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Thursday, May 06, 2010

Non-Asbestos Claims May Be Severed and Go to Trial Even Though Asbestos Claims in Same Suit Dismissed

When Plaintiff Asserts Asbestos and Non-Asbestos Related Claims in Same Tort Action

2009-1070. Riedel v. Consol. Rail Corp., Slip Opinion No. 2010-Ohio-1926.
Cuyahoga App. Nos. 91237, 91238, and 91239, 2009-Ohio-1242. Judgment of the court of appeals affirmed.
Pfeifer, O'Connor, O’Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., concurs separately.
Brown, C.J., not participating.

(May 6, 2010) The Supreme Court of Ohio ruled today that when the plaintiff in a civil lawsuit asserts both asbestos-related and non-asbestos-related claims in the same tort action, the non-asbestos claims may be severed and proceed to trial immediately even though the asbestos-related claims are administratively dismissed under R.C. 2307.93.

The Court’s 6-0 decision, authored by Justice Paul E. Pfeifer, affirmed a ruling by the 8th District Court of Appeals.

Since the enactment of R.C. 2307.91 through 2307.98, which took effect in September 2004, all plaintiffs bringing asbestos-related lawsuits in Ohio trial courts are required to produce a preliminary medical report making a prima facie (sufficient on its face) showing that the claimant suffers from a current medical impairment that is attributable to asbestos exposure. In cases where the plaintiff does not make such a showing, the court is required to administratively dismiss his case “without prejudice,” meaning that the plaintiff’s claim is not extinguished and may be refiled at a later date if and when the plaintiff makes a showing of actual asbestos-related medical impairment.

In this case, two former railroad workers, Jack Riedel and Danny Six, and the widow of a third, Josephine Weldy, filed suits in the Cuyahoga County Court of Common Pleas alleging various occupational-disease claims under the Federal Employers’ Liability Act and the Locomotive Inspection Act arising out of their employment with Consolidated Rail Corporation. Because the complaints included claims for asbestosis based on occupational exposure to asbestos, they were assigned to the court’s separate asbestos docket, a special docket established to manage Cuyahoga County’s heavy caseload of asbestos claims.

Consolidated Rail moved for an administrative dismissal under R.C. 2307.93(A)(1), alleging that Riedel and the other plaintiffs had failed to make the required prima facie showing of current asbestos-related medical impairment. Finding that the evidence submitted by Riedel was insufficient to establish a prima facie case, the court granted Consolidated Rail’s motion for administrative dismissal as to the asbestos-related claims, but severed the remaining claims and ordered them to be scheduled for trial.

Consolidated Rail appealed, arguing that the trial court erred in (1) ruling that the administrative-dismissal provisions of R.C. 2307.93 did not apply to the non-asbestos claims asserted by the plaintiffs, and (2) severing the non-asbestos claims for trial. The 8th District Court of Appeals affirmed the judgment of the trial court, stating, “The administrative dismissal provision is limited to the asbestos-related claims that are specified in R.C. 2307.92.” Consolidated Rail sought and was granted Supreme Court review of the 8th District’s decision.

In today’s unanimous decision, Justice Pfeifer wrote: “R. C. 2307.93(A)(1) provides that a ‘plaintiff in any tort action who alleges an asbestos claim shall file … prima-facie evidence of the exposed person’s physical impairment that meets the minimum requirements specified in [R.C. 2307.92(B), (C), or (D)].’ R.C. 2307.92(B), (C), and (D) set forth the minimum requirements of a prima facie showing in claims alleging injury related to exposure to asbestos. This provision plainly indicates that the General Assembly intended to require all asbestos-claim plaintiffs, irrespective of the action in which the claims are filed, to provide prima-facie evidence of physical impairment related to asbestos in order to avoid dismissal. This provision clearly cannot apply to claims of injury due to exposure to other toxic substances, such as the claims by Riedel of injury due to diesel exhaust.”

“R.C. 2307.93(C) provides that a ‘court shall administratively dismiss the plaintiff’s claim without prejudice’ when the plaintiff fails to make the prima-facie showing required by R.C. 2307.93(A)(1). Consolidated Rail argues that the General Assembly's use of ‘claim’ in R.C. 2307.93(C) is broad enough to refer to the more comprehensive ‘tort action,’ as used in R.C. 2907.93(A)(1). We disagree.

… A claim that has been administratively dismissed may be reinstated only when the plaintiff is able to make a prima-facie showing as to the asbestos claim. R.C. 2907.93(C). Based on Consolidated Rail’s interpretation of ‘claim’ as encompassing the entire ‘tort action,’ non-asbestos claims paired with an asbestos claim would remain unresolved, possibly forever, unless the plaintiff could make a prima-facie showing as to the asbestos claim. We consider that result unreasonable or absurd. Accordingly, it is our duty to construe the statute to avoid this result.”

“We conclude that the administrative-dismissal provision of R.C. 2307.93(C) applies only to asbestos claims, even when the tort action in which the claim is brought includes non-asbestos claims. We also conclude that when a tort action includes an asbestos claim that is administratively dismissed, non-asbestos claims can be severed from the asbestos claim and proceed to trial. Furthermore, we conclude that the trial court in this case properly severed the non-asbestos claims from the asbestos claims. We affirm the judgment of the court of appeals.”

Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Justice Stratton also entered a separate concurring opinion, joined by Justices O’Connor, O’Donnell and Lanzinger, to address Consolidated Rail’s argument that litigating non-asbestos claims on the already overloaded Cuyahoga County asbestos docket would thwart the purpose of H.B. 292, which was intended to expedite asbestos cases. She wrote: “The adjudication of the non-asbestos claims is a matter best decided at the local level. Once the non-asbestos claims have been severed from the asbestos claims, the local court should determine whether the non-asbestos claims may be adjudicated on the asbestos docket or should be transferred to the court’s general docket. I believe that this is a matter of docket control that is best left to court administration at the local level.”

David A. Damico, 412.995.3000, for Consolidated Rail Corporation et al.

Christopher M. Murphy, 716.884.2000, for Riedel, Danny Six and Josephine Weldy.

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