[Cite as Fields v. CSX Transp., Inc., 197 Ohio App.3d 561, 2011-Ohio-6761.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96831


                                              FIELDS,
                                                  APPELLEE,

                                                     v.

                        CSX TRANSPORTATION, INC.,
                                                  APPELLANT.



                                   JUDGMENT:
                             REVERSED AND REMANDED



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

        BEFORE: S. Gallagher, J., Blackmon, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: December 29, 2011
ATTORNEYS:

Doran & Murphy, P.L.L.C., Michael L. Torcello, Christopher Murphy, and Colleen M.
Blinkoff, for appellee.

Burns White, L.L.C., Patrick C. Booth, David A. Damico, and Ira L. Podheiser, for
appellant.
       SEAN C. GALLAGHER, Judge.

       {¶ 1} Defendant-appellant, CSX Transportation, Inc., appeals the decision of the

Cuyahoga County Court of Common Pleas that found that the decedent was not a smoker

pursuant to R.C. 2307.91(DD). For the reasons stated herein, we reverse the decision and

remand the matter to the trial court for further consideration.

       {¶ 2} In June 2008, plaintiff-appellee, Pearl Fields, as representative of the estate

of Paul H. Fields, filed an action against CSX under the Federal Employers’ Liability Act,

45 U.S.C. 51 et seq., and the Locomotive Inspection Act, 49 U.S.C. 20701 et seq. Pearl

alleged that CSX negligently allowed her husband, Paul, to be exposed to various

substances, including asbestos and asbestos dust, during the course of his employment as a

trainman and conductor for CSX. She further alleged that these exposures caused severe

and permanent injuries, including lung cancer, aggravated the development of Paul’s

respiratory problems, and resulted in his subsequent death.

       {¶ 3} In January 2009, CSX filed a motion to administratively dismiss the

complaint for failure to comply with the prima facie filing requirements of R.C. 2307.92

and 2307.93. The trial court denied this motion and also denied the first motion for

reconsideration thereof. CSX appealed to this court in Fields v. CSX Transp., Inc., 189

Ohio App.3d 268, 2010-Ohio-3877, 938 N.E.2d 68 (“Fields I”). This court reversed the

trial court’s decision and remanded the matter for application of Farnsworth v. Allied

Glove Corp., Cuyahoga App. No. 91731, 2009-Ohio-3890.
      {¶ 4} More specifically, in Fields I, we found as follows:

               The trial court’s decision * * * predates Farnsworth. Clearly, as
      this court stated in Farnsworth, when there is a dispute as to whether a
      person is a smoker, the parties must first submit evidence, and then the trial
      court must review the evidence submitted by both parties to resolve the issue.
      If the defendant submits competent, credible evidence establishing that a
      plaintiff is a smoker, then the burden shifts to the plaintiff to establish that the
      exposed person is not a smoker as defined in R.C. 2307.91(DD) because “the
      plaintiff * * * has the ultimate burden to prove that the exposed person is not
      a smoker.” Farnsworth, 2009-Ohio-3890, 2009 WL 2400867, at ¶ 32.

              If the trial court determines that the exposed person is a smoker,
      “then the plaintiff must meet the requirements under H.B. 292 by filing the
      written report establishing a prima facie case through competent medical
      authority and the other evidence that is required.” Id. at ¶ 25. If the
      exposed person is not a smoker, then “the plaintiff does not have to establish
      a prima facie case * * *.” Id. at ¶ 24.

Fields I at ¶ 23-24. Because the trial court had not resolved the disputed issue of whether

Paul was a smoker, we remanded the matter to the trial court for a determination as

outlined in Farnsworth.

      {¶ 5} Upon remand, Pearl filed a motion for a judicial determination that Paul is a

nonsmoker under the statute. Following a hearing, the trial court granted the motion,

finding that Paul did not meet the statutory definition of a “smoker” under R.C.

2307.91(DD). The court further ordered the case to proceed without requiring a prima

facie showing under the asbestos statute. CSX timely filed this appeal.

      {¶ 6} As an initial matter, we address whether there is a final, appealable order to

confer appellate jurisdiction. The trial court’s order was not merely a determination of

Paul’s smoking status, but rather, the order effectively denied CSX the opportunity for an

administrative dismissal.
      {¶ 7} In In re Special Docket No. 73958, 115 Ohio St.3d 425, 2007-Ohio-5268,

875 N.E.2d 596, the Ohio Supreme Court stated as follows:

              In the case before us, the trial court’s order denies the appellants’
      motion to apply the prima facie filing requirements in R.C. 2307.92, which
      the General Assembly enacted with the intent to “give priority to those
      asbestos claimants who can demonstrate actual physical harm or illness
      caused by exposure to asbestos” and to enable courts to administratively
      dismiss the claims of those claimants who cannot present prima facie
      evidence of an impairment caused by exposure to asbestos. Am.Sub.H.B.
      No. 292, Section 3(B), 150 Ohio Laws, Part III, 3991. If the appellants in
      this matter are unable to challenge the trial court’s finding in an interlocutory
      appeal, they will be unable to obtain the remedy set forth in the legislation
      upon an appeal from a final judgment—it would be meaningless at that point
      either to require a claimant to present prima facie evidence, or to
      administratively dismiss a claimant’s case for failure to present prima facie
      evidence, after the case has proceeded to a final judgment on the merits. As
      we stated in State v. Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852
      N.E.2d 711, at ¶ 18, “without immediate judicial review, that mistake is
      uncorrectable.”

Id. at ¶ 31. See also Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584,

876 N.E.2d 1217 (order that determined the action with respect to the prima facie showing

and prevented a judgment in favor of defendants with respect to the prima facie showing

was final and appealable).

      {¶ 8} Here, the trial court initially denied CSX’s motion for an administrative

dismissal and reconsideration thereof. In Fields I, we reversed the ruling and remanded

the matter for the court to determine whether Paul was a smoker. The trial court resolved

the issue by finding that Paul was not a smoker as defined in R.C. 2307.91(DD). This

determination obviated the prima facie requirements of R.C. 2307.92(C)(1) and (D)(1) and

effectively denied the provisional remedy of an administrative dismissal, which had been
sought by CSX.1 It also prevented CSX’s ability to obtain an administrative dismissal

under R.C. 2307.93(C). Further, as was the case in In re Special Docket No. 73958, a

review of the issue following final judgment would not afford CSX a meaningful or

effective remedy. See also Sinnott at ¶ 24-26.               Therefore, we find that the subject order

is a provisional remedy that satisfies the requirements for a final, appealable order under

R.C. 2505.02(B)(4).

        {¶ 9} In this appeal, CSX has presented three assignments of error for our review.

Because they are related, we shall address them together. The assigned errors provide as

follows:

             1. The trial court erred in finding Paul Fields (Decedent) was not a
        “smoker” pursuant to the Ohio Asbestos Statute.

               2. The trial court erred in determining that the undisputed medical
        records establishing [Paul’s] smoking history were inadmissible hearsay and
        could not be used to establish that [he] was a “smoker” under the Ohio
        Asbestos Statute * * *.

              3. The trial court erred by not considering the “Asbestos
        Questionnaire,” completed by [Paul], which is admissible pursuant to Evid.
        R. 804(B)(3).

        {¶ 10} Am.Sub.H.B. No. 292, Section 3(B), 150 Ohio Laws, Part III, 3991, which

enacted R.C. 2307.91 through 2307.98, created a procedure to prioritize the administration

and resolution of asbestos-related claims. See, generally, Ackison v. Anchor Packing Co.,

120 Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, ¶ 17; Norfolk S. Ry. Co. v. Bogle,

115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919, ¶ 16. The provisions establish

        1
            In Fields I, this court determined that an order that denies a motion to administratively dismiss an
asbestos-related complaint is a final, appealable order.
certain minimal evidentiary requirements for bringing a tort action alleging asbestos claims

and allow for an administrative dismissal without prejudice when a proper showing has not

been made. See R.C. 2307.92 and 2307.93. The Ohio Supreme Court has characterized the

provisions as mere administrative procedures that do not impose any new substantive

burdens or bear upon a plaintiff’s substantive right to recover. See Ackison at ¶ 17; Bogle at

¶ 24.

         {¶ 11} Insofar as these preliminary proceedings are administrative in nature, we

must recognize that the rules of evidence do not strictly apply. “[E]vidence which might

constitute inadmissible hearsay where stringent rules of evidence are followed must be

taken into account in [administrative] proceedings * * * where relaxed rules of evidence

are applied.” Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41, 44, 430

N.E.2d 468. While the discretion to consider hearsay evidence cannot be exercised in an

arbitrary manner, “[s]tatements that would elsewhere be excluded as hearsay will be

admissible in an administrative proceeding where they are not inherently unreliable, and

may constitute reliable, probative, and substantial evidence.” Vinci v. Ohio State Bd. of

Pharmacy, Tuscarawas App. Nos. 2008 AP 08 0052 and 2008 AP 08 0053,

2010-Ohio-451, ¶ 118.2

         {¶ 12} In Fields I, this court remanded the case to the trial court for a determination

whether Paul was a smoker for purposes of applying R.C. 2307.92 and 2307.93. On


         2
             We recognize that in Farnsworth, 2009-Ohio-3890, this court stated that the parties must submit evidence
that would be admissible under the rules of evidence with regard to a smoker dispute. Id. at ¶ 31. However, this is
not to say that a party must establish the admissibility of the evidence at the administrative stage of the proceedings,
where a relaxed evidentiary standard is applied.
remand, the court found that Paul did not meet the statutory definition of a “smoker”

without giving credibility to evidence submitted by both parties. Rather than applying a

relaxed evidentiary standard, the court refused to consider Paul’s own medical records and

instead relied solely upon the testimony of his wife, who asserted that Paul had quit

smoking in 1991, more than 15 years prior to his diagnosis with lung cancer. 3 The

accuracy of the medical records was not questioned, and there is nothing to suggest that the

records are not reliable. Furthermore, it is undeniable that records containing a medical

history of smoking would be reflective of and relevant to a person’s smoking status.

        {¶ 13} As this court recognized in Farnsworth and Fields I, a trial court must review

evidence, including evidence of the exposed person’s medical history submitted by both

parties to resolve whether the exposed person is a smoker. The medical records submitted

in this matter consistently report Paul’s history of having been a smoker for over 40 pack

years, having quit in 1996. The trial court abused its discretion in not considering this

evidence.

        {¶ 14} This is not to say that the medical records are absolute evidence that Paul was

a smoker. Rather, the medical records as well as Pearl’s affidavit are among the evidence

that must be considered by the trial court in making its determination. So long as the trial

court’s determination is supported by competent, credible evidence in the record, its

decision should be upheld. See Farnsworth, 2009-Ohio-3890, at ¶ 42 (recognizing that an



        3
            To be deemed a smoker under R.C. 2307.91(DD), the person must have smoked the equivalent of
“one-pack year” during the last 15 years. A “pack year” is the average number of packs of cigarettes smoked per day
multiplied by the number of years the person has smoked.
appellate court should not substitute its judgment for the trial court’s when the factual

findings are supported by some competent and credible evidence).

       {¶ 15} Additionally, notwithstanding that the rules of evidence are to be relaxed at

the administrative stage of the proceedings, the trial court erroneously found that “the

medical records are hearsay and not within the exception provided by Evid.R. 803(4) as the

statements were not made for purposes of medical diagnosis or treatment.”               This

determination was not consistent with the rule.

       {¶ 16} Evid.R. 803(4) provides for the admissibility of “[s]tatements made for

purposes of medical diagnosis or treatment and describing medical history, or past or

present symptoms, pain, or sensations, or the inception or general character of the cause or

external source thereof insofar as reasonably pertinent to diagnosis or treatment.” The staff

notes to the rule provide: “The circumstantial guaranty of trustworthiness of this exception

is derived from the assumption that a person will be truthful about his physical condition to

a physician because of the risk of harmful treatment resulting from untruthful statements. *

* * The exception is limited to those statements made by the patient which are reasonably

pertinent to an accurate diagnosis and should not be a conduit through which matters of no

medical significance would be admitted.” Staff Notes to Evid.R. 803(4).

       {¶ 17} “When examining the admissibility of hearsay statements under Evid.R.

803(4), the primary inquiry is whether the statements were made for the purposes of

medical diagnosis or treatment, as opposed to some other purpose.” State v. Bradley, Van

Wert App. No. 15-10-03, 2010-Ohio-5422, ¶ 48. As expressed by the Ohio Supreme Court:

“[T]he test under Evid.R. 803(4) goes solely to whether a statement was made for purposes
of medical diagnosis or treatment. If a statement is made for purposes of diagnosis or

treatment, it is admissible pursuant to Evid.R. 803(4).” State v. Dever (1992), 64 Ohio

St.3d 401, 414, 596 N.E.2d 436.

       {¶ 18} There are instances in which a statement may not be made for purposes of

obtaining a medical diagnosis or treatment, as may arise in the course of the examination of

a child-abuse or rape victim or with regard to personal-injury claims. In Hatfield v.

Andermatt (1988), 54 Ohio App.3d 188, 561 N.E.2d 1023, relied on by the trial court, the

court found that statements of a bicyclist who was in a collision with a police cruiser

concerning the cause of the injury or the manner in which the accident happened were not

admissible insofar as they were not pertinent to the diagnosis or treatment of the patient.

This is not such a case.

       {¶ 19} Here, the statements reporting Paul’s smoking history were made for

purposes of his medical diagnosis or treatment. A person’s smoking history is regularly

provided to treating physicians in connection with obtaining medical diagnosis or

treatment and is obviously pertinent thereto. Moreover, it would be reasonable for a doctor

to rely on such information, and there is no reason to suspect that a person would be

untruthful about his smoking history. Whether the information was provided before or after

diagnosis of lung cancer is irrelevant. Therefore, Paul’s medical records would be

admissible under Evid.R. 803(4). Further, the evidence could prove to be admissible under

the business-records exception of Evid.R. 803(6) through a qualified witness at trial.

Accordingly, we find that the trial court clearly abused its discretion in failing to consider

this evidence.
       {¶ 20} Insofar as CSX also submitted an asbestos questionnaire purportedly signed

by Paul, much of the document is handwritten, while the pertinent section of the smoking

history is typewritten. CSX argues that the evidence would be admissible as a statement

against interest pursuant to Evid.R. 804(B)(3). CSX further claims that the evidence

qualifies as an adoptive admission under Evid.R. 801(D)(2)(b) because the questionnaire

purportedly was submitted by Paul in the course of other legal proceedings. However,

because the typewritten section is suspect, it was within the trial court’s discretion to

exclude it from consideration at this stage of the proceedings. This is not to say that the

authenticity and reliability of the document could not later be shown.

       {¶ 21} Because the trial court failed to properly consider the evidence before it, we

must again remand the matter to the trial court for compliance with the administrative

provisions. The trial court must follow the mandate herein and also must adhere to this

court’s decisions in Fields I and Farnsworth. We reiterate that in resolving the issue of

Paul’s smoking status, the trial court must consider all competent, credible evidence

submitted by the parties, which would include the medical reports of Paul’s smoking

history. As we stated in Farnsworth: “[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(D). * * * [I]t

is the plaintiff who has the ultimate burden to prove that the exposed person is not a

smoker, since it is the plaintiff who ultimately must establish a prima facie case, if the

exposed person is indeed a smoker, to prevent the case from being dismissed.”

2009-Ohio-3890, at ¶ 32.
      {¶ 22} Accordingly, we sustain the second assignment of error, overrule the third

assignment of error, and decline to address the first assignment of error as it remains

premature.

                                                Judgment reversed and cause remanded.



      BLACKMON, P.J., and CONWAY COONEY, J., concur.
