Turner v. CertainTeed Corp. (Slip Opinion) , 155 Ohio St. 3d 149 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Turner v. CertainTeed Corp., Slip Opinion No. 2018-Ohio-3869.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-3869
TURNER, APPELLEE, ET AL., v. CERTAINTEED CORPORATION ET AL.; UNION
CARBIDE CORPORATION, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Turner v. CertainTeed Corp., Slip Opinion No.
2018-Ohio-3869.]
Asbestos claims—Court of appeals’ judgment affirming trial court’s denial of
manufacturer’s motion for administrative dismissal reversed and cause
remanded for trial court to determine whether manufacturer put application
of R.C. 2307.92(C)(1) at issue by submitting “written report of a competent
medical authority” specifying that plaintiff had “smoked the equivalent of
one-pack year * * * during the last fifteen years” under R.C. 2307.91(DD).
(No. 2017-0004—Submitted February 13, 2018—Decided September 27, 2018.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 103475, 2016-Ohio-7776.
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SUPREME COURT OF OHIO
FISCHER, J.
{¶ 1} When a plaintiff is a “smoker” who alleges that he or she suffers from
lung cancer as a result of asbestos exposure, the plaintiff must make a prima facie
showing that satisfies the requirements listed in R.C. 2307.92(C)(1), including a
“diagnosis by a competent medical authority that the [plaintiff] has primary lung
cancer and that exposure to asbestos is a substantial contributing factor to that
cancer,” R.C. 2307.92(C)(1)(a). A plaintiff who is not a “smoker” need not satisfy
those requirements. This case presents the question of how to determine whether a
plaintiff is a “smoker.”
{¶ 2} In the instant case, plaintiff-appellee, Bobby Turner, did not attempt
to make the prima facie showing required under R.C. 2307.92(C)(1). Relying on
the definition of “smoker” provided in R.C. 2307.91(DD), defendant-appellant,
Union Carbide Corporation argued that medical records demonstrate that Turner
has a history of smoking and, therefore, should be required to prove that he is a
nonsmoker by means of a written medical report. The court of appeals rejected
Union Carbide’s argument and held that whether someone is a “smoker” is a
question of fact, as opposed to a medical determination.
{¶ 3} We reverse the court of appeals’ judgment affirming the trial court’s
denial of the motion for administrative dismissal filed by Union Carbide and
remand the case to the trial court for it to determine whether Union Carbide put the
application of R.C. 2307.92(C)(1) at issue by submitting “the written report of a
competent medical authority” that “specified” that Turner had “smoked the
equivalent of one-pack year * * * during the last fifteen years,” R.C. 2307.91(DD).
I. Background
A. Trial-Court Proceedings
{¶ 4} Turner was diagnosed with lung cancer in 2013. He filed a complaint
alleging that his cancer was caused by exposure to asbestos while he worked as a
drywall finisher between approximately 1962 and 1978. Union Carbide, which
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manufactured an asbestos product found in joint compounds that Turner used
during that time frame, was named as a defendant.
{¶ 5} Union Carbide moved to dismiss Turner’s lawsuit, arguing that he is
a “smoker” and that he had not made the prima facie showing under R.C.
2307.92(C)(1) that is required of a person who is a “smoker.” Turner filed an
affidavit and attached some of his medical records. He claimed that he was a
nonsmoker but added that he had smoked some cigars several years prior to his
exposures to asbestos. The medical reports supported Turner’s assertion that he
was a nonsmoker. Shortly thereafter, Union Carbide withdrew its motion to dismiss
the complaint.
{¶ 6} After discovery had progressed for nearly a year and a half, Union
Carbide filed a second motion to dismiss Turner’s suit. Union Carbide again
alleged that Turner is a “smoker” as defined in R.C. 2307.91(DD) and that Turner
had failed to meet his burden to make the prima facie showing required under R.C.
2307.92(C)(1). Union Carbide argued that medical records that became available
during discovery demonstrated that Turner is a “smoker.” Union Carbide added
that the deposition testimony of Turner’s physician also showed that Turner is a
“smoker.”
{¶ 7} Turner responded by submitting affidavits and citing testimony from
several people, including family members, who averred that they had never seen
him smoke. Turner also noted that the evidence of his smoking history contained
in some medical records was inconsistent with other medical records identifying
him as a nonsmoker. In addition, Turner argued that the “pack year” referred to in
R.C. 2307.91(DD)’s definition of “smoker” does not encompass cigar smoking.
{¶ 8} The trial court rejected Turner’s argument that R.C. 2307.91(DD)
applied only to cigarette smokers, acknowledged that some of the medical records
indicated that Turner had a history of smoking but discounted those notations as
likely mistakes, and concluded that Union Carbide had “failed to prove that Mr.
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Turner is a smoker, as defined in R.C. 2307.91(DD).” The trial court therefore
denied Union Carbide’s motion to dismiss.
B. Appellate Proceedings
{¶ 9} Union Carbide appealed and argued that Turner needed to submit a
“written report of a competent medical authority” stating that he was a nonsmoker.
The court of appeals framed the issue as follows: “[W]hen there is conflicting
evidence of [a] plaintiff’s smoking status, does the plaintiff need to present a written
report of competent medical authority to withstand his burden of proving he is a
nonsmoker.” 2016-Ohio-7776, 66 N.E.3d 802, ¶ 9. To a limited extent, the court
of appeals adopted Union Carbide’s position when it determined that the trial court
had improperly placed the burden of proving that Turner is a “smoker” on Union
Carbide. The court of appeals also determined that whether a person is a “smoker”
is a question of fact and not a medical issue. Relying on its precedent, the court
held that a report by a competent medical authority is required only after a person
has been determined to be a “smoker.” See Farnsworth v. Allied Glove Corp., 8th
Dist. Cuyahoga No. 91731, 2009-Ohio-3890, ¶ 30. The court of appeals ultimately
affirmed the trial court’s judgment and concluded that the trial court’s
determination that Turner is not a “smoker” “was not against the manifest weight
of the evidence.” 2016-Ohio-7776, 66 N.E.3d 802, at ¶ 35.
{¶ 10} Union Carbide filed a discretionary appeal to this court, and we
accepted that appeal on a single proposition of law:
In an asbestos tort action alleging lung cancer, when there is
evidence that a plaintiff has smoked in the past fifteen years, the
General Assembly’s express statutory language requires a plaintiff
to prove, through a “written report of a competent medical
authority,” that he is not a “smoker” as defined in R.C.
2307.91(DD). A reviewing court must strictly enforce, and may not
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simply ignore, the General Assembly’s inclusion of the express
“competent medical authority” requirement in the statute.
See 150 Ohio St. 3d 1429, 2017-Ohio-7567, 81 N.E.3d 1271.
II. Analysis
A. Standard of Review
{¶ 11} The standard of review for questions of statutory interpretation is de
novo. Ceccarelli v. Levin, 127 Ohio St. 3d 231, 2010-Ohio-5681, 938 N.E.2d 342,
¶ 8. Our main objective is to determine and give effect to the legislative intent.
State ex rel. Solomon v. Police & Firemen’s Disability & Pension Fund Bd. of
Trustees, 72 Ohio St. 3d 62, 65, 647 N.E.2d 486 (1995). We owe no deference to
the lower court’s decision, nor are we limited to choosing between the different
interpretations of the statute presented by the parties.
{¶ 12} When a statute is plain and unambiguous, we apply the statute as
written. Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St. 3d 106, 2006-Ohio-
954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local School
Dist. Bd. of Edn., 74 Ohio St. 3d 543, 545, 660 N.E.2d 463 (1996). When a statute
is unclear and relates to the same subject matter as another statute, we construe the
two statutes in pari materia “to discover and carry out legislative intent.” Sheet
Metal Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s Refrig., Heating &
Air Conditioning, Inc., 122 Ohio St. 3d 248, 2009-Ohio-2747, 910 N.E.2d 444,
¶ 38, citing State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St. 3d 224,
2007-Ohio-4920, 874 N.E.2d 780, ¶ 13.
B. The Statutory Definition Applies to Cigar Smoking
{¶ 13} Turner tries to defend the judgment of the court of appeals by
repeating his argument that R.C. 2307.91(DD)’s definition of “smoker” does not
include cigar smokers and that therefore, he need not make the prima facie showing
required under R.C. 2307.92(C)(1).
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{¶ 14} The definition of “smoker’ provided in R.C. 2307.91(DD) is: “a
person who has smoked the equivalent of one-pack year, as specified in the written
report of a competent medical authority pursuant to sections 2307.92 and 2307.93
of the Revised Code, during the last fifteen years.” Turner rests his argument on
the National Cancer Institute’s definition of “pack year” in terms of cigarette
smoking: “A way to measure the amount a person has smoked over a long period
of time. It is calculated by multiplying the number of packs of cigarettes smoked
per day by the number of years the person has smoked,”
https://www.cancer.gov/publications/dictionaries/cancer-terms/def/pack-year
(accessed July 19, 2018). We reject Turner’s argument that the reference to “pack
year” in R.C. 2307.91(DD) refers exclusively to cigarettes. R.C. 2307.91(DD), by
its plain text, does not distinguish between different types of smoking. The statute
provides the level of consumption necessary for a person to be designated a
“smoker” but does not provide any limitation on the vehicle for that consumption.
C. The Statutory Scheme
{¶ 15} Under R.C. 2307.92(C)(1), a “smoker” who is suffering from lung
cancer must, for purposes of presenting a prima facie case to support a tort claim
involving asbestos exposure, meet all the requirements listed in R.C.
2307.92(C)(1)(a) and (C)(1)(b) as well as one of the two requirements listed in R.C.
2307.92(C)(1)(c). The plain text of the statute dictates that only a “smoker” has the
burden to meet those requirements.
{¶ 16} R.C. 2307.91(DD) defines “smoker” as “a person who has smoked
the equivalent of one-pack year, as specified in the written report of a competent
medical authority pursuant to sections 2307.92 and 2307.93 of the Revised Code,
during the last fifteen years.” (Emphasis added.) Pursuant to the plain text of the
statute, unless there is a written report of a competent medical authority that
specifies that the person has smoked the equivalent of one pack year during the last
15 years, then that person is not a “smoker” for purposes of the relevant statutes.
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Additionally, there is no statutory mechanism that permits the person who is
specified to be a “smoker” in the written report of a competent medical authority
to rebut that report. See R.C. 2307.91 through 2307.93. “A” means “any.” State
v. Ladd, 56 Ohio St. 2d 197, 205, 383 N.E.2d 579 (1978) (William B. Brown, J.,
dissenting). Thus, pursuant to the plain text of R.C. 2307.91(DD), once any
competent medical authority has specified in a written report that the plaintiff is a
“smoker,” that plaintiff has the burden to present the relevant prima facie evidence
required under R.C. 2307.92(C)(1); however, when there is not a written report of
a competent medical authority that specifies that the plaintiff is a “smoker,” that
plaintiff does not have to meet the R.C. 2307.92(C)(1) requirements.
{¶ 17} Turner argues that it is “nonsensical” to require a smoker to make a
prima facie showing that includes a report of a competent medical authority and
have the same report be the reason that such a prima facie showing is necessary.
According to Turner, “to satisfy the requirements of the written report under [R.C.]
2307.92(C)(1)(a), the medical authority must discuss disease attribution in relation
to the amount of pack-years smoked, but only after it is determined by the court
that the statute applies to the ‘exposed person who is a smoker.’ ” (Emphasis sic.)
In other words, Turner argues that the competent medical authority prepares a
report only if the plaintiff has already been determined to be a “smoker.”
{¶ 18} Turner’s argument is similar to the reasoning used by the Eighth
District Court of Appeals in its decision in Farnsworth, 2009-Ohio-3890. There,
the court asked: “[W]hat comes first, the smoker or the written report; the smoker
or competent medical authority?” Id. at ¶ 23. The court concluded that “the smoker
must come first—since the written report, which will include the diagnosis from a
competent medical authority, is not required until after it has been determined that
the person is a smoker.” Id. at ¶ 24.
{¶ 19} The problem with Turner’s reading of the statute is that it ignores the
plain language of the statutory definition of “smoker.” It cannot be true that the
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report of a competent medical authority is required only after one is designated a
“smoker” but that one can be designated a “smoker” only if it is specified in the
same report. The statutory scheme plainly provides that the starting point is
determining whether a person is a “smoker.” Only after it has been established that
a person is a “smoker”—that is, that a person smoked the equivalent of one pack
year in the past 15 years, as specified in the written report of a competent medical
authority—is there any need for the plaintiff to make a prima facie showing under
R.C. 2307.92(C)(1).
{¶ 20} Turner also argues that whether and how much someone has smoked
is a factual question best left to a factfinder rather than a medical professional. This
is an argument for the legislature, not this court. We must determine what
procedures are set forth within the statute, not what procedures are the most wise.
A person is a “smoker” only if that designation is “specified in the written report of
a competent medical authority,” R.C. 2307.91(DD). If there is not a written report
from a competent medical authority specifying that the person is a “smoker,” the
person is not a “smoker” and, therefore, need not make the prima facie showing
described in R.C. 2307.92(C)(1).
{¶ 21} Based on R.C. 2307.91(DD)’s definition of “smoker,” Union
Carbide maintains that Turner must submit a written report from a competent
medical authority that establishes that he is not a “smoker” as defined in the statute.
{¶ 22} One insurmountable problem with Union Carbide’s reading is that it
ignores that neither the definition of “smoker” in R.C. 2307.91(DD) nor any other
provision within the statutory scheme creates the requirement that Turner prove
that he is not a “smoker.”
{¶ 23} R.C. 2307.91(Z) sets forth the requirements for a physician to be
considered a “competent medical authority” for purposes of presenting prima facie
evidence: “ ‘Competent medical authority’ means a medical doctor who is
providing a diagnosis for purposes of constituting prima-facie evidence of an
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exposed person’s physical impairment that meets the requirements specified in
section 2307.92 of the Revised Code * * *.” R.C. 2307.91(Z) contains four
additional criteria that the party must meet before the court can consider the
physician a “competent medical authority” for purposes of presenting prima facie
evidence. Under R.C. 2307.91(Z), the physician must have certain qualifications,
R.C. 2307.91(Z)(1), must not have relied on certain types of reports or opinions in
preparing his or her own report, R.C. 2307.91(Z)(3), must not exceed a certain
percentage of his or her practice hours providing expert testimony, R.C.
2307.91(Z)(4), and must be treating or have treated and have or have had a doctor-
patient relationship with the person who is the subject of the report, R.C.
2307.91(Z)(2). Renfrow v. Norfolk S. Ry. Co., 140 Ohio St. 3d 371, 2014-Ohio-
3666, 18 N.E.3d 1173, paragraph two of the syllabus.
{¶ 24} In Renfrow, we determined that the medical report submitted by the
plaintiff was not a report of a “competent medical authority” because the physician
who prepared it did not meet the requirements set forth in R.C. 2307.91(Z)(2). We
did not address whether R.C. 2307.93(A)(1) has any effect on the definition of
“competent medical authority” or whether R.C. 2307.91(Z)(2) is applicable when
it is the defendant who submits a physician’s report.
{¶ 25} Pursuant to R.C. 2307.93(A)(1), the defendant must be given a
reasonable opportunity to challenge the adequacy of the plaintiff’s prima facie
evidence of a physical impairment and, when the defendant presents a written report
for the purpose of challenging the sufficiency of the plaintiff’s prima facie
evidence, the physician who prepared that report will be considered a “competent
medical authority” if that physician meets only the requirements of R.C.
2307.91(Z)(1), (3), and (4). There is no need for that physician to be treating or
have treated the person who is the subject of the report, nor is there a need for the
physician to have or previously have had a doctor-patient relationship with the
person who is the subject of the report, as is required under R.C. 2307.91(Z)(2).
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{¶ 26} It is worth noting that “physical impairment” is defined in R.C.
2307.91(V). That definition provides: “ ‘Physical impairment’ means * * * lung
cancer of an exposed person who is a smoker that meets the minimum requirements
specified in division (C) of section 2307.92 of the Revised Code * * *.” (Emphasis
added.) Id. Thus, when the defendant challenges the adequacy of the plaintiff’s
prima facie evidence of a physical impairment, whether the plaintiff is a “smoker”
will, in certain cases, be part of such a challenge.
{¶ 27} While the statutory scheme is not a model of clarity, each provision
of the statutory scheme is unambiguous. The way that the provisions interact,
however, is best understood when each provision within the scheme is read in
conjunction with the other provisions. When the various provisions within the
statutory scheme are given effect in light of the way the provisions interact, the
process for determining whether a plaintiff must meet the requirements of R.C.
2307.92(C)(1) is straightforward.
{¶ 28} Step one: Pursuant to R.C. 2307.93(A)(1), the plaintiff must submit,
within the specified time frame, “a written report and supporting test results
constituting prima-facie evidence of the exposed person’s physical impairment that
meets the minimum requirements specified in [R.C. 2307.92(C)(1)].” If the
plaintiff is a smoker, he or she must meet the prima facie-evidence requirements of
R.C. 2307.92(C)(1) by submitting a written report from a physician who satisfies
the requirements to be considered a “competent medical authority” listed in R.C.
2307.91(Z)(1) through (4). That report must satisfy the requirements listed in R.C.
2307.92(C)(1)(a). The plaintiff must also present evidence to meet the
requirements of R.C. 2307.92(C)(1)(b) and (c). In cases like the instant case, the
plaintiff will not submit a written report or address the other requirements of R.C.
2307.92(C)(1) because the plaintiff will have asserted, at least implicitly, that
division (C) of the statute is inapplicable.
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{¶ 29} Step two: Pursuant to R.C. 2307.93(A)(1), the defendant may, “upon
the defendant’s motion, * * * challenge the adequacy of the proffered prima-facie
evidence of the physical impairment for failure to comply with the minimum
requirements specified in [R.C. 2307.92(C)(1)].” If the defendant wishes to
challenge the plaintiff’s assertion that R.C. 2307.92(C)(1) is inapplicable, the
defendant must file a motion within the specified time frame and submit a written
report from a physician that meets the requirements listed in R.C. 2307.91(Z)(1),
(3), and (4).1 See R.C. 2307.93(A)(1). That report must specify that the plaintiff
has smoked the equivalent of one pack year during the last 15 years and is therefore
a “smoker” as defined in R.C. 2307.91(DD). By submitting such a report, the
defendant would challenge the adequacy of the prima facie evidence submitted by
the plaintiff because the defendant would be arguing that the plaintiff’s evidence
did not meet certain requirements listed in R.C. 2307.92(C)(1). Moreover, the
defendant’s opportunity to submit such a report constitutes a “reasonable
opportunity” for the defendant to challenge the adequacy of the prima facie
evidence submitted by the plaintiff and, thus, gives effect to the relevant language
of R.C. 2307.93(A)(1).
{¶ 30} Step three: Pursuant to R.C. 2307.93(B), the trial court considers the
evidence submitted by the parties to determine whether “a competent medical
authority” has specified that the plaintiff is a “smoker” as defined in R.C.
2307.91(DD). The trial court applies “the standard for resolving a motion for
summary judgment” and determines whether the proffered prima facie evidence
meets the requirements listed in R.C. 2307.92(C)(1).
1
Turner did not argue below, and has not argued here, that Union Carbide’s motion for
administrative dismissal was untimely. Therefore, whether Union Carbide’s motion was timely is
not an issue that is before this court. We take no position on whether Union Carbide could
successfully argue that the motion was filed prior to the expiration of the statutory deadline or
whether the trial court may extend the statutory deadline.
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{¶ 31} Step four: Pursuant to R.C. 2307.93(C), if the court determines that
the plaintiff has been properly designated a “smoker” but has not met the
requirements listed in R.C. 2307.92(C)(1), the court shall administratively dismiss
the action without prejudice but shall retain jurisdiction. The plaintiff may then
move to reinstate the action by making a prima facie showing that meets the
minimum requirements specified in R.C. 2307.92(C)(1).
{¶ 32} The process explained above gives effect to the plain text of the
relevant provisions of the statutory scheme. By interpreting the provisions in this
way, we give effect to the words contained in the relevant statutory provisions and
the legislative intent behind the scheme.
D. Disposition of the Proposition of Law
{¶ 33} We conclude that in an asbestos tort action alleging lung cancer, the
express statutory language does not require a plaintiff to prove, through a “written
report of a competent medical authority,” that he or she is not a “smoker” as defined
in R.C. 2307.91(DD). The plaintiff must satisfy the requirements set forth in R.C.
2307.92(C)(1) only when the plaintiff has been designated a “smoker” in a written
report of a competent medical authority pursuant to R.C. 2307.91(DD).
E. Issues of Fairness
{¶ 34} The General Assembly’s decision to provide no mechanism by
which the plaintiff may challenge a written report submitted by the defendant’s
physician specifying that the plaintiff is a “smoker” is not unfair. The plaintiff has
additional burdens as a result of this written report, but those additional burdens
consist only of submitting three types of evidence. First, the plaintiff must submit
a written report, which is irrebuttable for purposes of presenting the prima facie
case, that is prepared by the plaintiff’s own competent medical authority and that
asserts that the plaintiff has lung cancer and that “exposure to asbestos is a
substantial contributing factor to that cancer.” R.C. 2307.92(C)(1)(a). Second, the
plaintiff must submit “[e]vidence that is sufficient to demonstrate that at least ten
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years have elapsed from the date of the exposed person’s first exposure to asbestos
until the date of diagnosis of the exposed person’s primary lung cancer. The ten-
year latency period described in this division is a rebuttable presumption, and the
plaintiff has the burden of proof to rebut the presumption.” R.C. 2307.92(C)(1)(b).
And third, the plaintiff must submit either “[e]vidence of the exposed person’s
substantial occupational exposure to asbestos” or “[e]vidence of the exposed
person’s exposure to asbestos at least equal to 25 fiber per cc years as determined
to a reasonable degree of scientific probability by a scientifically valid retrospective
exposure reconstruction conducted by a certified industrial hygienist or certified
safety professional based upon all reasonably available quantitative air monitoring
data and all other reasonably available information about the exposed person’s
occupational history and history of exposure to asbestos.” R.C. 2307.92(C)(1)(c)(i)
and (ii).
{¶ 35} In essence, the requirements listed in R.C. 2307.92(C)(1) must be
satisfied for the plaintiff to be successful at trial. To win at trial, the plaintiff will
need to demonstrate that he or she was exposed to a sufficient amount of asbestos
to cause lung cancer, that the dates of the plaintiff’s exposure to asbestos are
consistent with the development of the lung cancer, and that the lung cancer was,
in fact, caused in significant part by the asbestos exposure. If the plaintiff were to
fail to offer such proof at trial, the plaintiff would probably have failed to
demonstrate that the lung cancer was caused by the asbestos exposure. Thus, the
requirement to present additional evidence in order to make a prima facie showing
under R.C. 2307.92(C)(1) is a de minimis additional burden. The plaintiff may be
required to present evidence sooner than would otherwise be necessary, and
perhaps in a different form, but the plaintiff is not required to present a substantial
amount of evidence that would otherwise not need to be presented. Moreover,
should the plaintiff fail to produce the prima facie evidence and the case were to be
administratively dismissed, the plaintiff would have the opportunity to submit the
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necessary prima facie evidence and move the trial court to reinstate the action
pursuant to R.C. 2307.93(C).
{¶ 36} The second issue of fairness that should be addressed is the threat of
a surprise report submitted by the defendant after the plaintiff has rested his or her
case. The statutory scheme precludes this tactic. Under R.C. 2307.93(A)(1), any
challenge to the prima facie case must be submitted by motion within 120 days after
the prima facie evidence is proffered, which is required to be presented by the
plaintiff within 30 days of filing the complaint. Given the practical realities of
asbestos litigation, it is unrealistic to believe that a trial will have commenced
within 120 days after the prima facie evidence is proffered or the deadline to proffer
such evidence has passed. Moreover, courts generally set a dispositive-motion
deadline within the case schedule for each case, and that deadline is prior to the
beginning of any trial. See, e.g., Loc.R. 53 of the Court of Common Pleas of
Franklin County, General Division; Loc.R. 15(A) of the Court of Common Pleas
of Hamilton County, General Division. Thus, the challenge will generally be made
by pretrial motion or the challenge will be untimely. Moreover, the surprise tactic
would be of little benefit to the defendant given that the plaintiff can have the action
reinstated by making a prima facie showing under R.C. 2307.93(C).
{¶ 37} We stress that the reports submitted by the competent medical
authorities are irrebuttable for purposes of the prima face case only. There is no
provision in R.C. 2307.91 through 2307.93 that precludes the defendant from
arguing to the trier of fact that smoking, not asbestos, was the cause of the plaintiff’s
lung cancer. Further, there is no provision in R.C. 2307.91 through 2307.93 that
precludes the plaintiff from arguing to the trier of fact that smoking could not have
been the cause of the lung cancer because the plaintiff is not a “smoker.” Thus,
these arguments could be made regardless of whether R.C. 2307.92(C)(1) was at
issue before trial.
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F. Application of the Statutory Scheme to this Case
{¶ 38} In support of its motion for administrative dismissal, Union Carbide
submitted medical records and highlighted deposition testimony supporting the
assertion that the smoking habits of Turner were sufficient to meet the “one-pack
year” threshold required for designating a person a “smoker” pursuant to R.C.
2703.91(DD). Union Carbide also submitted the affidavit of Eric R. Pacht, M.D.,
who stated, “As a pulmonologist, I would consider Bobby Turner to be a smoker
* * *.” The trial court stated in a footnote that “the affidavit of Dr. Pacht does not
meet the requirements of R.C. 2307.93(A)(1).” The trial court did not, however,
plainly state whether, under R.C. 2307.91(DD), Dr. Pacht’s affidavit—or any other
submission by Union Carbide—can be considered a “written report of a competent
medical authority” that specifies that Turner is a “smoker” because he “smoked the
equivalent of one-pack year * * * during the last fifteen years.”
{¶ 39} It may or may not be proper for the trial court to deny Union
Carbide’s motion for administrative dismissal, but the trial court cannot do so
without first following the procedures set forth in R.C. 2307.93(B) to determine
whether Union Carbide’s presentation of Dr. Pacht’s affidavit—or some other
“written report of a competent medical authority”—was sufficient to meet its
burden to put R.C. 2307.92(C)(1) at issue. If, after following the procedures set
forth in R.C. 2307.93(B), the court finds that Union Carbide did establish that
Turner is a “smoker” as defined in R.C. 2307.91(DD), the trial court must determine
whether Turner satisfied the requirements set forth in R.C. 2307.92(C)(1).
III. Conclusion
{¶ 40} The plain reading of the statutory scheme provides that the defendant
can require the plaintiff to make a prima facie case that satisfies the requirements
listed in R.C. 2307.92(C)(1) only by submitting a written report from a “competent
medical authority” that specifies that the plaintiff has smoked the equivalent of one-
pack year during the last 15 years, R.C. 2307.91(DD). Accordingly, we reverse the
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judgment of the court of appeals and remand the case to the trial court to determine
whether Union Carbide submitted such a report and for further proceedings
consistent with this opinion.
Judgment reversed
and cause remanded.
FRENCH and DEGENARO, JJ., concur.
O’CONNOR, C.J., concurs in judgment only.
KENNEDY, J., concurs in judgment only, with an opinion joined by
O’DONNELL, J.
DEWINE, J., concurs in judgment only, with an opinion.
_________________
KENNEDY, J., concurring in judgment only.
{¶ 41} I concur in judgment only.
{¶ 42} When a plaintiff brings an asbestos claim for lung cancer without
submitting the prima facie evidence required of a “smoker” pursuant to R.C.
2307.92(C)(1) within 30 days after filing the complaint or other initial pleading and
discovery reveals that the plaintiff has a history of using smoking tobacco in the
preceding 15 years, who has the burden to prove that the plaintiff was or was not
required to submit that prima facie evidence?
{¶ 43} This is not the question we accepted for review, but the lead opinion
raises it nonetheless. And in seeking to answer it, the justices joining the lead
opinion fall victim to what the late Justice Antonin Scalia and Bryan A. Garner
have described as “[t]he false notion that when a situation is not quite covered by a
statute, the court should reconstruct what the legislature would have done had it
confronted the issue.” (Boldface omitted.) Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 349 (2012). Then, in the guise of statutory
construction, the lead opinion fashions a four-step process to fill the gaps it sees in
the statutory scheme, taking a statute that permits the defendant to challenge only
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the prima facie evidence proffered by the plaintiff and applying it to require the
defendant to challenge the plaintiff’s failure to proffer that evidence.
{¶ 44} Adopting the analysis of the lead opinion would subvert the General
Assembly’s purposes in enacting Am.Sub.H.B. No. 292, 150 Ohio Laws Part III,
3970 (“H.B. 292”), in two ways. First, by shifting the burden to the defendant to
establish that the plaintiff is a “smoker,” the lead opinion would vitiate the
legislature’s intent to give priority only to those plaintiffs who can demonstrate at
the outset of litigation that asbestos exposure caused the plaintiff’s lung cancer.
Second, the lead opinion devises an illusory mechanism to afford defendants a
chance to prove that the plaintiff is a “smoker,” yet the defendant lacks the evidence
needed to make this showing without access to the plaintiff’s smoking history. Its
four-step process therefore disregards the restrictive language of the statute and
would render it a dead-letter law for all practical purposes—no plaintiff would be
required to comply with it, and no defendant could compel him or her to do so.
{¶ 45} However, as Justice Scalia and Garner explained, “In truth, many
casus incogitati [circumstances not contemplated by the statute’s drafters] are fully
covered by a statute: Although the legislators did not consider a particular
circumstance, the text plainly applies or does not apply by its very words.” Scalia
& Garner at 350.
{¶ 46} The actual words that the General Assembly enacted answer the
question propounded by the lead opinion without the need to resort to a judicial
interpretation that adds and deletes words in order to “give effect” to the statutory
scheme, lead opinion at ¶ 32. It is the plaintiff who bears the burden of proving
that he or she is not a “smoker.” R.C. 2307.92(C)(1) prohibits anyone from
“bring[ing] or maintain[ing]” an asbestos claim for lung cancer unless one of two
preconditions is met: (1) the plaintiff is not a “smoker” or (2) within 30 days after
filing the complaint or other initial pleading, the plaintiff submits prima facie
evidence showing that exposure to asbestos was a “substantial contributing factor”
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to the lung cancer. Importantly, only the plaintiff can comply with the timing and
evidentiary requirements for establishing the right to bring an asbestos claim for
lung cancer. The plaintiff is the only party who has access to his or her medical
records and smoking history within 30 days after commencing the action, and the
sole criterion for determining whether the plaintiff is a “smoker”—the report of a
competent medical authority—can be supplied only by the plaintiff’s own treating
physician.
{¶ 47} Therefore, when the plaintiff files an asbestos claim for lung cancer
without timely submitting the prima facie evidence required by R.C. 2307.92(C)(1)
and discovery reveals evidence that the plaintiff used smoking tobacco in the
preceding 15-year period, the plaintiff can avoid an administrative dismissal of the
complaint only by submitting a written report of a competent medical authority
opining that the plaintiff’s use of smoking tobacco is less than “the equivalent of
one-pack year,” R.C. 2307.91(DD).
{¶ 48} After his smoking history came to light in discovery, appellee,
Bobby Turner, failed to provide a report of a competent medical authority showing
that he is not a “smoker.” Accordingly, I would reverse the judgment of the court
of appeals and would order that the complaint be administratively dismissed
without prejudice.
The Intention of the General Assembly in Enacting H.B. 292
{¶ 49} In 2004, the General Assembly confronted a growing crisis. Ohio
had become “a haven for asbestos claims”; tens of thousands of asbestos actions
had been filed in Ohio’s courts, and most of those had been filed by claimants who
were not sick at the time. 150 Ohio Laws, Part III, at 3989-3990. At the same time,
the cost of compensating claimants who were not sick had bankrupted numerous
companies, jeopardized compensation for people with serious asbestos-related
diseases, and threatened Ohio’s economy and the savings, retirement benefits, and
jobs of current and retired employees. Id. at 3989-3991. Seeking to stem “an
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unending flood of asbestos cases brought by claimants who are not sick,” id. at
3990, the General Assembly passed H.B. 292 with the purposes to
(1) give priority to those asbestos claimants who can demonstrate
actual physical harm or illness caused by exposure to asbestos; (2)
fully preserve the rights of claimants who were exposed to asbestos
to pursue compensation should those claimants become impaired in
the future as a result of such exposure; (3) enhance the ability of the
state’s judicial systems and federal judicial systems to supervise and
control litigation and asbestos-related bankruptcy proceedings; and
(4) conserve the scarce resources of the defendants to allow
compensation of cancer victims and others who are physically
impaired by exposure to asbestos while securing the right to similar
compensation for those who may suffer physical impairment in the
future.
(Emphasis added.) Id. at 3991.
{¶ 50} As part of that effort, the General Assembly enacted R.C.
2307.92(C)(1), which limits when a “smoker” may “bring or maintain” an asbestos
claim to recover for lung cancer. Recognizing that smoking causes lung cancer, the
statute requires a “smoker” to submit prima facie evidence supporting the asbestos
claim, including “[a] diagnosis by a competent medical authority that the exposed
person has primary lung cancer and that exposure to asbestos is a substantial
contributing factor to that cancer.” R.C. 2307.92(C)(1)(a). The prima facie
evidence must be submitted within 30 days after the filing of the complaint or other
initial pleading, and “[t]he defendant has one hundred twenty days from the date
the specified type of prima-facie evidence is proffered to challenge the adequacy of
that prima-facie evidence.” R.C. 2307.93(A)(1).
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{¶ 51} In turn, R.C. 2307.91(DD) defines “smoker” as “a person who has
smoked the equivalent of one-pack year, as specified in the written report of a
competent medical authority pursuant to sections 2307.92 and 2307.93 of the
Revised Code, during the last fifteen years.” Therefore, a user of smoking tobacco
who smoked less than “the equivalent of one-pack year” during that period is not a
“smoker.”
{¶ 52} Moreover, the General Assembly established specific criteria for
when a medical doctor is a “competent medical authority” for purposes of R.C.
2307.91(DD). Those criteria include the requirement that “[t]he medical doctor is
actually treating or has treated the exposed person and has or had a doctor-patient
relationship with the person,” R.C. 2307.91(Z)(2).
{¶ 53} When a “smoker” fails to make the required prima facie showing,
R.C. 2307.93(C) directs the court to administratively dismiss the complaint without
prejudice and to retain jurisdiction over the case. The plaintiff may move to
reinstate the case when he or she is able to make the prima facie showing required
by the statute.
The Lead Opinion’s Flawed Analysis
{¶ 54} The lead opinion states that “the express statutory language does not
require a plaintiff to prove, through a ‘written report of a competent medical
authority,’ that he or she is not a ‘smoker’ as defined in R.C. 2307.91(DD).”
(Emphasis sic.) Lead opinion at ¶ 33. It then concludes that “the defendant can
require the plaintiff to make a prima facie case that satisfies the requirements listed
in R.C. 2307.92(C)(1) only by submitting a written report from a ‘competent
medical authority’ that specifies that the plaintiff has smoked the equivalent of one-
pack year during the last 15 years, R.C. 2307.91(DD).” Id. at ¶ 40. And the jurists
joining the lead opinion would reverse the judgment of the court of appeals and
remand the matter to the trial court “to determine whether [appellant,] Union
Carbide [Corporation,] submitted such a report,” id., raising, but not deciding, the
20
January Term, 2018
issue whether Union Carbide’s motion for administrative dismissal was timely, id.
at ¶ 29, fn. 1.
{¶ 55} If adopted, this analysis would thwart the General Assembly’s
purposes in enacting H.B. 292 to prioritize claims of plaintiffs who can demonstrate
at the outset of the litigation that asbestos exposure caused the injury in order to
limit the impact of asbestos ligation on courts and conserve the scarce resources of
defendants. First, the lead opinion would erroneously shift the burden to the
defendant to prove that the exposed person is a “smoker.” Second, the opportunity
to prove that the plaintiff is a “smoker” is illusory, because the defendant lacks
access prior to discovery to the plaintiff’s medical records and smoking history and
therefore cannot obtain the report of a competent medical authority within the time
limits that the lead opinion would impose.
The Burden of Proof
{¶ 56} The court of appeals in this case correctly held that the plaintiff
“ ‘has the ultimate burden to prove that the exposed person is not a smoker.’ ”
2016-Ohio-7776, 66 N.E.3d 802, ¶ 10, quoting Farnsworth v. Allied Glove Corp.,
8th Dist. Cuyahoga No. 91731, 2009-Ohio-3890, ¶ 32. Despite the fact that Turner
has not challenged that holding, the lead opinion takes the opportunity to
disapprove of it.
{¶ 57} However, the plaintiff carries the ultimate burden of proof on an
asbestos claim at trial. Schwartz v. Honeywell Internatl., Inc., 153 Ohio St. 3d 175,
2018-Ohio-474, 102 N.E.3d 477, ¶ 13. This is in keeping with the General
Assembly’s express intention to give priority only to “those asbestos claimants who
can demonstrate” that exposure to asbestos caused lung cancer, 150 Ohio Laws,
Part III, at 3991.
{¶ 58} For this reason, the legislature provided in R.C. 2307.92(C)(1) that
“[n]o person shall bring or maintain a tort action alleging an asbestos claim based
upon lung cancer of an exposed person who is a smoker, in the absence of a prima-
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facie showing” as specified by the statute. (Emphasis added.) The statute imposes
a bar that expressly conditions the right to file and maintain lung-cancer-related
asbestos claims on the plaintiff’s either establishing that he or she is not a “smoker”
or submitting the prima facie evidence required by R.C. 2307.92(C)(1) within 30
days after filing the complaint or other initial pleading.
{¶ 59} Moreover, the evidence needed to prove whether or not the plaintiff
is required to make the prima facie showing is uniquely in the possession of the
plaintiff. The plaintiff has access to his or her own medical records and smoking
history, and the “competent medical authority” who must opine on whether or not
the plaintiff is a “smoker” is “[t]he medical doctor [who] is actually treating or has
treated the exposed person and has or had a doctor-patient relationship with the
person,” R.C. 2307.91(Z)(2). The legislature’s public-policy preference to place
the burden of proof on the plaintiff therefore appreciates the reality that he or she
will already have or can readily obtain all the evidence necessary to provide a report
of a competent medical authority that the plaintiff has not smoked at least “the
equivalent of one-pack year” of tobacco over the prior 15 years. This explains why
the General Assembly provided a strict time limit of 30 days after the filing of the
complaint or other initial pleading to make this showing, ensuring that only those
cases that are brought by nonsmokers or are supported by prima facie evidence can
be maintained beyond the initial stages of litigation.
{¶ 60} The plaintiff’s burden to prove that the prima-facie-case requirement
of R.C. 2307.92(C)(1) does not apply is not a heavy one. If the defendant
challenges the plaintiff’s failure to submit prima facie evidence and if it is true that
the plaintiff has not used smoking tobacco in the preceding 15 years, then his or her
treating physician can submit the appropriate written report. If, however, as here,
the plaintiff’s medical records reveal use of smoking tobacco within the preceding
15 years, then only his or her treating physician can issue a written report opining
whether or not that use rises to the threshold level of “one-pack year” pursuant to
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January Term, 2018
the definition of “smoker” in R.C. 2307.91(DD). If the use of smoking tobacco
falls below the “one-pack year” threshold, then the plaintiff is not required to
submit prima facie evidence pursuant to R.C. 2307.92(C)(1). The burden to make
a prima facie case becomes more onerous only when the medical records and
smoking history indicate that the exposed person has, in fact, smoked at least “the
equivalent of one-pack year” and therefore is a “smoker” and is required to submit
the prima facie evidence. But that was the General Assembly’s express intention,
because it sought to give priority to asbestos claims related to lung cancer brought
by nonsmokers and by smokers who can demonstrate early on in litigation that that
asbestos exposure, not smoking, caused lung cancer.
{¶ 61} The lead opinion’s reasoning fails to appreciate that the defendant
will not be able to discover the plaintiff’s smoking history and have a competent
medical authority prepare a report opining that the plaintiff is a “smoker” within
the strict time limits established by the statute. Further, when the defendant does
not obtain evidence related to the plaintiff’s use of smoking tobacco until the late
stages of litigation, the legislative intent to prioritize claims of plaintiffs who can
demonstrate actual injury caused by asbestos exposure and to conserve the
resources of the courts and defendants has been defeated.
{¶ 62} Importantly, the failure of a “smoker” to submit prima facie evidence
does not terminate the claim but only delays it. R.C. 2307.93(C) directs the trial
court to administratively dismiss the complaint without prejudice when a “smoker”
fails to make the required prima facie showing. R.C. 2307.93(C) also requires the
court to retain jurisdiction over the case, providing that the plaintiff may move to
reinstate it when he or she is able to make the prima facie showing. The statute
does not eliminate any potentially meritorious claims of smokers but, rather,
requires that the plaintiff make a sufficient showing that exposure to asbestos
caused his or her lung cancer in order to maintain the action.
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Challenge to the Prima Facie Evidence
{¶ 63} The lead opinion also misconstrues the plain language of R.C.
2307.93(B) when it concludes that the defendant is required to submit the report of
a competent medical professional to prove that the plaintiff is a “smoker.” R.C.
2307.93(A)(1) and (B) permit the defendant to challenge only the adequacy of the
plaintiff’s proffer of prima facie evidence of the exposed person’s “physical
impairment” within 120 days from the date of the proffer. “Physical impairment”
is defined by R.C. 2307.91(V) to include “lung cancer of an exposed person who is
a smoker that meets the minimum requirements specified in division (C) of section
2307.92 of the Revised Code.” The defendant may challenge the plaintiff’s prima
facie evidence that the smoker’s exposure to asbestos is a substantial contributing
factor to his or her lung cancer, but challenging the sufficiency of the evidence of
impairment is not the same thing as challenging the sufficiency of evidence that the
exposed person is not a “smoker.”
{¶ 64} This conclusion is consistent with the language of the statute, which
states, “The defendant has one hundred twenty days from the date the specified type
of prima-facie evidence is proffered to challenge the adequacy of that prima-facie
evidence [emphasis added],” R.C. 2307.93(A)(1). The word “proffer” means “[t]o
offer or tender (something, esp. evidence) for immediate acceptance.” Black’s Law
Dictionary 1403 (10th Ed.2014). Because the General Assembly has used the
present tense, it provided that a challenge to prima facie evidence would lie only
after the plaintiff has actually submitted it to the court. But not only would the lead
opinion require the defendant to challenge the plaintiff’s failure to proffer prima
facie evidence, it also would impose a strict time limit on when the defendant may
make that challenge. Importantly, under the lead opinion’s analysis, that time limit
would likely expire before the defendant has had the opportunity to obtain full
discovery of the medical records and other evidence necessary to determine
whether the plaintiff has smoked at least “the equivalent of one-pack year” within
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January Term, 2018
the preceding 15 years. When discovery calls into question the plaintiff’s proffered
opinion that he or she is not a “smoker,” it is the plaintiff who should be required
to show entitlement to maintain the action in the absence of a prima facie case.
{¶ 65} The lead opinion’s reasoning not only runs counter to the plain
language of the statute but also undermines the General Assembly’s expressed
intent to prioritize the claims of plaintiffs who can demonstrate at the outset of the
litigation that exposure to asbestos caused injury and to “conserve the scarce
resources of the defendants,” 150 Ohio Laws, Part III, at 3991. Nothing in the
language enacted by the General Assembly indicates that it intended to allow a
“smoker” to avoid the carefully balanced procedural requirements for filing an
asbestos claim simply by remaining silent.
{¶ 66} Accordingly, when the plaintiff alleges that exposure to asbestos
caused lung cancer and when evidence reveals that the plaintiff has used smoking
tobacco in the preceding 15 years, the plaintiff may maintain the claim without
having timely submitted prima evidence only if the plaintiff submits a written report
by a competent medical authority that that use is less than “the equivalent of one-
pack year,” R.C. 2307.91(DD). If the plaintiff fails to do so, the complaint must be
administratively dismissed.
The Definition of “Smoker”
{¶ 67} The lead opinion’s overreach is all the more glaring because we
accepted a single question for review: when a plaintiff files a claim alleging that
exposure to asbestos caused lung cancer without proffering the prima facie
evidence required by R.C. 2307.92(C)(1) and when evidence is subsequently
produced in discovery revealing that the plaintiff has a history of using smoking
tobacco in the preceding 15-year period, is the written report of a competent
medical authority the exclusive means of proving that the plaintiff is not a “smoker”
as defined by R.C. 2307.91(DD)? The answer is “yes.”
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{¶ 68} Resolving this narrow question begins in a familiar place: statutory
construction. Our duty in construing a statute is to determine and give effect to the
intent of the General Assembly as expressed in the language it enacted. Griffith v.
Aultman Hosp., 146 Ohio St. 3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18; Fisher
v. Hasenjager, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20. R.C.
1.42 guides our analysis; that statute provides that “[w]ords and phrases shall be
read in context and construed according to the rules of grammar and common
usage.” And as we explained in Symmes Twp. Bd. of Trustees v. Smyth, “[w]hen the
language of a statute is plain and unambiguous and conveys a clear and definite
meaning, there is no need for this court to apply the rules of statutory
interpretation.” 87 Ohio St. 3d 549, 553, 721 N.E.2d 1057 (2000). Rather, “[a]n
unambiguous statute is to be applied, not interpreted.” Sears v. Weimer, 143 Ohio
St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus.
{¶ 69} The statutory scheme establishes only one criterion for determining
whether the exposed person is or is not a “smoker” for purposes of bringing or
maintaining an action alleging that asbestos exposure caused lung cancer. A
“smoker” is a person who has smoked at least “the equivalent of one-pack year”
during the 15 years preceding commencement of the action as specified in the
written report of a competent medical authority. R.C. 2307.91(DD). The statute
is plain and unambiguous and represents a public-policy choice by the General
Assembly that only medical evidence from the plaintiff’s own treating physician
can determine the exposed person’s smoking status. Because the legislature has
differentiated between using tobacco and being a “smoker,” any form of evidence
relating to the amount and duration of prior tobacco use other than the report of a
competent medical authority is not sufficient to prove that the exposed person is or
is not a “smoker.”
{¶ 70} The jurists joining the lead opinion agree with this conclusion and
reject Turner’s argument “that whether and how much someone has smoked is a
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factual question best left to a factfinder rather than a medical professional,” because
“[t]his is an argument for the legislature, not this court.” Lead opinion at ¶ 20.
Answering the only question of law presented by the parties should end the
analysis.
{¶ 71} The legislature provided that in establishing whether the exposed
person is or is not a “smoker,” the report of a competent medical authority pursuant
to R.C. 2307.91(DD) is determinative, and that report must be prepared by a
medical doctor who “is actually treating or has treated the exposed person and has
or had a doctor-patient relationship with the person,” R.C. 2307.91(Z)(2). The
testimony of the exposed person or his or her friends and relatives about the
exposed person’s use of smoking tobacco is not relevant on the question.
{¶ 72} Here, Turner sought to recover for lung cancer allegedly caused by
asbestos exposure, and his complaint did not give any notice that he had used
smoking tobacco in the preceding 15 years. In response to Union Carbide’s motion
to administratively dismiss his complaint for failing to submit prima facie evidence
of his impairment, Turner submitted his own affidavit averring that he had not used
tobacco products since 1956 and supported that assertion with a selection of his
medical records reflecting a lack of use of tobacco in the social-history portion of
the records. Based on that evidence, Union Carbide withdrew its motion while
expressly reserving its right to renew it, and Turner did not object. Only after Union
Carbide acquired Turner’s medical records and deposed Turner’s treating physician
did Union Carbide come to realize that Turner’s medical records and treating
physician’s deposition indicated use of smoking tobacco in the preceding 15 years.
Union Carbide also obtained the expert opinion of a pulmonologist who reviewed
Turner’s medical records, symptoms, and history and averred that “[a]s a
pulmonologist, [he] would consider Bobby Turner to be a smoker.” It then renewed
its motion to administratively dismiss the complaint on the basis that Turner had
not made a prima facie case pursuant to R.C. 2307.92(C)(1).
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{¶ 73} Because the 30-day period the General Assembly afforded for
making a prima facie case had expired, the only way Turner could “maintain” his
asbestos action was by proving that the prima-facie-case requirement of R.C.
2307.92(C)(1) did not apply to him, and he could prove that only through a written
report of a competent medical authority indicating that his use of smoking tobacco
was less than “the equivalent of one-pack year,” R.C. 2307.91(DD). Because of
the language of the relevant statutory provisions, Turner could not rest on any
express or implied allegations of the complaint nor could he rely on any other
evidence relating to past use of smoking tobacco to show that he was not required
to submit prima facie evidence. Turner failed to submit the report of a competent
medical authority opining that his use of smoking tobacco was less than “the
equivalent of one-pack year” and that he was therefore not a “smoker,” and his
complaint should have been administratively dismissed without prejudice (allowing
him to move to reinstate it if and when he can prove that he is not a “smoker”).
{¶ 74} The negative consequences that would result from adopting the lead
opinion’s position cannot be overstated. Rather than interpreting and applying the
plain language of the statutory scheme, the lead opinion would eviscerate it.
According to the lead opinion, the plaintiff does not have the burden to prove that
the prima-facie-case requirement does not apply to his or her case. In shifting the
burden to the defendant, the lead opinion would give defendants only an illusory
opportunity to prove that the plaintiff’s use of smoking tobacco is at least “the
equivalent of one-pack year,” R.C. 2307.91(DD). Applying today’s lead opinion
would therefore cripple the legislature’s effort to stem the “unending flood of
asbestos cases” brought by plaintiffs who cannot prove that their exposure to
asbestos actually caused their lung cancer, 150 Ohio Laws, Part III, at 3990. The
General Assembly therefore must act swiftly to clarify its intent in enacting H.B.
292 or risk returning Ohio to the days of being “a haven for asbestos claims” that
clog our courts, threaten our economy, adversely affect our communities, and
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jeopardize the compensation of those actually injured by exposure to asbestos, id.
at 3989-3991.
Conclusion
{¶ 75} When discovery reveals evidence that the plaintiff used smoking
tobacco in the 15 years preceding commencement of the action, the only means the
plaintiff has of demonstrating that he or she was not required to make a prima facie
case within 30 days after commencing the action is for the plaintiff to prove that
his or her use of smoking tobacco is less than “the equivalent of one-pack year”
through a written report of a competent medical authority, R.C. 2307.91(DD).
Turner failed to meet that burden. Accordingly, I would reverse the judgment of
the court of appeals and order that the complaint be administratively dismissed
without prejudice.
O’DONNELL, J., concurs in the foregoing opinion.
_________________
DEWINE, J., concurring in judgment only.
{¶ 76} The lead opinion answers a question not asked by either party and in
answering the question, creates a new scheme not enacted by the legislature.
Because I believe we should confine ourselves to the question posed by the parties
and to the statutory scheme enacted by the legislature, I write separately.
{¶ 77} The question presented in this appeal is how to determine whether a
plaintiff who alleges that he suffers from lung cancer as a result of asbestos
exposure is a smoker or a nonsmoker. Bobby Turner maintains that the court of
appeals correctly held that the determination is a question of fact. Union Carbide
Corporation counters that Turner, who had a history of smoking, needs to prove by
means of a written report from a competent medical authority that he is not a smoker
as defined by statute, R.C. 2307.91(DD). I find the statutory definition of “smoker”
dispositive and conclude that when in dispute, a person’s smoking status must be
determined based on the written report of a competent medical authority. I would
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therefore reverse the court of appeals’ judgment and remand the case to the trial
court to determine whether Turner is a smoker according to the statute’s definition.
The Lead Opinion’s Shaky Path to an Unasked Question
{¶ 78} The lead opinion starts in the right place. It notes that the case before
us “presents the question of how to determine whether a plaintiff is a ‘smoker.’ ”
Lead opinion at ¶ 1. And it locates the answer to that question in the definition of
“smoker” provided in R.C. 2307.91(DD). But then, it turns to a different question:
whether Union Carbide met its burden to establish that Turner is a smoker, thus
requiring Turner to make the prima facie showing required by R.C. 2307.92(C)(1).
In doing so, the lead opinion invents a question never raised by the parties or the
courts below.
{¶ 79} Until now, everyone had agreed that the burden is on the plaintiff to
establish that he is not a smoker so that he need not make a prima facie showing.
As the court of appeals put it in its opinion, “Union Carbide acknowledges, and we
agree, that the trial court erroneously concluded that Union Carbide was required
to prove Turner is a smoker. The law is clear that the plaintiff bears this burden.”
2016-Ohio-7776, 66 N.E.3d 802, ¶ 8, fn. 2. Turner has not challenged this
conclusion. Indeed, the dispute between the parties—the question that we agreed
to answer—is how the plaintiff must meet his burden to prove that he is not a
smoker.
{¶ 80} It has long been the policy of this court not to address issues not
raised by the parties. F. Ents., Inc. v. Kentucky Fried Chicken Corp., 47 Ohio St. 2d
154, 163, 351 N.E.2d 121 (1976). We follow this rule not only out of respect for
the adversarial process but also because it leads to better decision-making:
“[J]ustice is far better served when it has the benefit of briefing, arguing, and lower
court consideration before making a final determination.” Sizemore v. Smith, 6
Ohio St. 3d 330, 333, 453 N.E.2d 632 (1983), fn. 2.
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{¶ 81} Nonetheless, the lead opinion pulls its new question out of thin air
and then sets about answering it by creating a new four-step scheme only tenuously
tethered to the statutes enacted by the legislature—a scheme that has not been
suggested by either party or employed by any court.
The Lead Opinion’s Creation of a New Scheme to Answer the Unasked
Question
{¶ 82} The lead opinion advertises that its four-step approach “gives effect
to the plain text of the relevant provisions of the statutory scheme.” Lead opinion
at ¶ 32. But that is not the case. In truth, the four-step approach is predicated upon
ignoring large swaths of the statutory text and inserting requirements found
nowhere in the statute.
The lead opinion’s four-step approach lacks statutory support
{¶ 83} The statutory scheme, as written, sets forth prima facie requirements
that must be met for certain categories of plaintiffs, including smokers. The natural
reading of the statutory text requires determining first whether the plaintiff is a
smoker and then, if so, whether the prima facie requirements have been met. The
lead opinion, however, melds together the determination of smoking status and the
establishment of the prima facie case. To understand the departures the lead
opinion takes from the statutory language, it is helpful to go through its approach
in some detail.
{¶ 84} The lead opinion’s step one: The lead opinion begins by noting that
a plaintiff who claims that his lung cancer was caused by asbestos exposure must
file prima facie evidence of his physical impairment that comprises a written report
and supporting results that meet the requirements of R.C. 2307.92(C)(1). It then
says that a plaintiff who does not proffer prima facie evidence is implicitly asserting
that he is not a smoker (and thus does not need to provide prima facie evidence).
{¶ 85} The lead opinion’s step two: The lead opinion next turns to R.C.
2307.93(A)(1), which allows the defendant “to challenge the adequacy of the
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proffered prima-facie evidence of the physical impairment.” Relying upon R.C.
2307.93(A)(1), the opinion says, “If the defendant wishes to challenge the
plaintiff’s [implicit] assertion that [the plaintiff is not a smoker], the defendant must
file a motion within the specified time frame and submit a written report from a
physician that meets the requirements listed in R.C. 2307.91(Z)(1), (3) and (4).”
Lead opinion at ¶ 29. The opinion further prescribes that the report specify that the
plaintiff has smoked the equivalent of one pack year during the last 15 years.
{¶ 86} This is pulled from nowhere: by its plain terms, R.C. 2307.93(A)(1)
simply does not provide for what the lead opinion says it does. The provision
applies only to the defendant’s challenge to the plaintiff’s prima facie showing of
physical impairment under R.C. 2307.92(C)(1):
The plaintiff in any tort action who alleges an asbestos claim
shall file, within thirty days after filing the complaint or other initial
pleading, a written report and supporting test results constituting
prima-facie evidence of the exposed person’s physical impairment
that meets the minimum requirements specified in division (B), (C),
or (D) of section 2307.92 of the Revised Code, whichever is
applicable. The defendant in the case shall be afforded a reasonable
opportunity, upon the defendant’s motion, to challenge the
adequacy of the proffered prima-facie evidence of the physical
impairment for failure to comply with the minimum requirements
specified in division (B), (C), or (D) of section 2307.92 of the
Revised Code. The defendant has one hundred twenty days from the
date the specified type of prima-facie evidence is proffered to
challenge the adequacy of that prima-facie evidence. If the
defendant makes that challenge and uses a physician to do so, the
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physician must meet the requirements specified in divisions (Z)(1),
(3), and (4) of section 2307.91 of the Revised Code.
(Emphasis added.) R.C. 2307.93(A)(1). Thus, R.C. 2307.93(A)(1) provides for
challenges only to the adequacy of “the proffered prima-facie evidence of the
physical impairment.” Plainly, the report on smoking status that the lead opinion
would have the defendant submit at this stage is not a challenge to “the adequacy
of the proffered prima-facie evidence of the physical impairment.” In a case like
this one, no prima facie evidence has been proffered by the plaintiff because the
plaintiff claims that he is not a smoker. So the defendant is not challenging the
“proffered prima-facie evidence.” There is no evidence to consider the “adequacy
of.”
{¶ 87} Moreover, a defendant challenging a plaintiff’s status as a
nonsmoker is not challenging evidence “of the physical impairment.” The statutory
definition of “physical impairment” makes this crystal clear:
“Physical impairment” means a nonmalignant condition that
meets the minimum requirements specified in division (B) of section
2307.92 of the Revised Code, lung cancer of an exposed person who
is a smoker that meets the minimum requirements specified in
division (C) of section 2307.92 of the Revised Code, or a condition
of a deceased exposed person that meets the minimum requirements
specified in division (D) of section 2307.92 of the Revised Code.
R.C. 2307.91(V). Recognizing the incongruence of its approach with the statutory
language, the lead opinion notes that the definition of “physical impairment” refers
to “an exposed person who is a smoker,” R.C. 2307.91(V). From this, it surmises
that “when the defendant challenges the adequacy of the plaintiff’s prima facie
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evidence of a physical impairment, whether the plaintiff is a ‘smoker’ will, in
certain cases, be part of such a challenge.” Lead opinion at ¶ 26. But by definition,
“physical impairment” refers to the required prima facie showing set forth in R.C.
2307.92(C)(1), not to the threshold question whether a plaintiff is a smoker.
{¶ 88} In short, nothing in R.C. 2307.93(A)(1) allows for the challenge to
the plaintiff’s smoking status imagined by the lead opinion.
{¶ 89} The lead opinion’s step three: In another departure from the
language of the statute, the lead opinion says, “Pursuant to R.C. 2307.93(B), the
trial court considers the evidence submitted by the parties to determine whether ‘a
competent medical authority’ has specified that the plaintiff is a ‘smoker’ as defined
in R.C. 2307.91(DD),” lead opinion at ¶ 30. But R.C. 2307.93(B) deals only with
challenges to the plaintiff’s prima facie evidence of physical impairment under R.C.
2307.92(C)(1):
If the defendant in an action challenges the adequacy of the
prima-facie evidence of the exposed person’s physical impairment
as provided in division (A)(1) of this section, the court shall
determine from all of the evidence submitted whether the proffered
prima-facie evidence meets the minimum requirements specified in
division (B), (C), or (D) of section 2307.92 of the Revised Code.
The court shall resolve the issue of whether the plaintiff has made
the prima-facie showing required by division (B), (C), or (D) of
section 2307.92 of the Revised Code by applying the standard for
resolving a motion for summary judgment.
(Emphasis added.)
{¶ 90} This provision is wholly inapplicable here: the issue that the lead
opinion would resolve is not whether the plaintiff has made the prima facie showing
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required by R.C. 2307.92(C)(1) but, rather, whether the plaintiff is a smoker as
defined by R.C. 2307.91(DD).
{¶ 91} The lead opinion’s step four: The lead opinion says that if a smoker
fails to meet the prima facie requirements, the court shall administratively dismiss
the case. Of course, this is correct—it is what the statute says. The problem is the
extra-statutory route that the lead opinion takes to determine whether a plaintiff is
a smoker. By their plain terms, the statutory provisions cited in the lead opinion’s
steps two and three apply only to challenges to a plaintiff’s prima facie evidence of
impairment. And for lung-cancer plaintiffs, this prima facie evidence is proffered
only after the plaintiff is determined to be a smoker.
{¶ 92} Only after unveiling its new regime does the lead opinion get around
to the question we agreed to answer. It concludes that a plaintiff is not required “to
prove, through a ‘written report of a competent medical authority,’ that he or she is
not a ‘smoker’ as defined in R.C. 2307.91(DD).” Lead opinion at ¶ 33. The opinion
goes on to explain that “[t]he plaintiff must satisfy the requirements set forth in
R.C. 2307.92(C)(1) only when the plaintiff has been designated a ‘smoker’ in a
written report of a competent medical authority pursuant to R.C. 2307.91(DD).”
Lead opinion at ¶ 33. And under the scheme that the lead opinion would create, the
burden to “designate” the plaintiff a smoker would fall on the defendant.
{¶ 93} Under the lead opinion’s freshly contrived approach, only the
defendant would be permitted to submit evidence as to the plaintiff’s smoking
status. It admits that under its construction, there is “no mechanism by which the
plaintiff may challenge a written report submitted by the defendant’s physician
specifying that the plaintiff is a ‘smoker.’ ” Id. at ¶ 34. So a plaintiff proffers no
evidence as to smoking status, the defendant responds to nonproffered evidence,
and the plaintiff has no opportunity to respond once something tangible is actually
filed? There is no statutory support for such a regime, and contrary to the lead
opinion’s assurances, it is neither fair nor workable.
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The lead opinion would shift the burden and offers a novel interpretation of
“competent medical authority”
{¶ 94} Perhaps the most novel part of the lead opinion’s contrivance is its
determination that it is the defendant’s burden to demonstrate that the plaintiff is a
smoker. It reaches this result by making two major revisions to the statutory text.
First, as explained above, it conflates the plaintiff’s establishment of his
nonsmoking status with the showing that a defendant must make to challenge the
plaintiff’s prima facie evidence of physical impairment. Second, as explained
below, it rewrites the definition of “competent medical authority.”
{¶ 95} Recall the definition of “smoker”: “a person who has smoked the
equivalent of one-pack year, as specified in the written report of a competent
medical authority pursuant to sections 2307.92 and 2307.93 of the Revised Code,
during the last fifteen years.” (Emphasis added.) R.C. 2307.91(DD). By
definition, a “competent medical authority” is required to be a “medical doctor
[who] is actually treating or has treated the exposed person and has or had a doctor-
patient relationship with the person.” R.C. 2307.91(Z)(2); see also Renfrow v.
Norfolk S. Ry. Co., 140 Ohio St. 3d 371, 2014-Ohio-3666, 18 N.E.3d 1173,
paragraph two of the syllabus (“Competent medical authority, as defined in R.C.
2307.91(Z), requires that a medical doctor must * * * actually be treating or have
treated and have or had a doctor-patient relationship with the exposed person”).
{¶ 96} The statutory requirement that the report used to determine the
plaintiff’s smoking status come from the plaintiff’s own doctor makes sense: the
plaintiff’s treating physician is clearly in a better position than a nontreating defense
expert to attest to the plaintiff’s smoking history. And the requirement comports
with placing the burden to establish nonsmoking status on the plaintiff, who will be
in the best position to obtain a report from his treating physician.
{¶ 97} But under the lead opinion’s four-step approach, it is the defendant
who must submit the report from the “competent medical authority.” To achieve
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this result, the lead opinion needs to get around the statutory requirement that the
“competent medical authority” be someone who is or has been in a doctor-patient
relationship with the plaintiff. It does this by simply deleting the doctor-patient
requirement from the definition. The lead opinion states, “[P]ursuant to R.C.
2307.93(A)(1), * * * when the defendant presents a written report for the purpose
of challenging the sufficiency of the plaintiff’s prima facie evidence, the physician
who prepared that report will be considered a ‘competent medical authority’ if that
physician meets only the requirements of R.C. 2307.91(Z)(1), (3), and (4).” Lead
opinion at ¶ 25. The problem is that R.C. 2307.93(A)(1) says no such thing. R.C.
2307.93(A)(1) does allow a defendant to use a doctor who is not a treating physician
(and thus not a competent medical authority) to challenge “the plaintiff’s prima
facie evidence.” But nothing in R.C. 2307.93(A)(1) makes such a doctor a
“competent medical authority.”
{¶ 98} In short, the result envisioned by the lead opinion rests upon yet
another statutory revision. The lead opinion’s approach rewrites the definition of
“competent medical authority,” excising from the statute the requirement of a
doctor-patient relationship. Further, it would overrule our holding in Renfrow,
without even acknowledging that it’s doing so.
{¶ 99} No question, the scheme that the legislature drafted is complicated.
The lead opinion apparently is convinced that by tweaking and revising the
statutory language it can work an improvement—one that lends itself to a simple
four-step approach. But our role is to apply the law as it exists to cases that have
been presented to us. It is not to draft new statutory provisions, nor is it to answer
questions that have not been presented through the adversarial process. The lead
opinion’s legislative craftsmanship would foist an entirely new regime on litigants
and trial courts without the checks on improvident decision-making that our
adversarial system ordinarily provides through layers of appellate review and
briefing. And it would take the court well outside its adjudicative role, ignoring the
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scheme that the legislature has drafted and trampling upon the legislative process
that created it.
The Statutory Definition Disposes of the Question We Agreed to Review
{¶ 100} When we confine ourselves to the question asked by the parties—
that is, how is a plaintiff’s smoking status to be proved—we return to the point
where the lead opinion started its analysis: R.C. 2307.91(DD)’s definition of
“smoker.”
{¶ 101} Union Carbide maintains that under a straightforward reading of
the statute, Turner needed to establish that he is not a smoker as defined in R.C.
2307.91(DD) by means of a written report from a competent medical authority.
{¶ 102} Turner counters that despite the statute’s reference to a written
report from a competent medical authority, he need not provide such a report to
prove that he is not a smoker. In his view (and the view of the court of appeals),
first, one is determined to be smoker and then, a competent medical authority
prepares a report.
{¶ 103} The problem with Turner’s reading is that it would make the entire
definition of “smoker” unnecessary. If the definition applied only when a prima
facie showing is required, there would be no need to resort to the definition: a
person’s status as a smoker would already have been determined. A more
reasonable reading of the statute is that the starting point must be determining a
person’s smoking status. Only after it is established whether a person is a smoker—
that is, whether he smoked the equivalent of one pack year in the past 15 years,
based on the report of a competent medical authority—can the need for a prima
facie showing be determined.
Conclusion
{¶ 104} Unlike the lead opinion, I would stick to the statutory scheme that
the legislature gave us. I would reverse the judgment of the court of appeals and
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remand the case to the trial court to determine whether Turner is a smoker under
R.C. 2307.91(DD).
_________________
Vorys, Sater, Seymour & Pease, L.L.P., Richard D. Schuster, Perry W.
Doran II, Daniel E. Shuey, and Damien C. Kitte, for appellant.
McDermott & Hickey, L.L.C., Kevin E. McDermott, and Christopher J.
Hickey; and Levy Konigsberg, L.L.P., and Donald P. Blydenburgh, for appellee.
Bricker & Eckler, L.L.P., Anne Marie Sferra, and Kara Herrnstein, urging
reversal for amici curiae, Ohio Manufacturers’ Association, Ohio Alliance for Civil
Justice, and Ohio Council of Retail Merchants.
___________________
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