Venham v. Astrolite Alloys

• Decision Date: 16 April 1991
• Docket Number: No. 89CA37,89CA37
• Citation: 596 N.E.2d 585,73 Ohio App.3d 90
• Parties: VENHAM et al., Appellants, v. ASTROLITE ALLOYS et al., Appellees. *
• Court: Ohio Court of Appeals

Page 90

73 Ohio App.3d 90

596 N.E.2d 585

VENHAM et al., Appellants, v. ASTROLITE ALLOYS et al., Appellees. ^*

No. 89CA37.

Court of Appeals of Ohio, Fourth District, Washington County.

Decided April 16, 1991.

Handelman & Kilroy, Mary J. Kilroy and Robert Karl Handelman; Barkan & Neff, and Sanford A. Meizlish, Columbus, for appellants.

Day, Kellerer, Raley, Wright & Rybolt and John A. Murphy, Jr., Canton, for appellee Inco Alloys Intern., Inc.

Lane, Alton & Horst, Jeffrey W. Hutson, Theodore M. Munsell and T. Jeffrey Beausay, Columbus, for appellees Hobart Bros. Co. and Teledyne McKay.

Isaac, Brandt, Ledman & Becker and James Ledman, Columbus, for appellee Stoody Co., d.b.a. Stoody Deloro Stellite, Inc.

Hanlon, Duff & Paleudis Co., L.P.A. and Gerald P. Duff, Clairsville, for appellee Lincoln Elec. Co.

McCurdy, Johnson, Ruggiero, McKenzie & Bender and Daniel P. Ruggiero, Portsmouth, for appellee Arcos, Div. of Hoskins.

Mollica, Gall, Sloan & Sillery Co., L.P.A. and Robert J. Gall, Athens, for appellee Tri-Mark, Inc.

Janik & Bell and Kenneth J. Knake, Cleveland, for appellee Sandvik, Inc.

Arter & Hadden and John P. Gartland, Columbus, for appellee Alloy Rods, Inc.

Earl, Warburton, Adams & Davis and Dick M. Warburton, Jr., Columbus, for appellee Interstate Supply Co., Inc.

Israel & Wood and James W. Harvey, Pittsburgh, Pa., for appellee Techalloy Maryland, Inc.

Micheli & Baldwin and Frank J. Micheli, Zanesville, for appellee Virginia Welding Supply Co.

Porter, Wright, Morris & Arthur and Mark K. Merkle, Jr., Columbus, for appellee Armco, Inc. ¹

Porter, Wright, Morris & Arthur and James S. Oliphant, Columbus, for appellee B.O.C. Group, a.k.a. AIRCO.

STEPHENSON, Judge.

This is an appeal from a judgment entered by the Washington County Court of Common Pleas dismissing two complaints filed by Daniel Venham and Elizabeth Venham, plaintiffs below and appellants herein, upon motions for summary judgment filed by, inter alia, the parties designated above as appellees on the grounds that the complaints were not filed within two years as required by the statute of limitations set forth in R.C. 2305.10. The following error is assigned:

"I. The trial court below erred in granting judgment on the grounds that the complaints were not timely filed.

"A. The court below erred in its failure to apply the discovery rule in determining the date of the Plaintiff-Appellant's cause of action, where the Plaintiff-Appellant's bodily injury was not immediately apparent, but was a slow, insidious process, the cause of which was difficult to ascertain.

"B. The court below erred in failing to recognize that the discovery rule applies to all actions filed under 2305.10, and is not restricted to asbestos, DES, and agent orange.

"C. The court below erred in dismissing the consortium claim of Elizabeth Venham, which was filed within four years of her husband's last exposure to the toxic substance, and is timely notwithstanding the trial court's failure to apply the discovery rule."

The following facts are pertinent to this appeal. Appellants filed two complaints in the Washington County Court of Common Pleas. The first, filed on May 21, 1986, named as defendants Daniel Venham's employer, Dravo Corporation, ² and four other companies, including three appellees herein. The second complaint, filed on February 24, 1987, named as defendants twenty-four companies, including the remaining appellees herein. ³ All of the parties in both actions, other than Dravo Corporation, were averred to be "engaged in the business of designing, constructing, manufacturing, selling and/or distributing welding rods, electrodes, and/or welding wire."

In their complaints, appellants alleged that appellant Daniel Venham was employed by Dravo Corporation from November 1973 to February 1974 and again from February 1980 to September 1982 as a weld grinder. His work station was immediately adjacent to the welding operations. Appellants alleged that appellant Daniel Venham was exposed to toxic levels of manganese in dust and fumes from welding rods, electrodes and/or welding wire used in the welding operations.

Appellants further averred that in February 1981, appellant Daniel Venham began to experience some neurological problems causing him to miss work for several months. When the symptoms subsided, he returned to Dravo Corporation; however, the symptoms soon returned and are apparently permanent. Daniel Venham was forced to quit in September 1982 due to these symptoms. The condition was subsequently diagnosed as manganese toxicity Parkinson's syndrome. Appellants sought compensatory damages both for his injuries and for the loss of consortium to Elizabeth Venham.

Between September 15, 1988 and February 6, 1989, numerous motions for summary judgment, including motions by all appellees herein, were filed on the ground that appellants' claims were barred by the relevant statutes of limitations. On August 24, 1989, the court below rendered a decision wherein it granted appellees' motions for summary judgment. The decision was journalized in an entry filed on November 2, 1989.

In their sole assignment of error, appellants contend that the court below erred in holding that the discovery rule was not applicable to the case at bar and in holding that the cause of action arose in November 1981. Appellants argue instead that the discovery rule did apply and, accordingly, the statute of limitations did not begin to run until June 1985 when Dr. Eileen Storey diagnosed appellant Daniel Venham as suffering from manganese toxicity Parkinson's disease. Appellants, therefore, conclude that the court below erred in granting summary judgment when in fact both complaints were filed within two years as required by the statute of limitations set forth in R.C. 2305.10. ⁴

Summary judgment should not be granted unless there is no genuine issue of material facts, and, in construing those facts most strongly in favor of the nonmoving party, the court can come to but one conclusion and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46.

The first issue involved in the case sub judice, however, does not involve a factual question but instead a legal one, i.e., whether the discovery rule is applicable to the case at bar. The discovery rule was first adopted in Ohio by the Ohio Supreme Court in Melnyk v. Cleveland Clinic (1972), 32 Ohio St.2d 198, 61 O.O.2d 430, 290 N.E.2d 916. Melnyk involved a patient who had surgery wherein a surgeon left a metallic forceps and a sponge in the patient's abdomen. This fact was not discovered for ten years. In holding that the patient's cause of action was not time barred, the court held the following in the syllabus:

"Where a metallic forceps and a nonabsorbent sponge are negligently left inside a patient's body during surgery, the running of the statute of limitations governing a claim therefor is tolled until the patient discovers, or by the exercise of reasonable diligence should have discovered, the negligent act. (Wyler v. Tripi, 25 Ohio St.2d 164 , 267 N.E.2d 419, distinguished.)"

Melnyk applied the discovery rule in the medical malpractice context. In O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727, the Ohio Supreme Court extended the scope of the rule to actions for bodily injury which are governed by the statute of limitations set forth in R.C. 2305.10. The plaintiff in O'Stricker suffered from squamous cell carcinoma of the larynx claimed to be caused by exposure to asbestos contained in fireproofing materials with which the plaintiff had worked. The plaintiff filed his action in 1979. The trial court found that the plaintiff's last exposure to asbestos occurred in 1973 and, therefore, held that the claim was barred by the two-year statute of limitations set forth in R.C. 2305.10. ⁵ The Supreme Court, in determining that the claim was not barred, held that it would be manifestly unfair to start the statute of limitations running from the last exposure when symptoms may not manifest themselves for up to thirty years following the last exposure. Under such circumstances, the court in O'Stricker, supra, held that the following rule set forth in paragraph two of the syllabus should be applied:

"When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant, for purposes of the statute of limitations contained in R.C. 2305.10."

R.C. 2305.10 has been amended twice since O'Stricker, supra. In Am.Sub.S.B. No. 406 (139 Ohio Laws, Part I, 866-877), the General Assembly made the discovery rule applicable to cases wherein there was exposure to agent orange or other defoliants, herbicides, or causative agents. Then, in Am.Sub.H.B. No. 72 (140 Ohio Laws, Part I, 1767-1768), the General Assembly further expanded the discovery rule to include situations involving exposure to diethylstilbestrol (DES) and other nonsteroidal synthetic estrogens.

Since R.C. 2305.10 is silent with respect to manganese, but, as noted supra, allows for use of the discovery rule in cases involving exposure to certain other substances such as asbestos, agent orange, etc., appellees urge this court to follow the maxim of "expressio unius est exclusio alterius "-- i.e., the express inclusion of one thing means the exclusion of others. See, e.g., Investors REIT One v. Jacobs (1989), 46 Ohio St.3d 176, 181, 546 N.E.2d 206, 211; Fort Hamilton-Hughes Memorial Hosp. Ctr. v. Southard (1984), 12 Ohio St.3d 263, 265, 12 OBR 342, 343, 466 N.E.2d 903, 905; State ex rel. Boda v. Brown (1952), 157 Ohio St. 368, 372, 47 O.O. 262, 264, 105 N.E.2d 643, 646. In other words, appellees contend that since the General Assembly specifically included in R.C. 2305.10 provisions making...