Finley v. First Realty Prop. Mgmt.

• Court: Ohio Court of Appeals
• Writing for the Court: WHITMORE
• Citation: Finley v. First Realty Prop. Mgmt. Ltd., 185 Ohio App.3d 366, 924 N.E.2d 378, 2009 Ohio 6797 (Ohio App. 2009)
• Decision Date: 23 December 2009
• Docket Number: No. 24502.,24502.
• Parties: FINLEY, n.k.a. Gilliam et al., Appellants,v.FIRST REALTY PROPERTY MANAGEMENT, LTD. et al., Appellees.

185 Ohio App.3d 366

924 N.E.2d 378

2009 Ohio 6797

FINLEY, n.k.a. Gilliam et al., Appellants,v.FIRST REALTY PROPERTY MANAGEMENT, LTD. et al., Appellees.

No. 24502.

Court of Appeals of Ohio Ninth District, Summit County.

Decided Dec. 23, 2009.

COPYRIGHT MATERIAL OMITTED

Terry A. Moore and Jacqueline Bollas Caldwell; John Maxwell, Canton; and Edward J. Heben Jr., Cleveland, for appellant Anne Gilliam.

Jacqueline Bollas Caldwell, Canton, for appellants the tenants.

Robert B. Daane, Robert J. McBride, and Jude Streb, Canton, for appellee First Realty Property Management Ltd.

Scott H. Kahn and George V. Pilat, Cleveland, for appellee First Realty Property Management.

Timothy J. Fitzgerald, John T. Murphy, and Richard C.O. Rezie, Cleveland, for appellee Realty One, Inc.

Frank Mazgaj, Akron, for appellee Grange Mutual Casualty Company.

Robert Daane; Mark Barbour; and Jude Streb, Canton, for appellee Sam's Investment, Inc.

Gary L. Nicholson, Cleveland, for appellee Merrimack Mutual Fire Insurance Company.

David Lester, Cleveland, for appellee Seneca Insurance Company.

WHITMORE, Judge.

{¶ 1} Plaintiffs-appellants, Anne M. Finley et al., appeal from the judgment of the Summit County Court of Common Pleas, entering summary judgment in favor of defendants-appellees, First Realty Property Management, Ltd. (“First Realty”), Sam's Investment, Inc. (“Sam's”), and Realty One, Inc. (“Realty One”) (collectively, “the owners”). This court affirms.

I

{¶ 2} On March 6, 2003, Finley and 44 other current or former tenants of the Williamsburg Court Apartments (collectively, “the tenants”) filed a 12-count complaint against the owners. The complaint asserted claims sounding in contract and tort, alleging personal injuries and damages based on the accumulation of moisture and hazardous mold in their apartments. Williamsburg Court Apartments were originally built in the 1960s, at which point Realty One Property Management Company, a division of Realty One, was the leasing agent and management company for the property. First Realty took over as the leasing agent and management company beginning on October 1, 1997. Sam's owned the property during the entire time period relevant to this appeal. Thus, the tenants named all owners in their suit, alleging that they had collectively failed to maintain the property in a habitable condition, which allowed for the growth of toxic mold in the apartments' heating and air-conditioning system, plumbing and sewer systems, and other areas in the tenants' apartments.

{¶ 3} In September 2005, the trial court determined that the tenants' claims would proceed separately, and the tenants were grouped into approximately 15 family units, with the Sparber family being the first to go to trial. The trial court also allowed all parties to file motions for summary judgment.

{¶ 4} In October 2005, the owners filed motions for partial summary judgment, which the tenants opposed. On February 2, 2006, the trial court granted the owners' motions with respect to three of the 12 counts: the intentional and negligent infliction of emotional distress and the loss of companionship. The motion was denied with respect to the remaining claims.

{¶ 5} On March 2, 2006, Realty One and Sam's filed a motion in limine to exclude testimony from the tenants' expert, Dr. Michael Linz. The tenants opposed the motion, and after briefing on the matter, the trial court held a hearing at which Dr. Linz testified. The trial court subsequently granted the motion to exclude Dr. Linz's testimony.

{¶ 6} On March 4, 2008, the owners filed motions for summary judgment on the claims of the Sparber family. The tenants opposed this motion, which the trial court granted on May 2, 2008. Thereafter, the owners filed motions for summary judgment as to all remaining tenants on all remaining claims. On October 27, 2008, the trial court awarded the owners summary judgment on their motions and dismissed all remaining claims of all the remaining tenants.

{¶ 7} The tenants have timely appealed, asserting three assignments of error for our review, which have been rearranged for ease of analysis.

II

Assignment of Error Number Two

The trial court erred in its May 4, 2006 order, when it excluded Dr. Linz' testimony as to the issue of specific causation.

{¶ 8} In their second assignment of error, the tenants argue that the trial court erred in excluding Dr. Linz's testimony to the effect that the Sparbers' illnesses were caused by their exposure to mold while residing in their Williamsburg Court Apartment. Specifically, they argue that Dr. Linz's testimony was admissible under Evid.R. 702 because (1) he had superior knowledge of the subject, which would aid the jury in understanding that mold had caused the tenants' illnesses, (2) he was qualified based on his skills, experience, training, education, and literature review to testify as to health conditions caused by mold exposure, (3) scientific journals and peer-reviewed literature support the existence of “building-related illness” caused by mold, and (4) he employed a reliable methodology for determining that the Sparbers and more generally, the tenants, were suffering from mold-induced “building-related illnesses.” We disagree.

{¶ 9} “The determination of the admissibility of expert testimony is within the discretion of the trial court * * * [and] will not be disturbed absent abuse of discretion.” Valentine v. Conrad (“ Valentine II”), 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, at ¶ 9. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. An abuse of discretion demonstrates “perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. When applying the abuse-of-discretion standard, this court may not substitute its judgment for that of the trial court. Id.

{¶ 10} The admissibility of expert testimony is governed by Evid.R. 702, which provides as follows:

A witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons[;]

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. * * *.

Evid.R. 702. To determine whether a proposed expert's testimony about a scientific technique or a scientific methodology is scientifically reliable, the trial court should focus on the following factors: “(1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance [in the scientific community]. * * * The focus is ‘solely on principles and methodology, not on the conclusions that they generate.’ ” (Citations omitted). Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 611-612, 687 N.E.2d 735, quoting Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469.

{¶ 11} In its decision to exclude Dr. Linz's testimony, the trial court remarked that “[g]enerally, [Dr. Linz] is well qualified to testify as a medical expert.” The court further opined on the issue of Dr. Linz's methodology as follows:

Dr. Linz * * * reviewed a number of articles and other writing on the mold exposure issues, and after interviewing members of the Sparber family, concluded that there was a causal connection [based on] the fact that the Sparber family was exposed to the mold condition. There was inadequate methodology for his conclusions on the proximate cause as required by the Daubert test.

To the extent that the tenants argue that Dr. Linz's testimony should have been admissible under Evid.R. 702(A) and (B), such arguments are misplaced, as it is evident that the trial court excluded Dr. Linz's testimony on the basis of Evid.R. 702(C) alone.

{¶ 12} The determination that an expert is qualified in an area is distinctly different from a determination that the expert's testimony is scientifically reliable under Evid.R. 702(C). Valentine II, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, at ¶ 17. “A trial court's role in determining whether an expert's testimony is admissible under Evid.R. 702(C) focuses on whether the opinion is based upon scientifically valid principles, not whether the expert's conclusions are correct or whether the testimony satisfies the proponent's burden of proof at trial.” Miller, 80 Ohio St.3d 607, 687 N.E.2d 735, at paragraph one of the syllabus. Accordingly, the trial court's focus is not on the substance of the expert's conclusion, but rather the methodology employed by the expert to reach such a conclusion. Valentine II at ¶ 16.

{¶ 13} Here, the trial court held a Daubert hearing to determine whether Dr. Linz's testimony was admissible to prove that the Sparbers had injuries that were caused by their exposure to mold while living in the Williamsburg Court Apartments. At the hearing, Dr. Linz testified that his medical opinion was that the Sparbers “had a constellation of symptoms which were consistent with an association of symptoms consistent with ‘building-related illness.’ ” Though not adduced at the hearing, in an exhibit attached to the tenants' memorandum in opposition to exclude Dr. Linz's testimony, Dr. Linz reported, without citations or reference, as follows:

By definition, Building Related Illness, or BRI is a heterogeneous group of signs and symptoms related to a living or work environment in which microbial growth, in this instance, mold exposure, is the proposed agent associated with the signs, symptoms, and complaints of those

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