Hetzer-Young v. Elano Corp. , 2016 Ohio 3356 ( 2016 )

[Cite as Hetzer-Young v. Elano Corp., 2016-Ohio-3356.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
REBECCA HETZER-YOUNG, :
Individually and as Personal : Appellate Case No. 2015-CA-38
Representative of the Estate of :
Michael Young, et al. : Trial Court Case No. 11CV597
:
Plaintiffs-Appellants : (Civil appeal from
: Common Pleas Court)
v. :
:
ELANO CORPORATION, et al. :
:
Defendants-Appellees :
:
...........
OPINION
Rendered on the ___10th___ day of ___June___, 2016.
...........
MARY JANE TRAPP, Atty. Reg. No. 0005315, 1400 West 6th Street, Suite 400,
Cleveland, Ohio 44113
And
THOMAS J. INTILI, Atty. Reg. No. 0036843, 2300 Far Hills Avenue, Dayton, Ohio 45419
Attorneys for Plaintiffs-Appellants
ELIZABETH B. WRIGHT, Atty. Reg. No. 0018456, ANDREW H. COX, Atty. Reg. No.
0071459, STACEY A. GREENWELL, Atty. Reg. No. 0077909, 3900 Key Center, 127
Public Square, Cleveland, Ohio 44114
Attorneys for Defendants-Appellees
.............
FROELICH, J.
{¶ 1} This appeal involves a wrongful death / products liability action arising out of
-2-
the crash of a Grumman AA-5 Traveler airplane at the Lawrence County Airpark in March
2005. Three individuals – Dr. Michael Young, Ginny Young, and Charles Lampe -- died
in the crash.
{¶ 2} Plaintiffs-Appellants are Rebecca Hetzer-Young, individually and as personal
representative of the Estate of Michael Young; Anise Nash, individually and as personal
representative of the Estate of Ginny Young; and Elizabeth Lampe, individually and as
personal representative of the Estate of Charles Lampe (collectively, “Plaintiffs”). The
Defendants-Appellees are Elano Corporation, the manufacturer of the muffler installed in
the aircraft at the time of the crash, and Unison Industries, LLC, the company into which
Elano later merged (collectively, “Elano”).
{¶ 3} Plaintiffs appeal from a judgment of the Greene County Court of Common
Pleas, which, after a jury trial, entered judgment in favor of Elano. For the following
reasons, the trial court’s judgment will be affirmed.
I. Background and Procedural History
{¶ 4} In November 2003, Dr. Michael Young (“Young”) purchased a 1974
Grumman AA-5 Traveler airplane; the aircraft had four seats and a single engine. Young
kept the plane at the Lawrence County Airpark in Chesapeake, Ohio.
{¶ 5} The Lawrence County Airpark has a 3,000-foot asphalt runway, labeled
Runway 8 (heading east) and Runway 26 (heading west), at an elevation of 500 feet. In
2005, trees that were 12 to 15 feet high were located approximately 90 feet from the end
of Runway 26. Approximately 480 feet from the end of Runway 26 were taller trees.
{¶ 6} On March 13, 2005, Young took his college-aged daughter, Ginny, and
Ginny's boyfriend, Charles Lampe, for a short flight in his plane. After briefly cruising in
-3-
the area of the Lawrence County Airpark, Young made two approaches to Runway 26,
but did not land the airplane. With both approaches, Young communicated his turns as
he flew around the area and approached the runway. Dee Callicoat, who was at the
Lawrence County Airpark that day, heard Young over a radio at the airpark.
{¶ 7} On the first approach, Young successfully performed a “go around,” meaning
that he approached the runway, continued along the runway without the wheels touching
down, accelerated by applying full power, and climbed out. (Trial Tr. at 345.) Young
again circled the area. On the second approach, Young again descended to the runway,
but accelerated and climbed out instead of landing; it is unclear whether Young touched
down on the runway before doing so. The airplane cleared the lower trees near the end
of the runway, but soon after, the right wing dropped and the plane descended nose first
into the ground. The airplane was upside down when it hit the ground, and it caught fire
upon impact. All three occupants of the plane died as a result of the crash.
{¶ 8} At various times after the crash, the wreckage was inspected by the National
Transportation Safety Board (NTSB), representatives of the decedents’ families, and
representatives of various companies involved in the manufacture of the airplane’s parts.
Notably, the engine, propeller, and muffler were recovered and evaluated. Internal
components of the muffler were found to be broken. It was determined that the muffler,
which had been replaced in 1987, had been manufactured by Elano.
{¶ 9} In March 2007, Plaintiffs filed suit in the Cuyahoga County Court of
Common Pleas against various defendants, including Lycoming Engineers, the
manufacturer of the airplane engine, and Unison Industries, LLC, the successor to
Elano. In September 2010, that action was dismissed, without prejudice, pursuant to
-4-
Civ.R. 41(A)(1)(a).
{¶ 10} In November 2010, Plaintiffs refiled the action against Elano Corporation,
and Unison Industries, LLC (collectively, “Elano”) in the Montgomery County Court of
Common Pleas, alleging strict liability, negligence, misrepresentation, concert of
action, and willful, wanton, and outrageous conduct. In June 2011, the action was
transferred to the Greene County Common Pleas Court, because Elano’s principal
place of business was in Greene County. The procedural history of the Greene County
case is lengthy, including a prior appeal to this court. Hetzer-Young v. Elano Corp., 2d
Dist. Greene No. 2013-CA-32, 2014-Ohio-1104. Most of this procedural history is not
relevant to this appeal.
{¶ 11} The case was tried to a jury from May 4, 2015, through May 18, 2015.
Plaintiffs maintained that, while Young attempted to perform a “go around” maneuver, the
airplane crashed due to a sudden lack of engine power caused by a defect and failure in
the airplane’s muffler. Plaintiffs’ theory was that the muffler was defectively designed
because (1) the material selected for its construction (stainless steel) was insufficient to
withstand the intended operating conditions, (2) the muffler was not designed to prevent
blockage of the exhaust outlet should any of the internal components break, (3) the
internal components were not capable of inspection, and/or (4) no warnings or
instructions were provided by the manufacturer. Plaintiffs asserted that the crash
occurred when the internal structures of the muffler broke and blocked the exhaust outlet,
causing excess back pressure in the muffler and loss of engine power.
{¶ 12} Plaintiffs presented numerous witnesses at trial. These witnesses
included (1) Rae Ann Parsons, an individual who lived close to the crash site and saw
-5-
and heard the plane just prior to impact; (2) John Warlick, former Vice President of Elano
and head of Elano’s Commercial Products Department, which included mufflers; (3) Dee
Callicoat, a pilot and friend of Young who heard Young’s radio calls and the sound of the
plane shortly before the crash; (4) Allen Fiedler, an aircraft accident investigator who
concluded, among other things, that the condition of the propellers did not show that they
were operating under full power at the time of the crash and that the crash was caused
by a failure within the muffler; (5) Richard McSwain, Ph.D., a materials engineer who
testified about the effect of flying conditions on stainless steel mufflers and concluded that
the internal components of the muffler were broken prior to the crash; (6) Donald Sommer,
an accident reconstructionist and pilot, who conducted tests regarding blockages in the
exhaust system; (7) Young’s previous battalion commander;1 (8) an economist; and (9)
the Plaintiffs.
{¶ 13} Elano’s theory was that the crash was caused by Young’s attempt to rise
from the runway at too steep an angle, which caused an aerodynamic stall. Elano
presented the testimony of (1) four individuals who observed Young’s plane just prior to
the crash – Donald Mannon, Nelson Whitt, Ivan Henshaw, and Joseph Johnson; (2)
Walter Voisard, a propeller expert who testified that the propeller was under “very high
power” when the crash occurred; (3) William Edwards, an accident reconstructionist who
opined that a delayed go around was not properly executed and that Young stalled his
aircraft; and (4) Dennis Moore, a mechanical/aerospace engineer and pilot who critiqued
Sommer’s experiments, performed his own tests, and opined that the restriction
1
Young was a lieutenant colonel in the National Guard, and he served in Iraq as a
battalion flight surgeon for the 150th Armor Calvary, United States Army. Young
returned from his deployment in February 2005, one month before the crash.
-6-
(blockage) shown in the muffler did not have any effect on horsepower.
{¶ 14} The trial court granted a directed verdict to Elano on claims for willful and
wanton conduct, punitive damages, manufacturing defect, nonconformance,
misrepresentation, and negligence per se. Claims for general negligence, negligent
design, negligent failure to warn, and product liability (design defect, failure to warn) were
presented to the jury for deliberation. The jury found in Elano’s favor on all counts before
it, and the trial court entered judgment accordingly. Plaintiffs appeal from the trial court’s
judgment, raising five assignments of error.
II. Exclusion of Service Difficulty Reports (“SDRs”)
{¶ 15} Plaintiffs’ first assignment of error states:
The trial court erred in refusing to admit the Federal Aviation Administration
Service Difficulty Reports.
{¶ 16} In their first assignment of error, Plaintiffs claim that the trial court erred to
their prejudice when it denied Plaintiffs’ request to admit FAA Service Difficulty Reports
(“SDRs”) as evidence at trial. Plaintiffs argue that the SDRs were necessary to link
muffler failure studies in earlier FAA reports (which were admitted into evidence) to
Elano’s mufflers. Plaintiffs argued that the SDRs were admissible as certified public
records under Evid.R. 803 and to establish that Elano was on notice of the defect.
Plaintiffs stated that the SDRs involved mufflers that were substantially similar to Young’s
muffler and that their admission was consistent with the policies underlying the hearsay
rules.
{¶ 17} As described by Allen Fiedler, an aircraft accident investigator for Plaintiffs,
the Service Difficulty Program is an FAA program under which the aviation community
-7-
shares information on malfunctions and defects in aircraft equipment. The purpose of
SDRs is to compile information regarding malfunctions and defects to determine whether
trends exist. Information collected on SDRs is provided by the FAA to aircraft
manufacturers and aircraft component manufacturers, and if trends are established, the
manufacturer is supposed to investigate it and develop a resolution to the problem.
{¶ 18} The FAA issues Advisory Circulars to educate the aviation industry
regarding particular programs. The FAA issued an Advisory Circular regarding the
Service Difficulty Program.
{¶ 19} SDRs are prepared primarily by mechanics, but anyone in the aviation
community can submit a report to the FAA; certain mechanics are required by FAA
regulations to complete SDRs. The SDRs ask for such information as the aircraft make
and model, the engine make and model, the component make and model, the part
location and condition, the stage of operation, and submitter remarks.
{¶ 20} Fiedler testified that SDRs are currently accessible through an online
database. Prior to the Internet, manufacturers could request copies of the SDRs directly
from the FAA. Warlick, Elano’s former Vice President, testified that the FAA provided
the company with SDRs related to Elano’s products. (Warlick Depo. at 73-74.)
{¶ 21} Elano’s mufflers were made out of “321 stainless steel,” comprised of 68
percent iron, 18 percent chromium, and 10.5 percent nickel. The muffler consisted of a
shell (shroud) with four riser tubes, which connected to the engine cylinder exhaust
manifold. Inside the shell were two assemblies consisting of a perforated cylinder (called
the “baffle” or “flame cone” or “diffuser,” depending on the witness) and a solid end cap.
As described by Plaintiffs, “[t]he exhaust flows into the interior of the flame cone cylinder
-8-
and is diffused as it stops at the solid end cap and seeps through the flame cone
perforations and travels out the overboard stack. The pressure within the muffler caused
by this exhaust diffusion is referred to as ‘back pressure’ since it resists against the
incoming flow of exhaust being expelled from the engine into the muffler.” (Pls. App.
Brief at 4.)
(Pls. Ex. 37.)
{¶ 22} Plaintiffs offered into evidence approximately 100 SDRs with dates
spanning from 1974 to 2001; the vast majority are from 1976 to 1980. Most, but not all,
of the SDRs involved Grumman AA-5 aircraft and involved mufflers with part numbers
that began with “99001,” which Warlick testified was the number for the Elano muffler
system. (Warlick Depo. at 25.) The specific parts were identified as 99001-025, 99001-
137, 99001-148, 99001-191, 99001-195, 99005-191, and 99005-195. For planes other
than the Grumman AA-5, the part numbers consisted of 99001-035, 99001-113, 99001-
126, 99001-127, 99001-131, 99001-190, 99001-714, and 99005-42. Warlick testified
that the “dash number” reflected the specific airplane and muffler design. (Id. at 33.)
{¶ 23} Approximately half of Plaintiffs’ SDRs described the malfunction or defect
-9-
simply as the baffle being “broken” or “blown.” Several SDRs added that the broken
baffle obstructed the exhaust outlet. Others also added that the blocked exhaust outlet
resulted in power loss. The vast majority of Plaintiffs’ SDRs indicated in the “stage of
operation” column that the defect was discovered during inspection/maintenance; nine
indicated that the problem arose during flight. None of the SDRs identified the submitter
by name.
{¶ 24} In addition to the SDRs, Plaintiffs presented evidence regarding the history
of failures of stainless steel mufflers, presented in various FAA reports from the 1960s
and 1970. As discussed by Dr. McSwain, the FAA conducted studies of general aviation
stainless steel mufflers in the 1960s. The studies involved the participation of various
manufacturers, including Elano.
{¶ 25} The first report, titled “Analysis of Engine Exhaust System Failures in
General Aviation Aircraft,” was issued in September 1964. (Pls. Ex. 77.) The report
noted a record of exhaust system malfunctions and failures causing in-flight hazards, both
carbon monoxide leakage and loss of power. These failures “reached a maximum at
approximately 100 to 200 hours operating time.” The FAA report found that
approximately 20 percent of exhaust system failures occurred internal to the muffler
baffles and diffusers; McSwain testified that the failure of the muffler baffles and diffusers
were “exactly the same” as what he found in his analysis of the muffler at issue here.
{¶ 26} The 1964 FAA report noted 70 incidents of reported partial power loss or
complete power failure as a result of internal muffler failure between 1958 and 1962.
McSwain stated that this represented a “large hazard” and that a failure in-flight is a
“critical failure.” (Trial Tr. at 760.) The FAA report noted that a predominance of the
-10-
internal muffler failures occurred in the crossover-type exhaust system; this was the
system in Young’s aircraft. (Id. at 766.)
{¶ 27} The FAA issued a 1965 report, titled “Metallurgical Evaluation of Failed
Aircraft Stainless Steel Exhaust System Components,” following a metallurgical
investigation. (Pls. Ex. 78.) The FAA issued a “Final Report, Metallurgical Evaluation
of Aircraft Exhaust System Components Failed During the Ground Test Program” in April
1968. (Pls. Ex. 79.) For this report, the FAA created a ground test program where it
attempted to fail the stainless steel mufflers. The FAA concluded that a material
composed of 21 percent chromium and 32 percent nickel (known as Incoloy) was far
superior to 321 or 347 stainless steel; stainless steel 321 is used by Elano. Another
1968 FAA report concluded that high temperatures and vibration were factors in the
failure of stainless steel exhaust systems. (Pls. Ex. 80.)
{¶ 28} The trial court initially instructed the jury that the FAA reports from these
studies could not be considered as evidence of the truth of the information in those reports
and that they could only be considered in regard to the fact that McSwain considered the
FAA reports during his evaluation of this matter. (Trial Tr. at 749.) However, after
further discussion with counsel, the court admitted the FAA reports under the ancient
documents exception to the hearsay rule. (Id. at 755.) McSwain testified extensively
about the content of the FAA reports.
{¶ 29} “Prior occurrences are sometimes relevant ‘to show that a party knew or
had notice of a dangerous condition.’ ‘[I]n order for such occurrences to have been
admissible to show prior knowledge on the part of [the defendant], these incidents must
have occurred under circumstances substantially similar to those in [the plaintiff's case].’
-11-
The trial court has the discretion to determine whether the prior occurrences were
substantially similar to the accident in question. Furthermore, the proponent of prior
occurrence evidence has the burden of showing the substantial similarity of the
circumstances.” Lumpkin v. Wayne Hosp., 2d Dist. Darke No. 1615, 2004-Ohio-264, ¶
13, quoting Eakes v. K-Mart Intern. Headquarters, Inc., 2d Dist. Montgomery No. 17334,
1999 WL 252481, *3 (Apr. 30, 1999). See also Pease v. Lycoming Engines, M.D. Pa.
No. 4:10-CV-843, 2012 WL 162551 (Jan. 19, 2012); Sheesley v. Cessna Aircraft Co.,
D.S.D. Nos. 02-4185-KES, 03-5011-KES, 03-5063-KES, 2006 WL 3042793, *10 (Oct. 24,
2006); Olson v. Ford Motor Co., 410 F.Supp.2d 855 (D.N.D.2006).
{¶ 30} Plaintiffs attempted to present evidence of prior occurrences through SDRs,
rather than through the testimony of witnesses. As documentary evidence of mechanical
defects and/or malfunctions, the evidence is admissible only if it satisfies the hearsay
rules.
{¶ 31} Evid.R. 801(C) defines hearsay as a “statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” (Emphasis added.) A “statement,” as included in the definition
of hearsay, is an oral or written assertion or nonverbal conduct of a person if that conduct
is intended by the person as an assertion. Evid.R. 801(A).
{¶ 32} Plaintiffs claim that the SDRs “were not offered for the truth of the matter
asserted, but as evidence that Elano knew or had notice of the defect or a dangerous
condition in the subject muffler.” (Plaintiffs’ App. Brief at 16.) In other words, Plaintiffs
claim that the SDRs were not inadmissible hearsay, because they were not offered for a
hearsay purpose. Additionally, Plaintiffs assert that the SDRs were admissible as
-12-
evidence of prior defects/malfunctions (i.e., for the truth of the matter contained in the
SDRs) under Evid.R. 803(8), the public record exception to the hearsay rule.
{¶ 33} Assuming, for sake of argument, that Plaintiffs could satisfy the substantial
similarity requirement, we find no prejudicial error due to the trial court’s exclusion of the
SDRs for the purpose of demonstrating notice. Warlick testified that Elano knew about
SDRs, had access to the SDR database, and received SDRs from the FAA. Specifically,
he stated:
Q: While you were at Elano, did you folks access that database to monitor
the field service of the 099001 muffler?
A: Yes.
Q: How often would you access that database?
A: Generally, the FAA would send us in notices on it, and we read all those
notices. It was a document, and I don’t recall what the document number
was or the title to it. But it came in from the FAA.
***
Q: Okay. When you received those reports, and you reviewed those
reports, did you folks in the engineering department sit down to identify the
reasons why muffler assemblies were failing in the field?
A: Yes.
Q: Okay, did you come to a conclusion as to why they were failing in the
field?
A: I don’t know what you’re talking about. What failures?
Q: Sir, what is a service difficulty report, let’s start with that?
-13-
A: Well, that tells you that there’s some type of failure.
Q: So any time that there was a service difficulty report, the FAA provided
you notice of that report; is that accurate?
A: I can’t say what the FAA did.
Q: Okay. What was the purpose of the FAA’s providing you with service
difficulty reports?
A: To keep us informed.
Q: Was it merely informational, or was there anything else required of
Elano upon receiving these reports?
A: For us to take action, it had to have a direct request from the FAA or
some kind of spec.
Q: So is it accurate that unless the FAA asked you to investigate the
reports, Elano did not investigate the reports?
A: No, we investigated all of them. We called on it, or tried to find out why
–
Q: How did you – how did you investigate these reports?
A: Telephone calls to them. We were – most of the time, we had good
contacts with all the airframe companies. And when they’d have a failure,
they’d let me know. Or if they had a problem with the exhaust system, they
let me know. So that was –
Q: I’m referring to when the FAA, the Federal Aviation Adminsitration
providing you with copies of service difficulty reports, what did you do with
those reports?
-14-
A: We would analyze them and see what happened.
Q: Okay. Did you record the meantime of the failures?
A: No.
Q: Okay. Did these service difficulty reports involve failures where the
end caps broke away from the diffusers?
A: I don’t recall ever seeing one.
Q: Did these service difficulty reports involve instances where the diffuser
material deteriorated?
A: I don’t recall any of those either.
Q: Do you recall service difficulty reports involving perforations in the
muffler canister?
A: No.
Q: Understood. But my question is, is a little focused on what the content
of the report was. What was the type of failure that was being reported in
the muffler systems? Do you recall what the type of failures were?
A: Mostly that I recall was the internal parts were burning up.
Q: Okay. And those internal parts were the diffusers?
A: Yes, the diffusers.
Q: And the end caps; is that correct?
A: Yes.
Q: Okay.
A: That whole assembly.
Q: And were you receiving reports that upon wearing out that these parts
-15-
were blocking the exit orifice of the exhaust systems?
A: I know of only one case that came up.
Q: Okay. Did that case involve an accident?
A: I think so, yes.
Q: As a result of the FAA submitting service difficulty reports to Elano
Corporation, did you folks sit down and contemplate a change in the
material selection of the mufflers, the internal components of the mufflers is
what I’m referring to?
A: Yes, we proposed we change them to Inconel. * * * But we were turned
down on it because of the price.
(Warlick Depo. at 71-77.)
{¶ 34} Warlick’s testimony established that Elano was familiar with SDRs and their
content, that the FAA had provided SDRs to Elano regarding Elano mufflers, and that
Elano had investigated reports of muffler failures. Warlick recalled that many of the
reports concerned internal parts, i.e., the end cap and diffusers, burning up. One failure
involved an accident. Accordingly, to the extent that Plaintiffs offered the SDRs to
establish that Elano had notice of muffler failure reports (as opposed to for the purpose
of establishing that actual failures had occurred that were similar to the condition of
Young’s muffler), the admission of the SDRs was not necessary; the jury did not need to
see the actual SDRs in order to ascertain whether Elano was on notice of reports of prior
muffler failures. And, given the number of SDRs and the potential risk that the jury would
improperly consider the information contained in them as substantive evidence of actual
prior failures, the trial court could have reasonably concluded that the risk of unfair
-16-
prejudice to Elano substantially outweighed the probative value of the SDRs themselves.
The trial court did not abuse its discretion in denying Plaintiffs’ request to admit the SDRs
for the purpose of establishing notice.
{¶ 35} Plaintiffs further assert that the SDRs should have been admitted under
Evid.R. 803(8). That Rule provides:
Records, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth (a) the activities of the office or agency, or
(b) matters observed pursuant to duty imposed by law as to which matters
there was a duty to report * * *.
Plaintiffs assert that the SDRs at issue “documented substantially similar AA-5 muffler
failures and taken together demonstrate a history of the failure of these mufflers on this
model airplane, including engine failures.” (Pls.’ App. Brief at 19.) Plaintiffs thus
claimed that the SDRs were admissible as substantive evidence of prior malfunctions and
defects.
{¶ 36} It is undisputed that certain individuals are required to submit SDRs to the
FAA. However, the information on the SDRs provides no information about the
individuals who made the reports, and Plaintiffs have not identified which SDRs were
submitted pursuant to a duty imposed by law, as opposed to a voluntary report by an
individual who noticed an issue with the muffler. Accord Crouch v. Teledyne Continental
Motors, Inc., Civ. No. 10-00072-KD-N, 2011 WL 2650879, *4 (S.D.Ala. July 6, 2011).
Consequently, Plaintiffs did not establish that the SDRs were admissible under Evid.R.
803(8).
{¶ 37} We note that several of Plaintiffs’ experts were asked about the SDRs.
-17-
(Trial Tr. at 500-505 (Fiedler); id. at 677-678 (McSwain); id. at 1128, 1139 (Sommer).)
Of particular note, McSwain testified that, as part of his work in this case, he researched
the number of failures that were embodied in SDRs for Elano mufflers in Grumman
aircraft. (Trial Tr. at 677.) When asked how many SDRs he had seen concerning Elano
mufflers in Grumman AA-5 aircraft, McSwain responded, “It’s a stack. I don’t remember
the number, but it’s a stack of failures.” (Id. at 677-78.) Asked if the number was over
100, McSwain responded, “Yes.” When asked about the prior FAA studies, McSwain
testified that the failure of internal muffler parts found in FAA studies were “exactly the
same” as the failures found in Young’s muffler. (See id. at 759.)
{¶ 38} Plaintiffs further emphasized the importance of SDRs in closing argument.
Counsel stated that the muffler was analyzed metallurgically, from a mechanical
engineering standpoint, and from a historical perspective. As part of the historical
perspective, counsel stated, “You look at Service Difficulty Reports, because what is that
saying to you? That’s saying to you what’s going on in the field. What’s a mechanic,
who makes his living with the tools, seeing in service; right? And so if he’s taking his
time to report these things, you have to look at that.” (Id. at 2120.) And, Plaintiffs
reminded the jury that “Dr. McSwain testified that he personally reviewed 104 failures of
the Elano muffler just like this, mostly in the AA-5 aircraft.” (Id. at 2114.) Thus, even
without the SDRs, the jury was aware of Plaintiffs’ position that a large number of Elano
muffler failures had been reported to the FAA through SDRs.
{¶ 39} Viewing the trial court’s ruling on the SDRs in light of the entire trial, we find
no reversible error in the trial court’s denial of Plaintiffs’ request to admit the SDRs into
evidence. Plaintiff’s first assignment of error is overruled.
-18-
III. Admission of Lay Witness Testimony
{¶ 40} Plaintiffs’ second assignment of error states:
The trial court erred by admitting incompetent, irrelevant, speculative, and
prejudicial lay witness opinion evidence on matters that invaded the
province of the jury.
{¶ 41} Plaintiffs claim that the trial court erred in permitting several of Elano’s lay
witnesses to testify beyond the scope of their own observations and knowledge and to
offer opinions as to Young’s intentions while approaching the runway (land v. go around),
the functionality of the AA-5 aircraft, and/or the cause of the crash. They assert that the
admission of this lay testimony was improper and that, even if admissible, was unduly
prejudicial.
{¶ 42} Evid.R. 701 governs opinion testimony by lay witnesses and provides that
such testimony “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.” Under Evid. R. 701, lay opinion
testimony must be “rationally based on the perception of the witness. 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 & Trust
Co. v. Reynolds, 2d Dist. Greene No. 2007 CA 66, 2008-Ohio-4145, ¶ 17.
{¶ 43} The line between expert testimony under Evid.R. 702 and lay opinion
testimony under Evid.R. 701 is not always easy to draw. Id. at ¶ 19. However, as
recognized by the Supreme Court of Ohio, courts have permitted lay witnesses to express
their opinions in areas in which it would ordinarily be expected that an expert must be
-19-
qualified under Evid.R. 702. State v. McKee, 91 Ohio St.3d 292, 296, 744 N.E.2d 737(2001). “Although these cases are of a technical nature in that they allow lay opinion
testimony on a subject outside the realm of common knowledge, they still fall within the
ambit of the rule’s requirement that a lay witness’s opinion be rationally based on firsthand
observations and helpful in determining a fact in issue. These cases are not based on
specialized knowledge within the scope of Evid.R. 702, but rather are based upon a
layperson’s personal knowledge and experience.” (Footnote omitted.) Id. at 296-297;
see also State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 107 (2d Dist.) (police detective
could testify about typical behavior of children in child abuse cases based on his training
and experience in such cases); State v. Renner, 2d Dist. Montgomery No. 25514, 2013-
Ohio-5463, ¶ 77.
{¶ 44} The trial court has “considerable discretion in admitting the opinion
testimony of lay witnesses.” (Citation omitted.) State v. Marshall, 191 Ohio App.3d 444,
2010-Ohio-5160, 946 N.E.2d 762, ¶ 43 (2d Dist.). An abuse of discretion implies that
the trial court’s attitude was unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 45} Plaintiffs contend that the trial court improperly allowed lay opinion
testimony from four defense witnesses: Donald Mannon, Nelson Whitt, Ivan Henshaw,
and Joseph Johnson.2
A. Donald Mannon
{¶ 46} Donald Mannon is a freight car repairer for CSX railroad, and he resides in
2
None of these witnesses testified live. Their video-recorded depositions were played
for the jury.
-20-
Kitts Hill, Ohio. Mannon is not a pilot. Mannon testified that he was familiar with the
Lawrence County Airpark and had seen airplanes landing and taking off from that airport
“hundreds” of times.
{¶ 47} According to Mannon’s testimony, Mannon was in the parking lot of a
furniture store on March 13, 2005, when he saw a plane “coming down below tree level”;
the plane was not near the runway. (Mannon Depo. at 8.) Mannon stated that the plane
was wavering, with its wings rocking back and forth, and the nose was slightly up.
Mannon heard the plane throttle up, but “it just kept going down.” Mannon stated that he
could “look in the window and I could tell somebody * * * was fighting, trying to keep it up.”
(Id. at 10.) Mannon was able to see the propeller spinning and hear the engine until the
plane went out of his sight, i.e., behind a church and some trees. Mannon did not hear
any unusual sound from the engine, such as popping, cracking, or backfiring. (Id. at 32-
33.)
{¶ 48} When asked about the engine’s level of power that he heard, the following
exchange occurred:
Q: Have you had many occasions in your life when you’ve heard airplanes
under power, such as takeoff?
A: Yes.
Q: Okay? I mean, do you recognize from your experiences hearing an
airplane that they may be using more power on takeoff than flying around
in the air?
A: Yes.
Q: How would you describe the power that you heard coming out of that
-21-
engine as it’s – when you said it increased its power?
A: I would say full power.
(Id. at 33-34.)
{¶ 49} Upon cross-examination by Plaintiffs’ counsel, Mannon provided additional
testimony regarding engine sounds, as follows:
Q: Okay. Would you agree with me that there are many different kinds of
airplanes? I mean, some have two engines, some have one engine?
A: Yes.
Q: And just like there may be different sounds to cars, would you agree
with me that there are different sounds to airplanes?
A: Yes.
Q: One has one engine, one has two engines. So when you were asked
the question about, you know, having heard many airplanes on different
times at the airport in Lawrence County, the times that you heard them you
would have heard different sounds from different airplanes?
A: Yes.
Q: You don’t have any training as an airframe or power plant mechanic
working on airplanes?
A: No.
Q: Such as you’ve never run up engines and listened to them, how the
power comes up?
A: No.
(Id. at 46-47.)
-22-
{¶ 50} After the plane left his sight, Mannon got into his truck and drove across the
highway to the crash site. Mannon estimated that the crash site was approximately 300
yards from the parking lot. When he arrived, the plane was engulfed in flames, and the
plane looked like “a pile of garbage.” (Id. at 13.)
{¶ 51} On appeal, Plaintiffs argue that the trial court erred in allowing Mannon’s
testimony as it related to the operation of Young’s engine. They assert that Mannon
should not have been permitted to testify that he perceived the engine to be operating
under “full power” and that the facts underlying his opinion – his hearing of the engine
and observation of the aircraft – were not reliable.
{¶ 52} Mannon observed Young’s plane immediately before the crash, though he
was unable to see its impact with the ground due to the presence of trees and a church
in his sightline. Mannon’s descriptions of the sound of the engine, the spinning of the
propeller, the plane’s pitch, and the movement of the plane as it descended were based
on his first-hand observations. Although Mannon was not a pilot, his description that he
heard the engine “throttle up” and that it appeared to be at full power were based on his
experiences with engines and observing airplanes. Plaintiffs question whether Mannon
could have seen the propeller spinning and heard what he heard from 300 yards away,
and they emphasize that Mannon is not a pilot and has no flight training; these are matters
relating to the weight of the evidence, not its admissibility.
{¶ 53} The trial court did not abuse its discretion in permitting Mannon’s testimony.
B. Nelson Whitt
{¶ 54} Nelson Whitt is a commercial instrument multiengine flight instructor and
president of Attitude Aviation, which provides flight instruction as well as aircraft
-23-
maintenance and inspections. Whitt did not provide instruction to Young, and he did not
see Young fly his (Young’s) Grumman aircraft.
{¶ 55} Whitt was present at the airport on the day of Young’s crash, but he did not
see Young. At the time of the crash, Whitt was working in a hangar and did not see what
occurred outside. Whitt did not hear the Grumman’s engine, and he did not hear
anything on a radio; Whitt believed that the speaker exterior to the FBO (fixed-base
operator) facility at the airpark was inoperable at that time.
{¶ 56} Whitt did see the engine after the crash occurred. He stated that the
engine was separate from the plane, and the propeller was still attached. One blade was
buried in the ground, which was hard due to cold weather. He further testified:
Q: The only thing you’ve heard is that the engine was operating properly?
A: From the evidence that I saw at the crash scene – and I was there when
they inspected the engine – there’s no reason to believe the engine wasn’t
operating properly, because the prop was buried. And if an engine is even
a partial strike, low power, the ground was hard, it was – one edge of the
prop was buried in the ground. I mean, it hit – it hit the ground hard.
Q: Was this a two-bladed prop on this aircraft?
A: Yes.
Q: And one of the blades were literally buried straight into the ground
then?
A: Yes. It had actually contacted the other one enough to roll it back
some. But it had hit the ground pretty hard, nose first.
Q: And that indicates to you that the engine is operating at higher power?
-24-
***
A: Yes.
Q: Tell us about – what’s your knowledge base to be able to tell us these
things?
***
A: Well, besides being around airplanes my whole life, there’s none.
(Whitt Depo. at 41-42.)
{¶ 57} Whitt testified that he was familiar with general flying characteristics of small
aircraft, and he was familiar with what it looks like for an aircraft to stall. Whitt stated that
he practices stalls monthly. Whitt testified that, as a plane enters a stall, the plane
experiences wing shudder and, “[i]f you let it go into a complete stall, the nose will come
down. If you don’t have it coordinated, it will roll over.” (Whitt Depo. at 48.)
{¶ 58} Plaintiffs claim that Whitt was not qualified to render an opinion as to
whether the engine was operating properly when the Grumman hit the ground. As with
Mannon, they emphasize that Whitt is not an airplane mechanic or an accident
reconstructionist.
{¶ 59} The trial court did not abuse its discretion in allowing Whitt to testify
regarding the engine. Whitt is a flight instructor with experience in airplane stalls.
Although he is not a mechanic, he has experience with the operation of airplanes, and
Whitt had viewed the engine of Young’s plane after the crash. It was reasonable to infer,
based on the knowledge and experience Whitt had accumulated over many years around
airplanes, that he would be familiar with the difference in force that a propeller would
exhibit depending on whether the propeller were being turned by an operable engine.
-25-
Moreover, the basis for Whitt’s opinion was before the jury, Whitt was cross-examined,
and the jury was able to evaluate how much weight to give to Whitt’s opinion, compared
to those offered by the parties’ experts. We find no abuse of discretion in the trial court’s
ruling on the admissibility of Whitt’s testimony.
C. Ivan Henshaw, Jr.
{¶ 60} Ivan Henshaw lives near the Lawrence County Airpark and has driven by it
on his way to work for the past 32 years. Henshaw has seen planes taking off and
landing at the airport “hundreds” of times and has seen planes flying around the area, but
he is not a pilot.
{¶ 61} On March 13, 2005, Henshaw saw Young’s plane approach the airpark.
He testified that his wife noticed the plane first, saying, “That plane’s coming in fast.”
(Henshaw Depo. at 10.) Henshaw had responded to her, “Yeah, but look at the angle.”
Id. Henshaw stated that the plane was coming down at about a 45 degree angle toward
the airstrip. Henshaw described what he observed, over objection, saying:
We were about to get on the bridge [from West Virginia into Ohio],
and we noticed it. We said just what we said, you know, it was coming in
awful – it seemed like it was fast. Most planes that come in, they just, you
know, just kind of glide in. (Indicating.) This one was coming down pretty
fast and at a pretty good angle.
And when we saw that and I said it – I said, “there’s no way that” –
now, this is just my opinion. All right? I mean, what I seen. Okay.
I said, “There’s no way he’s going to land it,” because it looked, the
way he was coming down, he was going to be somewhere about the middle
-26-
of the airstrip. And I told her, just joking, I said, “I’m going to get up here.
I want to see how he lands this thing.”
(Henshaw Depo. at 11-12.)
{¶ 62} Henshaw stated that, once the plane went by, he could not see the plane
because of the trees. Henshaw did not see if the plane touched the runway. When he
next saw the plane, it was rising. From his angle, Henshaw could not see if the plane
was “vertical.” The plane then turned on its right side and crashed.
{¶ 63} Henshaw was asked to mark on a map where he was when he first noticed
Young’s plane. Henshaw complied. When asked what the plane was doing at that
point, Henshaw responded, “Well, he was coming in for a landing.” (Id. at 16.)
{¶ 64} Upon questioning by counsel for Plaintiffs, Henshaw testified that he is not
a pilot and did not know how fast Young’s Grumman could go. He did not know how fast
it travels while cruising or when it touches down to land. When asked to give a “ballpark
figure” of how fast Young’s plane was traveling, Henshaw stated, “I don’t have a clue how
fast it was going.” Henshaw did not know if the flaps were extended or the landing gear
was down. Henshaw acknowledged that he did not know if Young was attempting to
land, as opposed to making a low approach.
{¶ 65} Plaintiffs argue that Henshaw was improperly permitted to “give his opinion
that Dr. Young ‘was coming in for a landing,’ ” despite the fact that Henshaw did not know
how fast Young’s aircraft was traveling and whether Young intended to land. Plaintiffs
further argue that Henshaw should not have been permitted to give “speculative opinions”
that Young’s approach was fast and high.
{¶ 66} We disagree that the trial court abused its discretion in permitting
-27-
Henshaw’s testimony. Henshaw did not offer an expert opinion on Young’s approach to
the airport. He simply testified that, in comparison to the “hundreds” of planes that he
had seen approaching the airport, Young’s plane appeared to be high and travelling fast.
Henshaw described what he typically observes (gliding in) and how Young’s plane
differed. Henshaw’s statement that Young was “coming in for a landing” was also based
on Henshaw’s ordinary experience of seeing numerous planes land at Lawrence County
Airpark. Henshaw’s testimony was not beyond the scope of reasonable lay testimony.
D. Joseph Johnson
{¶ 67} Joseph Johnson is a pilot who houses his airplane at Lawrence County
Airpark. Johnson was at the airport on March 13, 2005, when the crash occurred. He
was standing on the ramp area in front of the airport office. His wife, Valentine, was in
their plane getting ready to go up for her first “solo pattern work”; she was waiting for
Young to land before going up.
{¶ 68} Johnson testified that he saw Young “coming back to the airport to land.”
On Young’s first approach, Johnson saw Young squared up on the runway and thought
Young’s plane was “high.” Johnson stated that “high” is “relative to where you tend to
think you need to be to set the plane down on the runway, to land.” Johnson testified
that, from a pilot’s standpoint, Young’s plane was high, and Johnson thought, at that point,
that he did not see how Young was going to get the airplane down. Johnson observed
Young execute a go-around; he put power into the plane and climbed.
{¶ 69} Johnson testified that, on the second approach, Young’s plane looked a
little bit higher than Johnson thought it should be, but not as high as the first approach.
Johnson stated that he “really didn’t think too much about it.” (Johnson Depo. at 29.)
-28-
Johnson did not think the plane looked abnormal; he stated the descent “looked fine.”
Johnson commented that the plane seemed a little bit faster than what he thought it
should have been, but Johnson acknowledged that he had not flown an AA-5 and did not
know the approach speed for that plane.
{¶ 70} Johnson saw the wheels of Young’s plane touch down about 2/3 to 3/4
down the runway, and turned away. Johnson heard the power go back up, and when
Johnson turned around, he saw the plane in a quick pitched-up attitude. Johnson
believed the airplane had bounced on the runway, based on the change in pitch attitude
of the plane. Johnson stated that the angle was “pretty steep” because of the trees;
Johnson saw Young clear the trees. (Id. at 39-40.) Johnson stated the plane then
“shuddered a little bit,” the right wing dropped, and the plane disappeared behind the
trees. (Id. at 41.) Johnson stated that, “when an airplane stalls, it will give a little buffet
or a little bit of shudder right * * * just before it falls out of the sky.” (Id. at 41.) Johnson
did not see the plane’s impact with the ground.
{¶ 71} Johnson testified that he did not hear anything abnormal when Young
powered up to climb over the trees. He did not hear the engine sputter or cut out.
Johnson stated that the propeller had to have been turning if the plane were climbing.
Johnson stated that he believed the airplane had stalled. Although Johnson had not
flown the Grumman aircraft, he had seen Young land before, and Young had approached
lower and slower in the past, landing in the first third of the runway.
{¶ 72} Plaintiffs argue that, by allowing Johnson’s testimony, the trial court
improperly permitted Johnson to state his opinion as to the cause of the accident,
usurping the jury’s role. They assert that he was improperly permitted to state his opinion
-29-
that he did not hear anything abnormal regarding the aircraft and “became a second
accident reconstructionist for the defense who rendered opinions about a flight path he
did see for an aircraft he has never flown.” (Pls. App. Brief at 33.) Plaintiffs further claim
that Johnson’s opinions were based on speculation that Young was “coming back to
land,” that his plane was high, and that his plane bounced on the runway.
{¶ 73} Johnson was an experienced pilot, who was familiar with the Lawrence
County Airpark. Johnson’s opinions regarding Young’s approaches to the runway were
based on his personal observations and experience, both as a pilot and having seen
Young land the Grumman on prior occasions. Similarly, based on his experiences and
personal observations, Johnson was reasonably permitted to state his opinions as to
whether Young’s plane sounded normal and was rising at an excessively steep rate when
Young cleared the trees following his second approach. Finally, through cross-
examination, Plaintiffs had ample opportunity to explore Johnson’s unfamiliarity with the
specifications and handling characteristics of the Grumman. The trial court did not abuse
its discretion in permitting Johnson to testify as he did.
{¶ 74} Plaintiff’s second assignment of error is overruled.
IV. Demonstrative Evidence – Flight Video
{¶ 75} Plaintiffs’ third assignment of error states:
The trial court erred in denying a request for a jury view and then arbitrarily
deeming a demonstrative flight video as a “jury view” thereby excluding it
from the evidence and disallowing its use as a demonstrative aid.
{¶ 76} On April 7, 2015, Plaintiffs requested a jury view of a Grumman AA-5 aircraft
and a flight demonstration at the Greene County Regional Airport. (Doc. #304.)
-30-
Plaintiffs indicated that the flight demonstration would include an engine demonstration,
aerodynamic stall, go around, and a “touch and go” (a maneuver in which an airplane
touches down as if to land, but immediately takes off again). They stated that the
demonstration would help the jury understand how such maneuvers occur and allow them
to hear the warning sound that a Grumman AA-5 makes before the onset of a stall. (It is
unclear from the motion whether Plaintiffs intended jurors to be passengers in the aircraft
during the demonstration or, instead, to view the demonstrations from the ground.)
Plaintiffs further asserted that viewing an aircraft was necessary for the jury to understand
the difficulty of inspecting the muffler before flight, as well as the cockpit instruments and
how aircraft operate. Plaintiffs’ counsel indicated that he had brought aircraft to
courthouses on several prior occasions.
{¶ 77} On April 16, 2015, the trial court denied the request for a jury view. (Doc.
#308.) The court noted that R.C. 2315.02 permits jury views “of property which is the
subject of litigation, or of a place where a material fact occurred.” The court stated that
it was “not persuaded that such a jury visit is within the province of R.C. 2315.02, or that
the jury would not be able to gain the same understanding of the evidence via video and
photographic demonstration in the courtroom.”
{¶ 78} Later that same day, in response to the trial court’s ruling on their motion
for a jury view, Plaintiffs filed a motion for leave to submit a demonstrative video exhibit.
(Doc. #307.) Plaintiffs acknowledged that all trial exhibits were to have been exchanged
prior to that date, but they explained that they had requested a jury view in lieu of a video
exhibit because of the expense involved in creating a video demonstration. Plaintiffs
stated that the project would require travel by consultants, several videographers,
-31-
consultant time and material, configuration of aircraft, and compensation to the aircraft
owner; total cost could exceed $30,000 to $50,000. Plaintiffs indicated that they were
preparing to coordinate the videotaping of the demonstrations.
{¶ 79} On April 28, 2015, the trial court overruled the motion for a demonstrative
video. (Doc. #326.) The court explained, “The type of demonstrative evidence that the
Court contemplated in its prior entry as being potentially helpful to the jury’s
understanding and application of the evidence would be the actual aircraft involved in the
crash, including the engine and muffler, as well as the accident scene and the specific
airport in question. But this is not what Plaintiffs are contemplating. Furthermore, since
the proposed video has not yet been created, the Court cannot evaluate whether it would
even satisfy evidentiary requirements.”
{¶ 80} The following day, Plaintiffs sought reconsideration of the trial court’s order.
Plaintiffs indicated that the videos were recorded on April 28, and it asked the court to
review them. The jury view videos consisted of four short segments: (1) a 46-second
video showing a go around; (2) a 22-second video of an AA-5 flying overhead, apparently
taken from where Parsons had resided at the time of the crash; (3) a 19-second video of
a stall, taken from the cockpit of an AA-5; and (4) a 1.08-minute video of a stall, taken
from the cockpit of the AA-5’s chase plane, which was video-recording the AA-5 in flight.
Elano opposed the motion for reconsideration.
{¶ 81} Trial began on May 4, 2015, and opening statements were presented on
the morning of May 5, 2015. At that time, the trial court permitted Plaintiffs to play the
videos during their opening statement, and counsel commented on the videos. For
example, while the fourth video segment was shown, counsel told the jury:
-32-
* * * It’s the Lawrence County Airport. This is an AA-5. It’s being
flown by Don Sommer, who will be testifying here as an expert. * * * This is
that same takeoff and departure stall with a chase plane. So there’s the
AA-5 up there (Indicating). We brought a chase plane in to take video, and
I’m awfully sorry that it’s not closer. It should be closer as we get in here.
Now, you’re going to hear the stall warning in the chase plane (Stall warning
horn goes off), which had the same characteristics as this one. This one
has a beep on it. (Indicating.) And you notice when they recover from the
stall, the airplane doesn’t rollover and crash. The airplane doesn’t do
anything except fly. * * *
(Trial Tr. at 129-130.)
{¶ 82} After opening statements were completed, the trial court had the same
videos played for the jury as a jury view. The trial court gave the following instruction to
the jury prior to playing the videos:
Ladies and gentlemen, in some cases the parties have the Jury go to the
scene of the incident to get a perspective on what the case is about. We’re
not going to do that. However, I am allowing a video presentation of certain
matters that you might otherwise have seen had we gone to the actual
scene. I do want you to understand that as you observe this video, that it
is not evidence. The conditions may have changed. They may be
different than the actual events that occurred, and I want you to put it in that
perspective. The only purpose of you viewing is to help you understand
the evidence as it will be presented and as it is heard in this courtroom.
-33-
(Trial Tr. at 160-161.) The videos were then played for the jury without commentary from
counsel or court personnel.
{¶ 83} On May 7, Plaintiffs raised with the trial court that they would like to use the
videos during the testimony of Donald Sommer. Plaintiffs reminded the court that Elano
had objected to the use of the video during expert testimony on two grounds: (1) the
videos were not produced in a timely fashion, and (2) that the videos were based on
underlying data, which was not disclosed. Plaintiffs argued that the videos met the legal
standard for demonstrative evidence, and that timeliness was not one of the elements.
Plaintiffs further argued that all of the underlying data (airspeed, RPMS, elevation, etc.)
were evident on the control panel visible in the videos. (Trial Tr. at 909-912.) Finally,
Plaintiffs argued that the jury had already seen the video “out of context,” without the
benefit of testimony to explain its significance.
{¶ 84} The trial court denied the request, saying:
The reason that video was prepared was for one reason only, I denied a
Jury view to going out to the airport, and I suggested that if you wanted a
video of a Jury view, that that could be taken; and so that was the total 100
percent context of the reason we allowed that video to come in. Now, if we
went out to the airport, and the same things took * * * – even if * * * every
Juror got to fly around in that airplane, it would have been done. It would
have been over, and it doesn’t come back again. I permitted it for one
single purpose, and that was a Jury view, not as demonstrative evidence,
as a Jury view. That Jury view has been accomplished. As I said, the
Plaintiff had an opportunity to ask the Bailiff to point things out. I know I
-34-
said that on the record, and they chose not to do that. * * *
{¶ 85} During Mr. Sommer’s testimony, Plaintiffs’ counsel asked him if he was the
person who flew the Grumman aircraft in the jury view videos. Defense counsel
objected. In a bench conference regarding the objection, the trial court expressed that it
was not relevant who was flying the plane, although the answer to that question was
innocuous. The court stated that, had the court granted Plaintiffs’ jury view request, the
jurors would have been “[flown] around in an airplane” and the court would not “care who
was flying the airplane, it would have been done and over with.” (Trial Tr. at 965-966.)
{¶ 86} In their brief, Plaintiffs state that they are not challenging on appeal the trial
court’s denial of their request for a jury view. They claim only that the trial court erred in
denying their request to use the videos as demonstrative evidence at trial. Nevertheless,
a discussion of both jury views and demonstrative evidence is helpful to our discussion.
{¶ 87} R.C 2315.02 governs jury views in civil trials. It provides:
If the court is of the opinion that it is proper for the jurors to have a view of
property which is the subject of litigation, or of a place where a material fact
occurred, it may order them to be conducted in a body under the charge of
an officer to such property or place, which shall be shown to them by a
person appointed by the court for that purpose. While the jurors are thus
absent, no person, other than the person so appointed, shall speak to them
on any subject connected with the trial.
{¶ 88} The purpose of a jury view is to assist the trier of fact in understanding and
applying the evidence offered at trial. Monus v. Day, 7th Dist. Mahoning No. 10 MA 35,
2011-Ohio-3170, ¶ 47. The jury view is not part of the presentation of evidence; the jury
-35-
is not permitted to gather evidence at the jury view, and only a representative of the court
may address the jury about the subject of the jury view during the jury view.
{¶ 89} The decision whether to grant a jury view is left to the sound discretion of
the trial court. Monus at ¶ 48.
{¶ 90} Less than a month before trial began, Plaintiffs’ requested a “jury view of
aircraft and demonstration” at the Greene County Regional Airport, seeking to provide
certain flight demonstrations and to point out certain features of the Grumman AA-5
aircraft. Although Plaintiffs wanted the jurors to see and hear the same make and model
of plane that Young flew, the requested “jury view” would not have been of Young’s plane,
and it would have occurred at a different airport than the one involved in the crash. The
trial court reasonably concluded that Plaintiffs’ request did not fall within R.C. 2315.02.
{¶ 91} At the time Plaintiffs filed their “motion for jury view of aircraft and
demonstration,” no videos demonstrating various flight maneuvers had been made by
Plaintiffs, and there is no suggestion in the record that, at that time, Plaintiffs intended to
have videos made to be used at trial. As stated expressly in Plaintiffs’ April 16 motion
for leave to submit demonstrative video exhibit, Plaintiffs’ demonstrative videos were
being prepared as a direct result of the trial court’s denial of their request for the jury to
see live demonstrations of the Grumman AA-5 aircraft. Plaintiffs noted the preference
for “real time” viewing of an aircraft flying and the expensive nature of preparing a video
demonstration. Plaintiffs also expressly acknowledged that the trial court had ordered
the exchange of all exhibits 30 days prior to the pre-trial conference and to show cause
for any exhibits sought to be exchanged thereafter.
{¶ 92} The trial court ultimately allowed the video demonstration to be used in lieu
-36-
of a jury view at the Greene County Regional Airport, and it permitted the video to be
played during Plaintiffs’ opening statement. As the trial court noted during the trial,
neither the attorneys nor witnesses would have been permitted to comment on the flight
maneuvers or the aircraft during a jury view at the Greene County Regional Airport, had
a live jury view been permitted. Having allowed the video to be used in lieu of a live jury
view, the court reasonably imposed the same restrictions.
{¶ 93} During trial, Plaintiffs asked the trial court to allow the video demonstration
to be used as demonstrative evidence upon which witnesses would comment.
{¶ 94} Stated generally, demonstrative evidence is “an object, picture, model, or
other device intended to clarify or qualify facts for the jury.” In re A.H., 2d Dist. Clark No.
2014-CA-146, 2015-Ohio-2174, ¶ 54, quoting State v. Agee, 7th Dist. Mahoning No. 12
MA 100, 2013-Ohio-5382, ¶ 39. Demonstrative evidence is merely an aid in
understanding certain facts. In re A.H. at ¶ 54. This is in contrast to “substantive
evidence,” which has been defined as “something (as testimony, writings, or objects)
presented at a judicial or administrative proceeding for the purpose of establishing the
truth or falsity of an alleged matter of fact.” Id.{¶ 95} “Demonstrative evidence is admissible if it satisfies the general standard of
relevance set forth in Evid.R. 401 and if it is substantially similar to the object or
occurrence that it is intended to represent. The admission of demonstrative evidence is
subject to Evid.R. 403. The trial court has discretion to determine whether demonstrative
evidence is helpful or misleading to the trier of fact. A trial court’s ruling on the admission
of demonstrative evidence is reviewed under the abuse-of-discretion standard.”
(Footnotes and citations omitted.) State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677,
-37-
984 N.E.2d 948, ¶ 82; see also In re A.H. at ¶ 54; State v. Tate, 2d Dist. Montgomery No.
25386, 2013-Ohio-5167, ¶ 79.
{¶ 96} Plaintiffs contend that the trial court should have allowed the admission of
the videos, because they satisfied each of the requirements for admissibility. They argue
that the flight demonstration videos were relevant, because they showed maneuvers that
Young performed with his aircraft, an aerodynamic take-off and departure stall, and the
audible departure stall warning horn that alerts a pilot of the onset of a stall. They note
that the video was recorded from the vantage point of Rae Ann Parsons, a witness to the
crash. As for similarity, Plaintiffs indicate that the plane used in the videos was the same
make and model as Young’s aircraft and it was performing similar maneuvers as
described by witnesses. Finally, the videos were short and would not consume undue
time, confuse the issues, or mislead the jury.
{¶ 97} We agree with Plaintiffs that demonstrative flight videos are the type of
evidence that could be offered as demonstrative evidence to aid the jury in understanding
the admitted substantive evidence. Nevertheless, the trial court acted within its
discretion when it permitted the videos to be used in lieu of a jury view (and during
Plaintiffs’ opening statement), but not as demonstrative evidence during the testimony of
witnesses.
{¶ 98} The trial court set a deadline for the exchange of trial exhibits. No
demonstrative flight video had been prepared and exchanged by that deadline, and had
the trial court granted Plaintiffs’ jury view request, it appears that the video never would
have been prepared. In light of the adversarial nature and length of this litigation and the
volume of exhibits involved, the trial court reasonably determined that Plaintiffs should
-38-
not present last-minute exhibits for use at trial, absent good cause. Plaintiffs did not
present good cause for the last-minute creation of the video as a demonstrative exhibit.
{¶ 99} Having allowed the Plaintiffs to use the video in lieu of a jury view, which
Plaintiffs had originally requested, the trial court acted reasonably in disallowing the
supplementation of Plaintiffs’ exhibit list and the use of the flight demonstration video as
a demonstrative exhibit at trial.
{¶ 100} The third assignment of error is overruled.
V. Demonstrative Experiment – Effects of Blockage
{¶ 101} Plaintiffs’ fourth assignment of error states:
The trial court erred in excluding a videotaped experiment that
demonstrated plaintiff’s expert’s opinions showing the effects in the engine
with the application of takeoff power when the muffler outlet has blockage
and in requiring the graphics indicating the horsepower readings during the
test to be redacted from the video before it could be used as a
demonstrative exhibit.
{¶ 102} During Donald Sommer’s testimony, the trial court permitted Plaintiffs to
play a video recording of an experiment conducted by Aeroscope, Plaintiffs’ Exhibit 44, in
a redacted form. (Trial Tr. at 1109.) In their fourth assignment of error, Plaintiffs claim
that the trial court erred when it failed to admit Plaintiffs’ Exhibit 44 into evidence and in
requiring horsepower readouts to be redacted from that video. Plaintiffs also appear to
claim that the trial court erred in failing to admit the video as substantive, rather than
demonstrative, evidence.
{¶ 103} Aeroscope, Inc. is a company that performs airplane accident
-39-
investigation, failure analysis, determines why airplanes crash, and what the factors and
circumstances surrounding the crash were. Aeroscope’s principal, Donald Sommer, is
a mechanical engineer, pilot (private, commercial, and air transport), flight instructor,
airplane mechanic, and accident reconstructionist.
{¶ 104} According to Sommer’s testimony, he conducted two series of tests with
an engine that he had built specifically to mimic the engine that was in Young’s aircraft.
He stated that the condition of the muffler shortly after the crash was indicative of the
muffler having blockage, and the tests aimed to determine the effects on the engine of
blockage to the exhaust. The first series of tests, in which obstructions were placed in
the tailpipe, were video-recorded and admitted as Plaintiffs’ Exhibit 41. In the second
series of tests, Sommer conducted an experiment to replicate the sputtering sound that
was reportedly heard by Rae Ann Parsons, a witness to the crash. This experiment was
video-recorded and presented as Plaintiffs’ Exhibit 44.
{¶ 105} The first series of tests aimed to determine the effect that various
blockages of the outlet of a muffler on a Grumman AA-5 would have on the operation of
the engine. (Trial Tr. at 977.) An engine was mounted on an aircraft engine
dynamometer, and an Elano muffler with a tailpipe was mounted on the engine. Sommer
developed a fixture that fit over the end of the exhaust pipe, and he developed a system
where he could slide a flame cone in front of the exhaust pipe at varying degrees, covering
25 percent, 50 percent, 75 percent, and 100 percent of the area, in turn. Sommer also
conducted the same testing using a solid material, much like the muffler’s end cap; the
solid material was put in front of the exhaust pipe, increasingly blocking the tailpipe.
{¶ 106} Sommer acknowledged that the obstruction in Young’s muffler was at the
-40-
exhaust outlet, not in the tailpipe, but testified that using the tailpipe had no effect on the
tests’ reliability. (Trial Tr. at 981.) Sommer further stated, “What you’re doing is creating
back pressure in the muffler. You’re creating an obstruction to the exhaust leaving the
muffler, and my whole objective was, what’s going to happen to the engine when the
exhaust gets plugged up? * * * And in this case we’re able to measure horsepower.
We’re able to measure temperatures. We’re able to measure all that.” (Id.)
{¶ 107} For the second series of tests (replicating an obstruction inside the
muffler), Sommer took the flame cones from the muffler and cut them into pieces similar
to those found in Young’s muffler. Sommer used those pieces to partially block the outlet
of the muffler. Defendants objected to Sommer’s testimony regarding this testing,
arguing that the testing was performed after the disclosure of Sommer’s expert report and
the discovery deadline.
{¶ 108} Defendants also objected to the use of Plaintiffs’ Exhibit 44, again arguing
that the second series of tests were performed after the deadline for exchanging expert
reports. In response to that objection, Plaintiffs stated that Exhibit 44 was created in April
2013 as a demonstrative exhibit, in preparation for an earlier scheduled trial date (June
2013). (Trial Tr. at 1013-1014.) Plaintiffs further explained:
[T]hat’s when we had that videotape of an engine with the audio
showing that as it’s blocked, you’ll hear the sounds that the witnesses
heard. That’s what it’s being offered for. And also because Ms. Parsons
said it sounded like it’s [Young’s engine is] dying, we also identify what the
horsepower is, because the dynamometer shows you what the horsepower
is.
-41-
And there will be no new opinions on the issue. Just, Mr. Sommer
this is demonstrative of what you’ve already said in this case since 2008
that witnesses heard the engine sounding abnormal, that it was sputtering
and dying, and that it was caused by the blockage of the muffler.
He’s already given those opinions. This is just a video laying it out
for the Jury as to what it looks like and sounds like.
(Trial Tr. at 1015-1016.)
{¶ 109} Defendants again objected to the use of the video. They argued that (1)
Sommer indicated in his deposition that he could not quantify the amount of blockage in
Young’s muffler at the time of the accident, (2) there was no evidence that the sound the
video portrays was the sound that Parsons heard, and (3) the video quantifies the amount
of the horsepower loss.
{¶ 110} The trial court asked Plaintiffs if they would agree to the court’s giving a
demonstrative evidence instruction to the jury regarding the video. Plaintiffs agreed.
(Trial Tr. at 1033.) The court ruled that it would allow the video to be used as
demonstrative evidence “for purposes of the demonstrative aspect of the sound that’s
been made, but we’re not going to talk about horsepower.” (Id. at 1036-1037.) The
court explained:
The witness [Parsons] had nothing to do, she offered nothing, doesn’t know
anything about horsepower, so the witness [Sommer] can testify regarding
the aspects of steps taken to create that particular demonstration, subject
to cross-examination, and the noise that can be made, but we’re not going
to do horsepower. Since the purpose of this is to be demonstrative
-42-
evidence to illustrate, and I think it’s well-stated in your position of the
witness, Rae Ann Parsons, as to what she heard. What she heard had
nothing to do with horsepower, so it’s not demonstrative evidence and no
testimony in regard to that particular muffler.
(Id. at 1037.) The court indicated that Plaintiffs could relate the sound to loss of power,
but not to a particular level of horsepower. (Id. at 1041.) No instruction on
demonstrative evidence was given.
{¶ 111} Sommer subsequently testified further about both of his tests. Sommer
described the results of the first series of tests, using Plaintiffs’ Exhibit 41, the video
showing the tests being conducted. Sommer stated that the engine was a 150
horsepower engine, but they had the engine running unobstructed at 105 horsepower.
Sommer stated that he focused on the percentage decrease in horsepower (as opposed
to the actual decrease in horsepower) as obstructions were increased, however Exhibit
41 displayed the horsepower measurements as obstruction was increased and Sommer
testified to those measurements. The tests produced the following results:
Obstruction Horsepower
None Approximately 105
Flame cone (25%) From 105 to Mid-80s
Flame cone (50%) Mid-80s
Flame cone (75%) Mid to low 80s
Flame cone (100%) Mid to low 70s
Solid plate (25%) Mid 50s
Solid plate (50%) Mid 40s
Solid plate (75%) Mid 40s
Solid plate (100%) Low 40s to upper 30s
(Trial Tr. at 1092-1104.)
{¶ 112} Sommer next testified that he performed XL tests, meaning that he placed
-43-
an engine on the dynamometer, partially obstructed the muffler, began the engine at a
lower RPM (800 or 1000 RPM) , and increased the throttle to simulate take-off. Sommer
stated that pieces of flame cone and end cap were placed inside the muffler to partially
obstruct the outlet of the muffler, and that this demonstration would show the engine
sputtering, as Parsons had described. (Trial Tr. 1108-1109.)
{¶ 113} At this juncture, Plaintiffs played Plaintiffs’ Exhibit 44, with the horsepower
readings redacted, and Sommer indicated that sputtering could be heard in the
background. Sommer had previously testified that sputtering means there is loss of
power. (Trial Tr. at 1060.)
{¶ 114} Sommer opined, to reasonable degree of certainty in his field, that the
deterioration of the muffler caused the engine to falter and sputter (id. at 1123) and that
the sputtering Parsons heard was a consequence of flame cone and end cap material
partially blocking the outlet of the muffler in Young’s plane, which resulted in loss of engine
power (id. at 1110). He further opined that Young’s aircraft lost sufficient power as a
result of the blockage so as to have prevented the aircraft from continuing to climb. (Id.
at 1111, 1123.)
{¶ 115} At the conclusion of Plaintiffs’ case, Plaintiffs sought to have Exhibit 44
admitted into evidence, stating that it was “substantive of the sound.” (Trial Tr. at 1384.)
Plaintiffs argued that Sommer had replicated the condition of Young’s muffler and had
run the engine on a test cell, which produced a sputtering sound; Plaintiffs stated that
Exhibit 44 was admissible because it was “correct,” “properly done,” “done with science,”
and “replicates exactly what happened on the day of the accident.” (Id. at 1430.)
Defendants argued that Exhibit 44 was offered for demonstrative purposes only and that
-44-
demonstrative evidence does not come into evidence under Ohio law. (Id.) The trial
court denied the motion to admit Exhibit 44. (Id. at 1434.)
{¶ 116} As discussed above, a demonstrative exhibit is admissible if it is relevant,
substantially similar to the object or occurrence that it is intended to represent, and does
not consume undue time, confuse the issues, or mislead the jury. Plaintiffs repeatedly
stated at trial that Plaintiffs’ Exhibit 44 was offered to demonstrate the sound that Parsons
heard Young’s engine make immediately before the crash.
{¶ 117} Despite Sommer’s testimony indicating that Parsons would have heard the
sputtering demonstrated in Exhibit 44, the trial court could have reasonably concluded
that Exhibit 44 was not admissible as either demonstrative or substantive evidence of the
sound that Parsons heard. Exhibit 44 demonstrated that sputtering sounds occurred
when pieces of flame cone and end cap were placed inside the muffler to partially obstruct
the outlet of the muffler and the power was increased to take-off power. However,
Parsons did not testify that Exhibit 44 represented the sound that she heard. Parsons
testified (via deposition testimony) that she heard sputtering and that the plane sounded
like it was dying or trying to restart. Parsons was not asked about Exhibit 44 during her
deposition, and she provided no opinion as to whether Exhibit 44 represented the sound
that she heard. In the absence of such testimony, there was no evidence establishing
that the sputtering sound in Exhibit 44 was substantially similar to the sound that Parsons
heard immediately before Young’s plane crashed, Sommer’s testimony notwithstanding.
The trial court did not err in denying Plaintiffs’ motion to admit Exhibit 44.
{¶ 118} Regardless, even if Exhibit 44 were admissible, we fail to see how Plaintiffs
were prejudiced by the trial court’s failure to admit Exhibit 44 into evidence. Exhibit 44
-45-
was played for the jury during Sommer’s testimony, and Sommer was permitted to testify
not only that the obstruction to the muffler’s exhaust outlet produced sputtering sounds,
but also that the sputtering was the sound that Parsons had heard and that the sound
resulted from loss of power. This evidence was before the jury for its consideration
during deliberations. Any error in the trial court’s failure to permit the exhibit itself from
being reviewed by the jury during deliberations was harmless.
{¶ 119} Additionally, the trial court did not err in requiring Exhibit 44 to be redacted
before it was played for the jury. Plaintiffs repeatedly stated that the purpose of Exhibit
44 was to demonstrate the sound that Parsons heard. As noted by the trial court,
Parson’s testimony did not reference horsepower or relate the sound she heard to a loss
of power. Regardless, Sommer’s testimony about his first series of tests related the
blockage of the muffler with a loss of horsepower, and he opined that the sputtering was
the result of blockage in the outlet of Young’s muffler, which resulted in engine loss.
Even assuming that the trial court erred in requiring Exhibit 44 to be redacted, the error
was harmless.
{¶ 120} Plaintiffs’ fourth assignment of error is overruled.
VI. Failure to Provide Curative Jury Instruction
{¶ 121} Plaintiffs’ fifth assignment of error states:
The trial court erred in refusing to give a cautionary jury instruction that the
jury was to disregard the subject matter of toxicology as the topic was not
at issue in the case, but defense counsel improperly placed it at issue in
closing argument.
{¶ 122} During a portion of his opening statement, Plaintiffs’ counsel informed the
-46-
jury that pilots are not permitted to take antidepressants and that toxicology tests were
performed on the decedents following the crash. Counsel stated that a metabolite of an
antidepressant was found in one of the front-seat occupants of the plane; a report
attributed the antidepressant to Young, based on the location of the body in the aircraft.
Counsel further explained that Lampe took an antidepressant, but Young did not. He
argued that “it is obvious then that they had the wrong person.” (Trial Tr. at 111.)
{¶ 123} Plaintiffs also presented evidence that Young was neither depressed nor
taking any antidepressant medication at the time of the crash. Young’s widow testified
that the only medication Young took was for his cholesterol. (Trial Tr. at 175.) She
indicated that Young showed no signs of depression, and she described him as “happy
and jovial and fun, energetic, enjoying life.” (Id. at 174) Mrs. Young stated that Young
had no change in his behavior or medication prior to the flight. (Id. at 200.) Young’s
former battalion commander also testified that Young’s post-deployment health
assessment, conducted on February 15, 2005, identified no emotional issues, such as
anxiety, PTSD, and the like. (Id. at 1305; Pls’ Ex. 222.) In contrast, Lampe’s mother
testified that her son took medication for ADD and depression. (Trial Tr. at 266-267.)
{¶ 124} Elano did not present any evidence related to toxicology. In particular,
they presented no evidence that Young flew his aircraft while taking antidepressants.
{¶ 125} Elano’s closing argument focused primarily on the evidence demonstrating
that Young had caused his airplane to stall during a delayed go around on his second
pass along the runway and the experts’ testimony regarding the muffler and effect of any
blockage on loss of power. (Trial Tr. at 2149-2179.) At one point, Elano’s counsel
commented that Plaintiffs presented “a lot of sideshows” regarding toxicology, log books,
-47-
maintenance inspections, patents, and Young’s experience as a pilot. Elano asked the
jury to focus on what happened on the day of the crash and that “this was simply a
situation where Young came in too high, too fast, delayed his decision to make a go
around, applied his power and pulled his nose up. It was a mistake. We’ve heard over
the last couple of days, pilots make mistakes. Unfortunately this was a tragic mistake.”
(Id. at 2184).
{¶ 126} Elano’s closing argument took 36 pages of the trial transcript; one page
addressed the toxicology report. Counsel argued:
The first sideshow we had started in voir dire[,]3 continued through
opening and went through the examinations of Mrs. Young, Mrs. Lampe,
and Commander Campbell.
It was about some tox report that [Plaintiffs’ counsel] put up on the
screen, and he claimed there was going to be this CSI moment. There
would be people coming in and testifying that that wasn’t really the body of
Dr. Young, whose tox screen showed this antidepressant in it. We heard
a lot about that.
I never heard a witness come in to tell you there wasn’t a chain of
custody, any of that. I also never heard us mention the word tox screen.
It was a sideshow.
(Footnote added.) (Trial Tr. at 2179.)
{¶ 127} Plaintiffs’ counsel did not object to Elano’s counsel’s statements during
3
The parties’ questioning of potential jurors during voir dire was not transcribed and,
consequently, is not part of the record.
-48-
closing argument. However, he responded to Elano’s argument regarding toxicology
during his reply closing argument, stating:
Oh, and then this business about toxicology. Why do you think I had
this, quote, sideshow, unquote? Because they raised it, and then decided
to abandon it in the case, so I had to anticipate it and defend against it.
Because it was nonsense. Because it was a lie.
And because it was a lie, and I uncovered it, and demonstrated it
here, they ran from that toxicology as fast as they could. I would never
have brought up that toxicology because it was meaningless if they hadn’t
raised it.
(Trial Tr. at 2189-2190.)
{¶ 128} Plaintiffs subsequently requested a jury instruction on toxicology. The
requested instruction stated, “You have heard argument of counsel concerning toxicology
results. You are instructed that the defense presented no evidence concerning
toxocology [sic] results and that you must disregard the entire subject matter of toxicology
and treat this case as if there has never been any allegation by the defense concerning
the issue of toxicology.” (Court’s Ex. 4.) The trial court did not give the requested
instruction.
{¶ 129} On appeal, Plaintiffs claim that they were “sandbagged” into presenting
evidence on toxicology results, based on Elano’s pretrial representations that it would call
experts “to offer their conclusions that Young was flying illegally and possibly under a
cognitive impairment.” (Pls.’ App. Brief at 45.) Plaintiffs describe Elano’s closing
argument as “inflammatory,” and they assert that Elano “was able to interject the precise
-49-
evidence the families sought to exclude via her misleading closing argument.” (Id. at
46.)
{¶ 130} We find no abuse of discretion in the trial court’s decision not to give a jury
instruction on toxicology. Prior to closing argument, the trial court instructed the jury that
“[c]losing arguments are not evidence” and that the jury had “heard all the evidence that
you will consider to decide your ultimate conclusion and verdict in this case.” (Trial Tr.
at 2085.) The court explained that closing arguments were merely “an opportunity to
listen to their take on what they believe the evidence has shown, and you may certainly
consider it in that regard.” (Id.) This was repeated, in substance, during jury
instructions. (Id. at 2212.) The trial court expressly stated that evidence does not
include “any statements of Counsel made during the course of the trial, unless the
statement is an admission or agreement admitting certain facts.” (Id.)
{¶ 131} Moreover, given that Plaintiffs presented evidence regarding whether
Young was taking an antidepressant at the time of the accident, Elano’s counsel was free
to comment on that testimony during closing arguments. Elano’s counsel’s argument on
this subject was limited, given the length of her closing argument, and upon review of
counsel’s argument, we disagree that the portion of counsel’s argument regarding
toxicology was “inflammatory” and misleading. In addition, Elano’s counsel was
arguably responding to Plaintiffs’ opening statement, in light of the evidence that was
presented at trial.
{¶ 132} Plaintiffs’ fifth assignment of error is overruled.
VII. Conclusion
{¶ 133} The crash of Dr. Young’s Grumman AA-5 aircraft was a tragic event for
-50-
Plaintiffs, and we are sympathetic to the emotional toll that this protracted litigation added
to that pain. From our review of the record, the litigation of this case has been in the
hands of excellent attorneys, who have represented their clients zealously and
professionally. The trial court also made considerable efforts to ensure each side a fair
trial of the issues, and we cannot find that any of the alleged errors raised on appeal fell
outside of the trial court’s reasonable discretion. Simply stated, the parties had a full and
fair opportunity to present their cases to the jury, and the jury rendered a verdict. We
find no prejudicial error to justify a retrial.
{¶ 134} The trial court’s judgment will be affirmed.
.............
FAIN, J. and HALL, J., concur.
Copies mailed to:
Mary Jane Trapp
Thomas J. Intili
Elizabeth B. Wright
Andrew H. Cox
Stacey A. Greenwell
Hon. Stephen A. Wolaver