Fisher v. Alliance Machine Co.

947 N.E.2d 1308, 192 Ohio App. 3d 90
CourtOhio Court of Appeals
DecidedJanuary 27, 2011
DocketNo. 94836
StatusPublished
Cited by3 cases

This text of 947 N.E.2d 1308 (Fisher v. Alliance Machine Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Alliance Machine Co., 947 N.E.2d 1308, 192 Ohio App. 3d 90 (Ohio Ct. App. 2011).

Opinion

Mary J. Boyle, Judge.

{¶ 1} Appellant, Eugene Fisher Jr., for the estate of plaintiff, Eugene Fisher Sr. (“Fisher”), appeals from a judgment granting summary judgment in favor of defendants-appellees, Arthur Louis Supply Company (“A. Louis”) and Clark Industrial Insulation Company (“Clark”). In this appeal, the estate contends that the trial court erred by granting summary judgment to A. Louis and Clark. After a thorough review of the record, we affirm with respect to Clark, but reverse with respect to A. Louis.

{¶ 2} Fisher worked as an electrician at Reactive Metals, Inc., from September 16, 1957, to June 14, 1963, where his estate claims he was exposed to asbestos products supplied by A. Louis and Clark. He developed mesothelioma from his exposure to asbestos and filed a complaint on June 6, 2006, against numerous entities, including A. Louis and Clark, for damages arising from his disease. Fisher died on June 21, 2006, just over two weeks after he filed his complaint. His son was substituted as plaintiff in the case.

{¶ 3} A. Louis and Clark moved for summary judgment, arguing that Fisher’s estate did not present any competent evidence that he was exposed to asbestos from products they supplied during his employment with Reactive Metals. They further argued that even if the court found that there was sufficient evidence to create genuine issues of fact that Fisher was exposed to their products during the relative time period, Fisher’s estate still did not establish that these products were a substantial factor in causing Fisher’s mesothelioma.

{¶ 4} The trial court granted both summary-judgment motions, finding that Fisher’s estate failed to produce any evidence that Fisher was exposed to any products supplied by A. Louis or Clark and that it failed to produce evidence that exposure to asbestos products supplied by A. Louis or Clark were a substantial [93]*93factor in causing his mesothelioma. It is from these judgments that Fisher’s estate appealed.

{¶ 5} Appellate review of summary judgment is de novo, governed by the standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Accordingly, we afford no deference to the trial court’s decision and independently review the record to determine whether summary judgment is appropriate. Hollins v. Shaffer. 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12.

{¶ 6} As in any case, summary judgment is appropriate in an asbestos case “when, looking at the evidence as a whole, (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party.” Civ.R. 56; Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus.

Asbestos Law

{¶ 7} The Ohio Supreme Court has held that “[f]or each defendant in a multidefendant asbestos case, the plaintiff has the burden of proving exposure to the defendant’s product and that the product was a substantial factor in causing the plaintiffs injury.” Horton, paragraph one of the syllabus. In Horton, the Supreme Court adopted the definition of “substantial factor” in Restatement of the Law 2d, Torts (1965), Section 431, Comment a:

{¶ 8} “The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead [a reasonable person] to regard it as a cause, using that word in a popular sense, in which there always lurks the idea of responsibility, rather than the so-called ‘philosophical sense,’ which includes every one of the great number of events without which any happening would not have occurred.” Id. at 686.

{¶ 9} Fisher’s estate cites Horton to support what it claims a plaintiff needs to prove regarding “substantial factor.” Specifically, it quotes paragraph two of the Horton syllabus, where the Ohio Supreme Court explicitly “disapproved” the “frequent-proximity” test set forth in Lohrmann v. Pittsburgh Corning Corp. (C.A.4, 1986), 782 F.2d 1156. In paragraph two of the Horton syllabus, the Supreme Court held that “[a] plaintiff need not prove that he was exposed to a specific product on a regular basis over some extended period of time in close proximity to where the plaintiff actually worked in order to prove that the product was a substantial factor in causing his injury.”

{¶ 10} But Fisher’s estate fails to acknowledge that “[t]he General Assembly effectively overruled paragraph two of the syllabus to Horton with the adoption [94]*94of R.C. 2307.96(B), effective to cases filed on or after September 2, 2004.” Vince v. Crane Co., 8th Dist. No. 87955, 2007-Ohio-1155, 2007 WL 766114, fn. 3. Since this case was filed in 2006, R.C. 2307.96(B) is applicable. Thus, this provision sets forth Fisher’s estate’s burden in establishing that each defendant’s product was a substantial factor in causing Fisher’s mesothelioma. It provides:

{¶ 11} “(B) A plaintiff in a tort action who alleges any injury or loss to person resulting from exposure to asbestos has the burden of proving that the plaintiff was exposed to asbestos that was manufactured, supplied, installed, or used by the defendant in the action and that the plaintiffs exposure to the defendant’s asbestos was a substantial factor in causing the plaintiffs injury or loss. In determining whether exposure to a particular defendant’s asbestos was a substantial factor in causing the plaintiffs injury or loss, the trier of fact in the action shall consider, without limitation, all of the following:

{¶ 12} “(1) The manner in which the plaintiff was exposed to the defendant’s asbestos;
{¶ 13} “(2) The proximity of the defendant’s asbestos to the plaintiff when the exposure to the defendant’s asbestos occurred;
{¶ 14} “(3) The frequency and length of the plaintiffs exposure to the defendant’s asbestos;
{¶ 15} “(4) Any factors that mitigated or enhanced the plaintiffs exposure to asbestos.”

{¶ 16} In adopting R.C. 2307.96(B), the General Assembly explained:

{¶ 17} “It is the intent of the General Assembly in enacting section 2307.96 of the Revised Code in this act to establish specific factors to be considered when determining whether a particular plaintiffs exposure to a particular defendant’s asbestos was a substantial factor in causing the plaintiffs injury or loss. The consideration of these factors involving the plaintiffs proximity to the asbestos exposure, frequency of the exposure, or regularity of the exposure in tort actions involving exposure to asbestos is consistent with the factors listed by the court in Lohrmann v. Pittsburgh Corning [Corp.] (4th Cir.1986), 782 F.2d 1156. The General Assembly by its enactment of those factors intends to clarify and define for judges and juries that evidence which is relevant to the common law requirement that plaintiff must prove proximate causation.

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Cite This Page — Counsel Stack

Bluebook (online)
947 N.E.2d 1308, 192 Ohio App. 3d 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-alliance-machine-co-ohioctapp-2011.