Whipkey v. Aqua-Chem, Inc., 2012 Ohio 918

Plaintiff-appellant Marilyn Whipkey, as Personal Representative of William Whipkey, appeals a dismissal order in an asbestos case.
The Whipkeys filed suit in 2004 seeking damages for William’s lung cancer allegedly caused by asbestos exposure.
After HB 292 became effective, defendants moved to dismiss for lack of prima facie evidence under the new statute.
The trial court initially allowed the case to proceed, then the issue was appealed up to the Ohio Supreme Court, which remanded.
On remand, Ford moved to administratively dismiss for failure to submit prima facie evidence under HB 292, which the trial court granted.
The court ultimately held HB 292 cannot penalize a nontraditional patient and reversed the dismissal, remanding for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether HB 292 retroactively applies to pre-existing asbestos claims.	Whipkey argues retroactive application is permissible and not punitive.	Defendants contend HB 292 applies retroactively and requires prima facie evidence.	Yes; HB 292 applies retroactively to pre-existing claims.
Whether the medical evidence submitted meets R.C. 2307.92(C) prima facie requirements.	Whipkey asserts the doctors’ reports establish substantial factor causation.	Defendants argue the reports lack a doctor-patient relationship and fail prima facie tests.	The evidence suffices to establish prima facie causation under Sinnott.

Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158 (2007-Ohio-5584) (doctor-patient relationship not strict; substantial evidence can meet prima facie)
Ackison v. Anchor Packing Co., 120 Ohio St.3d 228 (2008-Ohio-5243) (retroactivity of HB 292 purposefully addressed asbestos claims)
Bland v. Ajax Magnethermic Corp., 2011-Ohio-1247 (2011-Ohio-1247) (distinguishable; Sinnott controls retroactivity analysis)
Hoover v. Norfolk S. Ry. Co., 2010-Ohio-2984 (2010-Ohio-2984) (de novo review of medical evidence to establish prima facie)