Holly M. Olarczuk-Smith

Holly M. Olarczuk-Smith

Burns White Member, Holly M. Olarczuk-Smith, is certified as an Appellate Specialist by the Ohio State Bar Association, and has argued before state and federal appellate courts on legal issues involving Professional Liability, Mass Tort, and Transportation. She also defends manufacturers and suppliers in asbestos litigation, and represents railroad companies in cases involving personal and occupational injury, and wrongful death.

A graduate of Cleveland-Marshall College of Law, is a Certified Appellate Law Specialist, and is licensed to practice law in Ohio and before the Supreme Court of the United States, the United States Court of Appeals Sixth Circuit, the United States District Court for the Norther District of Ohio, and the United States District Court for the Eastern District of Michigan.

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Areas of Law

  • Appellate
  • Mass Tort and Toxic Tort
  • Railroad Law

Education

  • Cleveland-Marshall College (J.D., magna cum laude, 2000, research editor of The Journal of Law and Health)
  • The Pennsylvania State University, The Behrend College (B.A., magna cum laude, Phi Beta Kappa, 1996)

Bar and Court Admissions

  • Ohio
  • United States Supreme Court
  • United States Court of Appeals for the Third Circuit
  • United States Court of Appeals for the Sixth Circuit
  • United States District Court for the Northern District of Ohio
  • United States District Court for the Eastern District of Michigan

Memberships

  • Ohio State Bar Association
  • The Defense Research Institute
  • Ohio Association of Civil Trial Attorneys
  • Obtained summary judgment for two major railroad carriers in a lymphoma case filed in State Supreme Court, Onondaga County, New York. Plaintiff brought the survival personal injury claim and a wrongful death claim under the Federal Employers’ Liability Act (“FELA”) alleging that the railroad negligently exposed the decedent-employee to workplace chemicals during the course of his railroad employment that caused lymphoma, which led to the employee’s death. In the summary judgment motion, the railroads relied on the employee’s medical records and deposition testimony to establish that the employee was aware of his personal injury claim more than three years before the claim was filed, thus showing that the survival claim was time-barred. In addition, the railroads argued that the wrongful death claim was subject to dismissal because the survivorship claim became time-barred before employee’s death.  The trial court concluded that the personal injury survival claim was time-barred. In reaching this determination, the trial court held that “[k]nowledge or at the very least reasonable suspicion of linkage” between the employee’s injury and his alleged workplace exposure was established to show that the claim was not timely commenced. The trial court further held that FELA law does not require an employee to “conclude definitively” with “sufficient certainty” that his injury was work-related. Furthermore, because the personal injury claim became time-barred before the employee’s death, the wrongful death claim was dismissed too.
  • Obtained summary judgment for a major railroad carrier in a rectal cancer case filed in the Cuyahoga County Court of Common Pleas. Plaintiff brought the survival personal injury claim and a wrongful death claim under the Federal Employers’ Liability Act (“FELA”) alleging that the railroad negligently exposed the decedent-employee to diesel exhaust and secondhand smoke during the course of his railroad employment that caused rectal cancer, which led to the employee’s death. In the summary judgment motion, the railroad relied on the employee’s bankruptcy filings, which listed the FELA claim against the railroad as an asset of the bankruptcy estate, to prove that the employee was aware of his personal injury claim more than three years before the claim was filed, thus showing that the survival claim was time-barred. In addition, the railroad argued that the wrongful death claim was subject to dismissal due to the absence of pecuniary loss evidence because Plaintiff failed to produce any evidence by the discovery deadline.
  • Erie County New York Supreme Court Case, New York trial court granting summary judgment in favor of railroad on the basis that the action was time-barred.
  • The Sixth District Court of Appeals affirmed summary judgment for two major railroad carriers in a respiratory disease case filed in the Lucas County Court of Common Pleas, Ohio.  Plaintiff brought his action under the Federal Employers’ Liability Act (“FELA”) alleging that the railroads negligently exposed him to diesel exhaust over the course of his career and that this exposure had caused his asthma and chronic obstructive pulmonary disease. In the summary judgment motion, the railroads argued that plaintiff’s claim was time-barred because plaintiff had been repeatedly told by his treating physician, more than three years prior to filing the action, that his respiratory illnesses were caused by his alleged exposure to diesel exhaust on the railroad. The trial court agreed with the railroads and concluded that plaintiff’s action was time-barred.  On review, the Sixth District Court of Appeals affirmed summary judgment. In reaching this determination, the appellate court rejected plaintiff’s argument that a FELA claim accrues when a treating physician conclusively tells the plaintiff that the injury is likely caused by his work because plaintiff’s argument “misconstrue[d] the essence of the discovery rule.”  Consistent with FELA jurisprudence, the appellate court reiterated that under the discovery rule, a FELA claim accrues when a reasonable person knows or, in the exercise of reasonable diligence, should have known of both an injury and its potential cause.  A medical diagnosis “is not required for a plaintiff to reasonably know that his injury is possibly related to his work.” The appellate court further acknowledged that a plaintiff who has reason to suspect that his injury is work-related has an affirmative duty to diligently investigate the potential cause of the injury, and that affirmative duty cannot be ignored by the plaintiff.
  • Obtained a summary judgment motion for two major railroad carriers in a respiratory disease case filed in the Lucas County Court of Common Pleas, Ohio. Plaintiff brought his action under the Federal Employers’ Liability Act (“FELA”) alleging that the railroads negligently exposed him to diesel exhaust over the course of his career and that this exposure had caused his asthma and chronic obstructive pulmonary disease. In the summary judgment motion, the railroads argued that plaintiff’s claim was time-barred because plaintiff had been repeatedly told by his treating physician, more than three years prior to filing the action, that his respiratory illnesses were caused by his alleged exposure to diesel exhaust on the railroad. In addition, the railroads argued that the action was barred by the doctrine of judicial estoppel due to plaintiff’s failure to disclose the potential FELA claim as an asset in his bankruptcy proceeding.
  • Obtained a summary judgment motion for two major railroad carriers in an oropharynx cancer case filed in Lucas County Court of Common Pleas. Plaintiff brought his action under the Federal Employers’ Liability Act (FELA) alleging that the railroads negligently exposed him to diesel exhaust and asbestos over the course of his career and that this exposure had caused his cancer. In the summary judgment motion, the railroads argued that plaintiff’s claim was time-barred because plaintiff had knowledge of all the essential facts he needed at the time of his diagnosis to conduct a reasonable inquiry as to whether his cancer was potentially related to his railroad employment. At the time of the cancer diagnosis, plaintiff knew that his alleged exposure to asbestos and diesel posed a hazard. Plaintiff performed an internet search about the type of cancer he had but claimed that he did not learn much from his search. Plaintiff initiated his lawsuit only after seeing a legal advertisement on Facebook addressing railroad workers that had contracted cancer. To demonstrate plaintiff’s failure to make a reasonably diligent effort to discover the potential cause of his injury, the railroads presented evidence of internet advertisements, articles, and videos that would have resulted from a reasonably diligent internet search at the time plaintiff was diagnosed with cancer, which was undisputed by plaintiff.
  • Obtained dismissal of maritime personal injury case against shipowner due to lack of appellate jurisdiction in the Third Circuit Court of Appeals and the Sixth Circuit Court of Appeals
  • In favor of business partner on grounds that recipe book was not original work entitled to federal copyright protection in the Sixth Circuit Court of Appeals
  • In favor of industrial machinery manufacturer-defendant on failure to warn and defective design claims involving carpet-forming machine the Sixth Circuit Court of Appeals
  • Obtained summary judgement of manufacturer-defendant’s affirmed on grounds that manufacturer cannot be held responsible for asbestos-containing material that was incorporated into its product post-manufacture n the Sixth Circuit Court of Appeals
  • Obtained dismissal in the Supreme Court of Ohio of appeal from a trial court’s grant of summary judgment in favor of defendants-employers in an asbestos-related action where there was no rule authorizing the filing of a notice of appeal
  • In the Supreme Court of Ohio, holding that Ohio’s asbestos reform legislation was procedural in nature and applied to claims filed under the Federal Employers’ Liability Act (FELA) and the Locomotive Inspection Act (LIA) without violating the Supremacy Clause
  • In the Supreme Court of Ohio, holding that in a Federal Employers’ Liability Act (FELA) claim, a non-settling railroad defendant is entitled to a set-off of a jury award on a pro-tanto basis by the amount of a third party settlement in accordance with federal law
  • In Ohio, affirming jury verdict finding one of the defendants to have no liability and finding no cause to grant a new trial
  • In the Ohio Courts of Appeal, affirming the grant of summary judgment in favor of law firm involving claims alleged under the Fair Debt Collection Practices Act (FDCPA) and the Ohio Consumer Sales Practices Act (OCSPA), and claims for fraud, abuse of process, defamation and civil conspiracy under Ohio law
  • In the Ohio Courts of Appeal, upholding summary judgment in favor of homeowner and finding that a homeowner did not have a duty to have his furnace inspected annually for carbon monoxide and to maintain an operable carbon monoxide detector in his home
  • In the Ohio Courts of Appeal, holding that the trial court did not err in granting the motion to dismiss the property owner’s Ohio Consumer Sales Practices Act (OCSPA) claim against the defendant-attorney because the attorney was not involved in a consumer transaction with them
  • In the Ohio Courts of Appeal, summary judgement for an ambulance network was affirmed as ambulance network had statutory immunity since patient did not show wanton and willful misconduct
  • In the Ohio Courts of Appeal, affirming summary judgment in favor of oil and gas company on a property owner’s nuisance action
  • In the Ohio Courts of Appeal, upholding favorable jury verdict for defendant in a motor vehicle accident case and upholding denial of plaintiff’s motion for new trial
  • In the Ohio Courts of Appeal, finding plaintiff’s request for attorney fees was properly denied
  • In the Ohio Courts of Appeal, affirming summary judgment for workers’ compensation claimant and a casualty insurer on state agency’s claim for subrogation
  • In the Ohio Courts of Appeal, reversing jury verdict against real estate brokerage and its agents and finding they were entitled to judgment as a matter of law on claims against them for negligence and breach of fiduciary duty because collateral estoppel barred the sellers, who had been found liable to buyers for fraudulently concealing flooding problems, from claiming that they did not know about the flooding
  • In the Ohio Courts of Appeal, affirming summary judgment in favor of insurer concerning subrogation rights and bad faith claim
  • In the Ohio Courts of Appeal, reversing jury verdict in favor of plaintiff in legal malpractice action where there was no evidence that the attorney’s alleged negligence proximately caused any damage to the clients
  • In the Ohio Courts of Appeal, upholding summary judgment in legal malpractice action due to lack of expert testimony, inability to prove any actual loss or damage, and no evidence that any actions of the attorneys were the proximate cause of any alleged loss or damage
  • In the Ohio Courts of Appeal, affirming the grant of summary judgment in favor of employer in intentional tort case based on lack of proximate causation where plaintiff’s experts was excluded through Daubert evidentiary challenge
  • In the Ohio Courts of Appeal, affirming the grant of summary judgment in favor of the railroad on plaintiff’s negligence and attractive nuisance claims
  • In the Ohio Courts of Appeal, affirming the grant of summary judgment in favor of the railroad on trespasser’s negligence claim and involved the application of the open and obvious doctrine
  • In the Ohio Courts of Appeal, affirming the grant of summary judgment in favor of defendant-restaurant on motorist’s claims of negligence and violation of the Americans with Disabilities Act (ADA) and involved the application of the open and obvious doctrine
  • In the Ohio Courts of Appeal, trial court properly granted summary judgment to a store that sold a lighter because the plaintiff never produced the lighter, the sales receipt, or an expert report to support her claim for product liability and duty to warn
  • In the Ohio Courts of Appeal, upholding denial of a Civ.R. 60(B) motion in favor of insurer
  • In the Michigan Court of Appeals, holding that under the Federal Employers’ Liability Act (FELA), the railroad-employee may not sue to recover for cancer when the employee previously released the railroad-employer from liability for cancer, a condition he knew he was at risk to develop in the future
  • In an Erie County New York Supreme Court Case, New York trial court granting summary judgment in favor of railroad on the basis that the action was time-barred
  • In Wayne County Circuit Court, Michigan state trial court granting defendant’s motion for summary disposition because plaintiff lacked authority, standing or capacity to pursue action
  • In Saginaw County Circuit Court, Michigan state trial court granting summary judgment in favor of railroad on the basis that the personal injury action was time-barred
  • In Cuyahoga County, Ohio state trial court granting partial summary judgment in favor of railroad and finding that the Locomotive Inspection Act (LIA) was not applicable as the locomotive on which plaintiff was working when his alleged injuries occurred was not “in use”
  • In Michigan district court granting summary judgment in favor of the railroad on the basis that the action was time-barred

Honors/Awards

  • Certified Appellate Law Specialist, Ohio State Bar Association
  • Recognized as a 2015 – 2016 Ohio Super Lawyers®

Presentations

  • Supreme Court Update: Recent Decisions, Pending Cases, and Future Challenges, Gallagher Sharp Annual Spring Seminar,  May 30, 2014
  • Appellate Practice Essentials, CLE Webcast, Ohio State Bar Association, May 7, 2014
  • Update of Significant Federal and State Appellate Decisions, Gallagher Sharp Annual Spring Seminar, June 2010
  • The Impact of Federal Preemption on Tort Reform Legislation: Litigating Federal Claims in State Court, Are You Alone in the Dessert?, Cutting Edge Toxic Tort Conference, Scottsdale, Arizona, December 2006
  • Co-Presenter, Federal Preemption and State Imposed Medical Criteria in Asbestos and Silica Personal Injury Cases: Are the Odds Against You?, Annual National Silica Litigation Conference, Las Vegas, Nevada, September 2006

216-760-1828
hmolarczuk-smith@burnswhite.com

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1350 Euclid Avenue
Cleveland OH 44115

 

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