Brown v. Burnett , 2020 Ohio 297 ( 2020 )

[Cite as Brown v. Burnett, 2020-Ohio-297.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
PATRICIA A. BROWN :
:
Plaintiff-Appellant : Appellate Case No. 2019-CA-57
:
v. : Trial Court Case No. 2015-CV-207
:
HARLAN BURNETT, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellees :
:
...........
OPINION
Rendered on the 31st day of January, 2020.
...........
H
JOSEPH P. MOORE, Atty. Reg. No. 0014362 and BRIAN HUELSMAN, Atty. Reg. No.
0055444, 262 James E. Bohanan Memorial Drive, Vandalia, Ohio 45377
Attorneys for Plaintiff-Appellant
PAUL J. KAVANAGH, Atty. Reg. No. 0065418, 333 North Limestone Street, P.O. Box
1687, Springfield, Ohio 45501
Attorney for Defendants-Appellees
.............
WELBAUM, J.
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{¶ 1} This case is before us on the appeal of Plaintiff-Appellant, Patricia Brown,
from a jury verdict rejecting Brown’s claims against Defendants-Appellees, Harlan and
Mary Burnett. Brown contends that the trial court erred in upholding a magistrate’s
liminal decision, which prevented her from presenting expert testimony about the age of
mold on property that Brown purchased from the Burnetts. In addition, Brown contends
that the trial court erred in upholding the magistrate’s decision to allow similar opinions
from a witness presented by the Burnetts.
{¶ 2} For the reasons that follow, the magistrate did not err in failing to allow
testimony from Brown’s experts about the age of mold that was present in the property.
While Brown’s experts were qualified to discuss mold, and should have been allowed to
identify mold on parts of the house other in than the interior wall cavities, that was not the
relevant issue. The issue was when the mold was present, which might have supported
an inference that the Burnetts had actual knowledge of the mold. However, Brown failed
to make an appropriate proffer of the experts’ testimony. Even if this were otherwise,
Brown’s experts were unable to give any specific testimony about when mold might have
been present, so any potential error would have been irrelevant or harmless. The
magistrate also did not abuse its discretion in allowing lay opinion testimony from a fact
witness. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} In 1994, Mercuri Builders constructed a one-story ranch home for the
Burnetts on a lot located at 3316 Hampton Road in Springfield, Ohio. The Burnetts lived
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there until 2012, when they decided to sell the home and move to a condo. They did not
use a realtor; instead, they sold the home themselves. At the time, Patricia Brown was
looking for a home to purchase, as she had recently been divorced. After Brown visited
the Burnetts’ home four times, the parties agreed on a purchase price of $163,000.
{¶ 4} A realtor drafted the real estate contract for the Burnetts, and Brown signed
it. The Burnetts also signed a property disclosure form, stating that they were unaware
of any previous or current water leaking, water accumulation, excess moisture, or other
defects in the property, including but not limited to any areas below grade, basement, or
crawl space. In addition, the Burnetts represented that they were unaware of any water
or moisture-related damage to the floors, walls, or ceilings, as a result of flooding,
moisture seepage, moisture condensation, ice damming, sewer overflow backup, or
leaking pipes.
{¶ 5} Before closing on the property, Brown contracted with Ken Chadwick to
perform a whole house inspection, which was done on June 2, 2012. Chadwick did not
see any evidence of water intrusion, moisture, or mold. He was not asked to conduct a
mold inspection. The closing then occurred on July 5, 2012, and Brown took possession
of the property two weeks later, around July 18 or 20, 2012. However, Brown did not
immediately move in because she wanted to remove wallpaper, paint, and carpet the
master bedroom, which had laminate flooring. This area had originally been carpeted,
but Harlan and one of his sons-in-law had installed laminate flooring in July 2009.
{¶ 6} On July 30, 2012, the carpet-layers came to install carpet and removed the
laminate flooring, revealing water stains and black water marks. The bedroom floor also
appeared to have been sanded. On further investigation, Brown discovered that the
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discoloration continued around the perimeter of the house, and when walls were opened
up, mold was discovered inside the walls of the home. In August 2012, Bruce Stege,
who owned Advantage Ecological Solutions, conducted indoor air quality testing. Stege
concluded that a problem existed and that Brown needed to take action to remediate the
mold.
{¶ 7} On August 21, 2012, Brown hired a civil structural engineer, John Geiger, to
inspect the property. Geiger found a good deal of moisture inside the property and
looked outside at the weep holes, which are openings in the mortar that provide air
circulation and allow moisture to escape. The house had no weep holes, and the ground
outside was sinking toward the foundation. In addition, the bricks were out of alignment
and in some cases, the wood wall of the home was right against the bricks, rather than
having space between (called a withe), which is required for air circulation. Geiger
concluded that the home had been poorly constructed in 1994, and the differences in
temperature as the walls heated and then cooled allowed for formation of condensation
in the walls. Because there was no way for moisture to escape, the problem began early
on and snowballed until it was a problem 18 years later.
{¶ 8} After Brown reported a claim, her insurance carrier, Westfield, hired a
structural forensic engineer, Leonard Rudnick, to determine the cause of the mold.
Rudnick conducted a site investigation in mid-September 2012 and concluded that water
damage and infiltration in the exterior wall cavities of the house had resulted from
improper installation of the brick veneer on the house. Rudnick indicated that major
reconstruction was required, and that an experienced architect or engineer should be
hired to determine the extent of the mold growth in the wall cavities and appropriate
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remediation.
{¶ 9} In September 2012, Jeffrey Testerman, the owner of TesCon, Inc., also
visited the house. Testerman was a building contractor and remodeler, and he
concluded that the brick needed to be removed, as there was no way to get into the wall
cavities other than by removing the brick. The OSB board would also have to be
removed to see how bad the damage was. Insulation would need to be removed and
replaced, and after the OSB was replaced, the entire home would need to be re-bricked.
In addition, the mold would need to be remediated. Ultimately, all of this was done by a
company called Airway Construction at a cost of $85,000.
{¶ 10} Brown subsequently filed suit against the Burnetts, but the suit was
dismissed without prejudice and was then refiled in March 2015. In the refiled action,
Brown asserted two claims against the Burnetts: (1) for recission of the contract and return
of money, based on the Burnetts’ failure to disclose major known defects in the property;
and (2) that the Burnetts were aware of the mold, that the defects were not open and
obvious, and that the Burnetts had had a duty to disclose. After the Burnetts filed an
answer, they filed a motion for summary judgment based on depositions taken in the prior
action. The magistrate, however, overruled the motion for summary judgment, and the
matter was set for trial.
{¶ 11} In August 2016, the Burnetts filed a motion in limine, seeking to exclude or
limit the testimony of Brown’s experts, Stege, Rudnick, Testerman, and Geiger. After
holding a hearing and considering the deposition transcripts of these experts, the
magistrate granted the motion in limine in part and rejected it in part. Following a three-
day trial, a jury issued a verdict in favor of the Burnetts, and Brown then filed objections
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with the trial court. The trial court overruled the objections and dismissed the case.
{¶ 12} While Brown timely appealed, we dismissed the appeal for lack of a final
appealable order, due to issues with the judgment entry. See Brown v. Burnett, 2d Dist.
Clark No. 2017 CA 86 (June 15, 2018). The trial court then issued another journal entry,
which we again rejected, and dismissed the appeal. See Brown v. Burnett, 2d Dist. 2019
CA 22 (June 26, 2019). After this dismissal, the trial court filed an appropriate entry,
and Brown again appealed.
II. Liminal Ruling
{¶ 13} Brown’s First Assignment of Error states that:
The Trial Court Erred as a Matter of Law by Upholding the
Magistrate’s Ruling to Grant Appellees’ Motion in Limine Which Prevented
Appellant, Patricia A. Brown at Trial From Presenting Certain Testimony
and Evidence Which Affected the Jury’s Verdict and Diminished Appellant’s
Claim.
{¶ 14} Under this assignment of error, Brown contends that she was entitled to
present expert opinion concerning the age and existence of mold in the house, and that
the magistrate erred in finding that the experts were not qualified under Daubert v. Merrel
Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). As noted,
before trial, the Burnetts filed a motion in limine seeking to restrict the testimony of
Brown’s four experts, and the magistrate conducted a hearing on the matter. In its
decision, the magistrate concluded that the testimony of Rudnick, Geiger, and Testerman
would be limited to their eyewitness testimony about the appearance of mold inside the
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wall cavities. However, the magistrate also held that Stege was qualified by specialized
knowledge, training, and experience to give opinions regarding the mold in the house.
{¶ 15} Before addressing the merits of this assignment of error, we will briefly
discuss the Burnetts’ argument that we should apply a plain error standard of review.
This is based on Brown’s failure to object to the magistrate’s decision on the motion in
limine.
{¶ 16} The law is well-settled that errors will be considered only on a plain error
basis where a party fails to properly object to a magistrate’s decision. Care Risk
Retention Group v. Martin, 191 Ohio App. 3d 797, 2010-Ohio-6091, 947 N.E.2d 1214,
¶ 80 (2d Dist.). However, that rule does not apply here.
{¶ 17} The Supreme Court of Ohio has held that “a motion in limine, if granted, is
a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory
treatment of the evidentiary issue. In virtually all circumstances finality does not attach
when the motion is granted. Therefore, should circumstances subsequently develop at
trial, the trial court is certainly at liberty ‘ * * * to consider the admissibility of the disputed
evidence in its actual context.’ ” State v. Grubb, 28 Ohio St. 3d 199, 201-202, 503 N.E.2d
142 (1986), quoting State v. White, 6 Ohio App. 3d 1, 4, 451 N.E.2d 533 (8th Dist.1982).
In order to preserve the objection for appeal, the aggrieved party must then attempt to
introduce the evidence, “by proffer or otherwise in order to enable the court to make a
final determination as to its admissibility * * *.” Id. at 203.
{¶ 18} As required, Brown proffered the evidence in question during trial. See
Transcript of Proceedings (“Tr.”), Vol. I, p. 81, and Vol. II, pp. 4-6). Brown then properly
filed objections after trial to the magistrate’s decision. Accordingly, we will apply the
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normal standards of review for evaluating admission of evidence.
{¶ 19} Evid.R. 702 provides that:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter of the
testimony;
(C) The witness' testimony is based on reliable scientific, technical,
or other specialized information. To the extent that the testimony reports
the result of a procedure, test, or experiment, the testimony is reliable only
if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is
based is objectively verifiable or is validly derived from widely accepted
knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was conducted in a
way that will yield an accurate result.
{¶ 20} “ ‘Courts should favor the admissibility of expert testimony whenever it is
relevant and the criteria of Evid.R. 702 are met.’ ” Terry v. Caputo, 115 Ohio St. 3d 351,
2007-Ohio-5023, 875 N.E.2d 72, ¶ 23, quoting State v. Nemeth, 82 Ohio St. 3d 202, 207,
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694 N.E.2d 1332 (1998). We review trial court decisions on evidentiary issues for abuse
of discretion. Miller v. Bike Athletic Co., 80 Ohio St. 3d 607, 616, 687 N.E.2d 735 (1998).
{¶ 21} An abuse of discretion means “an attitude that is unreasonable, arbitrary or
unconscionable.” AAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d 597 (1990). “It is to be expected that most
instances of abuse of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary.” Id. “A decision is
unreasonable if there is no sound reasoning process that would support that decision. It
is not enough that the reviewing court, were it deciding the issue de novo, would not have
found that reasoning process to be persuasive, perhaps in view of countervailing
reasoning processes that would support a contrary result.” Id.
{¶ 22} In Daubert, the United States Supreme Court concluded that the rules of
evidence, and most particularly Fed.R. Evid. 702, “assign to the trial judge the task of
ensuring that an expert's testimony both rests on a reliable foundation and is relevant to
the task at hand. Pertinent evidence based on scientifically valid principles will satisfy
those demands.” Daubert, 509 U.S. at 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469. In Miller,
Ohio adopted Daubert’s gatekeeping approach for trial courts. Miller at 613-614; Terry,
115 Ohio St. 3d 351, 2007-Ohio-5023, 875 N.E.2d 72, at ¶ 24.
{¶ 23} After Daubert, “the United States Supreme Court extended this gate-
keeping obligation to include all expert testimony – i.e., testimony based on technical and
other specialized knowledge. The court added that in assessing reliability, the trial court
may, at its discretion, consider the Daubert factors to the extent relevant.” State v.
Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 118, citing Kumho
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Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-148, 119 S. Ct. 1167, 143 L. Ed. 2d 238
(1999).
{¶ 24} In Daubert, the court discussed four factors that may be used to decide
reliability of testimony: “(1) whether the theory or technique can be and has been tested;
(2) whether the theory or technique has been subjected to peer review and publication;
(3) in the case of a particular scientific technique, the known or potential rate of error; and
(4) whether the theory or technique is generally accepted.” State v. White, 2015-Ohio-
3512, 37 N.E.3d 1271, ¶ 24 (2d Dist.), citing Daubert at 593-594. However, “the test of
reliability is ‘flexible,’ and Daubert's list of specific factors neither necessarily nor
exclusively applies to all experts or in every case.” Kumho Tire Co. at 141. Instead,
“the trial court may, at its discretion, consider the Daubert factors to the extent relevant.”
Drummond at ¶ 118, citing Kumho at 148.
{¶ 25} In the case before us, the trial court did not exclude all testimony from
Brown’s experts. Instead, the court said it would restrict the testimony of three experts
about mold to its appearance inside wall cavities, and would permit testimony from one
witness (Stege) without limitation, other than requiring that Stege’s testimony could not
be phrased in terms of possibilities.
{¶ 26} The claims against the Burnetts were based on their alleged failure to
disclose water intrusion and mold to Brown. Under the common law, “[t]he doctrine of
caveat emptor precludes recovery in an action by the purchaser for a structural defect in
real estate where (1) the condition complained of is open to observation or discoverable
upon reasonable inspection, (2) the purchaser had the unimpeded opportunity to examine
the premises, and (3) there is no fraud on the part of the vendor.” Layman v. Binns, 35
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Ohio St.3d 176, 519 N.E.2d 642 (1988), syllabus.
{¶ 27} “An action for fraud may be grounded upon failure to fully disclose facts of
a material nature where there exists a duty to speak. * * * [Thus,] a vendor has a duty to
disclose material facts which are latent, not readily observable or discoverable through a
purchaser's reasonable inspection.” Id. at 178.
{¶ 28} The elements of fraud are: “(1) a representation (or concealment of a fact
when there is a duty to disclose) (2) that is material to the transaction at hand, (3) made
falsely, with knowledge of its falsity or with such utter disregard and recklessness as to
whether it is true or false that knowledge may be inferred, and (4) with intent to mislead
another into relying upon it, (5) justifiable reliance, and (6) resulting injury proximately
caused by the reliance.” Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio St. 3d 494,
2010-Ohio-2057, 929 N.E.2d 434, ¶ 27.
{¶ 29} In terms of statutory liability, R.C. 5302.30(D)(1) requires the Ohio director
of commerce to prescribe a disclosure form that sellers of residential real property are to
give purchasers. This form is “designed to permit the transferor to disclose material
matters relating to the physical condition of the property to be transferred, including, but
not limited to, the source of the water supply to the property; * * * the condition of the
structure of the property * * * ; and any material defects in the property that are within the
actual knowledge of the transferor.” Id. Disclosures must be made in good faith. R.C.
5302.30(E)(1). “Good faith” is described as “honesty in fact in a transaction involving the
transfer of residential real property”. R.C. 5302.30(A)(1). The statutory requirement of
providing information does not limit or abridge obligations under the common law, but
there is no statutory liability for nondisclosure for matters that are “not within the
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transferor's actual knowledge.” R.C. 5302.30(F)(1); R.C. 5302.30(J).
{¶ 30} “A seller's responses or nonresponses to the questions posed by the
Residential Property Disclosure Form do not warrant the good condition of the property.
Rather they constitute the owner's representations concerning his actual knowledge of
the condition of the property in respect to the particulars specified. A variance between
the owner's representations and the truth and fact of the matters concerned may be a
basis for a claim of fraud, and the seller's duty of good faith requires him to act with an
honest belief or purpose in the responses he provides. However, he is not required to
speculate, and is charged only to reveal the existence of conditions within his actual
knowledge.” Decaestecker v. Belluardo, 2d Dist. Montgomery No. 22218, 2008-Ohio-
2077, ¶ 45.
{¶ 31} The above discussion indicates that under either the common law or R.C.
5302.30, sellers are not required to disclose latent defects of which they lack actual
knowledge. McCoy v. Good, 2d Dist. Clark No. 06-CA-34, 2007-Ohio-327, ¶ 43. As a
result, the pivotal issue in this case was whether the Burnetts had actual knowledge of
latent defects, i.e., the presence of mold caused by water intrusion. “Fraudulent conduct
may not be established by conjecture; it must be proved by direct evidence or justifiable
inferences from established facts.” Doyle v. Fairfield Machine Co., 120 Ohio App. 3d 192,
207, 697 N.E.2d 667 (11th Dist.1997). Notably, the Burnetts denied any knowledge of
mold on the property, and there was no direct evidence that they had actual knowledge.
Brown, therefore, attempted to prove actual knowledge through experts and inferences
arising from their testimony.
{¶ 32} According to the trial testimony, the Burnetts’ house was originally carpeted,
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and carpet was replaced about 10 years later, or around 2004. There was no evidence
indicating that mold was visible in 2004, and the Burnetts denied seeing any mold or
moisture when the carpet was replaced.
{¶ 33} Around 2008, the carpet in the front bedroom (called the computer room)
was replaced with laminate that Harlan and one of his sons-in-law (Doug) installed.
Later, in 2009 and 2010, Harlan and Doug installed laminate in the remaining two
bedrooms. During the installation of the laminate in the master bedroom in 2009, Doug
noticed that the floor had been previously sanded. Both Harlan and the builder, George
Mercuri, testified that the sanding occurred at the time of the original construction of the
house. Specifically, during construction, the sheathing had absorbed a lot of rain, and a
drum sander was used to sand down the seams before the final flooring was installed.
See Tr., Vol. III at pp. 37-38 and 79. In contrast, Brown’s construction expert (John
Testerman) testified that the sanding was done at a date later than the time of
construction. Tr., Vol. II, pp. 26-28. Testerman did not explain the basis for his opinion.
{¶ 34} In late July 2012, Brown’s carpet installer tore out the laminate in the master
bedroom and found stains and dark discolorations on the subfloor in the master bedroom.
Id. at pp. 171-175, and Plaintiff’s Exs. 10A, B, C, D, and E. Clearly, if the stains and
discolorations (or mold) were present when the laminate was initially installed, or if the
floor had been sanded to remove stains, discolorations, or mold, this would permit a trier
of fact to infer that the Burnetts actually knew of water intrusion problems before selling
the property.
{¶ 35} As noted, before trial, the magistrate held that the testimony of Brown’s
experts, Geiger, Rudnick, and Testerman, “with regard to mold is limited to their
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eyewitness testimony regarding the appearance of mold inside the wall cavities.”
(Emphasis sic.) Doc. #59, Entry, p. 1.
{¶ 36} Geiger, an experienced civil structural engineer, testified first. Geiger
testified that about half of the 3,000 projects he had worked on had involved water
intrusion and that about 500 to 1,000 involved mold issues. He also said that he was not
a mold expert, but could determine what mold is and what the aftereffects would be. Tr.,
Vol. I at pp. 87-88. Geiger further testified that there was a tremendous amount of
moisture in the home when he visited on August 21, 2012, that there was a “lot of mold
in the house, in the walls,” and that he could see it between the insulation.” Id. at pp. 90-
92. According to Geiger, the problem was caused by the poor construction of the house
because it had no weep holes. He stated that the moisture began early on and
“snowballed” over the years, so that it was a major problem when he looked at it. Id. at
pp. 93-94. Geiger further indicated that the moisture was behind the wall and had
percolated into the floor. Id. at p. 107.
{¶ 37} Notably, when proffering Geiger’s testimony at trial, Brown did not indicate
what Geiger’s opinion was about the age of the mold. The proffer concerning Geiger’s
testimony was that he “is qualified to testify as to the age of the mold and the timing of it
based on his experience and education and his observations, which we believe are
sufficient to allow it to be admitted to the court, presented to the jury, and for the jury to
determine whether they can take the weight of it and determine it from there.” Tr., Vol. I
at p. 81.
{¶ 38} Evid.R. 103(A) provides that:
Error may not be predicated upon a ruling which admits or excludes
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evidence unless a substantial right of the party is affected; and
***
(2) Offer of Proof. In case the ruling is one excluding evidence, the
substance of the evidence was made known to the court by offer or was
apparent from the context within which questions were asked.
{¶ 39} “ ‘The purpose of a proffer is to assist the reviewing court in determining,
pursuant to Evid.R. 103, whether the trial court's exclusion of evidence affected a
substantial right of the appellant.’ ” State v. Mullins, 2d Dist. Montgomery No. 21277,
2007-Ohio-1051, ¶ 36, quoting In re Walker, 162 Ohio App. 3d 303, 2005 -Ohio-3773, 833
N.E.2d 362, at ¶ 37. Here, while a proffer was made, its lack of specificity renders
meaningful review difficult. Failing to proffer evidence at trial based on a decision made
on a preliminary motion in limine waives any challenge. E.g., State v. Tyra, 2d Dist.
Montgomery No. 27040, 2017-Ohio-313, ¶ 28.
{¶ 40} Even if this were otherwise, Geiger stated when he was deposed that he
was not trained in the science of determining when mold began to form in the house.
Doc. #44, Geiger Deposition, p. 20. The following exchange then occurred:
A. However, I would say this, that based on my experience in
looking at various homes – and I’ve looked at both industrial buildings,
commercial buildings, maybe a couple thousand – that once a problem
exists, there’s the potential for mold.
Q. Okay. But where – let’s say it starts on the top of that wall.
You can’t tell the date then that it got to the bottom of the wall, can you?
A. I cannot.
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Q. And do you know of any civil engineer that would be able to do
that?
A. Civil or structural engineer?
Q. Yeah.
A. I don’t think so, unless they had a degree in etiology or
something like that.
Q. Okay. Some sort of science degree related to mold?
***
A. Yes, I agree.
Q. Okay. I think it’s self-evident, but your sole purpose – the
reason you were hired was – and I think it’s in your last sentence [of your
report]. It says: It represents a professional opinion as to the condition
and/or structural defects found in the structure. That was your job, right?
A. Uh-huh.
Q. And you go on to say: Not including mold or insect infestation.
So you’re not rendering any opinion other than the condition – the structural
defects that caused this problem; is that right?
A. That’s right. That’s basically what I am is a civil structural
engineer.
Geiger Deposition at pp. 20-21.
{¶ 41} Based on our review of the evidence, Geiger was qualified to identify mold,
due to his experience in dealing with it, and the magistrate erred in restricting his
testimony to what he observed in interior wall cavities. However, this error was
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irrelevant, because Geiger, by his own admission, had no opinion and could not express
an opinion on how long the mold had been present on any surface. This was the critical
issue in the case.
{¶ 42} Brown’s next expert witness was John Testerman, an experienced building
contractor, who visited the property two or three times in mid-September 2012. As
noted, Testerman testified that the sanding on the master bedroom subfloor occurred
after construction of the house. He also discussed what needed to be done to repair the
house and the costs of construction.
{¶ 43} Before Testerman testified, Brown made the following proffer:
With regards to John Testerman, we would, again, place an objection
against the Court’s rulings with regard to the motion in limine on Mr.
Testerman’s testimony regarding the age of mold. We believe that he does
have the expertise and experience and should be able to testify with regard
to that matter.
Again, it goes to a weight issue with regards to that fact. We
submitted the affidavit with regard to him being involved with, at least 25
cases remodeling the mold and the remediation therein, and he does have
the qualifications in order to present evidence with regard to the age.
Tr., Vol. II at pp. 4-5.
{¶ 44} Again, beyond generally stating that Testerman could present evidence
about age, Brown provided no specific information, and this does not provide an
appropriate basis for review. Tyra, 2d Dist. Montgomery No. 27040, 2017-Ohio-313, at
¶ 28.
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{¶ 45} During his deposition, Testerman stated that he could not predict how long
it takes for mold to grow because of other variables that might affect the growth of the
mold. Doc. #44, Testerman Deposition, p. 19. Testerman also indicated that when he
visited the property the first time in mid-September 2012, he saw mold on the subfloor of
the master bedroom, behind the vapor barrier in the bedroom and the drywall cavity, and
in the insulation cavity between some studs. Id. at p. 29. He did not take a sample of
the mold on the floor, nor did he test it. Id. He indicated that he was only going to render
an opinion on the cause of the mold, not anything else. Id. at pp. 36-37. The following
exchange also occurred:
Q. Can you tell me the date that the walls – that the mold began to
form in the walls of that house?
A. Absolutely not.
Q. Okay. And a mycologist couldn’t tell us that, could he?
A. I don’t believe so.
Q. Can you tell me that date that mold began to form behind the
baseboards in that house?
A. No.
Q. Can you tell me the date that the mold began to form on the
subfloor in that house?
A. No.
***
Q. So you don’t have any scientific or construction theory about
when the mold began to form?
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A. As to a date it started to form?
Q. Yes.
A. No.
Testerman Deposition at pp. 37-38 and 40.
{¶ 46} Testerman did say in an affidavit and his deposition that he believed the
mold had been in existence for several years and that the party who had installed the
flooring had to know of its existence. Id. at p. 42; see also Doc. #18, Testerman Affidavit,
¶ 7. He based this opinion, as noted, on the sanding of the floor. Testerman Deposition
at pp. 42-44. However, as we commented, the only evidence was that the sanding
occurred during construction of the house. Although Testerman believed otherwise, he
could give no basis for his opinion. Testerman also was able to testify at trial that he
believed (to a reasonable degree of probability) that the sanding was done at a date later
than the time of construction. Tr., Vol. II at p. 28. Again, by his own admission,
Testerman did not know when mold appeared on the subfloor or any other part of the
house.
{¶ 47} The third expert was Leonard Rudnick, an experienced structural forensic
engineer. At trial, Rudnick stated that Plaintiff’s Ex. 8W, a photo of a basement end joist,
showed black discoloration indicating mold growth, and that Plaintiff’s Ex. 8X, a picture of
the sanded subflooring, showed a water stain with a possibility of mild mold growth. Tr.,
Vol. II at pp. 70-71. The magistrate sustained a defense objection and instructed the jury
to disregard any statement that Rudnick had made regarding what these discolorations
were. Id. at p. 71. At the same time, the magistrate allowed Rudnick to identify mold
on various other surfaces, including carpet, drywall, the baseboards, the OSB floor
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sheathing, and the interior of walls. Id. at pp.61, 62, 76-78, 80, 81, and 82.
{¶ 48} Rudnick expressed the opinion at trial that the water and damage found in
the exterior cavities resulted from improper installation of the brick veneer. He also
recommended that Brown hire an architect to do intrusive testing on the mold and decide
appropriate remediation. In addition, Rudnick believed the house needed major
reconstruction. Id. at p. 84.
{¶ 49} Frankly, it made no sense to allow Rudnick to identify some mold on some
surfaces and not on others. Rudnick had investigated or supervised about 17,000
property damage assignments, had been deposed around 50 times, and had been
qualified as an expert witness in structural forensic engineering and construction. Doc.
#44, Rudnick Deposition, pp. 5 and 10. He also had inspected “countless incidences of
mold growth.” Id. at p. 33. Moreover, while “the definitive way, * * * the absolutely
scientific way to tell” if mold exists is a lab test, Rudnick stated that “you can render an
opinion within a reasonable degree of engineering certainty based on experience that is
mold growth.” Id. at p. 34.
{¶ 50} As mentioned, “the test of reliability is 'flexible,' and Daubert's list of specific
factors neither necessarily nor exclusively applies to all experts or in every case.”
Kumho Tire Co. 526 U.S. at 141, 119 S. Ct. 1167, 143 L. Ed. 2d 238. Instead, “the trial
court may, at its discretion, consider the Daubert factors to the extent relevant.”
(Emphasis added.) Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038,
at ¶ 118, citing Kumho at 148. The key is reliability, and even if experts are highly
qualified, “their experience, by itself, does not establish the legal reliability of their opinions
as applied to the facts of [a] case.” Valentine v. Conrad, 110 Ohio St. 3d 42, 2006-Ohio-
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3561, 850 N.E.2d 683, ¶ 23.
{¶ 51} Again, in proffering Rudnick’s testimony, Brown’s counsel commented as
follows:
Mr. Huelsman: Mr. Rudnick, Your Honor, we would proffer that Mr.
Rudnick can testify with regards to the age of the mold and timing of it due
to his experience and education. He’s been involved in over 17,000
forensic investigations in construction and the majority of those dealing with
water intrusion and then many of those with mold, as well as over 1,000
with mold in those instances as an engineer.
He has been involved in assessing the causation, as well as
sometimes determining the remediation therein. We believe that his
experiences and observations are sufficient enough to do that.
Tr., Vol. II at pp. 5-6.
{¶ 52} As with the other experts, the proffer did not specify the age of the mold or
provide any specific details. Again, this does not provide a meaningful basis for review.
Mullins, 2d Dist. Montgomery No. 21277, 2007-Ohio-1051, at ¶ 36; Tyra, 2d Dist.
Montgomery No. 27040, 2017-Ohio-313, at ¶ 28.
{¶ 53} Even if this were otherwise, Rudnick’s deposition also does not indicate a
specific time-frame for the age of any mold. In this regard, Rudnick stated that “My
opinion will be that the mold growth process began after the construction was completed
18 years ago and that process gradually progressed over a period of 18 years.” Doc.
#44, Rudnick Deposition, p. 42. As to the discoloration in the OSB floor sheathing,
Rudnick was not able to be more specific than to say that it “would have been a
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progressive development with obviously some visible very light discolorations occurring
at some point in time and then progressively worsening.” Id. at p. 43. This is very non-
specific.
{¶ 54} Rudnick further stated that he could not say with any certainty when the
mold developed, that he “would say, * * * because it’s progressive, it would not have been
* * * within the recent year. It would more likely have been earlier, but I can’t say that
with absolute certainty.” Id. at p. 46.
{¶ 55} In view of the preceding discussion, the magistrate should have let these
witnesses testify about their observations of mold in places other than in interior wall
cavities. This was not the focus of Brown’s assignment of error, however, nor was it the
focus of the proffer. Instead, the issue was the age of the mold. As noted, none of the
witnesses could provide an opinion on the critical point, which was how long the mold had
been present on any surface observable by the Burnetts.
{¶ 56} Moreover, as the Burnetts point out, the magistrate did not restrict the
testimony of one expert, Bruce Stege. Stege, who was at the property in August 2012,
placed mold on the basement subfloor as of August 2011, and concluded that the mold
on the floor above would have existed prior to that. Tr., Vol. II at pp. 125-129. While
Stege did not identify any mold on the surface of the floor in the master bedroom, he
identified water damage and mold on the wall sheathing, which he believed flowed down
into the basement. Id. at pp. 134-135.
{¶ 57} For the reasons mentioned, we conclude that while some error potentially
occurred, it would have been irrelevant or harmless. “The existence of error does not
require a disturbance of the judgment unless the error is materially prejudicial to the
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complaining party.” McQueen v. Goldey, 20 Ohio App. 3d 41, 44, 484 N.E.2d 712 (10th
Dist.). Accord Evans v. Thobe, 195 Ohio App. 3d 1, 2011-Ohio-3501, 958 N.E.2d 616,
¶ 32 (2d Dist.). Under Civ.R. 61, “the error must affect the substantial rights of the
complaining party or substantial justice must not have been done.” Id. “To find that
substantial justice has not been done, a court must find (1) errors and (2) that without
those errors, the jury probably would not have arrived at the same verdict.” Hayward v.
Summa Health Sys./Akron City Hosp., 139 Ohio St. 3d 238, 2014-Ohio-1913, 11 N.E.3d
243, ¶ 25.
{¶ 58} Even if Brown’s experts had been permitted to testify as to the age of the
mold, we cannot conclude that the verdict would have changed, because they were
unable to state with any certainty or specificity when the mold occurred. Connecting the
presence of mold to a time when the Burnetts would actually have known of it was critical,
and the experts, by their own admission, could not do this. Accordingly, the First
Assignment of Error is overruled.
III. Admission of Appellees’ Evidence
{¶ 59} Brown’s Second Assignment of Error states that:
The Trial Court Erred as a Matter of Law by Upholding the
Magistrate’s Ruling that Permitted Appellees to Present Certain Testimony
and Evidence That Should Not Have Been Allowed, Which Adversely
Affected the Jury’s Verdict.
{¶ 60} Under this assignment of error, Brown contends that the magistrate erred
and ruled inconsistently by letting one of the Burnetts’ fact witnesses testify about the age
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of water stains in the master bedroom. Brown also claims unfair surprise because the
Burnetts did not name any expert witnesses.
{¶ 61} At trial, the Burnetts presented testimony from their son-in-law, John Eben,
who dropped an extra key off at the house after Brown took possession. At the time of
trial, Eben was employed in the warehouse of the Purple Cow Creamery, but had
previously been self-employed for about 18 years, conducting home and property
inspections for mortgage companies and insurance inspections. Tr., Vol. III at pp. 53-
54.
{¶ 62} After Eben arrived at the house, Brown asked if Harlan Burnett had known
of any water stains in the home. Eben told Brown that he had never known of any, and
that if Harlan knew, he would be sick about it. Id. at p. 55. Brown then asked Eben to
look at the water stains and see if he could do anything about them. Id. Eben testified
that he did look at the stains, and that “[t]here were water stains along the wall of the
master bedroom, and they looked fresh. They didn’t look like they had been there for a
long period of time.” Id. When Brown objected, the magistrate overruled the objection.
Id.
{¶ 63} As noted, Brown argues that the magistrate should not have allowed this
testimony when it refused to let Brown’s own witnesses testify about the age of the mold.
We agree with Brown to some extent. “As the proverb states, what is good for the goose
is good for the gander.” Hughes v. Ohio Dept. of Commerce, 114 Ohio St. 3d 47, 2007-
Ohio-2877, 868 N.E.2d 246, ¶ 17. Nonetheless, the error here was not necessarily in
allowing Eben to express an opinion; as noted, any potential error was in failing to let
Brown’s experts testify about mold other than in the interior wall cavities. And that was
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not really relevant error.
{¶ 64} Evid.R. 701 provides that if a "witness is not testifying as an expert, the
witness’ testimony in the form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of the witness and (2) helpful
to a clear understanding of the witness' testimony or the determination of a fact in issue."
“Perception connotes sense: visual, auditory, olfactory, etc. Thus, opinion testimony
under Evid.R. 701 must be based on firsthand, sensory based knowledge.” Sec. Natl.
Bank & Tr. Co. v. Reynolds, 2d Dist. Greene No. 2007 CA 66, 2008-Ohio-4145, ¶ 17.
{¶ 65} Trial courts have “considerable discretion in admitting the opinion testimony
of lay witnesses.” State v. Marshall, 191 Ohio App. 3d 444, 2010-Ohio-5160, 946 N.E.2d
762, ¶ 43 (2d Dist.). We, therefore, evaluate the court’s decision for abuse of discretion,
which, again, means “an attitude that is unreasonable, arbitrary or unconscionable.”
AAA Ents., 50 Ohio St. 3d at 161, 553 N.E.2d 597.
{¶ 66} Our review of the record indicates that the magistrate did not abuse her
discretion in this regard. Eben’s statements were clearly based on his perception and
were helpful to determining a fact in issue. At trial, Brown presented evidence indicating
that conditions for developing mold were present since the time the property was originally
improperly constructed. The closest estimate, from Stege, was that the mold was
present at some point prior to August 2011. Although the Burnetts had possession of
the home at that time, that does not mean they had actual knowledge of the presence of
mold.
{¶ 67} As noted, actual knowledge is required in this situation. The inference that
Brown attempted to have the jury draw was that because the Burnetts had replaced the
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flooring in the master bedroom at a point when mold or stains could have been present,
they were aware of a water problem. Eben’s testimony was relevant to this factual
determination. Moreover, while the magistrate did not allow some evidence from three
of Brown’s experts, our prior discussion has indicated that the alleged error, even if
properly preserved, was irrelevant to the issue in the case, or harmless.
{¶ 68} As to the allegation of surprise, Eben was listed on the Burnetts’ pretrial
statement as a witness. See Doc. #36, Pretrial Statement, p. 5. It is true that Eben was
listed as a fact witness, but Brown could have deposed him to find out what he had to
say. Moreover, the Burnetts did not attempt to qualify Eben as an expert witness, and
the jury was not instructed that he had been so qualified. As a result, the magistrate did
not suggest that his testimony was entitled to undue emphasis.
{¶ 69} Based on the preceding discussion, the Second Assignment of Error is
overruled.
IV. Conclusion
{¶ 70} All of Brown’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
.............
DONOVAN, J. and HALL, J., concur.
Copies sent to:
Joseph P. Moore
Brian Huelsman
Paul J. Kavanagh
Hon. Richard J. O’Neill
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