Pratt v. National Distillers & Chemical Corp.
| Decision Date | 19 September 1988 |
| Docket Number | 86-3972,Nos. 86-3971,s. 86-3971 |
| Citation | 853 F.2d 1329 |
| Parties | Patricia L. PRATT, Plaintiff-Appellee, Cross-Appellant, v. NATIONAL DISTILLERS & CHEMICAL CORPORATION, Defendant-Appellant, Cross- Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mark A. Vander Laan (argued), Patrick D. Lane, Dinsmore & Shohl, Cincinnati, Ohio, for defendant-appellant, cross-appellee.
R. Guy Taft (argued), Steer, Strauss, White & Tobias, Cincinnati, Ohio, for plaintiff-appellee, cross-appellant.
Before KEITH and MILBURN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Defendant National Distiller & Chemical Corporation, d/b/a Emery Industries ("Emery"), appeals and plaintiff Patricia Pratt cross-appeals the judgment notwithstanding the verdict for defendant on the issue of damages. For the reasons set forth below, we REVERSE the district court's judgment n.o.v., and REINSTATE plaintiff's damages award, with costs and interest. We AFFIRM the liability portion of the verdict below.
This diversity action is based on Ohio law. Mrs. Pratt brought suit in the United States District Court, Southern District of Ohio, to recover compensatory and punitive damages for injuries to, and the death of, her husband, Paul Pratt. On February 18, 1982, Mr. Pratt sustained second and third degree burns over eighty percent of his body and incurred various shrapnel injuries in an explosion and flash fire at Emery's chemical plant. Mr. Pratt died after surviving for thirty-seven days in the burns unit of Cincinnati Medical Center.
The jury trial was bifurcated on the issues of liability and damages. The liability phase began on January 6, 1986. On the third day, a mistrial was declared, 1 and the trial began again on February 10, 1986. The liability phase of the retrial resulted in a verdict for plaintiff. The damages phase began on March 3, 1986, and resulted in a verdict for plaintiff on March 5, 1986, in the amount of $1,003,028 in compensatory damages and $100,000 in punitive damages. After the verdict was rendered, but while post trial motions were pending, the Ohio legislature passed a new workers' compensation statute, Ohio Rev.Code Ann. Sec. 4121.80, which relegates to a newly-created Ohio Industrial Commission all damages determinations in intentional tort actions between employers and employees. 2 That statute became effective on August 22, 1986. On September 19, 1986, the trial court below vacated Mrs. Pratt's damages award and referred her damages determination to the Ohio Industrial Commission, pursuant to the new statute.
On October 20, 1986, plaintiff and defendant each filed a timely appeal. By agreement of the parties, defendant was designated as appellant, and plaintiff was designated as appellee/cross-appellant.
Defendant Emery operates a chemical manufacturing plant in Cincinnati. On February 18, 1982, a chemical press exploded, eventually resulting in the death of Paul Pratt, plaintiff's husband. The chemical that was under manufacture at the time is called "9058," a non-polymeric ester 3 used as a base material for plastics and other products. The primary danger in the manufacture of 9058 is that sodium chlorite, a chemical with explosive properties used as an industrial bleach, must be used to bleach the 9058 in order to yield the necessary product color.
On the morning of the explosion that killed plaintiff's husband, sodium chlorite had accumulated in a filter press. Following Emery's procedures, Mr. Pratt's co-worker, Leroy Egan, began blowing air into the filter press to dry the insides of the press so that it could be opened up to scrape the chemicals and impurities that had collected from the filtering plates. Mr. Egan noticed that steam began blowing from the spigots at the bottom of the filter press. He called to Mr. Pratt for assistance in ascertaining the problem. Mr. Pratt and Mr. Egan stood directly in front of the filtering machine, observing the steam spew from the spigots for approximately two and one-half minutes. Suddenly, the steam turned to dark smoke and the filter press exploded into pieces. A flash fire enveloped the workers, severely injuring them both.
The parties agree that the sodium chlorite/ester combination was in the filter press due to the omissions of the operator responsible for treating the 9058. The operator Plaintiff introduced evidence to show that Emery's upper management knew of the explosion hazard of combining sodium chlorite with an ester in a filter press. For example, plaintiff's documents disclosed that several explosions and fires had occurred in the chemical plant when sodium chlorite and an ester combined in a filter press. 4 Reports of these explosions were circulated throughout Emery's upper management. Management investigators recommended that safety tests be developed to check for the presence of sodium chlorite before esters are allowed to enter filter presses. In mid-1980, Emery developed a chlorite safety test for all esters, stating that it was imperative to run the test on all chlorite-bleached esters because of the known explosion hazard. Several of the company's directors admitted to knowledge of prior explosions and hypothesized that operators would be injured if in the vicinity of such an explosion.
failed to add a sufficient amount of mono-sodium phosphate ("MSP") to break down the chlorite build-up and then failed to add a full 6,000-pound water wash to remove the unreacted sodium chlorite from the filter press.
Mrs. Pratt also alleges that Emery's management never told the workers in the plant about the explosion and fire hazard. Emery did warn employees that sodium chlorite was a powerful "oxidizing agent" and should be kept away from combustible materials such as rags and paper. Two of Emery's officials admitted at trial that there is no reference to "explosion" in the manufacturing procedures given to the workers. Plaintiff introduced testimony that the workers did not understand that the caution referring to sodium chlorite as an "oxidizing agent" was in any way related to an explosion hazard and were not aware of the explosion problem. The only specific hazard Emery ever disclosed to the workers was that if sodium chlorite entered a filter press, the workers might be exposed to toxic fumes. The procedures did, however, contain inexplicit warnings such as, "residual chlorite can cause a hazardous situation while pressing."
Emery's area supervisor, Mr. Feinauer, admitted that nothing in Emery's procedures indicated to the workers that there was a potential for explosion with sodium chlorite. Mr. Feinauer stated that he believed that the "hazardous situation while pressing" caution referred only to toxic fumes emanating from the presses. In his accident report for Emery on the explosion in this case, Mr. Feinauer indicated that "lack of hazard awareness" was a cause of the explosion.
Mrs. Pratt also introduced evidence that Emery "intentionally concealed" the explosion hazard from the workers. Her evidence consisted of testimony and documents indicating that a new refining process was developed for 9058 which required a "drying procedure," instead of the usual water wash. While this drying process eliminated the product loss often accompanying a water wash, it produced toxic chlorine fumes and did not remove sodium chlorite from the 9058. Emery's technical manager, Mr. Price, explicitly assured the workers that the drying procedure and the resulting fumes were "safe," even though Mr. Price knew about the explosion problem. In late 1980, in response to operator complaints about breathing fumes, Emery reinstated the water wash procedure for all batches of 9058.
Plaintiff's evidence included memoranda which revealed that tests had been performed by Emery researchers and technicians on the properties of sodium chlorite, the dangers involved in the drying procedure, and the causes of past explosions. Certain of these memoranda were circulated through upper management at Emery, but no information concerning the hazards ever reached the workers; rather, the employees Finally, plaintiff's evidence also suggested that Emery's procedures were not safe because employees were "guessing" at the amounts of MSP and water to add during the treatment process. Emery had provided no method for workers to measure the precise levels of MSP or water needed to remove sodium chlorite from the 9058. The potential for hazard was therefore great, especially because workers apparently had no knowledge of the dangers inherent in their measuring guesswork.
continued to labor under the illusion that the filter presses were safe.
Defendant Emery is appealing only the liability portion of the verdict and the punitive damages award and urges this court to consider the appeal in light of the new statute, Ohio Rev.Code Ann. Sec. 4121.80. Emery asks that this court either reverse the liability judgment below or grant a new trial. On cross-appeal, Mrs. Pratt asks that we reverse the judgment n.o.v. granted by the district court and reinstate her damages award. She argues that application of the new statute to extinguish her judgment is a violation of Ohio's constitutional prohibition against retroactive legislation. In its order for a judgment n.o.v., the court below did not address the constitutionality of the retroactive application of the statute to Mrs. Pratt's judgment.
Apart from the main issue of whether Sec. 4121.80 can be applied retroactively to this action, both parties appeal a host of additional issues. Emery argues that Mrs. Pratt has not established a prima facie case of intentional tort against Emery; that Emery's liability cannot arise under a "failure to warn" theory; that a self-insured employer such as Emery cannot be liable for items that the employer has already directly compensated the...
To continue reading
Request your trial
-
Tuck v. HCA Health Services of Tennessee, Inc.
...in part to unsatisfactory performance. It was the province of the jury to resolve these factual issues. Pratt v. National Distillers & Chemical Corp., 853 F.2d 1329, 1337 (6th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 In the present case, we find that ample tes......
-
Cantrell v. GAF Corp.
...aff'd, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988).6 This language originated in dicta in Pratt v. National Distillers & Chem. Corp., 853 F.2d 1329, 1338 (6th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989).7 Celotex claims that Ohio law prohibits mul......
-
Bray v. Ingersoll-Rand Co.
...evidence in the record for reasonable jurors to resolve the dispute as they did. Id. at 1286-87 (citing Pratt v. Nat'l Distillers & Chem. Corp., 853 F.2d 1329, 1337 (6th Cir. 1998), cert. denied, 489 U.S. 1012 (1989) (internal citations omitted)). Similarly, in O'Brien v. National Gypsum Co......
-
Johnson v. Celotex Corp.
...to determine whether reasonable jurors could, under any theory submitted to them, have resolved the dispute as they did." 853 F.2d 1329, 1337 (6th Cir.1988), cert. denied, U.S. ----, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989). Reviewing the evidence in the light most favorable to the plaintiff,......