On June 09, 2021 a
Exhibit,Appendix
was filed
involving a dispute between
Paula A. Karnisky His Spouse,
Paula A. Karnisky
His Spouse,
Robert A. Karnisky,
and
Air & Liquid Systems Corporation As Successor By Merger To Buffalo Pumps, Inc.,
Air & Liquid Systems Corporation
As Successor By Merger To Buffalo Pumps, Inc.,
Alray Construction Corp. F K A Hebert Construction Corp.,
Alray Construction Corp.
F K A Hebert Construction Corp.,
Armstrong International, Inc.,
Armstrong Pumps Inc.,
Aurora Pump Company,
Cleaver-Brooks, Inc. F K A Aqua-Chem, Inc.,
Cleaver-Brooks, Inc.
F K A Aqua-Chem, Inc.,
Clyde Union Inc. F K A Union Pump Company,
Clyde Union Inc.
F K A Union Pump Company,
Crane Co.,
Elmer W. Davis Inc.,
Flowserve Corporation F K A The Duriron Company, Inc. Sued As Successor By Merger To Durco International,
Flowserve Corporation
F K A The Duriron Company, Inc. Sued As Successor By Merger To Durco International,
Flowserve Us, Inc. Solely As Successor To Rockwell Manufacturing Company Edward Valves, Inc. And Edward Vogt Valve Company,
Flowserve Us, Inc.
Solely As Successor To Rockwell Manufacturing Company Edward Valves, Inc. And Edward Vogt Valve Company,
Fmc Corporation Individually And As Successor To Northern Pump Company And Coffin,
Fmc Corporation
Individually And As Successor To Northern Pump Company And Coffin,
Foster Wheeler Llc,
Frontier Insulation Contractors, Inc. F K A Frontier Insulation And Asbestos, Inc.,
Frontier Insulation Contractors, Inc.
F K A Frontier Insulation And Asbestos, Inc.,
Gardner Denver, Inc.,
General Electric Company,
Goulds Pumps, Incorporated F K A Goulds Pumps Merger Corporation,
Goulds Pumps, Incorporated
F K A Goulds Pumps Merger Corporation,
Grinnell Llc,
Honeywell International Inc. F K A Alliedsignal, Inc. And As Successor In Interest To The Bendix Corporation,
Honeywell International Inc.
F K A Alliedsignal, Inc. And As Successor In Interest To The Bendix Corporation,
Imo Industries Inc. Individually And As Successor In Interest To Imo Delaval,
Imo Industries Inc.
Individually And As Successor In Interest To Imo Delaval,
Industrial Insulation Sales, Inc.,
Insulation Distributors, Inc.,
Itt Corporation F K A Itt Industries, Inc. Individually And As Successor To Itt Fluid Products Corp. Itt Hoffman Itt Bell & Gossett Company And Itt Marlow,
Itt Corporation
F K A Itt Industries, Inc. Individually And As Successor To Itt Fluid Products Corp. Itt Hoffman Itt Bell & Gossett Company And Itt Marlow,
Mader Capital, Inc.,
Mader Plastering Corp.,
Met-Pro Technologies Llc A Ceco Environmental Company Successor By Merger To Met-Pro Corporation On Behalf Of Its Dean Pump Division,
Met-Pro Technologies Llc
A Ceco Environmental Company Successor By Merger To Met-Pro Corporation On Behalf Of Its Dean Pump Division,
Neles-Jamesbury, Inc,
Pfaudler, Inc.,
R.E. Hebert And Company, Inc.,
Riley Power Inc. F K A Babcock Borsig Power, Inc. F K A Db Riley, Inc. F K A Riley Stoker Corporation,
Riley Power Inc.
F K A Babcock Borsig Power, Inc. F K A Db Riley, Inc. F K A Riley Stoker Corporation,
Rochester Acoustical Corp.,
Rochester Industrial Insulation, Inc.,
Spirax Sarco, Inc. Individually And As Successor To Sarco Company, Inc.,
Spirax Sarco, Inc.
Individually And As Successor To Sarco Company, Inc.,
Spx Cooling Technologies, Inc. F K A Marley Cooling Technologies, Inc. F K A The Marley Cooling Tower Company,
Spx Cooling Technologies, Inc.
F K A Marley Cooling Technologies, Inc. F K A The Marley Cooling Tower Company,
The Mader Corporation,
The Marley-Wylain Company F K A Weil-Mclain,
The Marley-Wylain Company
F K A Weil-Mclain,
The William Powell Company,
Union Carbide Corporation,
Velan Valve Corp.,
Viacomcbs, Inc.,
Warren Pumps Llc,
Watts Water Technologies, Inc
F K A Watts Industries, Inc, Individually And As Successor To Mueller Steam Specialty Company,
Weir Valves & Controls Usa, Inc. D B A Atwood & Morrill Co., Inc.,
Weir Valves & Controls Usa, Inc.
D B A Atwood & Morrill Co., Inc.,
William Summerhays' Sons Corporation,
Zurn Industries, Llc Individually And As Successor In Interest To Erie City Iron Workers Corporation,
Zurn Industries, Llc
Individually And As Successor In Interest To Erie City Iron Workers Corporation,
for Torts - Asbestos
in the District Court of Monroe County.
Preview
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM INDEX NO. E2021005118
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3218159
Book Page CIVIL
Return To: No. Pages: 8
THUY T. BUI
1177 Avenue of the Americas Instrument: EXHIBIT(S)
41st Floor
New York, NY 10036 Control #: 202210061469
Index #: E2021005118
Date: 10/06/2022
Karnisky, Robert A. Time: 5:36:35 PM
Karnisky, Paula A.
Air & Liquid Systems Corporation
Alray Construction Corp.
Armstrong International, Inc.
Armstrong Pumps Inc.
Aurora Pump Company
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202210061469 Index #
INDEX : E2021005118
NO. E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022
EXHIBIT 1
202210061469 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022
McGuire v. Mayfield, Not Reported in N.E.2d (1991)
1991 WL 261831
*1 These are appeals from judgments of the Allen County
Court of Common Pleas in favor of appellee, Mac
KeyCite Yellow Flag - Negative Treatment McGuire (“McGuire”), and against appellants, the
Distinguished by Olinger v. Pretty Products, Inc., Ohio App. 5 Dist.,
Industrial Commission of Ohio, the Administrator of the
November 7, 1997 Bureau of Workers’ Compensation, and Tilton
1991 WL 261831 Corporation (“Tilton”).
Only the Westlaw citation is currently available.
CHECK OHIO SUPREME COURT RULES FOR
REPORTING OF OPINIONS AND WEIGHT OF
LEGAL AUTHORITY.
Court of Appeals of Ohio, Third District, Allen I
County.
McGuire filed a claim with the workers’ compensation
Mac McGUIRE, Appellant-Appellee, board seeking to participate in the workers’ compensation
v. fund because he is allegedly suffering from asbestosis
James L. MAYFIELD, Administrator, et al., which he claims to have contracted as a result of his
Appellees-Appellants, employment. The board denied McGuire’s claim and he
and appealed to the Allen County Court of Common Pleas.
Tilton Corporation, Appellee-Appellant. Following trial, the jury returned its verdict finding that
Mac McGUIRE, Appellant-Appellee, McGuire was entitled to participate in the fund.
v.
James L. MAYFIELD, Administrator, et al., The Industrial Commission and the Administrator of the
Appellees-Appellants, Bureau of Workers’ Compensation appeal that decision
and asserting ten assignments of error. Tilton filed a separate
Tilton Corporation, Appellee-Appellee.
appeal which raises some of the same assignments of
Nos. 1-90-83, 1-90-88. error in essence, as well as additional assignments of error
| not raised by the other appellants. The cases were
Dec. 9, 1991. consolidated for purposes of briefing and oral argument.
We dispose of both appeals in this decision.
Administrative Appeals from Common Pleas Court. McGuire worked intermittentlyas a sheet metal worker
and as an insulator during the years from 1957 to 1987.
Attorneys and Law Firms He was employed by Tilton periodically throughout this
thirty year period. He claims to have been exposed to
Lee Fisher, Attorney General, Jetta Mencer, Assistant asbestos in the years until approximately 1971 while
Attorney General, Workers’ Compensation Section, applying asbestos-containing insulation and from 1972 to
Columbus, for appellant Bureau of Workers’ Comp. 1987 while working around others who were removing
asbestos-containing materials from piping as he was
Tilton Corporation, Lima, appellant. applying insulation. McGuire’s most recent employment
with Tilton was from 1985 to 1987.
Mary Bridgett Sweeney, Cleveland, for appellee.
After considering evidence in the record and evidence
adduced at hearing, the DistrictHearing Officer for the
Bureau of Workers’ Compensation concluded that
McGuire “did not contract an occupational disease in the
coursee [sic] of employment.” Upon appeal, the Regional
Board of Review affirmed that decision. Upon further
appeal, a jury of the Common Pleas Court of Allen
OPINION County found that McGuire did contract asbestosis in the
course of employment and was entitled to participate in
the workers’ compensation fund.
THOMAS F. BRYANT, Presiding Judge.
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
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NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022
McGuire v. Mayfield, Not Reported in N.E.2d (1991)
1991 WL 261831
Combining both appeals filed in this court, appellants clinical tests” of asbestosis. It is our opinion that he has
assert twenty assignments of error. For the sake of not.
brevity, we will not set those forth verbatim.
Dr. Hayhurst, McGuire’s medical expert, admitted that
the pulmonary function test can be affected by patient
effort. Dr. Grodner, a pulmonary specialist who examined
McGuire at the appellants’ request and found no evidence
of asbestosis, testifiedthat a pulmonary function test is
subjective because it is affected by patient effort.
II
Since McGuire failed to produce objective medical
Appellants, Bureau of Workers’ Compensation and
Industrial Commission, assert in their Assignment of evidence of asbestosis as required by R.C.
Error No. I, and appellant Tilton asserts in its 4123.68(AA), we find the Bureau’s and the Industrial
Assignments of Error Nos. V and VII that the trial court Commission’s Assignment of Error No. I and Tilton’s
erred in denying their motions for directed verdict. Assignments of Error Nos. V and VII to be well taken.
Appellants argue they were entitledto directed verdicts
because McGuire allegedly failed to produce medical
evidence sufficient to satisfy the requirements of R.C.
4123.68(AA), which provides in pertinent part:
“(AA) Asbestosis: Asbestosis means a disease caused by III
inhalation or ingestion of asbestos, demonstrated by x-ray
examination, biopsy, autopsy, or other objective medical For their second assignment of error, the Bureau and the
or clinical tests.” Industrial Commission argue that the trial court erred in
admitting hypothetical questions posed to Dr. Hayhurst
*2 Two physicians testifiedon behalf of McGuire. Dr. and Dr. Holladay as those questions allegedly assumed
Holladay, a general practitioner, diagnosed bronchitis and facts not in evidence. Tilton asserts the same error as to
pneumonitis. He testified that he was unable to obtain the hypothetical question posed to Dr. Hayhurst in its
conclusive test results concerning the presence of Assignment of Error No. III. A review of the record
asbestosis and then referred McGuire to Dr. Hayhurst, a indicates that counsel for McGuire asked both doctors to
pulmonary specialist. Nevertheless, Dr. Holladay express an opinion as to McGuire’s condition based upon
expressed an opinion, apparently based only on a report several assumptions stated by counsel. Both doctors then
from Dr. Hayhurst, that McGuire suffers from asbestosis. expressed opinions based upon those assumptions.
Dr. Hayhurst testified that he diagnosed McGuire as Evid.R. 703 provides that an expert may base his opinion
having asbestosis and chronic bronchitis.He based the on facts “perceived by him or admitted in evidence at the
diagnosis of asbestosis on a lung function test and the hearing.” See, also, State v. Chapin (1981), 67 Ohio
work history given to him by McGuire. He admitted that St.2d 437, 442 (citingBurens v. Indus. Comm. (1955),
he reviewed a chest x-ray of McGuire which did not 162 Ohio St. 549). An expert must base his opinion upon
reveal any signs of asbestosis. He further admitted that the facts within his own personal knowledge or upon facts
lung function test, which is a breathing test, is affected by shown by other evidence. Burens, 162 Ohio St. 549,
patient effort. paragraph one of the syllabus.
Dr. Hayhurst testified that the lung function test *3 We believe that the hypothetical questions posed to Dr.
administered to McGuire indicated he is suffering from Hayhurst and Dr. Holladay unfairly characterized the
restrictive pulmonary impairment, which is indicative of evidence and were prejudicial to appellants. Accordingly,
asbestosis. Upon further inquiry, however, Dr. Hayhurst we find the Bureau’s and the Industrial Commission’s
admitted that restrictive impairment alone does not second assignment of error and Tilton’s third assignment
indicate asbestosis as such impairment can be caused by of error to be well taken.
other diseases.
It is undisputed that asbestosis has not been demonstrated
by x-ray examination, biopsy or autopsy. The only issue
is whether McGuire presented “other objective medical or
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
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NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022
McGuire v. Mayfield, Not Reported in N.E.2d (1991)
1991 WL 261831
IV
The Bureau’s and the Industrial Commission’s
Assignments of Error Nos. III and IV assert that the trial
court erred in failing to direct a verdict in their favor on VI
the basis that McGuire failed to prove that he was
exposed to asbestos and/or contracted asbestosis in the In their Assignments of Error Nos. VI, VII, VIII, IX and
course of his employment. Civ.R. 50(A) provides that a X, the Bureau and the Industrial Commission assert that
directed verdict shall be granted upon motion properly the trial court erred in ordering the Industrial Commission
made if, construing the evidence most strongly in favor of to pay various deposition costs and attorney fees incurred
the party opposing the motion, the court finds that by McGuire. Assignment of Error No. VI relates to costs
reasonable minds could come to but one conclusion and of depositions of two employees of Tilton. We agree with
that conclusion is adverse to such party. the Bureau and the Industrial Commission that payment
for such costs is not authorized by R.C. 4123.519(C),
As we held in our discussion of the Bureau’s and which relates only to depositions of physicians.
Industrial Commission’s Assignment of Error No. I and Therefore, the general rule concerning deposition costs
Tilton’s Assignments of Error Nos. V and VII, McGuire applies. That rule provides that depositions are not taxed
produced no competent objective medical evidence that as costs if they are not used at trial. Barrett v. Singer Co.
he is suffering from asbestosis. Accordingly, reasonable (1979), 60 Ohio St.2d 7. Since neither of these
minds could come to but one conclusion and that depositions was used legitimately at trial, they werenot
conclusion is adverse to McGuire. The trial court’s denial properly taxable as costs to the Industrial Commission.
of the Bureau’s and the Industrial Commission’s motion
for directed verdict on these grounds was error. *4 For the reason stated above, the Bureau’s and the
Industrial Commission’s Assignment of Error No. VI is
The Bureau’s and the Industrial Commission’s well taken.
Assignments of Error Nos. III and IV are well taken.
VII
V
Assignment of Error No. VII set forth by the Bureau and
The Bureau’s and the Industrial Commission’s the Industrial Commission relates to the trial court’s order
Assignment of Error No. V and Tilton’sAssignment of to the Industrial Commission to pay both the cost of the
Error No. X assert that the trial court’s judgment must be transcripts and videotaping of the depositions of Dr.
vacated as it is against the weight of the evidence. A Hayhurst and Dr. Holladay. They allege that the Industrial
reviewing court may not reverse a judgment which is Commission should be charged only with the higher cost,
supported by some “competent, credible evidence going the videotaping, and not both costs.
to all the essential elements of the case”. C.E. Morris
Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, App.R. 9(A) provides that a videotape recording of
280. As we held in our discussion of the Bureau’s and proceedings constitutes the transcript of proceedings and
Industrial Commission’s Assignment of Error No. I and there is no requirement that they be transcribed in written
Tilton’s Assignments of Error Nos. V and VII, McGuire form. The trial court has discretion in deciding whether or
produced no competent objective medical evidence, as not to award such expenses as taxable costs. Glover v.
required by statute,that he is suffering from asbestosis. Massey (Jan. 11, 1990), Cuyahoga App. No. 56351,
Thus, the verdict is not supported by the evidence in the 56802, unreported. If the trialcourt found that it was
record. “necessary and vital to the litigation” that written
transcripts be provided, then itproperly exercised that
Accordingly, the Bureau’s and the Industrial discretion. Id. We find no evidence in the record that the
Commission’s Assignment of Error No. V and Tilton’s trial court found it necessary to have written transcripts of
Assignment of Error No. X are well taken. these depositions; however, we presume the trialcourt
made the finding necessary to support its order. See State,
ex rel. Fulton, v. Halliday (1944), 142 Ohio St. 548; and,
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
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FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022
McGuire v. Mayfield, Not Reported in N.E.2d (1991)
1991 WL 261831
Rossman v. Conran (1988), 61 Ohio App.3d 246. X
The Bureau’s and the Industrial Commission’s *5 The Bureau’s and the Industrial Commission’s
Assignment of Error No. VII is not well taken. Assignment of Error No. X asserts that the trialcourt
erred in ordering the Industrial Commission to pay to
McGuire attorney’s fees in the amount of $1,500. They
argue that the court is authorized to award attorney’s fees
in the amount of twenty percent of an award up to $3,000
and ten percent of any amount in excess thereof, not to
exceed $1,500. They allege that, since no award has yet
VIII been given to McGuire, the award of attorney’s fees is in
error.
The Bureau’s and the Industrial Commission’s
Assignment of Error No. VIII asserts that the trial court
erred in ordering the Industrial Commission to pay the The amendment to R.C. 4123.519(E), effective
cost incurred by McGuire in obtaining a copy of the November 3, 1989, provides that attorney’s fees may be
transcript of his deposition. In opposition to this awarded based upon the effortexpended not to exceed
assignment of error, McGuire asserts that his $2,500. Based upon the amendment to this statute,the
“depositional [sic ] costs which only includes the price of trialcourt did not err in awarding an attorney’s fee of
the copy, should be recoverable since a plaintiff should be $1,500, but in view of the disposition of thiscase on
afforded the right to obtain a copy of his previous appeal, the matter is now moot.
testimony. To preclude recovery of this cost could
directly affect the ability of the plaintiff to sustain The Bureau’s and the Industrial Commission’s
cross-examination at trial.” Counsel for McGuire cites no Assignment of Error No. X is not well taken.
authority in support of this proposition and we have found
none. Without such authority, McGuire’s argument is not
persuasive.
Accordingly, the Bureau’s and the Industrial
Commission’s Assignment of Error No. VIII is well XI
taken.
Tilton’s Assignment of Error No. I asserts thatthe trial
court erred in overruling its motion under Rule 19. Tilton
argues that McGuire’s previous employers should have
been joined as necessary parties since McGuire may have
been exposed to asbestos while working for those
employers. We agree that those employers should have
IX
been joined as parties. See State, ex rel. Burnett, v.
The Bureau and the Industrial Commission assert in their Indus. Comm. (1983), 6 Ohio St.3d 266. Given our
Assignment of Error No. IX that the trial court erred in disposition of this case under the Bureau’s and Industrial
ordering the Industrial Commission to pay the cost of Commission’s Assignment of Error No. I and Tilton’s
playing the videotaped depositions of Dr. Hayhurst and Assignments of Error Nos. V and VII, however, Tilton
Dr. Holladay at trial.
C.P.Sup.R. 12(D)(1)(c)C.P.Sup.R. has suffered no prejudice from the error.
12(D)(1)(c) provides that“[t]he expense of playing the
videotape recording at trial shall be borne by the court.”
See, also, Glover v. Massey (Jan. 11, 1990), Cuyahoga
App. No. 46351, 56802, unreported.
The trial court’s order that the Industrial Commission pay
this cost was clearly in error. Therefore, the Bureau’s and XII
the Industrial Commission’s Assignment of Error No. IX
Tilton’s Assignment of Error No. II asserts that the trial
is well taken.
court erred in overruling its motion to exclude Dr.
Holladay’s testimony. Tilton argues that such testimony
should have been excluded for any or all of the following
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 4
202210061469 IndexNO.
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E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022
McGuire v. Mayfield, Not Reported in N.E.2d (1991)
1991 WL 261831
reasons: (1) Dr. Holladay is not an expert on asbestosis For the reason stated above, Tilton’s Assignment of Error
because he is a general practitioner rather than a No. IV is well taken.
pulmonary specialistand, as such, is not competent to
express an opinion as to whether McGuire issuffering
from asbestosis; (2) Dr. Holladay’s testimony does not
satisfy the requirements of R.C. 4123.68(AA) because
his opinion is not based upon objective medical evidence;
and, (3) Dr. Holladay’s opinion is inadmissible under XIV
Evid.R. 403 because its limited probative value is
substantially outweighed by unfair prejudice and/or such In its sixth assignment of error, Tilton asserts that the trial
testimony is merely cumulative. court erred by excluding testimony proffered by it.The
plant safety director at the time of McGuire’s alleged
The only issue raised by this assignment is whether Dr. exposure attempted to testify that the respirators used at
Holladay’s entire testimony should have been excluded. the job site were in compliance with Occupational Safety
This testimony was proper since Dr. Holladay was one of and Health Administration (“OSHA”) standards. The
McGuire’s treating physicians and his testimony laid the basis for this testimony was a letter from OSHA. Tilton
groundwork for Dr. Hayhurst’s testimony. We are not argues that this letter demonstrates how the witness
called upon to decide any other issue with respect to this obtained personal knowledge of such compliance.
testimony and we express no opinion on questions not
presented. A supervisor attempted to testify as to results of lab tests
performed on insulation materials taken from the plant.
Tilton’s Assignment of Error No. II is not well taken. The basis of this testimony was a lab report. The witness
did not perform the tests himself. Tilton again argues that
the report demonstrates how the witness obtained
personal knowledge of the test results. We disagree.
Tilton clearly attempted to introduce the letter and lab
XIII report to prove the truthof the matters asserted therein.
Since these documents are hearsay, the trial court’s
In its fourth assignment of error, Tilton asserts thatthe refusal to admit them was not error. See Evid.R.
trialcourt erred by admitting lay opinions concerning 801(C).
McGuire’s alleged exposure to asbestos. Several
individuals who worked with McGuire during 1985 and Accordingly, Tilton’s Assignment of Error No. VI is not
1986 testified that he was exposed to asbestos on the job. well taken.
This testimony appears to be based on the fact thatthe
work area was dusty; however, the witnesses admitted
that it is impossible to see asbestos fibers floating in the
air.
*6 Evid.R. 701 provides that:
XV
“If the witness is not testifying as an expert, his testimony
In its eighth assignment of error, Tilton asserts thatthe
in the form of opinions or inferences is limited to those
trial court erred in failing to give three jury instructions it
opinions or inferences which are (1) rationally based on
requested. We hold that the first two instructions are a
the perception of the witness and (2) helpful to a clear
misstatement of law and, therefore, the trialcourt was
understanding of his testimony or the determination of a
correct in refusing to give those instructions. The third
fact in issue.”
requested instruction is not supported by evidence in the
record and, as such, the instruction could not properly
Since these lay witnesses admitted that asbestos fibers
have been given. O’Day v. Webb (1972), 29 Ohio St.2d
cannot be seen floating in the air, their testimony that
215.
McGuire was exposed to asbestos on the job is clearly not
rationally based on their perceptions. Accordingly, this
For the reasons stated above, Tilton’s eighth assignment
testimony was improperly admitted.
of error is not well taken.
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 5
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McGuire v. Mayfield, Not Reported in N.E.2d (1991)
1991 WL 261831
*7 Finding no abuse of discretion, we hold that Tilton’s
Assignment of Error No. IX is not well taken.
XVI
Tilton’s Assignment of Error No. IX alleges that the trial XVII
court erred in overruling its motion for continuance. Prior
to trial,counsel for Tilton moved for a continuance Accordingly, the judgments of the Court of Common
because counsel had been contacted by Tilton only seven Pleas of Allen County are reversed and judgment is
days prior to the trial date. Counsel argued that he did not hereby entered for appellants, determining that appellee is
have sufficient time to prepare for trial and that a not entitled to participate in the workers’ compensation
continuance should be granted. fund upon the claim presented.
C.P. Sup.R. 7(A)C.P. Sup.R. 7(A) provides: Judgments reversed.
“The continuance of a scheduled trialor hearing is a
matter within the sound discretion of the trialcourt for
good cause shown.”
HADLEY and SHAW, JJ., concur.
We find no abuse of discretion on the part of the trial
All Citations
court in overruling Tilton’s motion for continuance.
Tilton was served in this action and has set forth no good Not Reported in N.E.2d, 1991 WL 261831
cause as to why counsel was not obtained in a timely
manner.
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 6
Preview
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM INDEX NO. E2021005118 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3218159 Book Page CIVIL Return To: No. Pages: 8 THUY T. BUI 1177 Avenue of the Americas Instrument: EXHIBIT(S) 41st Floor New York, NY 10036 Control #: 202210061469 Index #: E2021005118 Date: 10/06/2022 Karnisky, Robert A. Time: 5:36:35 PM Karnisky, Paula A. Air & Liquid Systems Corporation Alray Construction Corp. Armstrong International, Inc. Armstrong Pumps Inc. Aurora Pump Company Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202210061469 Index # INDEX : E2021005118 NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022 EXHIBIT 1 202210061469 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022 McGuire v. Mayfield, Not Reported in N.E.2d (1991) 1991 WL 261831 *1 These are appeals from judgments of the Allen County Court of Common Pleas in favor of appellee, Mac KeyCite Yellow Flag - Negative Treatment McGuire (“McGuire”), and against appellants, the Distinguished by Olinger v. Pretty Products, Inc., Ohio App. 5 Dist., Industrial Commission of Ohio, the Administrator of the November 7, 1997 Bureau of Workers’ Compensation, and Tilton 1991 WL 261831 Corporation (“Tilton”). Only the Westlaw citation is currently available. CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. Court of Appeals of Ohio, Third District, Allen I County. McGuire filed a claim with the workers’ compensation Mac McGUIRE, Appellant-Appellee, board seeking to participate in the workers’ compensation v. fund because he is allegedly suffering from asbestosis James L. MAYFIELD, Administrator, et al., which he claims to have contracted as a result of his Appellees-Appellants, employment. The board denied McGuire’s claim and he and appealed to the Allen County Court of Common Pleas. Tilton Corporation, Appellee-Appellant. Following trial, the jury returned its verdict finding that Mac McGUIRE, Appellant-Appellee, McGuire was entitled to participate in the fund. v. James L. MAYFIELD, Administrator, et al., The Industrial Commission and the Administrator of the Appellees-Appellants, Bureau of Workers’ Compensation appeal that decision and asserting ten assignments of error. Tilton filed a separate Tilton Corporation, Appellee-Appellee. appeal which raises some of the same assignments of Nos. 1-90-83, 1-90-88. error in essence, as well as additional assignments of error | not raised by the other appellants. The cases were Dec. 9, 1991. consolidated for purposes of briefing and oral argument. We dispose of both appeals in this decision. Administrative Appeals from Common Pleas Court. McGuire worked intermittentlyas a sheet metal worker and as an insulator during the years from 1957 to 1987. Attorneys and Law Firms He was employed by Tilton periodically throughout this thirty year period. He claims to have been exposed to Lee Fisher, Attorney General, Jetta Mencer, Assistant asbestos in the years until approximately 1971 while Attorney General, Workers’ Compensation Section, applying asbestos-containing insulation and from 1972 to Columbus, for appellant Bureau of Workers’ Comp. 1987 while working around others who were removing asbestos-containing materials from piping as he was Tilton Corporation, Lima, appellant. applying insulation. McGuire’s most recent employment with Tilton was from 1985 to 1987. Mary Bridgett Sweeney, Cleveland, for appellee. After considering evidence in the record and evidence adduced at hearing, the DistrictHearing Officer for the Bureau of Workers’ Compensation concluded that McGuire “did not contract an occupational disease in the coursee [sic] of employment.” Upon appeal, the Regional Board of Review affirmed that decision. Upon further appeal, a jury of the Common Pleas Court of Allen OPINION County found that McGuire did contract asbestosis in the course of employment and was entitled to participate in the workers’ compensation fund. THOMAS F. BRYANT, Presiding Judge. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 202210061469 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022 McGuire v. Mayfield, Not Reported in N.E.2d (1991) 1991 WL 261831 Combining both appeals filed in this court, appellants clinical tests” of asbestosis. It is our opinion that he has assert twenty assignments of error. For the sake of not. brevity, we will not set those forth verbatim. Dr. Hayhurst, McGuire’s medical expert, admitted that the pulmonary function test can be affected by patient effort. Dr. Grodner, a pulmonary specialist who examined McGuire at the appellants’ request and found no evidence of asbestosis, testifiedthat a pulmonary function test is subjective because it is affected by patient effort. II Since McGuire failed to produce objective medical Appellants, Bureau of Workers’ Compensation and Industrial Commission, assert in their Assignment of evidence of asbestosis as required by R.C. Error No. I, and appellant Tilton asserts in its 4123.68(AA), we find the Bureau’s and the Industrial Assignments of Error Nos. V and VII that the trial court Commission’s Assignment of Error No. I and Tilton’s erred in denying their motions for directed verdict. Assignments of Error Nos. V and VII to be well taken. Appellants argue they were entitledto directed verdicts because McGuire allegedly failed to produce medical evidence sufficient to satisfy the requirements of R.C. 4123.68(AA), which provides in pertinent part: “(AA) Asbestosis: Asbestosis means a disease caused by III inhalation or ingestion of asbestos, demonstrated by x-ray examination, biopsy, autopsy, or other objective medical For their second assignment of error, the Bureau and the or clinical tests.” Industrial Commission argue that the trial court erred in admitting hypothetical questions posed to Dr. Hayhurst *2 Two physicians testifiedon behalf of McGuire. Dr. and Dr. Holladay as those questions allegedly assumed Holladay, a general practitioner, diagnosed bronchitis and facts not in evidence. Tilton asserts the same error as to pneumonitis. He testified that he was unable to obtain the hypothetical question posed to Dr. Hayhurst in its conclusive test results concerning the presence of Assignment of Error No. III. A review of the record asbestosis and then referred McGuire to Dr. Hayhurst, a indicates that counsel for McGuire asked both doctors to pulmonary specialist. Nevertheless, Dr. Holladay express an opinion as to McGuire’s condition based upon expressed an opinion, apparently based only on a report several assumptions stated by counsel. Both doctors then from Dr. Hayhurst, that McGuire suffers from asbestosis. expressed opinions based upon those assumptions. Dr. Hayhurst testified that he diagnosed McGuire as Evid.R. 703 provides that an expert may base his opinion having asbestosis and chronic bronchitis.He based the on facts “perceived by him or admitted in evidence at the diagnosis of asbestosis on a lung function test and the hearing.” See, also, State v. Chapin (1981), 67 Ohio work history given to him by McGuire. He admitted that St.2d 437, 442 (citingBurens v. Indus. Comm. (1955), he reviewed a chest x-ray of McGuire which did not 162 Ohio St. 549). An expert must base his opinion upon reveal any signs of asbestosis. He further admitted that the facts within his own personal knowledge or upon facts lung function test, which is a breathing test, is affected by shown by other evidence. Burens, 162 Ohio St. 549, patient effort. paragraph one of the syllabus. Dr. Hayhurst testified that the lung function test *3 We believe that the hypothetical questions posed to Dr. administered to McGuire indicated he is suffering from Hayhurst and Dr. Holladay unfairly characterized the restrictive pulmonary impairment, which is indicative of evidence and were prejudicial to appellants. Accordingly, asbestosis. Upon further inquiry, however, Dr. Hayhurst we find the Bureau’s and the Industrial Commission’s admitted that restrictive impairment alone does not second assignment of error and Tilton’s third assignment indicate asbestosis as such impairment can be caused by of error to be well taken. other diseases. It is undisputed that asbestosis has not been demonstrated by x-ray examination, biopsy or autopsy. The only issue is whether McGuire presented “other objective medical or © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 202210061469 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022 McGuire v. Mayfield, Not Reported in N.E.2d (1991) 1991 WL 261831 IV The Bureau’s and the Industrial Commission’s Assignments of Error Nos. III and IV assert that the trial court erred in failing to direct a verdict in their favor on VI the basis that McGuire failed to prove that he was exposed to asbestos and/or contracted asbestosis in the In their Assignments of Error Nos. VI, VII, VIII, IX and course of his employment. Civ.R. 50(A) provides that a X, the Bureau and the Industrial Commission assert that directed verdict shall be granted upon motion properly the trial court erred in ordering the Industrial Commission made if, construing the evidence most strongly in favor of to pay various deposition costs and attorney fees incurred the party opposing the motion, the court finds that by McGuire. Assignment of Error No. VI relates to costs reasonable minds could come to but one conclusion and of depositions of two employees of Tilton. We agree with that conclusion is adverse to such party. the Bureau and the Industrial Commission that payment for such costs is not authorized by R.C. 4123.519(C), As we held in our discussion of the Bureau’s and which relates only to depositions of physicians. Industrial Commission’s Assignment of Error No. I and Therefore, the general rule concerning deposition costs Tilton’s Assignments of Error Nos. V and VII, McGuire applies. That rule provides that depositions are not taxed produced no competent objective medical evidence that as costs if they are not used at trial. Barrett v. Singer Co. he is suffering from asbestosis. Accordingly, reasonable (1979), 60 Ohio St.2d 7. Since neither of these minds could come to but one conclusion and that depositions was used legitimately at trial, they werenot conclusion is adverse to McGuire. The trial court’s denial properly taxable as costs to the Industrial Commission. of the Bureau’s and the Industrial Commission’s motion for directed verdict on these grounds was error. *4 For the reason stated above, the Bureau’s and the Industrial Commission’s Assignment of Error No. VI is The Bureau’s and the Industrial Commission’s well taken. Assignments of Error Nos. III and IV are well taken. VII V Assignment of Error No. VII set forth by the Bureau and The Bureau’s and the Industrial Commission’s the Industrial Commission relates to the trial court’s order Assignment of Error No. V and Tilton’sAssignment of to the Industrial Commission to pay both the cost of the Error No. X assert that the trial court’s judgment must be transcripts and videotaping of the depositions of Dr. vacated as it is against the weight of the evidence. A Hayhurst and Dr. Holladay. They allege that the Industrial reviewing court may not reverse a judgment which is Commission should be charged only with the higher cost, supported by some “competent, credible evidence going the videotaping, and not both costs. to all the essential elements of the case”. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, App.R. 9(A) provides that a videotape recording of 280. As we held in our discussion of the Bureau’s and proceedings constitutes the transcript of proceedings and Industrial Commission’s Assignment of Error No. I and there is no requirement that they be transcribed in written Tilton’s Assignments of Error Nos. V and VII, McGuire form. The trial court has discretion in deciding whether or produced no competent objective medical evidence, as not to award such expenses as taxable costs. Glover v. required by statute,that he is suffering from asbestosis. Massey (Jan. 11, 1990), Cuyahoga App. No. 56351, Thus, the verdict is not supported by the evidence in the 56802, unreported. If the trialcourt found that it was record. “necessary and vital to the litigation” that written transcripts be provided, then itproperly exercised that Accordingly, the Bureau’s and the Industrial discretion. Id. We find no evidence in the record that the Commission’s Assignment of Error No. V and Tilton’s trial court found it necessary to have written transcripts of Assignment of Error No. X are well taken. these depositions; however, we presume the trialcourt made the finding necessary to support its order. See State, ex rel. Fulton, v. Halliday (1944), 142 Ohio St. 548; and, © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 202210061469 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022 McGuire v. Mayfield, Not Reported in N.E.2d (1991) 1991 WL 261831 Rossman v. Conran (1988), 61 Ohio App.3d 246. X The Bureau’s and the Industrial Commission’s *5 The Bureau’s and the Industrial Commission’s Assignment of Error No. VII is not well taken. Assignment of Error No. X asserts that the trialcourt erred in ordering the Industrial Commission to pay to McGuire attorney’s fees in the amount of $1,500. They argue that the court is authorized to award attorney’s fees in the amount of twenty percent of an award up to $3,000 and ten percent of any amount in excess thereof, not to exceed $1,500. They allege that, since no award has yet VIII been given to McGuire, the award of attorney’s fees is in error. The Bureau’s and the Industrial Commission’s Assignment of Error No. VIII asserts that the trial court erred in ordering the Industrial Commission to pay the The amendment to R.C. 4123.519(E), effective cost incurred by McGuire in obtaining a copy of the November 3, 1989, provides that attorney’s fees may be transcript of his deposition. In opposition to this awarded based upon the effortexpended not to exceed assignment of error, McGuire asserts that his $2,500. Based upon the amendment to this statute,the “depositional [sic ] costs which only includes the price of trialcourt did not err in awarding an attorney’s fee of the copy, should be recoverable since a plaintiff should be $1,500, but in view of the disposition of thiscase on afforded the right to obtain a copy of his previous appeal, the matter is now moot. testimony. To preclude recovery of this cost could directly affect the ability of the plaintiff to sustain The Bureau’s and the Industrial Commission’s cross-examination at trial.” Counsel for McGuire cites no Assignment of Error No. X is not well taken. authority in support of this proposition and we have found none. Without such authority, McGuire’s argument is not persuasive. Accordingly, the Bureau’s and the Industrial Commission’s Assignment of Error No. VIII is well XI taken. Tilton’s Assignment of Error No. I asserts thatthe trial court erred in overruling its motion under Rule 19. Tilton argues that McGuire’s previous employers should have been joined as necessary parties since McGuire may have been exposed to asbestos while working for those employers. We agree that those employers should have IX been joined as parties. See State, ex rel. Burnett, v. The Bureau and the Industrial Commission assert in their Indus. Comm. (1983), 6 Ohio St.3d 266. Given our Assignment of Error No. IX that the trial court erred in disposition of this case under the Bureau’s and Industrial ordering the Industrial Commission to pay the cost of Commission’s Assignment of Error No. I and Tilton’s playing the videotaped depositions of Dr. Hayhurst and Assignments of Error Nos. V and VII, however, Tilton Dr. Holladay at trial. C.P.Sup.R. 12(D)(1)(c)C.P.Sup.R. has suffered no prejudice from the error. 12(D)(1)(c) provides that“[t]he expense of playing the videotape recording at trial shall be borne by the court.” See, also, Glover v. Massey (Jan. 11, 1990), Cuyahoga App. No. 46351, 56802, unreported. The trial court’s order that the Industrial Commission pay this cost was clearly in error. Therefore, the Bureau’s and XII the Industrial Commission’s Assignment of Error No. IX Tilton’s Assignment of Error No. II asserts that the trial is well taken. court erred in overruling its motion to exclude Dr. Holladay’s testimony. Tilton argues that such testimony should have been excluded for any or all of the following © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 202210061469 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022 McGuire v. Mayfield, Not Reported in N.E.2d (1991) 1991 WL 261831 reasons: (1) Dr. Holladay is not an expert on asbestosis For the reason stated above, Tilton’s Assignment of Error because he is a general practitioner rather than a No. IV is well taken. pulmonary specialistand, as such, is not competent to express an opinion as to whether McGuire issuffering from asbestosis; (2) Dr. Holladay’s testimony does not satisfy the requirements of R.C. 4123.68(AA) because his opinion is not based upon objective medical evidence; and, (3) Dr. Holladay’s opinion is inadmissible under XIV Evid.R. 403 because its limited probative value is substantially outweighed by unfair prejudice and/or such In its sixth assignment of error, Tilton asserts that the trial testimony is merely cumulative. court erred by excluding testimony proffered by it.The plant safety director at the time of McGuire’s alleged The only issue raised by this assignment is whether Dr. exposure attempted to testify that the respirators used at Holladay’s entire testimony should have been excluded. the job site were in compliance with Occupational Safety This testimony was proper since Dr. Holladay was one of and Health Administration (“OSHA”) standards. The McGuire’s treating physicians and his testimony laid the basis for this testimony was a letter from OSHA. Tilton groundwork for Dr. Hayhurst’s testimony. We are not argues that this letter demonstrates how the witness called upon to decide any other issue with respect to this obtained personal knowledge of such compliance. testimony and we express no opinion on questions not presented. A supervisor attempted to testify as to results of lab tests performed on insulation materials taken from the plant. Tilton’s Assignment of Error No. II is not well taken. The basis of this testimony was a lab report. The witness did not perform the tests himself. Tilton again argues that the report demonstrates how the witness obtained personal knowledge of the test results. We disagree. Tilton clearly attempted to introduce the letter and lab XIII report to prove the truthof the matters asserted therein. Since these documents are hearsay, the trial court’s In its fourth assignment of error, Tilton asserts thatthe refusal to admit them was not error. See Evid.R. trialcourt erred by admitting lay opinions concerning 801(C). McGuire’s alleged exposure to asbestos. Several individuals who worked with McGuire during 1985 and Accordingly, Tilton’s Assignment of Error No. VI is not 1986 testified that he was exposed to asbestos on the job. well taken. This testimony appears to be based on the fact thatthe work area was dusty; however, the witnesses admitted that it is impossible to see asbestos fibers floating in the air. *6 Evid.R. 701 provides that: XV “If the witness is not testifying as an expert, his testimony In its eighth assignment of error, Tilton asserts thatthe in the form of opinions or inferences is limited to those trial court erred in failing to give three jury instructions it opinions or inferences which are (1) rationally based on requested. We hold that the first two instructions are a the perception of the witness and (2) helpful to a clear misstatement of law and, therefore, the trialcourt was understanding of his testimony or the determination of a correct in refusing to give those instructions. The third fact in issue.” requested instruction is not supported by evidence in the record and, as such, the instruction could not properly Since these lay witnesses admitted that asbestos fibers have been given. O’Day v. Webb (1972), 29 Ohio St.2d cannot be seen floating in the air, their testimony that 215. McGuire was exposed to asbestos on the job is clearly not rationally based on their perceptions. Accordingly, this For the reasons stated above, Tilton’s eighth assignment testimony was improperly admitted. of error is not well taken. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 202210061469 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/06/2022 McGuire v. Mayfield, Not Reported in N.E.2d (1991) 1991 WL 261831 *7 Finding no abuse of discretion, we hold that Tilton’s Assignment of Error No. IX is not well taken. XVI Tilton’s Assignment of Error No. IX alleges that the trial XVII court erred in overruling its motion for continuance. Prior to trial,counsel for Tilton moved for a continuance Accordingly, the judgments of the Court of Common because counsel had been contacted by Tilton only seven Pleas of Allen County are reversed and judgment is days prior to the trial date. Counsel argued that he did not hereby entered for appellants, determining that appellee is have sufficient time to prepare for trial and that a not entitled to participate in the workers’ compensation continuance should be granted. fund upon the claim presented. C.P. Sup.R. 7(A)C.P. Sup.R. 7(A) provides: Judgments reversed. “The continuance of a scheduled trialor hearing is a matter within the sound discretion of the trialcourt for good cause shown.” HADLEY and SHAW, JJ., concur. We find no abuse of discretion on the part of the trial All Citations court in overruling Tilton’s motion for continuance. Tilton was served in this action and has set forth no good Not Reported in N.E.2d, 1991 WL 261831 cause as to why counsel was not obtained in a timely manner. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6