Heather Isringhausen Gvillo Sep. 10, 2014, 10:17am

COLUMBUS, Ohio (Legal Newsline) – The Ohio Supreme Court recently held that the medical doctor testifying on causation in a former smoker’s asbestos case must be a treating physician and must indicate that the smoking habit, alone, is insufficient to cause the asbestos-related disease for the case to survive.

“One of the statutory prerequisites necessary to establish a prima facie tort action alleging an asbestos claim based upon lung cancer requires a person who is a smoker to demonstrate a diagnosis by a competent medical authority that the exposure to asbestos is a substantial contributing factor,” the court concluded.

Justice Terrence O’Donnell delivered the Sept. 3 opinion, reversing the lower court’s judgment. Justices Maureen O’Connor, Paul E. Pfeifer, Sharon L. Kennedy, Judith L. French and William M. O’Neill concurred.

Defendant Norfolk Southern Railway Company appealed a decision out of the Eighth District Court of Appeals affirming the lower court’s refusal to administratively dismiss claims against the defendant in an asbestos lawsuit.

Claimant Cleo J. Renfrow claims her husband, Gerald Renfrow, was exposed to asbestos while working for Norfolk Southern from 1968 to 1992.

Gerald Renfrow also smoked a pack-and-a-half of cigarettes every day for 50 years.

He developed lung cancer and later died in January 2011.

However, Dr. Laxminarayana C. Rao, the physician retained by the plaintiff to discuss causation, was not a proper “competent medical authority,” meaning Renfrow failed to make a prima facie showing with sufficient evidence as required by Ohio law to prevent the administrative dismissal of the action.

O’Donnell explained that “competent medical authority” refers to 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 specific requirements according to the Revised Code.

While Renfrow failed to provide a written report from his treating physician discussing causation, the court held that the decedent’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.

Norfolk Southern maintains that the lower court ignored the statutory requirements in asbestos cases that a competent medical authority opine that but for the decedent’s exposure to asbestos, the decedent would not have developed lung cancer.

They added that Rao was not a medical doctor who actually treated the decedent and did not have a doctor-patient relationship with Renfrow.

Furthermore, Rao did not state that the decedent’s asbestos exposure was the predominate cause of his lung cancer and that without the asbestos exposure, he never would have developed the illness.

The Supreme Court concluded that Renfrow failed to make the prima facie showing required to withstand dismissal of the claims alleging lung cancer as a result of exposure to asbestos by the defendant.

Pfeifer provided a concurring opinion, stating that the court is putting a “tremendous hardship” on the plaintiff by requiring a testimony from a treating physician, because Veterans Affairs patients, like the decedent, find it “exceedingly difficult to produce” such a testimony.

O’Neill explained in his concurring opinion, that such testimonies are difficult because Veterans Affairs physicians are prohibited from giving expert testimony in all but “exceptional” circumstances.

Regardless, Pfeifer concurs with the majority, questioning whether the outcome would have differed had the counsel subpoenaed one of the Veterans Affairs doctors who treated the decedent.

“At a minimum,” Pfeifer wrote, “that action would have prevented this court from concluding that Cleo Renfrow had abandoned her efforts to comply with the requirements.”

O’Donnell added that Renfrow can still move to reinstate the case upon presentation of proper prima facie evidence in the future.

O’Neill’s opinion emphasizes that this is not the end of the plaintiff’s case.

He elaborated, stating that any plaintiff whose case has been administratively dismissed may move to reinstate the case if the plaintiff ultimately makes a prima-facie showing that meets the minimum requirements.

“In short, we have the cart before the horse here. Asbestos claims are statute driven,” O’Neill wrote. “In this matter, if Mrs. Renfrow does all that she can to secure an expert opinion form her husband’s treating physician and is still unable to attain that opinion, then there will be something to review.”

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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