On Sept. 4, 2014, the Supreme Court of Ohio granted a reversal for a railroad client, represented by Burns White Members David A. Damico and Ira L. Podheiser, in a tort action involving asbestos exposure. The initial motion requested administrative dismissal due to the plaintiff’s failure to demonstrate through medical evidence that the decedent’s lung cancer was caused by asbestos exposure, as required by Ohio’s asbestos statute. It was initially denied by the trial court and the Ohio Court of Appeals subsequently affirmed this decision. Our client then sought discretionary review with the Supreme Court of Ohio, which was granted earlier this year.
In instances where the claimant is a “smoker” as defined by the Ohio Asbestos Statute, the statute requires that a demonstrated diagnosis be made from a competent medical authority treating the person exposed to asbestos to establish a prima facie case that asbestos exposure caused the claimant’s lung cancer. The statute further requires that only a treating physician can qualify as a “competent medical authority.”
The plaintiff in the case, the administrator of her late husband’s estate, alleged under the Federal Employers’ Liability Act (FELA) that her husband’s lung cancer was caused by asbestos exposure as a result of his railroad employment. The decedent, who was also a heavy smoker for 50 years, received treatment for his lung cancer through the Veterans Administration (VA) health-care system. The plaintiff claimed that she was prohibited from utilizing the opinions of the physicians who treated her husband at the VA facility by operation of VA regulations. Instead, the plaintiff submitted a medical report from a doctor who was board certified in internal and pulmonary medicine but hadn’t treated the decedent. Both the trial court and the Court of Appeals held that, due to the fact that the VA doctor’s opinion was unavailable, the plaintiff was free to use the opinion of a non-treating physician. In addition, both lower courts rejected arguments by the railroad that the non-treating physician’s opinion was itself defective in that it did not demonstrate that asbestos exposure was the “but for” cause of the decedent’s lung cancer.
The Supreme Court of Ohio unanimously reversed both lower courts, holding that: (1) that the use of the non-treating physician’s opinion violated the express provisions of the statute; and (2) even if the doctor had treated the decedent, his opinion was defective since it did not state that decedent’s lung cancer was a “but for” cause of his illness. In addition, the Supreme Court held that the plaintiff effectively abandoned her claim that the VA doctor who treated the decedent was actually unavailable since she did not subpoena him or attempt to appeal the VA’s initial determination that the doctor would not be permitted to provide evidence in this matter.
Note: The results obtained in a particular case are heavily dependent on the facts and the law specific to that case.