Terry v. Bd. of Mental Retardation

• Decision Date: 24 February 2006
• Docket Number: No. OT-05-009.,OT-05-009.
• Citation: 165 Ohio App.3d 638,847 N.E.2d 1246,2006 Ohio 866
• Parties: TERRY et al., Appellants, v. OTTAWA COUNTY BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL DELAY; W.W. Emerson Co. et al., Appellees.
• Court: Ohio Court of Appeals

847 N.E.2d 1246

165 Ohio App.3d 638

2006-Ohio-866

TERRY et al., Appellants, v. OTTAWA COUNTY BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL DELAY; W.W. Emerson Co. et al., Appellees.

No. OT-05-009.

Court of Appeals of Ohio, Sixth District, Ottawa County.

Decided February 24, 2006.

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Margaret M. Murray, Dennis M. Murray Sr., and Duane Galloway, Sandusky, for appellants.

Thomas J. Antonini and Mark A. Ozimek, Toledo, for appellees.

SKOW, Judge.

{¶ 1} Appellants ask us to reverse the decision of the Ottawa County Court of Common Pleas, which granted appellees' motion to exclude the opinion of appellants' expert witness that mold growth in appellees' building caused appellants' injuries. Appellants also ask us to reverse the trial court's grant of summary judgment to appellees as to all of appellants' claims. After a thorough review, we must conclude that the trial court erred in barring the testimony of appellants' expert witness and that the grant of summary judgment to appellees was therefore improper.

{¶ 2} The Ottawa County Board of Mental Retardation and Developmental Delay ("Ottawa County MR/DD"),¹ leased several suites in a building called "the Buckeye Building" from appellee W.W. Emerson Company ("Emerson"). Appellees Northcoast Property Management Company and its agent, Lake Investments, Inc., are allegedly responsible for maintenance of the Buckeye Building. Appellants, 15 employees of Ottawa County MR/DD, worked in the Buckeye Building from May 1996 until August 2000.

{¶ 3} In their complaint and through their deposition testimony, appellants allege that appellees had allowed the Buckeye Building to deteriorate and to develop damp, musty conditions that caused mold to grow on walls, windows, and carpeting. Appellants also allege that the damp, musty conditions caused poor indoor air quality, which in turn caused appellants to suffer from respiratory and other medical problems. Daniel Pfahl, Human Resources Director for Ottawa County MR/DD, complained to appellees on behalf of the employees numerous times about the conditions in the building, and he requested needed repairs. Many of the complaints involved building conditions, such as leaky windows and bathroom fixtures and a malfunctioning hearing and air conditioning system. Those defects allowed water to seep into the building, causing wood rot and mold. The employees described visible mold around windows, baseboards, floor tiles, vents, and carpeting. They also described a "foul smell of mildew" in the air, which became increasingly pronounced until the premises were vacated. Appellants allege that appellees' agents had walked through the building many times and that appellees were aware of the conditions.

{¶ 4} In May 2000, the Ottawa County MR/DD safety committee conducted an annual inspection of the Buckeye Building and found extremely dirty air vents, water-stained ceiling tiles, and complaints of headaches among the employees. The safety committee's report was given to appellees. In response, appellees did some cleaning of the building, including cleaning the carpets. The employees noted that during the month following the cleaning, their physical problems eased, but their symptoms returned after the carpeting again became discolored and more water streaks appeared on the walls. One employee then contacted the Ottawa County Health Department about the building's condition. In August 2000, the health department inspected the Buckeye Building and found mold growth. Shortly afterwards, Ottawa County MR/DD vacated the building.

{¶ 5} In early September 2000, at the request of the health department, Foley Occupational Health Consulting ("Foley") conducted air-quality surveys of the building by collecting four indoor air samples on different days. Testing reflected the presence of at least five species of mold spores in the air. Notably, Foley did not collect any outdoor air samples for a comparative analysis. In a letter to Pfahl, Foley noted that one fungus, stachybotrys chartarum, might have been the causative agent for the symptoms described by the employees, because it is sometimes known to cause symptoms such as "dermatitis, flu-like symptoms, fatigue, and diarrhea and may also affect the immune system." The report noted, however, that the testing revealed only low levels of this particular fungus.

{¶ 6} On September 25, 2000, the employees filed the instant complaint, asserting that appellees' negligence in allowing mold to grow in the building caused their health problems. Their health problems included, among other things, vomiting, chronic respiratory problems, headaches, fatigue, and joint pain. The employees' spouses added claims for loss of consortium. Shortly after the filing of the complaint another company, Hygienetics Environmental Services, Inc. ("Hygienetics"), retained by appellants, conducted air-quality testing in the portions of the Buckeye Building previously occupied by appellants. Hygienetics took air samples for one day, over a four-hour time span. Unlike in Foley's testing, outdoor air samples were also taken, in order to compare them with the indoor air samples. "Unopened sample media field blanks" were also analyzed and compared. Hygienetics also found five types of mold present, as well as bacteria not normally present in indoor or outdoor environments. Its report compared its analysis of the indoor and outdoor air samples to Foley's results.

{¶ 7} Appellants also obtained an opinion from Jonathan A. Bernstein, M.D., an allergist and immunologist, that the air quality in the Buckeye Building caused their illnesses. Appellees moved to bar Dr. Bernstein's testimony pursuant to Evid.R. 702, arguing that his methods could not meet the standards for admissibility of Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. The trial court granted the motion, and soon thereafter, it granted appellees' motion for summary judgment on the grounds that appellants could not demonstrate that the Buckeye Building's conditions were the proximate cause of their injuries.

{¶ 8} Appellants present three assignments of error:

{¶ 9} "The trial court abused its discretion excluding the testimony of plaintiffs' expert, Jonathan Bernstein.

{¶ 10} "The trial court erred in granting defendants' motion for summary judgment on the personal injury claims.

{¶ 11} "The trial court erred in dismissing plaintiffs' case without ruling on plaintiffs' claims for negligent and intentional infliction of emotional distress."

I. Appellants' Expert's Testimony

{¶ 12} In their first assignment of error, appellants argue that the trial court misapplied Daubert (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, and Evid.R. 702 in excluding their expert witness, Dr. Bernstein. Evidence orders are reviewed to determine whether the trial court abused its discretion. The term "`abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. Trial courts have substantial discretion in determining which evidence to admit or exclude at trial. Peters v. Ohio Lottery Comm. (1992), 63 Ohio St.3d 296, 299, 587 N.E.2d 290, certiorari denied (1992), 506 U.S. 871, 113 S.Ct. 205, 121 L.Ed.2d 146. A reviewing court cannot conclude that a trial court abused its discretion merely because, in the same circumstances, it would have ruled differently or because the trial court committed a mere error in judgment.

{¶ 13} "However, where the trial court has misstated the law or applied the incorrect law and thereby given rise to a purely legal question, appellate review is de novo. Shaffer v. OhioHealth Corp., 10th Dist. No. 03AP-102, 2004-Ohio-63, 2004 WL 35725, at ¶ 6, citing Ohio State Bd. of Pharmacy v. Dick's Pharmacy (2002), 150 Ohio App.3d 343, [2002-Ohio-6500], 780 N.E.2d 1075; Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership (1992), 78 Ohio App.3d 340, 346, 604 N.E.2d 808." First Union Natl. Bank of Delaware v. Maenle (2005), 162 Ohio App.3d 479, 487, 833 N.E.2d 1279. This district adopted this standard in State v. Nguyen (2004), 157 Ohio App.3d 482, 487, 811 N.E.2d 1180, appeal denied by 103 Ohio St.3d 1480, 816 N.E.2d 255, in which we held that while discovery orders are normally reviewed for an abuse of discretion, the review will be de novo when the decision was "based on a misconstruction of the law or an erroneous standard." Id., citing State v. Today's Bookstore, Inc. (1993), 86 Ohio App.3d 810, 823, 621 N.E.2d 1283, citing Castlebrook, Ltd., supra.

{¶ 14} "[W]here a trial court's order is based on an erroneous standard or a misconstruction of the law, it is not appropriate for a reviewing court to use an abuse of discretion standard. In determining a pure question of law, an appellate court may properly substitute its judgment for that of the trial court, since an important function of appellate courts is to resolve disputed propositions of law.

{¶ 15} "Confusion has been engendered by an unfortunate choice of words when courts have said on occasion that an abuse of discretion connotes `more than an error of law.' It would be more accurate to say that an abuse of discretion is `different from an error of law.' A trial court's purely legal determination will not be given the deference that is properly accorded to the trial court with regard to those determinations that are within its discretion." Castlebrook, Ltd., 78 Ohio App.3d at 346, 604 N.E.2d 808.

{¶ 16} The trial court carefully listed its grounds for excluding Bernstein's testimony:

{¶ 17} "[T]his Court cannot grant the admissibility of Dr. Bernstein's expert testimony because it (1) is not based upon sufficient facts or data, (2) it is not a product of...