Padney v. Metrohealth Med. Ctr.,

COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 78264
EDWARD PADNEY, et al. :
:
Plaintiffs-appellants :
: JOURNAL ENTRY
vs. : and
: OPINION
METROHEALTH MEDICAL CENTER :
:
Defendants-appellees :
:
DATE OF ANNOUNCEMENT
OF DECISION : AUGUST 30, 3001
CHARACTER OF PROCEEDING : Civil appeal from
: Cuyahoga County
: Court of Common Pleas
: Case No. 78264
JUDGMENT : REVERSED AND REMANDED.
DATE OF JOURNALIZATION :
APPEARANCES:
For plaintiffs-appellants: TOBIAS J. HIRSHMAN
MARK W. RUF
Attorneys at Law
Linton & Hirshman
Hoyt Block, Suite 300
700 West St. Clair Avenue
Cleveland, Ohio 44113-1230
(Continued)
APPEARANCES (Cont.) :
For defendants-appellees: LAWRENCE A. SUTTER
T. LEIGH AMENSON
JAMES L. MALONE
CHRISTINA MARSHALL
Attorneys at Law
Reminger & Reminger
-2-
113 St. Clair Building, Suite 700
Cleveland, Ohio 44114-1273
-3-
KENNETH A. ROCCO, P.J.:
This case is before the court on appeal from a decision by the
common pleas court to grant a directed verdict in favor of
defendant MetroHealth Medical Center at the close of plaintiffs’
case in this tort action. Appellants argue:
I. THE TRIAL COURT ERRED IN DIRECTING A
VERDICT IN FAVOR OF METROHEALTH MEDICAL
CENTER ON PLAINTIFFS’ BLANKENSHIP CLAIM
SINCE REASONABLE MINDS COULD FIND THAT
THE ELEMENTS OF AN EMPLOYER INTENTIONAL
TORT CLAIM HAD BEEN MET.
II. THE TRIAL COURT ERRED IN DIRECTING A VER-
DICT IN FAVOR OF METROHEALTH MEDICAL
CENTER ON PLAINTIFF’S NEGLIGENCE CLAIMS
SINCE REASONABLE MINDS COULD FIND THE
ELEMENTS OF A NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS CLAIM HAD BEEN MET.
III. THE TRIAL COURT ERRED IN STRIKING THE
EXPERT OPINION TESTIMONY OF DR. NARDELL
ESTABLISHING THAT THE CONDUCT OF
METROHEALTH MEDICAL CENTER WAS NEGLIGENT.
MetroHealth cross-appeals, arguing that:
THE TRIAL COURT ERRED BY NOT SUSTAINING DEFEN-
DANT’S MOTION FOR A DIRECTED VERDICT AFTER
OPENING STATEMENT ON APPELLANTS’ INTENTIONAL
TORT AND NEGLIGENT INFLICTION OF EMOTIONAL
DISTRESS CLAIMS.
We find the trial court erred by directing the verdict and
therefore reverse and remand for further proceedings.
FACTS AND PROCEDURE
The complaint in this case was originally filed on November 7,
1996, and was amended several times. The fifth and final amended
complaint was filed June 22, 1998. It alleged that plaintiffs’
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decedent, Edward Padney, contracted multi-drug resistant tuberculo-
sis while employed by defendant MetroHealth Medical Center as a
diener, an assistant in performing autopsies. Plaintiffs, the
representative of Padney’s estate and Padney’s wife and daughter,
claimed that MetroHealth failed to employ adequate controls to
prevent the transmission of tuberculosis to its employees, knowing
that the conditions created by these failures constituted a dan-
gerous instrumentality within its business and that it was sub-
stantially certain that an employee subjected to these conditions
would be harmed. The first count of the complaint claimed Edward
Padney contracted tuberculosis as a result of MetroHealth’s
intentional wrongdoing. The second and third counts claimed
Padney’s wife and daughter suffered the loss of his consortium and
services. Count four claimed MetroHealth negligently caused the
wife and daughter to suffer emotional distress, mental anguish,
anxiety, loss of enjoyment of life, and fear of physical peril
because they have tested positive for tuberculosis, and count five
claimed Edward Padney suffered the loss of their consortium and
services. Count six demanded punitive damages. Count seven
asserted that the contractor, engineer, architect and various John
Doe parties allegedly responsible for designing, constructing,
maintaining or renovating the autopsy suites negligently performed
their duties.
The claims against all named parties except MetroHealth were
dismissed before trial. During trial, plaintiffs withdrew their
claim for punitive damages.
-5-
The jury trial began on May 31, 2000. Plaintiffs presented
the live testimony of seven MetroHealth employees as on cross:
Thomas Rao, director of facilities management; Dr. Amir Khiyami, a
pathologist and head of autopsy services at the time Padney was
infected; John Carroll, vice president of facilities and institu-
tional services; Paul McIntosh and Keith Allie, dieners in the
pathology department; Dr. Richard Blinkhorn, Padney’s treating
physician and chairman of the infection control committee at
MetroHealth; and Joan Sorensen, administrative director of the
pathology department. Plaintiffs also presented the videotaped
testimony of pathologists Drs. Carlena Madelair and Josephine
Ashmead. In addition, plaintiffs presented the testimony of tuber-
culosis expert Dr. Edward Nardell and economist John Burke, as well
as the testimony of plaintiffs Theresa and Gina Padney. Finally,
the jury heard the decedent’s testimony, preserved on videotape.
The testimony showed that Edward Padney was employed as a
diener in the autopsy department at MetroHealth. He contracted
multi-drug resistant tuberculosis while assisting in an autopsy on
September 25, 1992 on a cadaver infected with that disease. This
strain does not respond to the usual treatments for tuberculosis
and therefore poses a high risk of mortality (50%) for anyone with
the active disease.
The patient who was autopsied had not been treated for the
last two weeks of her life, which increased the contagiousness of
her disease. In addition, she suffered from AIDS, which resulted
in the dissemination of the tuberculosis throughout her body.
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Consequently, the danger of infection from her was higher than in
a typical case of tuberculosis. This danger was publicized through
publications of the Centers for Disease Control ( CDC ). The
physicians who treated this patient ordered the autopsy and sought
the consent of her family.
Padney’s wife and daughter contracted multi-drug resistant
tuberculosis from Padney. The tuberculosis remained latent in the
wife and daughter to the date of trial. The risk that the latent
disease would become active in them was ten percent over their
lifetimes and approximately five percent as of the time of trial.
The tuberculosis became active in the decedent in April 1995.
He suffered respiratory failure in September 1995 and was placed on
a ventilator. While on the ventilator, he developed a clot in his
right leg, which ultimately required amputation of the leg. He
died March 28, 1998 after a violent coughing episode led him to
cough up a substantial amount of blood. His treating physician
described the progress of his disease as unchecked pulmonary
tuberculosis for three years and a considerable amount of suffer-
ing.
In 1990, the CDC implemented guidelines for preventing the
transmission of tuberculosis in healthcare settings. These guide-
lines recommended that autopsy rooms have ventilation which
provides at least twelve total air changes per hour, as well as
good distribution of air flow, negative pressure with respect to
adjacent areas, and exhaust outside of the building. P[ersonal]
R[espirator]s should be worn by personnel performing procedures
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that may aerosolize infectious particles (e.g., sawing, irrigat-
ing).
The ventilation system in the isolation room in the autopsy
suite where the autopsy was performed was providing 18.5 air
changes per hour when it went into use in 1970; however, on
August 6, 1982, the room was functioning at six air changes per
hour. It was not modified from that date until the date of the
autopsy from which Padney contracted tuberculosis. Although there
was testimony that the system was tested approximately annually,
MetroHealth could not locate any other quantitative studies of the
ventilation in the isolation room from before the date Padney was
infected, but a 1986 memorandum from the plant engineering depart-
ment verified that the system [for the autopsy suite] is within
the design parameters and meets applicable standards. The room
had negative pressure as compared to adjacent areas. The system
was vented to the outdoors. Personnel wore regular surgical masks
while performing autopsies.
In addition to the ventilation system, there were also ultra-
violet (UV) lights. Plaintiffs’ expert testified that these lights
reduced the risk of infection, adding the equivalent of ten to
twenty air changes per hour to that room.
Plaintiffs’ expert testified that with six air changes per
hour, the likelihood of infection from one hour of exposure to an
infectious dose of tuberculosis was 60% to 65%. With the ultravio-
let lights, this risk was reduced to approximately 25% to 30%.
This risk could have been further reduced by the use of a personal
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respirator and would have been eliminated by a positive air
pressure respirator.
At the close of the plaintiffs’ case, MetroHealth moved for a
directed verdict. MetroHealth argued that it was not substantially
certain that Padney would contract tuberculosis, nor was he re-
quired to assist in the autopsy in which he contracted the disease.
MetroHealth further asserted plaintiffs’ emotional distress claims
were derivative of the employee’s claim, so if the hospital did
nothing wrong with respect to the employee, then it did nothing
wrong in relation to his wife and child. Alternatively, it argued
it owed no duty to the wife and child of an employee. The court
granted MetroHealth’s motion, making the following statement on the
record:
THE COURT: After a thorough and search-
ing review of the evidence and testimony
presented in this case by the plaintiffs and
applying the elements of intentional tort as
set forth in the law of the state [sic] of
Ohio, the defendant’s motion for directed
verdict pursuant to Rule No. 50 overrules the
[sic rules of?] civil procedure and are
granted.
LAW AND ANALYSIS
Plaintiffs’ first two assignments of error both contend the
court erred by directing the verdict for MetroHealth on their
claims for intentional tort and negligent infliction of emotional
distress and their derivative claims for loss of consortium. A
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motion for directed verdict questions the legal sufficiency of the
evidence and therefore constitutes a question of law, not of fact.
Glover v. Boehm Pressed Steel Co. (1997), 122 Ohio App.3d 702. If,
*** after construing the evidence most strong-
ly in favor of the party against whom the
motion is directed, [the court] finds that
upon any determinative issue reasonable minds
could come to but one conclusion upon the
evidence submitted and that conclusion is
adverse to such party, the court shall sustain
the motion and direct a verdict for the moving
party as to that issue.
Civ.R. 50(A). We review this determination de novo.
Our review here was hampered by the trial court’s failure to
state the reasons for its actions on the record. The trial court
did not comply with its obligation under Civ.R. 50(E) to state the
basis for its decision in writing. Although plaintiffs did not
object before the trial court and therefore waived this error, the
purpose of the rule is not only to provide an explanation to the
losing party but also to provide guidance to the appellate court on
review. Lacking such guidance, we have been forced to `reinvent’
the legal analyses the trial court already should have performed.
This is a waste of judicial resources.
A. Intentional Tort.
The complaint in this case asserts an intentional tort claim
against MetroHealth. To succeed on this claim, plaintiffs must
demonstrate, directly or through circumstantial evidence, that
(1) MetroHealth knew of the existence of a dangerous process,
procedure, instrumentality or condition within its business
operation ; (2) MetroHealth knew that harm to an employee would be
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substantially certain to occur if the employee were subjected to
this danger by his employment; and (3) with this knowledge,
MetroHealth required the employee to continue to perform the
dangerous task. Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115,
paragraph one of the syllabus. The risk of harm must be relatively
high to reach the level of a substantial certainty; mere negligence
or recklessness is not enough. Id., 59 Ohio St.3d 115, at
paragraph two of the syllabus.
There was evidence in the record from which a jury could find
MetroHealth knew of the existence of a dangerous condition within
its business. Among other things, there was evidence that
MetroHealth was aware of the CDC standards for preventing the
transmission of tuberculosis in a hospital setting at the time
Padney was infected. Those standards indicate that nosocomial
transmission of tuberculosis has been associated with *** proce-
dures such as *** autopsy, and include recommendations for
preventative measures in autopsy rooms. There was evidence that
MetroHealth’s autopsy isolation room did not comply with the CDC
standards, first because it had only half the recommended number of
air changes per hour, and second because it did not include the use
of personal respirators among its standard safety precautions.
This evidence would permit a reasonable jury to conclude that
MetroHealth knew of a dangerous condition in its business.
MetroHealth claims it did not know the conditions in the
autopsy room were dangerous because there was no evidence anyone
had ever contracted tuberculosis in its autopsy rooms. Simply
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because people are not injured, maimed or killed every time they
encounter a device or procedure is not solely determinative of the
question whether that procedure or device is dangerous or unsafe.
Cook v. Cleveland Elec. Illumin. Co. (1995), 102 Ohio App.3d 417,
429. Furthermore, there is evidence that MetroHealth was aware
that the danger of transmission was magnified in this case because
the strain of tuberculosis involved was multi-drug resistant, the
decedent was untreated, and she had AIDS, which resulted in the
dispersal of the tuberculosis throughout the body. Thus, the fact
that no other autopsies had resulted in the transmission of
tuberculosis to a hospital employee is not determinative.
Second, there was evidence from which a reasonable jury could
find that MetroHealth knew that harm to its employees was substan-
tially certain to occur if they were subjected to this danger.
According to plaintiffs’ expert, the risk of contracting tuberculo-
sis from a one-hour exposure to an infectious dose under the
conditions in the isolation room at the time Padney was infected
was 25% to 30%. The testimony does not show that this calculation
accounts for the increased risk of infection attendant to the fact
that the disease in this patient was untreated before her death and
that the disease was dispersed throughout her body as a result of
her infection with AIDS. If a person present during the autopsy
contracted tuberculosis, there was a further 5% to 10% chance that
the disease would become active in them. If the disease became
active, there was a 50% chance that multi-drug resistant tuberculo-
sis would be fatal.
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MetroHealth concludes from this that it was not substantially
certain that Padney would contract a fatal disease from performing
this particular autopsy; however, we are not assessing only the
risk that Padney would die. Even latent tuberculosis constitutes
an injury, particularly when that disease is drug resistant. A
reasonable jury could find it was substantially certain that Padney
would contract multi-drug resistant tuberculosis from performing an
autopsy on a decedent who suffered from that disease, dispersed
throughout her body, which had not been treated for two weeks
before her death, under the conditions in the isolation autopsy
room during this autopsy, which did not comply with the CDC
standards.
MetroHealth invites us to quantify a substantial certainty
and suggests that a 75% likelihood of injury is the appropriate
standard. We reject such a numerical gauge. While statistical
assessments may be helpful in determining whether harm is substan-
tially certain to occur, they are not conclusive. Among other
things, the determination whether harm is substantially certain to
occur involves not only a consideration of the likelihood that harm
will occur but also an assessment of the seriousness of the harm if
the risk does come to pass. A substantial certainty that a
condition will cause an injury which may result in death may differ
from a substantial certainty of an injury which is not life-
threatening. Consequently, we cannot attach decisive significance
to statistical risk assessments.
-13-
A reasonable jury could find that MetroHealth knew that it was
substantially certain that Padney would contract this disease.
MetroHealth was aware of the CDC standards, which specifically
stated that [s]tandard surgical masks may not be effective in
preventing the inhalation of droplet nuclei, because some are not
designed to provide a tight face seal and to filter out parti-
culates in the droplet nucleus size range (1-5 microns), yet its
safety regulations only required the use of standard surgical
masks. It was also aware that the CDC standards required ventila-
tion equal to twelve total air changes per hour, but this isolation
room only had six air changes per hour. MetroHealth was aware
that this patient was particularly infectious because of the
dispersal of the disease throughout her body and the fact that it
was untreated but ordered no special precautions to be taken in
this case. Cf. Brown v. Packaging Corp. of America (Jan. 11,
2001), Cuyahoga App. No. 77709, unreported.
Finally, MetroHealth urges that Padney, as a supervisor, did
not have to perform this autopsy but could have assigned it to
another diener. That Padney could have placed another employee at
risk does not negate the fact that MetroHealth requires employees
to incur the risk. The job duties of a diener require him or her
to assist in all autopsies, including those involving infectious
diseases. One of the dieners testified that dieners were assigned
to cases involving infectious diseases by rotation and that he
routinely assisted in approximately four tuberculosis cases per
year. Thus, there was evidence from which a jury could have found
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MetroHealth required its dieners, including Padney, to assist in
autopsies under these unsafe conditions. See Hannah v. Dayton
Power & Light (1998), 82 Ohio St.3d 482, 487.
Accordingly, we find the trial court erred by granting a
directed verdict to MetroHealth on plaintiffs’ intentional tort
claim, as well as the loss of consortium claims associated with it.
B. Negligent Infliction of Emotional Distress.
Plaintiffs also argue the trial court erred by directing the
verdict on their claim for negligent infliction of emotional
distress. The evidence demonstrated that both Theresa and Gina
Padney have latent tuberculosis, which they acquired from the
decedent. Neither has developed active tuberculosis, but both are
at risk because they carry the latent disease. They seek recovery
for their fear of developing active tuberculosis of the same type
that killed the decedent.
MetroHealth argues it owed no duty to Padney’s family. First,
MetroHealth claims the risk of injury to Padney’s family was not
foreseeable because the injury to Padney, himself, was not
foreseeable. As previously discussed, however, there was evidence
from which a jury could conclude that the transmission of tubercu-
losis under the conditions in the isolation room during this autop-
sy was not only foreseeable but substantially certain. It is fore-
seeable that a contagious disease acquired by an employee at work
will be transmitted to persons with whom the employee has close
contact, particularly family members who reside with him or her.
Therefore, we find MetroHealth owed a duty of care to the family
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members of employees whom MetroHealth placed at risk of acquiring
tuberculosis by their working conditions. A reasonable jury could
find that MetroHealth breached its duty of care to Padney’s family
by failing to take any action to prevent the transmission of
tuberculosis to them or to warn them of the risk. See Mussivand v.
David (1989), 45 Ohio St.3d 314.
The disease in both plaintiffs is latent, but they are both at
risk for developing active tuberculosis for the rest of their
lives. Though the likelihood that they will develop active tuber-
culosis is now relatively small, 5%, it was as high as 10%. There
is a 50% mortality rate if it does become active. This is a real
danger, not a non-existent peril. Cf. Heiner v. Moretuzzo (1995),
73 Ohio St.3d 80. Because the emotional distress for which
plaintiffs seek recovery is associated with a real physical peril
to the plaintiffs themselves, the emotional injury need not be
severe or debilitating to be compensable. Cf. Binns v. Fredendall
(1987), 32 Ohio St.3d 244.
We find evidence in the record from which a reasonable jury
could find MetroHealth negligently inflicted emotional distress
upon plaintiffs; therefore, the trial court erred by directing the
verdict for MetroHealth on this claim and on the derivative claim
for loss of consortium.
Our conclusion that the trial court erred by directing the
verdict renders moot plaintiffs’ claim that the court erred by
striking part of the testimony of their expert witness.
C. Cross-Appeal.
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MetroHealth’s cross-appeal contends that the trial court
should have directed the verdict in its favor after plaintiffs’
opening statement. It claims appellants conceded that they did not
have proof of the job requirement element of their intentional
tort claim because they admitted Padney could have assigned the
autopsy to another diener. MetroHealth also argues appellants did
not indicate that they had proof that their emotional injuries were
severe and debilitating. To the extent that MetroHealth seeks to
defend the judgment on an alternative ground, see App.R. 3(C)(2),1
we have already addressed and rejected these arguments in ruling on
appellant’s assignments of error; therefore, we overrule the sole
assignment of error on cross-appeal.
We reverse and remand for a new trial.
1MetroHealth did not file a separate notice of cross-appeal,
so we lack jurisdiction to consider its arguments on any other
basis. App.R. 3(C).
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This cause is reversed and remanded to the lower court for
further proceedings consistent with this opinion.
It is, therefore, considered that said appellants recover of
said appellee their costs herein.
It is ordered that a special mandate be sent to the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
PRESIDING JUDGE
KENNETH A. ROCCO
FRANK D. CELEBREZZE, JR.,J. CONCURS
TERRENCE O’DONNELL, J. DISSENTS
(See separate Opinion)
N.B. This entry is an announcement of the court’s decision. See
App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will
be journalized and will become the judgment and order of the court
pursuant to App.R. 22(E) unless a motion for reconsideration with
supporting brief, per App.R. 26(A), is filed within ten (10) days
of the announcement of the court’s decision. The time period for
review by the Supreme Court of Ohio shall begin to run upon the
journalization of this court’s announcement of decision by the
clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section
2(A)(1).
COURT OF APPEALS OF OHIO EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 78264
EDWARD PADNEY, et al. :
:
For Plaintiffs-Appellants :
:
-vs- : DISSENTING OPINION
:
METROHEALTH MEDICAL CENTER :
:
For Defendant-Appellee :
DATE OF ANNOUNCEMENT
OF DECISION:
JUDGE TERRENCE O’DONNELL, DISSENTING:
I respectfully dissent.
The majority has based its opinion in part on evidence from
1982 that the isolation room of the autopsy suite functioned at six
air changes per hour. This evidence, however, does not support the
conclusion that the same rate of air exchange existed ten years
later, in 1992, when Edward Padney assisted in the autopsy of Elba
Ramos.
At trial, Padney’s expert witness, Dr. Edward Nardell, an
associate professor of medicine at the Harvard Medical School,
testified based on six changes of air per hour, and the majority
has cited, relied upon, and utilized his opinion regarding the
likelihood of infection based on the assumption that the venilation
system functioned at that rate on September 25, 1992, when Padney
participated in the autopsy of Elba Ramos.
However, the transcript contains evidence that Dr. Nardell had
no idea what the actual air changes were in the autopsy isolation
room on September 25, 1992 but that, based upon an August 6, 1982,
office memorandum from Lawrence S. Toth to Maxine Hampson, he
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assumed that it was six; that memo, however, predated the Ramos
autopsy by ten years.
The transcript of the trial of this matter reveals the
following:
Q. (by Mr. Sutton) And in 1970 when it went
on line, it was tested at 18.5?
A. (by Dr. Nardell) Yes.
Q. Now, somewhere along the line, we get to
1992, right?
A. Yes.
Q. And you’ll admit that you have no idea
what the actual air changes were on Sep-
tember 25, 1992? You don’t know.
A. True.
Q. And are you going to tell us that you
think it was 6?
A. Yes.
Q. All right. And the reason that you say
it was 6 is based solely upon that 1982
memo, right?
A. Yes.
Q. And that 1982 memo, that’s a decade be-
fore this, would you agree with that?
A. Yes.
(Tr. 349-350.)
In addition, the transcript reveals that Dr. Nardell admitted
that a 1986 hospital memo indicated that the plant engineering
department had investigated the ventilation system in the autopsy
suite and verified the system to be within designed parameters of
16 air changes per hour.
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This, however, is not only a case about factual distinctions
but also concerns application of the doctrine of intentional tort.
In Fyffe v. Jeno’s Inc. (1991), 59 Ohio St.3d 115, the court
stated in the first paragraph of its syllabus:
1. Within the purview of Section 8(A) of the
Restatement of the Law 2d, Torts, and Section
8 of Prosser & Keeton on Torts (5 Ed. 1984),
in order to establish “intent” for the purpose
of proving the existence of an intentional
tort committed by an employer against his
employee, the following must be demonstrated:
(1) knowledge by the employer of the existence
of a dangerous process, procedure, instrumen-
tality or condition within its business opera-
tion; (2) knowledge by the employer that if
the employee is subjected by his employment to
such dangerous process, procedure, instrumen-
tality 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 the dangerous
task. (Van Fossen v. Babcock & Wilcox Co.
[1988], 36 Ohio St.3d 100, 522 N.E.2d 489,
paragraph five of the syllabus, modified as
set forth above and explained.)
More significant in this case, in my view, is the second
paragraph of that syllabus, which states:
2. To establish an intentional tort of an
employer, proof beyond that required to prove
negligence and beyond that to prove reckless-
ness must be established. 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 proba-
bility that the consequences will follow
further increases, and the employer knows that
injuries to employees are certain or substan-
tially 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 —
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something short of substantial certainty — is
not intent. (Van Fossen v. Babcock & Wilcox
Co.[1988], 36 Ohio St.3d 100, 522 N.E.2d 489,
paragraph six of the syllabus, modified as set
forth above and explained.)
My differences with the majority are based upon its misappli-
cation of the facts and my view of the law. The majority con-
cludes, for example, “A reasonable jury could find [MetroHealth]
was substantially certain that Padney would contact this disease.
The majority also concludes, It was also aware that the CDC
standards required ventilation equal to twelve total air changes
per hour, but this isolation room only had six air changes per
hour.”
Not only does the majority skew the facts to reach its
conclusions, but it misapplies Fyffe. As indicated earlier, the
reference to six air changes per hour occurred ten years before the
Ramos autopsy, and Dr. Nardell testified that he did not know the
number of air changes per hour at the time of the autopsy. The
majority has erroneously adopted the 1982 data and applied it to
the 1992 facts in this case.
Further, Fyffe requires more. Proof beyond negligence or
recklessness must be established. There is no evidence in this
record to meet the Fyffe standard:
“* * * [T]he employer knows that injuries to
employees are certain or substantially certain
to result from the * * * procedure * * * and
he still proceeds, he is treated by the law as
if he had in fact desired to produce the
result.
There is evidence to suggest that MetroHealth had an apprecia-
tion of the risk of harm in performing this autopsy. However, as
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stated in Fyffe, paragraph six of Van Fossen v. Babcock & Wilcox
Co. (1988), 36 Ohio St. 3d 100, has now been amended to read in
part:
* * * [T]he mere knowledge and appreciation
of a risk — something short of substantial
certainty — is not intent.
In its opinion, the majority suggests that evidence existed
from which a jury could find that MetroHealth knew that harm to its
employees was substantially certain to occur if subjected to this
danger, citing a 25-30% chance of contracting tuberculosis from a
one-hour exposure. The facts of this case plainly do not reach the
level of substantial certainty on three bases: one, per the
analysis offered in Fyffe and Van Fossen, mere knowledge of a risk
is not equivalent to intent; two, the uncontroverted evidence in
this case establishes that for twenty years, no other MetroHealth
employee had ever been infected with tuberculosis; and three, while
the majority asserts a 25-30% chance of contracting tuberculosis,
the transcript reveals the following colloquy from the cross-
examination of Dr. Nardell:
Q. But you’re sitting here on the stand.
You have to give us your opinion. What
is the percentage chance that he was
going to get sick on that day?
A. That he was going to get infected.
Q. Infected, I’m sorry.
A. Okay. Looks like somewhere around 25 to
30 percent.
Q. Twenty-five to 30 percent chance that he
is going to get infected?
A. Yes.
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Q. And when you say infected, you mean being
a converter?
A. That’s correct.
Q. And could you tell us what the chances
are of any converter, that that person
would come down with the sickness?
A. It’s five to ten percent.
Q. Five to ten percent. Let’s go with the
highest one. So, if he had a 30 percent
chance of getting sick or being a con-
verter, he then had a three percent
chance of actually getting sick?
A. Yes.
Q. All right. And how many of the people
who get sick with multi drug resistant
tuberculosis actually pass away, around
50 percent?
A. I would say fewer than that.
Q. Less than —
A. Fifty percent is an okay number.
Q. So, at the time that Mr. Padney went into
that room, he had a 1.5 percent chance of
becoming fatally ill?
A. By these assumptions, yes.
(Tr. 380-381.)
The significance of that testimony becomes relevant when
compared with the analysis offered in Pratta v. E.I. du Pont de
Nemours and Co. (D.N.J. Aug. 7, 1992), 1992 U.S. Dist. LEXIS 12105,
unreported, where Pratta claimed he developed bladder cancer from
exposure to chemicals from 1961 to 1973. He produced evidence that
between 1954 and 1981, 8.3% of du Pont workers developed bladder
cancer and argued that because historically a percentage of the
-7-
workforce had developed cancer, it was substantially certain other
cases would occur and therefore du Pont committed an intentional
tort. The court there concluded that a 8.3% risk did not rise to
the level of substantial certainty; similarly, neither does a 3%
chance of getting sick or a l.5% chance of becoming fatally ill.
In my view, the evidence presented fails to establish a prima
facie case of intentional tort, and, therefore, I believe that the
trial court properly granted a directed verdict in favor of
MetroHealth on this claim. Accordingly, I dissent.

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