Beavercreek Local Schools v. Basic, Inc.

• Decision Date: 06 March 1991
• Docket Number: No. 89,89
• Citation: 595 N.E.2d 360,71 Ohio App.3d 669
• Parties: BEAVERCREEK LOCAL SCHOOLS, Appellant and Cross-Appellee, v. BASIC, INC., Appellee and Cross-Appellant. * CA 88.
• Court: Ohio Court of Appeals

Page 669

71 Ohio App.3d 669

595 N.E.2d 360

BEAVERCREEK LOCAL SCHOOLS, Appellant and Cross-Appellee, v. BASIC, INC., Appellee and Cross-Appellant. ^*

No. 89 CA 88.

Court of Appeals of Ohio, Second District, Greene County.

Decided March 6, 1991.

Carlile, Patchen, Murphy & Allison, Laurence E. Sturtz and James C. Carpenter, Columbus, for appellant and cross-appellee.

Arter & Hadden, David C. Patterson and Jeffrey C. House, Columbus, for appellee and cross-appellant.

FAIN, Judge.

Both parties have appealed from a judgment rendered in favor of plaintiff-appellant Beavercreek Local Schools (Beavercreek) and against defendant-appellee Basic, Inc., in the amount of $250,000. The judgment was entered pursuant to a jury verdict.

Beavercreek contends that the trial court committed prejudicial error by admitting the hearsay testimony of Basic's expert witness regarding the conclusions of the Harvard/Kennedy School of Government Symposium on Public Policy and Asbestos in Buildings; that the theory and conclusions of the Harvard Symposium were not disclosed pursuant to requests for discovery and should have been excluded from evidence on that ground; that the jury failed to include in the amount of damages the cost of removing asbestos from the Beavercreek schools; and that the trial court prejudicially restricted voir dire.

We conclude that the trial court erred in admitting hearsay testimony of the expert witness; that there were no other grounds for excluding the theory set forth as the conclusion of the Harvard Symposium; that the jury erred by not including the cost of removing the asbestos from Beavercreek's schools within the damages awarded; and that the trial court did not prejudicially restrict voir dire.

Basic contends that the trial court erred in denying Basic's motion for summary judgment; in granting Beavercreek's motion for a directed verdict on the statute of limitations defense; and in instructing the jury to apply both the consumer expectation test and the risk-utility test in determining whether Basic's plaster was defective.

We conclude that the trial court erred in denying Basic's motion for summary judgment on the statute of limitations issue; and that the trial court was correct in instructing the jury to apply both the consumer expectation and risk-utility prongs of the test to determine whether Basic's plaster was defective.

Because we conclude that the trial court should have granted Basic's motion for summary judgment, the judgment against Basic is reversed, and we are entering judgment in Basic's favor in accordance with App.R. 12(B).

I

Basic, Inc. manufactured and sold Kilnoise, an asbestos-containing acoustical plaster, to the Beavercreek Local Schools. Kilnoise was installed in three Beavercreek schools between approximately 1955 and 1962.

During 1979, Beavercreek became aware of the health risks associated with asbestos, discovered asbestos in three school buildings, and later, in 1980, encapsulated the ceilings containing Kilnoise with a coat of paint.

Beavercreek filed an action in 1985 against several manufacturers and distributors of asbestos-containing ceiling plaster. In 1986, Beavercreek amended its complaint to include Basic as a party defendant. Basic moved for summary judgment on the ground that Beavercreek's claims were barred by the applicable statute of limitations. This motion was denied. All other defendants were dismissed from the action except for Basic. Beavercreek eventually reduced its claim to one cause of action, in which it sought to recover the costs of removal and replacement of Kilnoise from three schools based upon strict liability in tort.

At a pretrial hearing, the trial court indicated thatit intended to restrict voir dire. Beavercreek objected to the voir dire instructions and filed a motion to allow individual examination of prospective jurors. The trial court restricted Beavercreek's voir dire during the trial.

The trial court granted Beavercreek's motion for a directed verdict on the statute of limitations defense, thereby removing that issue from the jury's consideration.

The trial court instructed the jury that it should apply both the consumer expectation test and the risk-utility test to determine whether Basic's plaster was defective. The jury returned a verdict in favor of Beavercreek. The jury found that:

"(1) Plaintiff proved, by a preponderance of the evidence and based upon the court's instructions of law, that Basic, Inc. manufactured and supplied a defective product to the Beavercreek Local Schools; and that "(2) Plaintiff proved, by a preponderance of the evidence and based upon the court's instructions of law, that the product of Basic, Inc. proximately caused the Beavercreek Local School's injury."

However, the jury awarded Beavercreek only $250,000 for the damages proximately caused by Basic. This amount was based upon the cost of maintaining the plaster in the schools for twenty years. The award did not include any costs to remove and replace the plaster.

Beavercreek's motion for additur and for judgment notwithstanding the verdict, or, in the alternative, for a new trial on the issue of damages, was overruled. Beavercreek appeals from the judgment entry as it relates to the amount of damages as well as from the denial of its motion for a new trial on the issue of damages. Basic subsequently filed its notice of cross-appeal.

II

Beavercreek's first assignment of error is as follows:

"The trial court erred to the prejudice of Beavercreek Schools by admitting into evidence inadmissible hearsay testimony."

Beavercreek contends that the following expert testimony referring to the Harvard Symposium's conclusion that it was safer to leave the asbestos in buildings rather than to remove it constitutes inadmissible hearsay testimony:

"They reached the conclusion, with what we have learned about removal in the last several years, an option that looked like a very clean-cut, it just disappears, good-bye, is that the creation of dust and removal poses inordinate exposure to the removal people of which there are some 50,000 now, and it's very hard to protect them properly in this high dust atmosphere, reminiscent of the old occupational exposures, and second, it's very hard to contain the dust for the bystanders in the building because many removals have been done by sectioning off portions of the building, and you have bystander exposure, and third, we have learned you can't get it out of many buildings. The dust has now penetrated all the cracks and crevices, and when air measurements are made post-abatement, there is good evidence that many buildings are more contaminated after removal, in terms of what you breathe, than before removal, and, therefore, the symposium concluded removal, [being] the major option utilized up to that time should be very carefully considered, and operations and maintenance appear to be the best way of proceeding." (Emphasis added.)

The testimony of Basic's expert witness was a subject of Basic's closing argument:

"Why don't you remove it and just get rid of it altogether? Well, Dr. Corn told you that he recently attended a symposium by scientists from various parts of the world dealing just with the question of overreaction to asbestos in buildings and removing versus keeping it in place because of the environmental dangers that can be created by stirring things up in a situation where it simply doesn't need to be done."

"Hearsay" is defined in Evid.R. 801 as:

" * * * a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

Unless an exception applies under Evid.R. 803 or 804, hearsay statements are not admissible pursuant to Evid.R. 802, which provides that:

"Hearsay is not admissible except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio."

Hearsay testimony does not afford the opposing party an opportunity to confront and to cross-examine the out-of-court declarant, thereby depriving the party of the "guaranty of truthfulness resulting from the oath of [the] declarant." Furthermore, the opportunity to test the accuracy of the declarant's observations is not present when hearsay statements are admitted into evidence. Potter v. Baker (1955), 162 Ohio St. 488, 494, 55 O.O. 389, 392, 124 N.E.2d 140, 144. Therefore, hearsay statements generally lack indicia of reliability and are not admissible pursuant to Evid.R. 802.

The Ohio Rules of Evidence do not incorporate the learned treatise exception to the hearsay rule incorporated in Fed.Evid.R. 803(18), which provides an exception to the hearsay rule:

"To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits."

See Kane v. Ford Motor Co. (1984), 17 Ohio App.3d 111, 112, 17 OBR 173, 174-175, 477 N.E.2d 662, 664-665. Therefore, a fine line must be drawn between an expert opinion which has incorporated the scholarly opinions of others, and the direct quotation of the opinions or conclusions of other experts, which is not permitted. Id. at 112, 17 OBR at 174-175, 477 N.E.2d at 664-665.

"Even the mentioning of the titles of the articles would preclude the * * * [opposing party] from having the opportunity of adequate cross-examination as to the truth of the matters contained therein. ...