In Pearl Fields v. CSX Transportation, Inc., 2010 Ohio 3877, 2010 Ohio App. LEXIS 3278, the Eighth District Court of Appeals . The appellate court held that “when there is a dispute as to whether a person is a smoker, the parties must first submit evidence and then the trial court must review the evidence submitted by both parties to resolve the issue. If the defendant submits competent, credible evidence establishing that the plaintiff is a smoker, then the burden shifts to the plaintiff to establish that the exposed person is not a smoker as defined in R.C. 2307.91(DD) because ‘the plaintiff has the ultimate burden to prove that the exposed person is not a smoker’.” Id. at ¶ 23.

Ohio Revised Code Sections 2307.92 and 2307.93 outline minimum medical requirements for tort actions alleging asbestos claims. R.C. 2307.92(B), (C), and (D) require plaintiffs maintaining asbestos actions based upon (1) nonmalignant conditions; (2) smoker lung cancer claims; or (3) wrongful death actions to establish a prima facie showing in the manner described in R.C. 2307.93(A). Under R.C. 2307.93(A)(1), any plaintiff who bases his or her claim on R.C. 2307.92(B), (C), or (D), must file a written report and supporting test results constituting prima facie evidence of the exposed person’s physical impairment.

A defendant may challenge the adequacy of the plaintiff’s prima facie evidence under R.C. 2307.93(B) and the court must determine from all of the evidence submitted whether the proffered prima facie evidence meets the minimum requirements for cases involving nonmalignant conditions, smoker lung cancer, or wrongful death, as specified under R.C. 2307.92. If the court finds, after consideration of all of the evidence, that the plaintiff failed to make a prima facie showing, then the court shall administratively dismiss the plaintiff’s claim without prejudice.

In Fields vs. CSX, the plaintiff brought an action against CSX under the Federal Employer’s Liability Act and the Locomotive Inspection Act alleging that CSX negligently allowed her husband to be exposed to various substances, including asbestos and asbestos dust while working as a conductor for CSX. Fields alleged that her husband developed severe and permanent injuries, including lung cancer. CSX moved to administratively dismiss Fields’s complaint for failure to comply with the prima facie filing requirements of R.C. 2307.92 and 2307.93.

CSX argued that because Fields’s husband was a smoker, Fields was required under R.C. 2307.92(C) to establish a prima facie case through competent medical authority. Fields argued that her husband was not a smoker, and therefore, she was not required to establish a prima facie case. The trial court agreed with Fields and denied CSX’s motion to administratively dismiss Fields’s claim for failure to comply with the statute. The trial court concluded that Fields “has presented sufficient evidence to have her claims proceed at this time.”

CSX appealed the trial court’s decision denying its motion to administratively dismiss Fields’s asbestos claim to the Eighth District Court of Appeals. In its appeal, CSX relied on an earlier Eighth District Court of Appeals decision in which the Court addressed “who has the burden in a lung-cancer asbestos action to prove that an exposed person is a smoker as defined by R.C. 2307.91(DD).” Farnsworth v. Allied Grove Corp., No. 91731, 2009-Ohio-3890.

After affirmatively resolving the issue of whether the trial court’s decision – denying CSX’s motion to administratively dismiss the plaintiff’s claim – constituted a final appealable order, the Eighth District addressed the issue of which party has the burden of establishing whether a person is smoker under R.C. 2307.92 and 2307.93. The Court reaffirmed its conclusion in Farnsworth and held that it is the plaintiff who has the ultimate burden to prove that the exposed person is not a smoker. “[W]hen there is a dispute as to whether a person is a smoker, the parties must first submit evidence and then the trial court must review the evidence submitted by both parties to resolve the issue.

If the defendant submits competent, credible evidence establishing that the plaintiff is a smoker, then the burden shifts to the plaintiff to establish that the exposed person is not a smoker as defined in R.C. 2307.91(DD) because ‘the plaintiff has the ultimate burden to prove that the exposed person is not a smoker’.” Id. at ¶ 23. If the trial court determines that the exposed person is a smoker, then the plaintiff must meet the minimum medical requirements establishing a prima facie case. If the exposed person is not a smoker, then the plaintiff does not have to establish a prima facie case.

Because the trial court did not resolve the issue of whether Fields’s husband was a smoker but merely held that Fields “presented sufficient evidence to have her claims proceed at this time,” the Eighth District Court concluded that the trial court erred and remanded the case for a proper determination as outlined by the Court in Farnsworth.