Hicks v. NLO, Inc., 86-4057

Decision Date07 August 1987
Docket NumberNo. 86-4057,86-4057
Citation825 F.2d 118
PartiesDiane T. HICKS, Plaintiff-Appellant, v. NLO, INC., and Hanford Environmental Health Foundation, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Phillip B. Allen, Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, Ohio, for plaintiff-appellant.

William H. Hawkins, James R. Adams, Frost & Jacobs, Cincinnati, Ohio, for NLO, Inc.

Kim K. Burke, Taft, Stettinius & Hollister, Cincinnati, Ohio, R. Joseph Parker, for Hanford Environmental Health Foundation.

Before KENNEDY and MILBURN, Circuit Judges; and CONTIE, Senior Circuit Judge.

PER CURIAM.

Defendant Hanford Environmental Health Foundation ("HEHF"), joined by defendant NLO, Inc. ("NLO"), moves to dismiss plaintiff's appeal on the grounds that there has been no adjudication of claims that turned earlier dismissals on summary judgment into a final and appealable order when plaintiff voluntarily dismissed the remaining claim.

Larry Hicks, plaintiff's deceased spouse ("decedent") was employed at the Feed Material Production Center, Fernald, Ohio, which is operated by NLO, from April 16, 1973 until he died on May 20, 1985. On the date of his death, decedent awoke feeling weak, he had trouble walking, and his heartbeat was irregular. He went to his physician's office and was admitted to the Cardiac Care Unit of a Cincinnati hospital. He died of acute interstitial myocarditis shortly after admission. Decedent's physician notified the Hamilton County Coroner's Office of decedent's sudden death and reported that recent work place exposure to uranium oxide and/or dioxide may have caused or contributed to decedent's death. The coroner designated decedent's death a "coroner's case" and caused his staff to take control of the body. Subsequently, the coroner had a radioisotope laboratory perform a whole body radioactive count in order to determine whether an autopsy could safely be performed.

On May 22, 1985, representatives of both HEHF and NLO called the Coroner's Office. The NLO representative inquired as to whether an autopsy would be performed and offered the services of the United States Uranium Registry ("Registry"), which is run by HEHF. The HEHF representative also offered the Registry's services. The coroner accepted HEHF's offer to perform tests on decedent's organs and body tissues.

Plaintiff sued NLO and HEHF in state court for wrongful death. She alleged in her complaint that: 1) decedent was 33 years old, was in excellent health and had no prior history of heart disease; 2) NLO intentionally, maliciously, willfully and wantonly failed to correct the hazards of exposure to uranium oxides or failed to warn the decedent of the hazards of such exposure; 3) as a result of NLO's failure, the decedent was contaminated five days before his death; 4) NLO and HEHF planned and conspired to obtain organs and tissue samples from the decedent without the consent of plaintiff and defendants did obtain the samples; 5) as a result she suffered mental anguish; and 6) the foregoing acts and omissions of defendants were the direct and proximate cause of her injuries. Plaintiff sought compensatory damages of $6,000,000, punitive damages of $5,000,000, costs and attorney's fees.

Defendants removed the action to federal court. Subsequently, both moved for summary judgment. HEHF argued that since it acted on behalf of the coroner, who was authorized to autopsy decedent's body, it did not require plaintiff's permission to use tissue samples from decedent's body. HEHF also argued that plaintiff's claim that NLO and HEHF conspired to obtain organs and tissue samples without her permission failed to state a cause of action under Ohio law. NLO joined in HEHF's arguments and moved for partial summary judgment on the second and third counts of plaintiff's complaint.

The District Court found that plaintiffs...

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    ...Care, Inc. , 326 F.R.D. 462, 464 (E.D. Ky. 2018).)Both Page Plus and Rowland , though, had to distinguish Hicks v. NLO, Inc. , 825 F.2d 118 (6th Cir. 1987) (per curiam). There, the district court dismissed all but one of the plaintiff's state-law claims. Id. at 120. The plaintiff then volun......
  • Grand v. Nacchio
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    • Arizona Court of Appeals
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    ...judgment for purposes of appeal, even though the district court had not so certified under Fed.R.Civ.P. 54(b)."); Hicks v. NLO, Inc., 825 F.2d 118, 120 (6th Cir.1987) ("[W]e hold that plaintiff's [voluntary] dismissal with the concurrence of the court of the only count of her complaint whic......
  • State Treasurer of State of Michigan v. Barry
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    • 19 Febrero 1999
    ...823, 117 S.Ct. 81, 136 L.Ed.2d 39 (1996); Chrysler Motors Corp. v. Thomas Auto Co., 939 F.2d 538, 540 (8th Cir.1991); Hicks v. NLO, Inc., 825 F.2d 118, 120 (6th Cir.1987).7 Compare Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1075 (9th Cir.1994) (refusing jurisdiction because parti......
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    ...Owl Wireless, LLC , 733 F.3d 658 (6th Cir. 2013). I, however, believe that Page Plus and our earlier decision in Hicks v. NLO, Inc. , 825 F.2d 118 (6th Cir. 1987) (per curiam), compel us to answer yes and that we have appellate jurisdiction over Rowland's summary-judgment claims.Our caselaw......
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