Opposition to Deborah Cook's Nomination to the U.S. Court of Appeals for the Sixth Circuit

Access to the courts

A number of opinions by Justice Cook concerning ordinary citizens’ access to the courts are very troubling. As a judge on the state court of appeals, Cook wrote a decision that effectively denied access to the courts for certain minors who had suffered injuries for which municipal entities (such as school districts) were responsible. Adamsky v. Buckeye Local School District, 1994 WL 64699 (Ohio App. 9 Dist. 1994). Cook’s ruling upheld the constitutionality of a state law as applied to minors that required all suits for damages against a “political subdivision” for “injury, death, or loss . . . allegedly caused by any act or omission in connection with a governmental or proprietary function” to be brought within two years after the cause of action arose. Since minors cannot file suit on their own behalf, this ruling meant that some minors injured by governmental entities would be barred from pursuing their claims. Judge Cook’s ruling was reversed by the Ohio Supreme Court, which held that the statute created an “irrational” disparity that denied equal protection to minors, in violation of the state Constitution. 653 N.E.2d 215 (Ohio 1995).

On the Supreme Court, Justice Cook wrote a dissent from the ruling in Oker v. Ameritech Corp., 729 N.E.2d 1177 (Ohio 2000), in which she interpreted the limitations period for filing age discrimination claims under state law in a manner that would have seriously harmed victims of age discrimination. Michael Oker, a lawyer who had been replaced by a younger attorney in the course of a departmental reorganization, filed suit under state law claiming age discrimination. At issue was whether Oker had filed his suit within the 180-day statutory period for bringing such claims. In holding that he had, and citing the “plain language” of the statute, the majority ruled that the 180-day deadline ran from the date on which Oker’s employment was terminated, and not from the date on which he was told he would not be given a position in the reorganized department. Cook disagreed, and would have held that Oker’s claim involved a discriminatory “failure to hire” and that the limitations period ran from the earlier date, in which case Oker’s suit would have been untimely.

Justice Cook also would have barred as untimely a suit by a worker who claimed that his employer had intentionally exposed him to toxic chemicals in the workplace, even though the employer allegedly had concealed the information that formed the basis for the claim of intentional wrongdoing. Norgard v. Brush Wellman, Inc., 766 N.E.2d 977 (Ohio 2002), concerned a worker who had contracted chronic beryllium disease (“CBD”), a debilitating, chronic and sometimes fatal lung disease, as the result of years of exposure to beryllium in his workplace. The worker had become progressively ill during the years of his employment, had been treated at the plant where he worked, and had repeatedly been told by his employer “not to worry.” 766 N.E.2d at 978. Unbeknownst to the worker, his employer “began to suspect that [he] was the type of person with a heightened sensitivity to beryllium.” Id. The employer “began to periodically test his blood” but continued to reassure him that “he was fine.” Id.

Several years after being diagnosed with CBD, the worker learned that his employer had been sued by other employees over beryllium exposure and was informed that the employer “had withheld information about the causes of beryllium-related diseases and the acceptable levels of beryllium to which an employee could be exposed without harm, that [the employer] knew that its air-sampling collections were faulty and inaccurate and that a large number of its employees were developing CBD, and that there might have been problems related to respiratory equipment and ventilation that led to unnecessarily elevated beryllium exposures.” 766 N.E.2d at 979. Within two years of learning this information, the worker filed suit against his employer for its intentional wrongdoing. The employer sought to have the case dismissed, claiming that the two-year period for filing suit ran from the date the worker learned he was ill.

The Ohio Supreme Court rejected the employer’s efforts to bar the lawsuit as untimely. The Court ruled that the time in which workers have to file claims against their employers for damages caused by the employers’ wrongful conduct does not begin to run until the workers discover, or by the exercise of reasonable diligence should have discovered, that they were injured by the employers’ wrongful conduct. In so holding, the Court followed the reasoning of its own precedents applying the “discovery rule,” and explained that such a rule “take[s] away the advantage of employers who conceal harmful information until it is too late for their employees to use it.” 766 N.E.2d at 981 (emphasis added). Justice Cook wrote a dissent (joined by two other justices) in which she ignored the precedent cited by the majority and would have barred the worker’s lawsuit, effectively allowing the employer to benefit from the alleged concealment of its wrongdoing.

Justice Cook was the sole dissenter in another case involving an employer that tried to take advantage of its own misconduct toward workers –- in this case, the alleged wrongful withholding of evidence and giving of false testimony. In Davis v. Wal-Mart Stores, Inc., 756 N.E.2d 657 (Ohio 2001), the Court held that the widow of a worker who had been fatally injured on the job could file a lawsuit against the employer charging wrongful interference with evidence after the conclusion of a lawsuit for her husband’s wrongful death, if the wrongful interference with evidence was not discovered until after the conclusion of the first lawsuit. The Court explained that to hold otherwise would “reward a party for misrepresenting or destroying evidence.” 756 N.E.2d at 659 (emphasis added). Nonetheless, Justice Cook dissented, and would have barred the widow’s claim.

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