2013 Ohio 5119
Ohio Ct. App.2013Background
- Decedent Charles Cook, a longtime smoker, was diagnosed with lung cancer and autopsy revealed asbestos bodies and interstitial fibrosis.
- In November 2007 Cook filed an asbestos-related complaint against numerous defendants, alleging workplace asbestos exposure caused injury and death.
- Cook’s counsel sought opinions from the decedent’s treating doctors to establish a prima facie link between asbestos exposure and lung cancer/death; doctors declined citing no expertise in asbestos pathology and no doctor-patient relationship with counsel.
- In February 2012 defendants moved to administratively dismiss for failure to submit prima facie evidence; Cook opposed with autopsy and a letter from Dr. Schonfeld opining smoking and asbestos exposure caused cancer.
- Trial court granted the motion to dismiss in August 2012; Cook appealed, challenging the prima facie requirements, constitutional challenges, and the record basis for Goodrich briefing.
- Court held Cook did not obtain a competent medical authority under HB 292 and thus failed to show prima facie impairment; the dismissal was affirmed, but the case was remanded on related record issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether administrative dismissal was proper. | Cook argues dismissal denied access to courts by improper prima facie showing. | NL and others contend HB 292 procedures were satisfied or properly applied. | Properly administratively dismissed. |
| Constitutional challenge as applied to this case. | Statutes are unconstitutional as applied to Cook's situation. | Statutes are procedural/remedial and constitutional when applied. | As applied challenge not well taken; statutes procedural. |
| Whether the autopsy report and non-treating physician opinions could constitute a prima facie showing. | Autopsy and Schonfeld letter should suffice to establish prima facie. | Competent medical authority requires treating physicians under the statute. | Competent medical authority must be treating physician; autopsy/ Schonfeld opinions insufficient. |
| Whether treating physicians qualified as competent medical authority under R.C. 2307.91(Z). | Any medical professional with treating relationship could qualify. | Only those meeting statutory criteria can be competent medical authorities. | Treating oncologist and pathologist qualify; no asbestos-specialist requirement. |
| Whether the Goodrich briefing improperly formed part of the record on appeal. | Goodrich briefing should be part of the record for constitutional arguments. | Goodrich briefing was not properly filed in this case; cannot be considered. | Goodrich briefing not part of the present record; error sustained. |
Key Cases Cited
- Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455 (2007-Ohio-5248) (HB 292 prima facie requirements procedural; open courts not violated)
- Ackison v. Anchor Packing Co., 120 Ohio St.3d 228 (2008-Ohio-5243) (HB 292 requirements remedial and procedural)
- Sinnott v. Aqua-Chem, 8th Dist. Cuyahoga No. 88062 (2008-Ohio-3806) (limited Sinnott exception for Veterans Administration context)
- Link v. Consol. Rail Corp., 8th Dist. Cuyahoga No. 92503 (2009-Ohio-6216) (definition of substantial contributing factor under HB 292)
- Bland v. Ajax Magnethermic Corp., 8th Dist. Cuyahoga No. 95249 (2011-Ohio-1247) (procedural nature of medical evidence requirements)
- Goodrich v. A.O. Smith Corp., CV-561244 (2007) (record-keeping of prior case briefing; limits on record on appeal)