In 2004, the Ohio Asbestos Reform Statute took effect and included a provision for the administrative dismissal of cases where certain medical criteria could not be met. Since its enactment, the requirements of the medical criteria have been litigated on various levels. The Ohio Supreme Court has found the statute to be constitutional, and some of the lower courts have found certain exceptions to the statute. One exception was articulated by the Eighth District Court of Appeals in Sinnott v. Aqua-Chem, and plaintiffs have attempted to exploit the exception to create a much broader interpretation.
Most recently, the Eighth District Court of Appeals reviewed the issue in Cook v. NL Industries, Inc. In Cook, plaintiff, the estate of a smoking lung cancer victim, brought suit against multiple defendants when his autopsy showed lung fibrosis and asbestos fibers. After the lawsuit was filed, plaintiff was required, under the statute, to provide a statement from a treating physician that the asbestos exposure was a substantial factor in causing his disease and ultimate death. In that regard, plaintiff’s counsel submitted a questionnaire to plaintiff’s treating physicians. Included in the letter was the following statement:
“If you feel you are not an expert in asbestos-related disease and are not qualified to give a statement relating to lung cancer and how asbestos may have been a substantial contributing factor in causing his lung cancer, I am requesting from you that you notify me in writing.”
Both of the treating physicians to whom the questionnaire was submitted declined to render an opinion, stating they were not experts in the pathology of asbestos-related diseases. Plaintiff then attempted to bypass the statute by submitting an expert report from a non-treating physician. The trial court found the expert’s opinion to be lacking under the plain reading of the statute, and administratively dismissed the case.
Plaintiff subsequently appealed the case, asserting that the expert was similarly situated to the doctor in the Sinnott case. In Sinnott, the plaintiff was treating at the VA Hospital. The VA Hospital does not have specific treating physicians, and therefore no physician arguably had a physician-patient relationship as contemplated under the statute. The trial court in Sinnott initially administratively dismissed the case, but the Court of Appeals overturned, finding that it was not the fault of the plaintiff that he could not comply, but rather the staffing of the VA Hospital where plaintiff received treatment.
In Cook, plaintiff asserted that the treating physician’s inability to render an expert opinion due to their lack of knowledge of the pathology of asbestos- related diseases was tantamount to the situation in Sinnott. The trial court disagreed, and the Court of Appeals affirmed.
The Court of Appeals was especially critical of plaintiff’s statement in their questionnaire. The Court of Appeals chastised plaintiff, indicating that an opinion could have been obtained from the treating physician but for the statement included in the questionnaire. The Court of Appeals rejected plaintiff’s request to expand the exception previously articulated in Sinnott.
As a result, another Court of Appeals’ decision has been issued supporting the strict requirements required under the Asbestos Reform Statute for pursuing claims. This case will have a decided effect upon future lung cancer cases, particularly where the plaintiff was a smoker.
If you have any questions regarding Ohio’s Asbestos Reform Statute, or this specific case, or any matter regarding environmental liability for mass tort exposures, please contact one of our Environmental/Mass Tort Practice Group Members.