Howell v. Consol. Rail Corp.

[Cite as Howell v. Consol. Rail Corp., 2017-Ohio-6881.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104554

KEVIN E. HOWELL
PLAINTIFF-APPELLEE

vs.

CONSOLIDATED RAIL
CORPORATION, ET AL.
DEFENDANTS-APPELLANTS

JUDGMENT:
AFFIRMED AND REMANDED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-846529

BEFORE: Laster Mays, J., Stewart, P.J., and Jones, J.

RELEASED AND JOURNALIZED: July 20, 2017
-i-
ATTORNEYS FOR APPELLANTS

For Consolidated Rail Corporation

Kevin C. Alexandersen
Thomas E. Dover
Holly Olarczuk-Smith
Gallagher Sharp
Bulkley Building, Sixth Floor
1501 Euclid Avenue
Cleveland, Ohio 44115

Dan Himmelfarb
Mayer Brown L.L.P.
1999 K Street, N.W.
Washington, D.C. 20006

For American Premier Underwriters, Inc.

Daniel L. Jones
Thomas H. Stewart
Blank Rome, L.L.P.
1700 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202

ATTORNEYS FOR APPELLEE

Christopher M. Murphy
Colleen M. Blinkoff
Michael Torcello
Doran & Murphy
1234 Delaware Avenue
Buffalo, New York 14209

Kevin E. McDermott
20525 Center Ridge Road, Suite 200
Rocky River, Ohio 44116
ANITA LASTER MAYS, J.:

{¶1} Defendant-appellants, Consolidated Rail Corporation (“Consolidated”),

America Premier Underwriters, Inc. and its predecessors in interest and/or liability

(“APU”), and CSX Transportation, Inc. (“CSX”), (collectively “appellants”) appeal the

trial court’s denial of their motion for administrative dismissal of the complaint of

plaintiff-appellee Kevin E. Howell (“Howell”) for failure to meet the prima facie

requirements of the Ohio Asbestos Reform Act, promulgated under H.B. 292 and codified

at R.C. 2307.91 through 2307.98 (“Ohio Act”) for a smoker raising an asbestos-related

lung cancer claim. We affirm.

I. Background and Facts

{¶2} Howell was employed by Consolidated in 1975, in the railroad signal

maintenance department repairing and maintaining railroad signals and signal houses

(“signals”) located on railroad tracks throughout Northern and Central Ohio. Signals

often contained asbestos boards, and Howell’s duties included handling and drilling holes

in the boards, creating asbestos dust. Howell had also been a heavy smoker for

approximately 45 years.

{¶3} Howell retired in 2013, after 38 years of employment. He was diagnosed

with lung cancer and lung disease in April 2015. On June 4, 2015, Howell filed suit
against appellants, alleging that his condition is due to his exposure to asbestos, asbestos

dust, and toxic dusts and fumes (silica and diesel)1 during his employment.

{¶4} Howell asserts employment-related causes of action for exposure to asbestos

and other toxic substances based on federal, state and local statutes, regulations and

policies, as well as under common law, including negligence, failure to provide a safe

workplace and failure to warn. Pertinent to this appeal, Howell complains that

appellants violated the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. 51, et seq.

Railroad workers are not covered by the Ohio workers’ compensation plan. FELA

provides an avenue for recovery to railroad employees suffering death or injury due to the

rail company’s negligence, including the failure to provide a safe working environment.

{¶5} Appellants counter that Howell’s claims must meet the prima facie filing

requirements of the Ohio Asbestos Reform Act, appellants moved the trial court for an

administrative dismissal under R.C. 2307.92 and 2307.93, on the grounds that Howell

failed to “submit admissible and sufficient evidence” that: (1) he experienced

“substantial occupational exposure to asbestos,” and (2) the exposure to asbestos was a

“substantial contributing factor” for his primary lung cancer. R.C. 2307.92(C); Hoover

v. Norfolk S. Ry. Co., 8th Dist. Cuyahoga Nos. 93479 and 93689, 2010-Ohio-2894, ¶ 8

1 The nonasbestos claims are stayed pending this appeal. This court has
jurisdiction of the instant appeal pursuant to R.C. 2505.02(B)(4)(a)-(b) as a
provisional remedy that prevents a judgment in the action in favor of the appealing
party and the appealing party would not be afforded a meaningful remedy by an
appeal following final judgment as to all claims.
(“R.C. 2307.92(C)(1) sets forth the requirements that a smoker with lung cancer must

present to establish a prima facie case.”).

{¶6} The trial court conducted hearings on the pending motion in April and May

2016, which was ultimately denied:

The facts are that Mr. Howell does have cancer and he was a smoker and he
was exposed to asbestos. The doctor took those facts into consideration,
recognized the synergistic effect of combining asbestos with cigarette
smoking, and he opined that they were both substantial contributing factors
in Mr. Howell’s disease process. That is all that the statute requires.

{¶7} The instant appeal followed.

II. Assignments of Error

{¶8} Appellants present two assignments of error:

I. Howell has not made a prima facie showing of “substantial
occupational exposure to asbestos.”

II. FELA does not excuse Howell from making the prima facie
showings required by H.B. 292.

III. Law and Analysis

{¶9} For purposes of judicial economy, we combine the assigned errors for

review. We affirm the trial court’s denial of appellants’ motion for administrative

dismissal.
 A. Standard of Review

{¶10} A trial court applies a summary judgment standard in assessing the
sufficiency of R.C. 2307.92 prima facie evidence showing under R.C.
2307.93: Upon a challenge to the adequacy of the prima facie evidence
of the exposed person’s physical impairment, R.C. 2307.93(B) directs a
court to resolve the issue whether a plaintiff has made a prima facie
showing required by R.C. 2307.92(B), (C), or (D) by applying the standard
for resolving a motion for summary judgment. Pursuant to R.C. 2307.93(C),
a court “shall administratively dismiss” the plaintiff’s claim without
prejudice upon a finding of failure to make the prima facie showing
required by R.C. 2307.92(B), (C), or (D). However, R.C. 2307.93(C)
requires a court to maintain its jurisdiction over any case that is
administratively dismissed and permits the plaintiff to reinstate the case if
the plaintiff makes a prima facie showing that meets the minimum
requirements specified in R.C. 2307.92(B), (C) or (D).

Renfrow v. Norfolk S. Ry. Co., 140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173, ¶

17.

{¶11} Our review of summary judgment is de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241.

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 of material fact remains to be
litigated, and the moving party is entitled to judgment as a matter of law.
Hoover v. Norfolk S. Ry. Co., 8th Dist. Cuyahoga Nos. 93479 and 93689,
2010-Ohio-2894, ¶12, citing Doe v. Shaffer, 90 Ohio St.3d 388,
2000-Ohio-186, 738 N.E.2d 1243.

Bland v. Ajax Magnethermic Corp., 8th Dist. Cuyahoga No. 95249, 2011-Ohio-1247, ¶ 7.
 B. Discussion

{¶12} FELA cases adjudicated in the state courts of Ohio are subject to the

procedural requirements of R.C. 2307.91, 2307.92 and 2307.93. Norfolk S. Ry. Co. v.

Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d 919, ¶ 8, citing St. Louis S.W.

Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985). “State

procedural rules therefore govern FELA claims in state court.” Id.

{¶13} R.C. 2307.92(C)(1) prescribes the prima facie showing required of

smokers pursuing asbestos claims in Ohio:

No person shall bring or maintain a tort action alleging an asbestos claim
based upon lung cancer of an exposed person who is a smoker, in the
absence of a prima-facie showing, in the manner described in division (A)
of section 2307.93 of the Revised Code, 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. That prima-facie showing shall
include all of the following minimum requirements:

(a) A diagnosis by a competent medical authority that the exposed
person has primary lung cancer and that exposure to asbestos is a
substantial contributing factor to that cancer;

(b) Evidence that is sufficient to demonstrate that at least ten years have
elapsed from the date of the exposed person’s first exposure to
asbestos until the date of diagnosis of the exposed person’s primary
lung cancer. The ten-year latency period described in this division is
a rebuttable presumption, and the plaintiff has the burden of proof to
rebut the presumption.
 (c) Either of the following:

(I) Evidence of the exposed person’s substantial occupational
exposure to asbestos;

(ii) Evidence of the exposed person’s exposure to asbestos at least
equal to 25 fiber per cc years as determined to a reasonable
degree of scientific probability by a scientifically valid
retrospective exposure reconstruction conducted by a certified
industrial hygienist or certified safety professional based upon
all reasonably available quantitative air monitoring data and
all other reasonably available information about the exposed
person’s occupational history and history of exposure to
asbestos.

(Emphasis added.)

{¶14} The competent medical authority’s supporting evidence must demonstrate

that:

[T]he 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.

R.C. 2307.92(C)(1); Hoover, 8th Dist. Cuyahoga Nos. 93479 and 93689, 2010-Ohio-2894

at ¶ 8.

{¶15} A “competent medical authority” must be a board certified:

(1) pulmonary specialist; (2) pathologist; (3) occupational medicine specialist;

(4) oncologist; or (5) internist. R.C. 2307.91(Z)(1). The claimant and doctor must have,

or previously have had, a doctor-patient relationship, and the doctor must have actually
treated the claimant. R.C. 2307.91(Z)(2). The doctor may not expend more than 25

percent of practice time, or earn more than 25 percent of revenues, serving as an expert or

consultant for potential or actual tort actions. R.C. 2307.91(Z)(4).

{¶16} The doctor may not rely on any of the following as a basis for diagnosis:

(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.

R.C. 2307.92(Z)(3)(a)-(c).

{¶17} The Ohio Act was promulgated to:

(1) give priority to those asbestos claimants who can demonstrate actual
physical harm or illness caused by exposure to asbestos; (2) fully preserve
the rights of claimants who were exposed to asbestos to pursue
compensation should those claimants become impaired in the future as a
result of such exposure; (3) enhance the ability of the state’s judicial
systems and federal judicial systems to supervise and control litigation and
asbestos-related bankruptcy proceedings; and (4) conserve the scarce
resources of the defendants to allow compensation of cancer victims and
others who are physically impaired by exposure to asbestos while securing
the right to similar compensation for those who may suffer physical
impairment in the future. Am.Sub.H.B. 292, Section 3(B).
In re Special Docket No. 73958, 8th Dist. Cuyahoga Nos. 87777 and 87816,

2008-Ohio-4444, ¶ 3.

{¶18} While FELA does not preempt the procedural aspects of the Ohio Act,

that is not true of the substantive provisions, “which are governed by federal negligence

standards, with no regard to Ohio state law.” Weitzman v. ISG Cleveland Works Ry. Co.,

8th Dist. Cuyahoga No. 88546, 2007-Ohio-2918, ¶ 8, citing Hinkle v. Norfolk & W. Ry.

Co., 8th Dist. Cuyahoga No. 69815, 1996 Ohio App. LEXIS 3105 (July 18, 1996).

{¶19} FELA requires liberal construction in furtherance of its remedial goals. Id.

The statute is based on the liability of the employer for negligence in protecting the safety

and well-being of its employees. Weitzman at ¶ 8, citing, Bianco v. Philadelphia, Civil

Action No. 93-4828, 1995 U.S. Dist. LEXIS 2530 (E.D.Pa. 1995). A claimant must

demonstrate “‘the traditional common law elements of negligence: duty, breach,

foreseeability, and causation.’” Weitzman at ¶ 9, citing Vance v. Consol. Rail Corp., 73

Ohio St.3d 222, 230, 1995-Ohio-134, 652 N.E.2d 776, quoting Adams v. CSX Transp.,

Inc., 899 F.2d 536, 539 (6th Cir.1990); Robert v. Consol. Rail Corp., 832 F.2d 3, 6 (1st

Cir.1987).
 1. “Substantial Contributing Factor” Requirement

a. Dr. Exten’s Medical Opinion

{¶20} Howell submitted a number of medical documents supporting his claims,

including the report, and a separate narrative report of his treating physician, Dr. Robert

Exten (“Dr. Exten”), a medical doctor specializing in hematology and oncology. Dr.

Exten’s status as a competent medical authority pursuant to R.C. 2307.91(Z) is not in

issue.

{¶21} Dr. Exten diagnosed Howell with primary lung cancer. Appellants argue

that Dr. Exten’s opinion is unsworn and therefore constitutes inadmissable hearsay. We

reject appellants’ argument, which focuses on strict adherence to Civ.R. 56. However,

the Ohio Act provides that a 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 by

applying the standard for resolving a motion for summary judgment,” not that the

evidentiary prescriptions of Civ.R. 56 apply. (Emphasis added.) R.C. 2307.92(B).

{¶22} There is nothing in the plain language of R.C. 2307.92 requiring that

medical opinions be accompanied by sworn affidavits. Turner v. Certainteed Corp.,

2016-Ohio-7776, 66 N.E.3d 802, ¶ 15 (8th Dist.) (requiring the filing of a written report

and supporting test results). Dr. Exten’s opinion is signed, dated, and echoes the requisite

prima facie elements of R.C. 2307.92(C)(1).

{¶23} As we have previously acknowledged, the preliminary proceedings under

the Ohio Act are “mere administrative procedures that do not impose any new substantive
burdens.” Thus, a relaxed evidentiary standard applies. Fields v. CSX Transp., Inc., 197

Ohio App.3d 561, 2011-Ohio-6761, 968 N.E.2d 70, ¶ 10-11 (8th Dist.), citing Ackison v.

Anchor Packing Co., 120 Ohio St.3d 228, 2008- Ohio-5243, 897 N.E.2d 1118, ¶ 17.

“Evidence which might constitute inadmissible hearsay where stringent rules of evidence

are followed must be taken into account in [administrative] proceedings * * * where

relaxed rules of evidence are applied.’” Fields at ¶ 11, citing Simon v. Lake Geauga

Printing Co., 69 Ohio St.2d 41, 44, 430 N.E.2d 468 (1982).

{¶24} Appellants also complain that the affidavit is substantively
insufficient to establish that Howell’s exposure to asbestos
was a “substantial contributing factor” to his impairment,
which is defined as meeting both of the following:

(1) Exposure to asbestos is the predominate cause of the physical
impairment alleged in the asbestos claim.

(2) 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.

R.C. 2307.91(FF).

{¶25} In support of their position, appellants’ rely on Renfrow, 140 Ohio St.3d

371, 2014-Ohio-3666, 18 N.E.3d 1173, where the court determined that the claimant

failed to establish a prima facie case on the grounds that the doctor did not qualify as a

competent medical authority as defined by the Ohio Act. The court also stated that the

dismissal based on a failure of proof did not prevent the plaintiff from moving to reinstate

the case upon presentation of the “proper prima facie evidence in the future.” Id. at ¶ 33.
 {¶26} While the issue of causation was not technically before the court due to

the doctor’s failure to qualify as a competent medical authority, the Renfrow court elected

to discuss its earlier decision in Ackison, 120 Ohio St.3d 228, 2008-Ohio-5243, 897

N.E.2d 1118, ¶ 48, finding that causation under R.C. 2307.91(FF)(2) is a “but for” test:

R.C. 2307.91(FF)(2) “is, in essence, a ‘but for’ test of causation, which is
the standard test for establishing cause in fact. * * * Cause in fact is
distinct from proximate, or legal cause. Once cause in fact is established, a
plaintiff then must establish proximate cause in order to hold a defendant
liable.” Ackison, ¶ 49, states: “When R.C. 2307.91(FF)(1) and (2) are read
in pari materia, it appears that the two subsections were intended to require
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.” We determined in Ackison that the “definition of ‘substantial
contributing factor’ does not alter the proof necessary to establish particular
causation by a particular defendant when the trier of fact reviews the merits
of a claim.” Id. at ¶ 52.

Renfrow at ¶ 20.

{¶27} Renfrow’s doctor opined that asbestos exposure “in part contributed” to

the lung cancer and “acted synergistically with the cigarette smoking, diesel fumes, and

exhaust to greatly increase the risk of lung cancer beyond that expected from either

exposure alone.” (Emphasis added.) Id. at ¶ 23. The Renfrow court determined that

the language failed to establish that asbestos exposure was the “predominate cause” of the

appellant’s lung cancer, nor did it state that, “without the asbestos exposure,” the

appellant’s “lung cancer would not have occurred.” Id. at ¶ 23.

{¶28} “No new guidance was established by the Ohio Supreme Court in

Renfrow regarding how courts should interpret the laws governing asbestos litigation.”

Turner, 2016-Ohio-7776, 66 N.E.3d 802 at ¶ 31. The court “merely reiterated” that
establishment of a prima facie case requires that the asbestos litigant provide a diagnosis

by a “competent medical authority * * * that the asbestos exposure is a substantial

contributing factor.” Id.

{¶29} In this case, Dr. Exten’s report states that: (1) Howell suffered “substantial

occupational exposure to asbestos,” (2) the “exposure to cigarette smoke and asbestos

were both substantial contributing factors to the development of the lung cancer,” and (3)

that “because of the synergistic effect of asbestos and cigarette smoke, but for these

exposures his cancer would probably have not occurred.” (Emphasis added.) Dr. Exten

concluded that Howell’s physical impairment was the result of his lung cancer.

{¶30} While we do not require “magic words precisely mirroring the statutory

language of R.C. 2307.91(FF),”2 those words are, in fact, present in Dr. Exten’s report.

One of the statutory prerequisites necessary to establish a prima facie tort
action alleging an asbestos claim based upon lung cancer requires a person
who is a smoker to demonstrate a diagnosis by a competent medical
authority that the exposure to asbestos is a substantial contributing factor.
(See R.C. 2307.92(C)(1)(a).)

Renfrow,140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173 at syllabus.

{¶31} The Ohio Act specifically considers the dual causation factors of asbestos

exposure and smoking. The plain language states that asbestos must be the

“predominate” cause of the impairment. Ackison, 120 Ohio St.3d 228, 2008-Ohio-5243,

897 N.E.2d 1118 at ¶ 33, citing R.C. 2907.91(FF)(1). The Ohio Supreme Court

2 Paul v. Consol. Rail Corp., 8th Dist. Cuyahoga No. 98716, 2013-Ohio-1038,
¶ 23.
acknowledged that the choice of the word “predominate” by the General Assembly is

“perplexing” because it “is susceptible of more than one meaning and is therefore

ambiguous.” Id. at ¶ 36. The court refused to construe the term “predominate,” as used

in R.C. 2307.91(FF)(1), to mean “predominant” because such an interpretation “would

alter the common-law element of proximate causation.” Id. at ¶ 44, 47.

{¶32} The purpose of the Ohio Act is for “‘procedural prioritization of the

asbestos-related cases on the court’s docket. Nothing more. * * * No new substantive

burdens are placed on claimants.’” Renfrow, 140 Ohio St.3d 371, 2014-Ohio-3666, 18

N.E.3d 1173 at ¶ 15, quoting Bogle, 115 Ohio St.3d 455, 2007-Ohio-5248, 875 N.E.2d

919 at ¶ 16.

b. Reports of Drs. Oliver and Hammerman

{¶33} While we have already determined that the report of Dr. Exten is sufficient

to support the prima facie requirements, Howell also submitted medical reports from Drs.

L. Christine Oliver (“Dr. Oliver”) and Peter Hammerman (“Dr. Hammerman”). Howell

and Drs. Oliver and Hammerman did not have a doctor-patient relationship, and they did

not actually treat Howell. Therefore, appellants argue that they do not qualify as

competent medical authorities, defined in R.C. 2307.91(Z)(2).

{¶34} R.C. 2307.93(B) provides that the court “shall determine from all of the

evidence submitted” whether the R.C. 2307.92(C) prima facie elements have been met.

A “prima facie showing shall include all of the minimum requirements” in

R.C. 2307.92(C): (1) the supporting submission by the competent medical authority (R.C.
2307.92(C)(1)(a)); (2) evidence establishing the exposure and latency period (R.C.

2307.92(C)(1)(b)); and either (3) evidence of substantial occupational exposure to

asbestos (R.C. 2307.92(C)(1)(c)(i)), or (4) evidence of exposure based on the scientific

criteria described (R.C. 2307.92(C)(1)(c)(ii)).

{¶35} While R.C. 2307.91(FF)(1) and (2) requires the establishment of causation

by a competent medical authority, the statute does not require that all evidence the court

may deem relevant under R.C. 2307.92(C)(1)(b)-(c) be issued by a competent medical

authority. See Fields, 197 Ohio App.3d 561, 2011-Ohio-6761, 968 N.E.2d 70, ¶ 11 (8th

Dist.), citing Simon, 69 Ohio St.2d 41, 44, 430 N.E.2d 468 (“Insofar as these

preliminary proceedings [under R.C. 2307.92 and 2307.93] are administrative in nature, *

* * the rules of evidence do not strictly apply.”)

2. “Substantial Occupational Exposure to Asbestos” Requirement

{¶36} R.C. 2307.91(GG) defines substantial occupational exposure to asbestos:

“Substantial occupational exposure to asbestos” means 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.
{¶37} Appellants argue that the affidavits of Howell and two coworkers

describing the circumstances of exposure to asbestos during employment are insufficient

to support the presence of asbestos under the statute. However, this court has previously

recognized the efficacy of such evidence. We held in Hoover, 8th Dist. Cuyahoga Nos.

93479 and 93689, 2010-Ohio-2894, that the affidavit of a coworker who worked with

Hoover over 25 years around various asbestos-wrapped pipes that were in poor, worn

condition, was sufficient to support exposure. Id. at ¶ 26-28. See also Paul v. Consol.

Rail Corp., 8th Dist. Cuyahoga No. 98716, 2013-Ohio-1038, where a coworker averred

that he and Paul regularly inhaled asbestos dust working with poorly maintained

asbestos-wrapped brake shoes and pipes. We held that the “affidavit was sufficient to

withstand administrative dismissal on the issue of Paul’s substantial occupational

exposure to asbestos.” Id. at ¶ 11.

{¶38} We reiterate that a smoker/asbestos claimant must navigate the Ohio

Act’s procedural gauntlet to access substantive FELA recovery.3 FELA is an act that is

to be construed broadly, the scope of which “is not to be narrowed by refined reasoning or

for the sake of giving ‘negligence’ a technically restricted meaning.” Jamison v.

Encarnacion, 281 U.S. 635, 640, 50 S.Ct. 440 74 L.Ed. 1082 (1930). Liberal

3 In re Special Docket No. 73958, 8th Dist. Cuyahoga Nos. 87777 and
87816, 2008-Ohio-4444 at ¶ 26, quoting Bogle, 115 Ohio St.3d 455,
2007-Ohio-5248, 875 N.E.2d 919 at ¶ 16, quoting Jones v. Erie R. Co., 106 Ohio St.
408, 412, 140 N.E. 366 (1922).
construction is required to permit the purposes for which FELA was enacted to be

fulfilled. Id., citing Miller v. Robertson, 266 U.S. 243, 45 S.Ct. 73, 69 L.Ed. 265 (1924).

IV. Conclusion

{¶39} Pursuant to R.C. 2307.93(B), we construe the evidence most strongly in

Howell’s favor in determining whether a prima facie case has been established. Wagner v.

Anchor Packing Co., 4th Dist. Lawrence No. 05CA47, 2006-Ohio-7097, ¶ 39, Hoover at

¶ 12. We find that it has. Appellant’s assignments of error are without merit.

{¶40} The trial court’s judgment is affirmed. This matter is remanded to the trial

court for further proceedings.

It is ordered that appellee 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.

_______________________________________
ANITA LASTER MAYS, JUDGE

MELODY J. STEWART, P.J., and
LARRY A. JONES, SR., J., CONCUR