Searles v. Fleetwood Homes of Pennsylvania

• Decision Date: 05 August 2005
• Citation: 878 A.2d 509,2005 ME 94
• Parties: Ronald SEARLES et al. v. FLEETWOOD HOMES OF PENNSYLVANIA, INC., et al.
• Court: Maine Supreme Court

878 A.2d 509

2005 ME 94

Ronald SEARLES et al. v. FLEETWOOD HOMES OF PENNSYLVANIA, INC., et al.

Supreme Judicial Court of Maine.

Argued: May 17, 2005.

Decided: August 5, 2005.

Peter W. Schroeter, Esq. (orally), Aaron P. Burns, Esq., Smith Elloitt Smith & Garmey, P.A., Saco, for plaintiffs.

Stephen E.F. Langsdorf, Esq. (orally), Preti Flaherty Beliveau Pachios & Haley, LLC, Portland, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.¹

LEVY, J.

[¶ 1] This case arises from Ronald and Debra Searles's purchase of a home from Schiavi Homes, LLC, that was manufactured by Fleetwood Homes of Pennsylvania, Inc. After experiencing a series of problems with the home, including the growth of extensive mold, the Searleses filed a complaint seeking damages. Following a jury trial, the Superior Court (York County, Brennan, J.) entered a judgment awarding money damages in favor of the Searleses. Fleetwood and Schiavi assert that the court erred by (1) failing to exclude the testimony of the Searleses' expert witness; (2) finding that Fleetwood's conduct constituted a violation of the Maine Unfair Trade Practices Act, 5 M.R.S.A. §§ 205-A to 214 (2002); and (3) failing to give a comparative negligence instruction. We affirm the judgment.

I. BACKGROUND

[¶ 2] Viewed in a light most favorable to the jury's verdict, the record establishes the following facts. See Sullivan v. Porter, 2004 ME 134, ¶ 2, 861 A.2d 625, 628

.

A. The Searleses' Problems With Their Home

[¶ 3] The Searleses purchased their home in November 2000. Soon after they and their three young children moved into the home, the Searleses compiled a list of repairs that needed to be made. During a subsequent walk-through, a Schiavi representative assured the Searleses that somebody would contact them and that the repairs would be made.

[¶ 4] The Searleses did not hear from anyone and had to follow up with Schiavi to inquire about the repairs. In the interim, they were having a condensation problem with their windows.

[¶ 5] Fleetwood sent Mike Becker, an independent contractor, to the Searleses' home in February 2001. Becker was not able to fix all of the problems on the Searleses' repair list because he did not have the proper materials. With respect to the windows, Becker could not determine what was causing the condensation but promised the Searleses that he would have the window manufacturer contact them.

[¶ 6] Becker returned to the Searleses' home at the end of March. He told the Searleses that he had not heard anything with respect to the windows, but said that he would get in touch with Fleetwood and get the problem taken care of. He did some more work on the home, though he was again unable to complete the needed repairs because he did not have the proper materials.

[¶ 7] Becker worked at the Searleses' home a third time in May 2001. Debra testified that he still did not have enough materials to finish the needed repairs, and that although Becker said he would be back, they never heard from him again.

[¶ 8] Because of her concern regarding the condensation on the windows, Debra started trying to contact someone at Fleetwood. She was repeatedly told by Fleetwood's employees over the course of the summer that someone would be in touch with her. She never received a response.

[¶ 9] That fall, condensation from the Searleses' daughter's bedroom window soaked her bed, and the Searleses discovered mold growing on the bedpost, up the side of the window, on the trim, and on the inside of the curtains. Not having heard from anybody at Fleetwood, Debra called Schiavi and spoke with Cliff Hemingway. Hemingway visited the Searleses' home, agreed that the condensation problem with the windows needed to be remedied, and said that he would try to get in touch with Fleetwood.

[¶ 10] Debra did not hear from anybody, so she called Hemingway again. Hemingway advised her to contact the Maine Manufactured Housing Board because he did not believe that the Searleses were getting adequate service from Fleetwood. Debra filed a complaint with the Board in November.

[¶ 11] In response to the complaint, a Fleetwood representative visited the Searleses' home. The representative concluded that at least five, and possibly all, of the windows in the home needed to be replaced and that the mold needed to be remedied. Before leaving, the representative assured the Searleses that he would place the order for the windows himself and return to take care of their problems. The representative never returned.

[¶ 12] From January to April 2002, the Searleses repeatedly called Fleetwood to inquire when their windows would be replaced. On two separate occasions contractors were sent to the home, but the windows were not replaced either time.

[¶ 13] In April 2002, a Fleetwood contractor replaced the Searleses' windows. In the process of replacing the windows, the contractor discovered that mold was growing on the windowsills and frames, on the studs used to frame the windows, in the insulation near the windows, on and under the home's vinyl siding, and under the roof. After obtaining approval from Fleetwood, the contractor started replacing some of the mold-damaged studs and insulation. The contractor soon realized that the scope of the mold problem was beyond his ability to repair and, upon Fleetwood's instruction, stopped those efforts and simply replaced the windows.

[¶ 14] Fleetwood sent experts to the Searleses' home to do mold testing in May 2002. Their investigations documented active mold growth in the home and heightened airborne mold levels, as compared with levels outside.

[¶ 15] The Searleses subsequently sent Fleetwood a letter revoking their acceptance of the home. In response, Fleetwood offered to remediate the home and to pay for the family's lodging while the work was being done. The Searleses rejected the offer because Fleetwood never provided them with a detailed remediation plan and because they no longer trusted the company.

B. Procedural Background and Trial

[¶ 16] The Searleses filed a complaint in October 2002 seeking damages on theories of, among other things, revocation of acceptance, unfair trade practices, and negligence. A jury trial was held in March 2004.

[¶ 17] Prior to the trial, Fleetwood and Schiavi (Fleetwood) filed a motion in limine requesting the court to exclude the testimony of one of the Searleses' expert witnesses, Dr. Susan Upham. The motion focused on evidence related to the Searleses' respiratory problems. The Searleses developed respiratory problems shortly after moving into their home. Their symptoms included coughing, postnasal drip, and sinus and chest congestion. Dr. Upham was expected to testify that the Searleses' symptoms were caused by an irritant reaction to volatile organic compounds (VOCs) emitted by the mold in their home. Invoking the Daubert standard, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Fleetwood asserted that there was "no evidence in the record demonstrating that [Dr. Upham's] opinion [was] based on any scientific testing [or methodology] that has been subject to peer review or that is otherwise generally accepted in the relevant scientific community." Accordingly, Fleetwood asked the court to exclude Dr. Upham's testimony.

[¶ 18] At the outset of the trial, the court preliminarily ruled that it would permit Dr. Upham to testify. Before she testified, however, the court gave Fleetwood an opportunity to reargue that her testimony should be excluded. Fleetwood reiterated its objections to Dr. Upham's testimony based on the arguments set forth in its motion in limine. The court then formally denied Fleetwood's motion. To counter Dr. Upham's testimony, Fleetwood offered expert testimony that the mold in the Searleses' home could not have caused their medical problems.

[¶ 19] The jury found that: (1) the Searleses were entitled to revoke their acceptance of the home; (2) Fleetwood committed an unfair or deceptive trade practice in violation of the Maine Unfair Trade Practices Act; and (3) Fleetwood was liable for negligence.² The Searleses were awarded damages in the amount of $62,708.59 plus interest for the revocation of acceptance count, $141,074 plus interest for the negligence count, $70,348.42 in attorney fees and costs for the unfair trade practices count, and $7168.85 in costs. This appeal followed.

II. DISCUSSION

A. Expert Testimony

[¶ 20] Fleetwood contends that the Superior Court erred in admitting Dr. Upham's testimony because no peer-reviewed, scientifically verified, and generally accepted studies support her conclusion that VOCs emitted by mold can cause irritant reactions of the type experienced by the Searleses.

[¶ 21] The Maine Rules of Evidence provide, "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 otherwise." M.R. Evid. 702. A proponent of expert testimony must establish that (1) the testimony is relevant pursuant to M.R. Evid. 401, and (2) it will assist the trier of fact in understanding the evidence or determining a fact in issue. State v. Williams, 388 A.2d 500, 504 (Me.1978).³

[¶ 22] "To meet the two-part standard for the admission of expert testimony, the testimony must also meet a threshold level of reliability." In re Sarah C., 2004 ME 152, ¶ 11, 864 A.2d 162, 165. In cases where expert testimony "rests on newly ascertained, or applied, scientific principles," a trial court may consider whether "the scientific matters involved in the proffered testimony have been generally accepted or conform to a generally accepted explanatory theory" in determining whether the threshold level of reliability has been met. Williams, 388 A.2d at 504....