Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Oct. 17, 2017

Mark Schwartz, individually and as executor of the estate of Kathleen Schwartz, et al. v. Honeywell International, et al., Case no. 2016-1372
Eighth District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. Quentin M. Derryberry II, Case no. 2017-1088
Auglaize County

Columbus Bar Association v. Kinsley F. Nyce, Case no. 2017-1078
Franklin County

Did Woman’s Family Adequately Prove Asbestos from Brake Dust Caused Her Deadly Cancer?

Mark Schwartz, individually and as executor of the estate of Kathleen Schwartz, et al. v. Honeywell International, et al., Case no. 2016-1372
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Can a person claiming injury by cumulative exposure to asbestos-containing products meet the requirement in Ohio law that one must prove a specific product was a substantial factor in causing the injury?

Kathleen Schwartz was a 43-year-old mother of four when she died from peritoneal mesothelioma in 2012. Her death was alleged to have been caused by her exposure to asbestos. Her only known exposure to asbestos occurred at her childhood family home in Glenside, Pennsylvania, where she lived with her parents from her birth in 1968 until she left for college in 1986. Her father, Arthur Webber, was exposed to asbestos in two ways – working for Pennwalt Corporation, where he was regularly exposed to asbestos dust and by doing brake work on his personal vehicles in his home garage.

Mark Schwartz, Kathleen’s husband, filed a lawsuit against companies affiliated with Pennwalt and Honeywell International, which had acquired Bendix Corporation. Webber testified that he always used Bendix brand brakes when replacing the brakes on his personal vehicles. Schwartz claimed his wife’s childhood exposure to the asbestos dust on her father’s work clothing and dust from the work on the family cars combined to cause her mesothelioma, which is a type of cancer.

Schwartz was able to settle his claims with all the companies except Honeywell. Honeywell argued that there was no evidence proving Kathleen’s exposure to Bendix brake dust, and the company maintained that the type of asbestos used in car brakes gets transformed into a non-lethal substance from the heat generated by brakes.

Jury Finds Manufacturer at Fault
A Cuyahoga County Common Pleas Court jury found the companies liable for Kathleen’s death and awarded her husband $20 million. The jury calculated the Bendix brakes were 5 percent responsible for her death. The trial court set a final judgment amount against Honeywell at about $1 million. The trial court denied Schwartz’s request for punitive damages from Honeywell.

Honeywell appealed the decision to the Eighth District Court of Appeals. Schwartz appealed the decision disallowing the punitive damages. The Eighth District affirmed the ruling against Honeywell and reversed the trial court’s decision on punitive damages, sending the matter back to the trial court for further proceedings. Honeywell appealed to the Ohio Supreme Court, which agreed to hear the case.

Company Not Liable Under 2004 Law Change, Honeywell Argues
With more than 35,000 asbestos-related cases pending in Ohio, the General Assembly enacted a set of asbestos lawsuit reforms through the passage of House Bill 292 in 2004, Honeywell explains. The bill strengthened the standard a person must meet to prove asbestos exposure caused an injury. Asbestos lawsuits typically involve naming multiple asbestos-product makers as defendants, and the new law required that for each specific defendant, the person had to prove that exposure to that manufacturer’s product was a “substantial factor” in causing the injury.

To determine if a specific product was a substantial factor, the new law contained a list of factors that a trial court must consider. The injured person must prove the manner, the proximity, the frequency, and the length of the exposure to the asbestos-containing product to determine if the product was a substantial factor in the inquiry.

Honeywell argues the Eighth District approved the conclusions of Schwartz’s expert witnesses who found the brake dust was a substantial factor in Kathleen’s death, even though the experts didn’t use the objective factors to reach their conclusion. The company maintains the “cumulative exposure” theory presented by the experts doesn’t meet the requirement of the law, which is R.C. 2307.96. They claim the experts argued that Kathleen died of an illness related to asbestos; there are no safe levels of exposure to asbestos; Kathleen potentially could have been exposed to various sources of asbestos; and that all the potential sources cumulatively acted as a substantial factor in her death.

Honeywell argues that R.C. 2307.96 requires Schwartz to prove through expert testimony that the brake dust was a substantial factor by analyzing the type of asbestos in the product, the amount of dust released, his wife’s exposure to the dust, and any other ventilation or environmental factors that might contribute to the exposure. The company asserts Schwartz “completely failed” to provide any evidence that Kathleen was exposed to brake dust.

The company notes that Webber performed about five brake jobs over the 18 years his daughter lived in the family house and checked his brakes every summer using a hammer to loosen the brakes. He testified he produced clouds of brake dust from the work, and would sweep up the dust after finishing the job. He also said Kathleen and his other children would pass through the garage to get to the backyard, but Kathleen never assisted him with the brake replacements.

In addition to questioning if Kathleen was ever exposed to the asbestos from the brake dust, Honeywell claims that the form of asbestos used in brakes, chrysotile, is significantly modified by the braking process. Unlike other asbestos fibers, chrysotile breaks down into a non-fibrous form under the heat of the braking process, and isn’t in the form that causes cancer, the company maintains.

Experts Met State Standard, Schwartz Asserts
Schwartz notes that the legislature passed H.B. 292 at a time when 89 percent of asbestos-related lawsuits were filed by people who were not suffering from an asbestos-related disease. By taking away the right to sue by “unimpaired” plaintiffs, the amount of asbestos lawsuits dropped from more than 40,000 at the time the law was enacted to fewer than 1,000 presently in pending. Schwartz met the standard because Kathleen died of an asbestos-related incurable cancer, he adds.

Schwartz argues the trial court and Eighth District did apply the “manner, proximity, frequency” test in R.C. 2307.96 and found the brake dust was a significant factor. He maintains the expert witnesses proved that the dust from Webber’s work clothes and the brake jobs could create millions of asbestos fibers that could linger in the air for long periods of time. And because Kathleen was a child at the time, her body was more susceptible to the harms of asbestos fiber because a child’s immune system isn’t fully developed, he argues.

Schwartz notes that U.S. Environmental Protection Agency studies of auto repair shops since 1986 have found asbestos in brake dust to be dangerous and that the chrysotile fiber has been shown to cause cancer. He also offers that Bendix was aware of the dangers of asbestos since the mid-1960s and began developing asbestos-free brakes while continue to sell the ones with asbestos.

Schwartz rejects the argument that Ohio’s substantial factor test requires that he prove exactly how much of Kathleen’s asbestos exposure came from the brake dust. He contends the “manner, proximity, frequency” test was crafted to strike a balance between the challenge of proving which asbestos products caused the damage and not holding a product maker liable simply on “guesswork.”

Because government agencies have determined that exposure to asbestos in any amount can be dangerous, even if Kathleen was only exposed to a small amount of asbestos from the brake test, the asbestos could be a significant factor in the cause of her cancer, Schwartz concludes.

Friend-of-the-Court Briefs
An amicus curiae brief supporting Honeywell’s position has been submitted by the Ohio Association of Civil Trial Attorneys. Amici briefs supporting Honeywell’s position were also filed by the Coalition for Litigation Justice, and jointly by the Ohio Alliance for Civil Justice, Ohio Council of Retail Merchants, Ohio Manufacturers’ Association, Ohio Tire and Automotive Association, and State Rep. William Seitz. A group of 51 concerned physicians, scientists, and scholars filed an amicus brief supporting Schwartz.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Honeywell International: Steven Blackmer, 412.366.3333

Representing Mark Schwartz: Shawn Acton, 216.575.0777

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Attorney Discipline

Disciplinary Counsel v. Quentin M. Derryberry II, Case no. 2017-1088
Auglaize County

The Ohio Board of Professional Conduct recommends that Wapakoneta attorney Quentin M. Derryberry II be suspended for one year with six months stayed for neglecting a child custody case he was hired to handle and for making false statements during the disciplinary process.

Great-Grandmother Seeks Legal Help
On Oct. 29, 2013, Linda Moore paid a $1,000 retainer to hire Derryberry as her attorney to secure legal custody of her great-grandson Deacon. For the prior two years, Deacon had been living with Moore in her Lima home. Deacon’s mother, Megan Ingle, supported giving Moore temporary legal custody of the child.

Moore said she told Derryberry that time was critical because Deacon’s grandmother, Melissa Sharp, had filed documents a week earlier to obtain legal custody of the child. Sharp had filed a motion to intervene in a custody case between Deacon’s parents. Two of Ingle’s other children were living with Sharp in Wapakoneta.

Two days after she first met with Derryberry, Moore provided the information he requested. In this second meeting, they spoke with Deacon’s mother by phone, and Moore understood that Derryberry would file court documents on her behalf in the custody proceeding within a few days.

Attorney Unresponsive to Client’s Calls
After more than a week passed, Moore called Derryberry’s office for an update on the case. In the subsequent days, she left eight voicemail messages. The two times that someone answered the phone, Moore spoke with the attorney’s secretary, who said she would have Derryberry return the call. The attorney responded to none of Moore’s calls.

The court granted Sharp’s request to intervene on Nov. 14, and she filed paperwork asking the court to make her Deacon’s temporary residential parent and legal custodian. On Dec. 2, Moore went with Deacon’s mother to a court conference about Sharp’s request for custody of the two children who lived with her. Afterward, Sharp’s attorney told Moore that he had never spoken with Derryberry or received any documents from him. Moore went to the juvenile court and discovered that her attorney had filed no documents in the case involving Deacon. Moore went to Derryberry’s law office to speak with him, and his secretary said he wasn’t there. Moore fired him immediately.

Great-Grandmother Asks for Refund, Files Complaint
Later that month, the court gave Sharp legal custody of Deacon, and he moved after Christmas from his great-grandmother’s house to his grandmother’s home.

Moore contacted Derryberry for a refund and her file, and a month later Derryberry sent her a $300 partial refund with an invoice that noted research and a call to Sharp’s attorney, and subtracted an amount for time he said he worked on the case. Moore filed a grievance against Derryberry with the Allen County Bar Association, which was later transferred to the Office of Disciplinary Counsel in Columbus. The disciplinary counsel began an investigation.

In May 2015, 14 months after Moore made her ethics complaint, Derryberry sent her a letter apologizing for “any misunderstanding or inconvenience” and included a refund of the remaining $700 she paid.

Board Describes Attorney’s False Statements
In its report to the Supreme Court, the professional conduct board highlighted several false statements Derryberry made during the disciplinary process. In a letter to the disciplinary counsel, Derryberry stated that he told Moore it wasn’t necessary or appropriate to intervene right away in the custody case because Sharp hadn’t intervened yet. Though the board noted that such a delay “might be a plausible strategy,” it found Moore’s testimony “very credible” and Derryberry’s “not credible.”

Derryberry also maintained during the investigation that he had a conversation with Sharp’s attorney about the complex custody situation, but his notes didn’t reflect an exact date. At the hearing, though, Derryberry said he tried to call the attorney, but was unable to leave a message and never actually talked with him. The other attorney testified that they never spoke, and he knew of no problems with his office voicemail system.

The board stated that Derryberry lied “to justify his failure to promptly and diligently represent Moore’s interest.” Derryberry violated attorney conduct rules that require him to act with diligence, to keep his client reasonably informed, and to respond as soon as practical to client requests for information, the board concluded, adding that his false statements were also a violation of the rules.

The board noted that Derryberry has a record of earlier discipline (after a federal perjury conviction in 1988), he committed multiple offenses, and he hasn’t acknowledged his wrongdoing. The board found no mitigating factors. Pointing out that the Court’s recent precedent supports an actual suspension when an attorney makes false statements with other underlying violations, the board recommends a one-year suspension with six months stayed if Derryberry commits no additional misconduct.

Attorney Disputes Lack of Diligence Claim
Derryberry has objected to some of the board’s report, so the Ohio Supreme Court will hear oral arguments in the case. Derryberry, who is representing himself in the case, primarily takes issue with the board’s conclusion that he didn’t act diligently on Moore’s behalf. He contends that his strategy was to enter an appearance in the custody case after Sharp’s motions were served on Ingle, which he indicates was in early December – the day he was fired – at the conference about two of the other children.

“Irrespective of Moore not having actual knowledge of the referenced strategy, she was not prejudiced by it and upon prompt filing after service on [Ingle], her motion to intervene would have been granted and the conflicting motions for temporary custody would have been set for hearing,” he wrote in his brief to the Court.

He conceded that he provided no written communication to his client, and stated that perhaps he should have taken a more formal approach with her rather than the family approach he used because he knew Moore’s late husband. He asks the Court for either a suspended sanction or a public reprimand.

Disciplinary Counsel Details Standards in These Cases
In its response, the disciplinary counsel explains that the three-person panel of the board that reviewed the case was responsible for assessing witness credibility. Besides the panel’s conclusion that Moore was more credible than the attorney, the disciplinary counsel notes that the panel found the great-grandmother’s actions after her first meeting with the attorney reflected her belief that he would be taking prompt action to file custody papers for her. The record does not weigh heavily in Derryberry’s favor, the disciplinary counsel maintains.

Nor does Derryberry offer any case law to support a lesser sanction of a suspended sentence or public reprimand in a similar situation, the disciplinary counsel argues, adding that the panel indicated if Derryberry had not lied during the disciplinary process an actual suspension may not have been warranted. The disciplinary counsel supports the recommended penalty.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Quentin M. Derryberry II, pro se: 419.738.3217

Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256

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Attorney Discipline

Columbus Bar Association v. Kinsley F. Nyce, Case no. 2017-1078
Franklin County

The Board of Professional Conduct recommends that Columbus attorney Kinsley F. Nyce be disbarred for violating a number of rules governing Ohio lawyers, including failing to notify clients that he didn’t maintain malpractice insurance while representing them.

Nyce has denied all allegations made by the Columbus Bar Association and maintains his only error was using older forms to notify his clients of his lack of insurance. He suggests that no sanction by Ohio Supreme Court is warranted.

Charges Stem from Real Estate Lawsuit
The professional conduct board’s report to the Court notes that Nyce represented two entities, Arthur Goldner & Associates (AG), and NC Plaza in a Franklin County lawsuit filed by Whitt Sturtevant. At the time of the lawsuit, Arthur Goldner was the chief executive officer of his Illinois-based company, and Rick Aronhalt was AG’s on-site manager in Columbus. The board concludes Nyce never notified Goldner that he didn’t carry professional liability insurance.

Whitt Sturtevant prevailed in the lawsuit against the companies, and Goldner hired Stephen Jones to replace Nyce and handle the appeal. Jones discovered that AG’s property liability insurance would have covered three of the claims brought against it, but that Nyce failed to advise AG to contact its insurer. At Jones’ advice, AG filed a belated claim with the insurer, which acknowledged it would have covered the cost of defending against the claims, but denied coverage because the claim was filed too late.

Jones told AG the failure to seek the insurance coverage could constitute legal malpractice by Nyce. Jones sent a letter to Nyce asking for information regarding his malpractice insurance. Nyce ignored repeated requests by Jones to prove he had malpractice coverage.

Jones filed a grievance with the Columbus Bar Association against Nyce for not cooperating. The bar association pressed Nyce for information about his insurance. Nyce admitted at a board panel hearing that he never personally carried malpractice insurance. He said he notified Aronhalt, who he had worked with before Aronhalt represented AG, that he didn’t have insurance. Nyce stated Aronhalt was the agent for AG that he communicated with directly about all AG matters.

The board noted the professional conduct rules require an attorney who doesn’t carry malpractice insurance to disclose that to clients in writing; sign the notice; have the client sign and date the notice acknowledging receipt; and maintain a copy of the signed notice for five years. The board found Nyce violated the rules by not notifying Goldner about the lack of malpractice insurance and Nyce never received Goldner’s written consent to continue to represent AG while uninsured.

Incident Leads to Further Inquiry
Based on the investigation of the AG case, the Columbus Bar Association’s disciplinary investigators asked Nyce for a list of clients for a three-year period and copies of their signed notices informing them he wasn’t insured. The board found Nyce couldn’t supply notices for 30 clients he represented between 2012 and 2015. Nyce produced some forms citing rule Disciplinary Rule 1-104, which was a rule under the former Ohio Code of Professional Responsibility that the state stopped using in 2007. The code has been replaced by the Ohio Rules of Professional Conduct, and Prof. Cond. R. 1.4(c) is the current rule that mirrors DR 1-104.

In 2016, Nyce produced forms for some but not all of his clients, and the board found none of them fully complied with the new rule. It found some cited the old rule, were undated, didn’t have Nyce’s signature, or appeared not to have an authentic client signature. When pressed about the whereabouts of the signed forms, Nyce responded many of the notices were lost in a flood at his office. The board noted that a year earlier, when asked about the forms, Nyce never mentioned a flood.

Based on the questions about the forms, the board found Nyce violated the rules for failing to notify clients about the lack of insurance and for failing to respond for requests for information in a disciplinary matter. He further violated the rules by acting deceitfully and dishonestly toward the bar association and the hearing panel.

Financial Records Examined
The bar association also asked Nyce to produce records from his court-required Interest on Lawyers’ Trust Accounts (IOLTA) account where he must hold client funds. The board found Nyce failed to respond to repeated requests for the full amount of requested information, and found he violated several record-keeping rules.

Some of the allegations against Nyce center on the use of the IOLTA account while caring for his elderly mother who lived in Vermont. Starting in 2013, his mother resided in a Burlington, Vermont, nursing facility and then in a rehabilitation facility until her death in 2015. At the time she entered the first nursing home, she had assets in excess of $700,000, which included large amounts in two Vermont bank accounts on which Nyce and his brother, Roger, were also listed. She also owned a home.

At the time of her death, she owed the two nursing homes $205,000 for their care, and by then she had no assets to pay the debts. The board indicates that Nyce and his brother systematically withdrew all the money from their mother’s accounts and took ownership of her home. Of the withdrawals, more than $584,000 was placed in Nyce’s IOLTA account before he moved the money into other accounts.

When asked to explain the reason for placing the money in the IOLTA, Nyce claimed it was for “clients” of his and his mother who weren’t legal clients. The money was to be held for nine individuals that Nyce wouldn’t name. The board concluded the story of the nine clients was a “complete sham” and charged Nyce with using his IOLTA account to launder the money withdrawn from Vermont accounts and to shield the assets from the Vermont nursing homes seeking to collect payment. The board charged Nyce with rule violations for the misuse of the client accounts.

Board Recommends Disbarment
The board concludes that disbarment is warranted because Nyce:

  • acted with a dishonest and selfish motive
  • committed multiple offenses
  • engaged in a pattern of misconduct
  • refused to acknowledge the wrongful nature of his conduct
  • failed to cooperate in the disciplinary process
  • submitted false evidence, made false statements, and used deceptive practices during the disciplinary process

The board indicates that Nyce presented no mitigating factors and notes that he has no prior disciplinary record.

“From the beginning, [Nyce] displayed open and undisguised hostility toward he disciplinary system, the attorneys representing [the bar association], and the panel. It would be difficult to imagine an accused attorney demonstrating less respect for the disciplinary process or less remorse for his misconduct,” the board report states.

The board concludes that Nyce is no longer fit to “practice in a profession grounded on trust, integrity, and candor.” And the only appropriate sanction is disbarment, it asserts.

Attorney Claims Vendetta
Nyce responds to the charges by stating he has been in compliance with the rules at all times and the clients were fully informed of his lack of malpractice insurance. Nyce claims he is the victim of a “box job,” which he describes as an attempt by the bar association to target him for investigation. He asserts that the bar association’s attempt to collect information from him was done in concert with Jones and a Vermont attorney seeking to file lawsuits against him. He responds that he has no duty to assist the bar association in helping his legal adversaries develop their lawsuits.

Bar Association Supports Disbarment
The bar association supports the board’s recommendation of disbarment and charges that Nyce “distorts the evidence” presented in the board’s panel hearing and misrepresents his conduct. It notes that, in stark contrast to Nyce’s view of the case, the board found he violated many of his ethical duties and harmed clients.The bar also indicates the Supreme Court has recently disbarred other attorneys with no prior disciplinary records for committing rule violations similar to the ones the board found Nyce violated.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Columbus Bar Association: Steven Nolder, 614.221.9790

Representing himself pro se, Kinsley F. Nyce: 614.562.2254

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.