COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60620 JUDY VOLPE : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ROUX LABORATORIES, INC. : ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 169893 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee Roux Laboratories, Inc.: MAURICE L. HELLER, ESQ. JANET H. SMITH, ESQ. JOEL LEVIN, ESQ. ARTER & HADDEN NURENBERG, PLEVIN, HELLER 1100 Huntington Bldg. & MCCARTHY CO., L.P.A. Cleveland, Ohio 44115 1370 Ontario Street - First Floor Cleveland, Ohio 44113-1792 For Defendant-Appellee Zotos International, Inc. JEFFREY M. EMBLETON, ESQ. ROBERT E. BLACKHAM, ESQ. MANSOUR, GAVIN, GERLACK & MANOS CO., L.P.A. 55 Public Square, Suite 2150 Cleveland, Ohio 44113-1994 - 1 - DYKE, J.: Appellant, Judy Volpe, brought suit in 1989 against appellees, Roux Laboratories, Inc. and Zotos International, Inc., for damages sustained as a result of exposure to products manufactured by appellees and used by appellant in her job as a hairdresser for Hair Care Harmony. Appellees' motions for summary judgment alleging that the complaint was barred by the two-year statute of limitation of R.C. 2305.10 were granted. On appeal appellant assigns the following error for review. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING THE MOTIONS OF DEFENDANTS, ROUX LABORATORIES, INC. AND ZOTOS INTERNATIONAL INC., FOR SUMMARY JUDGMENT. Appellees' motions for summary judgment argued that appellant began experiencing symptoms from exposure to appellees' products as early at 1981 or 1982 and was first diagnosed as having a condition attributable to that exposure as early as 1986. When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant, for purposes of the statute of limitations contained in R.C. 2305.10. O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St. 3d 84 (at paragraph two of the syllabus). In the instant case appellees contend that appellant knew about her reaction to appellees' - 2 - products in 1986 when she was told by a doctor that the stuffiness, headache, burning throat and loss of voice was caused by exposure to appellees' products. However, appellant argues that her claim is not merely for that reaction and her inability to continue work as a hairdresser but for a disease (caused by her exposure to the products) which makes her react the same way to other chemicals and almost entirely eliminates her work and social activities. A review of the complaint supports appellant's contention. The complaint states as follows (in pertinent part): 3. The plaintiff, Judy Volpe, within two years of filing of this Complaint, discovered that she sustained serious and permanent injuries resulting from the wrongful conduct of the defendants including, but not limited to, exposure to hair permanent wave solution, hair coloring products and related hair treatment products (hereinafter referred to as "Hair Products"). ... 5. As a direct and proximate result of the combined, concurrent and joint negligence of the defen- dants, the plaintiff sustained serious and permanent injuries including but not limited to occupational airway disease. ... 7. As a further result of the negligence of the defendants, the plaintiff was unable to engage in her usual occupation for a period - 3 - of time, sustaining a loss of income. 8. As a further result of the negligence of the defendants, plain-tiff's ability to live and work free from pain and discomfort has been permanently impaired. (Emphasis added.) The complaint is not limited to the damage sustained by the initial reaction and inability to work as a hairdresser. It alleges that the exposure caused occupational airway disease and permanently impaired appellant's ability to live and work free from pain and discomfort. Appellees' motions assume that the injury alleged is the reaction to appellees' products and the fact that to avoid them appellant must forego working as a hairdresser. However, the complaint alleges a broader claim; the appellant maintains that the exposure not only caused a reaction, which necessitated medical treatment and cessation of her employment as a hairdresser, but caused a disease which affects not only her work but her ability to simply live. It was appellees' burden to show that the cause of action arose more than two years before the complaint was filed in 1989. Appellees focused on the reaction to the products and proved, by quoting appellant's deposition, that she knew in 1986 that the reaction was due to the appellees' products. (Although she had less serious symptoms earlier she did not know the cause until 1986. Appellant's deposition at p. 37, lines 2-3 and 23-24; p. 91, lines 2-8; and p. 111, lines 20-21.) - 4 - After leaving her employment as a hairdresser appellant tried a number of jobs, but she was unable to maintain employment and her social life was disrupted when she began reacting in the same way to other chemicals in common products as she had to appellees' products. In 1987, she was told for the first time that the exposure to the products of appellees had caused a disease that caused that reaction to other chemicals. (Appellant's deposition at p. 55, lines 2-3; p. 91, lines 2-8; p. 120, lines 17-25; and p. 120, lines 1-4.) Appellant stated as follows: They told me I was getting a reaction to the chemicals I was working with. My Workman's Comp. case was not accepted, if you want to say, until -- because nobody every gave a diagnosis, nobody ever knew what I had until Dr. Schwartz examined me and gave them a diagnosis. That's when my Workman's Comp. claim went through in, I believe, December of 88. I mean until then, I knew it was work related, but I had no idea, you know, what I had. All I knew is that I couldn't go back to work. I couldn't work with those chemicals. Appellant had minor problems in 1981 or 1982 from what she thought was a cold and was diagnosed as having a sinus infection. In 1986 she had a severe immediate reaction and was diagnosed as having had a reaction to appellees' products. She left work as a hairdresser but began to experience the same reaction to other products, even in people's homes. In 1987, less than two years - 5 - before the complaint was filed, she was diagnosed as having a disease that causes that reaction to many products (not just appellees'). In 1987 she knew for the first time of the existence of that disease and the fact that exposure to appellees' products caused it. Appellant's cause of action arose in 1987 and is not barred by R.C. 2305.10. The motions for summary judgment were improperly granted. Judgment reversed and cause remanded to the trial court. - 6 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees her costs herein. It is ordered that a special mandate be sent to said court 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. DAVID T. MATIA, C.J., CONCURS IN JUDGMENT ONLY KRUPANSKY, J., DISSENTING (SEE ATTACHED DISSENTING OPINION) ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60620 : JUDY VOLPE : : : DISSENTING Plaintiff-appellant : : OPINION vs. : : : ROUX LABORATORIES, INC., ET AL. : : : Defendant-appellees : : DATE: OCTOBER 8, 1992 KRUPANSKY, J., DISSENTING: I must respectfully dissent from the majority opinion for the reason that summary judgment was properly granted to appellees herein. A reasonable person would have known an injury traceable to appellees' products occurred in 1986; the fact that a name, i.e., "hyperreactive airways disease," was not given to appellant's medical condition until November 1987 does not change the fact that appellant was put on notice of the injury in 1986. The case law requires no diagnosis; it requires only that a plaintiff knows or in the exercise of reasonable diligence should have known that she had been injured by the conduct of defendants - 8 - for the purposes of the statute of limitations contained in R.C. 2305.10. Therefore, since appellant's complaint was untimely filed pursuant to R.C. 2305.10, there remained no issues of material fact in the case sub judice and appellees were entitled to summary judgment. It is helpful to review the facts of the case in order to better understand the issue presented. Appellant became a licensed hairdresser in 1966. Subsequently, she worked at various salons, eventually becoming employed in 1981 at Hair Care Harmony in Great Northern Mall. At about this time, appellant first began to use "Fanci-Tone Creme Hair Tint," a product manufactured by appellee Roux Laboratories, and permanent wave products manufactured by appellee Zotos. Also about this time, appellant began to develop repeated respiratory ailments she attributed to "colds." From the record in the case sub judice, the following facts are undisputed: 1) on May 29, 1986, while applying appellee Roux Laboratories' hair tint solution to a customer, appellant developed an immediate reaction to the solution, including hoarseness and a burning sensation in her throat; 2) the next day, May 30, 1986, while applying appellee Zotos' permanent wave product, appellant experienced the same reaction; 3) that same day, appellant sought medical attention for the problem and was informed by the doctor that she was experiencing a "chemical reaction" to the materials in her workplace, she should "find - 9 - another line of work," and she should consult an allergist; 4) thereafter, appellant did not return to work at Hair Care Harmony; 5) four days later, on June 3, 1986, appellant consulted an allergist, who told her she was getting a "reaction" to the specific (i.e. appellees') products appellant mentioned; 6) on June 26, 1986, appellant consulted a specialist, who informed her she was reacting to the permanent wave solution and the hair dye; 7) appellant thereafter sought other employment unrelated to hairdressing, but was experiencing the same allergic reaction, i.e., "hoarseness" and a "burning sensation" in her throat, upon exposure to other chemicals; 8) on September 4, 1986, appellant filed a workers' compensation claim stating she was unable to work due to her reactions to chemicals in the workplace; 9) appellant continued to experience the same respiratory symptoms upon exposure to other chemicals outside the workplace; 10) eventually the Bureau of Workers' Compensation apparently recommended in October 1987 appellant see a Dr. Schwartz, an allergist who, on November 8, 1987, diagnosed appellant as suffering from hyper-reactive airways disease, a complication which related to appellant's original allergic reaction from exposure to appellees' products at the hair salon. On May 18, 1989, appellant filed suit against appellees alleging negligence, strict liability in tort, and breach of express and implied warranties. Appellees answered, denying the - 10 - allegations and setting up affirmative defenses, including the statute of limitations. Discovery was pursued in the action; appellant's deposition and a medical and chemical report were filed with the trial court. On May 31, 1990 and June 4, 1990, respectively, appellees Zotos and Roux Laboratories filed motions for summary judgment pursuant to Civ. R. 56. Appellees based their motions upon R.C. 2305.10, the applicable statute of limitations, and both attached to their briefs in support of the motions relevant portions of appellant's deposition testimony. Appellant filed a brief in opposition to appellees' motions; however, she attached no evidentiary material thereto. Appellee Zotos filed a reply, and appellant then filed a surreply; however, to these briefs, the parties again attached no evidentiary materials. Thereafter, on September 17, 1990, in two separate judgment entries and without opinion, the trial court granted appellees' motions for summary judgment. Appellant argues, and the majority agrees, summary judgment was improper because there remained a genuine issue of fact concerning when appellant "reasonably discovered the extent and seriousness of her injury so as to begin the running of the statute of limitations." However, I find appellant's argument unpersua-sive. - 11 - Civ. R. 56(C) states in pertinent part as follows: (C) Motion and Proceedings Thereon. *** A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reason- able minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. Furthermore, Civ. R. 56(E) states the following: (E) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. 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 his pleadings, but his 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 he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added.) The burden of establishing that material facts are not in dispute and that no genuine issue of fact exists is on the party moving for summary judgment. Harless v. Willis Day Warehousing (1978), 54 Ohio St. 2d 64. In the case sub judice, appellant contended she "discovered" her injury in November 1987, when she was first diagnosed with - 12 - hyperreactive airways disease. Appellees, on the other hand, argued appellant's cause of action accrued in late May and early June 1986, when appellant was informed by three different physicians that she was having a reaction to chemicals in her workplace, including specifically, appellees' products. In ruling on appellees' motions, the trial court had before it only appellant's deposition testimony and two reports, one medical and one chemical. The applicable statute of limitations to the cause of action in the case sub judice is R.C. 2305.10, which states as follows: 2305.10 Bodily injury or injury to personal property. An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose. Interpreting this statute, the Ohio Supreme Court stated the following: 1. Absent legislative definition, it is left to the judiciary to determine when a cause "arose" for purposes of statutes of limitations. 2. When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant, for purpose of the statute of limitations contained in R.C. 2305.10. (Emphasis added.) O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St. 3d 84, paragraphs 1 and 2 of the syllabus. Thus, the court in - 13 - O'Stricker adopted a "discovery rule" with regard to actions brought for bodily injury. The court in Viock v. Stowe-Woodard Co. (1983), 13 Ohio App.3d 7, explained the "discovery rule" articulated in O'Stricker in the following manner: This "discovery rule," as articulated by the Supreme Court in O'Stricker, supra, is a two-pronged rule requiring both prongs to be satisfied before the statute of limitations begins to run. First, a plaintiff must know or reasonably should have known that he has been injured; and second, a plaintiff must know or reasonably should have known that his injury was proximately caused by conduct of the defendant. Upon actual knowledge or reasonable cause shown to have knowledge of these factors imputed as a matter of law, the limitation period in R.C. 2305.10 begins to run. This articulation of the "discovery rule," we note, is consistent, congruent, and harmonious with articulations in other jurisdictions which have adopted and applied the discovery rule. See, e.g., Schiele v. Hobart Corp. ((Ore. 1978), 587 P. 2d 1010, 1014 ("The statute of limitations begins to run when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition."). (Citation omitted.) (Emphasis added.) Appellant relies on the cases of Moldovan v. Lear Siegler, Inc. (N.D.Ohio 1987), 672 F.Supp. 1023 and Harper v. Eli Lilly & Co. (N.D.Ohio 1983), 572 F.Supp. 1359 to support her argument that she was not aware of her actual "injury," i.e., hyperreactive airways disease, until the diagnosis made in - 14 - 1 November 1987, because the seriousness of her condition was not until then known to her. She has apparently convinced the majority; however, I find her reliance on these cases misplaced. In Moldovan, supra, plaintiff was an employee who alleged in his complaint filed in May 1986 in Federal District Court that while working at defendant company he was exposed to dangerous chemicals which caused his injury. Defendants filed a motion for summary judgment on the basis that plaintiff's cause of action was barred by the Ohio statute of limitations, R.C. 2305.10. Defendants' evidence in support of their motion consisted solely of plaintiff's workers' compensation claim form, in which plaintiff stated that he first notice his symptoms in 1978; 2 however, the diagnosis was not made until March 1986. The court held that the above evidence was insufficient to grant defendants' motion for summary judgment since it had the duty to view the evidence in a light most favorable to the nonmoving party. The case sub judice is therefore distinguishable from Moldovan on the evidence submitted by appellees in the trial court in support of their Civ. R. 56 motions. Appellant, in her deposition, clearly states that when she noticed the symptoms in 1 Appellant in her reply brief to this court defines this as "a syndrome in which an individual reacts to a wide range of substances based on the earlier exposure to another substance." 2 Nowhere in Moldovan does the court indicate what disease or injury plaintiff incurred as a result of his exposure to the chemicals. - 15 - late May and early June 1986, she consulted three different physicians and was told by each that she had developed a significant reaction to appellees' products and should seek other employment. Significantly, thereafter, appellant began experiencing the same allergic reaction to other chemicals in other places of employment. The majority apparently overlooks this material fact. From the record, it is obvious that the extent and seriousness of the initial injury was manifest to appellant. Merely attaching a label or diagnosis to her disease neither gives appellant a separate cause of action nor creates a new material fact. The medical opinions given to appellant in the case sub judice satisfy the two-prong test set forth in Viock v. Stowe- Woodard Co., supra; viz., 1) appellant knew or reasonably should have known she was injured, and 2) appellant reasonably knew or should have known the injury was proximately caused by conduct of the appellees. The facts of the case sub judice are thus more analogous to those of Longmire v. Upjohn Company (S.D.Ohio 1988), 686 F.Supp. 659, wherein plaintiff, who filed her action in 1985, was told "in the early 1970's" by three different doctors that her alleged medical problems "may be related" to defendant's drug. See, also, Pollitt v. General Motors Corporation (6th Cir. 1990), 894 F.2d 858. Cf., Renfore v. Eli Lilly & Company (E.D.Mo. 1982), 541 F.Supp. 805. - 16 - Similarly, Harper v. Eli Lilly and Co. (N.D.Ohio 1983), 575 F.Supp. 1359, the other case appellant relies upon in her brief to this court, can be distinguished on its facts from the case sub judice. In Harper, plaintiffs, who filed their action in November 1979, suffered from various nonspecific vaginal disorders that were not definitely diagnosed and connected by medical experts to their intrauterine exposure to defendants' drug until 1978. In rendering its decision that summary judgment was improper, the court alluded to the Ohio Supreme Court's decisions in O'Stricker, supra, and Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111. The Harper court decided that there remained material questions of fact as to the "cognizable event" which put or should have put each plaintiff on notice of the injury and the causation. Since Oliver v. Kaiser Community Health Found., supra, however, the supreme court has further clarified the test for determining when a "cognizable event" occurs for purposes of a negligence claim. Hershberger v. Akron City Hosp. (1987), 34 Ohio St.3d 1; Allenius v. Thomas (1989), 42 Ohio St.3d 131. Although these cases relate to medical malpractice claims, they are applicable to the issue in the case sub judice and therefore should have guided this court's analysis. In Allenius, the court stated as follows: This court in Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St. 3d 111, 5 - 17 - OBR 247, 449 N.E. 2d 438, in paragraph one of the syllabus, stated: "Under R.C. 2305.11(A), a cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury. ***" In Hershberger v. Akron City Hosp. (1987), 34 Ohio St. 3d 1, 516 N.E. 2d 204, paragraph one of the syllabus, we established a three- prong test for determining the accrual date of "resulting injury" when applying the statute of limitations under R.C. 2305.11(A). In Hershberger, we held: "*** [T]he trial court must look to the facts of the particular case and make the following determinations: when the injured party became aware, or should have become aware, of the extent and seriousness of his condition; whether the injured party was aware, or should have been aware, that such condition was related to a specific professional medical service previously rendered him; and whether such condition would put a reasonable person on notice of need for further inquiry as to the cause of such condition. ***" (Citations omitted.) * * * Since the three prongs of Hershberger overlap considerably, we believe that the best manner in which to explain "extent and seriousness of his condition" is to combine the three prongs. Thus, we now hold that the "extent and seriousness of his condition" language of the test set forth in Hershberger v. Akron City Hosp. (1987), 34 Ohio St. 3d 1, 516 N.E. 2d 204, paragraph one of the syllabus, requires that there be an occurrence of a "cognizable event" which does or should place the patient on notice of the need to pursue his possible remedies. Moreover, we do not believe that a patient must be aware of the full extent of the injury before there is a cognizable event. - 18 - It is enough that some noteworthy event, the "cognizable event," has occurred which does or should alert a reasonable person patient that an improper medical procedure, treatment or diagnosis has taken place. If a patient believes, because of harm she has suffered, that her treating medical professional had done something wrong, such a fact is sufficient to alert a plaintiff "'*** to the necessity for investigation and pursuit of her remedies. ***'" Graham v. Hansen (1982), 128 Cal. App. 3d 965, 973, 180 Cal. Rptr. 604, 609. (Emphasis added.) In the case sub judice, although appellant argues the "cognizable event" occurred on the date she states she was actually informed of a diagnosis of hyperreactive airways disease, even construing the available evidence most strongly in her favor, reasonable minds could only conclude appellant knew of the injury caused by appellees in June 1986. O'Stricker, supra. Furthermore, since appellant soon thereafter began to experience the same allergic reaction to other chemicals, she was put on notice regarding the extent and seriousness of her injury. Allenius, supra. A complication, viz., hyperreactive airways disease, does not change the fact that the "cognizable event" in the case sub judice occurred in late May or June 1986. In her deposition, appellant stated that in late May or June 1986 (1) she suffered an immediate reaction to appellees' products, (2) she was told by three different doctors that it was a chemical reaction caused by appellees' products, (3) she was also told that she should seek different employment, and (4) during the same time period she began experiencing the very same - 19 - symptoms upon exposure to other chemicals even when removed from her employment and appellees' products. These facts were enough to cause a reasonable person such as appellant to know that she had been seriously injured by conduct of the appellees. Viock v. Stowe-Woodard Co., supra; Longmire v. Upjohn, supra; Allenius v. Thomas, supra. Indeed, appellant's act of filing a workers' compensation claim stating she could not work because of a reaction to chemicals in the workplace in September 1986 demonstrated she knew she had suffered a serious injury traceable to appellees' products. Putting a label on her injury in November 1987 did not thereby extend the statute of limitations. R.C. 2305.10; O'Stricker v. Jim Walter Corp., supra; Allenius v. Thomas, supra. The statute does not require that a diagnosis be made; it states that an action must be brought "within two years after the cause thereof arose." Since appellant's complaint was untimely filed, therefore, there remained no genuine issues of material fact in the case sub judice and appellant's assignment of error is thus without merit. Accordingly, I would affirm the trial court's decision granting summary judgment for appellees. .