Terry v. Caputo
| Decision Date | 03 October 2007 |
| Docket Number | No. 2006-0705.,2006-0705. |
| Citation | 875 N.E.2d 72,115 Ohio St.3d 351,2007 Ohio 5023 |
| Parties | TERRY et al., Appellees, v. CAPUTO et al., Appellants. |
| Court | Ohio Supreme Court |
Murray & Murray Co., L.P.A., and Margaret M. Murray, Sandusky, for appellees.
Robison, Curphey & O'Connell, Thomas J. Antonini, and Mark A. Ozimek, Toledo, for appellants.
{¶ 1} Lake Investments, Inc., Northcoast Property Management, the W.W. Emerson Company, Leonard Partin, and John Caputo appeal from a decision of the Ottawa County Court of Appeals that reversed the trial court's order of summary judgment in their favor in this mold-exposure case. They contest the appellate court's determination that genuine issues of material fact remain despite the failure of the claimants1 to offer reliable medical expert testimony to establish proximate cause. Without any expert medical testimony to establish specific causation, appellants assert entitlement to summary judgment.
{¶ 2} Initially, we conclude that the appellate court applied the proper causation analysis for cases involving exposure to the presence of mold in a building and the specific injuries suffered by these claimants, an analysis that includes both general and specific causation. We therefore affirm that part of the appellate decision that determined that Dr. Bernstein provided expert medical evidence as to general causation but failed to provide expert medical evidence as to specific causation; but we reverse the appellate court's decision to remand the case to the trial court for consideration of additional evidence regarding specific causation because it erred in determining that genuine issues of material fact existed despite the lack of expert medical testimony on the issue of specific causation. Because claimants failed to provide expert medical evidence relating to the specific cause of their injuries as an element of their mold-exposure claim, the appellate court could not have found that a genuine issue of material fact existed with respect to specific causation.
{¶ 3} In 1996, the Ottawa County Board of MRDD leased several suites in the Buckeye Building located in Port Clinton, Ohio, from W.W. Emerson, a company owned by John Caputo and Leonard Partin. At that time, Northcoast Property Management Company and Lake Investments had the responsibility of maintaining the building. After working in the building for some time, several board employees reported headaches and other physical ailments, which they attributed to damp conditions in the building. At the request of the employees, the Ottawa County MRDD Safety Committee conducted a building inspection; mold was visible in various areas, and a strong mildew odor permeated the premises. Following this inspection, the building was cleaned, and it appeared that the employees' symptoms eased.
{¶ 4} Employees shortly discovered additional mold and claimed that their symptoms returned; as a result, the board vacated the building in August. Subsequent testing revealed five separate species of mold spores, including one fungus (stachybotrys chartarum) that could have explained the physical ailments described by the employees.
{¶ 5} The claimants filed this mold-exposure suit to recover damages from appellants and the Ottawa County MRDD for their injuries. The board, asserting immunity, moved for judgment on the pleadings. The trial court granted that motion, and as a result, the board is no longer a party to this case.
{¶ 6} Claimants retained Jonathan Bernstein, M.D., as an expert, and although he never examined them individually, he did review their medical records and a microbial assessment survey compiled by Robert Clint Jones of Hygienetics Environmental Services, Inc. Using this information, Bernstein prepared a letter for claimants' counsel in which he connected the conditions at the Buckeye Building, specifically the presence of mold, with the symptoms alleged by the claimants. His letter states that the claimants "experienced clinical symptoms consistent with building-related illness that was the result of multiple problems including water incursion leading to mold and mildew growth, poor ventilation and poor filtration." Thereafter, appellants deposed Dr. Bernstein and jointly filed two motions: one for summary judgment and a second to exclude his testimony pursuant to Evid.R. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. The trial court, pursuant to Evid.R. 702, excluded Dr. Bernstein's testimony because (1) he did not base his report on sufficient facts or data, (2) his report was not the product of reliable principles and methods, and (3) he did not apply the principles and methods reliably to the facts of the case. Moreover, the trial court determined that Dr. Bernstein's testimony lacked a methodology satisfying Daubert as to the proximate cause of the claimants' injuries because (1) "he failed to adhere to an established methodology for differential diagnosis by not ruling in the suspected causes and by not ruling out any other possible causes," (2) "he failed to support his conclusions regarding a correlation between exposure to mold, irritants, and allergic reactions and the mold and irritants" present in the building as the proximate cause of the claimants' ailments, (3) "he relied solely on temporal causation to arrive at his conclusions," and (4) "he failed to present a review of the literature to support his conclusions." After excluding Dr. Bernstein's testimony, the trial court granted summary judgment because claimants had presented no other expert testimony in the case.
{¶ 7} The claimants appealed the trial court's decisions to the Ottawa County Court of Appeals. The appellate court reviewed the evidence and determined that the trial court had erred in excluding Bernstein's evidence with respect to general causation, but affirmed the trial court with respect to excluding Bernstein as an expert with regard to specific causation, holding that he did not conduct a reliable differential diagnosis because he relied too heavily upon the temporal relationship between exposure and symptoms and that he failed to rule out other causes of the symptoms exhibited by the claimants. Terry v. Ottawa Cty. Bd. of Mental Retardation & Dev. Delay, 165 Ohio App.3d 638, 2006-Ohio-866, 847 N.E.2d 1246, ¶ 63-64, 67.
{¶ 8} The court of appeals then reversed the grant of summary judgment and remanded the case to the trial court because it concluded that the remaining nonexpert evidence, i.e., the microbial survey, the claimants' medical records, and the claimants' testimony during deposition, created a genuine issue of material fact. It further concluded that the claimants "may yet obtain a relevant and reliable expert opinion on the issue of specific causation." Id. at ¶ 88.
{¶ 9} Appellants sought review in this court, and we accepted this discretionary appeal to consider the issue of whether expert testimony is required to establish both general and specific causation in mold-exposure cases.
{¶ 10} In conformity with our decision in Darnell v. Eastman (1970), 23 Ohio St.2d 13, 52 O.O.2d 76, 261 N.E.2d 114, appellants urge that claimants must present expert testimony to establish both that the substance at issue is capable of causing the condition ("general cause") and that the substance in fact caused the injury of which they complain ("specific cause").
{¶ 11} Claimants maintain, in accord with the opinion of the court of appeals, that they have presented reliable expert testimony establishing general causation and, further, that they have provided reliable evidence as to specific causation sufficient to overcome summary judgment.
{¶ 12} This court has not previously addressed this specific issue. We recognize, however, that the federal courts have frequently considered it. Knight v. Kirby Inland Marine, Inc. (C.A.5, 2007), 482 F.3d 347, 351; Jazairi v. Royal Oaks Apt. Assoc., L.P. (C.A.11, 2007), 217 Fed.Appx. 895, 898, 2007 WL 460843; Roche v. Lincoln Property Co. (C.A.4, 2006), 175 Fed. Appx. 597, 602-603, 2006 WL 910241; Norris v. Baxter Healthcare Corp. (C.A.10, 2005), 397 F.3d 878, 881; Ruggiero v. Warner-Lambert Co. (C.A.2, 2005), 424 F.3d 249, 251-252, fn. 1; In re Hanford Nuclear Reservation Litigation (C.A.9, 2002), 292 F.3d 1124, 1133; Heller v. Shaw Industries, Inc. (C.A.3, 1999), 167 F.3d 146, 165; Raynor v. Merrell Pharmaceuticals, Inc. (C.A.D.C.1997), 104 F.3d 1371, 1376.
{¶ 13} These courts have established "a two-step process in examining the admissibility of causation evidence in toxic tort cases." Knight, 482 F.3d at 351; see, also, Raynor, 104 F.3d at 1376. The first step requires a claimant to offer evidence establishing general causation—that is, "`whether a substance is capable of causing a particular injury or condition in the general population.'" Knight, 482 F.3d at 351, quoting Merrell Dow Pharmaceuticals, Inc. v. Havner (1997), 40 Tex.Sup. Ct.J. 846, 953 S.W.2d 706.
{¶ 14} The second step, which applies only after a court finds competent evidence establishing general causation, requires a claimant to offer specific causation evidence. This evidence relates to "`whether a substance caused a particular individual's injury.'" Id., quoting Merrell Dow Pharmaceuticals, Inc. v. Havner (1997), 40 Tex. Sup.Ct.J. 846, 953 S.W.2d 706.
{¶ 15} We find this two-step analysis to be reasonable and therefore adopt it in Ohio. To present a prima facie case involving an injury caused by exposure to mold or other toxic substance, a claimant must establish (1) that the toxin is capable of causing the medical condition or ailment (general causation), and (2) that the toxic substance in fact caused the claimant's medical condition (specific causation).
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