*1
371
Aрpellant.
Railway
Company,
Renfrow,
Appellee,
v. Norfolk
Southern
Co.,
Ry.
v. Norfolk
[Cite as S.
371,
Ohio St.3d 2014.) (No. April September 2013-0761 —Submitted 2014—Decided O’Donnell, J. (“Norfolk Southern”) from a Railway Company appeals Norfolk Southern
judgment Eighth Appeals affirming District Court of the denial of its Renfrow, administratively complaint motion to dismiss the of Cleo J. who asserts caused claims her husband’s asbestos Norfolk Southern him cancer. The court of determined that Renfrow had develop lung appeals dismissal of the action. provided prevent sufficient evidence administrative howevеr, case, Renfrow who physician opined this retained “competent not a about the cause of her husband’s cancer is 2307.91(Z), failed to make and therefore Renfrow in R.C. authority” as defined the administrative prevent law to Ohio showing required facie prima *2 appeals of the court of judgment Accordingly, of the action. dismissal reversed. History and Procedural
Facts as a brakeman from B. worked for Norfolk Southern Gerald 3}{¶ every day for 50 cigarettes and a half of pack until 1992. He smoked through the Veterans cancer and received treatment years. developed lung He 22, 2011, (“VA”) and the death January He died on system. health-care Affairs as the cause of death. cancer with brain metasteses lung certificate listed Renfrow, widow, of her husband’s representative Renfrow’s Oleo J. {¶ 4} Southern, estate, asserting arising asbestos-related claims his sued Norfolk Southern, pursuant claims to the Federal including at Norfolk employment (“FELA”), and other federal seq., Act 45 U.S.C. 51 et Employers’ Liability suit, administratively claiming dismiss the Norfolk moved statutes. Southern statutory filing a tort action comply that it did not with Ohio’s proffer necessary prima Rеnfrow failed to asserting asbestos claims because in of the claims. support facie evidence appended the motion and as exhibits response opposing Renfrow filed certificate, records, an radiology reports, her husband’s death
copies of medical which Dari former coworker of Gerald Renfrow—in Rockenbaugh affidavit —a * * * that he and Renfrow “worked with and around Rockenbaugh averred throughout that in the 1960’sand products regularly asbestos breathed dust Rao, M.D., 1970’s,” Laxminarayana C. who had not report prepared by and a in pulmonary who is board certified internal and treated Gerald Renfrow but medicine. motion, in At a held on the Renfrow’s counsel asserted that hearing precedent, District a trial court “can read the medical Eighth
accordance conjunction expert reports in with the that have been submitted” to records regulating litigation. determine whether the claimant satisfied Ohio law admitted, however, report had not obtained a written from Gerald He he that stated his to asbestos constituted a treating physician Renfrow’s explained factor to his cancer. Renfrow’s counsel contributing substantial in the of Counsel for the Wagner, attorney Regional that Michele Office Indiana, in him that the VA Indianapolis, of Affairs advised Department Veterans M.D.—to with his physician Lynch, comply would not authorize its —Thomas report. for a written request of copies correspondence Renfrow’s counsel forwarded hearing, After the trial court. In a letter dated Counsel to the Regional
from the VA’s Office 18, 2012, May Wagner stated 38 C.F.R. 14.808 “prohibits personnel providing opinion or expert testimony concerning subjects official VA and allows an exception only in exceptional Wagner concluded that circumstance[s].” nei- ther the information contained in a letter from Renfrow’s nor attorney information he provided a subsequent conversation a finding “warrants exceptional circumstances that would waive the on prohibition expert opinion testimony.” She advised him if decision, he disagreed with her he could appeal the matter to Department of Veterans Affairs’ general counsel Washington, D.C. Renfrow’s counsel asserts that when he general contacted the D.C., cоunsel’s office Washington, representative him informed regional counsel had authority to make a final determination the matter. The trial court denied Norfolk Southern’s motion for administrative dismissal. It determined that Gerald Renfrow was a plaintiff’ “nontraditional because he had been treated several physicians practitioners and nurse *3 through the VA health-care system. on Relying Eighth precedent, District trial court ruled that the evidence submitted by Renfrow of Mr. “consisting records, Renfrow’s hospital history of smoking, exposure asbestos and a report from a cоmpetent medical authority is sufficient to establish a prima facie case as required by R.C. 2307.92 and 2307.93.” Norfolk appealed. Southern affirmed, The court of appeals
{¶ 9}
and stated
precedent
its own
established that “R.C. 2307.92 was not intended to
penalize a nontraditional patient like the decedent who was properly diagnosed by
competent medical personnel and had medical records and other evidence to
claim,”
support his
Renfrow,
98715,
8th Dist. Cuyahoga
{¶ 10} review. Nor- folk Southern argues that appellate court impermissibly ignored the statutory requirements in (as asbestos cases that a “competent authority” defined statute) opine that but for аsbestos, the claimant’s exposure to the claimant would not have contracted lung cancer. It maintains that Dr. Rao is not a competent that, medical were, if even he his report does not satisfy this standard. Renfrow contends that the appellate decision in this case and in other
Eighth District decisions protect rights substantive of cancer victims who are treated in hospitals and thus do not have a traditional doctor-patient her, 2307.91(Z)(2). Moreover, according to in R.C. contemplated relationship needs to show who is a smoker law that а Ohio requirement cancer in order developed lung he would not have exposure, asbestos but for the standard negligence conflicts with the dismissal to administrative prevent the same now that the law of causation is also maintains FELA claims. Renfrow litigation, asbestos governing to Ohio law it recent revisions as was before certainty of medical degree to a reasonable opinions Dr. Rao offered his not law, if court’s decision is appellate and that with Ohio common conformity unconstitutionally impairs litigation of asbestos regulation uphеld, then Ohio’s rights. federal Renfrew’s substantive addition, time a contention that Ohio’s raises for the first Renfrow ability impair claim her alleging a tort action asbestos filing I, 16 of the remedy in violation of Article Section meaningful, timely seek litigation law asbestos governing also contends Ohio
Ohio Constitution. She I, Article 5 of the Ohio to a trial Section right jury pursuant her impairs Constitution. Ohio law appeal in this are whether Accordingly, presented the issues ability litigation unconstitutionally impairs litigant’s
regulating asbestos
claims, whether
in a
action
asbestos
a federal cause of action
tort
enforce
dismissal of
sufficient to withstand administrative
presented
Renfrow
evidence
action,
litigation deprives
law
governing
her
and whether Ohio
the Ohio Constitution.
rights granted by
of substantive
Analysis
Law and
*4
2307.98,
2004,
through
2307.91
Assembly
the General
enacted R.C.
292, 150 Ohio
litigation. Am.Sub.H.B. No.
revising
regulating
Ohio law
asbestos
Co.,
228,
3970;
2008-
Laws,
III,
v. Anchor
120 Ohio St.3d
Packing
Part
Ackison
¶
455,
1118, 3;
Ohio-5243,
Ry.
Bogle,
S.
Co. v.
115 Ohio St.3d
897 N.E.2d
Norfolk
¶
the of these statutes is to establish a procedural prioritization of the asbestos-related cases on the Nothing court’s doсket. more. Simply put, these statutes a procedure create to prioritize the administration and resolution aof cause of action that already exists. No new substantive * * burdens are placed on claimants *.
Id. at 16. We 2307.91, have held that the requirements 2307.92, R.C. II, 2307.93 do not violate Constitution, Article Section 28 of the Ohio the Clause, Ackison at syllabus, and that Retroactivity application of the filing requirements of R.C. 2307.92 to brought claims pursuant to the FELA and the federal Locomotive Boiler Inspection Act does not Supremacy violate the Clause Constitution, thе United States Bogle syllabus. 2307.93(A) R.C. governs filing of prima
{¶ facie evidence in tort 16} actions claims, as well as challenges that evidence a defendant. 2307.93(A)(1), Pursuant to R.C. plaintiff a tort action alleges who an asbestos file, claim required initial within 30 days after filing complaint or other pleading, written report and test supporting results constituting prima facie evidence of the exposed person’s physical impairment that meets the minimum requirements 2307.92(B), (C), (D), contained R.C. or whichever is applicable. 2307.93(A)(1) provides R.C. that a defendant shall be afforded a reasonable opportunity, motion, upon to challenge the adequacy proffered prima facie evidence of physical impairment for failure to comply the minimum specified 2307.92(B), (D). (C), R.C. or According to R.C. 2307.93(A)(1), the defendant has days specified the date the type of prima facie evidence is proffered to challenge the adequacy of that evidence. Upon challenge to the adequacy of the prima facie evidence exposed person’s physical 2307.93(B) impairment, R.C. directs a court to resolve the issue whether a plaintiff has a prima made facie showing required by R.C. 2307.92(B), (D) (C), or by applying the standard for resolving motion for summary judgment. 2307.93(C), Pursuant to R.C. a court “shall administratively plaintiffs dismiss” the claim without prejudice upon a finding of failure to make prima (D). facie showing required 2307.92(B), (C), However, R.C. *5 2307.93(C) a requires court to maintain jurisdiction its any over case that is administratively dismissed and permits plaintiff to reinstate the case if the plaintiff prima makes a showing facie that meets the minimum requirements (C) (D). specified 2307.92(B), in R.C. or a smoker and the Renfrow was that Gerald undisputed it is Because metasteses, cancer with brain lung death resulted shows that his
evidence 2307.92(C) It provides: this case. applies R.C. action an asbestos
(1) maintain a tort bring shall or person No smoker, in the who is a exposed person cancer of an upon lung claim based (A) manner described division showing, prima-facie of a absence a Code, has exposed person that the 2307.93 of the Revised of section is a result of a medical impairment that the physical impairment, physical to asbestos is a substantial condition, exposure that the person’s showing That prima-facie cоndition. factor to the medical contributing requirements: minimum following include all of the shall (a) authority competent A medical diagnosis is a exposure and that to asbestos has cancer primary to that cancer. contributing factor substantial 2307.91(FF) contributing factor”: defines the term “substantial following: both of the contributing factor” means “Substantial of the physical is the cause Exposure predominate to asbestos claim. alleged the asbestos impairment with a reasonable A medical has determined competent exposures that without the asbеstos certainty of medical
degree
occurred.
would not have
impairment
exposed person
physical
¶ 48,
Ackison,
228,
“Competent exposed evidence of an diagnosis purposes constituting prima-facie of in specified person’s physical impairment requirements that meets following require- and who meets the section 2307.92 of the Revised Code ments:
(1) internist, special- pulmonary The medical doctor is board-certified ist, or medicine oncologist, pathologist, occupational specialist. or has treated the actually treating The medical doctor is with the doctor-patient relationship person. and has or had a relied, in As the for the the medical doctor has not diagnosis, basis in part, any following:
whole or on (a) doctor, clinic, any laboratory, testing The or of or reports opinions examination, test, an or of the claim- company performed screening law, in re- any regulation, licensing ant’s medical condition violation of quirement, or medical code of of the state which that examina- practice tion, test, conducted; or screening was
(b) clinic, doctor, or reports opinions any laboratory, testing The or of test, examination, of the claim- company performed screening an or clearly establishing ant’s medical condition was conducted without personnel claimant or mеdical involved doctor-patient relationship examination, test, in the or screening process; (c) doctor, clinic, any laboratory, testing The or of or reports opinions examination, test, screening or of the claim- company performed agree ant’s medical condition that the claimant to to retain the required examination, test, services of the law firm or screen- legal sponsoring ing. than cent of the spends twenty-five per The medical doctor not more professional practice providing consulting
medical doctor’s time actions, expert potential services connection with actual or tort and the clinic, or other group, professional corporation, medical doctor’s medical twenty per affiliated earns not more than cent of its revenues from group providing those services. authority” Dr. not satisfy “competent Rao does the definition 2307.91(Z). oral during argument
contained R.C. Renfrow’s counsel conceded establishing that the record devoid of evidence that Dr. Rao satisfies R.C. 2307.91(Z)(4), Dr. he satisfied and he admitted that he never asked Rаo whether satisfy in that statute. Dr. Rao also does not requirements contained actually who treated Gerald 2307.91(Z)(2), not a medical doctor he is because with him. relationship a doctor-patient or who had satisfy if Dr. Rao able to even were Additionally, that Gerald Renfrew’s 2307.91(Z), does not establish report R. his C. that to a reasonable of his cancer and cause predominate was the *7 cancer would lung his exposures without the asbestos certainty, of medical
degree 2307.91(FF). Dr. Rao concluded: report, In his R.C. not have occurred. See I the have come to provided, all the information reviewing After that Mr. certainty of medical degree within a reasonable conclusion * ...... metastasis. lung [I]t cancer with brain inoperable Renfrow had that certainty occupa- of medical degree within a reasonable my opinion dust, contrib- part diesel fumes and exhaust exposure tional to asbestos death. Asbestos lung of his cancer and eventual development uted to the smoking, diesel fumes synergistically cigarette acted with the exposure lung beyond risk of cancer greatly exhaust to increase the and exposure from either alone. expected added.) Renfrow’s Dr. Rao’s does not establish Gerald report
(Emphasis
lung
cause of his
cancer and that without
predominate
was the
would not have occurred. See
Gerald’s
cancer
exposure,
the asbestos
Ackison,
228,
provide opinion or compensation, opinion not with or without personnel provide, VA shall informa- any legal concerning official VA expert testimony proceedings tion, activities, party or a subjects except or on behalf of the United States Upon showing of Justice. Department the United States represented by that, in light of appropriate or court or other requester the 14.804, §in exceptional the factors listed there are circumstances and the interests of anticipated testimony will not be adverse the the States, Department of Veterans or to the the responsible Affairs United 14.807(b) §in designated may, writing, grant special VA official authori- If, zation for final personnel appear testify. despite VA the official, determination of rеsponsible competent jurisdic- VA court of tion or appropriate authority, expert opinion testimony other orders the personnel, personnel notify VA shall VA official of responsible such order. If responsible legal VA official determines that no further review of or challenge sought, to the order will be the affected VA personnel shall If comply appropriate the order. directed official after consultation with appropriate Attorney’s United States office, however, the personnel respectfully affeсted VA shall decline to demand, comply with the request or order. section, however, That does not prohibit litigant issuing
subpoena to a VA official. During argument, oral Renfrow’s counsel admitted that he had not Dr. subpoenaed Lynch after the receiving agency ruling. adverse Journal, See Houston Business Inc. v. Comptroller Currency, United Office of of (D.C.Cir.1996) 1208, States Dept. Treasury, 86 F.3d 1212 (remedy for state- of court litigant challenge to agency ruling adverse to a pertaining request for court). documents is a collateral action in federal That precluded compli failure ance with statutory the to a requirement diagnosis by obtain a competent medical authority to support her claim that her husband’s asbestos at exposure Norfolk Southern was a substantial contributing factor to his lung cancer. 462, 416, Renfrow calls our attention to 340 Touhy, U.S. 71 S.Ct. 95
{¶ 27} 417, L.Ed. that asserts she had not Dr. subpoenaed Lynch, because accord- case, to that ing a federal official comply need not with a state-issued subpoena. acknowledge We that the Fourth Appeals Circuit Court of has described {¶ 28} Touhy as of an “part authority unbroken line of which directly supports [the] contention that a federal employee may compelled obey not be to a subpoena contrary to his federal employer’s instructions under agency regulations,” valid (4th Downie, 67, Cir.1989), Boron Oil Co. v. 873 F.2d 69 and that the Ninth Appeals Circuit Court of has that Touhy jurisdictional stated “the doctrine is action,” Schenk, (9th Cir.1986). precludes 1447, a contempt Swett v. 792 F.2d 1452 A however, careful of reading Touhy, discloses that its a holding case, narrow inmate, one. that Roger Touhy, state-prison instituted a in corpus warden, habeas action a federal distriсt court against seeking his to prove that his by conviction was secured fraud. He the in subpoenaed agent charge the Federal Bureau of in Investigation Chicago produce certain 380 attorney general, the by to an order issued the United States
records. Pursuant
in
records,
held the agent
the
and the court
produce
subpoenaed
refused to
agent
reversed,
Appeals
ruling
Court of
the Seventh Circuit
contempt.
appeal,
On
a federal statute.
attorney
by
was authorized
general
the order issued
the
granted
Court
certiorari.
Supreme
and the United States
Touhy appealed,
judgment
affirmed the
of the
Supreme
The United States
Court
court,
order was valid and the
concluding
attorney general’s
appellate
documents.
Id. at 467.
produce
requested
refused to
agent
properly
had
validity”
only
determined that it was “concerned
with
Notably, Touhy
Comingore,
order and that the case was “ruled Boske v.
attorney general’s
(Boske
701,
459,
44 L.E.
Id. at 469.
affirmed
[1900].”
U.S.
20 S.Ct.
[L.Ed.]
in
custody
being
from sheriffs
of an internal revenue collector
held
discharge
reports
treasury
of certain
based on a
contempt
refusing
copies
for
to disclose
Thus,
may
for
that a court
not hold a
regulation).
Touhy
proposition
stands
subpoena
with a
when he
employee
contempt
refusing
comply
federal
validly
agency regulation
with a
enacted
federal
acts
accordance
—not
Indeed,
in a
comply
subpoena.
concurring
official need not
state-issued
stated,
Touhy,
opinion
Justice Frankfurter
decision and
this
opinion
“[T]he
Attorney
cannot afford a basis for a future
that the
General can
suggestion
case
every
capable
being
by process
forbid
subordinate who is
served
relevant documents and later contest a
him to
producing
requirement upon
cannot
produce
ground
procedurally
Touhy,
on the
he
be reached.”
340 U.S.
(Frankfurter, J., concurring).
71 S.Ct.
Conclusion statutory prerequisites necessary prima One of the to establish a facie {¶ 32} upon lung requires tort action an asbestos claim based cancer a diagnosis by competent who is a smoker to demonstrate a medical contributing Competent that the to asbestos is a substantial factor. exposure 2307.91(Z), authority, requires medical as defined in R.C. that a medical doctor internist, pulmonary specialist, oncologist, patholo- must be a certified board (2) actuаlly treating medicine be or have treated gist, occupational specialist, with the not doctor-patient relationship exposed person, and have or had and not more expert reports parties, spend have relied on or other of third percent than 25 of his professional practice consulting or providing expert services. Renfrow failed to make the facie prima showing required to withstand
{¶ 33} administrative dismissal of this tort action alleging an asbestos claim based on lung cancer. She has not deprived right remedy been to a because dismissal of this action is on a proof based failure of and she has the opportunity to move to reinstate upon presentation the ease of proper prima facie evidence in the future. judgment The of the court of appeals therefore reversed.
Judgment reversed. O’Connor, C.J., JJ., concur. Pfeifer, Kennedy, French, O’Neill, J., concurs in judgment only. Lanzinger, J., concurring.
Pfeifer, statute, R.C. 2307.92 may case, be well-intentioned but this it is working a tremendous hardship on Cleo Renfrow requiring testimony from a (“VA”) treating physician, which Veterans Affairs patients exceedingly find Still, produce. difficult to one does wonder whether the outcome would have been different had subpoenaed Lynch counsel Dr. or any of the other doctors minimum, who treated Gerald At Renfrow. that action would have prevented this court from concluding Cleo Renfrow had abandoned her efforts to comply with R.C. 2307.92.
O’Neill, J., concurring.
I concur in the majority opinion in this case.
I
separately
write
emphasize
this is not the end of Cleo Renfrew’s case.
I
agree
Dr. Rao
does
satisfy
not
the statutory definition of “competent
authority”
virtue of
fact
that he is not a medical doctor who actually treated Gerald
I
Renfrow.
further
agree
Dr. Rao’s report does not establish that Mr.
Renfrew’s
“predominate
asbestos was the
cause” of his lung cancer
required by
asbestos,
the statute and that without exposure his lung cancer
Co.,
would not have occurred.
Ackison v. Anchor Packing
120 Ohio St.3d
all that is possible to secure an from opinion the Veterans Affairs doctor argument, At Mrs. Majority oral opinion Mr. Renfrow. who treated to the VA doctоr. subpoena he had not issued a counsel admitted that Renfrew's whether the medical-witness question do not reach the Today we 2307.91(Z)(2) rights Mrs. Renfrow of substantive deprive of R.C. It Act Liability and Ohio Constitution. Employers’ to the Federal pursuant and it is expert opinion, her to an requires produce that the statute is clear husband, her all but who treated equally physicians clear VA circumstances, giving expert are 38 C.F.R. 14.808 exceptional prohibited special case that without authorization testimony. appears It this doctors. presented by official there will be nо evidence appropriate VA and however, today explained not before us as earlier will be question, This an from the VA only possible securing opinion for review when all means ripe have been exhausted. doctors 2307.93(C) Fortunately, specifies permitted that a court is R.C. jurisdiction any administratively
maintain over case that it dismisses under its dismissed, administratively whose case has been Any plaintiff R.C. 2307.93. Renfrew's, ultimately to reinstate his or her case if he or she may was Mrs. move minimum requirements specified that meets the prima-facie showing makes (D). 2307.93(A)(3)(c). 2307.92(B), short, (C), we have the cart R.C. matter, In this before the horse here. Asbestos claims are statute-driven. if can to expert opinion Mrs. Renfrow does all she secure her and is still to attain that then there treating physician opinion, husband’s unable will to review. something be P.L.L.C., Torcello, Murphy, Christopher Murphy,
Doran & Michael L. M. and Blinkoff; Co., L.L.C., Mary Brigid Sweeney Mary Brigid Colleen M. Sweeney, appellee. for White, L.L.C., Damico, Podheiser, appellant.
Burns David A. and Ira L. Sater, Pease, L.L.P., Schuster, D. E. Vorys, Seymour Shuey, & Richard Daniel Kitte, curiae, amici and Damien C. reversal for the Ohio Chamber of urging Commerce, Merchants, of Retail and the Chamber of Commerce Ohio Council of the United States America.