Lucio et al v. Levy Environmental Services Company, et al.
Filing
41
Order : Levy's motion to exclude opinion of Vincent Gallagher (Doc. 33 ) be, and the same hereby is, granted in part and denied in part. Levy's motion for summary judgment (Doc. 25 ) be, and the same hereby is, granted. Judge James G. Carr on 3/22/16.(C,D)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Theodore Lucio, et al.,
Case No. 3:14CV1849
Plaintiffs,
v.
ORDER
Levy Environmental Services
Company, et al.,
Defendants.
This is an employee’s tort action in which plaintiff seeks recovery against his employer for
severe injuries he suffered when he fell approximately twenty-five feet from an unguarded screen
deck on a slag mill tower.
Plaintiff Theodore Lucio brings suit under O.R.C. § 2745.01, alleging Defendant Levy
Environmental Company (Levy), among others, acted with deliberate intent to harm him.
Additionally, Lucio’s wife alleges a loss of consortium claim due the injuries Lucio sustained from
the fall.
I have jurisdiction under 18 U.S.C. § 1332.
Pending are two motions: 1) Levy’s motion to exclude the opinion of Lucio’s expert, Vincent
Gallagher (Doc. 33); and 2) Levy’s motion for summary judgment (Doc. 25).
For the reasons discussed below, I: 1) grant Levy’s motion to exclude in part and deny it in
part; and 2) grant Levy’s motion for summary judgment.
Background
Levy owns and operates several slag mills throughout the country, including one at the
facility commonly known as Fulton Mill in Delta, Ohio. (Doc. 26-6 ¶ 3). Fulton Mill is an onsite
contractor for North Star Blue Scope steel mill (NSBS). (Doc. 26-5 at11). Fulton Mill removes slag,
which is the by-product of steel, from NSBS’s furnace and processes it into useable product such as
aggregate, asphalt, or other paving material. (Doc 26-1 at 11; Doc. 26-5 at 13).
NSBS deposits the molten slag in slag pots. Levy then transports them to Fulton Mill and
discharges them into cooling pits. (Doc. 26-5 at 11-12). Once the slag has cooled, Levy removes the
material from the pits and stores it in piles until ready for processing at the slag mill. (Doc. 26-1 at
11; Doc. 26-5 at 13).
Fulton Mill has four separate slag mills, referred to as Towers One through Four. (Doc. 26-4
at 22-23). At Tower Two, a conveyor moves the slag to near the top of the slag mill, and then dumps
it into a stone hopper, which sifts the material through a screen to separate the smaller from the
larger usable material. (Id. at 22, 27). The larger material goes down through a crusher and is
recycled. (Id. at 22). The smaller material may be further processed through the smaller finishing
screens at Tower One. (Id.).
The mill is about thirty feet high. Guard rails surround a series of walking platforms.
Staircases at the end of the platforms enable employees to reach the hopper. (Id., Ex. 7 at 2). One of
the walkway platforms is about six feet below the hopper. (Doc. 26-1 at 38). An overhead deck
covers about two thirds of the hopper, and consists of I-beams supporting the walkway structure.
(Doc 26-4 at 30).
2
The hopper sits near the top of the mill and resembles a box with an open top. (Doc. 26-1 at
35). The sides of the hopper have rubber edges approximately twenty-eight inches high that prevent
the slag from being thrown out of the hopper while operating. (Id. at 37; Doc. 1-1 ¶ 13). The hoppers
do not have guard rails. (Doc. 26-6 ¶ 8).
The “floor” of the hopper is known as the screen deck. It consists of a stationary piece of
screening, followed by two separate removable metal screens that sit side by side and extend the
remaining width and length of the hopper. (Doc. 26-2 at 30). The screen deck measures about five
by twelve feet. (Doc. 26-5 at 26). The screens sit on a steel frame at the bottom of the rubber sides
of the hopper. (Id. at 25). Bolts along the lower portion of the hopper secure tension plates that hold
the screens in place. (Doc. 26-4, Ex. 2). The area directly below the screen is not open to the ground.
Steel cross bars sit immediately below the screen, and below the cross bars is a metal chute that
empties into the stone crusher. (Doc. 26-1 at 31; Doc. 26-4 at 73, Ex. 7 at 3).
The screen deck is sloped at thirty to forty degrees so oversized stone material will funnel
into the chute below and at the end of the screen deck. (Doc. 26-5 at 23). The hopper shakes the slag
so that the useable material sifts through the screen. (Doc. 26-6 ¶ 8). Workers change the screens
approximately once a week, either when the screens are worn out or to switch to screens with smaller
or larger grates to process different types of material. (Doc. 26-1 at 62-63; Doc. 26-5 at 13).
Changing the screen requires two employees. During the period relevant to this lawsuit,
Walter Deeds and Shawn Griffin usually changed the screens. (Doc. 26-4 at 41-42). Deeds would
climb into the hopper to pull the tension plates out.1 (Doc. 26-4 at 41). He would access the screen
1
A lock out mechanism prevents the hopper, crusher, or other energized components from operating.
(Doc. 26-4 at 41, 71, Ex. 6.)
3
deck to loosen the bolts and remove the tension plates, or screen retaining rails, which hold the
screen in place. (Id., Ex. 6).
At ground level, Griffin operated a crane, which was positioned off the southwest corner of
the mill. (Doc. 26-5 at 18). Deeds would attach a strap to the screen, and then signal Griffin to lift
the old screen from the hopper with the crane and lower it to the ground. (Doc. 26-4 at 41). The
crane would then lift the new screen to the screen deck, where Deeds would unstrap it, move it into
position, and reaffix the tension plates with the bolts. (Id. at 43, 53, Ex. 6).
There was nowhere in the hopper to stand once the screens were out. (Doc. 26-1 at 31).
According to Lucio, the employees had to straddle the crossbar structure that supports the screens.
(Id.).
Prior to Lucio’s accident, one of the overhead I-beams had a hole that, according to Levy,
an employee working inside the hopper could use as a tie off point for fall protection.2 (Doc. 26-5
at 26). Alternately, Levy asserts, employees could use I-beam or “D” clips to attach to the overhead
I-beams as a tie off point. (Doc. 26-2 at 19; Doc. 26-3 at 35). There were not, however, welded-on
anchor points for use with a fall protection system; after the accident, Levy added anchor points.
(Doc. 26-2 at 27; Doc. 26-5 at 42).
Lucio began working at Fulton Mill in 2009. (Doc. 26-1 at 9). For three years he worked at
the slag cooling pit. (Id. at 11-12). He later transferred to a loader position where he removed slag
from the ladles used at the NSBS facility for transfer back to Fulton Mill. (Id. at 12-13). Upon hire,
2
Lucio disputes that mill workers had training to use, or ever did use, the I-beam hole as a tie-off
point, and that such a tie-off point was acceptable fall protection. (Doc. 31 at 13-14).
4
he acknowledged receipt of the Mini Mill Uniform Rules and Regulations, which mandated that he
use fall protection where required (Doc. 27-1 at 8, Levy-420).
In early February, 2013, Lucio transferred to plant operations, where he was assigned to
work with Deeds and Griffin. (Doc. 26-1 at 13-14). Lucio observed Deeds and Griffin perform the
screen change on one occasion, and had helped them with screen changes two other times before his
accident on February 25, 2013. (Id. at 29-30).
That day Lucio was on the Tower Two screen deck helping Deeds with the screen change.
(Id. at 38-39). Neither was wearing a fall protection harness. (Doc. 26-5 at 34; Doc. 26-3 at 36).
Griffin was operating the crane. (Doc. 26-4 at 55). The three had removed both of the old screens
and had one new screen in place. (Doc. 26-1 at 40). Shortly thereafter, Lucio fell. (Id. at 41).
Lucio does not know what caused him to fall, but he believes he either slipped or lost his
balance. (Id.; Doc. 26-4 at 54). Deeds did not see him fall. (Doc. 26-2 at 31-32). Deeds was working
on moving the new screen into position and when he looked up Lucio was gone. (Id.). From the
crane below, Griffin saw Lucio falling head first over the edge of the hopper, but he did not see what
caused Lucio to fall. (Doc. 26-4 at 54). Lucio did not fall on the walking platform five to six feet
beneath the hopper, but instead hit the guardrail surrounding that platform and fell to the ground.
(Doc. 26-1 at 38, 40-41; Doc. 26-4 55, Ex. 1). No one else witnessed the accident. (Doc. 27-1 at 4).
Lucio sustained serious injuries and received workers’ compensation benefits. (Doc. 1 at 22).
Following the accident, representatives of Levy, Edw. C Levy Co., and NSBS conducted a
joint investigation, which is known as an ICAM investigation. (Doc. 26-4 at 61; Doc. 27-1 at 5, Levy
117-134). Levy also performed an independent investigation (Doc. 27-1 at 5, Levy 135-41.), as did
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OSHA. (Doc. 31 at 14). The investigations concluded that employees were not regularly using fall
protection to change the screens. (Doc. 26-4 at 34; Doc. 27-1 at 5, Levy 122-23, 127-28, 138.)
Lucio cites several corporate safety documents spelling out Levy’s fall protection policy.
(Doc. 31). The documents – which reference governmental and industry safety regulations – state,
inter alia, “[o]ne hundred percent (100%) fall protection will be provided for all employees who are
working near the edge of a building, a platform, an open shaft, or any areas that pose a possibility
of falling six feet or more.” (Doc. 31 at 10-11). Lucio alleges Levy did not follow or enforce these
policies, and intended for employees to change screens without adequate fall protection. (Id.).
To prove that Levy’s failure to provide adequate fall protection to its employees was the
result of “deliberate, conscious, and intentional actions” (Doc. 38 at 14) (emphasis in original),
Lucio offers the testimony of Vincent Gallagher, a former OSHA investigator. While at OSHA,
Gallagher, who has a Masters Degree in Occupational Safety and Health, investigated more than 500
workplace falls. “He also investigated more than 700 jobsites for the sole purpose of identifying,
evaluating, and controlling fall hazards.”3
Gallagher intends to testify, inter alia:
It is my opinion that [Levy] violated the principles and practices of
safety management and the principles and practices of fall hazard
control because they consciously permitted and intentionally required
this work to be done while workers were exposed to a risk of serious
injury or death so high that an injury incident such as [Lucio’s] was
inevitable. It is my opinion that they violated the aforementioned
OSHA standard, the standards of the American Society of Safety
Engineers and ANSI, and their own fall procedure. It is my opinion
that this incident was not an accident. It was planned, intended and
3
Gallagher outlines his credentials and experience in his report (Doc. 31-10 at 5) and in his affidavit
(Doc. 31-11 ¶¶ 2, 5).
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consciously implemented when, for years, they deliberately required
workers to be repeatedly exposed to extraordinary fall hazards.
(Doc. 38-1 at 16).
Discussion
As noted above, there are two motions pending: 1) Levy’s motion to exclude the testimony
of Lucio’s expert (Doc. 33); and 2) Levy’s motion for summary judgment (Doc. 25). I address each
in turn.
A. Motion to Exclude
Where a party challenges testimony of an expert witness, Fed. R. Evid. 702 triggers a court’s
“gate-keeping role” to determine the admissibility of that testimony. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597 (1992). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training or education may testify in the form of an
opinion or otherwise:
a) The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or determine a fact in issue;
b) The testimony is based on sufficient facts or data;
c) The testimony is the product of reliable principles and
methods; and
d) The expert has reliably applied the principles and methods to
the facts of the case.
The party offering the expert has the burden of proving admissibility by a preponderance of
the evidence. Daubert, 509 U.S. at 592 n.10.
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“Rejection of expert testimony ‘is the exception, rather than the rule.’” MAR Oil Co. v.
Korpan, 973 F. Supp. 2d 775, 781 (N.D. Ohio 2013) (quoting Fed. R. Evid. 702 Advisory
Committee’s Note, 2000 Amend.); see In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir.
2008) (same).
With this framework in mind, I now turn to Levy’s specific challenges. Levy urges me to
exclude Gallagher’s testimony on five overlapping grounds:
1) he is not qualified to testify about fall hazards in a slag mill;
2) he is not qualified to testify as to Levy’s state of mind or intent;
3) his testimony is not based on scientific, technical or specialized
knowledge;
4) his testimony is based on his own personal beliefs rather than
reliable methodology; and
5) other courts have excluded him as an expert.
(Doc. 33).
1. Qualifications & Specialized Knowledge
An expert may be qualified via their “knowledge, skill, experience, training or education,”
or a combination of these factors. Fed. R. Evid. 702. Trial “courts do not consider ‘the qualifications
of a witness in the abstract, but whether those qualifications provide a foundation for a witness to
answer a specific question.’” Burgett v. Troy-Bilt LLC, 579 Fed. Appx. 372, 376 (6th Cir. 2014)
(citation omitted).
Gallagher is a former OSHA investigator with a graduate degree in Occupational Safety and
Health. He has investigated hundreds of workplace falls and inspected hundreds more jobsites for
fall hazards. Based on his education and experience, I am persuaded he has specialized knowledge
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that qualifies him to render expert opinions regarding: 1) the nature and extent of fall hazards at the
Fulton Mill;4 and 2) whether Levy violated governmental and industry safety regulations regarding
fall hazard control.5
I am not persuaded, however, that Gallagher is qualified to render an expert opinion as to
Levy’s state of mind or intent. Expert testimony as to the intent of a party is “not properly the subject
of ‘scientific, technical, or other specialized knowledge.’” CMI-Trading v. Quantum Air, 98 F.3d
887, 890 (6th Cir. 1996) (citing Fed. R. Evid. 702); see Mar Oil Co., supra, 973 F. Supp. 2d at 786
(“No expert, however, knows a party’s state of mind.”). Levy’s intent is certainly not within
Gallagher’s field of expertise, nor is it within the purview of expert opinion testimony.
“Expert testimony,” as I have previously observed:
as to intent, motive, or state of mind offers no more than the drawing of an inference
from the facts of the case. The jury is sufficiently capable of drawing its own
inferences regarding intent, motive, or state of mind from the evidence, and
4
Levy attacks Gallagher’s qualifications to testify on this issue by pointing out he “has never seen
this, or any, slag mill in operation, nor has he been to any other slag plant.” (Doc. 33-1 at 6). That
does not matter. What matters, vis-a-vis his qualification, is that he knows the dangers of being
injured in a fall in multiple worksite situations. See U.S. v. Barker, 553 F.2d 1013, 1024 (6th Cir.
1977) (“[A] proposed expert witness should not be required to satisfy an overly narrow test of his
own qualifications.”) (internal quotation marks and citation omitted). Given the endless variety of
workplace circumstances, many of which probably are unique, even on similar jobsites, to adopt
Levy’s tunnel-vision view would eliminate, as a practical matter, almost all expert testimony in these
type of cases except in that rare instance when the same expert had visited the same site following
the same sort of accident. Indeed, broad, rather than limited experience probably enhances an
expert’s qualifications.
5
Levy argues violations of governmental and industry safety regulations are not admissible as proof
in an intentional tort case. (Doc. 39 at 3-4). I agree, but Levy’s argument nonetheless misses the
mark. It is well-settled that an expert can relate the basis for his opinion even if that basis is not itself
admissible. See, e.g., Mannino v. Int’l Mfg. Co., 650 F.2d 846, 853 (6th Cir. 1981) (expert can form
opinion based on inadmissible evidence). I could alleviate any confusion that distinction might cause
a jury with a cautionary instruction that safety standards and their violation are not proof of intent.
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permitting expert testimony on this subject would be merely substituting the expert’s
judgment for the jury’s and would not be helpful to the jury.
Waite, Schneider, Bayless & Chesley Co., L.P.A. v. Davis, 2015 WL 3505793, *14 (S.D. Ohio)
(citation omitted).
Accordingly, I exclude Gallagher’s opinion on Levy’s state of mind or intent. He is, however,
qualified to render expert opinions on the two issues listed above.
3. Methodology & Reliability
As noted by the Sixth Circuit:
The test of reliability is “flexible,” and the Daubert factors do not
constitute a “definitive checklist or test,” but may be tailored to the
facts of a particular case. Indeed, we have recognized that the
Daubert factors “are not dispositive in every case” and should be
applied only “where they are reasonable measures of the reliability of
expert testimony.”
In re Scrap Metal Antitrust Litig., 527 F.3d at 529 (citations omitted).
The reliability of an expert’s testimony: “means that it must be ‘supported by appropriate
validation – i.e., “good grounds,” based on what is known.’” Id. (citing Daubert, 509 U.S. at 590).
Stated differently, reliability does not depend on the accuracy of the opinion but “whether it rests
upon a reliable foundation, as opposed to, say, unsupported speculation.” Id. at 529-30. As the
Daubert Court noted:
The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.
Its overarching subject is the [scientific] validity – and thus the
evidentiary relevance and reliability – of the principles that underlie
a proposed submission. The focus, of course, must be solely on
principles and methodology, not the conclusions they generate.
509 U.S. at 594-95.
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Moreover, whether the “specific factors are, or are not, reasonable measures of reliability in
a particular case is a matter that the law grants the trial judge broad latitude to determine.” Kumho
Tire Co. v. Carmichael, 525 U.S. 137, 153 (1999).
Here, Gallagher formed his opinions by reviewing: 1) the pleadings; 2) deposition transcripts;
3) Lucio’s affidavit; 4) interrogatories and disclosures; 5) Levy’s corporate safety documents and
meeting minutes regarding fall hazard control; 6) incident reports; 7) photos of the area where Lucio
fell; and 8) governmental and industry safety regulations. (Doc. 38-2 ¶ 3). He also performed a site
inspection at the slag mill plant, where he viewed Tower 2, the screen deck and the surrounding
areas involved in its operation. (Id.).
Thus, Gallagher bases his opinions on the particular facts of this case and principles and
practices of fall hazard control that the safety industry has tested, subjected to peer review, and
accepted as authoritative. Given that the reliability inquiry is a flexible one, I am satisfied
Gallagher’s methodology meets threshold requirements. Levy could test the strength of Gallagher’s
opinions on cross-examination, and the jury could assess its weight.
3. Exclusion of Gallagher’s Testimony in Other Cases
Levy cites several cases in which courts limited or excluded Gallagher’s testimony in the
past. Presumably, Levy does so to convince me to follow suit. I am not convinced. The fact that
Gallagher is a professional witness and other courts have disallowed his testimony involving other
circumstances is immaterial.
Accordingly, I deny Levy’s motion to exclude except as to testimony regarding Levy’s state
of mind or intent.
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B. Summary Judgment
Levy moves for summary judgment on: 1) Lucio’s claim under § 2745.01; and 2) Lucio’s
wife’s loss of consortium claim.
Summary judgment is appropriate under Fed. R. Civ. P. 56 where the opposing party fails
to show the existence of an essential element for which the party bears the burden of proof. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant must initially show the absence of a genuine
issue of material fact. Id. at 323.
Once the movant meets that initial burden, the “burden shifts to the nonmoving party [to] set
forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). Rule 56 “requires the nonmoving party to go beyond the [unverified]
pleadings” and submit admissible evidence supporting its position. Celotex, 477 U.S. at 324.
I accept the non-movant’s evidence as true and construe all evidence in its favor. Eastman
Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992).
1. § 2745.01
Section 2745.01, governing employer intentional torts, provides, in relevant part:
(A) In an action brought against an employer by an employee for
damages resulting from an intentional tort committed by the employer
during the course of employment, the employer shall not be liable
unless the plaintiff proves that the employer committed the tortious
act with the intent to injure another or with the belief that the injury
was substantially certain to occur.
(B) As used in this section, “substantially certain” means that an
employer acts with deliberate intent to cause an employee to suffer an
injury, a disease, a condition, or death.6
6
Section 2745.01(C) sets forth a rebuttable presumption of intent to injure if an employer removes
a safety guard. That section is inapplicable because Lucio does not allege Levy removed a safety
12
Seeking via § 2745.01 to “significantly [to] restrict” recovery for claims of employer
intentional tort, Kaminski v. Metal & Wood Prods. Co., 125 Ohio St. 3d 250, 263 (2008), the General
Assembly intended to limit such recovery to situations in which an employer acts with the “specific
intent” to “cause an injury to another.” Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.
3d 491, 497 (2012); Kaminski v. Metal & Wood Prods. Co., 125 Ohio St. 3d 250, 263 (2008) see
also Hoyle v. DTJ Ents., Inc., 143 Ohio St. 3d 197, 200 (2015).
As the Kaminski court explained, employer liability cannot
be stretched to include accidental injuries caused by the gross, wanton, wilful,
deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute,
or other misconduct of the employer short of a conscious and deliberate intent
directed to the purpose of inflicting an injury.
125 Ohio St. 3d at 273-74; see Houdek, supra, 134 Ohio St. 3d at 497 (“[A]bsent a deliberate intent
to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the
injured employee’s exclusive remedy is within the workers’ compensation system.”); see also
Hoyle, supra, 143 Ohio St. 3d at 200.
Construing all the admissible evidence in a light most favorable to Lucio, I find nothing in
the record demonstrating that Lucio can prove that Levy intended him to fall off the tower, or that
it wanted him to be seriously injured. A jury could find that Levy was grossly negligent, reckless,
and willfully wanton – and, indeed, deliberately indifferent and/or willfully blind vis-a-vis the
potential risk of injury. But that does not equate to the deliberate, specific intent called for under §
2745.01, Houdek, and Kaminski.
As stated in Kaminski, supra:
It further reasons that “[e]ven if the alleged conduct goes beyond
aggravated negligence, and includes such elements as knowingly
guard. (Doc. 26-1 at 75).
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permitting a hazardous work condition to exist, knowingly ordering
employees to perform an extremely dangerous job, willfully failing
to furnish a safe place to work, willfully violating a safety statute,
failing to protect employees from crime, refusing to respond to an
employee’s medical needs and restrictions, or withholding
information about worksite hazards, the conduct still falls short of
actual intention to injure that robs the injury of accidental character.”
125 Ohio St. 3d at 273 n.16 (quoting 6 Larson’s Workers’ Compensation Law § 103.01 (2008)).
Lucio argues that rather than basing my analysis on Houdek/Kaminski, I should base it on the
more recent Ohio Court of Appeals decision in Cantu v. Irondale Indus. Contractors, Inc., 2012 WL
6681863 (Ohio Ct. App.). (Doc. 31 at 25-26). But Cantu ignores Houdek’s explanation regarding
the requisite intent required for an employer to be held liable under the statute. Cantu states that
Houdek defined “deliberate intent” as “specific intent.” Cantu, supra, 2012 WL 6681863, at *5.
Quoting Black’s Law Dictionary, Cantu states “specific intent” is “a term ordinary used in criminal
law meaning a subjective desire or knowledge that the prohibited result will occur.” Id. That is not
the definition used in Houdek.
Further, the definition used in Cantu – “a subjective desire or knowledge that the prohibited
result will occur,” Id. at *5 – is essentially identical to the appellate court’s definition in Houdek –
“objectively believed the injury was substantially certain to occur.” 134 Ohio St. 3d at 491. Yet, the
Ohio Supreme Court found the definition in Houdek, “ignored the statutory definition of
‘substantially certain.’” Id. The proposed definition in Cantu therefore appears to conflict with
Houdek. See generally Spangler v. Sensory Effects Powder Sys., Inc., 2015 WL 3466583 (N.D.
Ohio).
I am bound by the Ohio Supreme Court’s decision regarding the interpretation of Ohio’s
worker’s compensation laws. See In re Dow Corning Corp., 778 F.3d 545, 548-49 (6th Cir. 2015).
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I am not bound by state appellate court decisions that conflict with decisions of Ohio’s highest court.
See J.C. Wyckoff & Assocs. v. Standard Fire Ins. Co., 936 F.2d 1474, 1485 (6th Cir. 1991); Welsh
v. United States, 844 F.2d 1239, 1245 (6th Cir. 1988).7 Cantu is therefore not controlling in this case.
In light of the above, the only conclusion I can reach on this record is that there is no genuine
issue of fact material to Lucio’s claim under § 2745.01.
2. Loss of Consortium
Because Lucio’s claim fails as a matter of law, his wife’s loss of consortium claim also fails.
In Walburn v. Lockheed Martin Util. Servs., 2010 WL 1253601, *7 (S.D. Ohio) (citations omitted),
the court explained:
Generally, a loss of consortium claim is a derivative claim dependent
upon the existence of a primary claim, and it can be maintained only
so long as the primary claim continues. Because a derivative claim
cannot afford greater relief than that relief permitted under a primary
claim, a derivative claim fails when the primary claim fails.
As discussed, there is no genuine issue of material fact as to Lucio’s § 2745.01 claim. There
is therefore also no genuine issue of material fact as to his wife’s loss of consortium claim.
7
Lucio emphasizes that the Ohio Supreme Court twice chose not to review Cantu on appeal. This
does not negate the fact that I must apply Houdek. See J.C. Wyckoff & Assocs, 936 F.2d at 1485;
Welsh, 844 F.2d at 1245.
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Conclusion
Because there is no genuine issue of material fact as to either of the Lucios’ claims against
Levy, summary judgment is warranted.
For the forgoing reason, it is hereby
ORDERED THAT
1.
Levy’s motion to exclude opinion of Vincent Gallagher (Doc. 33) be, and the same
hereby is, granted in part and denied in part; and
2.
Levy’s motion for summary judgment (Doc. 25) be, and the same hereby is, granted.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge
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