Boyd v. Lincoln Elec. Co.

902 N.E.2d 1023

179 Ohio App.3d 559

2008-Ohio-6143

BOYD et al., Appellants v. LINCOLN ELECTRIC CO. et al., Appellees.

No. 90315.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided November 26, 2008.

Climaco, Lefkowitz, Peca, Wilcox & Garofoli Co., L.P.A., John R. Climaco, Dawn M. Chmielewski, Jennifer L. Gardner, Lisa A. Gorshe, and John A. Peca; and Kelley & Ferraro, L.L.P., Anthony Gallucci, Cleveland, and Eric C. Wiedemer, for appellant Joseph Boyd.

Tucker Ellis & West L.L.P., Joseph L. Morford, Courtenay Youngblood Jalics, and Irene C. Keyse-Walker, Cleveland, for appellees Lincoln Electric Co. et al.

Seeley, Savidge, Ebert & Gourash Co., L.P.A., Robert D. Anderle, Daniel F. Gourash, Keith A. Savidge, and Matthew K. Seeley, Cleveland; and Stinson Morrison Hecker L.L.P. and Brian Williams, for appellee Deloro Stellite, L.P.

COLLEEN CONWAY COONEY, Presiding Judge.

{¶ 1} Plaintiff-appellant Joseph Boyd appeals the trial court's granting of summary judgment in favor of defendants-appellees, Lincoln Electric Co., Airco/BOC, the ESAB Group, Inc., Hobart Brothers Co., and Deloro Stellite, L.P. Finding some merit to the appeal, we affirm in part and reverse in part.

{¶ 2} Boyd was employed as a boilermaker welder from 1977 until 2004. During the span of his career, Boyd worked out of his union hall at jobsites for several different employers. His work generally consisted of welding together tubes and panels on boilers. He worked with welding rods, welding wire, and other welding consumables on a daily basis. The appellees in this case are manufacturers of these welding consumables.

{¶ 3} Welding consumables contain manganese. Manganese is a naturally occurring element and is an essential ingredient for the proper manufacture of steel because it prevents steel from cracking and falling apart when it is manufactured. Jones v. Lincoln Elec. Co. (7th Cir.1999), 188 F.3d 709, 715. The heat used in the welding process causes welding fumes when the welder fuses together the metal and the rod. Id. Consequently, the fumes generated by the burning of a mild steel welding rod contain manganese. Id. At the present time, "no one denies that manganese, although essential to human health in small amounts, is poisonous in large quantities." Clendenin Bros. v. U.S. Fire Ins. Co. (2006), 390 Md. 449, 889 A.2d 387, quoting Jean Hellwege, Welding Rod Litigations Heats Up; Workers Claim Toxic Fumes Cause Illness, 40 TRIAL Magazine (2004), 7, 14.

{¶ 4} In 1967, the manufacturers began placing a product label on welding-rod containers, stating that welding may produce a concentration of fumes and gases hazardous to one's health. The warning also cautioned users to avoid breathing the fumes and gases and to use proper ventilation. In 1979, the warning was updated and contained statements such as "fumes and gases can be dangerous to your health," "keep your head out of fumes," and "use enough ventilation * * * to keep fumes and gases from your breathing zone and the general area." In 1986, welding-rod manufacturers added a product sticker indicating that certain chemicals, including manganese, may be hazardous. The label was updated in 1991 as follows: "Warning, the following chemicals may be hazardous during welding: Iron, manganese, silicon, titanium dioxide. Lung and nervous system damage may result from overexposure." In 1997, 20 years after Boyd began welding, some manufacturers updated their labels to warn that overexposure to manganese could affect the central nervous system, resulting in irreversible impairment to speech and movement.

{¶ 5} Boyd began noticing hand tremors in 1999. He also experienced problems with his right arm "drawing up," left foot drop, sweating and panic attacks, and problems with his speech and memory. His symptoms slowly and gradually progressed and became worse. In 2004, Boyd was diagnosed with manganism, or manganese-induced parkinsonism. Later that year, he filed suit against appellees, seeking damages for injuries he alleged were incurred as a result of his occupational exposure to welding fumes and manganese.

{¶ 6} Even though the welding-rod containers contained warnings, Boyd testified at his deposition that he did not recall seeing any of the various warning labels. He explained that he did not have access to the containers because the welding rods would be removed from their cartons and placed in a warming oven before he would use them. Boyd would take the welding rod from the warming oven and put it in a "thermos box" to keep it warm until he was ready to use the rod.

{¶ 7} The manufacturers also published Material Safety Data Sheets ("MSDS"), which contained more detailed safety information about their products. Boyd testified that he never saw any MSDSs that warned about the hazards of welding fumes. He also testified that he was never trained to keep his head out of welding fumes nor advised about any long-term effects of exposure to manganese compounds in welding fumes. He testified that the only potential hazards he recalled being warned about were "boiler flu" and skin rashes.

{¶ 8} The appellees moved for partial summary judgment. The trial court heard oral arguments over a three-day period in December 2006. In June 2007, the trial court granted the motion for summary judgment on counts three, four, five, six, and nine. The following month, the trial court also granted summary judgment on counts one, two, ten, and 11 of the complaint, which left only count 12, Boyd's claim against his employers for intentional tort, pending for trial.

{¶ 9} In granting summary judgment, the trial court found as follows:

In a failure to adequately warn claim, it is imperative that a plaintiff show that his reliance on the inadequate warning was the proximate cause of his injury. If a plaintiff is unable to do so, his claim fails. * * * [I]t is difficult for Plaintiff to make a failure to warn claim citing the inadequacy of the warnings when Plaintiff himself never saw or read the warnings. The fact that Plaintiff never saw or read the warnings is made even more important because Plaintiff testified that he would have abided by the warnings had he seen or read them. Thus, had he read the warnings, he would have modified his behavior and, perhaps, not suffered the alleged injury.

Defendants point to sufficient case law to demonstrate that when a plaintiff testifies that he or she did not read a warning label, proximate cause cannot be established and the claim must fail.

(Citations omitted.)

{¶ 10} Boyd filed a motion for reconsideration, or, in the alternative, to immediately "certify a Civ.R. 54(B) appeal" and to stay the September 2007 trial date. He requested that the trial court reconsider its finding as to counts one through six and nine through 11. The trial court denied Boyd's motion for reconsideration but granted the motion to certify a Civ.R. 54(B) appeal.

{¶ 11} Boyd filed his notice of appeal, raising two assignments of error for our review. In his notice of appeal, Boyd stated that he was appealing the trial court's granting of summary judgment and the court's denial of his motion for reconsideration only on counts three through six and count nine. In other words, Boyd is appealing only the trial court's decision on his claims for negligence, negligence-sale of product, strict liability—misrepresentation, breach of express warranty, and aiding and abetting.¹

{¶ 12} We initially determined that we did not have jurisdiction to review the instant appeal because the trial court failed to include the mandatory language required by Civ.R. 54(B) in its journal entry. Boyd filed a motion for reconsideration, informing this court that he had dismissed all the employer defendants from the lawsuit, so the count for employer intentional tort was no longer pending; thus, the trial court's granting of summary judgment disposed of all the pending claims. We granted the motion for reconsideration and will now reach the merits.

{¶ 13} In the first assignment of error, Boyd argues that the trial court erred in granting partial summary judgment by finding that his claims for failure-to-warn failed for lack of proximate cause.

Legal Standards

{¶ 14} Appellate review of summary judgments is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co. (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. The Ohio Supreme Court stated the appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201, as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.

{¶ 15} Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E); Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138.

{¶ 16} Boyd bases his products-liability claims on theories of both strict liability and negligence. In general, manufacturers of defective...