Levias v. United Airlines, 49503

• Decision Date: 15 October 1985
• Docket Number: No. 49503,49503
• Citation: 27 OBR 262,27 Ohio App.3d 222,500 N.E.2d 370
• Parties: , 27 O.B.R. 262 LEVIAS, Appellee and Cross-Appellant, v. UNITED AIRLINES et al., Appellants and Cross-Appellees. *
• Court: Ohio Court of Appeals

Page 222

27 Ohio App.3d 222

500 N.E.2d 370, 27 O.B.R. 262

LEVIAS, Appellee and Cross-Appellant, v. UNITED AIRLINES et al., Appellants and Cross-Appellees. ^*

No. 49503.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Oct. 15, 1985.

Syllabus by the Court

1. An order vacating the finality of a judgment is appealable.

2. Sections 151a and 152, Title 45, U.S. Code, of the Railway Labor Act, do not preclude a common-law action for invasion of privacy seeking money damages.

3. A plaintiff need not prove a debilitating injury to recover for an invasion of her privacy.

4. The discloser of personal medical data has no privilege to do so unless he has reason to believe that the recipient has a real need to know, not mere curiosity.

5. To show the requisite malice for the recovery of punitive damages there must be evidence of hostility or of a prolonged indifference to adverse consequences.

Friedman & Chenette Jeffrey H. Friedman and Frank A. Chenette, Cleveland, for appellee and cross-appellant.

Gallagher, Sharp, Fulton & Norman, Alton L. Stephens and James N. Kline, Cleveland, for appellants and cross-appellees.

MARKUS, Presiding Judge.

The plaintiff flight attendant recovered a judgment against the airline that employed her, its medical flight examiner, and its flight attendant supervisor. She claimed that the defendants invaded her privacy by disclosing her confidential medical data. The jury's verdict granted the flight attendant $14,000 compensatory damages and $20,000 punitive damages. The defendants then filed motions for a judgment notwithstanding the verdict or for a new trial. The court initially denied those defense motions, but shortly thereafter vacated that entry, and subsequently granted the motions partially by disallowing recovery for punitive damages.

All parties appeal. The plaintiff appeals from the order which vacated the denial of the defense motions, and the ultimate order which precluded her recovery for punitive damages. The defendants appeal from the original judgment and rulings which preceded it, and from the ultimate order denying the balance of their post-judgment motions. To the extent that we have jurisdiction to review those disputed matters, we affirm.

I

Each side has moved to dismiss the adversary's appeal as jurisdictionally tardy. The parties implicitly agree that the original entry confirming the jury's verdict constituted a judgment. If not, there was no judgment until the court finally granted a judgment notwithstanding a partially contrary verdict. If so, the defendants' timely post-verdict motions suspended the finality of that judgment and extended the time to challenge it by an appeal. App.R. 4(A); Winters v. Beitler (1980), 67 Ohio App.2d 163, 426 N.E.2d 524 .

The flight attendant argues that the court's denial of those motions reestablished the judgment's finality and precluded any reconsideration of the judgment or those motions. Cf. Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378, 423 N.E.2d 1105 ; LaCavera v. Cleveland Elec. Illum. Co. (Feb. 21, 1985), Cuyahoga App. No. 48679, unreported; Howard v. East Ohio Gas Co. (Mar. 21, 1985), Cuyahoga App. No. 48725, unreported.

Thus, the flight attendant claims that the defendants' failure to appeal within thirty days after the initial denial of their motions bars any review of the judgment or that ruling. If nothing further had transpired, we might well agree. However, the court vacated its ruling on the defense post-judgment motions, and no party appealed from that ruling. An order vacating the finality of a judgment is appealable, just as an order establishing its finality. Cf. Price v. McCoy Sales & Service, Inc. (1965), 2 Ohio St.2d 131, 207 N.E.2d 236 ; GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113 ; Colley v. Bazell (1980), 64 Ohio St.2d 243, 416 N.E.2d 605 .

The trial court probably erred by vacating its initial ruling on the post-judgment motions, because it had no authority to reconsider a final judgment. However, this court lacks jurisdiction to determine the propriety of that order, since neither party filed a timely appeal from that ruling. Without a timely appeal from that order, it was effective. Cf. North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342, 345, 476 N.E.2d 388; Wallace v. Feador (May 17, 1983), Cuyahoga App. No. 45325, unreported; Griswold Institute v. Porter (June 1, 1983), Cuyahoga App. No. 45625, unreported.

Hence, we limit our review to the ultimate ruling on defendants' post-judgment motions, and the original judgment whose finality was suspended by those motions. The appeal and cross-appeal were timely after the final ruling which partially granted and partially denied the defendants' post-judgment motions. Therefore, we overrule both motions to dismiss the respective appeals.

II

The defendants' first assigned error challenges the trial court's jurisdiction:

"A. The court below erred by denying the defendants' motion for summary judgment based on the Railway Labor Act, 45, U.S.C. Sec. 151, et seq., which requires disputes between an air carrier and its employee to be resolved under the collective bargaining agreement prior to the commencement of a civil action in state court."

The defendants rely on federal statutes which require private and governmental mediation or arbitration for disputes about "rates of pay, rules, or working conditions." Sections 151a and 152, Title 45, U.S. Code. This common-law action for invasion of privacy seeks money damages rather than an adjustment in working terms or conditions. The plaintiff retained her previous position as a flight attendant with no requested change of working conditions related to the present controversy. Although the flight attendant's complaint originally asserted a cause of action premised on the employment agreement, the court submitted no such claim to the jury.

Rather, the employment agreement served only to buttress the flight attendant's claim that her personal medical data was confidential. One section of that agreement assured her that the airline and its medical examiner would not disclose that medical information without her consent. However, she could reasonably expect the medical examiner to treat her highly personal medical information as confidential, even without a contract or physician-patient relationship. Cf. R.C. 4731.22(B)(4) ("willfully betraying a professional secret" as grounds for physician discipline); R.C. Chapter 1347 (regulation and liability for disclosure of "personal information" by governmental boards and agencies); Wagenheim v. Alexander Grant & Co. (1985), 19 Ohio App.3d 7, 10-14, 482 N.E.2d 955 (accountant may be liable for disclosing client's confidential data, despite absence of privilege against disclosure in judicial proceedings).

The cited federal statutes do not preclude this type of state action for a common-law tort. Cf. McGinnis v. Bhd. of Ry. & Steamship Clerks (1962), 75 N.J.Super. 517, 183 A.2d 486; Brady v. Penn Central Transp. Co. (S.D.N.Y.1975), 406 F.Supp. 1239.

III

The defendants' next three assigned errors dispute the sufficiency of the evidence and the court's instruction for the flight attendant's claim:

"B. The court below erred in submitting this case to the jury on plaintiff's privacy claim, or, in the alternative, in denying a new trial, because there was insufficient evidence to support such a claim.

"C. The court below erred by not granting defendants' motion for judgment notwithstanding the verdict, or in the alternative for a new trial, when the plaintiff failed to show by competent evidence a severe and debilitating emotional injury, and a causal connection between the conduct of the defendants and her alleged injuries.

"D. The court below erred in failing to direct a verdict on the issue of disclosure to plaintiff's husband, or, in the alternative, instructing the jury on this issue as requested by the defendants."

The flight attendant's evidence showed that she directed her private physicians to supply the airline's medical examiner with confidential medical information. They reported that she suffered from an iron deficiency anemia related to excessive menstrual discharge. Her private physician instructed her to refrain from dieting and to use an oral contraceptive medication which caused her to retain fluids. If she did not follow that regimen, she would be subject to dizziness in flight conditions. With that data, the medical examiner authorized a waiver of weight limits imposed for appearance regulation applicable to her employment.

The medical examiner later requested supplementary data to support her application for a continued waiver. The private physician gave him more information, including details of contemplated gynecological surgery. The flight attendant's evidence showed that she provided all this information in the belief that the medical examiner would not disclose it without her permission. The airline's collective bargaining agreement and its past practices assured her that the medical examiner received it with the same understanding.

According to the flight attendant's evidence, the medical examiner disclosed most of that information to her male flight supervisor, who had no compelling reason to know it. The flight supervisor repeatedly contacted her to discuss the details of her medical condition and its effect on her employment. Additionally, the medical examiner told the flight attendant in the presence of her appearance supervisor that she should use a different method of contraception. Finally, the medical examiner gave the flight attendant's husband a copy of her private physician's medical report.

She testified that she had not authorized the medical examiner to disclose any of that information, and that she considered it highly personal. She described her substantial emotional distress from these disclosures, including...