The Ohio Supreme Court held today that when a smoker makes a claim alleging that exposure to asbestos has caused lung cancer, state law requires the claimant to present a diagnosis from a “competent medical authority” showing that the asbestos exposure was a substantial contributing factor to the cancer.

The decision reverses the judgment of the Eighth District Court of Appeals.

Gerald B. Renfrow worked as a brakeman for Norfolk Southern Railway Company from 1968 to 1992. For five decades, he smoked a pack-and-a-half of cigarettes a day. He developed lung cancer and received treatment through the health care system of the U.S. Department of Veterans Affairs (VA) before he died in January 2011.

His wife, Cleo J. Renfrow, sued Norfolk Southern, but the railroad asked the court to dismiss the action, asserting that she had not complied with Ohio’s statutory requirements for filing an asbestos claim, because, among other things, she did not present a diagnosis from a doctor who treated her husband or who had a physician-patient relationship with him. Because the VA had denied her request for a written report from one of her husband’s treating doctors, Renfrow had submitted a report from a board-certified internal and pulmonary medical doctor, Laxminarayana C. Rao, who had not treated her husband or had a doctor-patient relationship with him.

The trial court denied Norfolk Southern’s request, and the Eighth District affirmed the trial court’s decision. The company filed an appeal with the Ohio Supreme Court.

In the court’s unanimous decision, Justice Terrence O’Donnell noted that R.C. 2307.92(C) applies to Renfrow’s case and required her to present “[a] diagnosis by a competent medical authority that the exposed person has primary lung cancer and that exposure to asbestos is a substantial contributing factor to that cancer.”

Justice O’Donnell explained that the term “competent medical authority,” as defined by R.C. 2307.91(Z), requires that the physician “(1) be a board certified internist, pulmonary specialist, oncologist, pathologist, or occupational medicine specialist, (2) actually be treating or have treated and have or had a doctor-patient relationship with the exposed person, (3) not have relied on expert or other reports of third parties, and (4) spend not more than 25 percent of his professional practice in consulting or providing expert services.”

But Rao did not satisfy these statutory requirements, Justice O’Donnell concluded, because Rao neither treated nor had a doctor-patient relationship with Gerald Renfrow, no evidence demonstrated that Rao spent no more than 25 percent of his practice as a consultant or expert, and the report did not establish that the former brakeman’s “exposure to asbestos was the predominate cause of his lung cancer and that to a reasonable degree of medical certainty, without the asbestos exposures his lung cancer would not have occurred.”

Justice O’Donnell added, however, that even though federal law limits VA personnel from providing an opinion or testimony, it does not bar a litigant from issuing a subpoena to a VA official. During arguments before the Ohio Supreme Court, Renfrow’s attorney admitted that he had not subpoenaed the VA doctor who treated Gerald Renfrow.

“Accordingly, Renfrow abandoned her efforts to secure an opinion from a medical doctor whom she had identified as a competent medical authority,” Justice O’Donnell wrote. “Based on these facts, the requirement … that a competent medical authority be a medical doctor who ‘is actually treating or has treated the exposed person and has or had a doctor-patient relationship with the person’ has not denied Renfrow a right to a remedy in this case.”

Although Renfrow did not make the prima facie showing needed to prevent the administrative dismissal of this lawsuit, Justice O’Donnell pointed out that she has the opportunity to reinstate the case if she presents the required evidence to a court in the future.

Justice O’Donnell’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Sharon L. Kennedy, Judith L. French, and William M. O’Neill. Justice Judith Ann Lanzinger concurred only in the judgment of the court. Justices Pfeifer and O’Neill each wrote separate concurring opinions.

Justice Pfeifer noted that the statute creates a “tremendous hardship” for Cleo Renfrow given the VA’s restrictions, and he wondered whether the outcome would have been different if a VA doctor had been subpoenaed.

In his concurring opinion, Justice O’Neill emphasized that Renfrow’s case is not over.

“It is clear that the statute requires her to produce an expert opinion, and it is equally clear that the VA physicians who treated her husband, in all but exceptional circumstances, are prohibited by [federal regulations] from giving expert testimony,” he wrote. “It appears in this case that without special authorization by the appropriate VA official there will be no evidence presented by the VA doctors. This question, however, is not before us today … and will be ripe for review only when all possible means of securing an opinion from the VA doctors have been exhausted.”

Fortunately, plaintiffs have a chance to reinstate asbestos claims that have been dismissed if they show the appropriate minimum evidence, he noted, adding, “[I]f Mrs. Renfrow does all that she can to secure an expert opinion from her husband’s treating physician and is still unable to attain that opinion, then there will be something to review.”

2013-0761. Renfrow v. Norfolk S. Ry. Co., Slip Opinion No. 2014-Ohio-3666.

View oral argument video of this case.

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