Day v. NLO, INC.

• Decision Date: 04 March 1992
• Docket Number: No. C-1-90-67.,C-1-90-67.
• Citation: 798 F. Supp. 1322
• Parties: David DAY, et al., Plaintiffs, v. NLO, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

798 F. Supp. 1322

David DAY, et al., Plaintiffs, v. NLO, INC., et al., Defendants.

No. C-1-90-67.

United States District Court, S.D. Ohio, W.D.

March 4, 1992.

COPYRIGHT MATERIAL OMITTED

Thomas Joseph Kircher, Kircher, Robinson, Cook, Newman & Welch, Allen Paul Grunes, Paul M. De Marco, Waite, Schneider, Bayless & Chesley Co., Cincinnati, Ohio, for plaintiffs David Day, John Fitzgerald, Herbert L. Kelly, Floyd Davis, William E. Frey, Hillery Webb, Sr., Julia Virginia Sansone, Shirley Skiles, Milford W. Skiles, Ralph Jones, Elmer Hust, Fernald Atomic Trades and Labor Council AFL-CIO, Metal Trades Div. AFL-CIO, Building and Const. Trades Dept. AFL-CIO, Greater Cincinnati Building and Const. Trades Council AFL-CIO and Indus. Union Depart.

William Howard Hawkins, II, Frost & Jacobs, John Stephen Wirthlin, Sr., Beirne & Wirthlin, Cincinnati, Ohio, Herbert L. Fenster, McKenna, Conner & Cuneo, Washington, D.C., David M. Bernick, Kirkland & Ellis, Chicago, Ill., for defendants NL Industries Inc. and NLO Inc.

ORDER DENYING THE MOTION OF THE MOVING PLAINTIFFS FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR FOR A NEW TRIAL

SPIEGEL, District Judge.

Certain plaintiffs in this action (David Day, John Fitzgerald, Herbert Kelly, Hillery Webb, William Frey, Ralph Jones, and Julia Sansone¹) have moved for judgment notwithstanding the verdict² or, in the alternative, for a new trial (doc. 255). The defendants oppose the motion (doc. 258), and the plaintiffs have responded (doc. 263). For the reasons set forth below, the moving plaintiffs' motion for judgment notwithstanding the verdict or for a new trial is hereby denied.

BACKGROUND

The defendants formerly operated the Feed Materials Production Center ("FMPC") located in Fernald, Ohio. The individual plaintiffs in this matter are former FMPC employees, spouses of former FMPC employees, and independent contractors who formerly performed work at the FMPC. The plaintiffs claim that the defendants operated the FMPC in such a way as to negligently and intentionally expose the plaintiffs to dangerous levels of radioactive and hazardous materials. As a result of this alleged exposure, the plaintiffs contend that their personal property has been damaged, and that they now suffer severe emotional distress in the form of increased fear of cancer.

The defendants moved to dismiss the complaint as barred by the applicable statute of limitations. Concluding that there were factual issues surrounding plaintiffs' knowledge of the alleged overexposure, this Court ordered the parties to try the statute of limitations issue to a jury.

The statute of limitations trial commenced on September 16, 1991. For approximately seven weeks, the parties examined numerous witnesses and presented extensive evidence to the jury. At the charging conference, counsel for the plaintiffs and counsel for the defendants vigorously debated the instruction regarding when the statute of limitations began to run. The Court ultimately concluded that the charge would provide in part, "The limitations period begins to run when a plaintiff knows or, by the exercise of reasonable diligence should have known, that he may have been injured by the wrongful conduct of the defendants." Jury Instructions at 14.

Counsel for the plaintiffs strenuously objected to the inclusion of what has come to be called the "may instruction." Counsel's objections were overruled. The plaintiffs then filed a motion for reconsideration of proposed jury instructions (doc. 243). That motion was denied.

Following closing arguments, the Court charged the jury, and presented each juror with a copy of the eighteen-page instruction. The charge given contained the "may instruction."

After extensive deliberation, the jury concluded that the claims of David Day, John Fitzgerald, Herbert Kelly, Hillery Webb, William Frey, and Ralph Jones were barred by the statute of limitations. In addition, they found that Julia Sansone's property damage claim was barred. Those plaintiffs then filed the instant motion for judgment notwithstanding the verdict or for a new trial pursuant to Rule 50(b) and Rule 59 of the Federal Rules of Civil Procedure.

THE "MAY INSTRUCTION"

The moving plaintiffs first contend that the jury's verdict must be overturned because the "may instruction" was improper. Although "substantial and prejudicial error in a single jury instruction" may be cause to overturn the instruction, a jury instruction need only "state the law with substantial accuracy and fairly submit the issues to the jury" to be proper. Clarksville-Montgomery County School System v. United States Gypsum Co., 925 F.2d 993, 1003 (6th Cir.1991), reh'g denied (6th Cir.1991).

The "May Instruction" is Consistent with the Ohio Discovery Rule

In Yung v. Raymark Industries, Inc., 789 F.2d 397 (6th Cir.1986), the court stated that pursuant to the Ohio discovery rule, "The statute of limitations will not begin to run until after the party learns of his injury or with reasonable diligence should have been aware of his injury." Id. at 400 (citing O'Stricker v. Jim Walter Corp., 4 Ohio St.3d 84, 88-90, 447 N.E.2d 727 (1983)). In Yung, the district court conducted a separate trial on the statute of limitations issue. Yung v. Raymark Industries, Inc., 789 F.2d at 397. The defendants claimed not only that Mr. Yung suffered a lung injury, but that he had been informed of the injury several years before he filed suit. Id. at 398. Consistent with that position, the defendants presented evidence regarding the early diagnosis of Mr. Yung's injury at the statute of limitations trial. Id. Because both parties agreed that Mr. Yung suffered an identifiable physical injury, the issue whether the defendants were required to prove Mr. Yung was injured was not before the court.

Accordingly, the Court's decision in Yung has little application to the instant case. Here, neither the plaintiffs nor the defendants assert that the plaintiffs suffered an identifiable physical injury. The plaintiffs contend that they suffer only emotional distress and property damage. The defendants deny that the plaintiffs are injured at all. Under these circumstances, it would be unjust to require the defendants to prove that the plaintiffs were actually injured.

In addition, the plaintiffs claim that they suffer emotional distress after allegedly discovering that they had been overexposed to radioactive materials. The plaintiffs acknowledge that "mental distress is dependent on what a person knows and when he knows it." Doc. 255 at 8. Therefore, in this case, the plaintiffs had notice of their alleged injury when they knew or should have known of the alleged overexposure.

For these reasons, the Court properly charged the jury using the "may instruction." See Russo v. Ascher, 76 Md.App. 465, 545 A.2d 714, 716 (1988) (After acknowledging that Maryland recognizes the discovery rule, the Court concluded that "the dispositive issue is when was the appellant put on notice that she may have been injured." (emphasis added)); see also Licka v. William A. Sales, Ltd., 70 Ill. App.3d 929, 27 Ill.Dec. 212, 217, 388 N.E.2d 1261, 1266 (1979) (The court concluded that "the limitations period did not begin to run until plaintiff knew or should have known that he may have been injured as a result of defendant's wrongful conduct." (emphasis added)).

The "May Instruction" Did Not Permit the Defendants to Utilize an Assumption of Risk Defense

The plaintiffs next contend that the "may instruction" actually permitted the defendants to utilize an assumption of risk defense rather than a statute of limitations defense. According to the plaintiffs, the "may instruction" enabled the jury to conclude that the plaintiffs' general knowledge of the risks of working with radiation was sufficient to trigger the statute of limitations. We disagree.

First, assumption of the risk is a liability concept that was neither raised nor discussed at any time during the limitations trial. It is highly unlikely that the jurors considered that concept under these circumstances.

Second, the "may instruction" provided, "The limitations period begins to run when a plaintiff knows or, by the exercise of reasonable diligence should have known, that he may have been injured by the wrongful conduct of the defendants." Jury Instructions at 14 (emphasis added). The instruction specifically links the plaintiffs' alleged injury to wrongful conduct of the defendants. Simply operating a uranium processing plant is not wrongful conduct. Accordingly, mere knowledge of the general risks of working near radioactive materials is insufficient to trigger the statute of limitations under the jury instruction given.

Third, the plaintiffs' reliance on a newspaper account of an interview with juror Harten is misplaced. Juror Harten simply stated, "If they were in the union, they should have or could have known." Cincinnati Enquirer, November 5, 1991, p. B-3. Although the plaintiffs imply that juror Harten's statement refers to knowledge of the general risks of working with hazardous materials, it more likely refers to the information provided to the union. The defendants presented substantial testimony that information regarding exposure and employee health and safety was regularly provided to the union.³

The "May Instruction" Did Not Violation the Ohio Constitution

The plaintiffs next contend that the "may instruction" was "contrary to the applicable `delayed damage' decisions of the Ohio Supreme Court, as well as Article I, Section 16, of the Ohio Constitution." Doc. 255 at 15 (original in all capital letters). Again, we disagree.

Article I, Section 16 of the Ohio Constitution provides, "All courts shall be open, and every person, for an injury done to him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay." Pursuant to this constitutional provision, the Ohio Supreme Court has...