Diane Hicks v. Westinghouse Materials Co.

• Decision Date: 27 September 1995
• Docket Number: 95-LW-0011,C-940094
• Parties: DIANE HICKS, Plaintiff-Appellant, v. WESTINGHOUSE MATERIALS CO., Defendant, and NLO, INC., and J. WESLEY TRIMBLE, ADMINISTRATOR, OHIO BUREAU OF WORKERS' COMPENSATION, and THE INDUSTRIAL COMMISSION OF OHIO, Defendants-Appellees. APPEAL
• Court: Ohio Court of Appeals

DIANE HICKS, Plaintiff-Appellant, v. WESTINGHOUSE MATERIALS CO., Defendant,

No. C-940094

95-LW-0011 (1st)

Court of Appeals of Ohio, First District Hamilton

September 27, 1995

TRIAL NO. A-8910895

Civil Appeal From Hamilton County Court of Common Pleas

Waite Schneider, Bayless & Chesley, Louise M. Roselle, Esq., No 0014844, Allen P. Grunes, Esq., No. 0001028, and Paul M DeMarco, Esq., No. 0041153, 1513 Central Trust Tower, 5 West Fourth Street, Cincinnati, Ohio 45202, for Plaintiff-Appellant,

Frost & Jacobs, William H. Hawkins, Esq., No. 0003865, Mark H, Klusmeier, Esq., No. 0005588, and Jack B. Harrison, Esq., No. 0061993, 2500 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, for Defendant-Appellee NLO, Inc.,

William D. Haders, Esq., No. 0029157, 1700 Carew Tower, 441 Vine Street, Cincinnati, Ohio 45202, for Defendants-Appellees J. Wesley Trimble, Administrator, Ohio Bureau of Workers' Compensation, and the Industrial Commission of Ohio.

OPINION

GORMAN P.J.

Plaintiff-appellant Diane Hicks appeals from the entry of judgment for defendants-appellees NLO, Inc., and the Industrial Commission of Ohio following a verdict in which the jury denied her claim for workers' compensation death benefits for the work-related death of her husband Larry Hicks, and from the denial of her subsequent motion for a new trial. Raising three assignments of error, she argues that the trial court erred by: (1) permitting the appellees to exercise certain peremptory challenges and challenges for cause during jury selection; (2) not declaring a mistrial or granting her motion for a new trial due to an improper reference by appellees' medical expert to Larry Hicks's alcohol use; and (3) failing to include Hicks's special instructions in its charge to the jury. Appellees, pursuant to R.C. 2505.22, have also raised their single assignment of error claiming the court erred in denying their motion for a directed verdict. We find that none of these assignments are well taken, and affirm the judgment of the court below.

Larry Hicks worked at the Feed Materials Production Center for twelve years starting in 1973. The center was operated by appellee NLO, Inc., for the United States government, and is located at Fernald, Ohio. On May 8, 1985, Hicks was cleaning uranium slabs and skids with a large industrial vacuum cleaner. An apparent leak or malfunction in the vacuum spewed a cloud of dust over and above Larry Hicks. The dust cloud contained triuranium octaoxide, referred to as black oxide, a radioactive material. Emergency procedures were implemented in the building.

Twelve days later, Larry Hicks was too sick to report to work. He sought medical attention from his personal physician, but died later in a hospital emergency room. The Hamilton County Coroner's office performed an autopsy and determined the cause of death to be acute interstitial myocarditis--a recent inflammation of the heart muscle. Internal organs and tissues of Larry Hicks, including his lungs, lymph nodes, stomach, intestines, trachea, kidneys, spleen, testes, thyroid, patella, and clavicle, were removed from his body and sent to the national laboratory at Los Alamos, New Mexico. The tissues were tested for the presence of uranium by burning them to ash and then analyzing the residue. The laboratory's results showed that Larry Hicks's left lung contained 1600 times the amount of uranium found in a person not exposed to radioactive materials.

In 1989, the industrial commission denied Hicks's 1987 claim for benefits relating to the 1985 death of Larry Hicks. Pursuant to R.C. 4123.519, she filed a de novo appeal in the Hamilton County Court of Common Pleas seeking participation in the state industrial fund.

At trial, she attempted to prove that the exposure to black oxide, and the radiation emanating from it, caused Larry Hicks to develop acute interstitial myocarditis. Appellees denied her theory and ascribed Larry Hicks's myocarditis to a variety of other possible causes including a potassium imbalance resulting from improper administration of the drug Combipres, prescribed for treatment of his hypertension. Following the entry of judgment on the verdict in a two-week jury trial, Hicks now brings this appeal.

We first note the harsh result of the jury's verdict. The record contains ample evidence from which a jury could have concluded that Larry Hicks was mortally injured by exposure to the radiation contained in the cloud of black oxide at his workplace, and that his death twelve days later was a direct and proximate result of that exposure.

Nonetheless, judgments supported by some competent, credible evidence going to all the essential elements of the case or defense will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. In applying this standard, a court of appeals is guided by the presumption that the findings of the trier of fact are correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 461 N.E.2d 1273. It is axiomatic that "[o]n the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The underlying reason for this deference is that "the trier of fact is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and to use these observations in weighing the credibility of the proffered testimony." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d at 80, 461 N.E.2d at 1276.

Here, however, Hicks has not raised in her brief the propriety of the jury verdict. The restraint on this court's authority to proceed sua sponte in this matter stems, in part, from App.R. 12(A)(1)(b), which admonishes a reviewing court to "determine the appeal on its merits on the assignments of error set forth in the briefs." Absent an assignment of error contending that the jury's verdict was against the manifest weight of the evidence, we choose not to invade the jury's important fact-finding function.

In her first assignment of error, Hicks contests the manner in which the jury was selected and seated. She claims the trial court erred in permitting appellees to exclude systematically five non-white jurors by their challenges for cause and by their use of peremptory challenges. She contends the trial court also erred in failing to grant a new trial on these grounds.

She first claims that the trial court erred in sustaining the challenge for cause of three prospective jurors on the basis of bias or predisposition about the Fernald facility or the parties.

The decision to disqualify a juror for bias is a discretionary function of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161, 168-169, 559 N.E.2d 1301, 1309; Maddex v. Columber (1926), 114 Ohio St. 178, 183, 151 N.E. 56, 57. Where a trial court is vested with such authority, reversal on appeal is justified only if its exercise of that authority constitutes an abuse of discretion. AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597, 601; Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E.2d 83, 87.

Here, the trial court had the opportunity to observe the demeanor of the prospective jurors and to evaluate firsthand their responses to questions. The parties were able to present arguments for and against the exercise of the challenges. We will not substitute our judgment for that of the trial court. Therefore, we cannot say the trial court abused its discretion in permitting the these three challenges for cause.

Appellant next claims appellees exercised peremptory challenges to remove two prospective jurors on account of their race, in violation of the Equal Protection Clause of the United States Constitution. Batson v. Kentucky (1986), 476 U.S. 79, 89, 106 S.Ct. 1712, 1719. She contests the exclusion of prospective jurors Donna Adams, an African-American, and Usha Balasubramaniam, a native of Sri Lanka.(fn1)

The trial court permitted the exercise of both peremptory challenges, relying upon justifications offered by appellees during voir dire. The court's written explanation, found in the its decision on appellant's motion for a new trial (t.d. 133), reads, in pertinent part:

1. RACIALLY DISCRIMINATORY JURY SELECTION

Every effort was made to select a fair and impartial jury. Whatever may have been in the minds of counsel for either party, the Court was not indulging in an effort to impanel a racially imbalanced jury.

* * *

Donna Adams, aside from her want of normal secondary education, was, in the Court's opinion, not capable of following the path of evidence in the case before the Court and was strongly desirous of being elsewhere than in the courtroom.

Usha Balasubramaniam, although swarthy of complexion, is not of the minority sought to be protected from racial discrimination by the requirement that challenging counsel must disclose to the Court his reasons for the exercise of a peremptory challenge of a black juror. The Court is unable to conjure up a reason why one of Asian background would be predisposed toward either of the predominant races of the United states. Further, Ms. Balasubramaniam has some orientation related to defendant's operation through her husband, a close friend, and a TV program.

The United State Supreme Court's holding in Batson v. Kentucky has been extended to:

recognize[] that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group

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