2013 Ohio 2790
Ohio Ct. App.2013Background
- Coopers hired Akron Pest Control to treat a termite infestation; Termidor SC was applied in April 2008 inside an open wall in the bedroom, under a sink cabinet, and around the home’s perimeter.
- Mrs. Cooper suffered health problems starting July 2008, including weakness, cognitive issues, tremors, and later hypothyroidism and Hashimoto’s thyroiditis, with clinicians noting possible pesticide exposure.
- The Coopers asserted negligence, products liability, and fraud claims against BASF, Inc. and Akron Pest Control.
- In November 2010, the trial court ordered the Coopers to identify expert witnesses and to provide affidavits linking general causation and specific causation to Termidor SC.
- The Coopers offered Dr. Lipsey (general causation) and Dr. Guzzardi (specific causation) whose opinions relied on Lipsey’s general causation affidavit.
- The trial court granted summary judgment, excluding Lipsey’s general causation opinion as scientifically unreliable, concluding lack of general causation forecloses consideration of specific causation and other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Lipsey and summary judgment | Coopers argue the court erred in excluding Lipsey and granting summary judgment on all claims. | BASF and Akron Pest Control contend Lipsey’s methods were unreliable; summary judgment proper. | No abuse of discretion; summary judgment affirmed. |
| Motion to strike reply briefs | Coopers claim denial of strike prejudiced them by allowing new arguments/evidence. | Defendants had legitimate need to correct scrivener errors; no prejudice to Coopers. | No reversible error; denial not an abuse; harmless. |
Key Cases Cited
- Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998) (gateway to admissibility of expert testimony under Evid.R. 702)
- Valentine v. Conrad, 110 Ohio St.3d 42 (2006) (gatekeeping and reliability of scientific expert testimony)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (factors for reliability of evidence and methodology)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (Dresher standard for summary judgment burden shifting)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (burden on moving party to show absence of genuine issues of material fact)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (general causation framework for toxic-substance exposure cases)
- Finley v. First Realty Property Mgt., Ltd., 185 Ohio App.3d 366 (2009) (standards for admissibility and sufficiency in expert testimony)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (de novo review of summary judgment; Civ.R. 56 standards)
- Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7 (1983) (summary judgment standard and viewing evidence in light most favorable)