DORAN AND MURPHY P.L.L.C.: APPELLATE PRACTICE UNDER THE FELA AND THE OHIO ASBESTOS BILL
In 2004, the Ohio state legislature passed what has become known as the Ohio Asbestos Bill. The bill was the first state legislation of its kind designed to reduce the amount of asbestos litigation. It required that anyone bringing an asbestos-related claim submit evidence that they met strict medical criteria at the outset of the case. The bill applied only to those bringing non-malignant claims, lung cancer claims, wrongful death claims, and “smokers.” Unless these groups submit evidence that the Asbestos bill’s medical requirements have been met, these types of asbestos claims will never be heard in court.
A 2007 decision of the Ohio Supreme Court specifically applied this law to railroad workers bringing claims under the Federal Employers’ Liability Act (FELA). While perhaps reducing the amount of asbestos litigation, appellate practice in this area has skyrocketed in Ohio. Doran and Murphy attorneys have been at the forefront of cases concerning the Ohio Asbestos Bill.
In Olson v. Conrail, 2008 Ohio 6641, a railroad worker represented by Doran & Murphy brought a FELA action before the passage of the Ohio Asbestos Bill. The railroad wanted to apply the new medical requirements to his case. The Ohio Asbestos Bill was designed to apply to all cases already filed in 2004, even those filed before the bill was passed. However, the legislature provided a “savings clause,” that allowed trial courts to apply the old law where the new law would impair a plaintiff’s substantive rights. In this case, the railroad worker said workplace exposures to asbestos, diesel exhaust, silica, and other toxic substances made him ill. The trial court invoked the savings clause and applied the old law because applying the new law would affect his substantive rights. The railroad appealed. Ohio’s 8th District Court of Appeals held that applying the Asbestos Bill would impair this plaintiff’s substantive rights because it would unfairly keep him from trying his non-asbestos-related claims to a jury.
In Link v. Conrail, 2009 Ohio 6216, a railroad worker represented by Doran and Murphy brought an action alleging he had non-malignant lung diseases caused by workplace exposure to asbestos, diesel exhaust, and silica. The Ohio Asbestos Bill has specific requirements for non-malignant cases, including proof that a “competent medical authority” found asbestos substantially contributed to the illness. The trial court found that Link satisfied these requirements by submitting the report of his treating physician, a Doctor of Osteopathy. On appeal, the Eighth District held that the plaintiff’s physician did not meet the bill’s definition of “competent medical authority” because the bill requires that the doctor be a “medical doctor.” Since Link’s physician was a doctor of osteopathy, the appellate court ruled that his opinion could not be considered. The Eighth District found the railroad workers asbestos claims should be administratively dismissed. However, the court allowed plaintiff’s remaining claims, unrelated to asbestos to continue.
In Riedel et al. v. Conrail, 2009 Ohio 1242, three railroad workers represented by Doran & Murphy alleged the railroad exposed them to several toxic substances causing work-related illnesses. The workers were exposed to asbestos and to other cancer causing agents. When the workers could not meet the requirements of the Ohio Asbestos Bill, the court administratively dismissed those claims. However, the court allowed the plaintiffs’ remaining claims, unrelated to asbestos, to go to trial. Again, the railroad appealed. On appeal, the 8th District agreed, ruling that the Ohio Asbestos Bill clearly only applied to certain asbestos claims. It did not apply to claims unrelated to asbestos. Because the new bill’s requirements did not apply, allowing them to proceed to trial was proper. The railroad appealed to the Ohio Supreme Court.
In Riedel et al. v. Conrail, 2010 Ohio 1926, the railroad appealed the 8th District’s decision referenced above. The Supreme Court found for the railroad worker, stating administrative dismissal only applies to asbestos claims, even when the action includes non-asbestos claims. The Supreme Court also concluded that when an action includes an asbestos claim that is administratively dismissed, non-asbestos claims can still proceed to trial. This decision is especially significant because it will allow plaintiffs to have multiple exposure claims without fear that their cases will be dismissed as a result of the Ohio Asbestos Bill. Many plaintiffs are deceased by the time their claims are heard by the court, and this decision ensures that their claims will not be dismissed because they can not get new medical reports to meet the requirements of the asbestos bill.
In Hoover v. Norfolk Southern Ry., 2010 Ohio 2894., a railroad worker represented by Doran & Murphy alleged the railroad exposed him to multiple toxic substances that contributed to his lung cancer. The trial court required him to provide evidence at the onset that he met the requirements of the Ohio Asbestos Bill, as he was a smoker. The plaintiff submitted the reports of four treating physicians and other medical reports. The Railroad moved to throw the case out, arguing that none of the plaintiff’s reports from a “competent medical authority” stated that asbestos substantially contributed to his lung cancer. The trial court denied the motion to dismiss, and the 8th district affirmed, holding that courts may look at all the evidence in its entirety to see if a plaintiff’s case can go forward. While no one physician said asbestos exposure substantially contributed to the plaintiff’s cancer, the reports of all four doctors, taken as a whole, showed that the plaintiff’s exposures contributed to his lung cancer. This was enough to satisfy the Ohio Asbestos Statute.
In Fields v. CSX, 2010 Ohio 3877, the wife of a deceased railroad employee brought an action against the Railroad. She alleged the Railroad exposed him to asbestos that contributed to the development of his lung cancer. The railroad moved to administratively dismiss the case, alleging Mr. Fields was a “smoker,” but had not submitted evidence that he met the requirements of the Ohio Asbestos Bill. The plaintiff argued that Mr. Fields was not a “smoker” as defined by the bill. The trial court denied the motion to dismiss stating that the plaintiff did not have to present evidence that her husband was a non-smoker. Regardless, the trial court found she had presented enough evidence to have her claims proceed. The 8th District reversed and instructed the trial court to decide the case in line with another case: Farnsworth v. Allied Glove Corp. Farnsworth said it is ultimately the plaintiff’s burden to prove the person exposed to asbestos was not a smoker where the defendant can produce some credible evidence. Because the trial court’s decision came before Farnsworth, the case was sent back to the trial court to determine whether Mr. Fields was or was not a smoker.
In Rossi v. Conrail, a case that is currently pending, a railroad worker alleges that he developed lung cancer due to workplace exposure to toxic substances. The railroad has moved to dismiss the plaintiff’s case for failing to provide evidence at the onset that he has met the medical requirements of the Ohio Asbestos Bill, and that the employee’s exposure to asbestos substantially contributed to his lung cancer. Relying on precedence, plaintiff is opposing the motion on the grounds that the evidence, when taken as a whole, satisfies the filing requirements of the statute. Plaintiff expects the court to remain consistent with its prior decisions on this matter and affirm the trial court’s denial of the railroads motion to administratively dismiss the complaint.
All of these decisions have far reaching implications for railroad workers that may have been exposed to asbestos, diesel exhaust, or sand dust while working in and through the state of Ohio. While the railroads have sought dismissal of all occupational exposure claims that include asbestos, Doran and Murphy attorneys have worked to make sure those cases are heard. Any railroaders that have suffered injury related to these exposures, such as cancer, COPD or asthma, can now continue to enforce their federal rights under the FELA in the state courts of Ohio. Doran and Murphy has long been working to protect the rights of railroad workers, who have been exposed to cancer causing agents while working on the railroad. We are proud to have played a role in vindicating the rights of these railroaders and will continue to work to promote the interests of railroad workers under the FELA.