[Cite as Paul v. Consol. Rail Corp., 2013-Ohio-1038.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98716



                                      VICTOR J. PAUL
                                                              PLAINTIFF-APPELLEE

                                                        vs.

                CONSOLIDATED RAIL CORP., ET AL.
                                                              DEFENDANTS-APPELLANTS




                                             JUDGMENT:
                                              AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-767335

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

         RELEASED AND JOURNALIZED:                            March 21, 2013
ATTORNEYS FOR APPELLANTS

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

Christopher Murphy
Michael L. Torcello
Doran & Murphy
1234 Delaware Avenue
Buffalo, NY 14209
EILEEN A. GALLAGHER, J.:

       {¶1} Defendants-appellants, Consolidated Rail Corporation, American Premier

Underwriters, Inc. and Norfolk Southern Railway Company appeal the trial court’s

denial of their motion for an administrative dismissal of plaintiff-appellee Victor Paul’s

claims alleging injury from workplace exposure to products containing asbestos.

Appellants argue that the trial court improperly applied this court’s precedent concerning

asbestos claims brought by a plaintiff who is treated at the Veterans Administration.

For the reasons that follow, we affirm.

       {¶2} In a complaint filed on October 21, 2011, Paul alleged that he was exposed

to asbestos, asbestos dust, diesel fumes and other toxic substances during his

employment with the railroad in violation of the Federal Employers’ Liability Act

(“FELA”), 45 U.S.C. 51 et seq. and, as a result of such exposures, he developed throat

and lung cancer. Appellants moved the trial court to administratively dismiss Paul’s

action for failing to proffer the prima facie evidence required   for a “smoker” plaintiff

to maintain an asbestos-related lung cancer claim under R.C. 2307.92(C).

       {¶3} In response, Paul offered his Veterans Administration medical records

relating to his treatment for lung cancer, an affidavit from a railroad co-worker detailing

Paul’s exposure to asbestos during his employment and an expert report from Dr.

Laxminarayana C. Rao.     Rao is a certified “B-reader” and is board certified in internal

medicine as well as pulmonary medicine. Rao did not treat Paul due to Paul having
been treated by the Veterans Administration but instead reviewed Paul’s medical records

and concluded that the records were consistent with a history of exposure to asbestos

dust and that asbestos contributed to the development of his cancer.

       {¶4} The trial court denied appellants’ motion to administratively dismiss.

Appellants timely filed the present appeal asserting two assignments of error.

                                  Assignment of Error I

       The trial court’s reliance on the Sinnott / [Veterans Administration]
       exception is misplaced as Paul presented no evidence demonstrating
       exposure to asbestos.

                                 Assignment of Error II

       Because Paul had numerous Non-[Veterans Administration] physicians, the
       Sinnott exception is inapplicable.

       {¶5} Regarding appellant’s first assignment of error, there is no dispute in the

present instance that Paul was a smoker within the meaning of R.C. 2307.91(DD).

When the plaintiff who claims that asbestos exposure caused lung cancer is a smoker,

R.C. 2307.92(C) sets forth the requirements plaintiff 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

          {¶6} 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 R.C. 2307.92 by applying

the standard for resolving a motion for summary judgment. R.C. 2307.93(B).

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

failed to make a prima facie showing, then the court must administratively dismiss the

claim without prejudice while retaining jurisdiction to reinstate the case in the event the

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

          {¶8} Our review of a trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241.



        The Ohio Supreme Court has determined that “[t]he prima facie filing
      1


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, syllabus. Therefore, the prima facie
requirements contained in R.C. 2307.92(C)(1) do apply to this case. Hoover v.
Norfolk S. Ry. Co., 8th Dist. Nos. 93479 and 93689, 2010-Ohio-2894, ¶ 9.
Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine

issue of material fact, (2) the moving party is entitled to judgment as a matter of law and

(3) reasonable minds can come to but one conclusion and that conclusion is adverse to

the nonmoving party, said party being entitled to have the evidence construed most

strongly in his favor.      Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679,

1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus; Zivich v. Mentor

Soccer Club, 82 Ohio St.3d 367, 1998-Ohio-389, 696 N.E.2d 201. The party moving

for summary judgment bears the burden of showing that there is no genuine issue of

material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75

Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264.

       {¶9} Appellants argue that in his first assignment of error Paul has failed to

offer evidence of substantial occupational exposure to asbestos, one of the components

of a prima facie case under R.C. 2307.92(C)(1)(c)(i).       Although appellant cites this

court’s decision in Sinnott v. Aqua-Chem, 8th Dist. No. 88062, 2008-Ohio-3806, that

case addressed the ability of a plaintiff who was treated at the Veterans Administration to

satisfy R.C. 2307.92(C)(1)(a)’s prima facie requirement that a plaintiff provide 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.

While relevant to appellants’ second assignment of error, Sinnott has no bearing on the

appellants’ present argument and did not create a new requirement that a plaintiff
demonstrate his substantial occupational exposure to asbestos through his Veterans

Administration records.

      {¶10} 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.

      {¶11} In the present instance, Paul offered the affidavit of Angelo Vinci, one of

his railroad coworkers throughout the 1970s. Vinci averred that during that time period

he and Paul worked with and around asbestos-wrapped pipes and brake shoes. Vinci

averred that the asbestos insulation was poorly maintained and that as a result, he and

Paul regularly breathed asbestos dust. This court has previously upheld the use of

nearly identical evidence to establish substantial occupational exposure to asbestos.

Hoover v. Norfolk S. Ry. Co., 8th Dist. Nos. 93479 and 93689, 2010-Ohio-2894, ¶ 26-28.

 Vinci’s affidavit was sufficient to withstand administrative dismissal on the issue of

Paul’s substantial occupational exposure to asbestos
      {¶12}    Appellant’s first assignment of error is overruled.

      {¶13}    Regarding appellants’ second assignment of error, pursuant to R.C.

2307.92(C)(1)(a), a plaintiff who qualifies as a smoker and brings an asbestos claim

based upon lung cancer must present 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.     A “competent medical authority” is statutorily

defined in R.C. 2307.91(Z) and amongst other requirements, mandates that diagnosis be

provided by a 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).

      {¶14}    In Sinnott, this Court examined the application of the prima facie case

requirements of R.C. 2307.92(C)(1) to a plaintiff whose lung cancer was treated by

physicians at the Veterans Administration. We noted that a plaintiff treating at the

Veterans Administration possessed a limited ability to achieve the typical doctor-patient

relationship envisioned by R.C. 2307(C)(1) and R.C. 2307.91(Z)(2). We explained:

      [A]chieving the typical doctor-patient relationship in the statute is not a
      bright line test. Nor is it the sole factor in the statute. * * * The statute is
      not in place to penalize veterans or other nontraditional patients who were
      properly diagnosed by competent medical authority personnel and have the
      medical records and other evidence to support their claim.

Sinnott v. Aqua-Chem, 8th Dist. No. 88062, 2008-Ohio-3806, ¶ 22.

      {¶15}    Appellants argue that the Sinnott exception should not apply to Paul

because, in addition to his treatment at the Veterans Administration for his lung cancer,

Paul was treated by non-Veterans Administration medical personnel for other medical
conditions, including throat cancer.      Appellants essentially argue that the Sinnott

exception only applies in instances where a plaintiff’s medical treatment, not only for the

lung cancer that is the subject of the prima facie case analysis but for any medical

condition, occurs exclusively at the Veterans Administration.     Appellants are unable to

cite any authority for this proposition within Sinnott or any of our decisions thereafter

because none exists. Sinnott contains no such requirement and we decline to adopt

appellants’ proposed modification.

         {¶16}   In response to Paul’s assertion that his lung cancer was treated

exclusively through the Veterans Administration, appellants attached certain medical

records from Ohio Health Care and Ohio Head and Neck Surgeons, Inc.              However,

appellants fail to cite any portion of these medical records or any other document in the

record that would indicate that these health care providers treated Paul for his lung

cancer.    Appellants offer no argument as to how any treatment Paul received outside the

Veterans Administration for unrelated medical issues is in any way relevant to the

analysis of Paul’s compliance with R.C. 2307(C)(1) for the purposes of his lung cancer

claim.

         {¶17}   The fact that Paul treated outside the Veterans Administration for medical

issues irrelevant to R.C. 2307(C)(1) is of no consequence and the trial court did not err in

applying the Sinnott exception to the present facts.

         {¶18}   Finally, appellants argue that the language employed by Dr. Rao in his

expert report was insufficient to establish that Paul’s exposure to asbestos was a
substantial contributing factor pursuant to R.C. 2307.91(FF). R.C. 2307.91(FF) states:

      (FF) “Substantial contributing factor” means both of the following:

       (1) Exposure to asbestos is the predominate cause of the physical
      impairment alleged in the asbestos claim.

      (2) 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.


      {¶19}   In the present instance, Dr. Rao opined in relevant part:

       * * * I have also come to the conclusion based upon his occupational
      history of exposure to asbestos dust that the presence of bilateral
      diaphragmatic plaque is consistent with a history of exposure to asbestos
      dust. Asbestos dust is a known carcinogen, and all types of cancer,
      including oropharyngeal and lung cancer, occur with increased frequency
      in the presence of occupational exposure to asbestos dust. In addition he
      was a smoker.         Smoking increases the risk of lung cancer and
      oropharyngeal cancer substantially in the presence of occupational
      exposure to asbestos dust. In addition, he was exposed to diesel fumes
      and exhaust which is also a carcinogen. Therefore it is my opinion within
      a reasonable degree of medical certainty that occupational exposure to
      asbestos dust and diesel fumes in part contributed to the development of
      his cancer of the soft palate, uvula and lung.

      {¶20}   We find the present expert opinion satisfactory under the statute and

distinct from the flawed opinions we previously rejected in Rossi v. Consolidated Rail

Corp., 8th Dist. No. 94628, 2010-Ohio-5788 and Holston v. Adience, 8th Dist. No.

93616, 2010-Ohio-2482.     In Rossi, we rejected a treating physician’s opinion that

asserted that asbestos exposure “may have” played a role in the development of the

decedent’s lung cancer.   Rossi at ¶ 6.   We found the language in Rossi failed to state
an opinion to a reasonable degree of medical certainty.

      {¶21}    Similarly, in Holston, we rejected a treating physician’s opinion stating:

“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.”          We found the

doctor’s use of the term “I feel” to be insufficient to state an opinion to a reasonable

degree of medical certainty.

      {¶22}    Contrary to the argument advanced by appellants, Rossi and Holston did

not create a bright line rule requiring substantial-contributing-factor opinions to employ

magic words or phrases precisely mirroring the statutory language in R.C. 2307.91(FF).

      {¶23} Here, without utilizing magic words precisely mirroring the statutory

language of R.C. 2307.91(FF), Dr. Rao’s opinion supplied the causal link between

Paul’s occupational exposure to asbestos dust and his development of lung cancer. As

such, the trial court was on firm ground in concluding that Paul had established a prima

facie case as required by R.C. 2307.92 and R.C. 2307.93.

      {¶24}    Appellant’s second assignment of error is overruled.

      {¶25}    The judgment of the trial court is affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said lower 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.




EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
PATRICIA A. BLACKMON, J., CONCUR
