Russell G. Lewis v. Alfa Laval Separation, Inc.

• Court: Ohio Court of Appeals
• Writing for the Court: ABELE, J.
• Decision Date: 04 June 1998
• Docket Number: 98-LW-2626,96 CA 44
• Citation: Russell G. Lewis v. Alfa Laval Separation, Inc., 96 CA 44, 98-LW-2626 (Ohio App. Jun 04, 1998)
• Parties: RUSSELL G. LEWIS, ET AL., Plaintiffs-Appellees and Cross-Appellants v. ALFA LAVAL SEPARATION, INC., Defendant-Appellant and Cross-Appellee Case

RUSSELL G. LEWIS, ET AL., Plaintiffs-Appellees and Cross-Appellants v. ALFA LAVAL SEPARATION, INC., Defendant-Appellant and Cross-Appellee

No. 96 CA 44.

98-LW-2626 (4th)

Court of Appeals of Ohio, Fourth District Lawrence

June 4, 1998

COUNSEL FOR APPELLANTS: Donald A. Powell & Robert T. Tucker Buckingham, Doolittle & Burroughs, 50 S. Main Street, P.O Box 1500, Akron, Ohio 44309.

COUNSEL FOR APPELLEES: Angela L. Green, 7415 Burlington Pike, P.O Box 671 Florence, Kentucky 41022-0671.

DECISION

ABELE J.

This is an appeal from a judgment entered by the Lawrence County Common Pleas Court after a jury trial. The jury awarded Russell G. Lewis and his wife, Minnie Lewis, plaintiffs below and appellees-cross-appellants herein, $650,000 from Alfa Laval Separation, Inc., defendant below and appellant-cross-appellee herein, for injuries he received as a result of an October 24, 1993 explosion of a centrifuge at Ashland Oil Company's South Point Ethanol Plant.

Appellant-Cross-Appellee (hereinafter "appellant") assign the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS' MOTION IN LIMINE PROHIBITING DEFENDANT FROM INTRODUCING EVIDENCE OF PLAINTIFF'S CONTRIBUTORY NEGLIGENCE IN FAILING TO WEAR MANDATORY HEARING PROTECTION."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN PERMITTING PLAINTIFFS TO INTRODUCE EVIDENCE OF A SETTLEMENT OF THE CLAIMS OF SOUTH POINT ETHANOL."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN PERMITTING PLAINTIFFS TO ELICIT EXPERT TESTIMONY FROM THEIR ECONOMIST ON THE MONETARY VALUE OF PLAINTIFF'S LOSS OF ENJOYMENT OF LIFE'S PLEASURABLE ACTIVITIES."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY TO LIMIT ITS CONSIDERATION OF MEDICAL EXPENSES INCURRED BY THE PLAINTIFFS TO THOSE DOCUMENTED IN PLAINTIFF'S MEDICAL EXHIBIT BINDER."

Appellees-Cross-Appellants (hereinafter "appellee") assign the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR DIRECTED VERDICT ON THE PLAINTIFF'S PUNITIVE DAMAGES CLAIM."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR PREJUDGMENT INTEREST."

On December 16, 1994, appellee filed the instant complaint. In the complaint, appellee alleged that while he was working at

Ashland Oil Company's South Point Ethanol Plant on October 24, 1993, he suffered severe injuries including permanent damage to his ear and auditory system. The injuries occurred when a Model D-7500 centrifuge manufactured and repaired by appellant exploded with such force that the extension portion of the centrifuge was thrown straight up through the roof of the plant and hot corn mash was forcibly blown into appellee's ear.

On January 24, 1995, appellant filed an answer which, inter alia, raised the affirmative defenses of comparative negligence and assumption of risk. On September 13, 1995, appellee amended the complaint by adding a claim for punitive damages. During the next year, the parties engaged in extensive discovery proceedings, including over thirty depositions.

On October 2, 1996, appellee filed a motion in limine requesting the trial court to prohibit appellant from introducing or referring to any evidence regarding hearing protection. On October 7, 1996, appellant filed a memorandum in opposition to appellee's motion in limine. The trial court granted the motion in limine.

On October 21, 1996, the first day of the jury trial, appellant filed a motion in limine requesting the trial court to prohibit appellee from introducing any testimony regarding hedonic damages. When denying the motion, the trial court commented that the "testimony here, goes to the credibility or weight to be given to the evidence of Dr. Brookshire." During the trial, Dr. Brookshire, an economist, testified that because our country values a life at $3,500,000, because that $3,500,000 amount minus the $900,000 worth of wages that an average American will earn is $2,600,000, because that $2,600,000 amount spread over appellee's life is $77,000 per year, and because another expert witness testified that appellee has lost approximately six percent to nine percent of his functioning, appellee has lost approximately $4,000 to $5,000 per year for the rest of his life due to his injuries.

At the conclusion of appellee's case, appellant moved for a directed verdict on the issue of punitive damages. The trial court granted the motion.

On October 25, 1996, the jury returned a $650,000 verdict in favor of appellee. On October 31, 1996, the trial court entered judgment in accordance with verdict.

On November 15, 1996, appellee filed a motion for prejudgment interest. Appellant filed a memorandum in opposition to appellee's motion for prejudgment interest. On November 26, 1996, appellee filed a reply memorandum. On December 3, 1996, the trial court denied appellee's motion for prejudgment interest.

Appellant filed a timely notice of appeal. Appellee filed a timely notice of cross-appeal.

I

In its first assignment of error, appellant asserts that the trial court erred by granting appellee's motion in limine prohibiting appellant from introducing evidence of the fact that appellee failed to wear mandatory foam-style hearing protection at the time of the accident. Appellant contends that the evidence is relevant to the defenses of comparative negligence and assumption of risk. Appellant contends that appellee's otolaryngologist Dr. Wolfe, in his deposition, noted that it is possible that use of the mandatory hearing protection would have prevented appellee's injury.

Appellee argues that the trial court did not abuse its discretion by prohibiting admission of the hearing protection

evidence. Appellee notes that the hearing protection evidence

was irrelevant and confusing. Appellee notes that Dr. Wolfe did not testify that the hearing protection would have saved appellee

from injury; rather, Dr. Wolfe testified in his deposition that

he didn't know whether use of the hearing protection would have

prevented the injury to appellee's ear. Appellee further argues

that regardless of whether appellee failed to use mandatory

hearing protection, because appellee did not voluntarily assume a

known risk, the assumption of risk defense would fail.

Initially, we note that the admission or exclusion of relevant evidence is within the sound discretion of the trial court. The trial court's decision to admit or exclude relevant evidence cannot be reversed absent an abuse of discretion. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056, 1058; Leaman v. Coles (1996), 115 Ohio App.3d 627, 629, 685 N.E.2d 1294, 1296; Nielsen v. Meeker (1996), 112 Ohio App.3d 448, 450, 679 N.E.2d 28, 30. An abuse of discretion connotes more than an error of law or judgment. In Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252, the court wrote as follows that an abuse of discretion involves a result "palpably and grossly violative of fact and logic":

"[t]he term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an `abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias."

Thus, an abuse of discretion will not be found when the reviewing court simply could maintain a different opinion were it deciding the issue de novo. Rather, an abuse of discretion indicates an attitude that is unreasonable, arbitrary, or unconscionable. AAAA Enterprises, Inc. v. River Place Community Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597, 601.

In the case sub judice, we find no abuse of discretion with the trial court's decision to exclude evidence that appellee failed to wear mandatory foam-style hearing protection. In his deposition, Dr. Wolfe testified in pertinent part as follows:

"Q. You mentioned hearing protection. Are you familiar with a hearing protection device that is a sponge-like insert that you squeeze and then place into your external canal?

A. Yes.

Q. Are you aware of - - of what these sort of hearing devices are designed and required to do?

A. Yes.

Q. And what is that?

A. Protect the inner ear from excessive noise.

Q. Would they protect from explosions or traumas not involving noise?

A. They're not designed for that.

Q. I'm going to ask you to assume that Mr. Lewis, at the time of the explosion, would have been wearing one of the sponge-like inserts that I just described to you, and I'm going to ask you to assume further that the centrifuge exploded with a force such that it drilled the corn mash that you observed and imbedded the corn mash into - - to his ear with a force that blew the machine through the plant roof okay? Would that sponge-plug have become jammed, at some point, in his ear or some part of his ear?

A. I - - I don't know what would have happened. Certainly, those foam plugs are compressible. They are - - their intent and purpose is to not protect somebody from an explosion. Their intent and purpose is to protect somebody from harmful noise levels.

How much that would have buffeted what went in his ear or whether that would have simply been blown in and it been blown [sic] through the eardrum, I do not know.

* * *

Q. If I understood your testimony earlier today, I believe you said that you are unable to give any opinion within a reasonable degree of medical certainty as to what would have happened if Mr. Lewis had been wearing the

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