2016 Ohio 7776
Ohio Ct. App.2016Background
- In 2013 Bobby Turner was diagnosed with lung cancer and sued Union Carbide and others alleging asbestos exposure as a drywall finisher (1962–1978).
- Union Carbide moved to administratively dismiss under R.C. 2307.92–.93, arguing Turner failed to timely present prima facie medical evidence; Turner responded with an affidavit and medical records stating he was a nonsmoker since ~1957.
- Union Carbide withdrew the first motion but renewed it two weeks before the August 2015 trial, presenting medical records and deposition testimony suggesting Turner smoked cigars for decades and thus met the statutory “smoker” definition.
- Turner disputed that he was a smoker and argued occasional cigar use (if any) did not meet the statutory definition; he also argued the statute’s written report requirement applies only after a person is found to be a smoker.
- Trial court reviewed conflicting records and testimony, found the majority of notations supported no recent smoking history, concluded Turner was not a “smoker” under R.C. 2307.91(DD), and denied administrative dismissal.
- Union Carbide appealed only the legal standard applied, arguing the plaintiff must prove nonsmoker status via a written report of a competent medical authority; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff must prove nonsmoker status with a written report by a "competent medical authority" before court determines smoker status | Turner: no; the written-report/competent-medical-authority requirement applies only after a person is determined to be a smoker and is required for prima facie proof of impairment | Union Carbide: yes; Renfrow requires strict adherence to statutory "written report of a competent medical authority" when smoking history is contested | Court: plaintiff need not produce a competent-medical-authority report to prove nonsmoker status; smoker-status is a threshold factual inquiry decided from submitted evidence and only if a person is found to be a smoker does the written-report requirement attach |
Key Cases Cited
- Renfrow v. Norfolk S. Ry. Co., 18 N.E.3d 1173 (Ohio 2014) (competent-medical-authority report required for smoker-plaintiff to meet prima facie medical showing)
- Eastley v. Volkman, 972 N.E.2d 517 (Ohio 2012) (standard for manifest-weight review of evidentiary findings)
- Wisintainer v. Elcen Power Strut Co., 617 N.E.2d 1136 (Ohio 1993) (appellate courts should not substitute judgment where competent, credible evidence supports trial court)
- Seasons Coal Co. v. Cleveland, 461 N.E.2d 1273 (Ohio 1984) (principles limiting appellate reweighing of evidence)