Ohio Supreme Court sends asbestos case back to trial court to determine if plaintiff is a smoker

By Charmaine Little | Oct 10, 2018

COLUMBUS, Ohio (Legal Newsline) – On Sept. 27, the Supreme Court of Ohio reversed an appeals court judgment that denied Union Carbide's motion for dismissal of an asbestos lawsuit.

The company is challenging whether a man’s alleged smoking habit contributed to his lung cancer diagnosis. Justice Patrick Fischer authored the opinion.

The major question of the case is whether the plaintiff, Bobby Turner, is a smoker. The Supreme Court pointed out plaintiffs that are labeled smokers and suffer from lung cancer after being exposed to asbestos have the burden of proving that it was the asbestos that contributed to the lung cancer. 

The proof can be fulfilled with a diagnosis from a medical expert. Those who don’t smoke don’t have to fulfill the requirement. 

While Turner didn’t attempt to meet this burden of proof in his case, Union Carbide said medical records prove Turner has smoked. The company wanted him to be required to submit a written medical report to prove he’s a nonsmoker.

The Court of Appeals for Cuyahoga County denied this argument and the Supreme Court reversed. The Supreme Court remanded the case to the trial court for that court to decide if Union Carbide properly applied law that would call for a written report from a medical expert that specified Turner smoked what would equal to a pack a year for the last 15 years.

The Supreme Court went on to point out the text in the statutory scheme says a defendant can oblige a plaintiff to satisfy certain requirements like the ones stated previously (proof that he smoked a pack a year for the last 15 years).

Turner filed the lawsuit after he was diagnosed with lung cancer in 2013. He alleged the cancer diagnosis was because he was exposed to asbestos when he worked as a drywall finisher from 1962 to 1978. Union Carbide is the manufacturer of a product that allegedly included asbestos that Turner used during those years.

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