Appellants and Cross-Appellees
639 N.E.2d 1203;
1994 Ohio App. LEXIS 1288
March 23, 1994, Decided
March 23, 1994, Filed
DISPOSITION:
[***1]
Judgment affirmed.
COUNSEL:
Connerton, Ray
& Simon and
Ronald Simon; Waite, Schneider, Bayless
& Chesley, Allen P. Grunes and
Louise M. Roselle, for appellee and cross-appellant.
Vorys, Sater, Seymour
& Pease, Robert E. Tait and
Steven M. Loewengart, for appellants and cross-appellees.
JUDGES: Harsha, Presiding Judge. Peter B. Abele and Grey, JJ., concur.
OPINIONBY: HARSHA
OPINION:
[*744]
[**1205] Goodyear Atomic Corporation, Martin Marietta Energy Systems, Inc., and
Divested Atomic Corporation, defendants below and appellants and
cross-appellees here (collectively referred to as
“Goodyear” or
“appellants”), and Michael Tulloh, plaintiff below and appellee and cross-appellant here (“appellee”), appeal from a judgment entered by the Pike County
Court of Common Pleas. Appellants assign five errors and in his cross-appeal,
appellee assigns three errors.
The record contains the following relevant facts. From June 24, 1975 to
November 26, 1986, appellants employed appellee at the Portsmouth Gaseous
Diffusion Plant in Piketon, Ohio.
Appellee worked as a uranium materials handler, dealing primarily with liquid
and crystalline uranium hexafluoride (“UF[6]”). On
[***2] March 13, 1985, appellee was injured when he was exposed to a release of
UF[6]. Appellee filed for and received workers’ compensation. In
[*745] August 1985, Dr. Kelly,
one of appellee’s treating physicians, released appellee for work without
restrictions. Doctors’ records indicate that appellee’s only lingering problem
was irritable bowel syndrome. However, appellee did not work from August 1985
to March 1986, because of a layoff and disciplinary suspension.
[**1206] Appellee returned to work on March
3, 1986. After that date, appellee only worked during the following periods:
March 3 — May 30, 1986
July 7 — Sept. 5, 1986
Nov. 4-20, 1986.
At trial, appellee presented a letter from Dr. Kelly dated June 2, 1986, which
indicated that appellee should not work in areas with potential exposure to
UF[6]. Appellants contend that this letter is not in any of Tulloh’s medical
or personnel files and Dr. Jones, the plant physician, testified he never saw
this letter. Although appellee could not recall how or to whom this letter was
delivered, he insisted he
gave the letter to some representative of appellants.
From September 5, 1986 through November 4, 1986, appellee
[***3] did not work because he was hospitalized for sinus surgery and to treat
bacterial infections discovered in his throat. On October 15, 1986, appellee
attempted to return to work with letters of restriction from Drs. White and
Kelly. Drs. White and Kelly allowed appellee to return to work with the
restriction that he not work in any area of potential exposure. Appellee was
sent home because no work was available to him with restrictions.
On November 4, 1986, appellee returned to work. Plant records indicated that
appellee talked to a plant
nurse at about 8:00 a.m. These records also indicate that appellee was still
restricted from working in areas with potential UF[6] exposure. At about 10:00
a.m. the same morning, appellee was instructed to return to the plant
physician, Dr. Jones, who examined him. Dr. Jones told appellee to return to
work
“without restrictions.” At trial, Kenneth Lauderback testified that on the morning of November 4,
1986, Cleveland Jones, the plant human resources director, stated that he was
upset with appellee and the medical restrictions and would terminate appellee
the first chance he got. On November 19 and November 20, 1986, appellee worked
double
[***4] shifts, then
went to the hospital for independent urinalyses. Apparently, appellee was
terminated as of that date.
Appellee filed a complaint in federal district court on December 31, 1986,
alleging intentional tort. The federal court subsequently dismissed appellee’s
case for lack of subject matter jurisdiction. On February
19, 1988, appellee filed a complaint in the Pike County Court of Common Pleas
alleging intentional tort and wrongful discharge. The trial court granted
appellants’ Civ.R. 12(B)(6)
[*746] motion to dismiss for failure to state a claim upon which relief could be
granted. This court affirmed the dismissal of the intentional tort claim and
reversed the dismissal of the wrongful discharge claim.
Tulloh v. Goodyear Atomic Corp. (Sept. 4, 1990), Pike App. No. 449, unreported,
1990 WL 138483. The Ohio Supreme Court reversed our judgment regarding the intentional
tort claim and affirmed our reversal on the wrongful discharge claim.
Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541, 584 N.E.2d 729.
Appellee then filed an amended complaint. On May 11, 1992, the trial court
granted appellants’ motion to dismiss the
wrongful discharge claim and
[***5] on October 13, 1992, the trial court filed a judgment entry granting, in part,
appellants’ motion for summary judgment. The entry allowed appellee to present
evidence to establish intentional tort subject to the following limitations:
(1) injury which occurred on or after
February 19, 1986 (because of statute of limitations).
(2) injury resulting from exposure to
chemically toxic substances (not radiation), specifically UF[6], HF, UO[2]F[2], and
fluorine.
(3) emotional pain and suffering
resulting from injury (not from fear of developing cancer).
The parties conducted
a jury trial from October 19 to October 23, 1992. Before the case was
submitted to the jury, the trial court overruled appellants’ motion for a
directed verdict. The jury returned a verdict for appellee, awarding him $
100,000 in compensatory damages. The jury did not award
punitive damages, but did find that appellee was entitled to attorney fees.
Appellants filed motions for judgment notwithstanding the verdict and for a new
trial, both of which the trial court overruled. The trial court did, however,
vacate the attorney fees award because
[**1207] of the lack of an award of punitive damages.
[***6] This appeal and cross-appeal followed.
GOODYEAR’S APPEAL
“I. The trial court erred in denying defendants’ motions for directed verdict,
judgment, and judgment notwithstanding the verdict.”
In their first assignment of error, appellants argue that the evidence
presented at trial was insufficient as a matter of law to support the verdict.
Therefore, they contend, the
trial court erred in overruling their motions for directed verdict and judgment
notwithstanding the verdict.
A motion for a directed verdict presents a question of law, not a question of
fact, even though in deciding such a motion it is necessary to review and
consider the
evidence.
Grau v. Kleinschmidt (1987), 31 Ohio St.3d 84, 90, 31
[*747] OBR 250, 255, 509 N.E.2d 399, 404. A motion for directed verdict tests the legal sufficiency of the evidence.
Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94, 24 OBR 164, 493 N.E.2d 293. Accordingly, we make an independent review. When considering a motion for a
directed verdict, a court must construe the evidence most strongly in favor of
the party against whom the
motion is directed.
Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284,
[***7] 21 O.O.3d 177, 178-179, 423 N.E.2d 467, 469-470. A court considering a motion for directed verdict must determine not whether
one version of the facts presented is more persuasive than another; rather, the
court must determine whether the trier of fact could reach only one result
under the theories of law presented in the complaint.
Id. Where there is substantial competent evidence favoring the nonmoving party so
that reasonable minds might reach different
conclusions, the motion must be denied.
Ramage v. Cent. Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 109, 592 N.E.2d 828, 837.
Similarly, when reviewing a denial of a motion for judgment notwithstanding the
verdict, we apply the same
test as that applied in reviewing a motion for directed verdict.
Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511, 514-515, citing
Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 429-430, 344 N.E.2d 334, 338.
The Ohio Supreme Court has set out the test used in an employee’s action
alleging an intentional tort by his or her employer. The court held in
Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570
[***8] N.E.2d 1108, at paragraphs one and two of the syllabus:
“In order to establish ‘intent’ for the purpose of proving the existence of an
intentional tort committed by an employer against his employee, the following
must be
demonstrated: (1) knowledge by the employer of the existence of a dangerous
process, procedure, instrumentality or condition within its business operation;
(2) knowledge by the employer that if the employee is subjected by his
employment to such dangerous process, procedure, instrumentality or condition,
then harm to the employee will be a substantial certainty; and (3) that the
employer, under such circumstances, and with such knowledge, did act to require
the employee to continue to perform the dangerous task.
“To establish an intentional tort of an employer, proof beyond that required to
prove negligence and beyond that to prove recklessness must be established. As
the probability that the consequences will follow further increases, and the
employer knows that injuries to employees are
certain or substantially certain to result from the process, procedure or
condition and he still proceeds, he is treated by the law as if he had in fact
desired to produce the
[***9] result. However, the mere knowledge and appreciation of a risk — something
short of substantial certainty — is not intent.”
[*748] The employee has the burden of proving by a preponderance of the evidence that
the
employer had actual knowledge of the
exact dangers which ultimately caused the injury.
Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172, 539 N.E.2d 1114, 1116-1117;
Fuchsman v. Dallas
& Mavis Forwarding Co., Inc. (Feb. 6, 1990),
Ross App. No. 1562, unreported, at 17,
1990 WL 9959. The employee need not prove either
[**1208] actual subjective intent upon the part of the employer to produce the
resultant harm, or that the employer had knowledge of the
specific harm that might be suffered by the injured employee.
Fyffe, supra, 59 Ohio St.3d at 117, 570 N.E.2d at 1111-1112;
McDonald v. Contrs.
& Indus. Builders (Aug. 27, 1992), Scioto App. No. 91 CA 2005, unreported,
1992 WL 209499.
Appellants contend that the evidence presented at trial was insufficient as a
matter of
law to establish the elements of knowledge or injury.
We first address the question of whether appellee presented sufficient evidence
of the requisite knowledge of
[***10] appellants. Because appellee’s sole claim of injury is that exposures in 1986
aggravated his prior injuries or preexisting conditions, appellee must show
that the company knew of the condition and that subsequent exposures to
UF[6] and other compounds would aggravate appellee’s condition or cause new
injuries.
Appellants initially argue that even if appellee did give to appellants the
June 2, 1986 letter from Dr. Kelly containing the restriction that appellee
could not work in an area where there was potential for exposure, when appellee
returned to
work in early July, he brought a letter containing no restrictions. Therefore,
appellants argue they could not have knowledge of a substantial certainty of
injury.
Appellants further contend that the only possible basis upon which the jury
could have found knowledge was when appellee returned to work in November. Dr.
Jones,
knowing that there was no job available to appellee with restrictions, sent
appellee back to work with
no restrictions, even though Drs. White and Kelly had placed restrictions on
appellee’s return to work. Appellants argue that while this may present a jury
the question of whether such action was negligent
[***11] or reckless,
“reasonable minds
simply could not conclude that the plant Medical Director, a Board certified
specialist with twenty plus years experience, would have returned Tulloh to
work with the knowledge that additional injury was either certain or
substantially certain to occur.”
Appellants introduced a report written by Dr. Vilter, who examined appellee
in January 1986, following appellee’s March 1985 exposure and before appellee
returned to work in March 1986. Appellants also read Dr. Vilter’s trial
deposition to the jurors, although the transcript is not included in the
record. Dr.
[*749] Vilter concluded in this report that the only remaining
physical problem appellee was suffering from was irritable bowel syndrome.
Appellee counters that appellants did not need letters from doctors restricting
appellee’s work to show the necessary knowledge. Appellee argues: (1)
appellants’ own testimony was that they knew in 1970 that they needed a local
exhaust (“gulper”) system to
prevent harmful exposures; (2) appellants knew exposures to harmful substances
were going on all the time; (3) appellants sent employees for
“special” (i.e., in addition to the scheduled) urinalyses
[***12] when they were in the vicinity of a known release and, therefore, appellants
knew of continuing exposures; further, (4) appellants knew of appellee’s
1985 exposure and injury and should have known that continuing exposures would
be very hazardous to appellee.
Construing the evidence most strongly in favor of appellee as we must, we
conclude that appellee presented sufficient evidence to support the jury’s
conclusion that appellants knew in 1986 that sending appellee back to work in
Building X-344 as a uranium materials handler was substantially certain to cause injury.
Appellee presented the testimony of James Albers, an industrial hygienist.
Following a review of numerous documents including incident reports, Department
of Energy and plant documents available to appellants before and during 1986,
Albers testified that
in his opinion, in 1986, it was very likely that putting appellee to work in
Building 344 would expose him to hydrogen
fluoride (“HF”) or uranylfluoride and that such exposure would aggravate appellee’s
preexisting injuries and conditions. Further, appellee’s physician, Dr. Kelly,
testified that exposure to UF[6] and its resulting compounds was known, before
1986,
[***13] to cause upper respiratory problems as well as gastrointestinal system
problems. Albers, Kelly, and White all
[**1209] testified that it was well known that exposure to UF[6] and
fluoride compounds aggravated upper respiratory conditions such as those suffered by
appellee.
The record clearly contains evidence which, if the jury believed it, would
establish that appellants
knew or should have known of both appellee’s ongoing problems and the
recommendation of Kelly that appellee not be required to work in an area where
he might be exposed to UF[6], HF or fluorine. Appellee and Kelly testified
that Kelly wrote a
“to whom it may concern” letter dated June 2, 1986, a copy of which was
admitted into evidence, indicating that appellee is able to work in an
uncontaminated and
fluoride-free area. Appellee testified that he is sure he gave this letter to
appellants, either through the plant hospital or human resources department.
Dr. Jones testified that none of appellants’ files regarding appellee contained
this letter. Appellants
make much of the fact that Dr. Kelly wrote another letter dated June 25, 1986,
which was in Dr. Jones’s file, stating that appellee
“will be fit to
[***14] work July 2, 2986 [sic].” This letter did not
[*750] mention any work restrictions. Kelly explained that he did not believe he
needed to
repeat his earlier instruction that appellee needed to work only in an area
free of UF[6], HF, and fluorine. Thus, construing this evidence most strongly
in favor of appellee, the jury could have believed that appellants knew as
early as June 2, 1986, that appellee was still having upper respiratory and
gastrointestinal problems
due at least in part to UF[6] exposure and that further exposures would be
substantially certain to cause him more injury.
Appellants also contend in this first assignment of error that the evidence is
not sufficient to establish that appellee suffered any injury related to his
exposures in X-344. Appellants argue that appellee did
not identify any specific dates or incidents which allegedly caused him injury.
Appellants cite Exhibit 73, apparently the conclusion of the Department of
Energy in September 1986, that none of Tulloh’s complaints violated any federal
or state regulation. Appellants also argue that any continuing sinus and
gastrointestinal problems resulted from the 1985 exposure which, because
[***15] of the
statute of limitations, was not an issue in this case.
Appellee presented evidence showing that at least five releases of UF[6]
occurred in the X-344 building between July 7, 1986 and September 2, 1986,
several of which involved appellee. Appellee also testified that smaller
releases occurred on
a regular basis, not all of which were recorded in appellants’ records.
Kelly, White, and appellee testified about appellee’s health problems in 1986
and to the present. Appellee had to have polyps removed from his colon,
sinuses and throat, and he was hospitalized for sinus surgery and then again to
fight the infections Dr. White found
in appellee’s throat. Although Dr. White would not say that 1986 exposures
caused all of appellee’s injuries, he testified that 1986 chemical exposures
aggravated appellee’s medical problems. Further, Dr. White said that although
he could not say for sure that 1986 chemical exposures caused the infections
for which
appellee was hospitalized, he did testify that the chemical exposures would
certainly make appellee more susceptible to the infections and that they
indicated an acute illness related to post-July 1986 exposures. Dr. Kelly
testified
[***16] that chemical exposures in 1986 aggravated and exacerbated appellee’s
gastrointestinal and upper respiratory injuries.
Appellee also introduced
evidence establishing that his urinalysis showed
fluoride in his urine on May 30, August 15, August 28, September 2 and November 20,
1986. One of appellants’ witnesses testified that none of the
fluoride levels shown in appellee’s urinalyses rose above levels which can be found in
people not exposed to chemicals and caused by ordinary influences such as diet
and the amount of
fluoride in the drinking water. However, as we are required to construe the evidence
most strongly in appellee’s favor, the jury could reasonably have concluded
that appellee’s injuries and illnesses, including the
[*751] polyp development in 1986 through 1992, were
caused at least in part by 1986 exposures. Accordingly, we overrule
appellants’ first assignment of error.
“II. The jury’s verdict was against the manifest weight of the evidence
presented.”
[**1210] In their second assignment of error, appellants contend that the jury’s
verdict was against the manifest weight of the evidence. Where the burden of
proof is
preponderance of the evidence, an appellate
[***17] court will not reverse a judgment claimed to be against the weight of the
evidence if the record contains some competent credible evidence going to every
element.
Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 79, 10 OBR 408, 409-410, 461 N.E.2d 1273, 1275-1276.
Appellants argue first that judgment in favor of appellee is against the weight
of the evidence because (1) appellee attempted to equate releases with injury
and confused the jury, despite the fact that no one but appellee was injured;
(2)
even appellee acknowledged that having the local exhaust system and leak rating
system in place would not have prevented either the August 26, 1986 incident or
the September 2, 1986 release from the cold-trap area in which appellee was
involved.
Appellee emphasized both at trial and in his brief to this court, that
appellants knew as early as 1970 that a local exhaust (“gulper”) system would help to avoid worker exposure during a release and that appellee
suggested appellants install a leak-rating system which would help to detect
chemical leaks. However, the fact that the releases still would have occurred
even if these devices were in
place has no relevance to this case.
[***18] The issue is whether appellee was injured because of working in an area where
appellants knew there was a substantial certainty of harm to him.
We believe the record contains some competent credible evidence of every
necessary element such that the judgment in favor of appellee is not against
the weight of the evidence. The record is replete with
evidence that releases and exposures to chemicals occurred on a regular basis.
Both appellee and appellants presented evidence that appellants had in place a
urinalysis program in which employees, like appellee, were tested weekly for
chemicals in their systems. In addition, employees were sent for
“special”
urinalyses when they were known to be involved in a release. Appellee
presented evidence that several of his urinalyses between July and September
were
“special,” indicating that appellants knew that appellee had been exposed. Evidence
supports appellee’s contention that appellants knew of his 1985 injury and that
appellants knew that continued exposure to UF[6] would cause
further harm to appellee.
[*752] Appellants also contend that the verdict of $ 100,000 was against the weight
of the evidence. When reviewing a damage
[***19] award, an appellate court must not reweigh the evidence. An appellate court
may not disturb a damage award unless it lacks support from any competent
credible evidence.
Baum v. Augenstein (1983), 10 Ohio App.3d 106, 10 OBR 129, 460 N.E.2d 701;
Day v. Clifford (Aug. 24, 1993), Pike App. No. 499, unreported,
1993 WL 326389. Appellee argues that the $ 100,000 verdict is supported by the
evidence because there was evidence of almost $ 10,000 in medical expenses to
date and the probable cost of future colonoscopies which appellee is required
to undergo on regular basis will be over $ 50,000. Further, the jury was
instructed it could consider pain and suffering, the extent of the injury,
appellee’s inability to perform usual activities, anxiety over
recovery and the cost of hospital and medical expenses. Appellee testified at
trial about the things he could no longer do. He further testified about his
pain and anxiety caused by worrying about his working conditions and his health.
Appellee cites the $ 50,000 future costs for colonoscopies as a major factor
supporting the $
100,000 damage verdict. Our reading of the evidence suggests that the
necessity for future colonoscopies
[***20] resulted in large part from the original 1985 exposure. However, the jury
could have found that $ 100,000 adequately compensated appellee for his
physical injuries as well as his emotional problems resulting from his
employment with appellants. Accordingly, appellants’ second
assignment of error is overruled.
“III. The trial court erred in permitting the jury to consider medical treatment
which both Tulloh’s treating physicians related to his March 1985 workers’
compensation claim.”
[**1211] In their third assignment of error, appellants argue that counsel stipulated
that all bills for medical treatment from
June 1986 to January 1988 were subsequently determined by the Industrial
Commission to be related to the 1985 injury. Thus, appellants argue that the
decision of the Industrial Commission is binding on the parties in this case,
citing
Smith v. LTV Steel (Oct. 29, 1992), Cuyahoga App. No. 63313, unreported,
1992 WL 316324. Appellants apparently contend that the court erred in admitting evidence
relating to those medical bills or records which appellee’s physicians related
to the 1985 injury. The admission or exclusion of relevant evidence is a
matter within the sound
[***21] discretion of the trial court. An abuse of discretion involves more than an
error of
judgment; it connotes an attitude on the part of the court that is
unreasonable, unconscionable, or arbitrary.
Rock v. Cabral (1993), 67 Ohio St.3d 108, 112, 616 N.E.2d 218, 222;
Franklin Cty. Sheriff’s Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24, 30-31. When applying the abuse of discretion standard, a reviewing court is not free
to merely substitute its
[*753] judgment for that of the trial court.
In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181, 1184-1185, citing
Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301, 1308-1309.
The record does not include any ruling by the Industrial Commission or any
statement by counsel
explaining the Industrial Commission’s determination. Regarding the
stipulation, the record reveals that the following exchange took place before
appellants rested:
“[Appellants’ counsel]: Okay, pursuant to the discussion that we had earlier in
your chambers this morning, Your Honor, it is my understanding that the
plaintiffs [sic] are willing to stipulate that all medical treatments
[***22] from
1986 until . . . what’s the last one . . . all medical treatments starting with
June the 2nd, 1986 and concluding with January 21st, 1988, as reflected on
Plaintiff’s Exhibit # 1, which we also have agreed to admit into evidence, were
medical treatments which, at the time, the plaintiff and the treating physician
indicated to the Bureau of Workers Compensation, were related to his March 13th
1985 industrial injury.
“[Appellee’s counsel]: No, it’s not (inaudible) said they were, so I’m not
saying the plaintiff did. Some of the (inaudible, objecting to Mr. Tait’s
statement)
“[Appellants’ counsel]: Okay, this . . . let me . . . the plaintiff wouldn’t
have to do it. Okay, that the physicians involved represented to the Bureau of
Workers Compensation that they were related to Mr. Tulloh’s March 13th,
1985 industrial injury.
“COURT: Is that a fair statement?
“[Appellee’s counsel]: Yes.
“COURT: Okay, so that’s a stipulation.
“[Appellants’ counsel]: That’s a stipulation.”
Thus, it appears that the parties only stipulated that appellee’s
physicians represented to the Bureau of Workers’ Compensation that appellee’s 1986
treatment expenses related to the 1985 injury.
[***23]
Appellants’ attorney, during the trial, cross-examined the doctors about their
use of the 1985 injury date on workers’ compensation forms and various reports.
We are unclear as to what appellants contend the trial court should have
excluded because they agreed to admit Plaintiff’s Exhibit 1, the summary of
medical bills. Even if the court did improperly admit the
medical bills, appellants have not indicated how, if at all, they were
prejudiced by this admission. For reversal, appellants must establish not only
error, but that they were prejudiced by this error.
Gries Sports Enterprises, Inc. v. Cleveland Browns Football Co. (1986), 26 Ohio St.3d 15, 28, 26 OBR 12, 23-24, 496 N.E.2d 959, 969-970. The court allowed appellants to argue to the jury that the bills which
referenced 1985 related only to the 1985
[*754] injury. Accordingly, the trial court did not err in allowing the physicians
to testify or in
failing to treat as binding a determination of the Industrial Commission.
Appellants’ third assignment of error is overruled.
“IV. The trial court erred in allowing testimony by plaintiff’s industrial
hygienist, Mr. Albers.”
[**1212] In the fourth assignment of
[***24] error, appellants contend that the court erroneously allowed Albers, an
industrial hygienist, to testify as an expert for appellee. Evid.R. 702
provides:
“If scientific, technical or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training or
education, may testify thereto in the form of an opinion or otherwise.” The decision to qualify a witness as an expert is within the sound discretion
of the trial court and will not be reversed unless the court abused that
discretion. As noted above, an abuse of discretion involves more than an error
of judgment; it connotes an attitude on the part of the
court that is unreasonable, unconscionable, or arbitrary.
Rock, supra.
Albers testified that allowing appellee to work in the 344 building was
“likely to lead to” or
“had a high probability of leading to” an injury to appellee. He relied upon information he had gleaned from
government documents relating to appellants’ monitoring of chemical releases.
He also testified, in
response to a hypothetical question, that a person who had previously been
injured
[***25] by an exposure to UF[6] would have a high likelihood of being reinjured by
additional exposures. Further, he stated that this information was known as of
1986, although the court would not allow him to testify that appellants knew or
should have known the risk of injury.
Appellants contend that Albers did not have sufficient expertise to testify on
the subject matter of this case because he had no medical training and had no
knowledge of the particular plant involved. Further, Albers acknowledged that
he was not
“up to speed” on the health effects of UF[6]. Albers testified that he is a certified
industrial hygienist and has substantial
experience in occupational safety and health. He has evaluated hazards in the
workplace, including exposure to
fluorides and has extensive training and significant experience in worker health and
health protection. Although he did not visit the Piketon plant, Albers
reviewed plant records and government documents containing much information
about the plant.
Because Albers testified about matters within his range of expertise, we cannot
say that the trial court abused its discretion in allowing his testimony as an
expert in the field of industrial
[***26] hygiene. Appellants’ concerns regarding Albers’s qualifications to give an
opinion on the Piketon plant and to testify about medical
[*755]
matters go only to the weight and credibility of Albers’s testimony, and were
subjects of cross-examination. Accordingly, we overrule appellants’ fourth
assignment of error.
“V. The trial court erred in excluding the testimony of Mr. Lauderbach
concerning the history of workers’ compensation claims at the plant.”
Tulloh’s witness, Mr. Lauderbach,
served as the union Workers’ Compensation representative from 1982 to 1989. On
cross-examination, appellants’ attorney attempted to elicit testimony regarding
workers’ compensation claims due to exposure injury:
“Q. * * * I believe at the time that Mr. Loewengart took your deposition earlier
in this case, one of the things that you
indicated was in the time that you were the Workers’ Compensation Benefit Rep
you only recall 10 or 15 claims in the entire history that anybody had for any
type illness or exposure.”
The trial court did not indicate its reasons for sustaining Tulloh’s objection
to this line of cross-examination. Appellants argue in their
brief only that excluding this testimony
[***27] was prejudicial error without stating why such testimony should have been
admitted. The admission or exclusion of relevant evidence rests within the
sound discretion of the trial court.
State v. Combs (1991), 62 Ohio St.3d 278, 284, 581 N.E.2d 1071, 1077-1078;
State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus. Assuming that Goodyear’s attempt to impeach
Lauderbach and/or to get him to state that few claims had been made was
improperly excluded, we do not believe the defendants’
case rose or fell upon this testimony. In other words, the error, if any
existed, was harmless. See Civ.R. 61. Furthermore, Goodyear had access to
plant records and could have produced this evidence
[**1213] by other means. We overrule appellants’ fifth assignment of error.
TULLOH’S CROSS-APPEAL
“I. The trial
court erred in entering judgment that did not reflect the jury’s verdict that
the plaintiff is entitled to an award of attorneys’ fees.”
In his cross-appeal, Tulloh argues in his first assignment of error that the
trial court erred by entering a judgment that did not include an attorney fees
award.
The
court instructed the jury:
“Punitive
[***28] damages are damages which a jury may, but is not required to award as
punishment and to discourage others. Punitive damages are an exception to the
general rule of compensation for injury, and are allowable against a Defendant
upon clear or convincing proof that the acts or omissions of a
Defendant
[*756] demonstrated actual malice toward the Plaintiff. ‘Actual malice’ means (1)
conduct characterized by hatred, ill will or a spirit of revenge or (2) a
conscious disregard for the rights and safety of others that has a great
probability of causing substantial harm. This behavior may be
inferred from all the surrounding circumstances.
“You as the trier of fact then must determine whether the Defendants are liable
for punitive damages, and if you decide that the conduct of the Defendants
justifies an award of punitive damages, the attorneys’ fees of the lawyers
employed by the Plaintiff of this case.”
The jury then awarded $ 100,000 compensatory damages to Tulloh. The jury’s
verdict form
stated:
“The plaintiff is not entitled to punitive damages. The plaintiff is entitled
to attorneys’ fees.” The court immediately pointed out to counsel that there may be a problem with
an inconsistent
[***29] verdict because of the award of attorneys’ fees without a punitive damage
award. Counsel and the court agreed to discharge the jury and deal with the
problem
later.
Tulloh argues that the jury is presumed to follow the court’s instructions and,
therefore, the jury must have found that Goodyear’s conduct
justified punitive damages, but they just set the value at zero.
Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313. The finding of an
intentional tort does not necessarily mean that the standard for punitive
damages has been met. In the former, the intent standard is
“substantial certainty of injury,” while the standard for punitive damages is
“conscious disregard that has a great probability of causing substantial harm.” Further, to establish an intentional tort by an
employer, the employee need not show subjective intent.
McDonald, supra.
Most courts hold that the jury must
actually award punitive damages before an award of attorney fees is proper. In
Digital & Analog Design Corp. v. N. Supply Co. (1992), 63 Ohio St.3d 657, 662, 590 N.E.2d 737, 742, the court stated:
“The requirement that a party pay attorney fees * * * is a punitive (and thus
equitable)
[***30] remedy that flows from a jury finding of malice and the award of punitive
damages. * * * Without a finding of malice and the award of punitive
damages, plaintiff cannot justify the award of attorney fees, unless there is a
basis for sanctions under Civ.R. 11.” See, also,
Davis v. Tunison (1959), 168 Ohio St. 471, 477, 7 O.O.2d 296, 299, 155 N.E.2d 904, 908;
Henry v. Akron (1985), 27 Ohio App.3d 369, 371, 27 OBR 465, 466-467, 501 N.E.2d 659, 662-663;
Howard v. Urey (Sept. 9, 1988), Trumbull App. No. 3889, unreported,
1988 WL 94379. But, see,
Atram v. Star Tool & Die Corp. (1989), 64 Ohio App.3d 388, 392, 581 N.E.2d 1110, 1112-1113, holding that punitive damages need not be actually awarded,
i.e., a finding that punitive damages could properly have been awarded is
sufficient to support an attorney fees award.
[*757] Under the facts of this case where the jury was discharged without any attempt
to reconcile its somewhat inconsistent determinations, we agree that an award
of punitive damages was a prerequisite to an award of attorney fees. See
Montgomery v. Anderson (Mar. 2, 1993), Washington App. No.
92CA12, unreported,
1993 WL 63440. Therefore, the trial
[***31] court properly vacated the attorney fees award.
[**1214]
“II. The trial court erred in granting defendants’ motion to dismiss plaintiff’s
wrongful discharge claim.”
In Tulloh’s second assignment of error, he contends that the trial court
erroneously granted
Goodyear’s motion to dismiss his wrongful discharge claim. Prior to trial, the
trial court granted the motion to dismiss count two of Tulloh’s amended
complaint, which alleged in part:
“22. Pursuant to Article II, Section 34 of the Ohio Constitution, and R.C.
4101.12, Defendants had an obligation to provide a
safe place of employment. Defendants violated R.C. 4101.12 in failing to
provide a safe place of employment.
“23. Pursuant to Article I, Section[s] 1 and 11 of the Ohio Constitution, the
First Amendment to the United States Constitution and R.C. 4101.13, Plaintiff
had a right and a
duty to report unsafe working conditions. Plaintiff believes and therefore
avers that Martin Marietta’s purpose in wrongfully terminating Plaintiff was in
retaliation for Plaintiff’s exercise of his rights and duties under law.
“* * *
“25. Plaintiff believes and therefore avers that defendant Martin Marietta’s
purpose in wrongfully
[***32] terminating
Plaintiff was to eliminate from its workforce an employee known to voice his
concerns about an unsafe and improper work environment and thereby perpetuate
its violation of the laws.”
In
Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541, 584 N.E.2d 729, the Supreme Court held in the
syllabus:
“Absent statutory authority, there is no common-law basis in tort for a wrongful
discharge claim.” The court stated that
Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, allowed an
exception to the employment-at-will doctrine only when the employer terminates
the employee in direct violation of a statute. The court then held that
because Tulloh had not alleged a statutory violation, there was no basis in
tort for a wrongful discharge claim. Three justices joined in a
strong dissent from the syllabus, stating that they would hold that Tulloh
stated a viable claim for the tort of wrongful discharge based upon a violation
of public policy. They cited
Greeley:
“Today we only decide the question of a public policy exception to the
employment-at-will doctrine based upon
a violation of a specific statute. This is not to
[***33] say that there may not be other public policy exceptions to the doctrine
[*758] but, of course, such exceptions would be required to be of equally serious
import as the violation of a statute.”
Greeley, 49 Ohio St.3d at 234-235, 551 N.E.2d at 987,
cited in
Tulloh, 62 Ohio St.3d at 547, 584 N.E.2d at 734.
The
Tulloh dissenters cited R.C. 4113.52 n1 as evidence that public policy demands that
employees who voice concerns aimed at correcting unsafe working conditions be
protected against retaliation.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n1
Note: R.C. 4113.52 prohibits retaliation by an employer against an employee who
reports suspected violation of state or federal statute or regulation and
provides a civil remedy when the employer retaliates. However, R.C. 4113.52
has prospective application only,
Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, and was enacted after appellee was terminated.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
The
Tulloh dissenters would not require a statutory violation and believed that Tulloh
stated a claim
[***34] based upon the strong public policy of providing a safe working
environment and encouraging employees to try to remedy perceived unsafe working
environments. However, we are bound by the
Tulloh syllabus and therefore overrule this assignment of error.
“III. The trial court erred in granting partial summary judgment barring
plaintiff’s emotional distress claim.”
In his third assignment of error, Tulloh
argues that the trial court erred in granting partial summary judgment barring
his emotional distress claim. At the final pretrial on September 30, 1992,
Tulloh indicated for the first time that he intended to present evidence of
emotional distress based upon his fear of developing cancer or other adverse
health effects. The trial court on October 13, 1992, held that Tulloh could
only present evidence of emotional pain and suffering resulting from injury.
In his amended complaint, Tulloh did not allege a separate cause
[**1215] of action for intentional or negligent infliction of emotional distress. He
only raised
“emotional pain and suffering” as part of his intentional tort injury claim. Tulloh argues that instead of
prohibiting him from presenting evidence regarding
[***35] emotional distress because of the complaint, the court should have allowed him
to amend his complaint pursuant to Civ.R. 15(A). Tulloh contends that Goodyear
would not have been prejudiced by such an amendment. We agree with
Goodyear that the trial court properly denied Tulloh the opportunity to present
an emotional distress claim for two reasons.
First, the Civil Rules require Tulloh to seek leave to amend the complaint by
written motion or orally at a hearing. Civ.R. 7(B); Civ.R.
15(A);
Studier v. Taliak (1991), 74 Ohio App.3d 512, 515-516, 599 N.E.2d 718, 720-721. Because he never sought leave to amend, he waived argument that the court
should have allowed him to amend.
Coulter Pontiac v. Pontiac Motor Div. (1981), 4 Ohio App.3d 169, 172, 4 OBR 269, 273, 446 N.E.2d 1128, 1131-1132.
[*759] Second, even if Tulloh had made the motion, it could have been properly
denied. Under Civ.R. 15(A), the trial court may consider whether the motion
for leave to
amend is timely, whether there is any explanation for the failure to allege the
claim earlier, and whether an amendment would cause prejudice.
Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991),
[***36] 60 Ohio St.3d 120, 122-123, 573 N.E.2d 622, 624-625;
Taliak, supra;
Meadors v. Zaring Co. (1987), 38 Ohio App.3d 97, 99, 526 N.E.2d 107, 109-110. The decision to grant or deny a motion to amend the complaint is within the
sound discretion of the trial court. Here, there is no abuse of discretion
because Tulloh did not
raise the issue until three weeks before the trial date. Therefore, Tulloh’s
third cross-assignment of error is overruled.
Judgment affirmed.
Peter B. Abele and Grey, JJ., concur.
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