff hasn’t done that, the only way to avoid an administrative dismissal of the complaint is to submit a written report of a competent medical authority that plaintiff is not a smoker, as that term is defined by statute. Turner did not do that, and his case should have been administratively dismissed, without prejudice. Justice O’Donnell signed on to this separate concurrence in judgment only.
The DeWine Position
The issue in this case is how to determine whether a plaintiff who alleges he has lung cancer because of asbestos exposure is a smoker or a nonsmoker. Justice DeWine would find the answer in the statutory definition of smoker in R.C. 2307.91(D)(D). DeWine is sharply critical of the lead opinion for rewriting the definition of “competent medical authority” and for inventing its four step process “only tenuously tethered to the statutes” and suggested by no party or lower court in this case. To him, the most reasonable reading of the statute is “that the starting point must be determining a person’s smoking status.” And the burden of establishing nonsmoking status is on the plaintiff, who is in the best position to get a report from his treating physician.
For the record, I think Justices Kennedy and DeWine have the more persuasive position here. And only three justices signed on to the four-step process outlined in the lead opinion, so it is unclear where that will stand on remand.
Analysis of Oral Argument
“I feel like we kind of have a chicken and the egg problem here. Do you have to determine first that you’re a non-smoker, and then you go through the prima facie process, or is it at some point along the way?”
Justice French
On February 13, 2018, the Supreme Court of Ohio heard oral argument in Bobby Turner, et al. v. CertainTeed Corporation, et al., 2017-0004. At issue in the case is whether Ohio law requires any plaintiff who has been exposed to asbestos and who has lung cancer, to submit a written report by a competent medical authority to prove he or she has not smoked enough to be deemed a smoker, as that term is defined by R.C. 2307.91 (D)(D).
Case Background
In 2013, Appellee Bobby Turner was diagnosed with lung cancer. In January 2014, Turner and his wife filed suit against Appellant Union Carbide Corporation and other named defendants not party to the present appeal. Turner alleged that his lung cancer was caused by his occupational exposure to asbestos as a drywall finisher from approximately 1962 until 1978.
In 2014, Union Carbide moved for administrative dismissal of Turner’s complaint pursuant to R.C. 2307.92 and R.C. 2307.93. Union Carbide contended that Turner failed to timely submit prima facie evidence about his smoking status as required by R.C. 2307. Turner responded by filing an affidavit stating that he had smoked a monthly cigar in 1956, but quit thereafter. Turner also submitted various medical records supporting his contention that he was a non-smoker. Based on these documents, Union Carbide withdrew its motion.
However, in 2015, Union Carbide renewed its motion for administrative dismissal, challenging the adequacy of Turner’s prima facie evidence. Specifically, Union Carbide claimed, based on newly obtained medical records and deposition testimony, that Turner qualifies as a smoker as defined under R.C. 2307.91(DD). Therefore, Turner failed to meet the prima facie requirements to bring a tort action alleging asbestos exposure. Turner opposed Union Carbide’s motion and contends that the totality of the evidence supports Turner’s proposition that he is not a smoker. The trial judge found that Turner was not a smoker.
On appeal, the Eighth District, in a unanimous opinion, affirmed the decision of the trial court and denied Union Carbide’s motion for administrative dismissal pursuant to R.C. 2307.92 and 2307.93. The Eighth District found that a plaintiff need not establish that he or she is not a smoker with a written report of a competent medical authority. Whether or not a person is a smoker is a factual, not a medical, determination. Written reports by a competent medical authority are only required after it is determined that the exposed person is a smoker, to establish that the plaintiff’s diagnosis of lung cancer was a result of asbestos exposure, and not from smoking. Here, the decision of the trial court that Turner was not a smoker was supported by competent credible evidence.
Read the oral argument preview in the case here.
Key Statutes and Precedent
R.C. 2307.91(DD)(Asbestos claims—definitions:
(Z) “Competent medical authority” means 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 section 2307.92.
(DD) “Smoker” means a person who has smoked the equivalent of one-pack year, as specified in the written report of a competent medical authority pursuant to sections 2307.92 and 2307.93 of the Revised Code, during the last fifteen years
R.C. 2307.92 (Prima facie showing)
- “bodily injury caused by exposure to asbestos” means physical impairment of an exposed person, to which the person’s exposure to asbestos is a substantial contributing factor.
(C)(1)(a-c) 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 division (A) of section 2307.93 of the Revised Code, 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 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; at least ten years have passed from the date of the person’s exposure to the eventual diagnosis; and either evidence of the exposed person’s substantial exposure to asbestos, or 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 by a qualified professional.)
R.C. 2307.93 (Any plaintiff alleging an asbestos claim shall file, within thirty days of filing the initial complaint, a written report supporting the plaintiff’s physical impairments described in R.C. 2307.92. If a defendant challenges the adequacy of such prima facie evidence the court shall determine whether the evidence meets the minimum requirements of R.C. 2307.92 by the standard for resolving a motion for summary judgment. The court shall dismiss the plaintiff’s claim without prejudice if it finds the plaintiff failed to make an adequate prima facie showing.)
Penn v. A-Best Prods. Co., 2007-Ohio-7145 (10th Dist.)(Neither R.C. 2307.92 nor R.C. 2307.93 place any burden on a party to submit a written report and supporting test results to demonstrate that he or she is a non-smoker.)
Farnsworth v. Allied Glove Corp., 2009-Ohio-3890 (8th Dist.) (The determination as to whether a person is a smoker is a threshold question that must be decided before requiring a plaintiff to submit a report of competent medical authority as prima facie evidence that meets the necessary elements of the statute.)
Renfrow v. Norfolk S. Ry. Co., 2014-Ohio-3666 (One of the statutory prerequisites necessary to establish a prima facie tort action alleging an asbestos claim based upon lung cancer requires a person who is a smoker to demonstrate a diagnosis by a competent medical authority that the exposure to asbestos is a substantial contributing factor.)(First paragraph of syllabus)
At Oral Argument
Arguing Counsel
Richard D. Schuster, Vorys Sater Seymour and Pease LLP, Columbus, for Appellant Union Carbide Corporation
Kevin E. McDermott, McDermott & Hickey LLC, Rocky River, for Appellee Bobby Turner
Union Carbide’s Argument
RC 2307.91(D)(D) requires that the status of a smoker be determined through a report of a competent medical authority as the language in that statute states. The court cannot eliminate that specific statutory language as the 8th District did, and simply let judges decide who is or is not a smoker.
The asbestos statutes set up a two-stage system. The first stage sets forth some preliminary prima facie requirements in some cases such as lung cancer cases like this one where there is reason to believe that the lung cancer is really related to smoking. If the plaintiff in the first stage cannot satisfy those preliminary prima facie requirements, then the case is administratively dismissed. However, a plaintiff can skip this preliminary first stage if he did not smoke or can show he did not smoke the equivalent of one-pack year, and proceed to the second stage, which is discovery and trial. The intent of the General Assembly is clear–it is to make those who have smoked more than a pack year over the past 15 years go forward with the prima facie case.
Turner failed to satisfy the prima facie requirements by providing a report of competent medical authority that he was not a smoker as statutorily defined, and his case should have been administratively dismissed. Turner’s records are replete with information that he smoked cigars occasionally over a long period. And he was being treated for chronic pulmonary obstructive disease and emphysema—both diseases associated with smoking. Both of Turner’s treating physicians found that he was a smoker, and they had treated him as a smoker.
Had Turner made his prima facie showing, which he failed to do, Turner would have been required to provide another report connecting his asbestos exposure to his lung cancer. The first medical report focuses on smoking, the second to the cause of the lung cancer.
Turner’s Argument
Bobby Turner is a lifelong paperer, drywaller, and plasterer. He was occupationally exposed to asbestos for almost 20 years. He developed lung cancer in 2013. In 2014 he filed this case. The case went on until two weeks before trial, when Union Carbide renewed its motion for administrative dismissal, claiming that somehow Turner had failed to comply with the statute when he has never smoked a cigarette. And the statutory definition of smoker references cigarettes only. Pack year refers to cigarettes.
Whether or not someone is a smoker is a fact question, which the trial judge can make by looking at all the medical records and the testimony of witnesses. That is exactly what Judge Hanna did in this case, and determined Turner was not a smoker. And contrary to what opposing counsel said, Turner’s treating physicians testified they did not treat him as a smoker.
As for the statutory language, “as determined by competent medical authority,” those words only have relevance if a person is a smoker, to prove causation, as set forth in R.C. 2307.92 and R.C. 2307.93. They do not have relevance for a non-smoker.
There are not two required competent medical authority reports. There is only one. Whether or not a person is a smoker must be determined first. If not, there is no need for a prima facie report. You don’t diagnose whether a person is a smoker or not. You diagnose whether a person has a disease, and whether that disease was related to asbestos, or smoking, or something else. And you need competent medical authority in order to do that. The reference in section DD to competent medical authority only applies after a person has been found to be a smoker.
What Was On Their Minds
Definition of Smoker in R.C. 2307.91(DD)
Didn’t the legislature have the opportunity to define non-smoker—that was in at least one of the bills–but in the end they decided not to define non-smoker, asked Justice French?
Couldn’t the legislature just as easily have written (D)(D) to define non-smoker instead of smoker, asked Justice DeWine? Why does it define smoker? Why the reference to the prima facie case requirements? What is the basis of the contention that only people with some indication of smoking need meet the prima facie requirement? How does that come from the statutory language? Why wouldn’t that apply to everyone? If the plaintiff’s interpretation is correct, why doesn’t this section just say a smoker means a person who has smoked the equivalent of one pack a year during the last 15 years, without reference to competent medical authority?
The Reports, Prima Facie Requirements, and Competent Medical Authority: How Does This All Work?
Is the defense saying there must be a second medical report to connect the cause of the cancer, asked Chief Justice O’Connor? (yes, the defense was saying that.)
In which of those two reports is the prima facie showing required, asked Justice DeGenaro? Does a non-smoker not have to provide either one of these reports? What is it in the first report that would require a plaintiff to have to produce a second report?
How does the definition of smoker as specified in the written report of competent medical authority allow a non-smoker to skip the prima facie case requirements, asked Justice DeWine? Are there two different reports? The prima facie report and the report to determine whether they are a smoker? He commented that it was hard to reconcile the language in the various provisions at issue. Later, he asked whether the plaintiff was asking the court to write the words “written report of competent medical authority” out of the statute. Isn’t that what the lower court did, he asked? Why is that language in the statute?
Turner’s Smoking Status
Do Turner’s medical records suggest he is or is not a smoker, asked Justice O’Donnell? Why are Turner’s medical records, from which the trial judge concluded he was not a smoker, not competent medical authority? Must a physician write a report to be competent medical authority? Wasn’t there testimony from Turner’s treating pulmonologist confirming that he was not a smoker, and medical records to support that?
Why wouldn’t Turner’s status as a smoker be a question of fact that has to go to the jury, asked Justice French?
Can Union Carbide’s contention that Turner is a smoker be rebutted by family and friends, asked Chief Justice O’Connor? Isn’t it true that COPD and emphysema have causes other than smoking? Is it enough to say that Turner’s got the type of cancer that tobacco smoking causes, or must the opinion of a medical expert be set forth that says this is not caused by asbestos exposure, this is caused by smoking? Is all evidence of Turner’s tobacco use, no matter how long ago, admissible at trial?
Skipping the Prima Facie Requirement As a Non-Smoker
How does a plaintiff show he has not smoked the equivalent of a pack year in the last 15 years asked Chief Justice O’Connor? With a medical report that is going to attest to the fact that in the last 15 years, this person has not smoked? Must the plaintiff have a doctor’s report, competent medical authority, to say he has not in the last 15 years smoked the equivalent of one pack year? (yes, says defense counsel.) Can a medical doctor do that?
Pack Years and Other Tobacco
Is one pack year a pack of cigarettes, asked Chief Justice O’Connor? Are all cigarettes equal in their tobacco? Is the aim of the statute a measurement of tobacco, not necessarily how many cigarettes?
Isn’t the point of the statute to determine how much tobacco has medical significance for this type of case, asked Justice French, commenting that lay persons wouldn’t know whether the amount someone has smoked over a period of time has any medical significance or not.
How It Looks From The Bleachers
To Professor Emerita Bettman
Like an Excedrin headache, whether diagnosed by competent medical authority or not. The justices seemed to struggle mightily, as did I right along with them, to get a handle on how this whole thing works, and I don’t think either argument particularly helped. I think Justice French put her finger on it—this does seem like a chicken/egg problem.
Even after listening to both arguments, I still didn’t understand at what point the plaintiff’s smoking status comes into play, how, and by whom, so I went and read Farnsworth v. Allied Glove Corp. (which was reaffirmed by the 8th District in the appellate decision in this case) which I found very illuminating, and, to me, persuasive. Let me quote the pertinent parts of that decision:
{¶ 25} “We conclude then that the phrase in R.C. 2307.91(DD), “as specified in the written report of a competent medical authority pursuant to [R.C. 2307.92 and 2307.93],” cannot mean that competent medical authority is required to establish who is or is not a smoker. The smoker must come first — meaning that it must first be determined whether the exposed person is a smoker. If so, 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. See R.C. 2307.92 and 2307.93.
{¶ 30} “Thus, it is our view that at this preliminary stage of the litigation, when courts are simply attempting to prioritize its asbestos docket, neither plaintiffs nor defendants are required to use a competent medical authority — which again is a medical doctor who provides a diagnosis for purposes of establishing prima facie evidence of an exposed person’s physical impairment — to prove that an exposed person is or is not a smoker.
{¶ 31} “Thus, when there is a dispute as to whether a person is or is not a smoker, we conclude that the parties must submit evidence (that would be admissible under the rules of evidence) to prove their contention. This evidence may very well include the exposed person’s medical history, if indeed there is one. Whether a person is a smoker may be very clear. It may be equally as clear that a person is not a smoker. But when there is a question as to whether the person is or is not a smoker, as in the case sub judice, the trial court must review the evidence submitted by both parties to resolve the issue.”
That’s how Judge Hanna proceeded in this case, and found that Turner was not a smoker. And Judge Hanna certainly has a ton of experience with these cases.
If the Court follows Farnsworth, and also the 10th District in Penn v. A-Best Prods. Co. it would mean that Turner is correct, that the phrase “competent medical authority” is part of the causation requirement only if the court finds the plaintiff is a smoker, and that Turner did not need to meet the prima facie requirements or prove that he was a non-smoker. I find that more persuasive than Union Carbide’s more tortured statutory interpretation of “competent medical authority.”
Whether that’s where the justices come out is impossible to say until they sort out this most confusing argument. But I couldn’t help but wonder–wouldn’t it make more sense to know the smoking status of every lung cancer patient at the outset of every case instead of arguing about it after months of discovery, shortly before trial?
To Student Contributor Paul Taske
I am hesitant to make a definitive assertion regarding the outcome of this case. The court was none too pleasant during Union Carbide’s argument. Yet, the justices also seemed hostile to several points made by Turner. The court seemed to wrestle with each aspect of the case and parsed various phrases within the statutory sections at issue. At no point did there appear to be a broad consensus among the justices about the proper approach to take with this particular case.
If I were forced to guess at which way the court will rule, I would tentatively guess they will rule in favor of Turner. Chief Justice O’Connor seemed to remark somewhat favorably about the opinion of the Eighth District. Justices DeWine and Fischer, however, seemed to be more critical of Turner’s position—especially regarding how the statute should be read. Justice DeGenaro was somewhat harder to gauge during the argument. However, when she did ask questions they were of Turner’s propositions.
Ultimately, even if Turner is successful, I think the court will be split on this issue. If the split doesn’t manifest in actual dissents from the judgment it will manifest in different approaches to reasoning and approach to statutory interpretation.