Appeals court sides with judge, Avient Corp. in Avon Lake lawsuit

An appeals court has unanimously ruled against an Avon Lake man who sued an industrial firm in 2017 alleging that he had been injured by noises, vibrations and smells coming from its Walker Road plant. James Pietrangelo II appealed a ruling by the Lorain County Common Pleas Court that sided with The Lubrizol Corp. and PolyOne Corp. — the latter now known as Avient Corp. Judge Chris Cook, and later the 9th District Court of Appeals in Akron, rejected Pietrangelo's lawsuit and his legal arguments. The trial court concluded that, "given the nature of his claims and the injury he was alleged to have suffered, Mr. Pietrangelo was required to submit evidence in the form of expert testimony. Failing to do so, the trial court noted, left Mr. Pietrangelo in the position of responding to Avient's expert testimony with 'his own anecdotal observations, opinions, and conclusions peppered with copious amounts of hearsay and unauthenticated documents. Consequently, the trial court reasoned, Mr. Pietrangelo's response, although voluminous, did not meet his burden of demonstrating that there were genuine issues of material fact," Judge Lynne Callahan wrote on behalf of the Ninth District Court of Appeals. Avient "established that there was no wrongful invasion of a legal right on its part because the conditions that were alleged by Mr. Pietrangelo did not exist," she wrote in the 28-page decision issued Dec. 6, one that was joined by Judges Jennifer Hensal and Donna Carr. Pietrangelo filed a complaint against PolyOne in June 2017, arguing that its Avon Lake facility at 33587 Walker Road was "spewing non-ionizing radiation, pressure/energy waves, vibrations, noise, and/or fumes/smells harmful to human health and home into the environment and surrounding neighborhood, including on a nightly basis," according to court records. Pietrangelo argued that his home was affected, that the radiation, waves and vibrations "impacted" and "vibrated" his body "in a manner that was 'uncomfortable at best to excruciating at worst,'" and asked for injunctions against PolyOne/Avient. Cook dismissed the claims in favor of the corporations in February, ruling that Pietrangelo "failed to offer any scientific, geological, radiological, or atmospheric evidence to support his claims nor did he introduce any medical testimony or evidence to verify his alleged physiological or psychological injuries," according to court records. Pietrangelo added Lubrizol to his complaint in October 2017, but attorneys for the company said he had incorrectly named their client in the complaint, calling it Lubrizol and not Lubrizol Advanced Materials Inc. Cook ruled in 2020 that Lubrizol did not own the Avon Lake facility and decided the matter in that company's favor. Cook wrote earlier this year that in all the time the case was pending, Pietrangelo failed to find experts or seek discovery materials from the defendants to support his claims. "Instead, not only did he forgo retaining any experts, he refused to provide his medical records to support his allegations," the judge wrote. Pietrangelo "has a right to fully litigate his case and make a complete record of his prosecution of the case and he has been given a full opportunity to do so in these proceedings. Similarly, this Court has a right to bring this case, and all litigation it presides over, TO A CLOSE," Cook wrote, capitalizing for emphasis. He decided the case in Avient's favor in February, and Pietrangelo appealed, but the appeals court ruled Cook was correct in denying many of Pietrangelo's motions during the case. Cook also did not improperly allow inadmissible evidence to be presented, as Pietrangelo had alleged, and was correct to dismiss claims against Lubrizol. The appeals court also noted that monitoring of Pietrangelo's home by Safety Controls Technology did not detect the noise or vibrations he described, found no concentrations of compounds that might account for smells or fumes, and that "levels of non-ionizing radiation were well below standards established by the federal Occupational Safety and Health Administration." That was further supported by evidence given by Avient employees, who signed statements saying the facility doesn't use microwave energy to produce heat, doesn't emit radiation, that employees are monitored for radiation exposure and that the building is insulated against any sound escaping. That was backed up by a 2017 Ohio EPA investigation, "which determined that (Pietrangelo's) complaint was unsubstantiated," according to the appeals court.