Bartel v. Farrell Lines, Inc.

[Cite as Bartel v. Farrell Lines, Inc., 2020-Ohio-5509.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

WILLARD E. BARTEL :
ADMINISTRATOR, ET AL.,
: No. 109139

Plaintiffs-Appellees, :

v. :

FARRELL LINES, INC., ET AL., :

Defendants. :

[Appeal by Ford Motor Company, :

Defendant-Appellant.] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 3, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-16-872251

Appearances:

The Jaques Admiralty Law Firm, P.C. and Timothy A.
Swafford, pro hac vice, for appellees.

Roetzel & Andress, Susan Squire Box, Leighann K. Fink,
and Moira H. Pietrowski, for appellant.
ANITA LASTER MAYS, P.J.:

Defendant-appellant Ford Motor Company (“Ford”) appeals the trial

court’s decision granting plaintiffs-appellees, Willard E. Bartel and David C.

Peebles’s (“appellees”) motion to reinstate their smoking lung cancer case to the

active docket, and asks this court to reverse the trial court’s decision. We affirm.

I. Facts and Procedural History

The appellees filed suit against Ford in their capacity as the

administrators of the Estate of Robert F. Stewart (“Stewart”). Stewart, who had been

employed by Ford as a merchant marine, was a deck department worker for 27 years.

During that time, it was routine for Stewart to clean up asbestos on ships, as Ford

had asbestos-insulated steam lines throughout its ships, which needed constant

repair. Stewart, who repaired the steam lines, was frequently exposed to asbestos.

In addition to exposure to asbestos, Stewart was a smoker until he quit in 2008 and

was diagnosed with lung cancer in 2013. Stewart died from lung cancer in 2016.

Appellees filed suit in 2016, under the Jones Act and the General

Maritime Law, against Ford and other defendants1 for damages arising from

Stewart’s lung cancer and death. Appellees conducted depositions in which

Stewart’s co-workers testified that because of Stewart’s job responsibilities, he had

been exposed to asbestos on the ships. Ford and the other defendants filed a motion

1 The original defendants included Farrell Lines, Inc.; BP Products North America,
Inc.; Atlantic Richfield Company; CLTA L.L.C.; Chevron USA Inc.; Arcelorrmittal USA
L.L.C.; Texaco Inc.; Coastwise Trading Company; and Keystone Tank Ship Corp.
to dismiss the case arguing that the appellees failed to meet the statutory

requirement of R.C. 2307.92, which required the appellees to provide prima facie

evidence that Stewart’s exposure to asbestos was a substantial contributing factor to

his development of lung cancer.

In response to the other defendants and Ford’s motion to dismiss the

case, the appellees submitted Stewart’s doctors’ reports. The first report (“Alonzo

Report”) was from Dr. Clive Alonzo (“Dr. Alonzo”), which stated,

The patient had a known history of tobacco abuse for about 20 years
and he had quit in 2008. Upon review of his records, he had a CT scan
of [his] chest in April 2010 that showed bullous emphysema and also
pleural plaques likely related to chronic asbestos exposure. It is also
known from review of his records that he had extensively worked in
the maritime industry from 1964 to 1997 on ships. In my medical
opinion, it is reasonable to conclude that exposure to asbestos on the
ships and his tobacco history were substantial factors that contributed
to his lung malignancy.

Alonzo Report (Oct. 5, 2017).

The second doctor’s report (“Zajac Report I”) was from Dr. Andrej J.

Zajac (“Dr. Zajac”), Stewart’s treating oncologist, which stated,

Mr. Stewart had been a heavy smoker with over 60 pack-year smoking
history though he had stopped smoking 10 years prior to his cancer
diagnosis. He also had a significant occupational exposure to
asbestos. As noted above, he had imaging evidence of asbestosis.
Given these findings and the synergistic carcinogenic effects of both
asbestos and smoking, it is fairly certain that Mr. Stewart’s lung
cancer was substantially attributed to by his asbestos exposure.

Zajac Report I (Oct.12, 2017).
 After reviewing the evidence and the doctors’ reports, the trial court

granted the motion to dismiss. Referencing the doctors’ reports, the trial court

stated in its journal entry,

Each of these reports is close to the statutory language of “substantial
contributing factor”; thus, plaintiff argues that the spirit of that
statute has been met and the doctors need not use the precise wording
of the Act to comply. This might be a plausible argument until we look
further to the legislature’s definition of “substantial contributing
factor”:

(1) [exposure to asbestos is the predominate cause of the
physical impairment alleged in the asbestos claim [;and]

(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.

Whatever doubt might remain has been erased by the Supreme Court
in Ackison v. Anchor Packing Co., 120 Ohio St. 3d 228 (2008), where
it was held that the act:

* * * “require[s] 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.”

The language of the proffered reports does not rise to the level of “but
for” as the Court and the Act require. The motion for administrative
dismissal is granted.

Journal entry No. 109237741 (June 18, 2019).

In July 2019, the appellees filed a motion to reinstate the case. In their

motion, the appellees submitted a 2019 report from Dr. Zajac (“Zajac Report II”).

In this report, Dr. Zajac included the same statements in the Zajac Report I, but

added that “Mr. Stewart’s combined exposure to asbestos and tobacco history were
the predominate causes of Mr. Stewart’s lung cancer. But for Mr. Stewart’s exposure

to asbestos and smoking history, Mr. Stewart would not have developed lung

cancer.” Zajac Report II (July 17, 2019).

This time the trial court granted the appellees’ motion to reinstate and

stated in its journal entry,

Dr. Andrej J. Zajac was the late Mr. Stewart’s treating physician; he is
also Board Certified in the specialties of Internal Medicine, Oncology,
and Radiology. As such, he is a qualified medical witness under the
statute. His opinion that asbestos exposure was a predominate cause
of Mr. Stewart’s fatal lung cancer satisfies the statutory requirement
for the case to proceed. Plaintiffs motion to reinstate this case to the
active docket is granted. Cf. Howell v. Conrail, [2017-Ohio-6881,] 94
N.E.3d 1127 (8th Dist.).

Journal entry No. 110518328 (Sept. 20, 2019).

As a result of this ruling, the other defendants in this case and Ford

filed a joint notice of appeal. Subsequent to filing this appeal, the other defendants

and the appellees reached a settlement. Ford assigns the following two errors for

our review:

I. The trial court erred in granting Appellees’ Motion to Reinstate
their smoking lung cancer case to the active docket; and

II. The trial court erred in ruling that Appellees’ prima facie
evidentiary submission in support of their Motion to Reinstate
their smoking lung cancer case was sufficient to satisfy the
requirements of R.C. 2307.92(C) and 2307.92(D).
II. Motion to Reinstate

A. Standard of Review

The trial court granted the appellees’ motion to reinstate this case to

the active docket after determining that the appellees satisfied the statutory

requirement for the case to proceed. “‘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.’” Howell v. Conrail, 2017-Ohio-6881, 94 N.E.3d 1127, ¶ 10 (8th

Dist.), quoting Renfrow v. Norfolk S. Ry. Co., 140 Ohio St.3d 371, 2014-Ohio-3666,

18 N.E.3d 1173, ¶ 17. “We review a trial court’s decision on summary judgment

under a de novo standard of review.” Elam v. Woodhawk Club Condominium, 8th

Dist. Cuyahoga No. 107092, 2019-Ohio-457, ¶ 7, citing Baiko v. Mays, 140 Ohio

App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000).

Additionally, “[t]rial courts have the inherent power to manage their

own dockets.” Wells Fargo Bank, N.A. v. Unknown Heirs, 8th Dist. Cuyahoga

No. 97662, 2012-Ohio-3259, ¶ 27, citing State ex rel. Charvat v. Frye, 114 Ohio St.3d

76, 2007-Ohio-2882, 868 N.E.2d 270, ¶ 23.

B. Law and Discussion

Ford argues that the trial court erred in granting the appellees’ motion

to reinstate their case by not applying the “but for” causation standard articulated in

Ackison v. Anchor Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d

1118 (2008). In Ackison, the court held that in asbestos cases,
 R.C. 2307.91(FF)(2) requires that a competent medical authority
determine that “without the asbestos exposures the physical
impairment of the exposed person would not have occurred.” This
requirement is, in essence, a “but for” test of causation, which is the
standard test for establishing cause in fact. See Anderson v. St.
Francis-St. George Hosp., Inc., 77 Ohio St.3d 82, 84-85, 671 N.E.2d
225 (1996). 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. See id. at 86, 671
N.E.2d 225, citing Prosser & Keeton, Law of Torts (5 Ed.1984) 265-
266. See also Prosser & Keeton, id., at 272-273.

Id. at ¶ 48.

In Zajac’s Report II, Dr. Zajac stated, “[b]ut for Mr. Stewart’s

exposure to asbestos and smoking history, Mr. Stewart would not have developed

lung cancer.” The trial court relied on this report in its decision. This reliance is not

in conflict with Ackison. The court in Ackison does not state that asbestos exposure

has to be the only cause, but yet a substantial contributing factor. Ackison at ¶ 48.

R.C. 2307.91(FF)(1) and (2) states,

“Substantial contributing factor” means 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.

Ford also cites Renfrow, 140 Ohio St.3d 371, 2014-Ohio-3666, 18

N.E.3d 1173, to support its contention that the trial court did not correctly apply the

“but for” causation standard. Specifically, Ford identifies where the court in
Renfrow states that the medical authority did not establish that without asbestos

exposure, the plaintiff in the case would not have had lung cancer. Id. at ¶ 23.

However, Ford incorrectly applies Renfrow to this case. The court in

Renfrow first determined that the doctor who provided the medical report did “not

satisfy the definition of ‘competent medical authority’ contained in R.C. 2307.91(Z)”

because the doctor did not treat the plaintiff or have a doctor-patient relationship

with the plaintiff in the case. Id. at ¶ 22. Secondly, the court determined that the

doctor’s report was insufficient to establish that asbestos was a substantial

contributing factor to the plaintiff’s lung cancer. We can distinguish the facts in

Renfrow from the instant case because the doctors’ reports were vastly different.

Specifically, the doctor’s report in Renfrow stated,

After reviewing all the information provided, I have come to the
conclusion within a reasonable degree of medical certainty that
Mr. Renfrow had inoperable lung cancer with brain metastasis. * * *
[I]t 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. Asbestos exposure 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.

Id. at ¶ 23.

The doctor in Renfrow did not state in his report that “but for”

asbestos exposure, the plaintiff would not have had cancer. Nor did the doctor state

that asbestos exposure was a substantial contributing factor. Instead, the doctor

stated that asbestos exposure contributed, in part, to the plaintiff’s lung cancer.

Again, this is distinguishable because Dr. Zajac stated in his report that asbestos
exposure and tobacco use were substantial contributing factors to Stewart

developing lung cancer.

Additionally, Ford cites Holston v. Adience, Inc., 8th Dist. Cuyahoga

No. 93616, 2010-Ohio-2482 to support its argument. In Holston, this court held

that the doctor’s “statement fails to meet the requirement of the statute, which

requires ‘but for’ [plaintiff’s] workplace exposure to asbestos, he would not have

developed lung cancer.” Id. at ¶ 19. The doctor in Holston provided the following

statement regarding plaintiff’s cancer:

“Mr. Holston’s work history reveals he has substantial occupational
exposure to asbestos while working at Wheeling-Pittsburgh Steel’s
Follansbee Coke Plant and Steubenville plant from 1971 to 2000. The
type of work that he performed required that he work in close
proximity to other workers who altered, repaired or otherwise worked
with asbestosis [sic]-containing products in such a manner that
exposed him to asbestos in a regular manner. 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.”

Id. at ¶ 6.

Again, as in Renfrow, 140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d

1173, the doctor in Holston does not state that asbestos exposure was a substantial

contributing cause of the plaintiff’s cancer. Nor does he state that “but for” the

plaintiff’s exposure to asbestos, he would not have developed lung cancer. As

previously stated, Dr. Zajac does both in his reports. Hence the decisions in Ackison,

120 Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, Renfrow, and Holston are

consistent with the trial court’s decision.
 In its decision, the trial court referenced Howell, 2017-Ohio-6881, 94

N.E.3d 1127, as a reason for granting the appellees’ motion to reinstate the case to

the active docket. Ford, however, claims that our decision in Howell is contrary to

Ackison and Renfrow because the court in Howell attempts to expand the definition

of substantial contributing factor beyond the legislature’s intent.2 Ford is incorrect

in its assertion.

Ford argues that the statement, “[t]he Ohio Act specifically considers

the dual causation factors of asbestos exposure and smoking,” is in error. Howell at

¶ 31. Ford states that if the legislature intended for claimants to be able to combine

smoking and asbestos exposure together as a dual cause of lung cancer, it would

have said so in the statute. However, even the court in Ackison acknowledged that

smoking and asbestos exposure could cause lung cancer. “The plain language states

that asbestos must be the ‘predominate’ cause of the impairment.” Id. at ¶ 31, citing

Ackison, 120 Ohio St.3d 228, 2008-Ohio-5243, 897 N.E.2d 1118, at ¶ 33, citing

R.C. 2307.91(FF)(1). Thus, in light of R.C. 2307.92(C)(1), the decision in Howell is

consistent with the decision in Ackison.

Additionally, the decision in Howell supports the decision in

Renfrow. This court stated in Howell,

[o]ne 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

2 On February 28, 2018, the Supreme Court of Ohio did not accept the appellants’
appeal for review in Howell v. Conrail, 2018-Ohio-723, 2018 Ohio LEXIS 549, 92 N.E.3d
879 (Feb. 28, 2018).
 competent medical authority that the exposure to asbestos is a
substantial contributing factor. (See R.C. 2307.92(C)(1)(a).)

Id. at ¶ 30, citing Renfrow, 140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173,

at syllabus.

Yet Ford argues that dual causation factors do not comport with the

plain language of H.B. 292 and that, if applied, Howell, 2017-Ohio-6881, 94 N.E.3d

1127, entirely defeats the intent of H.B.292. Ford’s assertion is misplaced.

The key provisions of H.B. 292 are codified in R.C. 2307.91 to
2307.98. Among other things, these provisions require a plaintiff
bringing an asbestos claim to make a prima facie showing that the
exposed person has a physical impairment resulting from a medical
condition, and that the person’s exposure to asbestos was a
substantial contributing factor to the medical condition. See
R.C. 2307.92(B)-(D) and 2307.93(A)(1).

Wilson v. AC&S, Inc., 169 Ohio App.3d 720, 2006-Ohio-6704, 864 N.E.2d 682, ¶ 5

(12th Dist.).

The Zajac Report II cites exposure to asbestos as a substantial

contributing factor. In light of the court’s decisions in Ackison, 120 Ohio St.3d 228,

2008-Ohio-5243, 897 N.E.2d 1118, and Renfrow, and this court’s decisions in

Holston, 8th Dist. Cuyahoga No. 93616, 2010-Ohio-2482, and Howell, we find that

the trial court did not err in its reliance on Howell when it granted the appellees’

motion to reinstate their case to the active docket.

Therefore, Ford’s first assignment of error is overruled.
III. Prima Facie Case

A. Standard of Review

The trial court ruled that the appellees’ prima facie evidence was

sufficient to satisfy statutory requirements to reinstate their case. A trial court

applies a summary judgment standard in assessing the sufficiency of a

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), [2307.92](C), or [2307.92](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), [2307.92](C), or [2307.92](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),
[2307.92](C) or [2307.92](D).

Renfrow, 140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173, at ¶ 17.

Our review of summary judgment is de novo. Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

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, 738 N.E.2d 1243 (2000).
Bland v. Ajax Magnethermic Corp., 8th Dist. Cuyahoga No. 95249, 2011-Ohio-

1247, ¶ 7.

B. Law and Analysis

Ford contends that the appellees’ evidence was not sufficient to satisfy

the requirements of R.C. 2307.92(C) and 2307.92(D) because the appellees failed to

provide an opinion from a competent medical authority that, but for Stewart’s

exposure to asbestos, the lung cancer and death would not have occurred. Ford

argues that the 2019 Zajac Report II is insufficient to satisfy the requirements of the

statute because Dr. Zajac’s opinions do not provide the degree of confidence

required under Ohio law, and also Dr. Zajac does not state that but for Stewart’s

asbestos exposure, his lung cancer and death would not have occurred.

Ford cites Rossi v. Conrail, 8th Dist. Cuyahoga No. 94628, 2010-

Ohio-5788, to support its contention that a medical authority’s opinion that asbestos

exposure may have played a role in the development of a person’s lung cancer is not

sufficient to satisfy the requirements of the statute. In Rossi, the medical doctor

submitted a report stating,

Robert Rossi, deceased, was a patient for many years. He died of lung
cancer on 04/16/2009. He gave a history of asbestos exposure during
his working career. Asbestos is a known carcinogen and exposure to
asbestos increases one’s risk of developing cancer during his lifetime.
I believe that this exposure may have played a role in the development
of his lung cancer.

Id. at ¶ 5.
 The court in Rossi held that, “[t]he doctor’s belief that Robert’s

asbestos exposure ‘may have’ played a role in the development of his lung cancer

does not state an opinion to a reasonable degree of medical certainty.” Id. at ¶ 6.

The facts in Rossi differ from the facts in the instant case. In this case, Stewart’s

doctor did submit a report stating that asbestos exposure was a predominate cause

of him developing lung cancer and that, but for this exposure and smoking, he would

not have developed lung cancer. The trial court’s decision is not in conflict with this

court’s decision in Rossi.

The trial court determined that the appellees’ evidence was sufficient

to reinstate the case to the active docket, congruent with R.C. 2307.92.

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.

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).

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. 2307.91(Z)(3)(a)-(c).

The competent medical authority’s supporting evidence must

demonstrate 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.

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

Ohio-2894, at ¶ 8.

Dr. Zajac was Stewart’s oncologist and treated Stewart for years due

to Stewart’s lung cancer and, in accordance with the statutes above, satisfies the

requirement of a competent medical authority. The medical reports submitted by

the appellees demonstrated that Stewart had lung cancer and that asbestos exposure

was a substantial contributing factor. Stewart worked as a merchant marine for
Ford from 1970 to 1997, where he was exposed to asbestos. He was diagnosed with

lung cancer in 2013, more than 10 years after his last exposure.

Ford argues that Dr. Zajac does not use the exact wording of the

statute. While this court has previously determined that there is no requirement to

use magic words mirroring the statutory language of R.C. 2307.91(FF), those words

are, in fact, present in Dr. Zajac’s report. See, e.g., Paul v. Consol. Rail Corp., 8th

Dist. Cuyahoga No. 98716, 2013-Ohio-1038, ¶ 22; Howell, 2017-Ohio-6881, 94

N.E.3d 1127, at ¶ 30. Thus, the trial court’s decision and our decision in Howell are

not in contradiction to the Supreme Court’s decision in Renfrow, 140 Ohio St.3d

371, 2014-Ohio-3666, 18 N.E.3d 1173.

“No new guidance was established by the Ohio Supreme Court in
Renfrow regarding how courts should interpret the laws governing
asbestos litigation.” Turner v. Certainteed Corp., 2016-Ohio-7776, 66
N.E.3d 802, ¶ 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.

Howell at ¶ 28. Therefore, we determine that the report of Dr. Zajac is sufficient

to support the prima facie requirements.

Pursuant to R.C. 2307.93(B), we construe the evidence most strongly

in the appellees’ 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, 8th Dist. Cuyahoga Nos. 93479 and 93689, 2010-Ohio-

2894, at ¶ 12. We find that it has.
 Ford’s second assignment of error is without merit, and we overrule

it.

Judgment affirmed.

It is ordered that appellees recover from appellant 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.

_________________________________
ANITA LASTER MAYS, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR