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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
REPEY BRIEF
November 27,2023 14:21
By: DAVID J. FAGNILLI0032930
Confirmation Nbr. 3026499
DEBRA NAMONSKE, ADMINISTRATOR CV 22 969633
vs.
Judge: MICHAEL P. SHAUGHNESSY
UNIVAR SOLUTIONS USA, INC., ET AL.
Pages Filed: 13
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
DEBRA NAMONSKE, Administrator of the ) CASE NO. CV-22-969633
Estate of Shawn Moore, )
) JUDGE MICHAEL P. SHAUGHNESSY
Plaintiff, )
) DEFENDANTS’ REPLY TO
v. ) PLAINTIFF’S BRIEF IN OPPOSITION
) TO DEFENDANTS’ MOTION FOR
UNIVAR SOLUTIONS USA, INC., et al., ) SUMMARY JUDGMENT ON
) PUNITIVE DAMAGES CLAIMS
Defendants. )
)
Defendants, Univar Solutions USA, Inc. and Todd Thoenen, by and through counsel,
hereby submit their Reply to Plaintiff's Brief in Opposition to their Motion for Summary
Judgment on Punitive Damages Claims. Defendants have separately filed a Motion to Strike the
Affidavit of Dwenger, which Plaintiff improperly relied upon in her Brief, and Defendants
incorporate that motion herein.
MEMORANDUM IN SUPPORT
While Plaintiff attempts to cloud the issue with unsubstantiated and irrelevant
accusations/evidence, it is really quite simple and clear: there is no survivorship claim for
compensatory damages, only a claim for wrongful death, therefore there can be no punitive
damages. Further, the facts do not support a conscious disregard for the safety of others:
Thoenen did not feel sleepy at all that day, in fact, he got his usual amount of sleep and even had
a nap on his break earlier that day; he was not under the influence of any drugs or alcohol; there
is no allegation that he was distracted or on his phone at the time of impact; he did not have a
known condition which would cause him fatigue; and he had a stellar driving record- as
Plaintiffs own expert concedes - spanning thousands of miles and decades with no prior
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incidents of falling asleep at the wheel and no indication that he ever had a history of being
sleepy while driving. And Moore, wearing dark colors and crouched down near the black tire of
a semi that had no flashing lights, safety triangles, or hazard warnings of any kind, was not a
discernable object in the roadway. Thoenen testified that he did not see Moore, and he had no
reason to expect that a pedestrian would be in the roadway on the Ohio Turnpike where vehicles
travel in excess of 70 miles per hour. Finally Univar did not ratify Thoenen’s actions by
determining, through a thorough investigation, that he was not at fault for the accident,
particularly given that he was not charged by the police after they reviewed the dash cam videos
that Univar promptly and voluntarily provided to them. It is Plaintiffs burden, not Defendants’,
to establish that there is sufficient clear and convincing evidence to permit the punitive damages
claims to go to a jury, and Plaintiff has not done so.
I. Plaintiff offers no evidence of conscious pain and suffering or property loss that
would entitle her to punitive damages on the survivorship claim.
It is undisputed that before she is entitled to punitive damages on the survivorship claim,
Plaintiff must first establish that Moore suffered compensable personal injury or property loss as
a result of the incident. Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 23, 374 N.E.2d 411.
Plaintiff’s Brief does not offer any evidence of property loss nor does she dispute that Moore’s
medical bills were paid in full by Medicaid leaving no balance left to his name. As to conscious
pain and suffering, now that Defendant has met its burden by identifying an absence of genuine
issues of material fact as to this essential element of Plaintiff’s claim, i.e. that Moore did not
incur pain and suffering, the burden has shifted to Plaintiff, the non-moving party, to offer
specific facts showing a genuine issue for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293-94,
1996-Ohio-107, 662 N.E.2d 264. Plaintiff has not met her burden as she has provided no
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specific facts to show that Moore was conscious. Rather, she attempts to use an absence of facts
as a basis for her claim. She writes: “There is nothing in the summary judgment evidence to
establish that he was unconscious for that entire time...” (Plaintiff's Brief at §II) Not a single
witness, medical record, video or any other piece of evidence exists to establish conscious pain
and suffering.
Defendants have provided evidence, through Thoenen’s testimony and Moore’s medical
records, that Moore did not endure pain and suffering because he never regained consciousness.
Thoenen testified that he did not see Moore move or make any sounds after impact, and the
medical records are clear that he was not conscious, his heart had stopped and he had no
independent breaths. (Thoenen Affidavit at ‘24; Broadview Heights EMS Patient Care Report;
Southwest General Emergency Documentation MOORE 000126, 128). Plaintiff is not entitled to
punitive damages against either Defendant on the survivorship claim because she has failed to
establish that Moore suffered personal injury or property loss as a result of the incident.
II. Reasonable minds could not conclude that Thoenen acted with a conscious
disregard for Moore’s safety.
Even if we were to assume that Thoenen had a statutory duty to change lanes before
passing the unmarked, seemingly abandoned semi; that it would have been safe for Thoenen to
do so despite the surrounding vehicles and his need to exit the turnpike in a short distance; that
in driving ten miles under the speed limit Thoenen was not operating at a safe speed; or that
Thoenen was sleepy at the wheel - all of which are contested by Defendant - these assumptions
would not amount to a conscious disregard for Moore’s safety under the “clear and convincing”
standard of evidence required. (R.C. §2315.21(D)(4))
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Pursuant to Bonner v. Reliable Transportation Specialists, Inc., N.D. Ohio No. 3:17-CV-
00415, 2018 WL 4586924, a case cited by Plaintiff in her Brief in § III D(2), Plaintiff must
provide evidence as to Thoenen's state of mind prior to the accident in order to prove malice.
Bonner at *4. In Bonner, the Court considered whether a semi driver's actions in rear ending a
vehicle on an interstate in an active construction zone warranted punitive damages against him
and/or his employer. Id. at *1. The plaintiff alleged that he was entitled to punitive damages
against both the semi driver and his employer for the following reasons: the driver failed to
maintain an assured clear distance, was poorly trained, received substandard supervision, was
reckless and acted with “conscious disregard” for the rights and safety of others”, and he and
other drivers for the company made and received cellphone calls and text messages from their
defendant employer while driving. Id. at *2. In finding that punitive damages claims against the
driver and employer were not viable, the Court reasoned that the plaintiff failed to provide
essential evidence as to how the poor training, substandard supervision or cell phone usage
impacted the outcome of the incident in question and plaintiffs claims that the driver acted with
conscious disregard were “(l)egal conclusion(sic) ‘masquerading' as factual allegations” which
were not sufficient to establish malice. Id. at*3-4. Further, the plaintiff failed to offer any
evidence as to the driver's mindset prior to the accident: a requisite element of punitive damages.
Id. *3-4. The Court stated: “Bonner does not allege how training or cellphone usage impacted
the outcome of the incident in question. Bonner has alleged only that Wollet failed to stop in
time, and has not alleged that Wollet was using his cell phone when the accident occurred or that
the training he may or may not have received contributed to his failure to stop.” Id. at *3.
Similarly, in the case at hand, Plaintiff has not provided any evidence regarding
Thoenen's mindset at the time of the accident, other than his own testimony that on the day
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before the incident he had between 6 and 7 hours of sleep, significantly more sleep than he
usually does, and he was wide awake. (Thoenen 25:19, 27:25, 28:7) Plaintiff simply makes
legal conclusions masquerading as factual allegations (i.e. Thoenen acted with “conscious
disregard”). Plaintiff dismisses Univar's proactive, preventative use of lane assist technology
which was activated in Thoenen's truck at the time in question and did not alarm, yet has
ridiculous expectations of Univar that are not required by any regulations or statutes and are not
common practice in the trucking industry, i.e. “Univar does not inquire into or monitor the
sleeping habits of its drivers” when they are off duty. (Thoenen Depo 102:14-25, 103:1-4,
106:11-12; Plaintiff's Brief at III. D) Even if Plaintiff were able to establish that Univar had
some requirement to check on their driver's off duty sleeping habits, or train the supervisors to
“identify and respond to signs of fatigue,” Plaintiff has not provided any evidence as to how the
lack of training or inquiry contributed to this accident. Bonner at *3. Thoenen testified that his
body only requires about 4 hours of sleep a night (Thoenen Depo 25:6-7; 26:1-2) and, with
that same sleep schedule, over the past 30 years Thoenen had been driving for Univar, travelling
in excess of 1.5 million miles, he was involved in only one collision, some thirteen years ago.
(Thoenen 31:20, 92:11-17) Thoenen has never had any issues dozing off while driving, had no
medical conditions that affected his sleep, had never been treated by any doctors for sleep-related
issues, and has never felt that his sleep cycle impacted his ability to work. (Thoenen Depo 32:1
18, 102:10-13)
Plaintiff misinterprets the case of Estate of Schimdt v. Derenia, to stand for the
proposition that in order to dismiss the punitive damages claims on summary judgment,
Defendants Thoenen and Univar are obligated to provide evidence of affirmative acts taken by
Thoenen to prevent the accident. (Plaintiff's Brief at §III(D)(2); Estate of Schmidt v. Derenia,
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158 Ohio App.3d 738 (2004)). That is not what Derenia stands for. In Derenia, the plaintiff
first provided several pieces of evidence that the driver could have made better decisions after
she noticed the leak in her fuel tank and could have taken quicker evasive and preventative
actions in an attempt to avoid the dangers of a slippery spill on the highway. Id. Still, the court
in that case found that, “[w]hile these actions may have constituted poor choices, they do not
contain any ‘positive element of conscious wrongdoing'”. Id. at ‘25. The court concluded that
“reasonable minds could not have found that Derenia was so callous in her disregard for the
rights and safety of others that society would deem it intolerable.” Id.
Similarly, in the instant case, even if we assume, arguendo, that Thoenen could have
slowed down even more than 10 miles beneath the speed limit, or could have driven closer to the
left edge of his lane he was in, those actions would at best be “poor choices” and do not contain
any positive element of conscious wrongdoing. Reasonable minds could not find that Thoenen,
who did not feel fatigued and did not see Moore as he approached, was so callous in his
disregard for the rights and safety of others that society would deem it intolerable. Id. at ‘'25.
(Thoenen Depo 92:18-20)
Several of the cases cited in Plaintiffs Brief involve drunk drivers (MacNeillv. Wyatt,
917 F.Supp. 2d 726, 730 (S.D. Ohio 2013); Cabe v. Lunich, 70 Ohio St.3d 598, 602, 1994-Ohio-
4, 640 N.E.2d 159, 162-63). They are completely irrelevant to the case at hand where the
undisputed toxicology screening results make it clear that Thoenen was not driving under the
influence and, in fact, does not ever consume alchol. (Thoenen Depo 79:19-25, 80:1-3)
In State of Ohio v. Whitacre, 10th Dist. Franklin No. 75AP-536, 1976 WL 189929, cited
by Plaintiff at IIIA(2), while the court did consider the issue of sleep, the facts were very
different. In Whitacre, the driver had not slept for almost 24 hours, was previously partying and
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drinking beer at Ohio State University’s campus area, and the driver himself testified not only
that he feel asleep at the wheel at 2 A.M., but that he thought about pulling over to the side of the
road and decided to continue driving because he wanted to get home. Id. There was evidence
then that Whitacre continued to drive the vehicle when he knew there was a real risk he might
fall asleep while driving. Id. at *5.
Those circumstances are nothing like the case at hand. Thoenen did not drink, he did not
feel tired, and he was fully awake prior to impact. (Thoenen Depo 79:19-21, 92:18-20) He also
testified that he had more than his usual amount and type of sleep in the 24 hours preceding this
incident. (Thoenen Depo 25:19-22) In fact, Thoenen stated that he was sleeping so soundly
before work that morning that he slept too long. (Thoenen Depo 42:15-22) There was no point
in time when Thoenen thought there was a risk he would fall asleep and continued to drive with
knowledge of that risk. Thoenen testified that he never felt compelled to continue drive if he was
fatigued and that, if he did feel fatigue, he would pull over and take a nap. (Thoenen Depo
92:21-25) He did not feel fatigued that day.
Plaintiff’s own experts admit that they have no criticism of Univar or Thoenen’s safety
records, and Plaintiff’s accident reconstruction expert David Stopper testified that if he was
running a trucking company, he would have no problem hiring someone with Thoenen’s driving
record. (Stopper at 50-52; Fred Turek deposition at 70-71.) And Stopper admits that Univar and
Thoenen were in full compliance with all relevant motor carrier safety regulations (Stopper at
51) and that there was nothing to alert Thoenen that Moore (or anyone else) was working on or
around the stopped truck. (Stopper 52-54). And Plaintiff’s fatigue expert Fred Turek
acknowledges that Thoenen was in compliance with Federal Motor Carrier requirements for
hours of service and off duty time (Turek at 62) and that there is no requirement that trucking
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companies monitor driver's sleep or have a specific “fatigue management” program (Turek at
28).
Parker v. Miller, S.D.Ohio No. 2:16-CV-1143, 2018 WL 3743981(Plaintiffs Brief
IIIA(2)) is also distinguishable from the instant matter. In Parker, the driver struck the rear end
of a police car despite the fact that it had its emergency lights activated and road flares to warn
oncoming traffic. Further, the defendant had a terrible driving record. He was driving a
commercial vehicle as an entry-level driver, with no entry-level training, and was involved in
five crashes in his first year of employment. Id. at *9-10. Parker is nothing like the case at hand
where Thoenen had no lights or flares to warn him and had an exemplary driving record with
Univar. Thoenen never saw Moore in the roadway and therefore had no time to react.
Plaintiff asserts that the semi truck on the side of the road was a discernable object.
However, it is irrelevant whether the unmarked semi truck was discernable as a matter of law as
this is not a claim regarding damage to said truck or anyone inside the truck. The issue is
whether Moore, wearing dark clothing and crouched down near the black tire, was discernable.
Plaintiff asserts that other vehicles passed by the semi on the side of the road and managed not to
hit it. However, the circumstances were different: at the time those vehicles passed by, there
were triangles marking the area and warning them about the disabled truck. Those triangles were
taken down by the driver of the abandoned truck prior to Moore's approach, because even he
thought that the repairs had been completed. (Crash Report, Statements of Thoenen and Ram.)
Further, we have no idea where Moore was in relation to the roadway when other vehicles
passed. Thoenen, the only person in the vehicle at the time of the collision, testified that he
could not see anyone in the roadway prior to impact. (Crash Report, Statement of Thoenen) One
cannot avoid what one does not see.
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As to the Samsara system, Thoenen establishes that the Samsara lane assist system was in
his truck and was operational at the time of the accident. (Thoenen Depo 102:14-25, 103:1-4,
106:11-12) Yet, even if the Samsara system was not in the truck or was not operational at the
time in question, this does not show malice: a Samsara system is an added layer of safety
precaution, voluntarily instituted by Univar, and Plaintiff has not established that it is required by
any statute or regulation. Therefore, its lack of existence or function is completely immaterial.
There is a dispute as to whether Thoenen was on the fog line. However, if we assume,
arguendo that Thoenen had crossed onto the fog line just prior to or at the time of impact, or
even several times in his travels that day, case law establishes that it is not a violation to drive on
the fog line. The Ohio Supreme Court considered whether a driver who drove his vehicle on the
fog line was in violation of state statute. The Court held: “Because Turner did not cross the
single solid white longitudinal line—the fog line—and driving on it or touching it is not
prohibited under R.C. 4511.33(A)(1), no violation occurred.” State v. Turner, 163 Ohio St.3d
421, 2020-Ohio-6773, 170 N.E.3d 842, emphasis added. The Court cited to several other cases
wherein drivers drove on or touched the fog line on multiple occasions, yet still did not violate
any laws in doing so. Id. at 429, 430.
IILPlaintifTs punitive damages claim against Univar (based on respondiat superior)
fails as a matter of law because Reasonable minds could not conclude that Thoenen
acted with a conscious disregard for Moore’s safety.
Plaintiff's Brief makes clear that her punitive damages claims against Univar are based
on respondiat superior liability, as she does not argue any direct liability against Univar.
(Plaintiffs Brief Section IV). Plaintiff does not dispute that, in order to set forth a viable
punitive damages claim against Univar that can survive summary judgment, Plaintiff must
establish that (1) Thoenen acted with malice and (2) that Univar knowingly authorized,
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participated in or ratified those actions/omissions. (Plaintiff’s Brief at Section IV) As previously
set forth in Section II above, Plaintiff has not provided sufficient evidence that Thoenen acted
with malice; therefore, Plaintiff has failed on the first prong and is not entitled to punitive
damages.
Plaintiff’s Brief asserts that Univar is liable under respondeat superior for the acts of
Thoenen because Thoenen was in the course and scope of employment and acted with malice.
(Plaintiff’s Brief at Section IV). The cases cited by Plaintiff are not on point.
• Davis v. May Dep’t Store, 9th Dist. Summit No. 20396, 2001-Ohio-1362 involved
Kaufmann’s employees and agents who confined a 14 year old girl in a room and
conducted a strip search on a suspicion of shoplifting. The Court did not overturn the
jury’s award of punitive damages against the employer reasoning that there was evidence
that the employees failed to first determine if the merchandise was in the fitting room and
did not maintain constant CCTV surveillance of the area yet chose to detain the child
anyway; they never asked the child her name or age and did not contact her parents; they
questioned her in front of the general public on the sales floor; they conducted a strip
search having her lift her shirt and pull down her pants; and, even after finding no
merchandise on her person, they continued to accuse her of shoplifting. Id. at *6. There
are no factual similarities to the case at hand.
• In Riotte v. Cleveland, 195 Ohio App. 3d 387, 2011-Ohio-4507 ^18, 960 N.E. 2d 496, the
issue before the Appellate Court was whether governmental immunity existed for an
officer who did not remove a vehicle from the roadway in a timely fashion, causing death
to its occupant. There was no punitive damages claim at issue.
• Anousheh Jemison v. AFIMAC Glob involved a sexual harassment claim wherein the
Court held employer ratification was required for this intentional tort and held there was
insufficient evidence of employer ratification, granting summary judgment in favor of the
employer. Jemison v. AFIMAC Glob., 645 F.Supp.3d 781, 803-804.
• In Davis v. Cowan Systems, L.L.C., N.D.Ohio No. 1:03 CV 2358, 2005 WL 8167274, the
driver of a tractor-trailer struck a disabled vehicle which was straddling the double
yellow line in the middle of the roadway, then proceeded into the other lane striking an
on-coming tractor trailer. Davis claimed punitive damages alleging that the employee
was driving at an excessive speed and failed to slow his vehicle. The Court found the
evidence insufficient to constitute malice and granted summary judgment in favor of the
driver and his employer on the punitive damages claims. Id. at *4.
As an alternate argument, Plaintiff asserts that Univar ratified Thoenen’s actions because
they did not reprimand Thoenen and has not adopted additional procedures or policies to “ensure
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that its drivers don't get behind the wheel.. .if they are fatigued, or to monitor their fatigue levels
while driving.” (Plaintiff's Brief at Section IV) Plaintiff again points to Davis v. The May Dep't
Stores Co., supra, where the employer required its employee (who detained a 14 year old without
her parent's knowledge and ordered a strip search upon her) to undergo training, but never
followed through with it.
Davis has no likeness to the case at hand. Univar immediately investigated the incident
including a review of the dash cam video evidencing that it was very difficult to see Moore
crouched down, standing in the roadway near the black tire, waring dark colors, even when
Univar had the benefit of hindsight. (Chamberlain 8/82023 Affidavit ^7-9) Univar promptly
provided the video to the authorities that very day, without being commanded to do so. (Crash
Report) Univar also reviewed additional electronic data available through the Samsara safety
system and, only after this thorough investigation did Univar conclude that the collision was not
caused by any wrongdoing on Thoenen's part. (Chamberlain 8/8/23 Affidavit ^11) It is
important to note that the State Highway Patrol came to the same conclusion and did not cite or
prosecute Thoenen. (Crash Report) Thus, even if it could be established that Thoenen's actions
constituted malice, a reasonable jury could not conclude that Univar ratified Thoenen's actions.
IV. Conclusion
R.C. 2315.21(E)(1) and (3) require that for the plaintiff to recover punitive damages, she
must prove malice or aggravated or egregious fraud by clear and convincing evidence. Further,
Ohio law has long held that punitive damages are not recoverable in an action solely for
wrongful death. Based upon the law and argument set forth above and in the separately filed
Motion to Strike the Affidavit of Dwenger, Defendants move this Court to dismiss Plaintiff's
punitive damages claims against all defendants, as a matter of law, because when the evidence is
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viewed in the light most favorable to Plaintiff, reasonable minds can only conclude that there is
no viable survivorship claim, and Plaintiff cannot prove malice or aggravated or egregious fraud
by clear and convincing evidence.
Respectfully submitted,
MARSHALL DENNEHEY P.C.
By:
DAVID J. FAGNILLI (0032930)
LINDA M. GORCZYNSKI (0070607)
127 Public Square, Suite 3510
Cleveland, Ohio 44114
Phone: (216) 912-3800
Fax: (216) 344-9006
Email: djfagnilli@mdwcg.com
lmgorczynski@mdwcg.com
Counselfor Defendants Univar Solutions
USA, Inc. and Todd Thoenen
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CERTIFICATE OF SERVICE
I hereby certify that on November 27, 2023, a copy of the foregoing was filed
electronically. Notice of this filing will be sent to all parties by operation of the Court's
electronic filing system and by electronic mail as follows:
DAVID PARIS (0001358)
Nurenberg, Paris, Heller & McCarthy Co., L.P.A.
600 Superior Ave., E., Suite 1200
Cleveland, Ohio 44114
dparis@nphm.com
LOUIE J. COOK (PHV)
White & Carlson
653 Everhart Rd., Suite 105
Corpus Christi, Texas 78411
lcook@whiteandcarlson.com
JUSTIN R. KAUFMAN (PHV)
Durham, Pittard & Spalding, LLP
505 Cerrillos Road, Suite A209
Santa Fe, New Mexico 87501
jkaufman@dpslawgroup.com
Counselfor Plaintiff
MARSHALL DENNEHEY P.C.
By:
DAVID J. FAGNILLI (0032930)
Counselfor Defendants Univar Solutions USA, Inc.
and Todd Thoenen
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NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas REPEY BRIEF November 27,2023 14:21 By: DAVID J. FAGNILLI0032930 Confirmation Nbr. 3026499 DEBRA NAMONSKE, ADMINISTRATOR CV 22 969633 vs. Judge: MICHAEL P. SHAUGHNESSY UNIVAR SOLUTIONS USA, INC., ET AL. Pages Filed: 13 Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO DEBRA NAMONSKE, Administrator of the ) CASE NO. CV-22-969633 Estate of Shawn Moore, ) ) JUDGE MICHAEL P. SHAUGHNESSY Plaintiff, ) ) DEFENDANTS’ REPLY TO v. ) PLAINTIFF’S BRIEF IN OPPOSITION ) TO DEFENDANTS’ MOTION FOR UNIVAR SOLUTIONS USA, INC., et al., ) SUMMARY JUDGMENT ON ) PUNITIVE DAMAGES CLAIMS Defendants. ) ) Defendants, Univar Solutions USA, Inc. and Todd Thoenen, by and through counsel, hereby submit their Reply to Plaintiff's Brief in Opposition to their Motion for Summary Judgment on Punitive Damages Claims. Defendants have separately filed a Motion to Strike the Affidavit of Dwenger, which Plaintiff improperly relied upon in her Brief, and Defendants incorporate that motion herein. MEMORANDUM IN SUPPORT While Plaintiff attempts to cloud the issue with unsubstantiated and irrelevant accusations/evidence, it is really quite simple and clear: there is no survivorship claim for compensatory damages, only a claim for wrongful death, therefore there can be no punitive damages. Further, the facts do not support a conscious disregard for the safety of others: Thoenen did not feel sleepy at all that day, in fact, he got his usual amount of sleep and even had a nap on his break earlier that day; he was not under the influence of any drugs or alcohol; there is no allegation that he was distracted or on his phone at the time of impact; he did not have a known condition which would cause him fatigue; and he had a stellar driving record- as Plaintiffs own expert concedes - spanning thousands of miles and decades with no prior Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH incidents of falling asleep at the wheel and no indication that he ever had a history of being sleepy while driving. And Moore, wearing dark colors and crouched down near the black tire of a semi that had no flashing lights, safety triangles, or hazard warnings of any kind, was not a discernable object in the roadway. Thoenen testified that he did not see Moore, and he had no reason to expect that a pedestrian would be in the roadway on the Ohio Turnpike where vehicles travel in excess of 70 miles per hour. Finally Univar did not ratify Thoenen’s actions by determining, through a thorough investigation, that he was not at fault for the accident, particularly given that he was not charged by the police after they reviewed the dash cam videos that Univar promptly and voluntarily provided to them. It is Plaintiffs burden, not Defendants’, to establish that there is sufficient clear and convincing evidence to permit the punitive damages claims to go to a jury, and Plaintiff has not done so. I. Plaintiff offers no evidence of conscious pain and suffering or property loss that would entitle her to punitive damages on the survivorship claim. It is undisputed that before she is entitled to punitive damages on the survivorship claim, Plaintiff must first establish that Moore suffered compensable personal injury or property loss as a result of the incident. Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 23, 374 N.E.2d 411. Plaintiff’s Brief does not offer any evidence of property loss nor does she dispute that Moore’s medical bills were paid in full by Medicaid leaving no balance left to his name. As to conscious pain and suffering, now that Defendant has met its burden by identifying an absence of genuine issues of material fact as to this essential element of Plaintiff’s claim, i.e. that Moore did not incur pain and suffering, the burden has shifted to Plaintiff, the non-moving party, to offer specific facts showing a genuine issue for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293-94, 1996-Ohio-107, 662 N.E.2d 264. Plaintiff has not met her burden as she has provided no Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 2 specific facts to show that Moore was conscious. Rather, she attempts to use an absence of facts as a basis for her claim. She writes: “There is nothing in the summary judgment evidence to establish that he was unconscious for that entire time...” (Plaintiff's Brief at §II) Not a single witness, medical record, video or any other piece of evidence exists to establish conscious pain and suffering. Defendants have provided evidence, through Thoenen’s testimony and Moore’s medical records, that Moore did not endure pain and suffering because he never regained consciousness. Thoenen testified that he did not see Moore move or make any sounds after impact, and the medical records are clear that he was not conscious, his heart had stopped and he had no independent breaths. (Thoenen Affidavit at ‘24; Broadview Heights EMS Patient Care Report; Southwest General Emergency Documentation MOORE 000126, 128). Plaintiff is not entitled to punitive damages against either Defendant on the survivorship claim because she has failed to establish that Moore suffered personal injury or property loss as a result of the incident. II. Reasonable minds could not conclude that Thoenen acted with a conscious disregard for Moore’s safety. Even if we were to assume that Thoenen had a statutory duty to change lanes before passing the unmarked, seemingly abandoned semi; that it would have been safe for Thoenen to do so despite the surrounding vehicles and his need to exit the turnpike in a short distance; that in driving ten miles under the speed limit Thoenen was not operating at a safe speed; or that Thoenen was sleepy at the wheel - all of which are contested by Defendant - these assumptions would not amount to a conscious disregard for Moore’s safety under the “clear and convincing” standard of evidence required. (R.C. §2315.21(D)(4)) Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 3 Pursuant to Bonner v. Reliable Transportation Specialists, Inc., N.D. Ohio No. 3:17-CV- 00415, 2018 WL 4586924, a case cited by Plaintiff in her Brief in § III D(2), Plaintiff must provide evidence as to Thoenen's state of mind prior to the accident in order to prove malice. Bonner at *4. In Bonner, the Court considered whether a semi driver's actions in rear ending a vehicle on an interstate in an active construction zone warranted punitive damages against him and/or his employer. Id. at *1. The plaintiff alleged that he was entitled to punitive damages against both the semi driver and his employer for the following reasons: the driver failed to maintain an assured clear distance, was poorly trained, received substandard supervision, was reckless and acted with “conscious disregard” for the rights and safety of others”, and he and other drivers for the company made and received cellphone calls and text messages from their defendant employer while driving. Id. at *2. In finding that punitive damages claims against the driver and employer were not viable, the Court reasoned that the plaintiff failed to provide essential evidence as to how the poor training, substandard supervision or cell phone usage impacted the outcome of the incident in question and plaintiffs claims that the driver acted with conscious disregard were “(l)egal conclusion(sic) ‘masquerading' as factual allegations” which were not sufficient to establish malice. Id. at*3-4. Further, the plaintiff failed to offer any evidence as to the driver's mindset prior to the accident: a requisite element of punitive damages. Id. *3-4. The Court stated: “Bonner does not allege how training or cellphone usage impacted the outcome of the incident in question. Bonner has alleged only that Wollet failed to stop in time, and has not alleged that Wollet was using his cell phone when the accident occurred or that the training he may or may not have received contributed to his failure to stop.” Id. at *3. Similarly, in the case at hand, Plaintiff has not provided any evidence regarding Thoenen's mindset at the time of the accident, other than his own testimony that on the day Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 4 before the incident he had between 6 and 7 hours of sleep, significantly more sleep than he usually does, and he was wide awake. (Thoenen 25:19, 27:25, 28:7) Plaintiff simply makes legal conclusions masquerading as factual allegations (i.e. Thoenen acted with “conscious disregard”). Plaintiff dismisses Univar's proactive, preventative use of lane assist technology which was activated in Thoenen's truck at the time in question and did not alarm, yet has ridiculous expectations of Univar that are not required by any regulations or statutes and are not common practice in the trucking industry, i.e. “Univar does not inquire into or monitor the sleeping habits of its drivers” when they are off duty. (Thoenen Depo 102:14-25, 103:1-4, 106:11-12; Plaintiff's Brief at III. D) Even if Plaintiff were able to establish that Univar had some requirement to check on their driver's off duty sleeping habits, or train the supervisors to “identify and respond to signs of fatigue,” Plaintiff has not provided any evidence as to how the lack of training or inquiry contributed to this accident. Bonner at *3. Thoenen testified that his body only requires about 4 hours of sleep a night (Thoenen Depo 25:6-7; 26:1-2) and, with that same sleep schedule, over the past 30 years Thoenen had been driving for Univar, travelling in excess of 1.5 million miles, he was involved in only one collision, some thirteen years ago. (Thoenen 31:20, 92:11-17) Thoenen has never had any issues dozing off while driving, had no medical conditions that affected his sleep, had never been treated by any doctors for sleep-related issues, and has never felt that his sleep cycle impacted his ability to work. (Thoenen Depo 32:1 18, 102:10-13) Plaintiff misinterprets the case of Estate of Schimdt v. Derenia, to stand for the proposition that in order to dismiss the punitive damages claims on summary judgment, Defendants Thoenen and Univar are obligated to provide evidence of affirmative acts taken by Thoenen to prevent the accident. (Plaintiff's Brief at §III(D)(2); Estate of Schmidt v. Derenia, Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 5 158 Ohio App.3d 738 (2004)). That is not what Derenia stands for. In Derenia, the plaintiff first provided several pieces of evidence that the driver could have made better decisions after she noticed the leak in her fuel tank and could have taken quicker evasive and preventative actions in an attempt to avoid the dangers of a slippery spill on the highway. Id. Still, the court in that case found that, “[w]hile these actions may have constituted poor choices, they do not contain any ‘positive element of conscious wrongdoing'”. Id. at ‘25. The court concluded that “reasonable minds could not have found that Derenia was so callous in her disregard for the rights and safety of others that society would deem it intolerable.” Id. Similarly, in the instant case, even if we assume, arguendo, that Thoenen could have slowed down even more than 10 miles beneath the speed limit, or could have driven closer to the left edge of his lane he was in, those actions would at best be “poor choices” and do not contain any positive element of conscious wrongdoing. Reasonable minds could not find that Thoenen, who did not feel fatigued and did not see Moore as he approached, was so callous in his disregard for the rights and safety of others that society would deem it intolerable. Id. at ‘'25. (Thoenen Depo 92:18-20) Several of the cases cited in Plaintiffs Brief involve drunk drivers (MacNeillv. Wyatt, 917 F.Supp. 2d 726, 730 (S.D. Ohio 2013); Cabe v. Lunich, 70 Ohio St.3d 598, 602, 1994-Ohio- 4, 640 N.E.2d 159, 162-63). They are completely irrelevant to the case at hand where the undisputed toxicology screening results make it clear that Thoenen was not driving under the influence and, in fact, does not ever consume alchol. (Thoenen Depo 79:19-25, 80:1-3) In State of Ohio v. Whitacre, 10th Dist. Franklin No. 75AP-536, 1976 WL 189929, cited by Plaintiff at IIIA(2), while the court did consider the issue of sleep, the facts were very different. In Whitacre, the driver had not slept for almost 24 hours, was previously partying and Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 6 drinking beer at Ohio State University’s campus area, and the driver himself testified not only that he feel asleep at the wheel at 2 A.M., but that he thought about pulling over to the side of the road and decided to continue driving because he wanted to get home. Id. There was evidence then that Whitacre continued to drive the vehicle when he knew there was a real risk he might fall asleep while driving. Id. at *5. Those circumstances are nothing like the case at hand. Thoenen did not drink, he did not feel tired, and he was fully awake prior to impact. (Thoenen Depo 79:19-21, 92:18-20) He also testified that he had more than his usual amount and type of sleep in the 24 hours preceding this incident. (Thoenen Depo 25:19-22) In fact, Thoenen stated that he was sleeping so soundly before work that morning that he slept too long. (Thoenen Depo 42:15-22) There was no point in time when Thoenen thought there was a risk he would fall asleep and continued to drive with knowledge of that risk. Thoenen testified that he never felt compelled to continue drive if he was fatigued and that, if he did feel fatigue, he would pull over and take a nap. (Thoenen Depo 92:21-25) He did not feel fatigued that day. Plaintiff’s own experts admit that they have no criticism of Univar or Thoenen’s safety records, and Plaintiff’s accident reconstruction expert David Stopper testified that if he was running a trucking company, he would have no problem hiring someone with Thoenen’s driving record. (Stopper at 50-52; Fred Turek deposition at 70-71.) And Stopper admits that Univar and Thoenen were in full compliance with all relevant motor carrier safety regulations (Stopper at 51) and that there was nothing to alert Thoenen that Moore (or anyone else) was working on or around the stopped truck. (Stopper 52-54). And Plaintiff’s fatigue expert Fred Turek acknowledges that Thoenen was in compliance with Federal Motor Carrier requirements for hours of service and off duty time (Turek at 62) and that there is no requirement that trucking Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 7 companies monitor driver's sleep or have a specific “fatigue management” program (Turek at 28). Parker v. Miller, S.D.Ohio No. 2:16-CV-1143, 2018 WL 3743981(Plaintiffs Brief IIIA(2)) is also distinguishable from the instant matter. In Parker, the driver struck the rear end of a police car despite the fact that it had its emergency lights activated and road flares to warn oncoming traffic. Further, the defendant had a terrible driving record. He was driving a commercial vehicle as an entry-level driver, with no entry-level training, and was involved in five crashes in his first year of employment. Id. at *9-10. Parker is nothing like the case at hand where Thoenen had no lights or flares to warn him and had an exemplary driving record with Univar. Thoenen never saw Moore in the roadway and therefore had no time to react. Plaintiff asserts that the semi truck on the side of the road was a discernable object. However, it is irrelevant whether the unmarked semi truck was discernable as a matter of law as this is not a claim regarding damage to said truck or anyone inside the truck. The issue is whether Moore, wearing dark clothing and crouched down near the black tire, was discernable. Plaintiff asserts that other vehicles passed by the semi on the side of the road and managed not to hit it. However, the circumstances were different: at the time those vehicles passed by, there were triangles marking the area and warning them about the disabled truck. Those triangles were taken down by the driver of the abandoned truck prior to Moore's approach, because even he thought that the repairs had been completed. (Crash Report, Statements of Thoenen and Ram.) Further, we have no idea where Moore was in relation to the roadway when other vehicles passed. Thoenen, the only person in the vehicle at the time of the collision, testified that he could not see anyone in the roadway prior to impact. (Crash Report, Statement of Thoenen) One cannot avoid what one does not see. Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 8 As to the Samsara system, Thoenen establishes that the Samsara lane assist system was in his truck and was operational at the time of the accident. (Thoenen Depo 102:14-25, 103:1-4, 106:11-12) Yet, even if the Samsara system was not in the truck or was not operational at the time in question, this does not show malice: a Samsara system is an added layer of safety precaution, voluntarily instituted by Univar, and Plaintiff has not established that it is required by any statute or regulation. Therefore, its lack of existence or function is completely immaterial. There is a dispute as to whether Thoenen was on the fog line. However, if we assume, arguendo that Thoenen had crossed onto the fog line just prior to or at the time of impact, or even several times in his travels that day, case law establishes that it is not a violation to drive on the fog line. The Ohio Supreme Court considered whether a driver who drove his vehicle on the fog line was in violation of state statute. The Court held: “Because Turner did not cross the single solid white longitudinal line—the fog line—and driving on it or touching it is not prohibited under R.C. 4511.33(A)(1), no violation occurred.” State v. Turner, 163 Ohio St.3d 421, 2020-Ohio-6773, 170 N.E.3d 842, emphasis added. The Court cited to several other cases wherein drivers drove on or touched the fog line on multiple occasions, yet still did not violate any laws in doing so. Id. at 429, 430. IILPlaintifTs punitive damages claim against Univar (based on respondiat superior) fails as a matter of law because Reasonable minds could not conclude that Thoenen acted with a conscious disregard for Moore’s safety. Plaintiff's Brief makes clear that her punitive damages claims against Univar are based on respondiat superior liability, as she does not argue any direct liability against Univar. (Plaintiffs Brief Section IV). Plaintiff does not dispute that, in order to set forth a viable punitive damages claim against Univar that can survive summary judgment, Plaintiff must establish that (1) Thoenen acted with malice and (2) that Univar knowingly authorized, Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 9 participated in or ratified those actions/omissions. (Plaintiff’s Brief at Section IV) As previously set forth in Section II above, Plaintiff has not provided sufficient evidence that Thoenen acted with malice; therefore, Plaintiff has failed on the first prong and is not entitled to punitive damages. Plaintiff’s Brief asserts that Univar is liable under respondeat superior for the acts of Thoenen because Thoenen was in the course and scope of employment and acted with malice. (Plaintiff’s Brief at Section IV). The cases cited by Plaintiff are not on point. • Davis v. May Dep’t Store, 9th Dist. Summit No. 20396, 2001-Ohio-1362 involved Kaufmann’s employees and agents who confined a 14 year old girl in a room and conducted a strip search on a suspicion of shoplifting. The Court did not overturn the jury’s award of punitive damages against the employer reasoning that there was evidence that the employees failed to first determine if the merchandise was in the fitting room and did not maintain constant CCTV surveillance of the area yet chose to detain the child anyway; they never asked the child her name or age and did not contact her parents; they questioned her in front of the general public on the sales floor; they conducted a strip search having her lift her shirt and pull down her pants; and, even after finding no merchandise on her person, they continued to accuse her of shoplifting. Id. at *6. There are no factual similarities to the case at hand. • In Riotte v. Cleveland, 195 Ohio App. 3d 387, 2011-Ohio-4507 ^18, 960 N.E. 2d 496, the issue before the Appellate Court was whether governmental immunity existed for an officer who did not remove a vehicle from the roadway in a timely fashion, causing death to its occupant. There was no punitive damages claim at issue. • Anousheh Jemison v. AFIMAC Glob involved a sexual harassment claim wherein the Court held employer ratification was required for this intentional tort and held there was insufficient evidence of employer ratification, granting summary judgment in favor of the employer. Jemison v. AFIMAC Glob., 645 F.Supp.3d 781, 803-804. • In Davis v. Cowan Systems, L.L.C., N.D.Ohio No. 1:03 CV 2358, 2005 WL 8167274, the driver of a tractor-trailer struck a disabled vehicle which was straddling the double yellow line in the middle of the roadway, then proceeded into the other lane striking an on-coming tractor trailer. Davis claimed punitive damages alleging that the employee was driving at an excessive speed and failed to slow his vehicle. The Court found the evidence insufficient to constitute malice and granted summary judgment in favor of the driver and his employer on the punitive damages claims. Id. at *4. As an alternate argument, Plaintiff asserts that Univar ratified Thoenen’s actions because they did not reprimand Thoenen and has not adopted additional procedures or policies to “ensure Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 10 that its drivers don't get behind the wheel.. .if they are fatigued, or to monitor their fatigue levels while driving.” (Plaintiff's Brief at Section IV) Plaintiff again points to Davis v. The May Dep't Stores Co., supra, where the employer required its employee (who detained a 14 year old without her parent's knowledge and ordered a strip search upon her) to undergo training, but never followed through with it. Davis has no likeness to the case at hand. Univar immediately investigated the incident including a review of the dash cam video evidencing that it was very difficult to see Moore crouched down, standing in the roadway near the black tire, waring dark colors, even when Univar had the benefit of hindsight. (Chamberlain 8/82023 Affidavit ^7-9) Univar promptly provided the video to the authorities that very day, without being commanded to do so. (Crash Report) Univar also reviewed additional electronic data available through the Samsara safety system and, only after this thorough investigation did Univar conclude that the collision was not caused by any wrongdoing on Thoenen's part. (Chamberlain 8/8/23 Affidavit ^11) It is important to note that the State Highway Patrol came to the same conclusion and did not cite or prosecute Thoenen. (Crash Report) Thus, even if it could be established that Thoenen's actions constituted malice, a reasonable jury could not conclude that Univar ratified Thoenen's actions. IV. Conclusion R.C. 2315.21(E)(1) and (3) require that for the plaintiff to recover punitive damages, she must prove malice or aggravated or egregious fraud by clear and convincing evidence. Further, Ohio law has long held that punitive damages are not recoverable in an action solely for wrongful death. Based upon the law and argument set forth above and in the separately filed Motion to Strike the Affidavit of Dwenger, Defendants move this Court to dismiss Plaintiff's punitive damages claims against all defendants, as a matter of law, because when the evidence is Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 11 viewed in the light most favorable to Plaintiff, reasonable minds can only conclude that there is no viable survivorship claim, and Plaintiff cannot prove malice or aggravated or egregious fraud by clear and convincing evidence. Respectfully submitted, MARSHALL DENNEHEY P.C. By: DAVID J. FAGNILLI (0032930) LINDA M. GORCZYNSKI (0070607) 127 Public Square, Suite 3510 Cleveland, Ohio 44114 Phone: (216) 912-3800 Fax: (216) 344-9006 Email: djfagnilli@mdwcg.com lmgorczynski@mdwcg.com Counselfor Defendants Univar Solutions USA, Inc. and Todd Thoenen Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 12 CERTIFICATE OF SERVICE I hereby certify that on November 27, 2023, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties by operation of the Court's electronic filing system and by electronic mail as follows: DAVID PARIS (0001358) Nurenberg, Paris, Heller & McCarthy Co., L.P.A. 600 Superior Ave., E., Suite 1200 Cleveland, Ohio 44114 dparis@nphm.com LOUIE J. COOK (PHV) White & Carlson 653 Everhart Rd., Suite 105 Corpus Christi, Texas 78411 lcook@whiteandcarlson.com JUSTIN R. KAUFMAN (PHV) Durham, Pittard & Spalding, LLP 505 Cerrillos Road, Suite A209 Santa Fe, New Mexico 87501 jkaufman@dpslawgroup.com Counselfor Plaintiff MARSHALL DENNEHEY P.C. By: DAVID J. FAGNILLI (0032930) Counselfor Defendants Univar Solutions USA, Inc. and Todd Thoenen Electronically Filed 11/27/2023 14:21 / BRIEF / CV 22 969633 / Confirmation Nbr. 3026499 / BATCH 13