LUCAS v. AMERICAN CLEAN ENERGY SYSTEMS, INC. et al
OPINION. Signed by Judge Mark R. Hornak on 8/17/17. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AMERICAN CLEAN ENERGY SYSTEMS,
INC., et al.,
Judge Mark R. Hornak
Mark R. Hornak, United States District Judge
In this product liability action, Plaintiff Robert Lucas alleges that he suffered cognitive and
neurological injuries from workplace exposure to ACES II, a chemical fuel additive mixture
manufactured by Defendant Tal Technologies, Inc. and distributed by Defendant American Clean
Energy Systems, Inc. ("Defendants"). 1 ECF No. 26 at 3-4; ECF No. 193 at 1-2; ECF No. 241-1 at
3-4; ECF No. 241-2 at 3-4; ECF No. 241-3 at 4, 6. The parties have filed cross-motions for
summary judgment. ECF Nos. 192, 239.
Defendants 2 argue in their Motion for Summary Judgment that Lucas' claims are barred
by the doctrine of issue preclusion (also known as collateral estoppel). They say that causation of
Lucas' injuries was fully litigated and conclusively determined in an Ohio workers' compensation
administrative proceeding Lucas brought against his then-employer, Oxford Mining Company.
The Court notes that it is not reaching any legal conclusions as to whether Tai Technologies is a "manufacturer" or
American Clean Energy Systems is a "seller" or "distributor" of ACES II as those terms may be specially used or
defined in any potentially applicable laws, rules, or regulations. Those terms are used here solely for ease ofreference.
Defendant American Clean Energy Systems filed the instant Motion, ECF No. 239, which Defendant Tai
Technologies sought to join. ECF No. 242. The Court approved Tai Technologies' joinder request. ECF No. 269.
Lucas appealed the final disposition of that proceeding to an Ohio trial court, where it was
dismissed with prejudice with the agreement of the parties after they reached a settlement. See
ECF No. 239. Defendants say that either or both of those prior Ohio decisions should have
preclusive effect here as to the causation element of Lucas' claims. See id.
Lucas argues in his Motion for Partial Summary Judgment that he is entitled to judgment
as a matter oflaw on the issue of Defendants' liability, leaving for determination only the amount
of his damages. ECF No. 193 at 1. Lucas says there is no genuine dispute that Defendants violated
certain federal regulations, that they were negligent or negligent per se, and that such breaches of
their duties to him caused him an array of injuries. See ECF No. 26 at 1, 3, 5-7; ECF No. 192; ECF
No. 193 at 1-2; ECF No. 194 at 10.
For the reasons that follow, both motions will be denied in their entirety.
Plaintiff Robert Lucas worked for Oxford Mining Company as a fuel and lube technician
from 2006 to 2008. ECF No. 26 at 3; ECF No. 241at2; ECF No. 241-4 at 3; ECF No. 241-7 at 7.
His duties included refueling various heavy equipment and machinery, cleaning and changing
filters and valves, changing oil, and performing other maintenance work. ECF No. 26 at 3, 6; ECF
No. 241-7 at 7, 9. Lucas regularly worked with fuel additive and/or fuel solvent chemicals
manufactured by Defendant Tal Technologies, Inc. and distributed by Defendant American Clean
Energy Systems. ECF No. 26 at 3-4; ECF No. 241-1at3-4; ECF No. 241-2 at 3-4; ECF No. 2413 at 4, 6. The chemical mixture Lucas complains about in this case is known as ACES II. ECF No.
193 at 1-2. According to Lucas, the chemicals in ACES II included toluene, benzene, and/or other
toxic substances, one or more of which caused his injuries. ECF No. 26 at 4-7.
Lucas says ACES II was shipped in 55-gallon drums that he mixed and hand-cranked into
five-gallon plastic containers. ECF No. 26 at 3; ECF No. 194 at 8; ECF No. 241-4 at 4-6. On a
regular basis, Lucas would pour about 10 gallons of ACES II into 7,500-gallon fuel storage tanks.
ECF No. 26 at 3; ECF No. 194 at 8; ECF No. 241-4 at 4-5. To do this, Lucas would use a ladder
to climb on top of the 7,500-gallon fuel tanks. ECF No. 241-4 at 5-6, 8. He would then bring up
the chemical mixture by rope, remove the cap from the fuel tank, place the funnel into the fuel
tank, and pour ACES II into the funnel. ECF No. 241-4 at 5-6. Lucas wore rubber-coated gloves,
but he was not provided with, and so he did not wear, a mask or other respiratory protective gear.
ECF No. 26 at 3-5; ECF No. 241-4 at 5. When the wind would blow, ACES II would spill onto
Lucas, splashing over his hands and arms despite the fact that he was wearing gloves. ECF No.
194 at 8; ECF No. 241-4 at 7-8. Lucas would also inhale fumes from the chemical mixture. ECF
No. 241-7 at 25. Lucas says that he did not know the chemical contents of ACES II. ECF No. 194
at 8. But Lucas says that as a result of his mixing and fueling duties, he was exposed to the allegedly
toxic substances he now believes were in ACES II on a regular and continuing basis while working
for Oxford Mining. ECF No. 26 at 3-5; ECF No. 241-4 at 8; ECF No. 241-7 at 23-24.
In June of 2010, Lucas filed this suit against Defendants, alleging on a number of theories
that his exposure to ACES II caused him to suffer from seizures and other cognitive impairments,
headaches, severe abdominal pain, and unexplained swelling of his lower extremities. ECF No. 26
at 1, 3, 5-7; ECF No. 193 at 1-2; ECF No. 194 at 10. Lucas says that the drums of ACES II he
worked with had no warning labels affixed to them, and that the Material Safety Data Sheets
("MSDS sheets") issued by one or both Defendants failed to warn him of the toxic characteristics
of the chemical toluene, its carcinogenic effects, or the extreme risk of seizures, cognitive
impairments, and other neurological damage that could result from exposure to it. ECF No. 194 at
8-9. Defendants, on the other hand, deny that exposure to ACES II carries a risk of seizures or
cognitive impairment. ECF No. 214 at 22; ECF No. 220 at 21-22. Defendants say that all ACES
II drums were affixed with warning labels clearly setting forth the dangers of exposure to the
chemicals contained therein. ECF No. 214 at 15-17; ECF No. 220 at 14-16. Defendants also say
that the MSDS sheets sufficiently warned of any dangers that may have arisen from exposure to
ACES II. ECF No. 214 at 20-25; ECF No. 220 at 20-25.
On March 4, 2011, after filing this case, Lucas filed an application for workers'
compensation benefits with the Ohio Bureau of Workers' Compensation. ECF No. 241at2; ECF
No. 251 at 1. Lucas' then-employer, Oxford Mining, defended that action. ECF No. 241 at 4; ECF
No. 251 at 2. None of the Defendants in this case were involved in defending Lucas' Ohio workers'
compensation benefits action, and Lucas does not allege that they could have been or should have
In his workers' compensation case, Lucas made essentially the same claim against his
employer, Oxford Mining, as he makes against Defendants here: that his exposure to toxic
substances in ACES II while working for Oxford Mining caused his various injuries. ECF No. 241
at 2; ECF No. 241-5 at 2; ECF No. 251 at 1. Lucas' initial claim was denied by the Ohio Bureau
of Workers' Compensation. ECF No. 241-10 at 2. Lucas appealed that denial to an Ohio Industrial
Commission District Hearing Officer. ECF No. 241-10 at 2. The Ohio District Hearing Officer
held a hearing on Lucas' claim for workers' compensation benefits in September of 2011. ECF
No. 241 at 3; ECF No. 251 at 2. The parties in the Ohio case were given notice of the hearing,
which informed them that they attend and "introduce all testimony and evidence pertinent to [their]
position on this matter." ECF No. 241at4; ECF No. 251at2; ECF No. 241-9 at 2.
At the hearing, those parties were represented by counsel. ECF No. 241at4; ECF No. 251
at 2. Lucas testified in support of his application for workers' compensation benefits. ECF No. 241
at 4; ECF No. 251 at 2. He claimed that his injuries included headaches, migraines, night tremors,
seizures, and incidents where he would lose consciousness and collapse at work. ECF No. 241-7
at 9-11. Lucas also submitted an expert report authored by Dr. Michael Dogali. ECF No. 241 at 3;
ECF No. 251 at 1. Dr. Dogali reviewed Lucas' medical records from Wheeling Hospital, West
Virginia University Hospital, the Cleveland Clinic, the Ohio Valley Medical Center, and individual
doctors, as well as depositions of Lucas and his ex-wife. ECF No. 241-6 at 2. He then surveyed
relevant medical literature. ECF No. 241-6 at 2. After all this, Dr. Dogali concluded that as a result
of his exposure to ACES-II, Lucas had suffered cerebral degeneration, drug/chemical induced
headache, epilepsy, and encephalopathy. ECF No. 241at3; ECF No. 251at1.
In addition to Dr. Dogali's report, the District Hearing Officer reviewed reports from at
least two other doctors, including doctors from the Cleveland Clinic and the Ohio Valley Medical
Center. ECF No. 241-7 at 16, 32-34; ECF No. 241-10 at 3. The District Hearing Officer also
questioned Lucas, ECF No. 241- at 35, and heard argument from both Lucas' attorney and Oxford
Mining's attorney. ECF No. 241-7 at 15-21, 31-34. Following the hearing, the District Hearing
Officer granted Lucas' application for workers' compensation benefits, finding that Lucas suffered
memory loss, personality changes, headaches, and seizures because of his respiratory and physical
exposure to ACES II during his employment with Oxford Mining. ECF No. 241 at 4; ECF No.
251at2; ECF No. 241-10 at 2-3.
Oxford Mining appealed the District Hearing Officer's decision to an Ohio Staff Hearing
Officer and indicated that it would present additional evidence. ECF No. 241-11 at 2. Another
hearing was held in April of 2012. ECF No. 241 at 4-5; ECF No. 251 at 2. The parties were again
provided notice of the hearing, which informed them that they should be present, and that they
would-once again-have the opportunity "to introduce all testimony and evidence pertinent to
[their] position on this matter." ECF No. 241 at 5; ECF No. 251 at 3; ECF No. 241-14 at 2. Both
parties were also represented by counsel at this hearing. ECF No. 241 at 6; ECF No. 251at3.
Following the hearing, the Staff Hearing Officer noted that although the parties had
submitted extensive medical records, evidence, and professional medical evaluations, the primary
support for Lucas' claim of injury came from the report of Dr. Dogali. ECF No. 241at6; ECF No.
251 at 3; ECF Ko. 241-15 at 2-3. Ultimately, the Staff Hearing Officer vacated the decision of the
District Hearing Officer and denied Lucas' application for workers' compensation benefits. ECF
No. 241at6; ECF No. 251at3; ECF No. 241-15 at 2-3. In concluding that Lucas was not entitled
to such benefits, the Staff Hearing Officer made a factual finding that "the medical evidence on
file is not persuasive that any of [Lucas'] alleged conditions are causally related to [Lucas'] job
exposure with [Oxford Mining]." ECF No. 241 at 6-7; ECF No. 251 at 3; ECF No. 241-15 at 3.
"Significant cerebral and epileptic and headache conditions are alleged, but the medical evidence
does not show that any potential exposures with this employer were the causal factor." ECF No.
241at6-7; ECF No. 251at3; ECF No. 241-15 at 3.
Lucas appealed to another Staff Hearing Officer, indicating that he would not present any
additional evidence. ECF No. 241 at 7; ECF No. 251 at 3; ECF No. 241-16 at 2. His appeal was
refused in April of 2012. ECF No. 241 at 7; ECF No. 251 at 3; ECF No. 241-17 at 2. This denial
of Lucas' appeal was the final administrative decision of the Ohio Industrial Commission. ECF
No. 241-19 at 4; ECF No. 241-21at4.
From that denial, Lucas filed a second appeal as of right seeking review of the Ohio
Industrial Commission decision by the Court of Common Pleas of Coshocton County, Ohio. ECF
No. 241 at 7; ECF No. 241-17 at 2; ECF No. 241-18 at 2-3; ECF No. 241-19 at 4; ECF No. 251 at
3. Lucas was once again represented by counsel in that appeal. ECF No. 241-1 at 3; ECF No. 24119 at 4; ECF No. 241-20 at 2. Lucas voluntarily dismissed that appeal in January of 2013. ECF
No. 241 at 8; ECF No. 241-20 at 2. ECF No. 251 at 3. Then, still represented by counsel, Lucas
re-filed his appeal and complaint with the Court of Common Pleas of Coshocton County, Ohio, in
January of 2014, naming Oxford Resources Gp, LLC, and the Administrator of the Ohio Bureau
of Workers' Compensation as defendants. ECF No. 241 at 8; ECF No. 251 at 3; ECF No. 241-21
at 2-4. None of the Defendants in this case were involved in defending Lucas' Ohio actions, and
Lucas does not allege that they could have been or should have been so involved.
Lucas' second complaint in the Ohio Court of Common Pleas alleged that he suffered
work-related injuries at Oxford Mining due to his exposure to ACES II. ECF No. 241-21 at 2-4.
Lucas complained of chemically-induced headaches, convulsive and intractable epilepsy, and
chemically-induced encephalopathy. ECF No. 241-21 at 3. Before the Ohio court ruled, however,
the parties agreed to dismiss the case with prejudice after reaching a mutually-agreeable
settlement, and the Ohio court did so without vacating the decision of the Ohio Industrial
Commission. ECF No. 241 at 8; ECF No. 241-22 at 2; ECF No. 251 at 3. The Ohio court's order
dismissing the case stated: "Case settled and dismissed with prejudice by agreement of the parties.
No record. Costs are to be paid by the Plaintiff." ECF No. 241 at 8; ECF No. 241-22 at 2; ECF
No. 251at3. Judge Batchelor of the Ohio Court of Common Pleas signed and approved the order,
as did counsel for all of the parties to that case. ECF No. 241-22 at 2.
A party is entitled to summary judgment if it can show that there is no genuine issue of
material fact and it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A genuine
issue of material fact is one that 'affects the outcome of the suit under the governing law' and
could lead a reasonable jury to return a verdict in favor of the nonmoving party." Willis v. UPMC
Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Initially, the moving party bears the burden of
demonstrating that the evidentiary record presents no genuine issue of material fact. Willis, 808
F.3d at 643. If it does so, the burden shifts to the nonmoving party to "identify facts in the record
that would enable them to make a sufficient showing on essential elements of their case for which
they have the burden of proof." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "If,
after adequate time for discovery, the nonmoving party has not met its burden ... the court must
enter summary judgment against the nonmoving party." Willis, 808 F.3d at 643. Inferences drawn
from the underlying facts must be viewed in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In cases such as this, where cross motions for summary judgment have been filed, each
party essentially contends that no genuine issue of material fact exists from its particular point of
view. The Court therefore considers each motion for summary judgment separately. Home for
Crippled Children v. Prudential Ins. Co., 590 F. Supp. 1490, 1495 (W.D. Pa. 1984). Each party
bears the burden of establishing a lack of a genuine issue of material fact. See id. But the parties'
contradictory claims do "not constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives ... determination [of] whether genuine issues of material
fact exist." Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968). Moreover, the
standards under which a court grants or denies summary judgment do not change when considering
cross motions. Home for Crippled Children, 590 F. Supp. at 1495.
Defendants' Motion for Summary Judgment (ECF No. 239)
In their Motion for Summary Judgment, Defendants argue that Lucas' claims are barred by
the doctrine of issue preclusion (also known as collateral estoppel) because causation of Lucas'
injuries was fully litigated and conclusively determined in an Ohio court of record. Defendants say
that either or both of the prior decisions-in the Ohio workers' compensation administrative
proceeding and/or of the Ohio Court of Common Pleas, where Lucas' appeal was dismissed with
prejudice with the agreement of the parties-should be given preclusive effect as to the causation
element of Lucas' claims. ECF No. 239.
The federal full faith and credit statute, codified at 28 U.S.C. § 1738, requires federal courts
to accord a state court judgment the same preclusive effect that it would have had in a court of that
state. Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380-81 (1985). It "does not
allow federal courts to employ their own rules of res judicata in determining the effect of state
judgments." Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-82 (1982). "Rather, it
goes beyond the common law and commands a federal court to accept the rules chosen by the State
from which the judgment is taken." Id. at 482.
Under Ohio law, "[i]ssue preclusion 'precludes the relitigation of an issue that has been
actually and necessarily litigated and determined in a prior action."' MetroHealth Med. Ctr. v.
Hoffmamn-LaRoche, Inc., 685 N.E.2d 529, 533 (Ohio 1997), (quoting Krahn v. Kinney, 538
N.E.2d 1058, 1062 (Ohio 1989). It applies where "the fact or issue (1) was actually and directly
litigated in the prior action, (2) was passed upon and determined by a court of competent
jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party in
privity with a party to the prior action." Thompson v. Wing, 637 N.E.2d 917, 923 (Ohio 1994).
The Ohio Supreme Court has held that "a consent judgment operates as res judicata to the
same extent as a judgment on the merits." Horne v. Woolever, 163 N.E.2d 378, 382 (Ohio 1959),
cert denied 362 U.S. 951. "The term 'with prejudice' is the converse of 'without prejudice'; and,
where a party to an action consents to a judgment of dismissal 'with prejudice,' such judgment
concludes the rights which he did assert or should have asserted therein to the same extent as they
would have been concluded if the action had been prosecuted to a final adjudication against those
rights." Id. "Implicit in the rule is the recognition that a judgment entered by consent, although
predicated upon an agreement between the parties, is an adjudication as effective as if the merits
had been litigated and remains, therefore, just as enforceable as any other validly entered
judgment." In re Gilbraith, 512 N.E.2d 956, 959 (1987).
Issue preclusion may also prevent re-litigation of an issue in federal court where the prior
adjudicative body was a state administrative agency. The United States Supreme Court has held
that "when a state agency 'acting in a judicial capacity ... resolves disputed issues of fact properly
before it which the parties have had an adequate opportunity to litigate,' federal courts must give
the agency's factfinding the same preclusive effect to which it would be entitled in the State's
courts." Univ. of Tennessee v. Elliott, 478 U.S. 788, 799 (1986) (quoting United States v. Utah
Constr. & Mining Co., 384 U.S. 394, 422 (1966)).
Ohio courts likewise accord findings made in administrative hearings preclusive effect in
subsequent judicial proceedings. This is permitted where (1) the administrative body acted in a
judicial capacity, (2) there is an identity of parties and issues, (3) the administrative body resolved
factual disputes that were clearly relevant to the issues before it, and (4) the parties have had a full
and fair opportunity to litigate and seek review of any adverse findings. In re Foster, 280 B.R.
193, 203 (Bankr. S.D. Ohio 2002) (citing Superior's Brand Meats, Inc. v. Lindley, 403 N.E.2d
996, 999 (Ohio 1980); Pullar v. UpJohn Health Care Services, Inc., 488 N .E.2d 486, 490 (Ohio
The administrative body at issue here is the Ohio Industrial Commission. The Ohio
Supreme Court has held that decisions rendered by that body may be entitled to preclusive effect.
Res judicata "applies to proceedings before the Industrial Commission." State ex rel. Kroger Co.
v. Indus. Comm 'n of Ohio, 687 N.E.2d 768, 770, (Ohio 1998). Indeed, an unreversed final decision
by that body can have preclusive effect in Ohio courts, State ex rel. Crisp v. Indus. Comm 'n of
Ohio., 597 N.E.2d 119, 120 (Ohio 1992), so long as the parties "have had ample opportunity to
litigate the issues involved in the case." Cooper v. Adm 'r of Ohio Bureau of Workers' Comp., Nos.
CA99-07-082, CA99-09-108, 2000 WL 710082, at *3 (Ohio Ct. App. May 30, 2000). The same
holds true on a theory of issue preclusion with respect to the Ohio Industrial Commission's
determinations on discrete issues if such issues were actually and necessarily decided by that body.
See, e.g., State ex rel. Kroger Co. v. Indus. Comm 'n of Ohio, 687 N.E.2d 768, 771-72 (Ohio 1998);
State ex rel. Crisp v. Indus. Comm 'n., 597 N.E.2d 119, 120 (Ohio 1992); Lasko v. CT.MC, No.
2003-0hio-4103, 2003 WL 21782622, at *6 (Ohio Ct. App. August 1, 2003).
Federal courts have likewise given findings of the Ohio Industrial Commission preclusive
effect. Where (1) the Commission acted in a judicial capacity, (2) there was mutuality of both
parties and issues, (3) the Commission resolved relevant contested factual disputes, and (4) the
parties had a full and fair opportunity to litigate such issues and seek review of the Commission's
decision, "the factual findings of the Industrial Commission" are "given the same preclusive
effect" in federal court as "they would be entitled to in an Ohio court." In re Foster, 280 B.R. 193,
201 (Bankr. S.D. Ohio 2002) (according the Commission's determination on the issue of fraud
preclusive effect in a subsequent federal bankruptcy action); see also In re Damron, 457 B.R. 662,
667 (Banla. S.D. Ohio 2011) (same); Burress v. Sears, Roebuck & Co., No. 95-cv-110, 1996 WL
581629, at *2 (S.D. Ohio July 17, 1996) (according the Commission's determination on the issue
of a worker's injury preclusive effect in a subsequent federal employment discrimination action).
Here, however, the Court concludes that neither the Ohio Industrial Commission's
determination of causation nor the Ohio Court of Common Pleas' subsequent dismissal of Lucas'
appeal with prejudice is entitled to preclusive effect in this case. That is because-unlike in federal
courts and the courts of many states, where there need only be privity with the parties against
whom issue preclusion is asserted (so-called non-mutual issue preclusion)-Ohio's issue
preclusion doctrine generally requires mutuality, whether the doctrine is wielded offensively or
defensively. In other words, a prior "judgment can operate as collateral estoppel only where all of
the parties to the proceeding in which the judgment is relied upon were bound by the [prior]
judgment," either because the parties to the current proceeding were "parties to the original
judgment" or because they are "in privity with those parties." Goodson v. McDonough Power
Equip., Inc., 443 N.E.2d 978, 981, 987 (Ohio 1983). The Court concludes in this case that as to
both the Ohio Industrial Commission workers' compensation proceeding and the Ohio Court of
Common Pleas decision, the mutuality requirement is not satisfied.
To be sure, Ohio's mutuality requirement has a vexing history. See Kiara Lake Estates,
LLC v. Bd. of Park Comm 'rs 0.0. Mcintyre Park Dist., No. 13-cv-522, 2014 WL 773437, at *5
(S.D. Ohio Feb. 24, 2014) (noting that cases where the Ohio Supreme Court abandons the
mutuality requirement are equally plentiful to those holding that the mutuality requirement remains
alive and well). 3 But there is no question that mutuality has generally been required:
Compare, e.g., Progressive Plastics, Inc. v. Testa, 979 N.E.2d 280, 285 (Ohio 2012) (concluding that there must be
"an identity of issues and an identity of parties or their privies in both the first and the second suit."); State ex rel.
Davis v. Pub. Emps. Ret. Bd., 899 N.E.2d 975, 982 (Ohio 2008) (subsequent action must be between "the: same parties
or their privies" for issue preclusion to apply); State ex rel. Stacy v. Batavia Local School Dist. Bd. ofEdn., 779 N.E.2d
As a requisite factor in the application of the principle of issue preclusion within
the doctrine of res judicata, Ohio cases over the years in like manner have
consistently held to the effect that a judgment can operate as collateral estoppel
only where all of the parties to the proceeding in which the judgment is relied upon
were bound by the judgment. Expressions are found within the cases that the record
of a judgment, in order to preclude either of the party litigants, must be preclusive
upon both. The operation of the rule must be mutual. If a judgment cannot be
effective as res judicata against a particular person, he cannot avail himself of the
adjudication and contend that it is available against others, as between them and
himself. Therein lies the general rule of mutuality of estoppel which has long been
applied by this court and other courts in Ohio. There being the general requisite of
an identity of persons and parties, or their privies, within the prior proceeding in
order for the judgment or decree to operate as an estoppel, strangers to such a
judgment or decree will not be affected thereby ....
Whether or not we, in the future, may conclude it to be advisable to adopt the
nonmutuality rule as a general proposition, for the present we reaffirm our prior
general stance that collateral estoppel may generally be applied only when the party
seeking to use the prior judgment and the party against whom the judgment is being
asserted were parties to the original judgment or in privity with those parties.
Goodson v. McDonough Power Equip., Inc., 443 N.E.2d at 981-82, 987.
In more recent cases, however, the Ohio Supreme Court has cast some doubt on whether
the state's mutuality rule continues to apply across the board:
In order to invoke res judicata, one of the requirements is that the parties to the
subsequent action must be identical to or in privity with those in the former action.
We have recognized that the concept of privity for purposes of res judicata is
somewhat amorphous. Despite this characterization, we have applied a broad
definition to determine whether the relationship between the parties is close enough
to invoke the doctrine. A contractual or beneficiary relationship is not required. But
the relationship between co-employees subject to the same employment-related
contract, without more, does not establish privity.
In addition, an interest in the result of and active participation in the original lawsuit
may also establish privity. Similarly, a mutuality of interest, including an identity
of desired result, may create privity. Mutuality, however, exists only if the person
taking advantage of the judgment would have been bound by it had the result been
216, 219 (Ohio 2002) (same); and 63 Ohio Jur. 3d Judgments § 376 (citing as authoritative the "same parties or their
privies" requirement); with Thompson v. Wing, 637 N.E.2d 917, 923 (Ohio 1994) (mutuality not necessarily required
for issue preclusion); New Winchester Gardens v. Franklin Cnty. Bd. of Revision, 684 N.E.2d 312, 316 (Ohio 1997),
overruled on other grounds by Cummins Prop. Servs., l.l.C. v. Franklin Cty. Bd. of Revision, 885 N.E.2d 222, 229
(Ohio 2008), (same); and 63 Ohio Jur. 3d Judgments§ 376 (noting that "there is no general requirement that the party
asserting collateral estoppel have been a party to the prior action.").
the opposite. Conversely, a stranger to the prior judgment, being not bound thereby,
is not entitled to rely upon its effect for res judicata.
Finally, we have held that issue preclusion applies likewise to those in privity with
the litigants and to those who could have entered the proceeding but did not avail
themselves of the opportunity.
State ex rel. Schachter v. Ohio Pub. Emps. Ret. Bd., 905 N.E.2d 1210, 1216-17 (Ohio 2009); see
also Thompson v. Wing, 637 N.E.2d 917, 923 (Ohio 1994).
In any event, the upshot of the Ohio Supreme Court's back and forth appears to be that
Ohio's requirement of "mutuality endures, though it may be relaxed in the interests of justice,"
such as where there is at least "substantial identity of the parties and issue preclusion is invoked
against a party who had a full and fair opportunity to contest the issue previously." Kiara Lake
Estates, 2014 WL 773437, at *5 (emphasis added) (citing In re Gilbraith, 512 N.E.2d 956, 961
In this case, the evidence of record is insufficient to establish that Defendants are either in
privity with Oxford Mining Company, the respondent/defendant in the prior Ohio actions, or that
they are in substantial enough privity such that the interests of justice weigh in favor of allowing
them to invoke issue preclusion.
Although Defendants here desire the same basic outcome as did Oxford Mining Company
in the Ohio actions (a finding that Lucas has not established that Defendants' chemicals caused his
injuries), the Ohio Supreme Court has made at least one thing clear: a shared interest in the
outcome alone is not sufficient. See State ex rel. Schachter, 905 N.E. 2d at 1217 ("an interest in
the result of and active participation in the original lawsuit may also establish privity;" "a
mutuality of interest ... may create privity," but mutuality "exists only
advantage ofthe judgment would have been bound by it had the result been the opposite .... "issue
preclusion applies likewise to those in privity with the litigants and to those who could have entered
the proceeding but did not avail themselves of the opportunity.") (emphasis added). Defendants
here do not contend that they actively participated in Lucas' workers' compensation case, that they
could have participated in it, or that they would be bound to accept the judgment in that case had
Oxford Mining Company lost.
Turning to the interests of justice prong, the circumstances in which the Ohio Supreme
Court has relaxed its otherwise strict mutuality requirement on these grounds are few and far
between. This Court is not aware of, and Defendants have not cited to, any case where the
mutuality requirement has been relaxed in circumstances analogous to those present here.
What's more, the Court concludes that a number of important practical considerations
counsel against the application of issue preclusion to decide the issue of causation in the particular
circumstances present in this case. The amount at issue in Lucas' workers' compensation
proceeding was undoubtedly much less than is at issue in this case. The respondent in that
proceeding was a buyer of the chemical rather than, to use the Defendants here as an example, the
main manufacturer or a central distributor of the chemical whose businesses may have been more
heavily impacted by a finding that it is dangerous. As a result, neither party to the workers'
compensation proceeding can be said to have had anywhere near th~ same measure of incentive to
fully litigate the issue of causation.
In addition, Lucas almost certainly did not have the same level of opportunity to conduct
discovery as he does here. To give but one example, there is no record evidence that Lucas did or
could have discovered the precise chemical contents of ACES II in order to establish causation in
his workers' compensation proceeding. In fact, Defendants in this case have for years steadfastly
refused to release the full chemical composition of ACES II because they claim it is a trade secret.
See, e.g., ECF No. 215 at 2 (portions of the chemical contents of ACES II still have not been
disclosed in this case). They say that only one person on the face of the Earth knows for sure what
chemicals ACES II contains and in what amounts: Moshe Tal, who was not a party and could not
have been a party to the workers' compensation proceeding. See, e.g., ECF No. 98 at 2 ("The only
person who knows the formula for ACES II is Moshe Tal."); ECF No. 214-1at32 ("Q. Who would
be the person that knows all of the ingredients to [ACES II]? A. Only Mr. Tal. It's like CocaCola."). So it is clear that even if Lucas had the opportunity to conduct meaningful discovery in
his workers' compensation proceeding, he would likely have been at a severe disadvantage on the
issue of causation due to the absence of the availability of information concerning ACES II's
Thus, because the requisite level of mutuality is not satisfied in this case, and because the
Court concludes that Ohio courts would not relax the mutuality requirement in the interests of
justice given the circumstances present here, the Defendants' Motion for Summary Judgment, ECF
No. 239, will be denied.
Plaintiff's Motion for Partial Summary Judgment (ECF No. 192)
Lucas argues in his Motion for Partial Summary Judgment that he is entitled to judgment
as a matter of law on the issue of Defendants' liability, leaving for determination only the amount
of his damages. ECF No. 193 at 1. In support, Lucas says there is no genuine dispute that
Defendants violated certain federal regulations, that they were negligent or negligent per se, and
that such breaches of their duties to him caused his array of injuries. See ECF No. 26 at 1, 3, 5-7;
ECF No. 192; ECF No. 193 at 1-2; ECF No. 194 at 10.
Lucas' main arguments can be adequately summarized as follows. First, Lucas says that he
is entitled to judgment on a theory of strict liability for the harm he allegedly suffered from
exposure to ACES II because ACES II was defective. The defect, Lucas says, was Defendants'
failure to warn Lucas of the dangers associated with that chemical mixture. See ECF No. 193 at 35. Next, Lucas argues that he is entitled to judgment on a theory of negligence for such harm. This,
he says, is due to Defendants' failure to warn him of the dangers of toluene, one of the chemicals
in ACES II. See ECF No. 193 at 5-7. Finally, Lucas argues that he is entitled to judgment on a
theory of negligence per se for Defendants' violation of federal regulations related to the Hazard
Communication Act, codified at 29 C.F .R. 1910.1200, et seq. These regulations, Lucas contends,
make it unlawful to manufacture or sell hazardous chemicals without assessing the dangers of such
chemicals and communicating them to employees. See ECF No. 193 at 7-9.
The Court need not explore the legal underpinnings of Lucas' arguments in significant
detail. At least three pivotal disputes as to material facts preclude the Court from entering summary
judgment in Lucas' favor.
Lucas acknowledges in his papers that each of his theories for Defendants' liability
critically relies upon establishing that ACES II posed a danger to him due to the hazardous nature
of its chemical components and the amount in which such components were present. See ECF No.
193 at 3-9. But Lucas' allegation that ACES II posed a danger is hotly contested by medical doctors
on both sides of this case. Compare, e.g., ECF No. 199 at 24-32 (affidavit of Dr. Michael Dogali,
concluding among other things that the amount of toluene present in ACES II can cause central
nervous system damage, progressive organic mental syndrome with memory loss, personality
change, severe headaches, and seizures) with ECF No. 214-5 (report of Dr. Kenneth Mankowski,
concluding among other things that there is no evidence Lucas has suffered toxic exposure or effect
from the chemicals in ACES II and that any symptoms he experienced cannot be the proximate
result of his work exposure to such chemicals) and ECF No. 214-13 (report of Dr. John
Cunningham, concluding among other things that Lucas may not have experienced any seizures
and that Lucas' exposure to ACES II is not causally related to any seizures Lucas may have
Lucas also acknowledges that each of his theories critically relies upon establishing that
ACES II actually caused his injuries. See ECF No. 193 at 3-9. But like his allegation that ACES II
poses a danger, Lucas' claim that ACES II caused his injuries is also vigorously disputed by
medical doctors on both sides of the case. Compare, e.g., ECF No. 199 at 24-32 (affidavit of Dr.
Michael Dogali, concluding among other things that Lucas suffered central nervous system
damage from toluene consistent with his exposure to ACES II while working at Oxford Mining)
with ECF No. 214-5 (report of Dr. Kenneth Mankowski, concluding essentially the opposite) and
ECF No. 214-13 (report of Dr. John Cunningham, similar).
Lucas additionally acknowledges that each of his theories critically relies upon Defendants'
alleged failure to warn Lucas of the dangers of ACES II by failing to put warning labels on the
ACES II containers and/or failing to make adequate disclosures concerning the dangers of toluene
on the MSDS sheets. See ECF No. 193 at 3-9. But the parties hotly contest the presence of warning
labels on the product. Compare, e.g., ECF No. 194-5 at 21, 24-25 (deposition of Lucas, in which
he says that the drums of ACES II had no warning labels of any kind) with ECF No. 214-1 at 3,
13-14 (deposition of Jay Hill, President of ACES, describing the warning labels affixed to the
drums of ACES II) and ECF No. 214-2 at 6 (deposition of William Moffat, a distributor of ACES
II, describing the same). The parties also dispute whether the warnings contained on the ACES II
MSDS sheets were adequate to warn Lucas of the dangers associated with ACES II (see ECF No.
194 at 9; ECF No. 214 at 20; ECF No. 220 at 20), the answer to which question rests squarely
upon the contested issue of whether ACES II in fact posed any danger to Lucas.
To sum up, it is abundantly clear that at least the following remain central and disputed
issues of material fact in this case: the risks or lack thereof associated with handling ACES II in
given amounts and in particular contexts, the presence of certain warning labels, the adequacy of
certain warning labels in light of ACES II's alleged dangers, and the causation of Lucas' injuries.
Such disputes preclude summary judgment for Lucas because they cannot be resolved in his favor
as a matter of law. 4 Lucas' Motion for Partial Summary Judgment, ECF No. 192, will therefore be
For the above reasons, Defendants' Motion for Summary Judgment (ECF No. 239) and
Plaintiffs Motion for Partial Summary Judgment (ECF No. 192) will be denied in their entirety.
An appropriate Order will issue.
Mark R. Hornak
United States District Judge
Dated: August 17, 201 7
cc: All counsel ofrecord
The parties dispute whether the Court can consider Dr. Dogali's affidavit, Dr. Mankowski's report, and/or Dr.
Cunningham's report at the summary judgment stage of this case on the grounds that such documents may later be
deemed inadmissible as hearsay under Fed. R. Evid. 801 or improper expert opinions under the standards of Fed. R.
Evid. 702 and/or Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The Court concludes that it can. All
three doctors appear to be eminently qualified under the requisite evidentiary standards. None of the parties in this
case have requested a Daubert hearing or offered the Court any substantial reason to doubt the doctors' qualifications,
the principles and methods they used, the general acceptance of such principles and methods, or that such principles
and methods were applied reliably in this case. Nor has any party offered the Court a substantial reason why, if each
side called its respective doctor(s) at trial, they could not testify to everything set forth in their respective affidavits
and reports. In addition and in the alternative, if the Court concluded instead that it would not at this stage consider
evidence from the parties' respective doctors, we would circle back to the same spot: absent any such testimony, there
would remain at least as many disputed issues of fact with regards to the risks or lack thereof associated with handling
ACES II in given amounts and in particular contexts, the presence of certain warning labels, the adequacy of certain
warning labels in light of ACES II's alleged dangers, and the causation of Lucas' injuries.
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