By way of background, in 2008, the Eighth District Court of Appeals in Sinnott v. Aqua Chem, Inc.,  8th Dist. Cuyahoga No. 88062, 2008-Ohio-3806, created a “VA exception” to the General Assembly’s clear  requirement that a plaintiff bringing an asbestos claim submit a report from a statutorily defined  “competent medical authority” sufficient to establish the minimum medical requirements necessary to  avoid administrative dismissal. “Competent medical authority” is defined, in part, as a physician  who has treated and has or had a doctor-patient relationship with the exposed person. To the Eighth  Appellate District, however, “nontraditional” patients like Sinnott were “excepted” from the  statute’s requirements because of “limited opportunities” to develop the traditional doctor-patient  relationship. In creating this exception, the court sidestepped the statute’s mandatory  requirements and allowed plaintiffs to use reports by “B-reader” physicians common in asbestos  litigation who admittedly never treated or had any type of doctor-patient relationship with the  exposed person. Notably, the Eighth District is the appellate court to which Cuyahoga County  (Ohio’s largest asbestos docket) decisions are appealed. Plaintiffs after Sinnott tried to chip  away at the statute by expanding who was considered a “nontraditional patient” and urging that  “substantial compliance” with the statute’s minimum medical requirements was the standard—and  gained some success in doing so.

But no more. The Supreme Court of Ohio put an end to ignoring those mandatory requirements when it  decided Renfrow v. Norfolk Southern Railway Company on September 3, 2014. Gerald Renfrow, very much  like Sinnott, had received his medical care at a VA facility. Renfrow’s widow, instead of  submitting a report from Renfrow’s treating doctor there, submitted a report from a Dr. Rao—a  B-reader physician who had never treated Renfrow or had any doctor-patient relationship with him.  Relying solely on the statute’s plain language, the court easily concluded that Dr. Rao did not  qualify as competent medical authority because he never treated Renfrow, and, moreover, even if he  had treated him, his report failed to establish that Renfrow’s exposure was the “predominate” cause  of his lung cancer under the “but for” test established by the Supreme Court in Ackison v. Anchor  Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243.

The widow, like the plaintiff in Sinnott, argued that she could not submit a report from Renfrow’s  treating physician because federal regulations prohibited VA physicians from providing opinion  testimony. But the federal regulation relied upon makes no such outright prohibition. As the  Supreme Court pointed out, VA physicians may be permitted to testify under appropriate “exceptional  circumstances.” Because plaintiff made no effort to show that those circumstances may apply to her,  she “abandoned her efforts to secure an opinion from a medical doctor whom she had identified as  competent medical authority.”

The Court's decision makes clear that there is no “VA exception” to the statute and that the  statute will be applied as written. Justice O'Neill, however—in a concurring opinion joined by no  one—leaves open the possibility that the statute may be “ripe for review” when a plaintiff exhausts  “all possible means” of obtaining an opinion from a VA physician. But that is an issue for another  day. For now, this decision gives clear guidance to Ohio courts to apply the statute as written and  puts an end to judicially created exceptions that are legally unjustified.