Court of Appeals of Ohio Finds Reversible Error in Refusal of Daubert Hearing On Basis of Opinions of Drs. Strauchen and Frank Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County, May 5, 2016

In this case it is alleged that the decedent, Glenn Watkins, was exposed to chrysotile asbestos dust from the sanding of Bendix brakes while working as a manager at various Auto Shack and AutoZone retail stores between 1985 and 2006 and that this exposure was a substantial cause of his pleural mesothelioma and death. Prior to trial, all defendants other than Honeywell International Inc. settled or were dismissed. The issue at trial was whether Watkins’ handling of Bendix brakes was a cause-in-fact of his mesothelioma, and, if so, by how much. Watkins’ two causation experts, Drs. James A. Strauchen and Arthur L. Frank shared the opinion that his exposure to Bendix brakes was a substantial cause of his mesothelioma.

Prior to trial, Honeywell moved in limine to exclude Drs. Frank and Strauchen from testifying or, in the alternative, requested a Daubert hearing to examine the reliability of their opinions.  Honeywell argued the experts’ opinions were not based on reliable science because their “every exposure” and “cumulative dose” theories are not based on scientifically defensible principles and methodologies. The trial court denied the motions without a Daubert hearing and the plaintiff’s experts testified accordingly at trial.  The jury returned a verdict in favor of the plaintiff. Honeywell appealed arguing, among several issues, that the trial court committed reversible error by permitting the plaintiff’s causation experts to testify, over the defendant’s objections in limine renewed during trial, that (1) each or every exposure of asbestos is a substantial contributing cause of pleural mesothelioma; (2) if a person develops mesothelioma and there is evidence of any asbestos exposure from a product (regardless of fiber or dose), then the disease was caused by asbestos from the identified products; and that (3) the plaintiff’s mesothelioma was caused by exposure to brake dust.

The Court of Appeals agreed with Honeywell that the testimony of Drs. Strauchen and Frank did not comply with either Ohio Rule of Evidence 702 or the Daubert standard for the admissibility of expert evidence and reversed the trial court’s judgment. The court explained that the trial court has a role as an evidentiary gatekeeper, and must “analyze not what the experts say, but what basis they had for saying it.”  The Court of Appeals stated that because the trial court did not hold a Daubert hearing, it could not independently determine whether Drs. Frank’s and Strauchen’s causation theories were supported by sufficient data or based on reliable principles and methods.

The court offered, by way of example, that “the record contains some epidemiological studies, but there is no evidence about how these studies were conducted. Were there any biases in the selection of studied subjects? Were there any systematic errors in measuring data that resulted in differential accuracy of information? Who funded the studies? There are numerous questions the court could ask the experts regarding the reliability of these studies. The court must consider biases when interpreting an epidemiological study.”

The court concluded that “in the absence of a hearing, the trial court did not have sufficient evidence upon which to analyze the basis for Watkins’ experts’ opinion. The trial court did not properly execute its duty as gatekeeper because, without a hearing, the court could not independently examine and evaluate the reliability of Drs. Frank’s and Strauchen’s expert testimony. Therefore, their testimony was admitted in error.”

Read the full decision here.

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