Burns White Appellate Practice Group wins reversal in Ohio asbestos case

Dec 7, 2010 | News


Pittsburgh, Nov. 24, 2010 – The Eighth Appellate District Court of Appeals of Ohio in Cuyahoga County in a ruling issued on Nov. 24, 2010, reversed and remanded the case of Rossi vs. Consolidated Rail Corporation, overturning an original ruling handed down in favor of the estate of Robert A. Rossi in the Cuyahoga County Court of Common Pleas. The appeal required the appellate court to interpret key provisions of the Ohio Asbestos Statute.

Mr. Rossi worked for Consolidated Rail Corporation and allegedly died as a result of complications stemming from lung cancer. Plaintiff’s counsel cited multiple medical reports to support the contention that this case met the prima facie requirements of the Ohio Asbestos Statute. The Cuyahoga County Court of Common Pleas initially ruled in favor of Mr. Rossi.

Arguing on appeal for the Consolidated Rail Corporation, Burns White Appellate Group Practice Chair Ira Podheiser and associate Patrick Booth claimed that the plaintiff’s two medical expert reports were insufficient to prove that asbestos was a substantial contributing factor in the development of the lung cancer. The first expert was Mr. Rossi’s treating physician, who testified that Mr. Rossi’s asbestos exposure “may have” caused the lung cancer, but equivocated as to the certainty that the disease was actually caused by exposure to asbestos. The second physician did not meet the statutory definition of a competent medical authority because he evaluated the X-rays posthumously and therefore never had treated Mr. Rossi, nor had a doctor-patient relationship with Mr. Rossi.

The appellate court sided with Consolidated Rail Corporation, agreeing that the physician reports could not prove to a reasonable degree of medical certainty that asbestos exposure substantially contributed to the lung cancer. Therefore, the case must be administratively dismissed. The case was reversed and remanded back to the Cuyahoga County Court of Common Pleas with directions to administratively dismiss the asbestos claim. The court’s opinion indicates that, in future cases, it will require medical experts to opine with a greater degree of certainty that asbestos exposure caused a claimant’s lung cancer.

Learn more about Ira Podheiser here.