[Cite as Fields v. CSX Transp., Inc., 2013-Ohio-822.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98612




            PEARL FIELDS, AS REPRESENTATIVE OF
               THE ESTATE OF PAUL H. FIELDS
                                                              PLAINTIFF-APPELLEE

                                                        vs.

                         CSX TRANSPORTATION, INC.
                                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-663226

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

        RELEASED AND JOURNALIZED: March 7, 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

Brian D. Netter
Mayer Brown L.L.P.
1999 K Street NW
Washington, D.C. 20009


ATTORNEYS FOR APPELLEE

Michael L. Torcello
Christopher Murphy
Doran & Murphy P.L.L.C.
1234 Delaware Avenue
Buffalo, NY 14209
SEAN C. GALLAGHER, P.J.:

       {¶1} Defendant-appellant, CSX Transportation, Inc. (“CSX”), appeals the June 8,

2012 decision of the Cuyahoga County Court of Common Pleas that denied its motion for

administrative dismissal of the claims of plaintiff-appellee, Pearl Fields, as representative

of the estate of Paul H. Fields. For the reasons stated herein, we affirm the decision of

the trial court.

       {¶2} Pearl brought this action under the Federal Employers’ Liability Act and the

Locomotive Inspection Act, following the death of her husband, Paul, who allegedly was

exposed to various substances, including asbestos and asbestos dust, during the course of

his employment as a trainman and conductor for CSX. Paul worked for CSX from 1950

until 1989. He was diagnosed with lung cancer in July 2007 and subsequently died in

November 2007.

       {¶3} Under the complaint, the first cause of action alleges that as a result of CSX’s

negligence, Paul developed severe and permanent injuries, including lung cancer. The

second cause of action alleges aggravation of a pre-existing condition, to the extent any is

shown. The third cause of action asserts a wrongful-death claim.

       {¶4} Thus far, the dispute has centered on whether CSX is entitled to have the

complaint administratively dismissed pursuant to R.C. 2307.92 and 2307.93.             CSX

maintains that plaintiff failed to comply with the prima facie filing requirements for
maintaining an asbestos claim. Pearl claims that she is not required to establish a prima

facie case because CSX failed to establish that Paul qualified as a “smoker.”

       {¶5} R.C. 2307.93(A)(1) provides that “[t]he plaintiff in any tort action who

alleges an asbestos claim shall file * * * prima-facie evidence of the exposed person’s

physical impairment that meets the minimum requirements specified in [R.C. 2307.92(B),

(C), or (D)].”     The prima facie filing requirements are limited to asbestos-related

nonmalignancy claims, lung cancer claims in a smoker, and wrongful-death claims. R.C.

2307.92(B), (C), and (D); Penn v. A-Best Prods. Co., 10th Dist. Nos. 07AP-404,

07AP-405, 07AP-406, and 07AP-407, 2007-Ohio-7145, ¶ 31-32. If the plaintiff fails to

make the requisite prima facie showing, the court is required to administratively dismiss

the claim without prejudice, although it retains jurisdiction to reinstate the action upon

motion if the plaintiff is later able to make the prima facie showing. R.C. 2307.93(C).

       {¶6} R.C. 2307.92 does not require a prima facie showing for a lung-cancer claim

of a nonsmoker. Penn at ¶ 32-34. R.C. 2307.91(DD) defines the term “smoker” as

follows: “a person who has smoked the equivalent of one-pack year, as specified in the

written report of a competent medical authority pursuant to [R.C. 2307.92 and 2307.93],

during the last fifteen years.”

       {¶7} The trial court’s rulings with regard to an administrative dismissal, as well as

Paul’s smoking status, have resulted in several appeals to this court. In Fields v. CSX

Transp., Inc., 189 Ohio App.3d 268, 2010-Ohio-3877, 938 N.E.2d 68 (8th Dist.) (“Fields

I”), we remanded the case to the trial court for a proper determination of whether Paul
was a smoker as outlined in Farnsworth v. Allied Glove Corp., 8th Dist. No. 91731,

2009-Ohio-3890. In Farnsworth, we found ambiguity in the language referring to a

“written report of a competent medical authority” contained in the definition of “smoker”

under R.C. 2307.91(DD). Farnsworth at ¶ 23. This court determined that when there is

a dispute as to whether a person is or is not a smoker, “the trial court must review

evidence submitted by both parties to resolve the issue.” Id. at ¶ 31. “[I]f a defendant

submits competent, credible evidence establishing that a plaintiff is a smoker, then the

burden should shift to a plaintiff to establish that the exposed person is not a smoker as

defined in R.C. 2307.91(DD).” Id. at ¶ 32. Because it is the plaintiff that must establish

a prima facie case if the exposed person is a smoker, the plaintiff has the ultimate burden

to prove the exposed person is not a smoker to prevent the case from being dismissed.

Id.

       {¶8} Upon the first remand, the trial court made a determination on Paul’s

smoking status without considering his medical records. Because the trial court failed to

properly consider the evidence that had been submitted by both parties, we again

remanded the matter in Fields v. CSX Transp., Inc., 197 Ohio App.3d 561,

2011-Ohio-6761, 968 N.E.2d 70 (8th Dist.) (“Fields II”).

       {¶9} Upon the second remand, the trial court reviewed the evidence that had been

submitted by both parties and found in pertinent part as follows:

             The statute is very specific in its definition of a smoker [footnote
       omitted], it does not encompass the occasional use of tobacco. There is no
       evidence of Mr. Fields’ rate of consumption, if any, between 1989 and
       1996.
              Therefore, the most probable inference to be drawn from all the

       evidence is that Mr. Fields was not a smoker as defined by HB 292 from

       1989 to 1997. This Court, having considered all the evidence submitted by

       both Defendant and Plaintiff, hereby overrules Defendant’s Motion for

       Administrative Dismissal.”

       {¶10} It is from this ruling that CSX timely appeals. CSX’s sole assignment of

error is as follows:

       The trial court erred in finding that Paul Fields (decedent) was not a
       “smoker” pursuant to the Ohio asbestos statute.

       {¶11} In this appeal, CSX argues that the trial court’s ruling was based on

unfounded speculation and that the trial court did not properly weigh the evidence. Upon

our review, we must determine whether the trial court’s decision was against the manifest

weight of the evidence.

       {¶12} While CSX suggests that the trial court only considered portions of the

medical records while ignoring other information, we are not persuaded by its argument.

Consistent with our mandate in Fields II, the trial court “considered all the evidence

submitted by both [parties]” on the issue. While the trial court may not have detailed

every document in its opinion, it is apparent that the court considered all competent,

credible evidence that was provided, including the medical records.

       {¶13} During its review, the trial court attempted to reconcile an apparent

contradiction with Paul’s history of smoking. The court recognized a statement in a
2007 hospital record from Dr. Ryan D. Steinmetz that Paul had quit smoking 11 years

ago. The court noted that this contradicted the sworn statements of Pearl Fields, who

stated that Paul began to try to quit smoking in 1989 and quit in 1991, and of a coworker,

George Leslie, who stated that Paul was “trying to quit” and did quit prior to Paul’s

retirement in 1989.    The trial court then recognized that the asbestos questionnaire

contained a handwritten indication that Paul began smoking in 1946, which when

considered with evidence of a 40-year history of a pack per day, would comport with the

statement that Paul quit by 1989. The court found that a reasonable inference could be

made that Paul may have had an occasional cigarette from 1989 until 1996, noting that

“[i]t is highly unlikely that a pack-per-day smoker could hide that habit from a man he

spent a full day with at work or the woman he was living with, the smell of twenty

cigarettes per day would emanate from his clothing, his skin and his breath.”

      {¶14} CSX argues that the asbestos questionnaire indicated a stop date of 1996 and

that Dr. Steinmetz did not limit the number of years smoked to a maximum of 40. CSX

points to the opinion of plaintiff’s expert, Dr. Rao, who stated that “[a] review of the

medical records indicate [Paul] was a smoker from the age of 21 until 69 for more than 40

pack year[s].” Also, CSX relies on Paul’s medical records, which consistently report

Paul’s history of having been a smoker for over 40 pack years, having quit in 1996.

However, even accepting that Paul may have smoked until 1996 and that he had a history

of more than 40 pack years, this evidence does not conclusively establish his rate of

smoking from 1992 through 1996, which is the pertinent time frame in this matter.
       {¶15} Pursuant to R.C. 2307.91(DD), a “smoker” is a person who has smoked the

equivalent of one-pack year during the last 15 years. A “pack year” is a term used to

“measure the amount a person has smoked over a long period of time.” NCI Dictionary

of Cancer Terms, http://www.cancer.gov/dictionary (accessed Jan. 22, 2013). A pack

year “is calculated by multiplying the number of packs of cigarettes smoked per day by

the number of years the person has smoked. For example, 1 pack year is equal to

smoking 1 pack per day for 1 year, or 2 packs per day for half a year, and so on.” Id.

“There is no provision explaining how one must prove he is a nonsmoker. It is true that,

by implication, a party must have smoked less than one pack per year during the last 15

years to be deemed a nonsmoker.” Penn, 2007-Ohio-7145, at ¶ 26.

       {¶16} Fifteen years prior to Paul’s diagnosis with lung cancer was July 1992, and

there is no contention that he smoked after 1996. Thus, Paul only would have smoked

for three and one-half to four and one-half years within the relevant 15-year period.

Applying the above calculation, to meet the statutory definition of a “smoker,” Paul

needed to have smoked an average of at least five cigarettes per day during that time.

       {¶17} While CSX points to several medical records indicating that Paul quit

smoking in 1996, and which note a pack year of use and smoking a pack and a half per

day, these medical records were properly weighed against evidence presented by Pearl to

show that Paul was a nonsmoker during the pertinent time frame. Pearl testified that she

never smoked and could not stand smoke in the house. She stated Paul began to quit

smoking in 1989, when they were married, and he quit altogether in 1991. Paul’s
coworker recalled that Paul had started cutting back on smoking and was not doing any

smoking by the time he retired, which was in 1989. Our review reflects that there was

evidence upon which the trial court could infer that Fields was trying to quit and only may

have had an occasional cigarette during this time. The trial court was free to assess the

credibility of the witnesses when viewed against the evidence submitted by CSX.

Further, unlike the circumstances in Farnsworth, wherein Farnsworth’s own deposition

testimony established that he smoked more than one pack year in the 15 years prior to his

diagnosis, there was no such concession in this case.

       {¶18} When conducting a manifest weight review, every reasonable presumption

must be made in favor of the trial court’s finding, and when the evidence is susceptible of

more than one construction, we are bound to apply an interpretation that is consistent with

the trial court’s decision.     Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,

972 N.E.2d 517, ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1984), fn. 3. Upon thoroughly reviewing the record, we find that the

trial court’s finding that Paul does not meet the statutory definition of a “smoker” is not

against the manifest weight of the evidence and that no manifest miscarriage of justice

occurred. Accordingly, the assignment of error is overruled.1

       {¶19} Judgment affirmed.


       1
           We note that the focus of this appeal was on the trial court’s determination concerning
Paul’s smoking status. The parties did not develop any argument concerning the wrongful-death
claim, and it was not specifically addressed by the trial court. Therefore, this claim remains pending
upon remand.
       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas 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.



SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR
