COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71379 THOMAS HOLIAN, DECEASED : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION SUBURBAN POWER PIPING, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 22, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 289020 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: MARK N. WISEMAN, ESQ. VINCENT T. LOMBARDO, ESQ. SEAMAN & ASSOCIATES CECILLE CALUYA HARRIS, ESQ. 1600 Rockefeller Building ASST. ATTORNEY GENERAL 614 Superior Avenue, N.W. State Office Tower, 12th Floor Cleveland, Ohio 44113 615 W. Superior Avenue Cleveland, Ohio 44113-1899 - 2 - DYKE, J.: Plaintiffs, the Estate of Thomas Holian and Joan Holian, widow of Thomas Holian, appeal from the judgment of the trial court which denied their motion for a new trial in plaintiffs' action for participation in the workers' compensation fund. For the reasons set forth below, we affirm. Thomas Holian died on August 4, 1992 from cancer which had spread to his brain from his lung. Joan Holian subsequently filed a claim for a compensable accidental injury/occupational disease with the Bureau of Workers' Compensation. She maintained that the decedent was an employee of Suburban Power Piping, that this employment entailed exposure to asbestos, and that the decedent's injury/disease was sustained in the course of and arising out of his employment. The claim was denied at each of the administrative levels. Thereafter, on May 5, 1995, the Estate of Thomas Holian and Mrs. Holian filed this action in the court of common pleas for participation in the workers' compensation fund pursuant to R.C. 4123.512. Suburban Power Piping, the Administrator of the Bureau of Workers' Compensation, and the Industrial Commission of Ohio were named as defendants in the action. In relevant part, plain- tiffs' complaint alleged as follows: *** Thomas Holian (Deceased) was an employee of Suburban Power Piping *** and during the course of and arising out of his employment, sustained an accidental injury/occupational disease ***. The matter proceeded to a jury trial on July 8, 1996. Plaintiffs maintained that the decedent was exposed to asbestos in - 3 - connection with his employment at Suburban Power Piping and they asserted that he contracted asbestos related pleural fibrosis from this employment. According to plaintiffs, this, in conjunction with the decedent's history of cigarette smoking, produced his fatal lung cancer. For their case, plaintiffs presented the testimony of Joan Holian and Thomas Pulaski, and presented the videotape deposition testimony of Dr. Paul C. Venizelos. Joan Holian testified that she met the decedent in 1952. At that time, he smoked approximately one and one-half packs of filterless cigarettes per day. The decedent stopped smoking for short times and eventually switched to filter cigarettes before finally quitting in 1989. Mrs. Holian further testified that the decedent worked both as a pipe fitter and a tug boat captain off and on for about twenty-five years. He was diagnosed with lung cancer in December 1991 and stopped working at about this time. He died on August 2, 1992. Thomas Pulaski testified that he is a member of Pipe Fitters Local Union 120, and worked for Suburban Power Piping for roughly thirty years. The decedent was also a member of Local 120 and worked for Suburban Power Piping, and Pulaski was the decedent's foreman. Pulaski further testified that pipes are frequently covered with asbestos, an insulating material, and that he and the decedent were frequently in contact with it from the repair and servicing of pipes. Personal protective devices were not imple- - 4 - mented until some time in the 1980s, however, and the men therefore had significant exposure to asbestos dust. On cross-examination, Pulaski conceded that the decedent worked for companies other than Suburban had also worked as a tug boat captain. Dr. Venizelos, who is board certified in internal medicine and pulmonary diseases testified that Thomas Holian was referred to him following an abnormal chest radiograph. Dr. Venizelos examined him on April 2, 1990. At this time, the doctor detected pleural thickening with mild restriction of the lung. Venizelos further testified that he is a federally certified "B Reader" of chest films, and that the thickening was visible on a radiograph of the decedent's chest from 1991. In light of Holian's history of asbestos exposure, Venizelos determined that he had asbestos related pleural fibrosis, an asbestos caused scarring of the lining of the lung. He further opined that the decedent's fatal lung cancer was caused by the interaction between asbestos exposure and smoking. Finally, Dr. Venizelos testified that the decedent's normal chest X-rays did not preclude interstitial lung disease or asbestosis. The Bureau maintained that the decedent died from lung cancer which was caused by cigarette smoking and not asbestos exposure. The Bureau presented the videotape deposition testimony of Dr. Lawrence Martin, a pulmonologist and critical care specialist who evaluated the decedent's medical records but did not treat him. - 5 - Dr. Martin stated that has served as chief of the pulmonary division of Mt. Sinai since 1976. According to Dr. Martin, exposure to asbestos which does not produce the interstitial lung disease of asbestosis does not produce lung cancer. Thus, accord- ing to Dr. Martin, the asbestos-related pleural thickening which was found by Dr. Venizelos does not present a risk for lung cancer. Martin further testified that the clinical findings noted in the decedent's treatment records show that the decedent did not have asbestosis. Finally, Martin testified that 90-95% of lung cancers are directly attributable to smoking. From evidence provided by Joan Holian, the decedent had "an extraordinarily heavy cigarette smoking history," having smoked between one and one-half to two packs of cigarettes per day for thirty-seven years, for a smoking history of "between 65 and 74 pack years." (Tr. 78) This smoking, Martin concluded, was the "most likely" the cause of the decedent's cancer. The trial court subsequently instructed the jury, in relevant part, as follows: *** [P]laintiff must establish by the greater weight of the evidence that Thomas Holian's lung cancer was caused in part or in whole by asbestosis-related (sic, corrected at Tr. 229-230 to "asbestos-related") pleural disease which was a direct and proximate cause of that disease and by his employment with Suburban Power Piping (Tr. 218). On July 11, 1996, the jury rendered a verdict denying participation. Plaintiffs moved for a new trial and maintained, in relevant part, that the trial court's charge was prejudicially - 6 - erroneous insofar as it required plaintiffs to demonstrate that the claim arose while working for "any particular employer." The trial court denied the motion for a new trial. Plaintiffs now appeal and assign a single error for our review. Plaintiffs' assignment of error states: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THE PLAINTIFF WAS REQUIRED TO PROVE THAT THE DECEDENT CON- TRACTED LUNG CANCER FROM EXPOSURE TO ASBESTOS WHILE WORKING FOR ONE SPECIFIC EMPLOYER. Within this assignment of error, plaintiffs maintain that a new trial should have been ordered because the instruction given by the trial court erroneously increased their burden of proof in the within matter. Defendants assert that the jury instruction regarding the decedent's employment with Suburban Power Piping was not prejudicially erroneous since the decedent's employment history or asbestos exposure were never in dispute; rather, the key issue at trial was the question of whether the decedent's lung cancer was caused by cigarette smoking or asbestos exposure. As to the relevant procedure, Civ. R. 59(A) provides in relevant part as follows: (A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: * * * (7) The judgment is contrary to law; ***. (9) Error of law occurring at the trial and brought to the attention of the trial court by the party making the application. - 7 - * * *. Generally, the determination of whether a new trial should be ordered is subject to the discretion of the trial court. Winson v. Fauth (1989), 63 Ohio App.3d 738, 741. However, where the motion for a new trial alleges an error of law, the trial court does not exercise discretion in ruling on the motion and the motion must be denied where there was no error or no prejudice. See Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249, 252. As to the substantive legal question presented, the right at issue in an appeal brought pursuant to R.C. 4123.512 is the workers' right to participate in the state workers' compensation fund and not a claim directed against a particular employer. State ex rel. Burnett v. Industrial Commission (1983), 6 Ohio St.3d 266, 268. Finally, we note that pursuant to the "two-issue rule," reversal is precluded even if the instruction on one issue is improper where the jury has returned a general verdict untested by interrogatories to demonstrate which issue was determinative of verdict. Fulwiler v. Schneider (1995), 104 Ohio App.3d 398, 410. In such instance, it will be presumed that all issues were resolved in favor of prevailing party, and where a single determinative issue has been presented free from error, error in presenting another issue will be disregarded. Id. Applying all of the foregoing to this matter, we conclude that the trial court properly denied plaintiffs' motion for a new trial. - 8 - Even assuming that the court's reference to Suburban Power Piping within its charge may be viewed as an instruction for deciding a disputed factual issue, the record exemplifies no prejudice. Only one employer was named in the action and it was undisputed that this employment involved significant exposure to asbestos. Further, the record clearly demonstrates that the fundamental issue for the jury was whether this exposure produced the decedent's lung cancer. Indeed, in his opening statement, counsel for plaintiffs remarked: This case boils down to what we call in the legal field a battle of the experts. And you'll be asked to decide which of the experts is more credible and which one you ought to find is more illuminating on the issue of the dual causation and the multiplier effect in this case. (Tr. 82-83). Likewise, counsel for defendant indicated in his opening statement as follows: Thomas Holian was also exposed to asbestos on the job as a pipe fitter and that's not in dispute. We're not disputing that. But Thomas Holian never contracted asbestosis, and this is crucial. *** It is indeed a battle of the experts case. (Tr. 88-90) Thus, and by application of the "two-issue rule," since the issue of causation was presented free from error, and was, by all accounts, determinative herein, reversal is precluded. Plaintiffs' assignment of error is overruled. Affirmed. - 9 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., AND NAHRA, J., CONCUR ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .