Rusin v. Buehrer
2017 Ohio 8411
Ohio Ct. App.2017Background
- Mark Rusin, a Cincinnati firefighter of 25+ years, developed ALS after repeated exposure to smoke containing heavy metals and organophosphates; OP&F granted him a duty-related disability retirement.
- Rusin underwent 50 chelation treatments based on Dr. Joseph Hickey’s view that heavy-metal accumulation contributed to his ALS; Hickey is an internist without neurology training and concedes his view is not mainstream.
- Rusin filed an Ohio workers’ compensation claim (denied) and appealed to the Hamilton County Court of Common Pleas; the bench trial included testimony from Rusin, Dr. Hickey (plaintiff’s expert), and Dr. Kenneth Mankowski (city’s neurologist).
- Hickey testified that heavy metals and organophosphates can destroy motor neurons and that, to a reasonable degree of medical certainty, Rusin’s ALS was caused by occupational exposures; he acknowledged lack of published studies proving causation.
- Mankowski testified that ALS is a rare neurological disease, that 90–95% of cases have no known cause, that heavy-metal causation is not established in mainstream neurology, and that Rusin’s records did not show metal levels typical for causation.
- The trial court found Rusin failed to prove causation (especially specific causation) and excluded certain evidence (OP&F decision and testimony of two other firefighters); the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation (general & specific) — whether ALS was caused by occupational exposure to toxins | Rusin: expert evidence and medical articles show heavy metals/organophosphates can cause ALS and did so in his case | City: mainstream neurology does not support heavy-metal causation in Rusin’s circumstances; plaintiff’s evidence is speculative | Court: general causation could be possible, but plaintiff failed to prove specific causation; trial court’s credibility choice for city expert was supported by competent, credible evidence — affirmed |
| Application of R.C. 4123.68(W) presumption for firefighters’ pulmonary/cardiovascular disease | Rusin: ALS should fall under the presumption because it typically causes death by respiratory failure | City: ALS is a neurological disease, not a cardiovascular/pulmonary/respiratory disease listed in the statute | Court: Statute cannot be rewritten; ALS is neurological and the presumption does not apply; liberal construction cannot expand statute — affirmed |
| Exclusion of OP&F decision and testimony of two other firefighters | Rusin: OP&F’s duty-related finding and other firefighters’ complaints were relevant to causation | City: Those items are irrelevant to whether toxins caused Rusin’s ALS; OP&F procedures/standards unknown; other firefighters’ illnesses unspecified | Court: Exclusion was within trial court’s discretion under Evid.R. 401–403; evidence lacked probative value on causation — affirmed |
Key Cases Cited
- Terry v. Caputo, 115 Ohio St.3d 351 (Ohio 2007) (toxic-exposure claims require proof of general and specific causation)
- State ex rel. Ohio Bell Tel. Co. v. Krise, 42 Ohio St.2d 247 (Ohio 1978) (three-part test for occupational disease under R.C. 4123.01(F))
- Vought Industries, Inc. v. Tracy, 72 Ohio St.3d 261 (Ohio 1995) (limits of liberal construction cannot expand a statute’s text)
- Doe v. Marlington Local School Dist. Bd. of Ed., 122 Ohio St.3d 12 (Ohio 2009) (courts must apply statutes as written and not rewrite them)
- Conrad v. Valentine, 110 Ohio St.3d 42 (Ohio 2006) (abuse-of-discretion standard requires unreasonableness, arbitrariness, or unconscionability)