[Cite as Conley v. Faurecia Exhaust Sys., Inc. , 2011-Ohio-4452.]




              IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

WILLARD S. CONLEY, JR., et al.                   :

        Plaintiffs-Appellants                    :             C.A. CASE NO.       2009 CA 26

v.                                                         :            T.C. NO.   06CV536

FAURECIA EXHAUST SYSTEMS, INC.                             :            (Civil appeal from
et al.                                                                   Common Pleas Court)

        Defendant-Appellee                      :

                                                           :

                                              ..........

                                            OPINION

                         Rendered on the             2nd       day of      September     , 2011.

                                              ..........

MICHAEL S. MILLER, Atty. Reg. No. 0009398 and WARNER M. THOMAS, JR., Atty.
Reg. No. 0009391, 140 East Town Street, Suite 1100, Columbus, Ohio 43215
      Attorneys for Plaintiffs-Appellants

GORDON D. ARNOLD, Atty. Reg. No. 0012195 and PATRICK J. JANIS, Atty. Reg. No.
0012194, One Dayton Centre, 1 South Main Street, Suite 1800, Dayton, Ohio 45402
      Attorneys for Defendant-Appellee

                                              ..........

DONOVAN, J.

        {¶ 1} Plaintiff-appellants Willard S. Conley, Jr., and his wife, Susan L. Conley,

appeal from a decision of the Miami County Court of Common Pleas, General Division,

sustaining defendant-appellee R & D Machine, Inc.’s motion to strike the affidavit of
                                                                                               2

Conley’s expert, Ernest Chiodo, M.D., J.D. Additionally, Conley appeals the trial court’s

decision sustaining R & D’s motion for summary judgment.

        {¶ 2} The instant case is before us upon remand after the Ohio Supreme Court

reversed our original judgment in Conley v. Faurecia Exhaust Sys., Inc., Miami App. No.

2009 CA 26, 2010-Ohio-2394 (hereinafter “Conley I”). Conley v. Faurecia Exhaust Sys.,

Inc., 127 Ohio St.3d 122, 2010-Ohio-5272. Our judgment in Conley I was reversed on the

authority of the Ohio Supreme Court’s earlier decision in Pettiford v. Aggarwal, 126 Ohio

St.3d 413, 2010-Ohio-3237.

                                                I

        {¶ 3} We set forth the history of the case in Conley I, and repeat it herein in pertinent

part:

        {¶ 4} “In May of 2004, Faurecia Exhaust Systems, Inc. hired R & D in order to

devise and implement a procedure to salvage defective catalytic converters. The catalytic

converters consisted of an internal ‘brick’ covered with insulation called Unifrax which was

glued to the brick. The insulated brick was housed in a metal casing. The bricks contained

platinum, a precious metal. Accordingly, Faurecia wanted R & D to create a process to not

only remove the bricks from the metal casing, but also remove the insulation coating the

bricks, in order to salvage the platinum contained in the bricks.

        {¶ 5} “Once the bricks were removed from the metal casing using a modified log

splitter, R & D employees utilized two separate procedures to remove the insulation from the

outside of the bricks. One process employed by R & D to remove the insulation involved

the use of a nylon brush mounted on a buffer which was used to grind the insulation off of
                                                                                           3

the brick. The grinding process created a great deal of dust. Eventually, the grinding

process was abandoned, and R & D instructed its workers to remove the insulation by

scraping it off with a putty knife, which produced little or no dust.

       {¶ 6} “Willard Conley, who had been hired by R & D in late June of 2004, was

assigned to the task of removing the insulation from the bricks using the grinding method.

Although the grinding was performed at a work station that was located outdoors, the

operation still produced a great deal of dust. It is undisputed that Willard did not use any

respiratory protection while grinding the insulation off of the bricks. Additionally, Willard

claimed that he was told by Dan Daffner, owner of R & D, that officials at Faurecia stated

that the insulation removal should be performed by employees wearing protective equipment

in an enclosed environment with exhaust fans to remove the dust.

       {¶ 7} “At some point, R & D employees became concerned that the dust created by

the grinding process could be hazardous. In response, Daffner contacted Faurecia and asked

for the material safety data sheet (MSDS) for the insulation material on the bricks. The

MSDS for the insulation material, known an Unifrax, described the insulation as a

‘refractory ceramic fiber product’ which posed a possible cancer hazard if inhaled. The

MSDS also stated that there was ‘no increased incidence of respiratory disease in studies

examining occupationally exposed workers.’ Nevertheless, the MSDS advised an employer

whose employees would be exposed to Unifrax to take specific precautions in order to insure

employee safety. In particular, the MSDS advised employers to implement procedures

designed to minimize airborne fiber emissions such as using ‘local exhaust ventilation, point

of generation dust collection, down draft work stations, [and] emission controlling tool
                                                                                              4

designs.’         The MSDS also recommended the use of a respirator or other respiratory

protection to prevent inhalation of Unifrax, as well as wearing appropriate skin and eye

protection in order to minimize exposure to the ceramic fibers.

       {¶ 8} “With the exception of performing the insulation grinding at an outdoor work

station, Willard alleges that R & D failed to implement any of the safety procedures outlined

in the MSDS even after Daffner was warned of the hazardous nature of the airborne ceramic

fiber. We note that Willard claims that he specifically asked Daffner for a respirator while

he performed the grinding, but Daffner refused his request, stating that a respirator was too

expensive. Daffner, on the other hand, claims that R & D owned a respirator that was

available at the time the grinding was performed.        After approximately two weeks of

grinding the insulation from the bricks, R & D discontinued the process. Thereafter, R & D

instructed its employees to simply scrape the insulation from the bricks with putty knives.

       {¶ 9} “Willard testified during his deposition that he worked on the insulation

removal job for approximately four weeks, five days a week, and for ten hours a day. On

several occasions during the brick grinding process, Willard testified that he complained of

feeling sick and had to be driven home. Willard also informed Daffner that he had gone to

the hospital to be treated. Willard stated that when he showed hospital personnel the MSDS

for the Unifrax, they told him he should be wearing safety equipment when he handled the

insulation.

       {¶ 10} “On August 17, 2006, the Conleys filed a complaint against R & D and

Faurecia.1 In the complaint, Willard claimed that as result of the grinding process utilized


              1
              Faurecia was dismissed with prejudice as a party to the litigation on June
                                                                                            5

by R & D, he was exposed to platinum dust and ceramic fiber dust which caused permanent

injury to his lungs.   In support of their claims, the Conleys presented the deposition

testimony of Dr. Ernest Chiodo who opined as follows: 1) Willard was suffering from a lung

disease and occupational asthma related to his exposure to chemicals released during the

grinding process; 2) Willard has an increased risk of serious disease in the future; and 3) R

& D exhibited a total disregard for Willard’s safety and welfare by allowing him to be

exposed to the chemicals released by the insulation grinding process. Dr. Chiodo also

stated during his deposition that R & D acted recklessly by allowing Willard to grind the

insulation off of the bricks without instituting the proper safety procedures; e.g. providing

respirators and adequate ventilation as recommended by the MSDS for Unifrax.

       {¶ 11} “On March 11, 2009, R & D filed its motion for summary judgment. The

Conleys filed their memorandum contra on March 25, 2009. On April 3, 2009, the Conleys

filed the affidavit of Dr. Chiodo in which they sought to supplement his deposition

testimony. R & D filed a motion to strike Dr. Chiodo’s affidavit on April 9, 2009. On

May 13, 2009, the trial court filed two separate entries in which it granted R & D’s motion to

strike Dr. Chiodo’s affidavit, as well as R & D’s motion for summary judgment.”

       {¶ 12} In Conley I, we reversed the trial court’s decisions granting R & D’s motion

to strike and its motion for summary judgment. Specifically, we relied on our prior decision

in Pettiford v. Aggarwal, 186 Ohio App.3d 705, 2009-Ohio-3642, wherein we held that

when considering whether a genuine issue existed in medical malpractice case, the trial court

could consider the summary judgment affidavit of a non-party expert witness, even though


   12, 2009 and is not involved in the instant appeal.
                                                                                            6

the affidavit contradicted the expert witness’ prior deposition testimony. Based on our

decision in Pettiford, we held the trial court should have considered Chiodo’s affidavit when

determining whether summary judgment was appropriate, even though the affidavit

purportedly contradicted Chiodo’s prior deposition testimony. Conley, 2010-Ohio-2394.

       {¶ 13} After Conley I was decided on May 28, 2010, the Ohio Supreme Court

reversed our decision in Pettiford, holding that the affidavit of a retained, non-party expert

contradicting his or her former deposition testimony and submitted in opposition to a

pending motion for summary judgment does not create a genuine issue of fact to prevent

summary judgment. Pettiford, 126 Ohio St.3d 413, 2010-Ohio-3237, syllabus. Unless it

was determined that the expert sufficiently explained the contradiction, the affidavit would

have to be stricken. Id. In light of its decision in Pettiford, the Ohio Supreme Court

reversed our decision in Conley I and remanded the case back to our Court for disposition.

Conley v. Faurecia Exhaust Sys., Inc., 127 Ohio St.3d 122, 2010-Ohio-5272.

       {¶ 14} The Conleys’ appeal is now properly before us.

                                              II

       {¶ 15} An appellate court reviews an award of summary judgment de novo. Grafton

v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial

court, viewing the facts in the case in a light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983),

13 Ohio App.3d 7, 12.

       {¶ 16} Pursuant to Civil Rule 56(C), summary judgment is proper if:

       {¶ 17} “(1) No genuine issue as to any material fact remains to be litigated; (2) the
                                                                                                7

moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence

that reasonable minds can come to but one conclusion, and viewing such evidence most

strongly in favor of the party against whom the motion for summary judgment is made, that

conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d

317, 327. To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that show that there is no genuine

issue as to any material fact, and that the moving party is entitled to judgment as a matter of

law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The non-moving party must then

present evidence that some issue of material fact remains for the trial court to resolve. Id.

                                                III

       {¶ 18} Because they are interrelated, the Conleys’ first and second assignments of

error will be discussed together as follows:

       {¶ 19} “THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF

PLAINTIFFS-APPELLANTS IN GRANTING DEFENDANT-APPELLEE R & D

MACHINE, INC.’S MOTION FOR SUMMARY JUDGMENT ON THE GROUND THAT

THERE       WAS       NO      GENUINE          ISSUE     OF     FACT       WHETHER          THE

DEFENDANT-APPELLEE COMMITTED AN EMPLOYER INTENTIONAL TORT.”

       {¶ 20} ““THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF

PLAINTIFFS-APPELLANTS IN GRANTING DEFENDANT-APPELLEE R & D

MACHINE,        INC.’S     MOTION       TO      STRIKE      THE     AFFIDAVIT        OF     THE

PLAINTIFFS-APPELLANTS’ EXPERT, ERNEST CHIODO, M.D.”

       {¶ 21} In Conley I, we addressed the standard for an employer intentional tort and
                                                                                            8

applied our analysis to the facts in the instant case, wherein we stated the following:

       {¶ 22} “[T]he Conleys argue that the trial court erred when it sustained R & D’s

motion for summary judgment because the record demonstrates a genuine issue of material

fact in regards to the establishment of an employer intentional tort.

       {¶ 23} “In order to prove an employer intentional tort, an employee must meet the

three-part test set forth by the Ohio Supreme Court in Fyffe v. Jeno's, Inc. (1991), 59 Ohio

St.3d 115.    The Fyffe test requires a person alleging an employer intentional tort to

demonstrate the following: (1) knowledge by the employer of the existence of a dangerous

process, procedure, instrumentality or condition within its business operation; (2) knowledge

by the employer that if the employee is subjected by his employment to such dangerous

process, procedure, instrumentality or condition, then harm to the employee will be a

substantial certainty; and (3) that the employer, under such circumstances, and with such

knowledge, did act to require the employee to continue to perform. Id.

       {¶ 24} “With respect to the first prong of the Fyffe test, i.e., whether R & D had been

aware of a dangerous condition within its operation, we conclude that the Conleys presented

sufficient evidence to survive summary judgment. In his deposition testimony, Willard

claims that he was ordered to grind the insulation off of the bricks with a nylon brush

attached to a buffer. Willard testified that this process created a great deal of dust which

essentially covered his clothes, hair, and exposed skin. Willard further testified that he was

required to grind the insulation from the bricks in this manner for approximately two weeks

before Dan Daffner abandoned the grinding in favor of scraping the insulation off of the

bricks with putty knives.
                                                                                           9

       {¶ 25} “Before the grinding process was abandoned, however, Daffner became aware

that some of his employees were concerned that the dust being produced was harmful. In

response to their concerns, Daffner requested the MSDS for the Unifrax insulation from

Faurecia.   The MSDS outlined the properties of Unifrax and described the relevant

government regulations and safety precautions to be followed when handling the substance.

The MSDS specifically noted that Unifrax was known to cause cancer if inhaled. While the

MSDS stated that there was ‘no increased incidence of respiratory disease in studies

examining occupationally exposed workers,’ the MSDS advised those handling Unifrax to

take special precautions in order to insure their safety. The MSDS advised employers to

implement procedures designed to minimize airborne fiber emissions such as using ‘local

exhaust ventilation, point of generation dust collection, down draft work stations, [and]

emission controlling tool designs.’

       {¶ 26} “The MSDS also recommended the use of a respirator or other respiratory

protection to prevent inhalation of Unifrax, as well as wearing appropriate skin and eye

protection in order to minimize exposure to the ceramic fibers. With the exception of

placing the work station outside, it is undisputed that R & D failed to implement any of the

safety precautions recommended in the MSDS while Willard was required to grind the

insulation off of the bricks. In light of the information contained in the MSDS regarding the

hazardous nature of Unifrax, as well as the recommended safety precautions when handling

the substance, we find that a genuine issue of material fact exists in regards to whether R &

D had knowledge of a dangerous condition.

       {¶ 27} “The second prong of the Fyffe test involves the question of whether R & D
                                                                                              10

had knowledge that this dangerous condition – the hazardous nature of the Unifrax dust if

inhaled – was substantially certain to cause harm to Willard. Substantial certainty of harm

requires much greater proof than negligence or recklessness. Van Fossen v. Babcock &

Wilcox Co. (1988), 36 Ohio St.3d 100.      The Supreme Court of Ohio has stated:

       {¶ 28} “‘Where the employer acts despite his knowledge of some risk, his conduct

may be negligence. As the probability increases that particular consequences may follow,

then the employer's conduct may be characterized as recklessness. As the probability that

the consequences will follow further increases, and the employer knows that injuries to

employees are certain or substantially certain to result from the process, procedure or

condition and he still proceeds, he is treated by the law as if he had in fact desired to produce

the result. However, the mere knowledge and appreciation of a risk – something short of

substantial certainty – is not intent.’ Fyffe, 59 Ohio St.3d at paragraph two of the syllabus,

citing Van Fossen, 36 Ohio St.3d at paragraph six of the syllabus. This court has stated that

simply knowing that an employee is at risk is insufficient; the employer must be virtually

certain that an employee will be injured. Spates v. Richard E. Jones & Assoc., Montgomery

App. No. 15057, citing Van Fossen, 36 Ohio St.3d at 116.”

       {¶ 29} The Conleys retained the services of Dr. Chiodo, a doctor, a lawyer, a

certified industrial hygienist, and a biomedical engineer, in order to provide expert testimony

regarding the nature and cause of Willard’s injuries. In his deposition, Chiodo provided the

following testimony:

       {¶ 30} “Q: Okay. Do you have any knowledge from any source that anyone at R &

D intended to harm Mr. Conley?
                                                                                            11

        {¶ 31} “A: I think maybe the best way to put it is they acted – acted in a manner that

was reckless. If you’re going out there and shooting a gun off in a crowded area, you know,

and you, just like in the wild west show, you’re shooting off that gun in saloon, you may not

specifically intend to have one particular person hit by that bullet, but you don’t really care

where the hell those bullets are going. You’re shooting them off in a reckless manner.

That’s the best way to put it.

        {¶ 32} “In this context, they really didn’t care what happened. They’re grinding out

the work[,] and they’re not making sure that people aren’t getting hit by the bullets.

        {¶ 33} “Q: Did –

        {¶ 34} “A: You can shoot off a gun, if you’re going to go to a target range and shoot

off a gun in a safe manner, but they’re just shooting off that gun and they don’t care who

gets hit by the bullet.”

        {¶ 35} In his affidavit filed on April 3, 2009, Dr Chiodo opined as follows:

        {¶ 36} “20. It is further my opinion that the MSD sheet required that the employer, R

& D Machine, comply with the hazard safety requirements of the MSD sheet, and the

handling requirements designated in the MSD sheet, including the use of gloves, eye

protection, and respiratory protection.

        {¶ 37} “21. It is further my opinion, based upon a reasonable and scientific certainty,

that once Dan Daffner received the MSD sheet from Faurecia, he would have been aware

that injury and exposure were substantially certain to occur in workers exposed under the

circumstances that existed at R & D Machine in the handling of this material, including

Willard Conley.
                                                                                              12

       {¶ 38} “23. Further, it is my medical opinion and professional opinion, based upon a

reasonable medical certainty and scientific certainty, that as a result of the failure to adhere

to the clearly stated requirements of the Material Safety Data Sheet for refractory ceramic

fiber, Mr. Conley has been exposed to vitreous aluminosilicate fiber, and that this fiber

contains vermiculite and asbestiform, and further, that the medical testimony in this case

indicates that Mr. Conley has developed interstitial changes in his lungs consistent with this

exposure, and further that he has obstructive airway disease consistent with this exposure,

and as a result, he will require medical monitoring by a qualified specialist for the rest of his

life for ongoing evaluation of his lung function and potential for development of other

debilitating diseases.

       {¶ 39} “25. It is my further opinion, as I have expressed in a previously written report

and in my deposition testimony, the actions of R & D Machine, Inc., through Mr. Daffner,

were so inconsistent with the duties and obligations upon an employer under OSHA that

they rose to the level of an intentional act and subjected his employee to conditions under

which there was a substantial certainty of harm, which has since come to fruition for Mr.

Conley.”

       {¶ 40} R & D argues that Chiodo’s deposition testimony establishes that its behavior

was merely reckless, as opposed to intentional, and therefore insufficient to rise to the level

of an employer intentional tort.       More importantly, R & D contends that Chiodo’s

deposition testimony directly contradicts his affidavit, in which he affirmatively states that R

& D’s actions regarding Willard rose to the level to the level of an intentional act.

Accordingly, R & D asserts that the trial court did not err when it struck Chiodo’s affidavit.
                                                                                           13

       {¶ 41} Upon review, we conclude that the trial court erred by striking Chiodo’s

affidavit as it did not contradict his deposition testimony on the second prong of the Fyffe

test. That is, whether R & D had knowledge that the dangerous condition – the hazardous

nature of the Unifrax dust if inhaled – was substantially certain to cause harm to Willard. In

addition to the portion of testimony already noted, Chiodo also provided the following

testimony:

       {¶ 42} “Q: You [Chiodo] indicated that one of your opinions was that R & D’s

conduct reached the level of potential exposure and infliction of harm to Mr. Conley; is that

correct?

       {¶ 43} “A: I believe so, as far as R & D.

       {¶ 44} “Q: What is the basis for that?

       {¶ 45} “A: The fact that – based upon the history provided to of the exposure in a –

in a manner that occurred with essentially no concern about his health and safety, no proper

industrial hygiene or occupational health and safety practices were implemented.

       {¶ 46} “Q: And are you indicating that the – his employer at R & D had an intent to

harm him?

       {¶ 47} “A: I think that based upon the circumstances, his employer took no action to

protect him. I think maybe the better way to put it is there was no effort to protect Mr.

Conley and the – he could have been protected. This could have been done in a safe and

proper fashion, but the employer for whatever reason chose not to do so, and that is an

intentional decision to go forward in a manner that is not – that is not safe and proper. If

you’re going to go forward with the process, you’re supposed to know how to do it safely.
                                                                                             14

If you don’t go ahead and inquire and make sure it’s done safely, that is – that’s an

intentional decision to do so.”

       {¶ 48} Accordingly, we conclude that Chiodo’s deposition testimony does not

contradict his affidavit testimony regarding the issue of whether R & D’s conduct rose to the

level of an intentional act. While we cannot ignore his use of the word “reckless ,” Chiodo

essentially testified in his deposition that R & D’s failure to implement the proper industrial

safety practices resulted in a substantial certainty that Willard would be harmed and suffer

injury. We have held that a genuine issue exists for the purposes of summary judgment

when the evidence included in an expert’s affidavit states that the employer should have

known that an injury was substantially certain to occur when the safety measures

recommended by the MSDS were not followed. Linebaugh v. Electrical Control Systems,

Inc., et al. (Sept. 23, 1994), Montgomery App. No. 14412.              Viewed in a light most

favorable to the Conleys, we find that there is evidence in this record from which a

reasonable person could conclude that R & D had knowledge that injury to Willard was

substantially certain to occur when he was exposed to the dust created during the grinding of

insulation material off of the bricks, thus satisfying the second prong of the Fyffe test.

       {¶ 49} Lastly, we conclude that the record demonstrates an issue of fact as to whether

Willard was required to continue to perform his work despite the dangerous condition. In

his deposition, Willard testified that he complained numerous times to Daffner regarding

exposure to the dust created by the grinding operation. He made these complaints both

before and after Daffner received the MSDS for the Unifrax insulation.        The MSDS clearly

noted the inhalation warnings and safe handling recommendations. Willard further testified
                                                                                           15

that he requested the use of safety equipment and other protective gear, but was refused by R

& D management. Specifically, Willard testified that he asked Daffner for a respirator but

was told that the device was too expensive. We acknowledge that R & D disputes this

allegation. Thus, we find that a genuine issue of fact exists regarding whether R & D

required Willard to perform a job without any protective equipment, knowing that injury was

substantially certain to result.

        {¶ 50} The Conleys’ first and second assignments of error are sustained.

                                             IV

        {¶ 51} The Conleys’ first and second assignments of error having been sustained, the

judgment of the trial court is reversed, and this cause is remanded for proceedings consistent

with this opinion.

                                        ..........

GRADY, P.J. and RINGLAND, J., concur.

(Hon. Robert P. Ringland, Twelfth District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Michael S. Miller
Warner M. Thomas, Jr.
Gordon D. Arnold
Patrick J. Janis
Hon. Christopher Gee
