[Cite as Renfrow v. Norfolk S. Ry. Co., 2013-Ohio-1189.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98715


                                   CLEO J. RENFROW
                                                   PLAINTIFF-APPELLEE

                                                     vs.

         NORFOLK SOUTHERN RAILWAY COMPANY
                                                   DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-764958

            BEFORE:          Blackmon, J., S. Gallagher, P.J., and E.A. Gallagher, J.

            RELEASED AND JOURNALIZED:                       March 28, 2013
ATTORNEYS FOR APPELLANT

Patrick C. Booth
David A. Damico
Ira L. Podheiser
Burns White, L.L.C.
Four Northshore Center
106 Isabella Street
Pittsburgh, PA 15212

ATTORNEYS FOR APPELLEE

Michael L. Torcello
Christopher M. Murphy
Doran & Murphy, P.L.L.C.
1234 Delaware Avenue
Buffalo, NY 14209
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Norfolk Southern Railway Company (“Norfolk Southern”)

appeals the trial court’s denial of its motion to administratively dismiss the complaint of

appellee Cleo Renfrow (“Mrs. Renfrow”), as personal representative of the estate of

Gerald B. Renfrow (“Mr. Renfrow”). Norfolk Southern assigns the following error for

our review:

       I. The trial court erred when it found that the decedent, Gerald
       Renfrow’s treatment at a VA facility meant that he did not have to
       submit a report from a competent medical authority, when he
       presented no medical records indicating that he was exposed to
       asbestos or that asbestos caused his lung cancer.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} Mr. Renfrow was a veteran who served in the United States Air Force as an

airman from February 15, 1961 to May 7, 1964. Mr. Renfrow later worked for Norfolk

Southern as a brakeman beginning in 1968 until 1992 when he retired due to back

problems. For more than 50 years, Mr. Renfrow smoked one-and-one-half packs of

cigarettes per day.

       {¶4} In March 2010, Mr. Renfrow was diagnosed with lung cancer and utilized

the Veterans Administration for his healthcare. Mr. Renfrow was treated for lung cancer

at Richard L. Roudebush VA Medical Center, the CBOC VA Health Care System and

VA Marion, Indiana. During the course of treatment at the Veterans Administration, Mr.
Renfrow did not have a regular treating doctor, but a variety of doctors and nurse

practitioners. On January 22, 2011, Mr. Renfrow passed away while receiving palliative

care treatment in a hospice care center.

       {¶5} On September 22, 2011, Mrs. Renfrow, as representative of the estate of

Mr. Renfrow, filed suit against Norfolk Southern alleging asbestos-related injuries under

the Locomotive Boilers Inspection Act (“LBIA”), seeking relief pursuant to the Federal

Employers’ Liability Act (“FELA”). Mrs. Renfrow alleged that during her husband’s

career with the railroad, he was continuously exposed to various toxic substances,

including diesel exhaust and asbestos, in violation of federal law.   Mrs. Renfrow further

alleged that the exposures to asbestos caused Mr. Renfrow to develop lung cancer.

       {¶6} On April 15, 2012, Norfolk Southern moved to administratively dismiss

Mrs. Renfrow’s claims, alleging she had failed to comply with the prima facie filing

requirements of R.C. 2307.92(C). That statute requires a smoker bringing a tort action

alleging an asbestos claim to provide certain medical documentation before a prima facie

claim may be made.

       {¶7} Mrs.     Renfrow responded by submitting her husband’s Veterans

Administration’s medical records relating to his treatment for lung cancer. She also

offered an affidavit from Darl Rockenbaugh, a railroad coworker, detailing Mr.

Renfrow’s exposure to asbestos throughout his tenure with Norfolk Southern.

Rockenbaugh, who worked with Mr. Renfrow throughout Indiana, Ohio, Illinois, and
Michigan averred that from 1968 when Mr. Renfrow was hired, he was exposed to

asbestos on a regular basis.

       {¶8} Specifically, Rockenbaugh averred that he had first-hand, personal

knowledge of the use of asbestos containing products on the railroad; that he and Mr.

Renfrow sometimes worked 8-to-16 hour shifts seven days per week. Rockenbaugh

averred that the condition of the asbestos insulation was poor from wear and tear, poorly

maintained, and the two men regularly breathed the asbestos dust.

       {¶9} Rockenbaugh also averred that the locomotives the two men worked on

contained significant amounts of asbestos throughout the units. He stated that the cabins

were heated with hot water and the pipes feeding the radiators were wrapped with white

asbestos insulation. The pipes were at floor level and Rockenbaugh and Renfrow came

in regular contact with the worn, frayed, and dusty asbestos containing insulation

throughout their respective tenure with Norfolk Southern.

       {¶10} In addition, Mrs. Renfrow submitted an expert report from Dr.

Laxminarayana C. Rao.      Dr. Rao, is board certified in internal medicine and pulmonary

medicine; he is also a NIOSH certified B-reader, specifically trained in the detection of

pneumoconiosis on chest x-ray.

       {¶11} The case proceeded to a hearing, and the trial court denied the motion to

administratively dismiss. The trial court found that Mrs. Renfrow submitted evidence,

“consisting of Mr. Renfrow’s hospital records, history of smoking, asbestos exposure, and
a report from a competent medical authority is sufficient to establish a prima facie case as

required by R.C. 2307.92 and 2307.93.”     Norfolk Southern now appeals.

                                Administrative Dismissal

       {¶12} In the sole assigned error, Norfolk Southern argues that the trial court

should have administratively dismissed the complaint because Mrs. Renfrow failed to

present prima facie evidence from a “competent medical authority” that exposure to

asbestos was a “substantial contributing factor” to the development of Mr. Renfrow’s

lung cancer.

       {¶13} On September 2, 2004, Am.Sub.H.B. 292 became effective, and its key

provisions were codified in R.C. 2307.91 through 2307.98. Farnsworth v. Allied Glove

Corp., 8th Dist. No. 91731, 2009-Ohio-3890. The statutes require plaintiffs who assert

asbestos claims to make a prima facie showing by a competent medical authority that

exposure to asbestos was a substantial contributing factor to their medical condition

resulting in a physical impairment. Cross v. A-Best Prods. Co., 8th Dist. No. 90388,

2009-Ohio-3079; Am. Sub. H.B. 292, Section 3(A)(5).

       {¶14} “Substantial contributing factor” is defined as “[e]xposure to asbestos [that]

is the predominate cause of the physical impairment alleged in the asbestos claim” and

that “[a] competent medical authority has determined with a reasonable degree of medical

certainty that without the asbestos exposures the physical impairment of the exposed

person would not have occurred.” Link v. Consol. Rail Corp., 8th Dist. No. 92503,

2009-Ohio-6216; R.C. 2307.91(FF)(1) and (2).        In Ackison v. Anchor Packing Co., 120
Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, the Ohio Supreme Court construed

the statute as requiring that asbestos exposure be a significant, direct cause of the injury to

the degree that without the exposure to asbestos, the injury would not have occurred. Id.

       {¶15} Directly relevant to this case, specifically because Mr. Renfrow smoked a

pack and a half of cigarettes per day for more than 50 years, R.C. 2307.92(B), (C), and

(D), respectively, prohibit plaintiffs from maintaining asbestos actions based upon: (1)

nonmalignant conditions; (2) smoker lung-cancer claims; and (3) wrongful death, unless

the plaintiff in one of these situations can establish a prima facie showing in the manner

described in R.C. 2307.93(A).

       {¶16} Any plaintiff who bases his claim on any of the three circumstances listed

in R.C. 2307.92(B), (C), or (D), must file “a written report and supporting test results

constituting prima facie evidence of the exposed person’s physical impairment” meeting

the requirements specified in those sections. R.C. 2307.93(A)(1).

       {¶17} Specifically, R.C. 2307.92(C)(1) sets forth the requirements a smoker with

lung cancer must present to establish a prima facie case, including, evidence from a

competent medical authority that the exposed person has primary lung cancer, and that the

exposure to asbestos is a substantial contributing factor; evidence that there was a latency

period of ten or more years since the exposure and the diagnosis of lung cancer; and

evidence of either the exposed person’s substantial occupational exposure or evidence

that the exposure to asbestos was at least equal to 25 fiber per cc years as determined to a
reasonable degree of scientific probability by a certified industrial hygienist or safety

professional.1

       {¶18} Under R.C. 2307.93(A)(1), defendants may challenge the adequacy of the

plaintiff’s prima facie evidence. R.C. 2307.93(B) provides that if the defendant does

challenge the adequacy of the plaintiff’s prima facie evidence, the court “shall determine

from all of the evidence submitted” whether the proffered prima facie evidence meets the

minimum requirements for cases involving smoker lung cancer, as specified in R.C.

2307.92(C). The trial 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.

R.C. 2307.93(B).

       {¶19} If the court finds, after considering all of the evidence, that the plaintiff

failed to make a prima facie showing, then “[t]he court shall administratively dismiss the

plaintiff’s claim without prejudice.” Wilson v. AC&S, Inc., 169 Ohio App.3d 720, 2006

Ohio 6704, 864 N.E.2d 682 (12th Dist.); R.C. 2307.93(C).      Summary      judgment     is

reviewed de novo on appeal. Parenti v. Goodyear Tire & Rubber Co., 66 Ohio App.3d



       1
        The Ohio Supreme Court has determined that “[t]he prima facie filing
requirements of R.C. 2307.92 are procedural in nature, and their application to
claims brought in state court pursuant to the FELA and the LBIA does not violate
the Supremacy Clause, because the provisions do not impose an unnecessary
burden on a federally created right.” Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455,
2007-Ohio-5248, 875 N.E.2d 919. Therefore, the prima facie requirements contained
in R.C. 2307.92(C)(1) do apply to this case.
826, 586 N.E.2d 1121 (9th Dist. 1990). Summary judgment is proper only when the

movant demonstrates that, viewing the evidence most strongly in favor of the

non-movant, reasonable minds must conclude that no genuine issue as to any material fact

remains to be litigated, and the moving party is entitled to judgment as a matter of law.

Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

       {¶20} Furthermore, summary judgment “must be awarded with caution. Doubts

must be resolved in favor of the non-moving party.” Sinnott v. Aqua-Chem, Inc., 116

Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, citing Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 359, 1992-Ohio-95, 604 N.E.2d 138. Thus, if a defendant challenges the

medical evidence presented by a plaintiff, the evidence must be construed most favorably

for the plaintiff and against the defendant. Id. at ¶ 29.

       {¶21} In the instant case, Norfolk Southern contends the trial court should have

administratively dismissed the case because Mrs. Renfrow never produced any records

from her husband’s treating physician or hospitals that discuss asbestos exposure or

discuss a link between asbestos and his lung cancer.

       {¶22} However, in denying Norfolk Southern’s motion to administratively dismiss

the case, the trial court relied on our decision in Sinnott v. Aqua-Chem, Inc., 8th Dist. No.

88062, 2008-Ohio-3806, which addressed the issue of whether a veteran utilizing his

veterans’ benefits for the treatment of his lung cancer, without a traditional treating

doctor, is bound by the prima facie filing requirements of R.C. 2307.92(C).
       {¶23} In Sinnott, as well as in the present case, the plaintiff’s treating physicians

were employed by the Veterans Administration, which we have found to limit plaintiff’s

ability to experience the typical doctor-patient relationship that was envisioned by the

statute. There, we recognized that achieving the typical doctor-patient relationship in the

statute is not a bright line test, nor is it the sole factor in the statute. Id. The fact that

plaintiff was examined by a doctor employed by the Veterans Administration does not

diminish the value of the evidence contained in the medical records. Id.

       {¶24} R.C. 2307.91(Z) defines “competent medical authority” as a medical doctor

who is providing a diagnosis for purposes of constituting prima facie evidence of an

exposed person’s physical impairment that meets the requirements specified in [R.C.

2307.92] and who meets the following requirements:

       (1) The medical doctor is a board-certified internist, pulmonary
       specialist, oncologist, pathologist, or occupational medicine specialist.

       (2) The medical doctor is actually treating or has treated the exposed
       person and has or had a doctor-patient relationship with the person.

       (3) As the basis for the diagnosis, the medical doctor has not relied, in
       whole or in part, on any of the following:

       (a) The reports or opinions of any doctor, clinic, laboratory, or testing
       company that performed an examination, test, or screening of the
       claimant’s medical condition in violation of any law, regulation,
       licensing requirement, or medical code of practice of the state in which
       that examination, test, or screening was conducted;

       (b) The reports or opinions of any doctor, clinic, laboratory, or testing
       company that performed an examination, test, or screening of the
       claimant’s medical condition that was conducted without clearly
       establishing a doctor-patient relationship with the claimant or medical
       personnel involved in the examination, test, or screening process;
       (c)The reports or opinions of any doctor, clinic, laboratory, or testing
       company that performed an examination, test, or screening of the
       claimant’s medical condition that required the claimant to agree to
       retain the legal services of the law firm sponsoring the examination,
       test, or screening.

       (4) The medical doctor spends not more than twenty-five per cent of
       the medical doctor’s professional practice time in providing consulting
       or expert services in connection with actual or potential tort actions,
       and the medical doctor's medical group, professional corporation,
       clinic, or other affiliated group earns not more than twenty per cent of
       its revenues from providing those services.

       {¶25} Recently, in Whipkey v. Aqua-Chem, Inc., 8th Dist. No. 96672,

2012-Ohio-918, a case also involving a nontraditional patient, utilizing veterans’ benefits

for treatment of lung cancer, we reaffirmed our decision in Sinnott. In Whipkey we

considered it immaterial that plaintiff’s experts were not his treating physicians. Id. We

concluded 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 support his claim. Id.

       {¶26} Dr. Rao, is a competent medical authority; he reviewed Mr. Renfrow’s

medical records, and he opined in pertinent part as follows:

       I have come to the conclusion within a reasonable degree of medical
       certainty that Mr. Renfrow had inoperable lung cancer with brain
       metastasis. * * * I have also come to the conclusion, based upon his
       occupational exposure to asbestos dust and diesel fumes and exhaust,
       that he was occupationally exposed to these carcinogens. Asbestos
       dust and diesel fumes and exhaust are known carcinogens, and
       exposure to these increases the risk of lung cancer substantially. In
       addition he was a smoker. Smoking increases the risk of lung cancer
       substantially in the presence of occupational exposure to asbestos dust,
       diesel fumes and exhaust. Therefore it is my opinion within a
       reasonable degree of medical certainty that occupational exposure to
       asbestos dust, diesel fumes and exhaust in part contributed to the
       development of his lung cancer and eventual death.

       {¶27} Here, without utilizing magic words, Dr. Rao’s opinion supplied the causal

link between Mr. Renfrow’s occupational exposure to asbestos dust, diesel fumes, and

exhaust and him developing lung cancer and eventually dying. Dr. Rao opined that Mr.

Renfrow’s exposure to these known carcinogens, acted synergistically with his cigarette

smoking to greatly increase the risk of developing lung cancer beyond what would have

been expected from only smoking or only being exposed to asbestos dust.

       {¶28} Consequently, because Dr. Rao’s report provided the crucial causal link

between Mr. Renfrow’s occupational exposure to asbestos dust, diesel fumes and exhaust

and him developing lung cancer, the trial court was on firm ground in concluding that

Mrs. Renfrow had established a prima facie case as required by R.C. 2307.92 and

2307.93.

       {¶29} Unlike, for example, the situation we faced in Rossi v. Conrail, 8th Dist. No.

94628, 2010-Ohio-5788, where decedent’s treating physician’s belief that asbestos

exposure “may have” played a role in the development of his lung cancer, did not state an

opinion to a reasonable degree of medical certainty.      There, “may have” was purely

conjecture and could not suffice to make a prima facie case. Id.

       {¶30} We also note that the decedent’s estate in Rossi also offered the opinion of a

certified B-reader who conducted a records review of decedent’s medical files. However,

the defendant railroad challenged whether the B-reader met the statutory definition of a
“competent medical authority” found under R.C. 2307.91(Z). The railroad argued that

there was nothing in the record to show that B-reader had treated decedent or had a

doctor-patient relationship with decedent. Instead, the record showed that decedent was

consistently treated by a single doctor and was never treated by the B-reader.

       {¶31} Unlike the instant case, the decedent in Rossi was without the benefit of our

pronouncement in      Sinnott, 8th Dist. No. 88062, 2008-Ohio-3806, which allows a

plaintiff who is treated by a team of doctors at a Veterans Administration hospital to

sufficiently demonstrate a doctor-patient relationship for purposes of R.C. 2307.91(Z).

Consequently, we were constrained to conclude that no medical authority had

competently testified to a reasonable degree of medical certainty that decedent’s exposure

to asbestos was a substantial contributing factor to his lung cancer.

       {¶32} The situation in Holston v. Adience, Inc., 8th Dist. No. 93616,

2010-Ohio-2482, provides yet another example of conjecture, which is insufficient to

establish a prima facie case. In Holston, one of plaintiff’s treating physicians, stated in

pertinent part as follows: “In my medical opinion I feel that Mr. Holstons [sic] work

history and his history of tobacco use directly contribute to his diagnosis of Lung

Cancer.”

       {¶33} “I feel” in Holston, is just as inadequate as “may have” in Rossi, and, thus

failed to establish a prima facie case as required by R.C. 2307.92 and 2307.93. Here, Dr.

Rao’s expert opinion, within a reasonable degree of medical certainty, laid out the causal
link between Mr. Renfrow’s occupational exposure to asbestos dust, diesel fumes, and

exhaust and him developing lung cancer and eventually dying.

      {¶34} Pivotally, R.C. 2307.91(GG) defines “substantial occupational exposure to

asbestos” as employment for a cumulative period of at least five years in an industry and

an occupation in which, for a substantial portion of a normal work year for that

occupation, the exposed person did any of the following:

      (1) Handled raw asbestos fibers;

      (2) Fabricated asbestos-containing products so that the person was
      exposed to raw asbestos fibers in the fabrication process;

      (3) Altered, repaired, or otherwise worked with an asbestos-containing
      product in a manner that exposed the person on a regular basis to
      asbestos fibers;

      (4) Worked in close proximity to other workers engaged in any of the
      activities described in division (GG)(1), (2), or (3) of this section in a
      manner that exposed the person on a regular basis to asbestos fibers.

      {¶35} Here, in addition to Mr. Renfrow’s medical records from the Veterans

Administration and Dr. Rao’s expert report, Mrs. Renfrow submitted the affidavit of

Rockenbaugh, her husband’s coworker for more than two decades. As previously stated

in the affidavit, Rockenbaugh gave a detailed account of Mr. Renfrow’s exposure to

asbestos and asbestos products on an ongoing basis throughout his long tenure with

Norfolk Southern. We have upheld the use of this selfsame evidence to establish

substantial occupational exposure to asbestos. See Hoover v. Norfolk S. Ry. Co., 8th

Dist. Nos. 93479 and 93689, 2010-Ohio-2894.
      {¶36} Along with Rockenbaugh’s affidavit detailing Mr. Renfrow’s asbestos

exposure, along with the Veterans Administration’s hospital records documenting his

diagnosis of lung cancer, history of smoking, as well as the report of Dr. Rao, a

competent medical authority, Mrs. Renfro provided ample evidence demonstrating that

her husband’s occupational asbestos exposure was a substantial factor in causing his lung

cancer.

      {¶37} The above evidence, when viewed collectively, is sufficient to survive an

administrative dismissal. As such, the trial court did not err when it denied Norfolk

Southern’s motion to dismiss. Accordingly, we overrule the sole assigned error.

      {¶38} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
