Norgard v. Brush Wellman, Inc.

766 N.E.2d 977, 95 Ohio St. 3d 165
CourtOhio Supreme Court
DecidedMay 8, 2002
DocketNo. 2001-0063
StatusPublished
Cited by41 cases

This text of 766 N.E.2d 977 (Norgard v. Brush Wellman, Inc.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norgard v. Brush Wellman, Inc., 766 N.E.2d 977, 95 Ohio St. 3d 165 (Ohio 2002).

Opinions

Francis E. Sweeney, Sr., J.

{¶ 1} Appellant David Norgard began working for appellee, Brush Wellman, Inc., in 1981 as a fluoride furnace operator at its beryllium plant in Elmore, Ohio. Within a few weeks of the start of his employment, Norgard broke out in a rash. The rash became so severe that it turned into skin ulcers. Norgard also developed other complications, such as dizziness, heavy breathing, and profuse coughing and spitting. Norgard was consistently treated at the plant dispensary and was repeatedly told not to worry. However, unknown to Norgard, Brush Wellman began to suspect that Norgard was the type of person with a heightened sensitivity to beryllium. Therefore, Brush Wellman began to periodically test his blood and send him to the National Institute of Health in Maryland. Norgard was repeatedly reassured by Brush Wellman that he was fine. Nevertheless, the company filed a workers’ compensation claim on his behalf for beryllium sensitivity-

{¶ 2} Norgard was laid off from October 1981 until March 1984, although he still received his pay and benefits. When he was called back, he was placed in various work settings, but he was still exposed to beryllium and he was still having severe reactions to it. In June 1992, Norgard was sent to the Cleveland Clinic for testing. In August 1992, he received the formal diagnosis that he had [166]*166chronic beryllium disease (“CBD”), a debilitating, and sometimes fatal, lung disease, caused by his exposure to beryllium. His earlier-filed workers’ compensation claim was amended to reflect this diagnosis, and he was immediately placed on disability leave.

{¶ 3} Thereafter, at the recommendation of a company physician, Norgard began meeting with a counselor to cope with his illness. He joined a CBD support group, sponsored by the company, and in 1993, he and his wife, Theresa, became facilitators for the group. Between 1993 and October 1995, in an attempt to learn about CBD, Norgard and members of the group contacted the EPA, OSHA, legislators, and doctors familiar with the disease. Instead of assistance, Brush Wellman tried to discourage Norgard and told him his activities were causing alarm among the company’s shareholders.

{¶ 4} In October 1995, Norgard read an article in a local newspaper about some beryllium lawsuits involving Brush Wellman and its employees in Arizona. Norgard contacted the law Arm mentioned in the article. The attorney, who represented the Brush Wellman employees, told Norgard that for years Brush Wellman had withheld information about the causes of beryllium-related diseases and the acceptable levels of beryllium to which an employee could be exposed without harm, that Brush Wellman knew that its air-sampling collections were faulty and inaccurate and that a large number of its employees were developing CBD, and that there might have been problems related to respiratory equipment and ventilation that led to unnecessarily elevated beryllium exposures. Within two years of receiving this information, Norgard filed an intentional-tort action against Brush Wellman. His wife joined with a claim for loss of consortium. The Norgards later dismissed their first lawsuit and filed this action within one year of the dismissal.

{¶ 5} After Brush Wellman’s motion to dismiss was denied, it filed a summary judgment motion based on the statute of limitations. The trial court granted summary judgment without an opinion. The court of appeals affirmed. The cause is now before the court upon the allowance of a discretionary appeal.

{¶ 6} The question before us is whether the employer intentional-tort claim is barred by the statute of limitations. Both parties agree that the applicable statute of limitations for this claim is R.C. 2305.10, which provides for a two-year period in which to bring suit. The parties also agree that the discovery rule applies. However, the parties differ as to what triggered the statute of limitations.

{¶ 7} Brush Wellman argues and the court of appeals found that the statute of limitations began to run in August 1992 when Norgard learned he had contracted CBD at the workplace. This argument equates Norgard’s knowledge that conditions at the plant had caused his illness with knowledge that his illness [167]*167was caused by Brush Wellman’s conduct. Norgard, however, contends that the statute of limitations was triggered in October 1995, when he claims that he discovered Brush Wellman’s wrongful conduct. For the following reasons, we agree with Norgard’s position. Accordingly, we reverse the court of appeals and remand the cause for a trial.

{¶ 8} Generally, a cause of action accrues and the statute of limitations begins to run at the time the wrongful act was committed. Collins v. Sotka (1998), 81 Ohio St.3d 506, 507, 692 N.E.2d 581. However, the discovery rule is an exception to this general rule and provides that a cause of action does not arise until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, that he or she was injured by the wrongful conduct of the defendant. Id., citing O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727.

{¶ 9} In O’Stricker, the court emphasized that the discovery rule entails a two-pronged test — i.e., discovery not just that one has been injured but also that the injury was “caused by the conduct of the defendant” — and that a statute of limitations does not begin to run until both prongs have been satisfied. O’Stricker, 4 Ohio St.3d at 86, 4 OBR 335, 447 N.E.2d 727, paragraph two of the syllabus.

{¶ 10} Since the rule’s adoption, the court has reiterated that discovery of an injury alone is insufficient to start the statute of limitations running if at that time there is no indication of wrongful conduct of the defendant. Moreover, the court has been careful to note that the discovery rule must be specially tailored to the particular context to which it is to be applied. Browning v. Burt (1993), 66 Ohio St.3d 544, 559, 613 N.E.2d 993.

{¶ 11} In Browning, the court considered claims against Dr. James C. Burt, who had performed experimental surgeries on his patients, severely maiming them. Jimmie Browning brought a malpractice claim against Dr. Burt and a claim against the hospital for negligent credentialing.

{¶ 12} Initially, we found that negligent credentialing and medical malpractice are separate claims. Thus, while discovery of the injury and its immediate cause may have been sufficient to trigger the statute of limitations on the malpractice claim, they were not sufficient to trigger the statute of limitations on the negligent-credentialing claim. The distinction turned on the fact that discovery of malpractice and its attendant injury was not sufficient to raise suspicion of the hospital’s credentialing practices. We found:

{¶ 13} “[Discovery of a physician’s medical malpractice does not, in itself, constitute an ‘alerting event’ nor does discovery implicate the hospital’s credentialing practices or require investigation of the hospital in this regard. To hold otherwise would encourage baseless claims of negligent credentialing and a [168]*168hospital would be named in nearly every lawsuit involving the malpractice of a physician.” Id., 66 Ohio St.3d at 561, 613 N.E.2d 993.

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Cite This Page — Counsel Stack

Bluebook (online)
766 N.E.2d 977, 95 Ohio St. 3d 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norgard-v-brush-wellman-inc-ohio-2002.