Rehm v. Ford Motor Co., Nos. 2009–CA–001868–MR, 2009–CA–001974–MR.

Decision Date16 May 2012
Docket NumberNos. 2009–CA–001868–MR, 2009–CA–001974–MR.
Citation365 S.W.3d 570
PartiesDebbie Ellen REHM; Debbie Ellen Rehm, Executrix of the Estate of James David Rehm; Christina Marie Rehm, by and through Parent Guardian and Next Friend Debbie Ellen Rehm; and Nicholas James Rehm, by and through Parent Guardian and Next Friend Debbie Ellen Rehm, Appellants, v. FORD MOTOR COMPANY and Garlock Sealing Technologies, Inc., Appellees. and Ford Motor Company, Cross–Appellant v. Debbie Ellen Rehm, Executrix of the Estate of James David Rehm, Cross–Appellee.
CourtKentucky Court of Appeals

OPINION TEXT STARTS HERE

Kenneth L. Sales (argued), Joseph D. Satterley, Paul J. Kelley, David G. Bryant, Paul J. Ivie, Louisville, KY, for Appellants.

Byron N. Miller (argued), Adam B. Shadburne, Heather R. Cash, Louisville, KY, for Appellee/Cross–Appellant Ford Motor Company.

Before CAPERTON, COMBS, and THOMPSON, Judges.

OPINION

COMBS, Judge:

Debbie Ellen Rehm, individually and as Executrix of the Estate of James David Rehm; Nicholas James Rehm; and Christina Marie Rehm (the Rehms) appeal from the judgment of the Jefferson Circuit Court following a jury verdict in favor of Ford Motor Company in a premises liability lawsuit. Ford Motor Company cross-appeals. Following our review of the extensive record, the facts, and the law, we affirm both as to the appeal and as to the cross-appeal.

James Rehm was the late husband of Debbie and the father of Nicholas James and Christina Marie Rehm. In January 2001, James was diagnosed with malignant mesothelioma, a form of cancer that is caused by asbestos. He had worked as a millwright (an industrial construction worker) in the late 1970s until 1981 as an employee of Rapid Installations (Rapid). After leaving Rapid sometime in 1981, he went to work as an elevator mechanic at some point in 1981. Critical to the case was the fact that the exact dates of James's employment were highly disputed at trial. James testified that he had been a millwright at Rapid from 1975 through 1982. Ford presented documentation (Social Security records) that indicated James began working at Rapid in 1977 but had stopped by March 10, 1981, the last entry for Social Security withholding listing Rapid Installations as his employer. He began as an elevator mechanic for A–1 Elevator on March 12, 1981, the starting date of employment which he listed on his application for union membership as a millwright in Local 2209.

Rapid manufactured and installed conveyer systems for other companies. Before installing new systems in manufacturing plants, Rapid's millwrights tore out the old systems. The process of removing the old systems often exposed millwrights to asbestos contained in components such as pipe insulation and boiler systems. Rapid performed this work at Ford Motor Company's Louisville Assembly Plant (LAP).

Shortly after his diagnosis of malignant mesothelioma, James Rehm and his wife and children filed the underlying lawsuit in Jefferson Circuit Court. Numerous defendants were named, including Rapid and many companies that had hired Rapid to remove their manufacturing equipment. Ford was one of the original defendants.1 James Rehm passed away on July 5, 2002, while the lawsuit was still in the discovery phase.

After a long procedural history that is not relevant to this appeal, the Rehms and Ford 2 proceeded to trial on August 3, 2009. On August 17, 2009, the jury rendered its verdict in favor of Ford. The Rehms filed this appeal on October 6, 2009, and Ford filed a cross-appeal on October 20, 2009.

The Rehms first argue that the trial court erred by admitting old newspaper articles into evidence. The Rehms' case was based on the allegation that James Rehm was working at Ford LAP when it converted its facilities in preparation for manufacturing the Ford Ranger and Bronco and after it discontinued manufacturing the LTD. Ford's defense was that James Rehm was no longer employed as a millwright during the time of the changeover and the tear-out process; therefore, he could not have been involved. The Rehms presented witnesses who testified that James Rehm was working during the changeover. In response, Ford presented employment records showing that James had left Rapid in March 1981. It then produced two newspaper articles that reported that the last LTD manufactured in Louisville rolled off the line in June of 1981. Therefore, Ford contended that James could not have been involved in the changeover work that occurred after June 1981.

Our standard of review for evidentiary issues is whether the trial court abused its discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky.1996) ( overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky.2008)). Our Supreme Court has defined abuse of discretion as a court's acting arbitrarily, unreasonably, unfairly, or in a manner “unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

The Rehms contend that the newspaper articles should not have been admitted because they are hearsay. In fact, the court admitted on the record that newspaper articles are “the most specious form of hearsay.” However, the judge decided to admit the articles pursuant to the ancient-documents exception to the hearsay rule. Kentucky Rule(s) of Evidence (KRE) 803(16) provides that even if they are hearsay, [s]tatements in ancient documents ... in existence twenty (20) years or more the authenticity of which is established” may be admitted into evidence.

The articles at issue were twenty-eight years of age. The Rehms argue that they were not properly authenticated. However, according to KRE 902(6), newspaper articles are self-authenticating. Although no published Kentucky cases have applied the ancient-document exception, Professor Lawson acknowledges that the rule is applicable to newspaper articles. Robert G. Lawson, The Kentucky Evidence Law Handbook, § 8.85(4), at 730 (4th Ed.2003).

We have reviewed the cases that the Rehms submitted to support their argument that the articles were inadmissible hearsay. All of them are distinguishable from the facts before us because none of them involved newspaper articles old enough to qualify as eligible for the ancient-document exception. They were contemporaneous with the proceedings for which they were offered. See Bowling v. Lexington–Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 342 (Ky.2005); Shirley v. Commonwealth, 378 S.W.2d 816, 818 (Ky.1964); Turner v. City of Taylor, 412 F.3d 629, 651 (6th Cir.2005); Barbo v. Kroger Co., 2007 WL 2350183, at *2 (W.D.Ky. Aug. 13, 2007); Gantt v. Whitaker, 57 Fed.Appx. 141, 149 (4th Cir.2003); Spotts v. U.S., 562 F.Supp.2d 46, 54–55 (D.D.C.2008); Eisenstadt v. Allen, 113 F.3d 1240 (9th Cir.1997).

Additionally, we note that neither the Rehms nor Ford could produce any other written documentation pertaining to the actual dates involving the plant changeover. Each produced witnesses who were asked to recall events of nearly thirty years ago regarding dates that were a mere two months apart. James provided detailed testimony of working at Ford during the changeover; he testified that for several months during that period he had worked in the Ford plant seven days per week—including holidays and Saturdays. Ford presented written evidence that James had left Rapid in March 1981—prior to the changeover date of June 1981 recounted in the newspaper articles. Bolstering the pertinence of the articles was the testimony of one of Ford's witnesses, who related that the plant would not have retained records relating to the changeover beyond five or six years. The evidence was undeniably tenuous. But we are persuaded that the newspaper articles were more probative than prejudicial in aiding the jury in its finding of fact concerningwhether James could have participated in the changeover.

The Rehms argued that the tearing out of equipment could have begun before the last LTD rolled off the assembly line (June 1981). They presented testimony to that effect and reiterated that theory in closing argument. The trial court admonished the jury that the articles were not necessarily true, leaving to the jury the ultimate task of fact-finding based on conflicting evidence derived from the newspaper articles versus witness recollection. Based on the lengthy passage of time in this case involving some thirty years, the trial court did not abuse its discretion in admitting the newspaper articles under the ancient-documents exception to the hearsay rule.

The Rehms' next arguments are related to the trial court's allowing testimony from Ford's expert witness, Dr. Robert Morgan, an occupational epidemiologist. Dr. Morgan offered his theory that James had developed mesothelioma as a result of household exposure to his own father's work clothes. The elder Mr. Rehm had worked as an elevator mechanic, and Dr. Morgan speculated that he could have carried home asbestos in his hair and on his clothing. Dr. Morgan also mentioned that James had been exposed to asbestos in plants other than Ford as possible alternate sources of contamination.

The Rehms argue that Dr. Morgan's household exposure theory is speculative and without foundation because James's father testified that he had never been exposed to asbestos during his work as an elevator mechanic. They also contend that the testimony was prejudicial in giving the jury the suggestion that James's own work as an elevator mechanic could have been the source of his exposure to asbestos.

Rehm also contends that Dr. Morgan's testimony about the household exposure was unreliable. KRE 702 sets forth the standards for expert testimony as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or...

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