Cook v. NL Industries, Inc.

[Cite as Cook v. NL Industries, Inc., 2013-Ohio-5119.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
Nos. 98911 and 99522

CHRIS COOK, INDIVIDUALLY, AND
AS EXECUTOR OF THE ESTATE OF
DANIEL COOK, ET AL.
PLAINTIFFS-APPELLANTS

vs.

NL INDUSTRIES, INC., ET AL.
DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-705551

BEFORE: Blackmon, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: November 21, 2013
ATTORNEYS FOR APPELLANT

For Chris Cook Ind., Etc.

Joshua P. Grunda
Jessica M. Bacon
Thomas W. Bevan
Patrick M. Walsh
Bevan & Associates, L.P.A., Inc.
6555 Dean Memorial Parkway
Boston Heights, Ohio 44236

ATTORNEYS FOR APPELLEES

For NL Industries, Inc.

Timothy M. Fox
Christine E. Watchorn
Ulmer & Berne, L.L.P.
88 East Broad Street, Suite 1600
Columbus, Ohio 43215

For Donald McKay Smith, Inc.

William D. Bonezzi
Kevin O. Kadlec
Bonezzi Switzer Murphy Polito & Hupp Co., L.P.A.
1300 East 9th Street, Suite 1950
Cleveland, Ohio 44114

For Allied Glove

Bradley K. Shafer
Swartz Campbell
1233 Main Street, Suite 1000
Wheeling, West Virginia 26003
For Beazer East, Inc.

Daniel J. Michalec
Holly Olarczuk-Smith
Gallagher Sharp
Sixth Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115

For Clark Industrial Insulation

John A. Kristan, Jr.
John A. Valenti
Kelley Jasons McGowan Spinelli Hanna & Reber, L.L.P.
1220 W. 6th Street, Suite 305
Cleveland, Ohio 44113

W. Matthew Reber
Kelley Jasons McGowan, et al.
Two Liberty Place, Suite 1900
50 South 16th Street
Philadelphia, Pennsylvania 19102

For Cleaver-Brooks, Inc.

Coleson R. Braham
Daniel P. Carter
Jeffrey W. Ruple
Buckley King, L.P.A.
1400 Fifth Third Center
600 Superior Avenue, East
Cleveland, Ohio 44114
For Edward R. Hart Company

James N. Kline
Bruce P. Mandel
Kurt S. Siegfried
Robert E. Zulandt, III
Ulmer & Berne, L.L.P.
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113

For Ford Motor Company

Stephanie M. Chmiel
Jennifer M. Mountcastle
Thompson Hine, L.L.P.
41 S. High Street, Suite 1700
Columbus, Ohio 43215

Elizabeth B. Wright
Thompson Hine, L.L.P.
3900 Key Center
127 Public Square
Cleveland, Ohio 44114

Stephen T. Persia
Susan Squire Box
Brad A. Rimmel
Nathan F. Studeny
Roetzel & Andress, L.P.A.
222 South Main Street
Akron, Ohio 44308

For Foster Wheeler Corporation

Nicholas L. Evanchan
Ralph J. Palmisano
Evanchan & Palmisano
388 South Main Street, Suite 402
Akron, Ohio 44311

For General Electric Company

Reginald S. Kramer
Oldham Kramer
195 South Main Street, Suite 300
Akron, Ohio 44308

For Goodyear Tire & Rubber Company

Matthew M. Daiker
Perry W. Doran, II
Richard D. Schuster
Vorys, Sater, Seymour, & Pease
52 East Gay Street
P.O. Box 1008
Columbus, Ohio 43216-1008

For Honeywell International, Inc.

Steven G. Blackmer
Willman & Silvaggio, L.L.P.
5500 Corporate Drive, Suite 150
Pittsburgh, Pennsylvania 15237

For Illinois Tool Works, Inc.

Laura Kingsley Hong
Squire Sanders (US), L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114

-v-
For Kelsey-Hayes Company

Diane L. Feigi
Wade A. Mitchell
Edward D. Papp
Baker & Hostetler, L.L.P.
PNC Center
1900 East 9th Street, Suite 3200
Cleveland, Ohio 44114

For Morton International

Jennifer A. Riester
Weston Hurd, L.L.P.
The Tower at Erieview
1301 East Ninth Street, Suite 1900
Cleveland, Ohio 44114

For CL Zimmerman & Ohio Pipe & Supply Company

Thomas R. Wolf
Reminger Co., L.P.A.
101 Prospect Avenue, West, Suite 1400
Cleveland, Ohio 44115

For Okonite Company

Kenneth F. Krawczak
Michele L. Larissey
Swartz Campbell, L.L.C.
The Illuminating Building
55 Public Square, Suite 1120
Cleveland, Ohio 44113

-vi-
For Pneumo Abex, L.L.C.

Susan M. Audey
Christopher J. Caryl
Jennifer Woloschyn
Tucker Ellis, L.L.P.
950 Main Avenue, Suite 1100
Cleveland, Ohio 44113

For Saint-Gobain Abrasives (f.k.a. Norton Company)

Michael D. Eagen
Dinsmore & Shohl, L.L.P.
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202

Daniel L. Jones, Jr.
Dinsmore & Shohl, L.L.P.
255 East Fifth Street, Suite 1900
Cincinnati, Ohio 45202
PATRICIA ANN BLACKMON, J.:

{¶1} In this consolidated appeal, appellant, Chris Cook (“Cook”), executor of the

estate of his father, Charles Cook (“the Decedent”), appeals the trial court’s decision to

administratively dismiss his complaint. Cook assigns the following errors for our review:

I. The trial court erred in administratively dismissing this case.

II. R.C. 2307.92 and 2307.93 are unconstitutional as applied to plaintiff.

III. The trial court erred in finding the Goodrich Reply Memorandum is part
of the trial court record.

{¶2} Having reviewed the record and pertinent law, we affirm in part, reverse in

part and remand to the lower court for further proceedings consistent with the following

opinion. The apposite facts follow.

{¶3} In November 2007, the decedent, a former smoker, who smoked up to two

packs per day for almost 30 years, was diagnosed with lung cancer. In June 2008,

decedent passed away and an autopsy confirmed the lung cancer diagnosis. In addition,

the autopsy uncovered large amounts of fibrosis with asbestos bodies, including severe

interstitial fibrosis in the left ventricle.

{¶4} On September 30, 2009, Cook filed an asbestos-related complaint against

several companies, including, but not limited to NL Industries, Inc., f.k.a. National Lead

Company, Goodyear Tire & Rubber Company, Lockheed Martin Corporation, Ford Motor

Company, Exxon Mobil Oil Company, Individually and as Successor to Mobil Oil
Corporation, as well as “John Does and 1-100 Manufacturers, Sellers, or Installers of

Asbestos-Containing Products” (collectively “appellees”). The complaint alleged injury to

his father and subsequent death from workplace exposure to products containing asbestos.

{¶5} Subsequent to the filing of the complaint, Cook’s attorney sent letters to the

decedent’s treating oncologist, Dr. Edward Walsh, and treating pathologist, Dr. Michael

Doyle, to opine regarding the causal connection between decedent’s exposure to asbestos

and his development of lung cancer. Decedent’s oncologist responded that he was not an

expert in asbestos-related disease, and thus not qualified to provide a statement relating to

the claim. Along the same vein, the decedent’s pathologist responded that he was not an

expert in the pathology of asbestos-related diseases, and could not say without reservation

that decedent’s lung cancer was due to asbestos exposure, and that asbestos exposure

caused his death.

{¶6} On February 14, 2012, appellees moved the trial court to administratively

dismiss the complaint for failure to submit the requisite prima facie evidence of physical

impairment. On July 20, 2012, Cook filed his motion in opposition. In his response,

Cook attached decedent’s autopsy report and a letter from Dr. Alvin J. Schonfeld, who

reviewed the autopsy report. In his letter, Dr. Schonfeld opined that decedent’s lung

cancer and death were caused by his extensive smoking and causally related to workplace

exposure to asbestos.
 {¶7} On August 7, 2012, the trial court held an oral hearing on the matter. The

following day, the trial court granted appellees’ motion to administratively dismiss Cook’s

complaint. Cook now appeals.

Administrative Dismissal

{¶8} In the first assigned error, Cook argues the trial court erred in

administratively dismissing the complaint.

{¶9} 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. Cuyahoga 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. Cuyahoga No.

90388, 2009-Ohio-3079; Am. Sub. H.B. 292, Section 3(A)(5).

{¶10} “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. Cuyahoga 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.

{¶11} Directly relevant to this case, specifically because decedent smoked up to

two packs of cigarettes per day for almost 30 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).

{¶12} 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).

{¶13} Specifically, R.C. 2307.92(C)(1) sets forth the requirements that 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

{¶14} 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 R.C. 2307.92 (B), (C), or (D) by applying the standard for

resolving a motion for summary judgment. R.C. 2307.93(B).

{¶15} 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). Summary judgment is reviewed de

novo on appeal. Hoover v. Norfolk S. Ry. Co., 8th Dist. Cuyahoga Nos. 93479 and 93689,

2010-Ohio-2894, citing Parenti v. Goodyear Tire & Rubber Co., 66 Ohio App.3d 826,

586 N.E.2d 1121 (9th Dist.1990). Summary judgment is proper only when the movant

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.
demonstrates that, viewing the evidence most strongly in favor of the nonmovant,

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. Id., citing Doe v.

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

{¶16} In the instant case, Cook’s counsel sent letters to his deceased father’s treating

physicians, soliciting opinions that exposure to asbestos was a substantial contributing

factor to Cook’s father’s lung cancer and eventual death. In crafting the letters, counsel

included 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.

As a result, and as previously mentioned, both treating physicians declined to render an

opinion. Both physicians indicated that they were not experts in the pathology of

asbestos-related diseases and could not render an opinion.

{¶17} 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.

{¶18} A review of the above statute reveals that the decedent’s treating oncologist

and pathologist clearly meet the requirement of a “competent medical authority” as that

term is defined. Absent from the above statute is any requirement that the “competent

medical authority” be an “expert in asbestos- related disease” in order to render an opinion.
 {¶19} Cook failed to obtain an opinion from his father’s treating physicians. As

such, Cook failed to make a prima facie showing by a competent medical authority that

exposure to asbestos was a substantial contributing factor to his father developing lung

cancer and ultimately dying. Consequently, the trial court was constrained to

administratively dismiss the complaint without prejudice. Under the circumstances, the trial

court did not err in administratively dismissing the complaint.

{¶20} Nonetheless, Cook urges that we examine the application of the prima facie

case requirements of R.C. 2307.92(C)(1) in a similar vein as we did in Sinnott v.

Aqua-Chem, 8th Dist. Cuyahoga No. 88062, 2008-Ohio-3806, and its offspring. Sinnott,

and several cases afterwards, involved plaintiffs whose lung cancer was treated by

physicians at the Veterans Administration. There, in crafting a limited exception, we

noted that a plaintiff treating at the Veterans Administration possessed a limited ability to

achieve the typical doctor-patient relationship envisioned by R.C. 2307.92(C)(1) and R.C.

2307.91(Z)(2).

{¶21} However, unlike Sinnott, in the instant case, the decedent experienced the

typical doctor-patient relationship with Doctors Walsh and Doyle that is envisioned by R.C.

2307.92(C)(1) and R.C. 2307.91(Z)(2). In the instant case, we have no way of knowing

whether Doctors Walsh and Doyle would have provided an opinion if counsel had not

included the requirement that they be experts in asbestos-related diseases.

{¶22} What we do know is that both doctors achieved the typical doctor-patient

relationship with decedent and both were qualified to opine whether exposure to asbestos
was a substantial contributing factor to the decedent developing lung cancer and eventually

dying. As such, a Sinnott-like exception is not warranted.

{¶23} Further, although Cook urges that the autopsy report, along with Dr.

Schonfeld’s letter of interpretation, is deemed sufficient to establish a prima facie showing,

neither Dr. Schonfeld nor the individual who performed the autopsy met the requirement of

a “competent medical authority” as defined by the statute. Pivotally, neither the coroner,

for obvious reason, nor Dr. Schonfeld achieved a typical doctor-patient relationship with

decedent. Accordingly, we overrule the first assigned error.

Constitutional Challenges

{¶24} In the second assigned error, Cook argues the governing statutes are

unconstitutional.

{¶25} Initially, we note, in resolving claims contesting the constitutionality of a

statute, we presume the constitutionality of the legislation, and the party challenging the

validity of the statute, bears the burden of establishing beyond a reasonable doubt that the

statute is unconstitutional. See State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240,

2011-Ohio-2939, 951 N.E.2d 405, ¶ 24; Ohio Grocers Assn. v. Levin, 123 Ohio St.3d 303,

2009-Ohio-4872, 916 N.E.2d 446, ¶ 11.

{¶26} In determining the constitutionality of a legislative act, this court must first

determine whether the party is challenging the act on its face or as applied to a particular

set of facts. Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106,

2004-Ohio-357, 802 N.E.2d 632, ¶ 14. An “as applied” challenge asserts that a statute is
 unconstitutional as applied to the challenger’s particular conduct. Columbus v. Meyer, 152

Ohio App.3d 46, 2003-Ohio-1270, 786 N.E.2d 521 ¶ 31 (10th Dist.).

{¶27} In contrast, a facial challenge asserts that a law is unconstitutional as applied

to the hypothetical conduct of a third party and without regard to the challenger’s specific

conduct. Corsi v. Ohio Elections Commn., 10th Dist. Franklin No. 11AP-1034,

2012-Ohio-4831, 981 N.E.2d 919. To succeed in a typical facial attack, counsel would have

to establish “that no set of circumstances exists under which [the definition] would be

valid.” Id., quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95

L.Ed.2d 697 (1987).

{¶28} Within this assigned error, Cook argues the statute is unconstitutional as

applied to this case because it requires him to provide the impossible. However, as

discussed in the first assigned error, it may be possible to procure opinions from decedent’s

treating physicians, but for counsel’s imposition of additional qualifications not required by

statute. Consequently, Cook, through counsel, improperly created this “impossible”

situation that now forms the basis of his constitutional challenge. As such, Cook’s “as

applied” constitutional attack of the governing statute is not well taken.

{¶29} The Ohio Supreme Court has previously considered various constitutional

challenges surrounding H.B. 292 and its statutory enactments, and has concluded that the

requirements of R.C. 2307.91, 2307.92, and 2307.93 are procedural and remedial in nature

and are not substantive and punitive. See Norfolk S. Ry. Co. v. Bogle, 115 Ohio St.3d 455,

2007-Ohio-5248, 875 N.E.2d 919 (holding that the prima facie filing requirements of R.C.
2307.92 are procedural in nature, and their application to federal claims brought in state court

does not violate the Supremacy Clause); Ackison v. Anchor Packing Co., 120 Ohio St.3d 228,

2008-Ohio-5243, 897 N.E.2d 1118 (holding that the requirements of R.C. 2307.91, 2307.92

and 2307.93 are remedial and procedural and may be applied without offending the

Retroactivity Clause of the Ohio Constitution).

{¶30} Cook vaguely claims that refusing to allow the interpretation of the autopsy

report by a non-treating physician to establish the prima facie showing violates the open

court’s provision of the Ohio Constitution.

{¶31} Ohio Constitution, Article I, Section 16 provides, “[A]ll courts shall be open,

and every person, for an injury done him in his land, goods, person, or reputation, shall

have remedy by due course of law, and shall have justice administered without denial or

delay.” This provision contains two distinct guarantees. First, legislative enactments may

restrict individual rights only “by due course of law,” a guarantee equivalent to the Due

Process Clause of the Fourteenth Amendment to the United States Constitution. Groch v.

Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, citing Sedar v.

Knowlton Const. Co., 49 Ohio St.3d 193, 199, 551 N.E.2d 938 (1990). The second

guarantee in Section 16 is that “all courts shall be open to every person with a right to a

remedy for injury to his person, property, or reputation, with the opportunity for such

remedy being granted at a meaningful time and in a meaningful manner.” Id. at 109,

quoting Sedar at 199.
 {¶32} “The right-to-a-remedy provision of Section 16, Article I applies only to

existing, vested rights, and it is a state law which determines what injuries are recognized

and what remedies are available * * * .” Id. at 150, quoting Sedar at 202. “A right is not

regarded as vested in the constitutional sense unless it amounts to something more than a

mere expectation or interest based upon an anticipated continuance of existing law.” In re

Special Docket No. 73958, 8th Dist. Cuyahoga Nos. 87777 and 87816, 2008-Ohio-4444, ¶

29, quoting In re Emery, 59 Ohio App.2d 7, 11, 391 N.E.2d 746 (1st Dist.1978).

Furthermore, the legislature may not enact laws that take away a remedy to an injured

person. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 476,

1999 Ohio 123, 715 N.E.2d 1062 (1999).

{¶33} We have previously concluded that the enactment of H.B. 292 does not take

away a remedy to an injured party; it “merely affects the method and procedure by which

the cause of action is recognized, protected, and enforced, not the cause of action itself.”

Bland v. Ajax Magnethermic Corp., 8th Dist. Cuyahoga No. 95249, 2011-Ohio-1247,

quoting In re Special Docket No. 73958 at 31, citing Wilson v. AC&S, Inc., 169 Ohio

App.3d 720, 2006-Ohio-6704, 864 N.E.2d 682 (12th Dist.). The Ohio Supreme Court has

characterized the medical evidence criteria, including R.C. 2307.92(B), as mere

administrative procedures, not substantive limits on a plaintiff’s access to the courts. See

generally Bogle and Ackison. Because it has been found that H.B. 292 does not take away a

remedy, its statutory enactments are equally sound.
 {¶34} R.C. 2307.92 and 2307.93 “do not relate to the rights and duties that give rise

to [the] cause of action or otherwise make it more difficult for a claimant to succeed on the

merits of a claim. Rather, they pertain to the machinery for carrying on a suit. They are

therefore procedural in nature, not substantive.” Bogle at 17, quoting Jones v. Erie RR. Co.,

106 Ohio St. 408, 412, 1 Ohio Law Abs. 104, 140 N.E. 366 (1922).

{¶35} As such, Cook has not been denied access to the courts. The statutory

provisions of H.B. 292 do not prevent Cook from pursuing his claims. Moreover, H.B. 292

was enacted in 2004, prior to decedent’s diagnosis of lung cancer. Therefore, the

requirements had been established; Cook merely needed to follow them to maintain his

cause of action.

{¶36} The fact that Cook’s attorney chose to impose an additional and unnecessary

qualification when requesting the opinion did not alleviate the burden to obtain the

necessary opinion to satisfy his prima facie showing. Consequently, Cook’s claim that he is

being denied access to the courts is without merit. Accordingly, we overrule the second

assigned error.

Record on Appeal

{¶37} In the third assigned error, Cook argues the trial court abused its discretion in

finding that the Goodrich v. A.O. Smith Corp., Cuyahoga C.P. No. CV-561244, reply brief

was part of its record.

{¶38} By way of background, in 2007, in the Goodrich matter, defendants filed a

motion to administratively dismiss an asbestos-related complaint. In their motion in
opposition, filed July 26, 2007, Goodrich argued that R.C. 2307.92 and 2307.93 were

unconstitutional because each violated the separation of powers, open courts, due process,

and equal protection clauses of the Ohio and United States Constitutions. On September

19, 2007, after reply memorandums had been filed by certain defendants addressing

Goodrich’s constitutional arguments, the trial court held a hearing on the motion to

administratively dismiss the complaint, and subsequently issued an opinion upholding the

constitutionality of R.C. 2307.92 and 2307.93.

{¶39} Fast forward to 2012, in the instant matter, appellees filed a motion to

administratively dismiss Cook’s asbestos-related complaint. In response to the motion to

dismiss, Cook argued that he was unable to meet the requirements of R.C. 2307.92 because

his father’s treating physicians were not “experts in asbestos-related disease” and thus

unable to render an opinion. In addition, and pertinent to this assigned error, Cook argued

that R.C. 2307.92 and 2307.93 were unconstitutional for the same reasons advanced in

Goodrich.

{¶40} Because Cook’s constitutional arguments had already been addressed and

resolved by the trial court, appellees attached a copy of the trial court’s opinion in Goodrich

to their reply brief, preceded by the following statement:

For sake of brevity, Defendants additionally adopt, as fully rewritten herein,
the arguments made in support of the constitutionality of R.C. 2307.92 and
R.C. 2307.93 made by various Defendants in the Goodrich case. See Notice
of Joinder in Motion to Dismiss Pursuant to H.B. 292 and Reply
Memorandum in Response to Plaintiffs’ Memorandum in Opposition, File &
Serve No. 16092027.
 {¶41} Cook now argues that the Goodrich opinion was not properly part of the trial

court’s record and not part of the record on appeal. We agree.

{¶42} The Goodrich briefing was not filed in the present case, but was only

referenced. This court has no way to examine the briefing within its record. The trial

court also cannot take judicial notice of matters in unrelated cases even where it presided

over those other cases. NorthPoint Properties, Inc. v. Petticord, 179 Ohio App.3d 342,

2008-Ohio-5996, 901 N.E.2d 869, ¶ 16 (8th Dist.).

{¶43} In NorthPoint Properties, this court held that a trial court cannot take judicial

notice of court proceedings in another case. Similarly, “a trial court may not take judicial

notice of prior proceedings in the court even if the same parties and subject matter are

involved.” A trial court “may only take judicial notice of prior proceedings in the

immediate case.” “The rationale for the rule that a trial court cannot take judicial notice of

proceedings in a separate action is that the appellate court cannot review the propriety of

the trial court’s reliance on such prior proceedings because that record is not before the

appellate court.” (Citations omitted.) Id. Accord State v. Jackson, 11th Dist. Trumbull

No. 2004-T-0089, 2006-Ohio-2651, ¶ 36.

{¶44} The trial court erred in determining that the Goodrich briefing should be a

part of the present record because it does not appear in the record and this court has no way

to review it on appeal. If appellees wished to include the briefing in Goodrich, they

needed to at least file it in this case and make it a part of the record. Accordingly, we

sustain the third assigned error.
 {¶45} This cause is affirmed in part, reversed in part and remanded to the lower

court for further proceedings consistent with this opinion.

It is ordered that appellees and appellant share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas 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

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR