Recent Developments from Around the States

Brush Wellman Inc.'s facility in Elmore, OH, manufactures, among other products, a beryllium alloy used for industrial purposes. Seven workers exposed to the alloy from the 1950s to the 1990s alleged that Brush Wellman “created a toxic environment,” as it did not warn employees of the dangers of beryllium exposure and did not sufficiently monitor conditions in the plant. The plaintiffs sued, asking that the court require the company to establish a screening program for beryllium-related medical conditions. The plaintiffs also sought punitive damages. The trial court denied class certification, finding that the plaintiffs were not primarily interested in injunctive relief, as would be required by Ohio Rule of Civil Procedure 23(B)(2). The trial court also found that the proposed class was not “cohesive,” a requirement under Rule 23(B)(2). That rule provides that a class action may be maintained only if, among other things, “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

On appeal, the Ohio Supreme Court agreed with the trial court's initial determinations, holding that the proposed class's “lack of cohesiveness is fatal.” As for the lower court's determination of the form of relief sought by the plaintiffs in asking for a screening program, the high court held that the key was whether a court was itself involved in monitoring a court-sponsored program. If a plaintiff were to demand from a defendant a sum of money that may or may not be used to establish a medical monitoring program, the relief sought was not injunctive in nature. On the other hand, if a plaintiff asked that a court itself establish a monitoring program supervised by court-appointed and court-supervised officials, the relief is injunctive as required under Rule 23(B)(2).

The court concluded that, as the record demonstrated, the seven employees were not seeking court-supervised medical monitoring, and that the trial court's rulings on that issue were proper.

WEST VIRGINIA

Laid-off Employee Entitled to Present Evidence of Age Bias Against Other Workers

Ruling on an issue of first impression in the state, the West Virginia Supreme Court has held that a laid-off welder was entitled to a new trial to afford the plaintiff to present testimony from other employees regarding age bias that they allegedly experienced at the hands of the employer-defendant. McKenzie v. Carroll Int'l Corp. d/b/a Gaylord East and/or Keyser Stainless Indus. Park, 2004 WL 2579301 (W. Va. Nov. 12).

Kenneth McKenzie started working for a predecessor of Carroll in 1982. He was hired at age 42. In early 1995, McKenzie injured his hand while at work and had to undergo surgery. Although McKenzie attempted to report to work thereafter, the company informed him that he would not be allowed to return until he was fully recovered. McKenzie later underwent a second surgery, and was finally allowed to return to work in May 1996. McKenzie and eight other workers were laid off later that year. McKenzie initially responded by filing a grievance, alleging that the layoffs were not made on the basis of seniority. After filing the grievance, McKenzie learned that the union contract contained no seniority provision, so McKenzie filed a charge of age discrimination with the West Virginia Human Rights Commission, which issued a “no probable cause” finding. McKenzie timely sued in state court in 1998, alleging that he was laid off because of his age. He also alleged that the company did not recall him on account of his age, his perceived disability, and filing of a workers' compensation claim. When the case went to trial, the company's attorneys filed in limine motions to exclude the testimony of older workers who felt the company discriminated against them on the basis of age. Thus, at trial, McKenzie was limited to presenting raw statistical data to establish a history of discrimination.

The West Virginia Supreme Court held that the trial court's ruling was in error. “[W]e agree with those federal courts that have found that raw data may be supplemented with testimony by employees or former employees who believe they were victims of employment discrimination,” the court noted. “Therefore, we hold that in an action brought for employment discrimination, a plaintiff may call witnesses to testify specifically about any incident of employment discrimination that the witnesses believe the defendant perpetrated against them, so long as the testimony is relevant to the type of employment discrimination that the plaintiff has alleged.”

OHIO

Employees Exposed to Beryllium May Not Proceed As Class

A group of former employees exposed to toxic beryllium at a Brush Wellman Inc. plant in Ohio may not pursue their claims against the company as a class, the Ohio Supreme Court has held in a 5-2 decision. Wilson v. Brush Wellman Inc., 817 N.E.2d 59 (Ohio Nov. 17).

Brush Wellman Inc.'s facility in Elmore, OH, manufactures, among other products, a beryllium alloy used for industrial purposes. Seven workers exposed to the alloy from the 1950s to the 1990s alleged that Brush Wellman “created a toxic environment,” as it did not warn employees of the dangers of beryllium exposure and did not sufficiently monitor conditions in the plant. The plaintiffs sued, asking that the court require the company to establish a screening program for beryllium-related medical conditions. The plaintiffs also sought punitive damages. The trial court denied class certification, finding that the plaintiffs were not primarily interested in injunctive relief, as would be required by Ohio Rule of Civil Procedure 23(B)(2). The trial court also found that the proposed class was not “cohesive,” a requirement under Rule 23(B)(2). That rule provides that a class action may be maintained only if, among other things, “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

On appeal, the Ohio Supreme Court agreed with the trial court's initial determinations, holding that the proposed class's “lack of cohesiveness is fatal.” As for the lower court's determination of the form of relief sought by the plaintiffs in asking for a screening program, the high court held that the key was whether a court was itself involved in monitoring a court-sponsored program. If a plaintiff were to demand from a defendant a sum of money that may or may not be used to establish a medical monitoring program, the relief sought was not injunctive in nature. On the other hand, if a plaintiff asked that a court itself establish a monitoring program supervised by court-appointed and court-supervised officials, the relief is injunctive as required under Rule 23(B)(2).

The court concluded that, as the record demonstrated, the seven employees were not seeking court-supervised medical monitoring, and that the trial court's rulings on that issue were proper.

WEST VIRGINIA

Laid-off Employee Entitled to Present Evidence of Age Bias Against Other Workers

Ruling on an issue of first impression in the state, the West Virginia Supreme Court has held that a laid-off welder was entitled to a new trial to afford the plaintiff to present testimony from other employees regarding age bias that they allegedly experienced at the hands of the employer-defendant. McKenzie v. Carroll Int'l Corp. d/b/a Gaylord East and/or Keyser Stainless Indus. Park, 2004 WL 2579301 (W. Va. Nov. 12).

Kenneth McKenzie started working for a predecessor of Carroll in 1982. He was hired at age 42. In early 1995, McKenzie injured his hand while at work and had to undergo surgery. Although McKenzie attempted to report to work thereafter, the company informed him that he would not be allowed to return until he was fully recovered. McKenzie later underwent a second surgery, and was finally allowed to return to work in May 1996. McKenzie and eight other workers were laid off later that year. McKenzie initially responded by filing a grievance, alleging that the layoffs were not made on the basis of seniority. After filing the grievance, McKenzie learned that the union contract contained no seniority provision, so McKenzie filed a charge of age discrimination with the West Virginia Human Rights Commission, which issued a “no probable cause” finding. McKenzie timely sued in state court in 1998, alleging that he was laid off because of his age. He also alleged that the company did not recall him on account of his age, his perceived disability, and filing of a workers' compensation claim. When the case went to trial, the company's attorneys filed in limine motions to exclude the testimony of older workers who felt the company discriminated against them on the basis of age. Thus, at trial, McKenzie was limited to presenting raw statistical data to establish a history of discrimination.

The West Virginia Supreme Court held that the trial court's ruling was in error. “[W]e agree with those federal courts that have found that raw data may be supplemented with testimony by employees or former employees who believe they were victims of employment discrimination,” the court noted. “Therefore, we hold that in an action brought for employment discrimination, a plaintiff may call witnesses to testify specifically about any incident of employment discrimination that the witnesses believe the defendant perpetrated against them, so long as the testimony is relevant to the type of employment discrimination that the plaintiff has alleged.”