Terry v. Caputo, 2007-Ohio-5023
The Ohio Supreme Court recently heightened the level of proof required for plaintiffs to succeed not only at trial but also at the summary judgment stage in toxic tort cases. In so doing, the Court held that cases involving exposure to toxic chemicals require two scientific inquiries: (1) whether the substance at issue is capable of causing the plaintiff’s medical condition (general causation), and (2) whether the substance did, in fact, cause the plaintiff’s medical condition (specific causation). Both of these inquiries, moreover, require expert testimony to satisfy the burden of proof. As a result, plaintiffs have an additional hurdle to clear to avoid summary judgment in toxic tort cases, and defendants in those cases have an additional tool to use in support of motions for summary judgment.
In Terry v. Caputo, the plaintiffs, 15 employees of the Ottawa County Board of Mental Retardation (the “Board”), sued their employer, the lessor of the Buckeye building in Port Clinton, Ohio as well as the management companies that were responsible for the building’s maintenance, for alleged exposure to toxic chemicals. While plaintiffs worked in the Buckeye building, they began to experience various respiratory problems. At the same time, the plaintiffs noticed mold around the building’s windows, tiles, vents, and carpeting. After the health department inspected the building, and did, in fact, find mold growth, the Board vacated the building.1
To support their claims, the plaintiffs hired, Dr. Bernstein, an expert allergist and immunologist, to testify that the air quality in the Buckeye building caused the plaintiffs’ illnesses. In response, the defendants challenged the reliability of the Dr. Bernstein’s testimony. Pursuant to Evid.R. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., (1993), 590 U.S. 579, the defendants moved both to exclude Dr. Bernstein’s expert testimony, and for summary judgment, arguing that, without expert testimony, the plaintiffs could not prove proximate causation. The trial court granted both defense motions.
On appeal, however, the appellate court found that, even without expert testimony, the plaintiffs had presented sufficient evidence to create genuine issues of material fact related to specific causation and should be permitted to proceed to trial. Terry v. Caputo (2006), 165 Ohio App.3d 638, 2006-Ohio-866, 847 N.E.2d 1246.
The defendants appealed the appellate court’s ruling to the Ohio Supreme Court, arguing that they were entitled to summary judgment because, without expert testimony, the plaintiffs could not establish specific causation. In a six to one decision, the Ohio Supreme Court agreed with the defendants. To begin, the Court formally adopted a two-step process — already recognized by most federal courts — for evaluating the admissibility of causation evidence in toxic tort cases. Under this two-step process, courts must consider (1) whether the chemical substance is capable of causing plaintiffs’ illness or injury, and (2) whether the chemical substance actually caused plaintiffs’ illness or injury. The Supreme Court next determined that, to establish both general and specific causation, plaintiffs must present expert testimony. In so ruling, the Ohio Supreme Court went beyond what the appellate court required in the way of proof of causation.
In its decision, the Supreme Court reemphasized the trial court’s gatekeeping function (outlined in Daubert) and held that expert testimony must be both reliable and relevant to be admissible. Based on these principles, the Supreme Court affirmed the court of appeals’ findings that although Dr. Bernstein’s testimony was relevant and reliable as to general causation, his differential diagnosis was not reliable and relevant to prove specific causation. This agreement with the court of appeals prompted Justice Pfeiffer to note in his dissent that the majority’s analysis was remarkably similar to the appellate court’s analysis with one crucial distinction: the outcome.
The Supreme Court went a step further than the appellate court. Relying on its decision in Darnell v. Eastman, (1970), 23 Ohio St. 2d 13, the Court mandated the use of expert testimony to prove causation:
Except as to questions of cause and effect which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express such opinion.
From this statement, the Ohio Supreme Court reasoned that the court of appeals should not have reversed the trial court’s decision granting summary judgment to the defendants because expert testimony is, in fact, necessary to prove specific causation.
Terry v. Caputo is remarkable and favorable to defendants for at least two reasons. First, the Supreme Court reemphasized Daubert, thereby demonstrating that the Supreme Court is adamant about the trial court’s responsibility to carefully scrutinize expert testimony and determine its reliability and relevancy before admitting such testimony at trial. Second, the Supreme Court raised the bar for plaintiffs to survive summary judgment because plaintiffs now must present expert testimony to prove both general and specific causation. In light of these factors, defendants should not hesitate to move for summary judgment if plaintiffs fail to present competent expert testimony on both general and specific causation. Moreover, even if plaintiffs present expert testimony, defendants may still succeed on summary judgment if they have grounds to challenge the reliability and/or relevancy of such testimony.