Norgard v. Brush Wellman, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Norgard v. Brush Wellman, Inc., 95 Ohio St.3d 165, 2002-Ohio-2007.]

NORGARD ET AL., APPELLANTS, v. BRUSH WELLMAN, INC., APPELLEE.
[Cite as Norgard v. Brush Wellman, Inc., 95 Ohio St.3d 165, 2002-Ohio-2007.]
Employer and employee -- Intentional tort -- Cause of action based upon an
employer intentional tort accrues, when.
(No. 2001-0063 -- Submitted January 30, 2002 -- Decided May 8, 2002.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 77594.
__________________
SYLLABUS OF THE COURT
A cause of action based upon an employer intentional tort accrues when the
employee discovers, or by the exercise of reasonable diligence should
have discovered, the workplace injury and the wrongful conduct of the
employer.
__________________

FRANCIS E. SWEENEY, SR., J.
{¶1} Appellant David Norgard began working for appellee, Brush
Wellman, Inc., in 1981 as a fluoride furnace operator at its beryllium plant in
Elmore, Ohio. Within a few weeks of the start of his employment, Norgard broke
out in a rash. The rash became so severe that it turned into skin ulcers. Norgard
also developed other complications, such as dizziness, heavy breathing, and
profuse coughing and spitting. Norgard was consistently treated at the plant
dispensary and was repeatedly told not to worry. However, unknown to Norgard,
Brush Wellman began to suspect that Norgard was the type of person with a
heightened sensitivity to beryllium. Therefore, Brush Wellman began to
periodically test his blood and send him to the National Institute of Health in
Maryland. Norgard was repeatedly reassured by Brush Wellman that he was fine.

SUPREME COURT OF OHIO
Nevertheless, the company filed a workers' compensation claim on his behalf for
beryllium sensitivity.
{¶2} Norgard was laid off from October 1981 until March 1984,
although he still received his pay and benefits. When he was called back, he was
placed in various work settings, but he was still exposed to beryllium and he was
still having severe reactions to it. In June 1992, Norgard was sent to the
Cleveland Clinic for testing. In August 1992, he received the formal diagnosis
that he had chronic beryllium disease ("CBD"), a debilitating, and sometimes
fatal, lung disease, caused by his exposure to beryllium. His earlier-filed
workers' compensation claim was amended to reflect this diagnosis, and he was
immediately placed on disability leave.
{¶3} Thereafter, at the recommendation of a company physician,
Norgard began meeting with a counselor to cope with his illness. He joined a
CBD support group, sponsored by the company, and in 1993, he and his wife,
Theresa, became facilitators for the group. Between 1993 and October 1995, in
an attempt to learn about CBD, Norgard and members of the group contacted the
EPA, OSHA, legislators, and doctors familiar with the disease. Instead of
assistance, Brush Wellman tried to discourage Norgard and told him his activities
were causing alarm among the company's shareholders.
{¶4} In October 1995, Norgard read an article in a local newspaper
about some beryllium lawsuits involving Brush Wellman and its employees in
Arizona. Norgard contacted the law firm mentioned in the article. The attorney,
who represented the Brush Wellman employees, told Norgard that for years Brush
Wellman had withheld information about the causes of beryllium-related diseases
and the acceptable levels of beryllium to which an employee could be exposed
without harm, that Brush Wellman knew that its air-sampling collections were
faulty and inaccurate and that a large number of its employees were developing
CBD, and that there might have been problems related to respiratory equipment
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January Term, 2002
and ventilation that led to unnecessarily elevated beryllium exposures. Within
two years of receiving this information, Norgard filed an intentional-tort action
against Brush Wellman. His wife joined with a claim for loss of consortium. The
Norgards later dismissed their first lawsuit and filed this action within one year of
the dismissal.
{¶5} After Brush Wellman's motion to dismiss was denied, it filed a
summary judgment motion based on the statute of limitations. The trial court
granted summary judgment without an opinion. The court of appeals affirmed.
The cause is now before the court upon the allowance of a discretionary appeal.
{¶6} The question before us is whether the employer intentional-tort
claim is barred by the statute of limitations. Both parties agree that the applicable
statute of limitations for this claim is R.C. 2305.10, which provides for a two-year
period in which to bring suit. The parties also agree that the discovery rule
applies. However, the parties differ as to what triggered the statute of limitations.
{¶7} Brush Wellman argues and the court of appeals found that the
statute of limitations began to run in August 1992 when Norgard learned he had
contracted CBD at the workplace. This argument equates Norgard's knowledge
that conditions at the plant had caused his illness with knowledge that his illness
was caused by Brush Wellman's conduct. Norgard, however, contends that the
statute of limitations was triggered in October 1995, when he claims that he
discovered Brush Wellman's wrongful conduct. For the following reasons, we
agree with Norgard's position. Accordingly, we reverse the court of appeals and
remand the cause for a trial.
{¶8} Generally, a cause of action accrues and the statute of limitations
begins to run at the time the wrongful act was committed. Collins v. Sotka
(1998), 81 Ohio St.3d 506, 507, 692 N.E.2d 581. However, the discovery rule is
an exception to this general rule and provides that a cause of action does not arise
until the plaintiff discovers, or by the exercise of reasonable diligence should have
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discovered, that he or she was injured by the wrongful conduct of the defendant.
Id., citing O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335,
447 N.E.2d 727.
{¶9} In O'Stricker, the court emphasized that the discovery rule entails
a two-pronged test--i.e., discovery not just that one has been injured but also that
the injury was "caused by the conduct of the defendant"--and that a statute of
limitations does not begin to run until both prongs have been satisfied.
O'Stricker, 4 Ohio St.3d at 86, 4 OBR 335, 447 N.E.2d 727, paragraph two of the
syllabus.
{¶10} Since the rule's adoption, the court has reiterated that discovery of
an injury alone is insufficient to start the statute of limitations running if at that
time there is no indication of wrongful conduct of the defendant. Moreover, the
court has been careful to note that the discovery rule must be specially tailored to
the particular context to which it is to be applied. Browning v. Burt (1993), 66
Ohio St.3d 544, 559, 613 N.E.2d 993.
{¶11} In Browning, the court considered claims against Dr. James C.
Burt, who had performed experimental surgeries on his patients, severely
maiming them. Jimmie Browning brought a malpractice claim against Dr. Burt
and a claim against the hospital for negligent credentialing.
{¶12} Initially, we found that negligent credentialing and medical
malpractice are separate claims. Thus, while discovery of the injury and its
immediate cause may have been sufficient to trigger the statute of limitations on
the malpractice claim, they were not sufficient to trigger the statute of limitations
on the negligent-credentialing claim. The distinction turned on the fact that
discovery of malpractice and its attendant injury was not sufficient to raise
suspicion of the hospital's credentialing practices. We found:
{¶13} "[D]iscovery of a physician's medical malpractice does not, in
itself, constitute an `alerting event' nor does discovery implicate the hospital's
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January Term, 2002
credentialing practices or require investigation of the hospital in this regard. To
hold otherwise would encourage baseless claims of negligent credentialing and a
hospital would be named in nearly every lawsuit involving the malpractice of a
physician." Id., 66 Ohio St.3d at 561, 613 N.E.2d 993.
{¶14} Thus, that Browning was injured by Dr. Burt was not enough for
Browning to suspect that the hospital's conduct was wrongful. It was the second
event, in the Browning case a television program detailing the number of women
injured by Dr. Burt, which was held to be the "alerting event," which placed
Browning on notice of the need to investigate an action for negligent
credentialing.
{¶15} Another case where we drew a distinction between discovery of an
injury and discovery of wrongful conduct was Ault v. Jasko (1994), 70 Ohio St.3d
114, 637 N.E.2d 870, where we applied the discovery rule to a sexual abuse case
involving repressed childhood memories. In that case, the defendant's intentional
conduct caused the injury, but this fact was not immediately known to the
plaintiff. Therefore, we held that the plaintiff must discover the sexual abuse in
order for the statute of limitations to begin running on the claim for assault and
battery. Id. at syllabus.
{¶16} Collins, supra, 81 Ohio St.3d 506, 692 N.E.2d 581, provides
another example. Collins involved a wrongful-death claim stemming from a
murder. The victim's body was found almost five months after her official death
date of July 31, 1992. An autopsy revealed the cause of death to be multiple stab
wounds. In January 1993, Mark Sotka was indicted for the murder. He pleaded
guilty on February 5, 1993, and was sentenced accordingly. On February 6, 1995,
the administrator of the estate, Luckye Collins, filed a wrongful-death against
Sotka. The trial court dismissed the action as time-barred because the action was
filed more than two years from the date of death. The court of appeals affirmed.
We reversed, holding that the date of death is not the appropriate measure for
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starting the statute of limitations. "A wrongful death claim is not triggered merely
by the death of a person, but by `the death of a person * * * caused by a wrongful
act.' (Emphasis added.) R.C. 2125.01(A)(1). Therefore, in order for a wrongful
death case to be brought, the death must be wrongful." (Citation omitted.) Id. at
509, 692 N.E.2d 581. Again, in Collins, we drew a distinction between the injury
and the conduct that caused the injury. "The fact that a body was discovered
and/or that a death took place is irrelevant unless there is proof that a defendant
was at fault and caused the death." Id.
{¶17} The reasoning of these cases applies with equal force here. These
cases all stand for the proposition that the statute of limitations begins to run once
the plaintiff acquires additional information of the defendant's wrongful conduct.
For instance, consider the facts of Browning. Just as a negligent-credentialing
claim is dependent on facts necessary to form a medical-malpractice action, so too
is an employer intentional-tort claim dependent on facts necessary to form a
workers' compensation action. According to Fyffe v. Jeno's, Inc. (1991), 59 Ohio
St.3d 115, 570 N.E.2d 1108, paragraph one of the syllabus, a plaintiff must prove
three elements to support a claim for employer intentional tort. One of these
elements is proof that the employer knew, with substantial certainty, that the
employer's conduct would harm the worker. Thus, claims for both negligent
credentialing and an employer intentional tort accrue only when the plaintiff
acquires knowledge about the defendant above and beyond the injury itself.
{¶18} Accordingly, we hold that a cause of action based upon an
employer intentional tort accrues when the employee discovers, or by the exercise
of reasonable diligence should have discovered, the workplace injury and the
wrongful conduct of the employer.
{¶19} This holding is consistent with the rationale underlying a statute of
limitations and the discovery rule. Its underlying purpose is fairness to both sides.
Once a plaintiff knows of an injury and the cause of the injury, the law gives the
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January Term, 2002
plaintiff a reasonable time to file suit. Yet if a plaintiff is unaware that his or her
rights have been infringed, how can it be said that he or she slept on those rights?
To deny an employee the right to file an action before he or she discovers that the
injury was caused by the employer's wrongful conduct is to deny the employee
the right to bring any claim at all. By applying the discovery rule as we do, we
take away the advantage of employers who conceal harmful information until it is
too late for their employees to use it.
{¶20} After construing the evidence and all reasonable inferences
therefrom in a light most favorable to Norgard, we find that October 1995 was the
trigger date for the statute of limitations. Although Norgard knew that he was
sick before this date, it was not until October 1995 that Norgard began to learn the
facts necessary to prove the employer intentional-tort claim. These facts included
that Brush Wellman knew, but had withheld information demonstrating, that its
employees could develop and were developing CBD as a result of exposures that
the company was characterizing as safe, that Brush Wellman's safety measures
were inadequate to prevent illnesses among its employees, and that the company's
monitoring procedures were flawed and produced inaccurate, unreliable results.
Until Norgard received this information, he had no reason to know or the means
to discover that his disease was caused by the intentional conduct of his employer,
as defined in Fyffe, supra. Since Norgard filed an action within two years of
learning this information, we conclude that Norgard's claim was timely filed and
that Brush Wellman was not entitled to summary judgment based on the statute of
limitations. The judgment of the court of appeals is reversed, and the cause is
remanded for further proceedings.
Judgment reversed
and cause remanded.

DOUGLAS, RESNICK and PFEIER, JJ., concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
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__________________
{¶21} COOK, J., dissenting. David Norgard knew in August 1992 that
he suffered from chronic beryllium disease, likely caused by his exposure to
beryllium during his years as a Brush Wellman employee. Norgard was therefore
aware of both his injury and its probable cause at that time. Accrual of a cause of
action for purposes of the statute of limitations requires nothing more. See
O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d
727, paragraph two of the syllabus. Because the cause of action accrued in
August 1992, at the very latest, the lower courts correctly determined that
Norgard's action was time-barred.
{¶22} In concluding otherwise, the majority creates a new rule for
employer intentional-tort cases. After today's decision, the statute of limitations
will not begin to run until some unspecified time when the plaintiff determines
that each element of an employer intentional-tort claim is present--
notwithstanding that the plaintiff may already know that he or she has suffered an
injury caused by the conduct of his or her employer. But a rule that rests the date
of accrual on a plaintiff's recognition of his or her legal rights is fundamentally
flawed. As the United States Supreme Court has observed in an analogous
context:
{¶23} "[I]n applying a discovery accrual rule, we have been at pains to
explain that discovery of the injury, not discovery of the other elements of a claim,
is what starts the clock. In the circumstance of medical malpractice, where the
cry for a discovery rule is loudest, we have been emphatic that the justification for
a discovery rule does not extend beyond the injury:
{¶24} " `We are unconvinced that for statute of limitations purposes a
plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury
or its cause should receive identical treatment. That he has been injured in fact
may be unknown or unknowable until the injury manifests itself; and the facts
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January Term, 2002
about causation may be in the control of the putative defendant, unavailable to the
plaintiff or at least very difficult to obtain. The prospect is not so bleak for a
plaintiff in possession of the critical facts that he has been hurt and who has
inflicted the injury. He is no longer at the mercy of the latter. There are others
who can tell him if he has been wronged, and he need only ask.' " (Emphasis
added.) Rotella v. Wood (2000), 528 U.S. 549, 555-556, 120 S.Ct. 1075, 145
L.Ed.2d 1047, quoting United States v. Kubrick (1979), 444 U.S. 111, 122, 100
S.Ct. 352, 62 L.Ed.2d 259.
{¶25} By tying the accrual of the cause of action to the elements of a
legal claim--rather than to the traditional concepts of injury and its cause--
today's majority extends the discovery rule beyond the scope of its justification. I
respectfully dissent.

MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
dissenting opinion.
__________________
Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley,
Louise M. Roselle and Paul M. De Marco; Mohler Law Office and George
Gerken, for appellants.
Jones, Day, Reavis & Pogue, Patrick F. McCartan, Jeffery D. Ubersax,
Jeffrey S. Sutton and Chad A. Readler, for appellee.
Manley, Burke & Lipton, Todd B. Naylor and Daniel R. Beerck, urging
reversal for amicus curiae, Ohio Academy of Trial Lawyers.
__________________
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