[Cite as Turner v. Certainteed Corp., 2016-Ohio-7776.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103475

BOBBY TURNER, ET AL. 

PLAINTIFFS-APPELLEES 

vs. 

CERTAINTEED CORPORATION, ET AL. 

DEFENDANTS-APPELLANTS 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-820027 

BEFORE: Keough, J., Jones, A.J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: November 17, 2016 
ATTORNEYS FOR APPELLANTS 

Richard D. Schuster 

Perry W. Doran, II 

Stephen C. Musilli 

Daniel E. Shuey 

Vorys, Sater, Seymour & Pease, L.L.P. 

P.O. Box 1008 

52 East Gay Street 

Columbus, Ohio 43216

ATTORNEYS FOR APPELLEES 

Christopher J. Hickey 

Kevin E. McDermott 

McDermott & Hickey, L.L.C. 

20525 Center Ridge Road, Suite 200 

Rocky River, Ohio 44116 

Keith W. Binder 

Jerome H. Block 

Donald Blydenburgh 

Levy Konigsberg, L.L.P. 

800 Third Avenue, 11th Floor 

New York, New York 10022
KATHLEEN ANN KEOUGH, J.: 

{¶1} Defendant-appellant, Union Carbide Corporation, appeals the trial court’s 

decision denying its renewed motion for administrative dismissal pursuant to R.C. 

2307.92 and 2307.93. For the reasons that follow, we affirm. 

{¶2} In April 2013, plaintiff-appellee, Bobby Turner, was diagnosed with lung 

cancer. In January 2014, Turner and his wife filed a lawsuit against Union Carbide and 

other named defendants,1

 alleging that his lung cancer was caused by his occupational 

exposure to asbestos as a drywall finisher from approximately 1962 until 1978. In 

February 2014, Union Carbide moved to administratively dismiss Turner’s complaint 

pursuant to R.C. 2307.93, contending that Turner failed to submit prima facie evidence 

pursuant to R.C. 2307.92 within the prescribed time. 

{¶3} In response, Turner filed an affidavit stating that during the year of 1956 he 

smoked one cigar a month, but quit thereafter. He stated that he is “a nonsmoker and 

[has] been since approximately 1957.” Additionally, Turner attached some of his 

medical records supporting his contention that he was a nonsmoker. Included was a 

record from his treating pulmonologist, Dr. Jay Kumar, dated April 17, 2013, that 

provides: “Any Info: COPD/50 cigar years”; a record dated April 25, 2013 from 

Regional Medical Center at Bayonet Point, that provides: “He never smoked and does 

 1

Defendants, Certainteed Corporation, Clark Industrial Insulation Co., Georgia Pacific 

Corporation, Kaiser Gypsum Company, Inc., Red Seal Electric Company, R.T. Vanderbilt Company, 

Inc., Technical Products, Inc., and Akron Sales Company are not parties to the appeal. 
not drink”; record dated May 10, 2013 that provides: “Smoking hx from nursing assess 

Current SOME day smoker; Social history: Denies alcohol, drugs, smoker”; a record 

dated April 29, 2013, from Bayonet Point that provides: “never smoker” “Adult cigarette 

smoking history w/in last year — No,” “Currently Uses Tobacco Products — N,” 

Smoking Cessation Information Given — Y”; a record dated April 30, 2013 from 

Bayonet Point that provides: “never smoker,” and provides “no” answers for “adult 

cigarette smoking history w/in last year” and “currently uses tobacco products”; a record 

from Bayonet Point dated May 10, 2013 that provides: “Denies any history of smoking 

or alcohol use”; a record dated May 10, 2013 from Bayonet Point Center that provides 

under “Social History,” “former smoker,” “adult cigarette smoking history w/in last year - 

No,” “Smoking Cessation Information Given: Y.” 

{¶4} Based on Turner’s affidavit response and corresponding medical records, 

Union Carbide withdrew its motion to administratively dismiss Turner’s complaint. The 

case proceeded forward for the next 16 months. 

{¶5} However, approximately two weeks prior to trial in August 2015, Union 

Carbide filed a renewed motion for administrative dismissal challenging the adequacy of 

Turner’s prima facie evidence of physical impairment. Specifically, it claimed that 

based on recently obtained medical records and deposition testimony, Turner is a smoker 

as defined in R.C. 2307.91(DD), and therefore failed to meet the minimum medical 

requirements for a tort action alleging asbestos exposure as prescribed in R.C. 

2307.92(C). In support, Union Carbide identified fourteen instances in Turner’s medical 
records that indicated that Turner smoked cigars for 40 years. Union Carbide attached to 

its motion Turner’s medical records purporting to evidence the same, including some of 

the records Turner attached to his affidavit in response to Union Carbide’s initial motion 

to dismiss in February 2014. Also attached to its motion was deposition testimony from 

Turner’s general physician, Dr. Joel Nunag, that purportedly also established that Turner 

was a smoker. Additionally, Union Carbide attached a medical expert affidavit and 

supporting documents linking the effect of cigar smoking to lung cancer. 

{¶6} Turner opposed Union Carbide’s motion contending that the totality of 

Turner’s medical records and testimony of his treating pulmonologist confirm that Turner 

is not a smoker. Turner also stated that even if Union Carbide’s assertion was true that 

he smoked an occasional cigar until 2012, he still does not qualify as a “smoker” under 

R.C. 2307.91 because the definition does not include cigar smoking or the occasional use 

of tobacco. 

{¶7} Following a hearing on the matter, the trial court denied Union Carbide’s 

motion. In its written opinion, the trial court found that the parties submitted conflicting 

evidence, which included inconsistent references that Turner was an occasional smoker. 

However, the court concluded that the overwhelming majority of notations in Turner’s 

medical records support his claim of no recent smoking history. Accordingly, the court 

held that Union Carbide “failed to prove that Mr. Turner is a smoker, as defined in R.C. 

2307.91(DD).” 
{¶8} Union Carbide appeals, raising as its sole assignment of error that the trial 

court erred when it denied its renewed motion for administrative dismissal under R.C. 

2307.92 and 2307.93. The following issue is raised Union Carbide: 

In an asbestos tort action alleging lung cancer, when there is evidence that a 

plaintiff has smoked in the past fifteen years, does the plaintiff have the 

burden of proving, through a “written report of a competent medical 

authority,” that he is not a smoker as defined by R.C. 2307.91(DD).2

 

Union Carbide does not challenge the trial court’s ultimate decision that Turner is not a 

smoker; rather, only maintains that the trial court applied the wrong standard and should 

not have weighed the evidence to make that determination. This purely legal issue 

renders this court’s review de novo. See Squire, Sanders & Dempsey, L.L.P. v. 

Givaudan Flavors Corp., 8th Dist. Cuyahoga No. 92366, 2009-Ohio-2490, ¶ 38 (where a 

court has misstated the law or applied an incorrect legal standard, giving rise to a purely 

legal issue on appeal, the reviewing court applies a de novo review). 

{¶9} Essentially, this case centers around the question of when there is conflicting 

evidence of plaintiff’s smoking status, does the plaintiff need to present a written report 

of competent medical authority to withstand his burden of proving he is a nonsmoker. 

This court provided the answer to this question in Farnsworth v. Allied Glove Corp., 8th 

Dist. Cuyahoga No. 91731, 2009-Ohio-3890. 

 2

Union Carbide acknowledges, and we agree, that the trial court erroneously concluded that 

Union Carbide was required to prove Turner is a smoker. The law is clear that the plaintiff bears 

this burden. However, Union Carbide does not raise this issue as reversible error. 
{¶10} In Farnsworth, this court held that when there is a dispute as to whether an 

exposed person is a smoker, the parties must first submit evidence regarding his smoker 

status and then the trial court must review the evidence submitted by both parties to 

resolve the issue. Id. at ¶ 31. If the defendant submits competent, credible evidence 

establishing that the exposed person is a smoker, then the burden shifts to the plaintiff to 

establish that the exposed person is not a smoker as defined in R.C. 2307.91(DD) because 

“the plaintiff * * * has the ultimate burden to prove that the exposed person is not a 

smoker[.]” Id. at ¶ 32. 

{¶11} However, Union Carbide asks this court to modify Farnsworth because of 

the Ohio Supreme Court’s subsequent decision in Renfrow v. Norfolk S. Ry. Co., 140 

Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173. Union Carbide contends that 

although Farnsworth properly placed the burden on the plaintiff to prove the smoking 

status, it improperly ignored and deleted the statutory requirement that a plaintiff meet 

that burden through a “written report of a competent medical authority” as provided in 

R.C. 2307.91(DD). It argues that Renfrow mandates that Farnsworth be modified to 

include that the plaintiff must establish that the exposed person is not a smoker with “a 

written report of a competent medical authority.” We disagree because this court 

considered and rejected this argument in Farnsworth. Additionally, our reading of the 

Ohio Supreme Court’s decision in Renfrow does not require this court to revisit this issue. 

{¶12} In Farnsworth, this court considered and addressed Union Carbide’s current 

argument, by concluding that the determination of whether a person is a smoker is a 
threshold question that must be determined prior to requiring a plaintiff to submit a 

written report of a competent medical authority as prima facie evidence of the exposed 

person’s physical impairment that meets the minimum medical requirements under R.C. 

Chapter 2307. 

{¶13} Robert Farnsworth and his wife filed an asbestos-related claim alleging that 

Robert’s exposure to asbestos during his employment caused him to develop lung cancer. 

 In response, the defendants moved to administratively dismiss the case, arguing that 

because Robert was a smoker for purposes of R.C. 2307.92 and 2307.93, the Farnsworths 

were required to establish a prima facie case through competent medical authority, which 

they failed to do. In their brief in opposition, the Farnsworths argued that Robert was not 

a smoker as defined under R.C. 2307.91(DD) and, therefore, they did not have to 

establish a prima facie showing. The trial court found that Robert was a smoker and 

granted the defendants’ motion to administratively dismiss the case. The Farnsworths 

appealed. 

{¶14} The Farnsworth court noted, 

R.C. 2307.92 outlines the minimum medical requirements for tort actions 

alleging asbestos claims. R.C. 2307.92(B), (C), and (D), respectively, 

prohibit plaintiffs from maintaining asbestos actions based upon: (1) 

nonmalignant conditions; (2) smoker lung-cancer claims; * * * and (3) 

wrongful death, unless the plaintiffs in each of these situations can establish 

a prima facie showing in the manner described in R.C. 2307.93(A). 

Farnsworth, 8th Dist. Cuyahoga No. 91731, 2009-Ohio-3890, at ¶ 10. 

{¶15} Under R.C. 2307.93(A)(1), any plaintiff who bases his claim on R.C. 

2307.92(B), (C), or (D), must file a written report and supporting test results constituting 
prima facie evidence of the exposed person’s physical impairment. A defendant may 

challenge the adequacy of the plaintiff’s prima facie evidence under R.C. 2307.93(B). 

However, 

the court “shall determine from all of the evidence submitted” whether the 

proffered prima facie evidence meets the minimum requirements for cases 

involving nonmalignant conditions, smoker lung cancer, or wrongful death, 

as specified in R.C. 2307.92(B), (C), or (D). If the court finds, after 

considering all of the evidence, that the plaintiff failed to make a prima 

facie showing, then “[t]he court shall administratively dismiss the plaintiff’s 

claim without prejudice.” R.C. 2307.93(C). 

Id. at ¶ 12. 

{¶16} On appeal, the Farnsworth defendants argued that a lung cancer claimant 

who contends that he is exempt from establishing a prima facie case must bear the burden 

of proving he is exempt through competent medical authority. The Farnsworths argued 

that the defendants had the burden to prove through competent medical authority that the 

exposed person is a smoker. 

{¶17} Pursuant to R.C. 2307.91(DD), “smoker” means “a person who has smoked 

the equivalent of one-pack year, as specified in the written report of a competent medical 

authority pursuant to sections 2307.92 and 2307.93 of the Revised Code, during the last 

fifteen years.” Although R.C. 2307.91 does not define a “nonsmoker,” the Tenth District 

noted that “by implication, a party must have smoked less than one pack per year during 

the last 15 years to be deemed a nonsmoker.” Penn v. A-Best Prods. Co., 10th Dist. 

Franklin Nos. 07AP-404, 07AP-405, 07AP-406, and 07AP-407, 2007-Ohio-7145, ¶ 26. 

A “pack year” is a term used to “measure the amount a person has smoked over a long 
period of time.” Fields v. CSX Transp., Inc., 8th Dist. Cuyahoga No. 98612, 

2013-Ohio-822, ¶ 15, quoting NCI Dictionary of Cancer Terms, 

http://cancer.gov/dictionary (accessed Jan. 22, 2013). “A pack year is calculated by 

multiplying the number of packs of cigarettes smoked per day by the number of years the 

person has smoked.” Id. 

{¶18} In examining R.C. 2307.91(DD), the Farnsworth court found that the 

definition of “smoker” is ambiguous. The court stated that: 

The definition refers to terms to define “smoker” that only apply to 

plaintiffs who are smokers. The phrase refers to a medical doctor’s written 

report that a plaintiff must submit to meet the prima facie showing — after 

it has already been determined that the person is a smoker. It is 

nonsensical. It raises the question (or more colloquially, begs the 

question): what comes first, the smoker or the written report; the smoker 

or competent medical authority? 

(Emphasis sic.) Id. at ¶ 23. 

{¶19} The court concluded that “the smoker must come first — since the written 

report, which will include the diagnosis from a competent medical authority, is not 

required until after it has been determined that the person is a smoker.” Id. at ¶ 24. If it 

is determined that the exposed person is a smoker, “then the plaintiff must meet the 

requirements under H.B. 292 by filing the written report establishing a prima facie case 

through competent medical authority and the other evidence that is required. See R.C. 

2307.92 and 2307.93.” Id. at ¶ 25. 

{¶20} Accordingly, the court stated 

[t]hat at this preliminary stage of the litigation, when courts are simply 

attempting to prioritize its asbestos docket, neither plaintiffs nor defendants 
are required to use a competent medical authority — which again is a 

medical doctor who provides a diagnosis for purposes of establishing prima 

facie evidence of an exposed person’s physical impairment — to prove that 

an exposed person is or is not a smoker. 

Id. at ¶ 30. Therefore, a party does not need to use a competent medical authority to 

prove whether a person is a smoker; this is an underlying determination that must be 

made to determine which subsection of R.C. 2307.92 applies — what is the prima facie 

showing, i.e. what are the minimum medical requirements for the tort action alleging an 

asbestos claim. 

Thus, when there is a dispute as to whether a person is or is not a smoker, 

the parties must submit admissible evidence to prove their contention, 

which may very well include the exposed person’s medical history. 

Whether a person is a smoker may be very clear. It may be equally as clear 

that a person is not a smoker. But when there is a question as to whether the 

person is or is not a smoker * * * the trial court must review the evidence 

submitted by both parties to resolve the issue. 

Based on the requirements of these provisions, it logically follows that if a 

defendant submits competent, credible evidence establishing that a plaintiff 

is a smoker, then the burden should shift to a plaintiff to establish that the 

exposed person is not a smoker as defined in R.C. 2307.91(DD). The 

plaintiff has the ultimate burden to prove that the exposed person is not a 

smoker, since it is the plaintiff who ultimately must establish a prima facie 

case, if the exposed person is indeed a smoker, to prevent the case from 

being dismissed. 

Farnsworth, 8th Dist. Cuyahoga No. 91731, 2009-Ohio-3890, ¶ 31-32. 

{¶21} Whether someone is a smoker is a factual determination, not a medical 

determination. Under the law, competent medical authority is necessary to make a 

medical determination that an exposed person’s diagnosis of lung cancer was a result of 

asbestos exposure, and not from smoking. The General Assembly’s intent of requiring 
competent medical authority was for this purpose and not for a determination whether a 

person was a smoker. As the statute reads, a “competent medical authority” is “a 

medical doctor who is providing a diagnosis for purposes of constituting prima-facie 

evidence of an exposed person’s physical impairment that meets the requirements 

specified in section 2307.92 * * *.” R.C. 2307.91(Z). A “competent medical authority” 

is not defined as a medical doctor to prove a plaintiff’s smoker status. 

{¶22} To hold the opposite would mean that all plaintiffs, whether a smoker or 

nonsmoker, would potentially be required to submit a written report from a competent 

medical authority in order to maintain any action alleging an asbestos claim based on lung 

cancer of an exposed person. This requirement is contrary to the statute that requires 

only certain asbestos litigants provide a written report of a competent medical authority. 

See R.C. 2307.92 and 2307.93(A). 

{¶23} Accordingly, plaintiffs are not required to submit “the written report of a 

competent medical authority” until it has been determined that they are smokers. 

Farnsworth at ¶ 40. This conclusion is consistent with the Tenth District’s observation 

that R.C. 2307.92 and 2307.93 fails to impose any requirement upon a nonsmoker 

alleging an asbestos claim based on lung cancer to submit evidence via a competent 

medical authority to indicate his smoking status. Penn, 10th Dist. Franklin Nos. 

07AP-404, 07AP-405, 07AP-406, and 07AP-407, 2007-Ohio-7145, at ¶ 27. 

Accordingly, Union Carbide’s argument on appeal in this case fails much like the 

arguments raised by both the plaintiffs and defendants in Farnsworth — neither plaintiffs 
nor defendants are required to use competent medical authority to prove a person’s 

smoking status. Farnsworth at ¶ 30. 

{¶24} Moreover, the Ohio Supreme Court’s decision in Renfrow does not require 

this court to revisit this issue. Union Carbide contends that the Ohio Supreme Court 

made it clear that when the General Assembly requires a plaintiff to provide a report from 

a “competent medical authority,” courts may not deviate from that requirement. 

{¶25} In Renfrow, the court was presented with an asbestos litigant who was 

attempting to establish a prima facie showing as required under R.C. 2307.92 and 

2307.93 to prevent administrative dismissal. The court was asked to review whether 

plaintiffs who do not have traditional doctor-patient relationships as described in R.C. 

2307.91, like Veteran’s Affairs patients, must still satisfy the minimal medical 

requirements in establishing a prima facie case, and, if so, does Ohio law governing 

asbestos litigation deprive such litigants their substantive rights granted by the Ohio 

Constitution because VA physicians are prohibited from providing an expert report or 

opinion. 

{¶26} In response to the first issue, the Ohio Supreme Court held that a 

smoker-plaintiff who brings an action alleging an asbestos claim based upon lung cancer 

must provide a diagnosis by a competent medical authority that the exposed person has 

primary lung cancer and that the exposure to asbestos is a substantial contributing factor. 

This requirement applies equally to VA patients. 
{¶27} The Ohio Supreme Court concluded that the physician who issued the report 

in support of Gerald Renfrow’s case did not satisfy the definition of “competent medical 

authority” because he did not treat Renfrow or have a doctor-patient relationship with him 

as required by R.C. 2307.91(Z). Additionally, the report did not establish that Gerald 

Renfrow’s exposure to asbestos was the predominate cause of his lung cancer. 

{¶28} However, the court did not decide if a strict application of “competent 

medical authority” would be upheld if an asbestos litigant was prohibited from satisfying 

the definition of competent medical authority. The Renfrow plaintiff contended that the 

“competent medical authority” requirements found under R.C. 2307.91(Z)(2) deprives a 

VA asbestos litigant of substantive rights because it requires the litigant to produce an 

expert report from the VA physician who are prohibited from giving that expert opinion 

under federal law. The Ohio Supreme Court, recognizing this obstacle, noted that while 

federal law prohibits a VA physician from giving an expert report, the law does not 

prohibit a litigant from issuing a subpoena to a VA official for that expert report. The 

Renfrow plaintiff did not issue the subpoena. Therefore, because the plaintiff did not 

attempt to subpoena the VA treating physician, the Ohio Supreme Court held that plaintiff 

still had an available remedy; thus, no substantive rights were violated. 

{¶29} Therefore, whether R.C. 2307.92 and 2307.93 deprived the plaintiff of a 

substantive right under the constitution was not addressed because the case was resolved 

on a procedural deficiency, not on substantive grounds. Therefore, despite the 

nontraditional patient who utilize VA physicians, the statutory requirements must still be 
met, until it is shown that the asbestos plaintiff has exhausted all attempts to comply and 

is prevented under federal law. 

{¶30} Accordingly, as Justice Pfeifer noted in his concurring opinion, “one does 

wonder whether the outcome would have been different had counsel subpoenaed the [VA 

doctors] who treated Renfrow. At a minimum, that action would have prevented this 

court from concluding that Cleo Renfrow had abandoned her efforts to comply with R.C. 

2307.92.” Renfrow, 140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173, at ¶ 34 

(Pfeifer, J., concurring). Thus, the ultimate underlying issue was not resolved — 

whether a strict application of law deprives nontraditional patients access to the courts for 

asbestos litigation. 

{¶31} Contrary to Union Carbide’s assertion in this appeal, no new guidance was 

established by the Ohio Supreme Court in Renfrow regarding how courts should interpret 

the laws governing asbestos litigation. The Ohio Supreme Court merely reiterated that, 

until it can be proven that an asbestos litigant is prohibited from satisfying the 

requirements under Ohio law, to establish a prima facie tort action alleging an asbestos 

claim based on lung cancer requires a person who is a smoker to include a diagnosis by a 

competent medical authority as defined under R.C. 2307.91(Z) that the exposure to 

asbestos is a substantial contributing factor. Renfrow at paragraphs one and two of the 

syllabus. That issue is not in dispute in the case before this court. The issue here is 

whether competent medical authority is needed to prove a threshold question before 
getting to the prima facie evidence stage. That issue was addressed and resolved in 

Farnsworth as previously discussed. 

{¶32} Accordingly and following this court’s holding in Farnsworth, the 

determination of whether the plaintiff is a smoker is a threshold question that the trial 

court considers based on the evidence presented and determines prior to a plaintiff 

submitting prima facie evidence pursuant to R.C. 2307.92 and 2307.93. 

{¶33} Although not specifically challenged by Union Carbide, reviewing the 

evidence presented to the trial court, the court’s decision finding that Turner does not 

meet the statutory definition of a “smoker” is not against the manifest weight of the 

evidence. When conducting a manifest weight review, every reasonable presumption 

must be made in favor of the trial court’s finding, and when the evidence is susceptible of 

more than one construction, reviewing courts are bound to apply an interpretation that is 

consistent with the trial court’s decision. CSX II at ¶ 18, citing Eastley v. Volkman, 132 

Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 21. “An appellate court should not 

substitute its judgment for that of the trial court where some competent and credible 

evidence supports the trial court’s factual findings.” Farnsworth at ¶ 42, quoting 

Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 355, 617 N.E.2d 1136 (1993), 

citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). 

{¶34} The record demonstrates that trial court considered all the evidence 

submitted by both parties on the issue. During its review, the trial court attempted to 

reconcile an apparent contradiction with Turner’s history of smoking. Additionally, our 
review revealed that even within the same medical documents, contradictions appeared 

concerning Turner’s smoking history. The court noted that an “overwhelming majority 

of notations in Mr. Turner’s medical records support his claim of no recent smoking 

history.” The trial court concluded that based on Turner’s medical records, deposition 

testimony by Turner and Drs. Kumar and Nunag, and affidavits of friends and relatives, it 

was more likely that mistakes were made in the notations in Turner’s medical records 

indicating that he was a smoker; or that he was, at best, an occasional cigar smoker. 

{¶35} Accordingly, the record establishes that the trial court had competent, 

credible evidence before it to support its decision finding Turner to be a nonsmoker. The 

trial court’s decision was not against the manifest weight of the evidence. Union 

Carbide’s assignment of error is overruled. 

{¶36} Judgment affirmed. 

It is ordered that appellees recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, JUDGE 

LARRY A. JONES, SR., A.J., and 
EILEEN T. GALLAGHER, J., CONCUR