# Goolsby v. Best in Neighborhood LLC

> District Court, N.D. Ohio · March 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10371821

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** March 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10371821

## How later opinions describe it (automated extraction)

- noting “[d]octors often rely on lab studies performed by experts who are not licensed physicians. For instance, a doctor may give a medical diagnosis where the diagnosis relies upon the test results of a chemist or technician to determine blood-alcohol content.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

RON GOOLSBY, et al., CASE NO. 3:19 CV 2664

Plaintiffs,

v. JUDGE JAMES R. KNEPP II

BEST IN NEIGHBORHOOD LLC,
MEMORANDUM OPINION AND
Defendant. ORDER

INTRODUCTION

Plaintiffs Ron Goolsby, Allyse Goolsby, and minor K.S.G. filed suit against Defendant
Best in Neighborhood LLC (“Defendant”)1 alleging violations of the Residential Lead-Based
Paint Hazard Reduction Act, 42 U.S.C. § 4852d, negligence per se based on Ohio Revised Code
§ 5321.04, and common law claims of negligence, loss of consortium, private nuisance,
intentional infliction of emotional distress, negligent infliction of emotional distress, fraud,
negligent misrepresentation, unjust enrichment, and breach of contract. See Doc. 1. Now before
the Court is Defendant’s Motion for Summary Judgment (Doc. 97). Plaintiffs opposed (Doc. 98),
and Defendant replied (Doc. 99).
For the reasons set forth below, Defendant’s Motion (Doc. 97) is granted in part and
denied in part.

1. Plaintiffs also asserted claims against Keith Brown, Courtney Brown, Brown CRE LLC, and
Best Home LLC. The claims against Brown CRE LLC and Best Home LLC were dismissed
without prejudice. (Doc. 16). This Court granted summary judgment in favor of Keith and
Courtney Brown. (Doc. 95). Best in Neighborhood LLC is the lone Defendant remaining in this
case.
BACKGROUND
Viewing the facts in the light most favorable to Plaintiffs, the background of this case is
as follows.
This suit arises out of claims K.S.G. suffered injuries resulting from exposure to lead
paint in the home his parents rented from Defendant. Plaintiffs Ron Goolsby and Allyse Goolsby

lived together with their two sons and Allyse’s two daughters in a four-bedroom condo in
Toledo. (Allyse Goolsby Depo., at 6-7, 14)2. Their youngest son, K.S.G., is a named Plaintiff in
this action. (Doc. 1). K.S.G. was one year old when the events underlying this action arose.
(Allyse Goolsby Depo., at 58). In 2016, Plaintiffs were looking to move into a larger home with
a back yard near Allyse’s mother. Id. at 17.
In December 2016, Allyse spoke with Keith Brown about the availability of a home he
owned at 540 Collins Street in Toledo. Id. He informed her the house needed work and he would
keep her updated on the progress. Id. In January 2017, Keith Brown stated he was having trouble
finding workers to repair the property. Id. at 19. During their next meeting the parties walked

through the house together. Id. at 20-21. Allyse recalled the house was a “fixer-upper”. Id.
Rental Agreement
The parties entered a rental agreement and verbally discussed an option to purchase. Id. at
23-24. They agreed Plaintiffs would keep receipts for repairs on the home during the rental
period and the amount would be offset against rent or an eventual purchase price. Id. at 25. On
February 26, 2017, Plaintiffs submitted a rental application. Id. at 32. The rental agreement was
set to be effective beginning March 31, 2017. Id. at 33. Defendant Best in Neighborhood LLC

2. Plaintiff Allyse Goolsby’s deposition transcript is located at ECF Doc. 82-1.
was listed as the landlord of the property. Id. Keith and Courtney Brown are the only members of
the LLC. (Doc. 76, at 8).
Prior to moving in, Plaintiffs cleaned the house and prepared it for move-in in exchange
for a reduction of rent from Defendant. Id. at 35. Plaintiffs performed repairs to the kitchen
cabinets, floor tiles, and painted the interior. Id. at 36-37. The Goolsby family moved into the

house in April or May of 2017. Id. at 38. Alongside the lease agreement, Keith Brown supplied
Plaintiffs with the “Protect Your Family from Lead in Your Home” educational pamphlet. Id. at
41. The pamphlet included an acknowledgement form; checkboxes on the form in spaces for
disclosing the existence or absence of lead paint in the home remained blank, but both parties
signed the form indicating Defendant gave the educational pamphlet to Plaintiffs. (Doc. 98-1).
Plaintiffs testified Defendant did not provide any other documents pertaining to lead in the home,
including any home inspection report from 2009. (Allyse Goolsby Depo., at 44); see also Ron
Goolsby Depo., at 20-223. Keith Brown testified Plaintiffs were aware of the presence of lead
paint in the home. (Doc. 76, at 57). An unsigned internet blog dated May 3, 2017, describes an

interview with Allyse Goolsby during which she was purportedly unaware of any notice to
vacate due to lead contamination. (Doc. 97, at 12).
Plaintiffs denied having knowledge of the lead paint in the home until after their family
friend, city health department employee Vaughan Jackson, notified them the house was under
orders by the health department not to be occupied. (Allyse Goolsby Depo., at 52-56); (Ron
Goolsby Depo., at 34). The whole family was living in the home at the time they learned of the
lead paint. (Allyse Goolsby Depo., at 54).

3. Plaintiff Ron Goolsby’s deposition transcript is located at ECF Doc. 82-2.
K.S.G. Diagnosis
At the time Allyse and Ron learned of the lead paint, both had observed developmental
regression in their son, K.S.G. Id. at 57-58. In September 2017, about a month after noticing the
onset of symptoms, K.S.G. underwent tests which revealed high levels of lead in his blood. Id. at
59-61, 73-76. K.S.G. suffered from communication issues including the loss of his ability to talk

except through limited sign language. (Ron Goolsby Depo., at 76). He also forgot his own name,
had unexplained outbursts in public, and could no longer spell. Id. at 77. K.S.G. was diagnosed
with autism and attention deficit hyperactivity disorder (“ADHD”), and doctors told Plaintiffs
the autism diagnosis is a result of lead poisoning. (Allyse Goolsby Depo., at 76-77); (Doc. 97, at
21). K.S.G. is currently enrolled at Hopebridge Autism Therapy Center and has an IEP through
his preschool. (Allyse Goolsby Depo., at 11).
Allyse and the children vacated the house shortly after they were informed about the lead
paint. Id. at 55. Ron stayed at the house and paid rent through March 2018 and did not officially
vacate the property until June 2019 when Defendant initiated an eviction action. (Doc. 78, at ¶

15); (see also Ron Goolsby Depo., at 60). Plaintiffs maintain the parties came to an agreement
regarding non-payment of rent while the option to purchase was being discussed and after the
lead paint issues arose. (Ron Goolsby Depo., at 59). In all, Plaintiffs spent approximately
$20,000 on house repairs. Id. at 57.
Inspection Reports
In 2009, shortly after Defendant purchased the 540 Collins Street house, the City of
Toledo Neighborhoods Department conducted an inspection. (Doc. 76, at 35). The city informed
Keith Brown the inspection was necessary because a child living in the home had elevated levels
of lead. Id. The 2009 inspection report identified areas of concern for lead-based paint. Id. at 38.
In 2015, the City of Toledo Health Department conducted a lead-based paint risk
assessment of the home. Id. at 46. Keith Brown testified neither he nor his wife became aware of
the 2015 risk assessment report until May 2017. Id. The Browns had moved to a new address
prior to the time the risk assessment was mailed and state it was sent to an old address. Id. at 47.
The risk assessment identified dozens of lead hazards throughout the home and ordered

remediation within 90 days. (Doc. 98-2).
Neither the 2009 nor 2015 inspection reports were disclosed to Plaintiffs at the time the
family moved into the home in 2017. (Allyse Goolsby Depo., at 44); (Ron Goolsby Depo., at 20-
22).
STANDARD OF REVIEW

Summary judgment is appropriate where there is “no genuine issue as to any material
fact” and “the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
When considering a motion for summary judgment, the Court must draw all inferences from the
record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or
determine the truth of any matter in dispute; rather, the Court determines only whether the case
contains sufficient evidence from which a jury could reasonably find for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party bears the
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden “may be
discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of
evidence to support the nonmoving party’s case.” Id. Further, the nonmoving party has an
affirmative duty to direct the Court’s attention to those specific portions of the record upon
which it seeks to rely to create a genuine issue of material fact. See Fed R. Civ. P. 56(c)(3)
(noting the court “need consider only the cited materials”).
DISCUSSION

Plaintiffs bring eleven claims against Defendant Best in Neighborhood LLC: (1) Failure
to Disclose under the Residential Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 4852d;
(2) negligence per se under Ohio Revised Code § 5321.04; (3) negligence; (4) loss of
consortium; (5) private nuisance; (6) intentional infliction of emotional distress; (7) negligent
infliction of emotional distress; (8) fraud; (9) negligent misrepresentation; (10) unjust
enrichment; and (11) breach of contract. Defendant moves for summary judgment on all of
Plaintiffs’ claims. For the following reasons, Defendant’s motion is granted on Plaintiffs’ claims
of intentional infliction of emotional distress and negligent infliction of emotional distress,
granted in part as to negligence, and denied on all other claims.
Federal Claim
Plaintiffs argue Defendant unlawfully failed to provide the 2009 inspection report and the

2015 lead hazard report, and omitted critical information pertaining to known lead hazards prior
to the execution of the lease agreement in violation of 42 U.S.C. § 4852d.4 (Doc. 99, at 3-7).
Defendant rebuts by stating Plaintiffs had notice of the presence of lead-based paint and
voluntarily assumed the risk. (Doc. 97, at 7-8). In relevant part, § 4852d places the following
obligations on sellers and lessors of target housing:
(A) provide the purchaser or lessee with a lead hazard information
pamphlet, as prescribed by the Administrator of the Environmental
Protection Agency under section 406 of the Toxic Substances
Control Act [15 USCS § 2686];

4. Plaintiffs concede that only Ron and Allyse Goolsby may assert claims under § 4852d. Insofar
as the Complaint asserts claims on behalf of K.S.G. under § 4852d, the Court deems those claims
abandoned.
(B) disclose to the purchaser or lessee the presence of any known
lead-based paint, or any known lead-based paint hazards, in such
housing and provide to the purchaser or lessee any lead hazard
evaluation report available to the seller or lessor; and

(C) permit the purchaser a 10-day period (unless the parties
mutually agree upon a different period of time) to conduct a risk
assessment or inspection for the presence of lead-based paint
hazards.

Id. Defendant’s reliance on the blog post (Doc. 97, at 12), the partially completed disclosure of
information form (Doc. 98-1), and generalized testimony suggesting Plaintiffs were aware of the
presence of lead paint (Doc. 76, at 57) is insufficient to satisfy the statutory requirements of §
4852d.
The Court first notes that neither the blog post nor the partially completed disclosure
support Defendant’s position that there is no genuine dispute Plaintiffs were on notice of lead-
paint within the home; the blog post states Allyse was unaware of any notice to vacate on May 3,
2017, and the disclosure form does not list any documents or reports Defendant furnished to
Plaintiffs. More importantly, § 4852d requires lessors to “provide to the purchaser or lessee any
lead hazard evaluation report available to the seller or lessor”. Here, both Allyse and Ron
Goolsby testified they never received the 2009 inspection report that Keith Brown had available
to him. (Allyse Goolsby Depo., at 44); (Ron Goolsby Depo., at 20-22). The 2009 report
identified specific areas of concern for lead paint in the home. (Doc. 76, at 35). Defendant,
contrary to representations in its brief, has not produced any evidence stating the 2009 inspection
report was disclosed to Plaintiffs. (Doc. 97, at 3). Because § 4852d requires lessors to provide
“any lead hazard evaluation report available”, and Plaintiffs have produced evidence to raise a
genuine issue of material fact as to whether the 2009 inspection report was provided, Defendant
is not entitled to summary judgment on this claim.5
Negligence
Plaintiffs argue Defendant’s failure to disclose known lead hazards was negligent. (Doc.
1, at ¶¶ 100-07). Plaintiffs assert K.S.G. suffers from elevated blood lead levels, physical pain,

delayed development, and permanent impairment to cognitive function as a result of Defendant’s
negligence. Id. at ¶ 106. Plaintiffs further assert Allyse and Ron Goolsby have endured loss of
wages, medical expenses, emotional distress, loss of consortium, and loss of normal enjoyment
of life as a result of K.S.G.’s high blood-lead levels. Id. at ¶ 107.
Defendant argues Plaintiffs’ negligence claim must be dismissed because Ohio statute
prohibits Plaintiffs’ only expert, nurse Marilynne R. Wood, Ph.D., MSN, RN, from testifying on
the issue of medical causation. (Doc. 97, at 9). Because Plaintiffs have presented no admissible
evidence on the issue of causation, Defendant argues, the negligence claim necessarily fails. Id.
To establish a negligence claim in Ohio, “the plaintiff must show (1) the existence of a

duty, (2) a breach of duty, and (3) an injury proximately resulting therefrom.” Armstrong v. Best
Buy Co., 788 N.E.2d 1088, 1090 (Ohio 2003). In Ohio,
[i]n order to defeat a motion for summary judgment brought in a negligence
action, it is incumbent upon the plaintiff to identify a duty owed to plaintiff by the
defendant; further, there must be sufficient evidence, considered most favorably
to the plaintiff, to allow reasonable minds to infer that the duty was breached, that
the breach of that duty was the proximate cause of the plaintiff’s injury and that
the plaintiff was injured.

5. Summary judgment does not hinge on whether the 2015 risk assessment report was
“available” to Defendant for purposes of § 4852d because Defendant’s failure to provide the
2009 report is sufficient to demonstrate a violation for purposes of overcoming summary
judgment.
Livneh v. Village of Oak Harbor, 2017 U.S. Dist. LEXIS 131551, *7 (N.D. Ohio) (internal
quotations omitted). Defendant contends Plaintiffs are unable to establish a genuine issue of
material fact regarding causation. (Doc. 97, at 9). Plaintiffs argue Wood’s testimony is
admissible for purpose of tying the medical diagnosis made by K.S.G.’s medical doctor to the
environmental factors at the rental property. (Doc. 98, at 10). Plaintiffs argue Wood is not

making a medical diagnosis at all, and the existence of lead poisoning, ADHD, and autism are
not seriously in dispute. Id.
Expert Testimony
Federal Rule of Civil Procedure 702 governs the admissibility of expert testimony,
stating, “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.

Id. Further, “Federal Rule of Evidence 601 dictates that [Ohio’s] witness competency rule
governs the admissibility of medical expert testimony”. Legg v. Chopra, 286 F.3d 286, 291 (6th
Cir. 2002). Under Ohio Revised Code § 4723.151, “a nurse cannot testify as a medical expert on
the issue of a medical diagnosis because that matter is outside her medical expertise.” Duchene v.
Finley, 2015-Ohio-387, ¶ 13 (Ohio Ct. App.). However, “[a] nurse may . . . render an expert
opinion as to a medical issue about any matter in which she has expertise.” Id. at ¶ 12.
In Shilling v. Mobile Analytical Services, Inc., the Ohio Supreme Court held “[a] witness
who is not a physician, but who qualifies as an expert under Evid.R. 702, may give evidence that
would be relevant to diagnosis of a medical condition if the testimony is within the expertise of
the witness.” 65 Ohio St. 3d 252, 252 (Ohio 1992). The issue before the Shilling court on appeal
was the admissibility of plaintiff-appellant’s expert testimony. Id. The plaintiff sought to prove
“various personal injuries [were] caused by drinking water contaminated with gasoline during
the period from October 1985 to December 1987.” Id. at 253. The plaintiff was diagnosed with
multiple sclerosis by a physician. Id. During the trial court proceeding plaintiff relied on the

expert report of Raymond Singer, Ph.D., a neurotoxicologist and psychologist. Id.
Singer was a “fellow at the National Institute of Health and at the Mount Sinai School of
Medicine, ha[d] won the NIH National Research Service Award, and ha[d] a long list of
publications dealing with neurotoxicity and its effects.” Id. at 254. He reviewed scientific
literature and the available medical records, and concluded contaminated well water was a
significant contributing factor in causing the plaintiff’s brain damage. Id. at 253. The court held
“Dr. Singer [was] qualified to testify that the ingestion of gasoline caused injury to the brain and
nervous system . . . The fact that additional expert testimony may be required to establish a
connection between such brain damage and all of the symptoms claimed by plaintiffs does not

bar conclusions which do fall within Dr. Singer’s expertise.” Id. at 255. The court explained:
The issue presented is not whether Dr. Singer’s expertise allows him to testify that
all of the symptoms exhibited by plaintiffs were caused by contaminated water.
Those issues pertain to measurement of damage and are not before the court at
this time.

The pivotal point is this: If the plaintiffs suffered brain injury caused by the toxic
poisoning, that is sufficient to overcome a motion for summary judgment. It at
least entitles plaintiffs to nominal damages.

Id.; see also O’Byrne v. Weyerhaeuser Co., 2022 U.S. Dist. LEXIS 164637, *38 (S.D. Ohio)
(toxicologist and certified industrial hygienist without medical training qualified to testify as to
whether levels of formaldehyde in homes were significant enough to cause the complained of
health symptoms).
Plaintiff’s expert, Marilynne R. Wood, has a Bachelor of Science in Nursing (BSN), a
Master Degree in Nursing (MSN), and a Ph.D. in Health Education with cognates in Research
and Methods. (Doc. 97, at 13). She has 55 years of nursing practice experience and is a professor
at the University of Toledo College of Nursing. Id. She previously served as the principal
investigator of research programs and grant awards to address public health issues impacting

children and families. Id. Her primary research area is the detrimental effects of elevated lead
blood levels, lead poisoning prevention, and safe home environments. Id. She has earned honors
from universities including the University of Toledo for exemplary work directing the lead
poisoning prevention program. Id. She has presented across the United States on issues of lead
poisoning and prevention. Id. at 14. Wood has screened more than 1,000 children for lead
poisoning. Id. These screenings include venous samples and reports confirming lead poisoning.
Id.
Wood’s expert report discusses scientific literature on lead exposure and the dangers to
the human body; it specifically details the heightened risks to children. Id. at 15. At a high level

of lead exposure, the risks include, in part, coma, death, mental disability, and behavioral
disorders. Id. at 16. At lower levels, the risks include reduced intelligence quotient, behavioral
changes, antisocial behavior, reduced educational attainment, anemia, renal impairment,
immunotoxicity, and toxicity to reproductive organs. Id. Wood also opines “lead may play a
causal role in autism” and provides scientific studies showing a correlation between lead
exposure and ADHD. Id. at 18-19.
Wood’s report provides an analysis of K.S.G.’s medical records. Id. at 20. Wood
concludes from his blood level test and changes to his physical and behavioral development that
K.S.G. suffered from lead poisoning. Id. at 22. Wood also states the scientific literature provides
statistical evidence tying K.S.G.’s decline in growth and development to lead poisoning. Id.
Wood notes several studies substantiate Plaintiffs’ claim that K.S.G.’s autism and ADHD are a
result of lead exposure. Id.
The Shilling court established an expert who does not qualify as a “medical expert” is
qualified under limited circumstances; Shilling specifically recognized a Ph.D.-holding

toxicologist is “qualified to testify that the ingestion of gasoline caused injury to the brain and
nervous system.” Shilling, 65 Ohio St. 3d at 255 (noting “[d]octors often rely on lab studies
performed by experts who are not licensed physicians. For instance, a doctor may give a medical
diagnosis where the diagnosis relies upon the test results of a chemist or technician to determine
blood-alcohol content.”). Like the expert in Shilling, Plaintiffs’ expert has demonstrated
knowledge and training on lead poisoning and substantial experience testing and treating
children. (Doc. 97, at 13-25). Therefore, Wood is qualified to testify lead poisoning caused
injury to K.S.G. “The fact that additional expert testimony may be required to establish a
connection between such [lead poisoning] and all of the symptoms claimed by plaintiffs does not

bar conclusions which do fall within [Wood’s] expertise.” Shilling, 65 Ohio St. 3d at 255. The
existence of lead poisoning is sufficient to overcome summary judgment because it “at least
entitles plaintiffs to nominal damages”, id., even if K.S.G.’s autism and ADHD cannot be linked
for lack of evidence. See Wallace v. United States, 335 F. Supp. 2d 252, 261 (D.R.I. 2004)
(plaintiffs were “at least entitled to attempt to recover damages for the lead poisoning and its
attendant treatment even if the behavioral and cognitive problems cannot be linked to the lead
poisoning.”).
However, Plaintiffs have not produced any expert testimony showing K.S.G.’s specific
diagnoses – autism or ADHD – were caused by lead poisoning. See Doc. 98. Wood attests the
scientific literature substantiates a connection, but she cannot opine to reasonable degree of
medical certainty that all of K.S.G.’s symptoms were a result of lead poisoning. (Doc. 97, at 22).
Such a medical diagnosis would be outside of her expertise, which is limited to identifying and
treating lead poisoning. Duchene, 2015-Ohio-387 at ¶ 13 (“a nurse cannot testify as a medical
expert on the issue of a medical diagnosis because that matter is outside her medical expertise”).

In Wallace v. United States, a case out of the Rhode Island District Court considering lead
poisoning under claims of negligence and 42 U.S.C. § 4852d, the court held:
In response, the [p]laintiffs argue that there is overwhelming evidence that the
Children suffered lead poisoning and were forced to undergo treatment for the
elevated levels of lead in their blood. Accordingly, the [p]laintiffs contend that
[defendant’s] Motion for Summary Judgment should more properly be
characterized as one for partial summary judgment because they are at least
entitled to attempt to recover damages for the lead poisoning and its attendant
treatment even if the behavioral and cognitive problems cannot be linked to the
lead poisoning. This Court agrees. It is undisputed that the Children suffered lead
poisoning after moving into the Property, and as a result of the lead poisoning, the
Children had to undergo treatment for the exposure.

335 F. Supp. 2d 252, 261 (D.R.I. 2004). In accordance with the reasoning set forth in Wallace,
because Plaintiffs have not provided any evidence raising a genuine issue of material fact that
K.S.G.’s autism and ADHD were proximately caused by lead exposure, Defendant is entitled to
partial summary judgment regarding Plaintiffs’ negligence claims based on those conditions.
Defendant’s motion is denied in part because Plaintiffs have provided sufficient evidence to
overcome summary judgment showing K.S.G.’s lead poisoning was proximately caused by lead
exposure at the house. Therefore, Plaintiffs are “entitled to attempt to recover damages for the
lead poisoning and its attendant treatment” as described above. Id. However, Plaintiffs are unable
to recover damages related to “behavioral and cognitive problems” for lack of admissible
evidence “link[ing the conditions] to the lead poisoning.” Id.
Emotional Distress
Plaintiffs Ron and Allyse Goolsby also bring claims of intentional infliction of emotional
distress (Doc. 1, at ¶¶ 131-37), negligent infliction of emotional distress (id. at ¶¶ 138-142), and
loss of consortium (id. at ¶¶ 118-23). These claims are based on emotional distress associated
with K.S.G.’s lead poisoning diagnosis. Id. Defendant moves for summary judgment and argues

the emotional distress claims fail for lack of evidence showing serious emotional harm. (Doc. 97,
at 9-10).
Defendant argues Plaintiffs are required to provide expert testimony to show serious
emotional harm. Id. A plaintiff’s testimony is insufficient to substantiate emotional distress
claims and overcome summary judgment. Bragg v. Madison, 20 F. App’x 278, 286 (6th Cir.
2001) (citing Dickerson v. Int’l United Auto Workers Union, 648 N.E.2d 40, 50 (Ohio Ct. App.
1994)). “While Ohio does not require expert medical testimony to support an intentional
infliction of emotional distress claim, a plaintiff must at least provide some evidence beyond his
or her own testimony.” Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1111 (6th

Cir. 2008).
In the context of negligent infliction of emotional distress in cases without a
contemporaneous physical injury, “[a]ll that is required is some ‘guarantee of genuineness’ to
support [a] claim for emotional distress. While expert medical testimony is helpful, it is not
required to demonstrate emotional distress. A witness that is acquainted with the plaintiff may
testify as to any marked changes in the emotional or habitual makeup that they discern in the
plaintiff after the accident has occurred.” Al-Menhali v. Marriott Int’l, 2019 U.S. Dist. LEXIS
241845, *34-35 (N.D. Ohio) (internal quotations and citations omitted).
In opposition to summary judgment, Plaintiffs direct this Court to their respective
deposition testimony regarding serious emotional distress. (Doc. 98, at 13). Both Ron and Allyse
testified extensively on the emotional distress they are enduring as a result of the events
underlying the Complaint, including ongoing mental health treatment. (Allyse Goolsby Depo., at
96-98); (Ron Goolsby Depo., at 70-76). Plaintiffs did not submit expert testimony supporting

their emotional distress claims. Nor did they submit an affidavit of an acquainted lay witness
concerning marked changes to their emotional or habitual makeup. Because Plaintiffs’ own
testimony does not satisfy the “guarantee of genuineness” requirement under Ohio law,
Defendant is entitled to summary judgment on Plaintiffs’ claims for intentional infliction of
emotional distress and negligent infliction of emotional distress. Al-Menhali, 2019 U.S. Dist.
LEXIS 241845 at *34-35.
Loss of Consortium
In Ohio, “a parent may recover damages[] in a derivative action against a third-party
tortfeasor who intentionally or negligently causes physical injury to the parent’s minor child[] for

loss of filial consortium.” Gallimore v. Children’s Hosp. Med. Ctr., 67 Ohio St. 3d 244, 251
(Ohio 1993). “[F]ilial consortium is for the loss the parent suffers as a result of an injury to the
child, which includes loss of services, society, companionship, comfort, love and solace.” Id. at
253 (emphasis in original).
As discussed above, Plaintiffs raise a genuine issue of material fact on the negligence
claim brought on behalf of K.S.G. Therefore, Plaintiffs Ron and Allyse Goolsby’s loss of
consortium claim, which is derivative of the negligence claim, overcomes summary judgment in
accordance with that determination.
Remaining Claims
Defendant argues it is entitled to judgment on the remaining claims because (1) it is
entitled to judgment on Plaintiffs’ only federal claim (violations of the Residential Lead-Based
Paint Hazard Reduction Act, 42 U.S.C. § 4852d) so this Court is divested of supplemental
jurisdiction on all remaining state-law claims; or (2) Plaintiffs cannot prove damages “for lack of

admissible evidence of medical causation”. (Doc. 97, 10-11).
“In any civil action in which the district court has original jurisdiction, it also possesses
supplemental jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution.” Sexstella-Wright v. Sandusky City Sch. Dist. Bd. of Educ., 258 F.
App’x 837, 839 (6th Cir. 2007) (internal quotation omitted). While “it is ordinarily prudent for a
district court that dismisses a plaintiff’s federal-law claims to decline to reach the plaintiff’s
state-law claims”, a district court is not divested of jurisdiction as an operation of law when a
federal claim is dismissed. Id. Nevertheless, the premise of Defendant’s first argument fails

because this Court has found Defendant is not entitled to summary judgment on the federal
claim. This Court will exercise supplemental jurisdiction over the remaining state law claims.
Defendant’s second argument fails for two reasons. First, this Court finds Plaintiffs raise
a genuine issue of material fact on the negligence claim brought on behalf of K.S.G. Second,
damages related to medical diagnosis are not the only relief sought in this matter. See, e.g., Doc.
1, at ¶¶ 109-17, 163-86.
Defendant’s motion is denied in part accordingly.
CONCLUSION
For the foregoing reasons, good cause appearing, it is
ORDERED that Best in Neighborhood LLC’s Motion for Summary Judgment (Doc. 97)
on K.S.G.’s negligence claim be, and the same hereby is, GRANTED IN PART and DENIED IN
PART as set forth above; and it is

FURTHER ORDERED that Best in Neighborhood LLC’s Motion for Summary
Judgment (Doc. 97) on Ron Goolsby and Allyse Goolsby’s claims for intentional infliction of
emotional distress and negligent infliction of emotional distress, be and the same hereby is,
GRANTED; and it is
FURTHER ORDERED that Best in Neighborhood LLC’s Motion for Summary
Judgment (Doc. 97) on all other claims be, and the same hereby is, DENIED.

s/ James R. Knepp II
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10371821. Public record. Not legal advice.