[Cite as Renfrow v. Norfolk S. Ry. Co., 2013-Ohio-1189.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98715 

CLEO J. RENFROW

PLAINTIFF-APPELLEE 

vs. 

NORFOLK SOUTHERN RAILWAY COMPANY

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-764958 

 BEFORE: Blackmon, J., S. Gallagher, P.J., and E.A. Gallagher, J. 

 RELEASED AND JOURNALIZED: March 28, 2013
ATTORNEYS FOR APPELLANT

Patrick C. Booth 

David A. Damico 

Ira L. Podheiser 

Burns White, L.L.C. 

Four Northshore Center 

106 Isabella Street 

Pittsburgh, PA 15212 

ATTORNEYS FOR APPELLEE

Michael L. Torcello 

Christopher M. Murphy 

Doran & Murphy, P.L.L.C. 

1234 Delaware Avenue 

Buffalo, NY 14209 
PATRICIA ANN BLACKMON, J.: 

{¶1} Appellant Norfolk Southern Railway Company (“Norfolk Southern”) 

appeals the trial court’s denial of its motion to administratively dismiss the complaint of 

appellee Cleo Renfrow (“Mrs. Renfrow”), as personal representative of the estate of 

Gerald B. Renfrow (“Mr. Renfrow”). Norfolk Southern assigns the following error for 

our review: 

I. The trial court erred when it found that the decedent, Gerald 

Renfrow’s treatment at a VA facility meant that he did not have to 

submit a report from a competent medical authority, when he 

presented no medical records indicating that he was exposed to 

asbestos or that asbestos caused his lung cancer. 

{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s 

decision. The apposite facts follow. 

{¶3} Mr. Renfrow was a veteran who served in the United States Air Force as an 

airman from February 15, 1961 to May 7, 1964. Mr. Renfrow later worked for Norfolk 

Southern as a brakeman beginning in 1968 until 1992 when he retired due to back 

problems. For more than 50 years, Mr. Renfrow smoked one-and-one-half packs of 

cigarettes per day. 

{¶4} In March 2010, Mr. Renfrow was diagnosed with lung cancer and utilized 

the Veterans Administration for his healthcare. Mr. Renfrow was treated for lung cancer 

at Richard L. Roudebush VA Medical Center, the CBOC VA Health Care System and 

VA Marion, Indiana. During the course of treatment at the Veterans Administration, Mr. 
Renfrow did not have a regular treating doctor, but a variety of doctors and nurse 

practitioners. On January 22, 2011, Mr. Renfrow passed away while receiving palliative 

care treatment in a hospice care center. 

{¶5} On September 22, 2011, Mrs. Renfrow, as representative of the estate of 

Mr. Renfrow, filed suit against Norfolk Southern alleging asbestos-related injuries under 

the Locomotive Boilers Inspection Act (“LBIA”), seeking relief pursuant to the Federal 

Employers’ Liability Act (“FELA”). Mrs. Renfrow alleged that during her husband’s 

career with the railroad, he was continuously exposed to various toxic substances, 

including diesel exhaust and asbestos, in violation of federal law. Mrs. Renfrow further 

alleged that the exposures to asbestos caused Mr. Renfrow to develop lung cancer. 

{¶6} On April 15, 2012, Norfolk Southern moved to administratively dismiss 

Mrs. Renfrow’s claims, alleging she had failed to comply with the prima facie filing 

requirements of R.C. 2307.92(C). That statute requires a smoker bringing a tort action 

alleging an asbestos claim to provide certain medical documentation before a prima facie 

claim may be made. 

{¶7} Mrs. Renfrow responded by submitting her husband’s Veterans 

Administration’s medical records relating to his treatment for lung cancer. She also 

offered an affidavit from Darl Rockenbaugh, a railroad coworker, detailing Mr. 

Renfrow’s exposure to asbestos throughout his tenure with Norfolk Southern. 

Rockenbaugh, who worked with Mr. Renfrow throughout Indiana, Ohio, Illinois, and 
Michigan averred that from 1968 when Mr. Renfrow was hired, he was exposed to 

asbestos on a regular basis. 

{¶8} Specifically, Rockenbaugh averred that he had first-hand, personal 

knowledge of the use of asbestos containing products on the railroad; that he and Mr. 

Renfrow sometimes worked 8-to-16 hour shifts seven days per week. Rockenbaugh 

averred that the condition of the asbestos insulation was poor from wear and tear, poorly 

maintained, and the two men regularly breathed the asbestos dust. 

{¶9} Rockenbaugh also averred that the locomotives the two men worked on 

contained significant amounts of asbestos throughout the units. He stated that the cabins 

were heated with hot water and the pipes feeding the radiators were wrapped with white 

asbestos insulation. The pipes were at floor level and Rockenbaugh and Renfrow came 

in regular contact with the worn, frayed, and dusty asbestos containing insulation 

throughout their respective tenure with Norfolk Southern. 

{¶10} In addition, Mrs. Renfrow submitted an expert report from Dr. 

Laxminarayana C. Rao. Dr. Rao, is board certified in internal medicine and pulmonary 

medicine; he is also a NIOSH certified B-reader, specifically trained in the detection of 

pneumoconiosis on chest x-ray. 

{¶11} The case proceeded to a hearing, and the trial court denied the motion to 

administratively dismiss. The trial court found that Mrs. Renfrow submitted evidence, 

“consisting of Mr. Renfrow’s hospital records, history of smoking, asbestos exposure, and 
a report from a competent medical authority is sufficient to establish a prima facie case as 

required by R.C. 2307.92 and 2307.93.” Norfolk Southern now appeals. 

Administrative Dismissal

{¶12} In the sole assigned error, Norfolk Southern argues that the trial court 

should have administratively dismissed the complaint because Mrs. Renfrow failed to 

present prima facie evidence from a “competent medical authority” that exposure to 

asbestos was a “substantial contributing factor” to the development of Mr. Renfrow’s 

lung cancer. 

{¶13} On September 2, 2004, Am.Sub.H.B. 292 became effective, and its key 

provisions were codified in R.C. 2307.91 through 2307.98. Farnsworth v. Allied Glove 

Corp., 8th Dist. No. 91731, 2009-Ohio-3890. The statutes require plaintiffs who assert 

asbestos claims to make a prima facie showing by a competent medical authority that 

exposure to asbestos was a substantial contributing factor to their medical condition 

resulting in a physical impairment. Cross v. A-Best Prods. Co., 8th Dist. No. 90388, 

2009-Ohio-3079; Am. Sub. H.B. 292, Section 3(A)(5). 

{¶14} “Substantial contributing factor” is defined as “[e]xposure to asbestos [that] 

is the predominate cause of the physical impairment alleged in the asbestos claim” and 

that “[a] competent medical authority has determined with a reasonable degree of medical 

certainty that without the asbestos exposures the physical impairment of the exposed 

person would not have occurred.” Link v. Consol. Rail Corp., 8th Dist. No. 92503, 

2009-Ohio-6216; R.C. 2307.91(FF)(1) and (2). In Ackison v. Anchor Packing Co., 120 
Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, the Ohio Supreme Court construed 

the statute as requiring that asbestos exposure be a significant, direct cause of the injury to 

the degree that without the exposure to asbestos, the injury would not have occurred. Id. 

{¶15} Directly relevant to this case, specifically because Mr. Renfrow smoked a 

pack and a half of cigarettes per day for more than 50 years, 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 plaintiff in one of these situations can establish a prima facie showing in the manner 

described in R.C. 2307.93(A). 

{¶16} Any plaintiff who bases his claim on any of the three circumstances listed 

in 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” meeting 

the requirements specified in those sections. R.C. 2307.93(A)(1). 

{¶17} Specifically, R.C. 2307.92(C)(1) sets forth the requirements a smoker with 

lung cancer must present to establish a prima facie case, including, evidence from a 

competent medical authority that the exposed person has primary lung cancer, and that the 

exposure to asbestos is a substantial contributing factor; evidence that there was a latency 

period of ten or more years since the exposure and the diagnosis of lung cancer; and 

evidence of either the exposed person’s substantial occupational exposure or evidence 

that the exposure to asbestos was at least equal to 25 fiber per cc years as determined to a 
reasonable degree of scientific probability by a certified industrial hygienist or safety 

professional.1

{¶18} Under R.C. 2307.93(A)(1), defendants may challenge the adequacy of the 

plaintiff’s prima facie evidence. R.C. 2307.93(B) provides that if the defendant does 

challenge the adequacy of the plaintiff’s prima facie evidence, the court “shall determine 

from all of the evidence submitted” whether the proffered prima facie evidence meets the 

minimum requirements for cases involving smoker lung cancer, as specified in R.C. 

2307.92(C). The trial court shall resolve the issue of whether the plaintiff has made the 

prima facie showing required by division (B), (C), or (D) of section 2307.92 of the 

Revised Code by applying the standard for resolving a motion for summary judgment. 

R.C. 2307.93(B). 

{¶19} 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.” Wilson v. AC&S, Inc., 169 Ohio App.3d 720, 2006 

Ohio 6704, 864 N.E.2d 682 (12th Dist.); R.C. 2307.93(C). Summary judgment is 

reviewed de novo on appeal. Parenti v. Goodyear Tire & Rubber Co., 66 Ohio App.3d 

 1

The Ohio Supreme Court has determined that “[t]he prima facie filing 

requirements of R.C. 2307.92 are procedural in nature, and their application to 

claims brought in state court pursuant to the FELA and the LBIA does not violate 

the Supremacy Clause, because the provisions do not impose an unnecessary 

burden on a federally created right.” Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455, 

2007-Ohio-5248, 875 N.E.2d 919. Therefore, the prima facie requirements contained 

in R.C. 2307.92(C)(1) do apply to this case. 
826, 586 N.E.2d 1121 (9th Dist. 1990). Summary judgment is proper only when the 

movant demonstrates that, viewing the evidence most strongly in favor of the 

non-movant, reasonable minds must conclude that no genuine issue as to any material fact 

remains to be litigated, and the moving party is entitled to judgment as a matter of law. 

Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243. 

{¶20} Furthermore, summary judgment “must be awarded with caution. Doubts 

must be resolved in favor of the non-moving party.” Sinnott v. Aqua-Chem, Inc., 116 

Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, citing Murphy v. Reynoldsburg, 65 

Ohio St.3d 356, 359, 1992-Ohio-95, 604 N.E.2d 138. Thus, if a defendant challenges the 

medical evidence presented by a plaintiff, the evidence must be construed most favorably 

for the plaintiff and against the defendant. Id. at ¶ 29. 

{¶21} In the instant case, Norfolk Southern contends the trial court should have 

administratively dismissed the case because Mrs. Renfrow never produced any records 

from her husband’s treating physician or hospitals that discuss asbestos exposure or 

discuss a link between asbestos and his lung cancer. 

{¶22} However, in denying Norfolk Southern’s motion to administratively dismiss 

the case, the trial court relied on our decision in Sinnott v. Aqua-Chem, Inc., 8th Dist. No. 

88062, 2008-Ohio-3806, which addressed the issue of whether a veteran utilizing his 

veterans’ benefits for the treatment of his lung cancer, without a traditional treating 

doctor, is bound by the prima facie filing requirements of R.C. 2307.92(C). 
{¶23} In Sinnott, as well as in the present case, the plaintiff’s treating physicians 

were employed by the Veterans Administration, which we have found to limit plaintiff’s 

ability to experience the typical doctor-patient relationship that was envisioned by the 

statute. There, we recognized that achieving the typical doctor-patient relationship in the 

statute is not a bright line test, nor is it the sole factor in the statute. Id. The fact that 

plaintiff was examined by a doctor employed by the Veterans Administration does not 

diminish the value of the evidence contained in the medical records. Id. 

{¶24} R.C. 2307.91(Z) defines “competent medical authority” as 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 [R.C. 

2307.92] and who meets the following requirements: 

(1) The medical doctor is a board-certified internist, pulmonary 

specialist, oncologist, pathologist, or occupational medicine specialist. 

(2) The medical doctor is actually treating or has treated the exposed 

person and has or had a doctor-patient relationship with the person. 

(3) As the basis for the diagnosis, the medical doctor has not relied, in 

whole or in part, on any of the following: 

(a) The reports or opinions of any doctor, clinic, laboratory, or testing 

company that performed an examination, test, or screening of the 

claimant’s medical condition in violation of any law, regulation, 

licensing requirement, or medical code of practice of the state in which 

that examination, test, or screening was conducted; 

(b) The reports or opinions of any doctor, clinic, laboratory, or testing 

company that performed an examination, test, or screening of the 

claimant’s medical condition that was conducted without clearly 

establishing a doctor-patient relationship with the claimant or medical 

personnel involved in the examination, test, or screening process; 
(c)The reports or opinions of any doctor, clinic, laboratory, or testing 

company that performed an examination, test, or screening of the 

claimant’s medical condition that required the claimant to agree to 

retain the legal services of the law firm sponsoring the examination, 

test, or screening. 

(4) The medical doctor spends not more than twenty-five per cent of 

the medical doctor’s professional practice time in providing consulting 

or expert services in connection with actual or potential tort actions, 

and the medical doctor's medical group, professional corporation, 

clinic, or other affiliated group earns not more than twenty per cent of 

its revenues from providing those services. 

{¶25} Recently, in Whipkey v. Aqua-Chem, Inc., 8th Dist. No. 96672, 

2012-Ohio-918, a case also involving a nontraditional patient, utilizing veterans’ benefits 

for treatment of lung cancer, we reaffirmed our decision in Sinnott. In Whipkey we 

considered it immaterial that plaintiff’s experts were not his treating physicians. Id. We 

concluded that R.C. 2307.92 was not intended to penalize a nontraditional patient like the 

decedent who was properly diagnosed by competent medical personnel and had medical 

records and other evidence to support his claim. Id. 

{¶26} Dr. Rao, is a competent medical authority; he reviewed Mr. Renfrow’s 

medical records, and he opined in pertinent part as follows: 

I have come to the conclusion within a reasonable degree of medical 

certainty that Mr. Renfrow had inoperable lung cancer with brain 

metastasis. * * * I have also come to the conclusion, based upon his 

occupational exposure to asbestos dust and diesel fumes and exhaust, 

that he was occupationally exposed to these carcinogens. Asbestos 

dust and diesel fumes and exhaust are known carcinogens, and 

exposure to these increases the risk of lung cancer substantially. In 

addition he was a smoker. Smoking increases the risk of lung cancer 

substantially in the presence of occupational exposure to asbestos dust, 

diesel fumes and exhaust. Therefore it is my opinion within a 
reasonable degree of medical certainty that occupational exposure to 

asbestos dust, diesel fumes and exhaust in part contributed to the 

development of his lung cancer and eventual death. 

{¶27} Here, without utilizing magic words, Dr. Rao’s opinion supplied the causal 

link between Mr. Renfrow’s occupational exposure to asbestos dust, diesel fumes, and 

exhaust and him developing lung cancer and eventually dying. Dr. Rao opined that Mr. 

Renfrow’s exposure to these known carcinogens, acted synergistically with his cigarette 

smoking to greatly increase the risk of developing lung cancer beyond what would have 

been expected from only smoking or only being exposed to asbestos dust. 

{¶28} Consequently, because Dr. Rao’s report provided the crucial causal link 

between Mr. Renfrow’s occupational exposure to asbestos dust, diesel fumes and exhaust 

and him developing lung cancer, the trial court was on firm ground in concluding that 

Mrs. Renfrow had established a prima facie case as required by R.C. 2307.92 and 

2307.93. 

{¶29} Unlike, for example, the situation we faced in Rossi v. Conrail, 8th Dist. No. 

94628, 2010-Ohio-5788, where decedent’s treating physician’s belief that asbestos 

exposure “may have” played a role in the development of his lung cancer, did not state an 

opinion to a reasonable degree of medical certainty. There, “may have” was purely 

conjecture and could not suffice to make a prima facie case. Id. 

{¶30} We also note that the decedent’s estate in Rossi also offered the opinion of a 

certified B-reader who conducted a records review of decedent’s medical files. However, 

the defendant railroad challenged whether the B-reader met the statutory definition of a 
“competent medical authority” found under R.C. 2307.91(Z). The railroad argued that 

there was nothing in the record to show that B-reader had treated decedent or had a 

doctor-patient relationship with decedent. Instead, the record showed that decedent was 

consistently treated by a single doctor and was never treated by the B-reader. 

{¶31} Unlike the instant case, the decedent in Rossi was without the benefit of our 

pronouncement in Sinnott, 8th Dist. No. 88062, 2008-Ohio-3806, which allows a 

plaintiff who is treated by a team of doctors at a Veterans Administration hospital to 

sufficiently demonstrate a doctor-patient relationship for purposes of R.C. 2307.91(Z). 

Consequently, we were constrained to conclude that no medical authority had 

competently testified to a reasonable degree of medical certainty that decedent’s exposure 

to asbestos was a substantial contributing factor to his lung cancer. 

{¶32} The situation in Holston v. Adience, Inc., 8th Dist. No. 93616, 

2010-Ohio-2482, provides yet another example of conjecture, which is insufficient to 

establish a prima facie case. In Holston, one of plaintiff’s treating physicians, stated in 

pertinent part as follows: “In my medical opinion I feel that Mr. Holstons [sic] work 

history and his history of tobacco use directly contribute to his diagnosis of Lung 

Cancer.” 

{¶33} “I feel” in Holston, is just as inadequate as “may have” in Rossi, and, thus 

failed to establish a prima facie case as required by R.C. 2307.92 and 2307.93. Here, Dr. 

Rao’s expert opinion, within a reasonable degree of medical certainty, laid out the causal 
link between Mr. Renfrow’s occupational exposure to asbestos dust, diesel fumes, and 

exhaust and him developing lung cancer and eventually dying. 

{¶34} Pivotally, R.C. 2307.91(GG) defines “substantial occupational exposure to 

asbestos” as employment for a cumulative period of at least five years in an industry and 

an occupation in which, for a substantial portion of a normal work year for that 

occupation, the exposed person did any of the following: 

(1) Handled raw asbestos fibers; 

(2) Fabricated asbestos-containing products so that the person was 

exposed to raw asbestos fibers in the fabrication process; 

(3) Altered, repaired, or otherwise worked with an asbestos-containing 

product in a manner that exposed the person on a regular basis to 

asbestos fibers; 

(4) Worked in close proximity to other workers engaged in any of the 

activities described in division (GG)(1), (2), or (3) of this section in a 

manner that exposed the person on a regular basis to asbestos fibers. 

{¶35} Here, in addition to Mr. Renfrow’s medical records from the Veterans 

Administration and Dr. Rao’s expert report, Mrs. Renfrow submitted the affidavit of 

Rockenbaugh, her husband’s coworker for more than two decades. As previously stated 

in the affidavit, Rockenbaugh gave a detailed account of Mr. Renfrow’s exposure to 

asbestos and asbestos products on an ongoing basis throughout his long tenure with 

Norfolk Southern. We have upheld the use of this selfsame evidence to establish 

substantial occupational exposure to asbestos. See Hoover v. Norfolk S. Ry. Co., 8th 

Dist. Nos. 93479 and 93689, 2010-Ohio-2894. 
{¶36} Along with Rockenbaugh’s affidavit detailing Mr. Renfrow’s asbestos 

exposure, along with the Veterans Administration’s hospital records documenting his 

diagnosis of lung cancer, history of smoking, as well as the report of Dr. Rao, a 

competent medical authority, Mrs. Renfro provided ample evidence demonstrating that 

her husband’s occupational asbestos exposure was a substantial factor in causing his lung 

cancer. 

{¶37} The above evidence, when viewed collectively, is sufficient to survive an 

administrative dismissal. As such, the trial court did not err when it denied Norfolk 

Southern’s motion to dismiss. Accordingly, we overrule the sole assigned error. 

{¶38} Judgment affirmed. 

It is ordered that appellee recover from appellant 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. 

 

PATRICIA ANN BLACKMON, JUDGE 

SEAN C. GALLAGHER, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR