Valentine v. PPG Industries, Inc., 2004 Ohio 4521 (OH 8/20/2004)

Decision Date20 August 2004
Docket NumberCase No. 03CA17.
Citation2004 Ohio 4521
PartiesLinda Valentine, widow-claimant, David E. Valentine, decedent, Plaintiff-Appellant, v. PPG Industries, Inc., et al., Defendants-Appellees.
CourtOhio Supreme Court

Terrence W. Larrimer, Columbus, Ohio, and Gary Dumm, Circleville, Ohio, for Appellant.

Stephen J. Habash, Columbus, Ohio, and Kevin L. Shoemaker, Columbus, Ohio, for Appellee PPG Industries, Inc.

DECISION AND JUDGMENT ENTRY

WILLIAM H. HARSHA, Judge.

{¶1} Linda Valentine appeals the trial court's summary judgment in PPG Industries Ohio, Inc.'s favor, and various discovery orders. She contests the court's determination that she failed to establish a right to participate in the workers' compensation system for her husband's, David Valentine (Valentine), death. Specifically, she asserts that the court improperly found her experts' opinions regarding proximate cause to be unreliable and, thus, inadmissible. Without expert testimony, the court concluded that no genuine issue of material fact remained concerning whether Valentine's workplace exposure to various toxic substances proximately caused his brain cancer (glioblastoma multiforme) and subsequent death.

{¶2} She presents four arguments to support her contention that the court incorrectly determined that no genuine issue of fact exists regarding proximate cause: (1) the court failed to consider her three experts' affidavits; (2) the court wrongly concluded that her medical experts' opinions were unreliable and inadmissible; (3) the court improperly determined that her experts' testimony did not show general causation between the decedent's brain tumor and his exposure to carcinogens in the workplace; and (4) the court imposed an incorrect standard of causation under the workers' compensation statute to determine whether a claimant can establish an occupational disease.

{¶3} Initially, we conclude that the trial court properly applied traditional tort standards of proximate cause in analyzing the connection between workplace exposure and the occurrence of an occupational disease. Accordingly, we reject the appellant's contention that in order to establish causation, a worker need only establish that a workplace exposure increased the risk of contracting a disease above that of the general population. Furthermore, after carefully reviewing the legal landscape concerning the reliability of expert testimony and the scientific literature that formed the basis of her experts' opinions, we conclude that the trial court did not abuse its discretion by rejecting this testimony. Without their opinions, appellant possessed no evidence to establish that Valentine's workplace exposure to toxic substances caused his brain tumor. Thus, appellant's failure to show proximate cause as an element of her workers' compensation claim is fatal to her claim, and the trial court appropriately entered summary judgment in PPG's favor. Because her remaining arguments are moot, we affirm the trial court's decision.

BACKGROUND

{¶4} Valentine worked at the PPG Circleville facility from 1969 until 1997, where he initially was a lab technician and later, an environmental and wastewater treatment specialist. During his employment Valentine was exposed to various chemicals. In 1997, Valentine was diagnosed with "glioblastoma multiforme," a rare form of brain cancer that accounts for only 2-3% of all new cancers diagnosed in the United States each year. The only medically proven cause of glioblastoma multiforme is ionizing radiation. Valentine received treatment for his brain tumor at the Ohio State University Hospital, where he saw Dr. Herbert Newton, Arthur James Cancer Research Center Director and Dr. Michael Miner, Department of Neurosurgery Chairman. Despite their treatment, Valentine unfortunately died in 1999 at the age of 51.

{¶5} In November of 1999, Mrs. Valentine filed a claim for death benefits with the Bureau of Workers' Compensation. She claimed that Valentine's exposure to a toxic brew of chemicals throughout his career at PPG caused him to contract the glioblastoma multiforme that led to his death. Ultimately, the Bureau denied the claim.

{¶6} In August of 2000, Mrs. Valentine filed an administrative appeal in the common pleas court. After lengthy and contentious discovery, PPG filed a summary judgment motion, which argued that no genuine issues of material fact existed concerning whether Valentine's work environment proximately caused his brain tumor. Appellee insisted that: (1) the opinions of appellant's experts (Drs. Miner and Newton and Industrial Hygienist Norman Brusk) are inadmissible because they are not scientifically reliable, and (2) that without these opinions, appellant had no evidence regarding proximate cause. Appellee contended the experts' testimony is unreliable because no scientific discipline has established that a specific chemical agent or combination of chemical agents can cause a brain tumor in humans. The trial court agreed and concluded that without their testimony, no genuine issue of material fact remained regarding proximate cause, so the court granted PPG summary judgment.

{¶7} Mrs. Valentine timely appealed the trial court's judgment and raises the following assignments of error: "First Assignment of Error — It was an abuse of discretion for the trial court to grant appellee's motion for summary judgment without examining and analyzing the affidavit evidence of appellant's three experts. Second Assignment of Error — The trial court erred in holding that the opinions of appellant's medical experts were unreliable, and therefore, inadmissible pursuant to Rule 702. Third Assignment of Error — The trial court erred in ruling as a matter of law appellant's experts failed to establish general causation between David Valentine's exposure to carcinogens in his workplace and the development of his brain tumor. Fourth Assignment of Error — The trial court erred in its assessment of the proof necessary to establish an occupational disease as defined by the workers' compensation statute. Fifth Assignment of Error — The trial court erred in limiting appellant's discovery on the following matters.

A. Failure to order suspension of the appellee's "retention of record policy" so as to prevent destruction of relevant documents. B. Limitation on production of exposure records, air sample tests, and ventilation records to only those records taken in the laboratories rather than the production areas.

C. Failure to order appellee to release patent information for materials manufactured during David Valentine's employment.

D. Denial of appellant's request for production of e-mail communications and any other written communications from the appellee's research and development department in Pennsylvania to appellee's industrial hygienists. E. Denial of appellant's request for review of OSHA and EPA records pertaining to the operation of appellee's Circleville plant. F. Failure of the court to order the completion of depositions of appellee's industrial hygienists, Lewis Jordan and Nick Cleary, to answer questions on the presence of a risk of cancer from chemicals in the appellee's workplace. G. Failure of the court to order the release of the ENSR computerized data and imposition of a ten-day time limit for the appellant to commit to full payment of unspecified expenses. H. Failure of the court to require the appellee to provide affidavits that identify the appropriate individuals with the corporation that carried out discovery searches and to document what efforts have been taken to find the documents ordered released."

I

{¶8} Appellant directs her first four assignments of error to the trial court's decision granting appellee summary judgment. First, she asserts that the trial court erred by failing to consider her three experts' affidavits when ruling on appellee's summary judgment motion. Second, appellant contends that the trial court erred by concluding that Drs. Miner's and Newton's testimony regarding the proximate cause of Valentine's brain tumor was not reliable and, therefore, inadmissible. Appellant argues that the court misinterpreted Evid.R. 702 and the evidence she submitted. Third, appellant argues that the trial court erred by concluding that her experts failed to establish general causation linking the exposure to carcinogens in the workplace to the development of brain cancer. Fourth, appellant contends that the trial court erred by determining that appellant was required to establish causation between specifically identified chemicals and brain tumors to a degree of medical or scientific certainty.

{¶9} As a prelude to addressing appellant's contention that the trial court applied an improper legal standard of causation, we set forth some general principles governing summary judgment proceedings and the workers' compensation statutes.

A. Summary Judgment Standard

{¶10} We review a trial court's decision to grant summary judgment on a de novo basis. See, e.g., Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Accordingly, we conduct an independent review of the record and afford no deference to the trial court's determination. See, e.g., Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153. Under Civ.R. 56(C), summary judgment is appropriate when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence, when viewed most strongly in favor of the non-moving party, that reasonable minds can come to a conclusion only in favor of the moving party. See, e.g., Grafton, supra. The burden of showing that no genuine issue exists as to any material fact falls upon the moving party. See, e.g., Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. If the moving party satisfies this burden, "the...

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