The opinion
[Cite as Moore v. E.I. DuPontde Nemours Co., 2015-Ohio-5331.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
MELISSA MOORE, : Case No. 15CA12
:
Plaintiff-Appellant, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
E.I. DuPONT de NEMOURS Co., et al., :
:
Defendants-Appellees. : Released: 12/10/15
APPEARANCES:
Thomas Tootle, Law Office of Thomas Tootle Co., LPA, Columbus, Ohio, for
Appellant.
Carl D. Smallwood, Vorys, Sater, Seymour and Pease LLP, Columbus, Ohio, for
Appellees.
McFarland, A.J.
{¶1} Melissa Moore appeals the final judgment entered on February 26,
2015, in the Pickaway County Court of Common Pleas. Appellant asserts that the
trial court erred in granting summary judgment in her action for workers
compensation death benefits to Appellee E.I. DuPont de Nemours and Company,
hereinafter “DuPont.” Having reviewed the record, we find the trial court did not
err. Appellant’s assignment of error is without merit. As such, we affirm the
judgment of the trial court.
Pickaway App. No. 15CA12 2
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On May 27, 2011, Dennis Moore, an employee of DuPont, collapsed
and died at work. The parties agree he suffered a fatal acute myocardial infarction,
a heart attack, at the time. Moore’s spouse, Appellant Melissa Moore, filed a
timely claim for dependents benefits resulting from the death of her husband with
the Ohio Bureau of Workers Compensation (BWC). She asserted her husband
suffered the heart attack in the course and scope of his employment with DuPont.
BWC referred the matter to the Industrial Commission of Ohio for adjudication.
Pursuant to R.C. 4121.34 and R.C. 4123.511, a hearing took place and Appellant’s
claim was disallowed. Appellant appealed to the Industrial Commission staff
hearing officer who affirmed denial of the claim. The Industrial Commission of
Ohio denied Appellant’s request for further review.
{¶3} Pursuant to R.C. 4123.512, Appellant filed a timely action in the
Pickaway County Court of Common Pleas. The parties engaged in discovery.
Appellant and Ralph W. Newman, D.O. were deposed.
{¶4} Appellant testified she and her husband met in high school and married
while still in their teens. They were both high school graduates. At the time of
Mr. Moore’s death at age 47, the Moores had two adult children. Appellant
testified her husband had worked his entire adult life, working as a brick mason, a
laborer, or a janitor. At one time he owned his own masonry business.
Pickaway App. No. 15CA12 3
{¶5} Dennis Moore began working at DuPont in September 2010. Prior to
that time, he had been prescribed medicine for hypertension (high blood pressure)
for several years. Mr. Moore also had a history of intermittent cigarette smoking,
beginning in his teen years. Appellant testified her husband had smoked one pack
of cigarettes a day since 2004.
{¶6} Mr. Moore’s job at DuPont was on the Kapton manufacturing line. He
wore a suit referred to as “personal protective equipment.” The suit included a
respirator, hood, and boots that insulated him from high temperatures.
Specifically, Mr. Moore’s job entailed working in a sealed oven at a temperature of
120 degrees, threading film into production equipment. Other workers watched the
procedure from a glass observation window. While in the oven, the only
communication was by hand signals. The oven contained Dimethylacetamide and
other hazardous chemicals.1
{¶7} Appellant testified her husband was not sure the protective suits were
reliable, and he feared exposure to the chemicals. She also testified he was
concerned about being in the oven, the lack of ability to communicate while in the
oven, and the instances when co-workers would step on the air hose attached to his
protective suit as a “practical joke.” He was concerned that other workers did not
take safety seriously. Appellant identified Exhibit 2 of her deposition, a small
1
According to the website for the Centers for Disease Control and Prevention (CDC), the National Institute for
Occupational Safety and Health (NIOSH) pocket guide to hazardous chemicals (www.cdc.gov page last updated
February 13, 2015), “Dimethylacetamide” is a combustible colorless liquid that emits an ammonia-like smell.
Pickaway App. No. 15CA12 4
notebook her husband kept containing notes on topics such as the tasks he
performed at DuPont, the chemicals he was exposed to on a daily basis, and plant
safety protocols.
{¶8} Appellant testified to an incident which took place in April 2011. Her
husband called home sounding scared, and said he had “gotten dizzy” at work.
Medical personnel at DuPont took his blood pressure and reported it as “good.”
He was advised he was dehydrated and given Gatorade to drink.
{¶9} Appellant also testified regarding her husband’s last doctor
appointment, a few weeks before he passed. According to her testimony,
Appellant did not attend the appointment but Mr. Moore had seen his family doctor
and told her his blood pressure was “excellent.” After Moore’s death, the doctor
commented to Appellant that he had given Mr. Moore “the best checkup he ever
gave him.”
{¶10} Appellant also testified that approximately 10 days before her
husband’s death, there was an incident at work where a chemical was “sent
through the wrong line.” Mr. Moore and a co-worker had to shovel polymer 2 out
of a basement area. Appellant testified her husband was worried about exposure to
the chemical because they were not wearing their hazmat suits at the time. She did
not recall whether he showed any ill effects afterwards.
2
According to Merriam Webster’s online dictionary and Encyclopedia Britannia Company (Nov. 3, 2015), a
“polymer” is a chemical compound that is made of small molecules that are arranged in a simple repeating structure
to form a large molecule.
Pickaway App. No. 15CA12 5
{¶11} Appellant testified the last night her husband worked, he called her
around midnight for a brief conversation. The next thing she recalled is receiving a
call from DuPont employee Don Williams, who told her Moore had fallen, hit his
head, and had been taken to Berger Hospital. When Appellant arrived at the
hospital, she waited two hours before being taken in a room and told her husband
was dead.
{¶12} Appellant’s expert Dr. Newman testified he has a family practice. He
does not consider himself an expert in psychiatry, psychology, pathology,
cardiology, occupational medicine, cardiovascular disease, or the health effects of
occupational stress. He testified he has never conducted research concerning heart
disease, occupational stress or emotional stress. He has not conducted research
relating to possible risk factors for heart disease. Dr. Newman reviewed various
documents in order to render an opinion as to the cause of Mr. Moore’s heart
attack, including Mr. Moore’s death certificate, autopsy report, and Berger hospital
records. He also reviewed records from DuPont which included the incident
narrative, Occupational Safety and Health Administration (OSHA) report, and
Moore’s pre-employment physical. Dr. Newman testified he relied on Appellant to
obtain an individual background and history for Mr. Moore. Dr. Newman testified
the autopsy report noted Dennis Moore had sustained a heart attack 7-10 days prior
to his death at work.
Pickaway App. No. 15CA12 6
{¶13} On cross-examination, Dr. Newman testified he could not rule out
hypertension, smoking, elevated cholesterol levels, genetic factors and family
history as causing Moore’s heart attack. He testified the only evidence of stress
was obtained from Moore’s wife. Dr. Newman admitted he had no evidence of
what effect Moore’s work had on him; what physical demands were made on him
on the day he died; or that Moore had chest pain, discomfort, sweating, numbness,
or elevated body temperature on the day he died. Dr. Newman agreed it was “truly
speculative to assert that stress played a part in what happened on May 27, 2011.”
{¶14} DuPont filed a motion for summary judgment. Appellant filed a reply
to the motion for summary judgment. Attached to the reply was an affidavit of Dr.
Newman which supplemented his deposition testimony. On February 26, 2015,
the trial court granted DuPont’s motion for summary judgment. This timely appeal
followed.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO APPELLEE E.I. DUPONT DE NEMOURS AND
CO.”
STANDARD OF REVIEW
{¶15} When an appellate court reviews a trial court's summary judgment, the
appellate court conducts a de novo review. Ingram v. Conrad, 4th Dist. Athens No.
01CA36, 2001-Ohio-2631, *3. See, Grafton v. Ohio Edison Co., 77 Ohio St.3d
Pickaway App. No. 15CA12 7
102, 105, 671 N.E.2d 241(1996). Accordingly, an appellate court must
independently review the record to determine if summary judgment was
appropriate and need not defer to the trial court's decision. See, Brown v. Scioto
Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v.
Conley, 75 Ohio App.3d 409, 411-12, 599 N.E.2d 786 (1991). In determining
whether a trial court properly granted a motion for summary judgment, an
appellate court must review the standard for granting a motion for summary
judgment as set forth in Civ.R. 56, as well as the applicable law.
{¶16} Civ.R. 56(C) provides, in relevant part, as follows:
“* * * Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence in the pending case, and written
stipulations of fact, if any, timely filed in the action, 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. No evidence or stipulation
may be considered except as stated in this rule. A summary judgment
shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse
to the party against whom the motion for summary judgment is made,
that party being entitled to have the evidence or stipulation construed
most strongly in the party's favor.” Ingram, supra, at *4.
{¶17} Thus, a trial court may not grant a motion for summary judgment
unless the evidence before the court demonstrates that: (1) no genuine issue as to
any material fact remains to be litigated; (2) the moving party is entitled to
judgment as a matter of law; and (3) it appears from the evidence that reasonable
Pickaway App. No. 15CA12 8
minds can come to but one conclusion, and viewing such evidence most strongly in
favor of the nonmoving party, that conclusion is adverse to the party against whom
the motion for summary judgment is made. Id. See, Vahila v. Hall, 77 Ohio St.3d
421, 429-30, 674 N.E.2d 1164 (1997).
{¶18} In responding to a motion for summary judgment, the nonmoving
party may not rest on “unsupported allegations in the pleadings.” Ingram, supra, at
¶ 4, quoting Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375
N.E.2d 46 (1998). Rather, Civ.R. 56 requires the nonmoving party to respond with
competent evidence that demonstrates the existence of a genuine issue of material
fact. Ingram, supra. Specifically, Civ.R. 56(E) provides:
“* * *When a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party's pleadings, but the party's response,
by affidavit or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial. If the
party does not so respond, summary judgment, if appropriate, shall be
entered against the party.”
{¶19} Consequently, once the moving party satisfies its Civ.R. 56 burden,
the nonmoving party must demonstrate, by affidavit or by producing evidence of
the type listed in Civ.R. 56(C), that a genuine issue of material fact remains for
trial. Ingram, supra, at ¶ 4. A trial court may grant a properly supported motion
for summary judgment if the nonmoving party does not respond, by affidavit or as
otherwise provided in Civ.R. 56, with specific facts showing that there is a genuine
Pickaway App. No. 15CA12 9
issue for trial. Id. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996);
Jackson v. Alert Fire & Safety Equip., Inc., 58 Ohio St.3d 48, 52, 567 N.E.2d 1027
(1991).
{¶20} When reviewing a motion for summary judgment, a court must
construe all reasonable inferences that can be drawn from the evidentiary materials
in a light most favorable to the nonmoving party. Ingram, supra, at *5. See,
Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485, 696 N.E.2d 1044
(1998); Turner v. Turner, 67 Ohio St.3d 337, 341, 617 N.E.2d 1123 (1993).
Moreover, a court must take care not “to consider either ‘the quantum’ or the
‘superior credibility’ of evidence.” Ingram, supra, quoting McGee v. Goodyear
Atomic Corp., 103 Ohio App.3d 236, 242, 659 N.E.2d 317 (1995). As we stated in
McGee, 103 Ohio App.3d at 242-43, 659 N.E.2d 317:
“The purpose of summary judgment is not to try issues of fact, but
rather to determine whether triable issues of fact exist. * * * Thus, a
court should not pass upon the credibility of witnesses or weigh the
relative value of their testimony in rendering summary judgment.”
(Citation omitted.) See, also, Koeth v. Timesavers, Inc. (May 26,
2000), Geauga App. No. 99-G-2211, unreported (“It is not the
province of the trial court in a summary judgment exercise to either
weigh the evidence before it, or to accept one party's interpretations of
that evidence in toto.”).
LEGAL ANALYSIS
{¶21} Chapters 4121 and 4123 of the Ohio Revised Code set forth the
statutory law pertaining to the Ohio Industrial Commission and the Bureau of
Pickaway App. No. 15CA12 10
Workers Compensation. Appellant’s action for workers compensation benefits in
the Pickaway County Court of Common Pleas was brought pursuant to R.C.
4123.512(C). R.C. 4123.01(C) provides that: "Injury" includes any injury, whether
caused by external accidental means or accidental in character and result, received
in the course of, and arising out of, the injured employee's employment. In Ryan v.
Connor, 28 Ohio St.3d 406, 503 N.E.2d 1379 (1986), the Supreme Court of Ohio
held that a physical injury occasioned solely by mental or emotional stress,
received in the course of, and arising out of, an injured employee's employment, is
compensable under R.C. 4123.01(C). Id. at paragraph 1 of the syllabus. The Ryan
court adopted a test developed by the New York Court of Appeals and which had
been effectively applied by other jurisdictions. Ryan further held that in order for a
stress-related injury to be compensable, the claimant must show that the injury
resulted from “ ‘greater emotional strain or tension than that to which all workers
are occasionally subjected * * *.’ ” Wilson v. Tippetts-Abbott-McCarthy-Stratton,
22 A.D.2d 720, 721, 253 N.Y.S.2d 149, 150 (1964). See, also, Santacroce v. 40 W.
20th St., Inc., 10 N.Y.2d 855, 222 N.Y.S.2d 689, 178 N.E.2d 912 (1961). Ryan,
supra, at paragraph 2 of the syllabus.
{¶22} As established in Ryan, once a claimant has met the first test, he still
must establish that the stress to which he (or claimant's decedent) was subjected in
his employment was, in fact, the medical cause of his injury. In this regard, the
Pickaway App. No. 15CA12 11
claimant must show a substantial causal relationship between the stress and the
injury for which compensation is sought. The claimant therefore must “show by a
preponderance of the evidence, medical or otherwise, * * * that a direct or
proximate causal relationship existed between * * * [the stress] and his harm or
disability,” Fox v. Indus. Comm., 162 Ohio St. 569, 125 N.E.2d 1 (1995),
paragraph 1 of the syllabus; or, when death benefits are sought, that the claimant's
decedent's death was “accelerated by a substantial period of time as a direct and
proximate result of the * * * [stress].” McKee v. Electric Auto-Lite Co., 168 Ohio
St. 77, 151 N.E.2d 540 (1958), syllabus. Ryan, supra, at paragraph 3 of the
syllabus. “[T]he factual issue of causal relationship is generally for the medical
experts and the triers of fact,” and “analysis must proceed on a case-by-case basis
* * *,” Ryan, supra, at *3, quoting Village v. General Motors Corp, 15 Ohio St.3d
129, 136, 472 N.E.2d 1079 (1984).
{¶23} In the case at bar, Appellant argues that the trial court erred in
granting DuPont’s motion for summary judgment because a genuine issue of
material fact remains as to whether Dennis Moore’s heart attack was due to
unusual or extreme workplace stress. Appellant points out that Dr. Newman’s
affidavit statements and his deposition testimony clearly raise questions whether
Moore’s death was caused or accelerated by the stress of his employment.
Appellant asserts that the trial court improperly raised her burden to require her to
Pickaway App. No. 15CA12 12
establish that workplace stress was the sole cause of her husband’s heart attack.
Appellant contends that the trial court ignored Dr. Newman’s opinion, to a
reasonable degree of medical certainty that “* * * the death of Dennis P. Moore
was accelerated by a substantial period of time as a direct and proximate result of
his workplace stress,” and instead relied on Dr. Newman’s cross-examination
testimony set forth below.
{¶24} Appellee counters that Appellant failed to meet either of the Ryan
requirements. DuPont counters that Appellant presented no evidence in the trial
court that her husband was subject to “more extreme stress at his job than other
workers occasionally experience at their jobs.” Furthermore, Appellee argues
since Appellant did not address this requirement in her brief, she has waived any
claim of error and the trial court’s ruling should be affirmed despite whether or not
she satisfied the second Ryan requirement. DuPont characterizes the trial court’s
lack of discussion of the first requirement as properly holding that Appellant failed
to present evidence on the first requirement.
{¶25} Regarding the second Ryan requirement, DuPont argues there was no
evidence that extreme or unusual workplace stress was a proximate cause of Mr.
Pickaway App. No. 15CA12 13
Moore’s death. DuPont points out Dr. Newman agreed in his deposition testimony
that “it’s truly speculative to assert * * * that stress played any part.”3
{¶26} The trial court concluded in its final judgment entry appealed from:
“[A]fter reviewing all the evidence submitted in support of the parties’
respective positions, this Court finds that without evidence
establishing general causation between work-place stress and the
decedent’s myocardial infarction, Plaintiff cannot establish the
proximate cause of Mr. Moore’s death. Plaintiff’s failure to prove
either one of the two factual requirements set forth in Ryan v. Connor
is fatal to her claim.”
{¶27} We have conducted, as required, a de novo review of this record. A
reviewing court passes upon the correctness of a judgment and not reasons for a
judgment. Halley v. Grant Trucking, Inc., supra, at ¶ 3 (internal citations omitted).
Construing the evidence most strongly in favor of the non-moving party, we find
no genuine issues of material fact. For the reasons which will follow, we find that
Appellant failed to establish the proximate cause of her husband’s heart attack and
death. Here, implicit in the trial court’s decision is the acknowledgement that
Appellant established the first Ryan requirement, unusual workplace stress. We
3
In her reply brief, Appellant argues that DuPont took the trial court’s decision out of context and she did not waive
the issue of the unusual degree of workplace stress. Appellant contends that in refraining to address the issue of the
first Ryan requirement, the trial court appeared to concede that DuPont’s arguments on this issue, during motion
practice, were without merit and the sole issue was causation. Appellant cites Powell v. Grant Medical Center,
2002-Ohio-443, and Paugh v. Hanks, 6 Ohio St. 3d 72 (1983), which held that a plaintiff can submit the testimony
of lay witnesses as evidence of unusual workplace stress. In support, Appellant points to: (1) the affidavit attached
to her reply to Appellees’ motion for summary judgment which described her personal observations of marked
changes to her husband’s emotional makeup after taking the job at DuPont; (2) the notebook submitted as an exhibit
attached to her affidavit which contained her husband’s notes showing his preoccupation with safety procedures
and danger; and (3) her lay testimony that he expressed his fears and anxiety to her. Because we find that Appellant
did not establish proximate cause, we decline to consider these arguments.
Pickaway App. No. 15CA12 14
agree that she failed to establish the second requirement, proximate cause, which is
fatal to her claim.
{¶28} To receive death benefits under the Workers' Compensation Act, a
claimant must establish that the employee's injury was the proximate cause of his
death. Click v. S. Ohio Correctional Facility, 152 Ohio App.3d 560, 2003-Ohio-
2208, 789 N.E.2d 643, (4th Dist.), ¶ 8; Murphy v. Carrollton Mfg. Co., 61 Ohio
St.3d 585, 587, 575 N.E.2d 828 (1991), citing Aiken v. Indus. Comm., 143 Ohio St.
113, 53 N.E.2d 1018 (1944). The definition of and principles that govern the
determination of proximate cause in the field of torts are equally applicable in
workers' compensation cases. Oswald v. Connor, 16 Ohio St.3d 38, 42, 476 N.E.2d
658, (1985), citing Aiken, supra. “[T]he proximate cause of an event is that which
in a natural and continuous sequence, unbroken by any new, independent cause,
produces that event and without which that event would not have occurred.” Aiken,
143 Ohio St. at 117, 53 N.E.2d 1018. In general tort or injury cases, proximate
cause issues are seldom resolvable by summary judgment. Halley v. Grant
Trucking, Inc., 67 Ohio App.3d 357, 587 N.E.2d 305, (4th Dist. 1990), citing
Whiteleather v. Yosowitz, 10 Ohio App. 3d 272, 274, 461 N.E.2d 1331, 1334-1335
(1983).
{¶29} In Click v. S. Ohio Correctional Facility, supra, Mrs. Click contended
she was entitled to receive death benefits because her husband’s previously
Pickaway App. No. 15CA12 15
allowed work-related injury caused his heart attack. While employed as a
correctional officer, Mr. Click had suffered bruising, sprain and neuralgia in the
right lower extremity, and chronic depression. BWC allowed claims for these
injuries. However, Mr. Click filed a claim for permanent total disability benefits
which was denied by the Industrial Commission. According to his wife’s
testimony, Mr. Click became very distressed upon learning of the rejection of his
claim, suffered a heart attack the next day, and died.
{¶30} Mrs. Click then filed a claim with BWC for death benefits. The
Industrial Commission denied this claim and she appealed to the Scioto County
Court of Common Pleas. Following motion practice, the trial court granted the
summary judgment of appellees. Mrs. Click appealed. Upon our review of the
decision, we found that the affidavit of her husband’s psychiatrist, which Mrs.
Click relied on to establish causation, was insufficient to overcome appellees’
motions for summary judgment. We observed at ¶ 12:
“When an expert's affidavit is offered to support or oppose summary
judgment, the affidavit must comply with Civ.R. 56(E) as well as
Evid.R. 702 through 705, which govern expert opinion testimony.
Lawson v. Song (Sept. 23, 1997), Scioto App. No. 97CA2480, 1997
WL 596293. See, also, Naugle v. Campbell Soup Co. (June 20, 1986),
Henry App. No. 7-84-24, 1986 WL 7312; Miltenberger v. Exco Co.
(Nov. 23, 1998), Butler App. No. CA98-04-087, 1998 WL 812910.
Under Civ.R. 56(E), an affidavit must be based on personal
knowledge, set forth facts that would be admissible in evidence, and
show that the affiant is competent to testify as to the matter. In order
to be competent to testify about a matter, an expert witness must have
sufficient knowledge, skill, experience, training, and education in the
Pickaway App. No. 15CA12 16
subject matter of his or her testimony to satisfy Evid.R. 702. See
Evid.R. 702(B); Ratliff v. Morehead (May 19, 1998), Scioto App. No.
97CA2505, 1998 WL 254031.”
{¶31} We held:
“The only evidence offered to establish a causal connection between
Mr. Click's previously allowed work-related injury and his heart
attack is the affidavit of Dr. Borders, Mr. Click's psychiatrist. In his
affidavit, Dr. Borders indicates that Mr. Click's previously allowed
injury contributed to his death. However, Dr. Borders's affidavit does
not affirmatively establish any specialized training, skill, experience,
or knowledge regarding heart attacks. While Dr. Borders is a licensed
medical doctor, “[a] mere showing that the physician is licensed does
not always satisfy the requirement that the witness be ‘qualified by
specialized knowledge, skill, experience, training, or education
regarding the subject matter of testimony.’ ” Ratliff, quoting Evid.R.
702. Dr. Borders's affidavit indicates that he possesses specialized
knowledge, skill, experience, training, or education in the field of
psychiatry. However, the affidavit does not affirmatively establish
that Dr. Borders is qualified to offer an opinion above and beyond Mr.
Click's psychiatric treatment.”
{¶32} In the case sub judice, Dr. Newman testified as follows:
Q: Do you consider yourself an expert in the epidemiology,
pathology or morbidity of cardiovascular disease?
A: No.
Q: You’ve never conducted any medical or scientific
research on the subject of occupational stress; is that correct?
A: Yes.
{¶33} Dr. Newman’s affidavit stated at paragraph 1:
1. I am a licensed Ohio medical doctor and have held my Ohio
license since 1973.
Pickaway App. No. 15CA12 17
2. As a physician, I provide care and treatment for patients
diagnosed with heart disease and/or heart attack.
{¶34} As in Click, supra, Dr. Newman is a licensed medical doctor but his
affidavit does not satisfy the requirement of Evid.R. 702 that he must have
specialized training, skill, knowledge, or experience regarding heart attacks. Like
many family physicians, Dr. Newman may in fact treat patients diagnosed with
heart disease and/or heart attack and/or various other medical conditions such as
the common cold, flu, seasonal allergies, minor injuries, etc., but he likely refers
his patients with heart disease, heart attack, or other serious conditions such as
cancer, thyroid problems, intestinal issues, kidney problems, etc., to specialists
such as cardiologists, oncologists, endocrinologists, gastroenterologists, and
nephrologists. In our view, treating patients that suffer heart disease and/or heart
attack is not the same as treating patients specifically for those conditions. Dr.
Newman’s affidavit does not indicate he treats his patients for the conditions of
heart disease and/or heart attack. As such, his affidavit does not affirmatively
establish that he is qualified to render an opinion on the cause of Mr. Moore’s heart
attack.
{¶35} Furthermore, assuming arguendo that Dr. Newman was
qualified as an expert under the Rules of Evidence, his testimony does not
establish direct and proximate cause. Dr. Newman testified as follows in his
deposition during cross-examination:
Pickaway App. No. 15CA12 18
Q: So that- - because you could not rule out, for example,
smoking as being the cause of his myocardial infarction, the fact is
Mr. Moore could just have easily have had a myocardial infarction if
he was - - had a history of coronary disease, was a smoker or had high
blood pressure even without the stress?
A: Yes.
Q: Well, what’s the scientific basis that underlies the
contention and fact that the stress had some role to play in this case?
A: I guess it’s commonly known that stress increases
adrenaline, and we talked about that; that you’re going to get an
increased heart rate, potentially making the heart an ineffective pump,
which would cause just a generalized decrease in oxygen and nutrients
throughout the body; that stress would increase the stickiness of
platelets, which would be the first cells to cause problems with a
blood clot or a shower of emboli. Those would be the major factors.
That’s why people take aspirin, to cut down on platelet stickiness.
Q: Okay.
A: And the stress increases the stickiness.
Q: But in terms of this May 27, 2011 event with Mr. Moore-
A: Uh-huh.
Q: - -it’s truly speculative to assert that this actually
happened in his case, that the stress played any part in it, isn’t it?
A: Yes.
Yet, Dr. Newman’s affidavit states in pertinent part:
7. It is my opinion that the death of Dennis Moore was accelerated
by a substantial period of time as a direct and proximate result of his
workplace stress.
Pickaway App. No. 15CA12 19
8. Although Dennis P. Moore suffered from hypertension, high
cholesterol, a history of smoking and a possible family history of heart
disease, his high level of work-related stress was also a substantial
causative factor for his heart attack.
9. This opinion, as well as all other opinions expressed herein, are
expressed within a reasonable degree of medical certainty and
probability.
{¶36} In Aiken v. Industrial Commission of Ohio, supra, the court held that
the evidence “must be such as to remove the case from the realm of speculation
and conjecture; there must be competent evidence tending to show a proximate
causal connection * * *.” Appellant’s own expert agreed in his deposition
testimony that it is “truly speculative to assert that this actually happened in this
case, that stress played any part” in Mr. Moore’s heart attack. Then Appellant
submitted an affidavit from Dr. Newman which stated that Mr. Moore’s high level
of stress “was also a substantial causative factor for his heart attack.” However, at
no time, neither in his deposition testimony nor in his affidavit, was Dr. Newman
able to definitively state that Mr. Moore would not have suffered the heart attack
“but for” the alleged unusual workplace stress. As such, we cannot find by a
preponderance of the evidence that a direct or proximate causal relationship existed
between the alleged stress and the heart attack.
{¶37} While we recognize the Moore family has suffered a tragic loss, the
evidence put forth in this record does not show that Dr. Newman was qualified to
render an opinion as to the cause of Mr. Moore’s heart attack and subsequent
Pickaway App. No. 15CA12 20
death. Moreover, Dr. Newman’s opinion did not remove the proximate cause issue
from the realm of speculation. For the foregoing reasons, we find no merit to
Appellant’s argument. As such, we overrule the sole assignment of error and
affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Pickaway App. No. 15CA12 21
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
It is ordered that a special mandate issue out of this Court directing the
Pickaway County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date
of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment Only.
For the Court,
BY: ______________________________
Matthew W. McFarland,
Administrative Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.