UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

RICK E. NEWMAN : CASE NO. C- 1 -01 –0067 

 Plaintiff : JUDGE HERMAN J. WEBER 

-vs- : 

THE PROCTOR & GAMBLE : 

COMPANY, et al. 

: DEFENDANT MESA INC.'S 

Defendant REPLY MEMORANDUM IN 

 : SUPPORT OF ITS MOTION 

 FOR SUMMARY JUDGMENT 

 :

 

********** 

Now comes Defendant, Mesa, Inc. (hereinafter "Mesa"), by counsel, and hereby submits its 

Reply Memorandum in Support of Its Motion for Summary Judgment. The attached Memorandum is a 

Reply to both Plaintiff Rick E. Newman's Memorandum in Opposition to Defendants' Motions for 

Summary Judgment (hereinafter "Newman's Memo") and Defendant the Proctor & Gamble Company's 

Memorandum Opposing Mesa, Inc.’s Motion for Summary Judgment on P&G's Cross-claim (hereinafter 

"P&G's Memo"). 

 Pursuant to the Court's Amended Scheduling Order, Mesa has attached hereto as Exhibits A and 

B, copies of the Counter Statement of Findings of Fact and Conclusions of Law submitted by Newman 

and P&G, respectively. 1

 Both Newman's Memo and P&G's Memo fail to present a factual and/or legal 

basis for denying Mesa's Motion for Summary Judgment. 

 

1

 Mesa has not highlighted any facts in Newman’s Counter Statement that address issues raised in P&G’s Motion for 

Summary Judgment against Newman. 

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Respectfully Submitted, 

 _________________________________ 

JOHN C. SCOTT, #0029518 

JOSEPH T. MORDINO, #0065001 

Attorneys for Defendant, Mesa, Inc. 

FAULKNER & TEPE, LLP 

2200 Fourth & Vine Tower 

Cincinnati, Ohio 45202 

(513) 421-7500 

 MEMORANDUM 

I. INTRODUCTION 

There is no genuine issue of material fact regarding the actions of Mesa's employees on March 

17, 1999. Contrary to the assertion contained on page 3 of Newman's Memo, Mesa does not contest for 

purposes of its Motion for Summary Judgment whether it owed Mr. Newman a duty of care. The sole 

basis for Mesa's Motion for Summary Judgment against Newman is that there is absolutely no evidence 

of a breach of duty by Mesa. 

As to P&G's assertions, there is no evidence in the record of Mesa's negligence causing a leak or 

release of sulfur dioxide. To the contrary, any leak or release was due to the sole negligence of P&G. 

II. EVIDENCE 

A. The evidence, or lack thereof, regarding Mesa's actions on March 17, 1999. 

Curiously, both Newman and P&G underlined in red paragraphs 4 and 5 of Mesa's Proposed 

Findings of Fact. Paragraph 4 states "There is no way that the valves in the compressor room were 

opened accidentally." Paragraph 5 states there is no evidence that Gregg or any other Mesa employee 

intentionally opened a valve." However, neither Newman nor P&G can point to any evidence in the 

record that a valve in the compressor room was opened either accidentally or intentionally. The evidence 

is clear there is no way the valves in the compressor room were opened accidentally. P&G's own witness, 

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Patrick Molloy, concedes this is true both because of the location of the valves and because of the way 

the valves function; the valves include mechanisms that must be released before the valves can be turned. 

(Molloy depo., pg. 47 - 49) No deponent even suggested that one of these valves could be opened by 

incidental contact such as bumping a valve, brushing up against a valve, or any other such activity. To the 

contrary, the evidence in the record is clear that an affirmative act is required to open one of the ball 

valves. 

Given that uncontroverted evidence, Newman and P&G find themselves in a situation where they 

must prove that a Mesa employee intentionally opened one of the valves on the sulfur dioxide system. 

Neither party can do this. First, John Gregg has consistently denied opening a valve. (Gregg depo. pg. 46; 

Molloy depo. pg. 64) Second, Gregg did not have time to open a valve, close a valve, go up a ladder, and 

then start climbing back down the ladder. (Stephenson depo. pg. 38 and 85) 

In order to successfully oppose Mesa's Motion for Summary Judgment, Newman must set forth specific 

facts showing that there is a genuine issue for trial. Anderson v. Lobby, 477 U.S. 242, 248 (1986). There is no 

genuine issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict 

for that party. Id. at 249. If the evidence is merely colorable, Dombrowski v. Eastland 387 U.S. 82, 84 (1967), or is 

not significantly probative, Citis Sery., 391 U.S. at 290, judgment may be granted. Id. Simply put, neither Newman 

nor P&G have any evidence whatsoever of negligence by Mesa. Patrick Molloy's unsubstantiated speculation and 

finger pointing in an effort to shift blame from P&G is not even sufficient to create an inference. Ohio Jury 

Instructions section 5. 10 defines an inference as follows: 

5. INFERENCE. To infer, or to make an inference, is to reach a reasonable 

 (conclusion) (deduction) of fact which you may, but are not required to, 

 make from other facts which you find have been established by direct evidence. 

 Whether an inference is made rests entirely with you. (Emphasis added) 

There is an absence of direct evidence of negligence by Mesa. The most Newman or P&G can 

prove is that Gregg was apparently in the wrong place at the wrong time. This is especially true given 

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that he, and not Newman, was apparently in the room where the release occurred. Presumably Gregg was 

exposed to more sulfur dioxide than anyone on that day. 

Newman quite correctly points out on pg. 5 of his Memo "[i]f the parties present conflicting 

evidence, a Court may not decide which evidence to believe, by determining which parties' affiants are 

more credible; rather, credibility determinations must be left to the finder of fact." However, that rule of 

law is inapplicable to the case at bar. Here, there is no conflicting evidence. Here, there is no reason for a 

credibility contest. Here, despite efforts to muddy the waters, the evidence is clear and the evidence 

favors Mesa. 2

 Newman rather weakly suggests on page 6 of his Memo there is sufficient evidence that 

Mesa breached its duty of care since P&G concluded that Mesa's employees caused the sulfur 

dioxide gas to be released and cites generally to Molloy's deposition from pages 21 through 46. 

Molloy is not an expert, so he should not be permitted to offer any opinions regarding the cause 

of the leak or release. Given that even Molloy has conceded in his deposition that his story is 

 

mere supposition, his deposition is not competent evidence as required by Rule 56(E) to establish a 

genuine issue of material fact. 

 B. Mesa has no duty to indemnify P&G. 

P&G has a problem. After failing to notify any contractors that sulfur dioxide was present at its 

facility, there was a leak or release of sulfur dioxide followed by a claim for injury made by an employee 

of one of the contractors. This Court has already determined there are issues of fact in this case which 

preclude the Court from determining as a matter of law that Plaintiff was engaged in inherently

dangerous work and that P&G did not breach a duty which it owed to Plaintiff. (Order filed December 

 

2

 Newman suggests in his memo at pg. 3 “The main issue in dispute is between the two Defendants, P&G and Mesa, 

as to who was responsible for allowing the sulfur dioxide gas to be released in building 179. Mesa respectfully 

submits that there is more in dispute in this litigation. However, for purposes for filing a Motion for Summary 

Judgment against Newman, Mesa took a limited approach. Mesa also contests the causation, nature, extent, and 

duration of Plaintiff’s claimed damages. 

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21, 2001, doc. 27). The only party to this lawsuit that had control over the sulfur dioxide system was 

P&G. In fact, the only party to this lawsuit that even knew of the system's existence prior to the release 

was P&G. After P&G’s failure to provide a safe work site for independent contractors, P&G resorted to 

finger pointing and blame shifting. 

P&G suggests in its Memo on page 3 this litigation arose out of Mesa's work. The sulfur dioxide 

system which is alleged to have caused Newman's alleged injury was in the exclusive control of P&G. 

The leak or release would not have happened but for some negligence on the part of P&G. Newman's 

injuries, if any, are attributable to the sole negligence of P&G. P&G was solely negligent by virtue of its 

failure to inform any independent contractors that the sulfur dioxide system existed. P&G was solely 

negligent because that system failed for some reason. P&G may be facing a res ipsa loquitur instruction if 

this matter goes to trial. As a result, 

P&G desperately clings to Molloy's fantastic speculation regarding Gregg's activities on March 

17,1999. 

There is no evidence whatsoever that Mesa was negligent. P&G cannot present evidence of 

negligence by Mesa. Negligence lies with P&G. 

 Until depositions in this case were taken, Mesa was never privy to Pat Molloy's 

suppositions regarding how the leak or release occurred. Mesa can show that spoliation occurred. First, it 

is undisputed that the condition of the sulfur dioxide system is relevant. Second, P&G had the ability to 

evaluate the system and reach its own unsubstantiated conclusion as to how the release or leak occurred. 

Third, it is clear Plaintiff was contemplating litigation against P&G and the evidence, i.e. the sulfur 

dioxide system, was intentionally or negligently destroyed without providing an opportunity for 

inspection by Mesa. No expert testimony is needed here. It is obvious that the destruction of the system 

robbed Mesa of the opportunity to evaluate it. 

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In the alternative, Mesa submits P&G has failed to identify any expert witness who can opine 

regarding the causation of the leak or release. Patrick Molloy, the only witness who has offered 

"opinions" regarding how the leak or release supposedly occurred, was not identified as an expert and has 

not provided a report in compliance with this Court's scheduling orders. 

Under Ohio law, a landowner may be liable to a "frequenter" injured as a result of a hazardous 

condition of the property which liability is not substantially different from that imposed to common law. 

Westwood v. Thriftyboy Supermarkets, Inc. 278 N.E. 673, 674 (Ohio 1972) Newman is no doubt, a 

"frequenter" as contemplated by the case law and Ohio Revised Code §4101.11 which states: 

"Every employer shall furnish employment which is safe for the employees engaged 

therein, shall furnish a place of employment which shall be safe for the employees 

therein and for frequenters thereof, shall furnish and use safety devices and safeguards, 

shall adopt and use methods and processes, follow and obey orders, and prescribe hours 

of labor reasonably adequate to render such employment and places of employment, safe, 

and shall do every other thing reasonably necessary to protect the life, health, safety, and 

welfare of such employees and frequenters. 

This statute has been construed to provide that where an independent contractor and its employee 

perform work upon the premises of the owner, unaware and uninformed as to a dangerous condition on 

the premises created by the owner or of which the owner had knowledge, an employee may recover 

damages for injury caused by the condition on the grounds that the owner is chargeable with negligence 

in failing to remove the dangerous condition or to give notice of warning of its existence. Wenman v. 

The East Ohio Gas Co., 113 N.E.2d 629 (Ohio 1953). As already discussed above, the Court 

cannot determine as a matter of law that Plaintiff was engaged in inherently dangerous work, which 

would create an exception to the rule. 

Newman was insulating a tank that had nothing to do with the sulfur dioxide system. Mesa was 

putting in a space heater that had nothing to do with the sulfur dioxide system. P&G failed to remove the 

dangerous condition. P&G failed to warn of its existence. 

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The evidence in the record shows Newman's claimed injuries are due to the sole negligence of 

P&G. Accordingly, P&G is not entitled to indemnity. 

III. CONCLUSION. 

There is no evidence of any negligence on the part of Mesa. By way of contrast, P&G had a 

system on site containing dangerous sulfur dioxide gas and failed to notify anyone of the presence of that 

system or the gas in it. Something went wrong that day, but because of P&G's destruction of that sulfur 

dioxide system, no one will ever know what really happened. P&G had exclusive control over that 

system at all times relevant to this litigation. Newman's claims arise out of P&G's sole negligence. 

Accordingly, there are no genuine issues of material fact and Mesa is entitled to judgment in its favor as 

a matter of law. 

Respectfully Submitted, 

 

s/ John C. Scott_______________________ 

JOHN C. SCOTT, #0029518 

JOSEPH T. MORDINO, #0065001 

Attorneys for Defendant, Mesa, Inc. 

FAULKNER & TEPE, LLP 

2200 Fourth & Vine Tower 

Cincinnati, Ohio 45202 

(513) 421-7500 

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document has been served upon Beverly R. 

Storm, Esq., 600 Greenup Street, P.O. Box 472, Covington, KY 41012-0472, and Jeanette N. 

Dannenfelser, Esq., One Financial Way, Suite 312, Cincinnati, Ohio 45242, by regular U.S. Mail 

this 14 day of October, 2003. 

 s/ John C. Scott___________________ 

JOHN C. SCOTT 

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