Michael Torcello has two victories at the Court of Appeals of Ohio – Eighth District
In two separate decisions, the Court of Appeals of Ohio - Eighth Appellate District recently found in favor of two Doran & Murphy clients, allowing their cases against their railroad employers for cancer from work-related exposures to go forward. Attorney Michael Torcello argued both of these appeals in front of the Court.
In Paul v. Consolidated Rail Corp., et al, 2013-Ohio-1038, the plaintiff brought a case for lung cancer as a result of his exposure to asbestos while working at the railroad. The railroad made a motion to dismiss his case because they did not believe it complied with the Ohio Asbestos Bill, which requires a plaintiff who fits the statutory definition of a cigarette smoker to present evidence from a competent medical authority that the plaintiff has primary lung cancer and that asbestos exposure was a substantial contributing factor to the development of the cancer, as well as present evidence of the exposed person's substantial occupational exposure to asbestos.
To fulfill the statutory requirements, the plaintiff submitted evidence from a coworker who testified that he and the plaintiff worked together with and around asbestos-wrapped pipes and brakeshoes. The railroad argued that this evidence was insufficient. The trial court found that the evidence was sufficient, and the appellate court agreed.
The appellate court also agreed that the trial court properly found that the evidence that the plaintiff submitted was sufficient to demonstrate that he had a primary diagnosis of lung cancer and that exposure to asbestos at the railroad was a substantial contributing factor to his development of the cancer. The appellate court found that this evidence did not need to come from a treating physician due to his treatment at the Veterans Administration, which falls into an exemption in the Ohio Asbestos Bill.
In the second case, Fields v. CSX Transportation, Inc., 2013-Ohio-822, the Eighth District similarly upheld a trial court's ruling that the decedent did not fit the statutory definition of a smoker. After multiple appeals by the railroad on this issue, the appellate court agreed that the evidence submitted to the trial court demonstrated that the testimony of the decedent's widow was sufficient to overcome some ambiguous notations in medical records as to the decedent's smoking history.