[Cite as Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010-Ohio-1926.] 

RIEDEL ET AL., APPELLEES, v. CONSOLIDATED RAIL 

CORPORATION ET AL., APPELLANTS. 

[Cite as Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010-Ohio-1926.] 

Torts — Asbestos claims — Non-asbestos claims brought in same suit as asbestos 

claims subject to 2004 Am.Sub.H.B. No. 292 — When claimant fails to 

make necessary prima facie showing required by R.C. 2307.91(A)(1) on 

asbestos claims and court grants motion for administrative dismissal, 

court may sever non-asbestos claims for trial. 

(No. 2009-1070 — Submitted February 16, 2010 — Decided May 6, 2010.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

Nos. 91237, 91238, and 91239, 2009-Ohio-1242. 

__________________ 

PFEIFER, J. 

{¶ 1} The proposition of law presented by the appellants is as follows: 

"An asbestos claim subject to H.B. 292 may not be severed from non-asbestos 

claims arising from the same lawsuit and involving the same indivisible jury." 1

We conclude that the General Assembly did not intend the statutory scheme 

addressing asbestos claims to apply to non-asbestos claims and, therefore, that 

non-asbestos claims can be severed from asbestos claims.

Facts and Procedural History 

{¶ 2} Appellees Jack E. Riedel, Danny R. Six, and Josephine Weldy 

(collectively, "Riedel") separately brought suit against appellants Consolidated 

Rail Corporation, American Premier Underwriters, Inc., and Norfolk Southern 

Railway Company (collectively "Consolidated Rail"), alleging various 

 

1. “H.B. 292” refers to 2004 Am.Sub.H.B. No. 292, 150 Ohio Laws, Part III, 3970, which enacted 

R.C. 2307.91 et seq., Ohio’s asbestos-claims legislation. 
SUPREME COURT OF OHIO

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occupational-disease claims under the Federal Employers' Liability Act, Section 

51 et seq., Title 42, U.S.Code ("FELA") and the Locomotive Inspection Act, 

Section 20701 et seq., Title 49, U.S.Code. Because the complaints included 

claims for asbestosis based on occupational exposure to asbestos, they were 

assigned to the court’s separate asbestos docket, a special docket in the Cuyahoga 

County Common Pleas Court designed to manage the court’s heavy caseload of 

asbestos claims. 

{¶ 3} Consolidated Rail moved for an administrative dismissal, alleging 

that Riedel had failed to make the preliminary prima facie showing required by 

R.C. 2307.93(A)(1). When the court ordered Riedel to make the required 

showing, Riedel offered evidence intended to comply with R.C. 2307.92(B) (any 

person bringing an asbestos claim must make a prima facie showing “that the 

exposed person has a physical impairment, that the physical impairment is a result 

of a medical condition, and that the person's exposure to asbestos is a substantial 

contributing factor to the medical condition”). Finding Riedel’s evidence 

insufficient to establish a prima facie case, the court granted Consolidated Rail's 

motion for administrative dismissal as to the asbestos-related claims, but severed 

the remaining claims and ordered them to be scheduled for trial. 

{¶ 4} On appeal, Consolidated Rail argued that the trial court erred in (1) 

ruling that the administrative-dismissal provisions of R.C. 2307.93 do not apply to 

the non-asbestos claims and (2) severing the non-asbestos claims for trial. 

Consolidated Rail asserted that the court should have administratively dismissed 

all the claims pursuant to R.C. 2307.93(C). 

{¶ 5} The court of appeals affirmed the judgment of the trial court, 

stating, "The administrative dismissal provision is limited to the asbestos-related 

claims that are specified in R.C. 2307.92." Riedel v. Consol. Rail Corp., 8th Dist. 

Nos. 91237, 91238, and 91239, 2009-Ohio-1242, ¶ 13. The court reasoned that 
January Term, 2010 

3 

the General Assembly "could have allowed the court to administratively dismiss 

the entire tort action, but chose to limit R.C. 2307.93(C) to asbestos-related 

nonmalignancy claims, lung cancer claims in a smoker, and wrongful death 

claims." Id. We accepted jurisdiction. Riedel v. Consol. Rail Corp., 122 Ohio 

St.3d 1521, 2009-Ohio-4776, 913 N.E.2d 457. 

Analysis 

{¶ 6} Because this case "requires the interpretation of statutory authority, 

which is a question of law, our review is de novo." State v. Consilio, 114 Ohio 

St.3d 295, 2007-Ohio-4163, ¶ 8, citing Brennaman v. R.M.I. Co. (1994), 70 Ohio 

St.3d 460, 466, 639 N.E.2d 425. 

{¶ 7} R. C. 2307.93(A)(1) provides that a "plaintiff in any tort action 

who alleges an asbestos claim shall file * * * prima-facie evidence of the exposed 

person's physical impairment that meets the minimum requirements specified in 

[R.C. 2307.92(B), (C), or (D)]. R.C. 2307.92(B), (C), and (D) set forth the 

minimum requirements of a prima facie showing in claims alleging injury related 

to exposure to asbestos. This provision plainly indicates that the General 

Assembly intended to require all asbestos-claim plaintiffs, irrespective of the 

action in which the claims are filed, to provide prima-facie evidence of physical 

impairment related to asbestos in order to avoid dismissal. This provision clearly 

cannot apply to claims of injury due to exposure to other toxic substances, such as 

the claims by Riedel of injury due to diesel exhaust. 

{¶ 8} R.C. 2307.93(C) provides that a "court shall administratively 

dismiss the plaintiff's claim without prejudice" when the plaintiff fails to make the 

prima-facie showing required by R.C. 2307.93(A)(1). Consolidated Rail argues 

that the General Assembly's use of "claim" in R.C. 2307.93(C) is broad enough to 

refer to the more comprehensive "tort action," as used in R.C. 2907.93(A)(1). We 

disagree. 
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{¶ 9} The statutory scheme that addresses asbestos claims, R.C. 2307.91 

through 2307.98, is replete with the terms "tort action,” "asbestos claim,” and 

"claim." As far as we can determine, there are no instances in which the General 

Assembly, in referring to a “claim,” clearly intended to encompass the entire tort 

action. We agree with the court of appeals that if the General Assembly had 

intended R.C. 2307.93(C) to administratively dismiss an entire tort action, it 

would have used the term "tort action" instead of the more limited "claim." 2009-

Ohio-1242, ¶ 13. 

{¶ 10} A claim that has been administratively dismissed may be reinstated 

only when the plaintiff is able to make a prima-facie showing as to the asbestos 

claim. R.C. 2907.93(C). Based on Consolidated Rail's interpretation of "claim" 

as encompassing the entire "tort action," non-asbestos claims paired with an 

asbestos claim would remain unresolved, possibly forever, unless the plaintiff 

could make a prima-facie showing as to the asbestos claim. We consider that 

result unreasonable or absurd. Accordingly, it is our duty to construe the statute to 

avoid this result. R.C. 1.47(C); State ex rel. Cooper v. Savord (1950), 153 Ohio 

St. 367, 41 O.O. 396, 92 N.E.2d 390, paragraph one of the syllabus. 

{¶ 11} We conclude that the administrative-dismissal provision of R.C. 

2307.93(C) applies only to asbestos claims, even when the tort action in which the 

claim is brought includes non-asbestos claims. We also conclude that when a tort 

action includes an asbestos claim that is administratively dismissed, non-asbestos 

claims can be severed from the asbestos claim and proceed to trial. Furthermore, 

we conclude that the trial court in this case properly severed the non-asbestos 

claims from the asbestos claims. We affirm the judgment of the court of appeals. 

Judgment affirmed. 

 O’CONNOR, O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

 LUNDBERG STRATTON, J., concurs separately. 
January Term, 2010 

5 

 BROWN, C.J., not participating. 

__________________ 

 LUNDBERG STRATTON, J., concurring. 

{¶ 12} I concur. However, I write separately to address the argument of 

appellants and amicus curiae that severing non-asbestos claims would overburden 

the asbestos docket and undermine judicial economy. They contend that litigating 

non-asbestos claims on the already overloaded asbestos docket would thwart the 

purpose of H.B. 292, which was intended to expedite asbestos cases. 

{¶ 13} The adjudication of the non-asbestos claims is a matter best 

decided at the local level. Once the non-asbestos claims have been severed from 

the asbestos claims, the local court should determine whether the non-asbestos 

claims may be adjudicated on the asbestos docket or should be transferred to the 

court’s general docket. I believe that this is a matter of docket control that is best 

left to court administration at the local level. 

 O’CONNOR, O’DONNELL, and LANZINGER, JJ., concur in the foregoing 

opinion. 

__________________ 

Doran & Murphy, L.L.P., Christopher M. Murphy, and Michael L. 

Torcello; and Mary Brigid Sweeney Co., L.L.P., and Mary Brigid Sweeney, for 

appellees. 

Burns, White & Hickton, L.L.C., David A. Damico, Ira L. Podheiser, and 

Megan L. Zerega, for appellants. 

Gallagher Sharp, Kevin C. Alexandersen, Colleen A. Mountcastle, and 

Holly M. Olarczuk-Smith, urging reversal for amicus curiae, Grand Trunk 

Western Railroad, Inc. 

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