Rehm v. Ford Motor Co. , 365 S.W.3d 570 ( 2011 )

OPINION

COMBS, Judge:

Debbie Ellen Rehm, individually and as Executrix of the Estate of James David Rehm; Nicholas James Rehm; and Christina Marie Rehm (the Rehms) appeal from the judgment of the Jefferson Circuit Court following a jury verdict in favor of Ford Motor Company in a premises liability lawsuit. Ford Motor Company cross-appeals. Following our review of the extensive record, the facts, and the law, we affirm both as to the appeal and as to the cross-appeal.

James Rehm was the late husband of Debbie and the father of Nicholas James and Christina Marie Rehm. In January 2001, James was diagnosed with malignant mesothelioma, a form of cancer that is caused by asbestos. He had worked as a millwright (an industrial construction worker) in the late 1970s until 1981 as an employee of Rapid Installations (Rapid). After leaving Rapid sometime in 1981, he went to work as an elevator mechanic at some point in 1981. Critical to the case was the fact that the exact dates of James’s employment were highly disputed at trial. James testified that he had been a millwright at Rapid from 1975 through 1982. Ford presented documentation (Social Security records) that indicated James began working at Rapid in 1977 but had stopped by March 10, 1981, the last entry for Social Security withholding listing Rapid Installations as his employer. He began as an elevator mechanic for A-l Ele-' vator on March 12, 1981, the starting date of employment which he listed on his application for union membership as a millwright in Local 2209.

Rapid manufactured and installed conveyer systems for other companies. Before installing new systems in manufacturing plants, Rapid’s millwrights tore out the old systems. The process of removing the old systems often exposed millwrights to asbestos contained in components such as pipe insulation and boiler systems. Rapid performed this work at Ford Motor Company’s Louisville Assembly Plant (LAP).

Shortly after his diagnosis of malignant mesothelioma, James Rehm and his wife and children filed the underlying lawsuit in Jefferson Circuit Court. Numerous defendants were named, including Rapid and many companies that had hired Rapid to remove their manufacturing equipment. Ford was one of the original defendants.¹ James Rehm passed away on July 5, 2002, while the lawsuit was still in the discovery phase.

After a long procedural history that is not relevant to this appeal, the Rehms and Ford² proceeded to trial on August 3, 2009. On August 17, 2009, the jury rendered its verdict in favor of Ford. The Rehms filed this appeal on October 6, 2009, and Ford filed a cross-appeal on October 20, 2009.

The Rehms first argue that the trial court erred by admitting old newspaper articles into evidence. The Rehms’ case was based on the allegation that James Rehm was working at Ford LAP when it converted its facilities in preparation for manufacturing the Ford Ranger and Bronco and after it discontinued manufacturing the LTD. Ford’s defense was that James Rehm was no longer employed as a millwright during the time of the changeover and the tear-out process; therefore, he could not have been involved. The Rehms presented witnesses who testified that James Rehm was working during the changeover. In response, Ford presented employment records showing that James had left Rapid in March 1981. It then produced two newspaper articles that reported that the last LTD manufactured in Louisville rolled off the line in June of 1981. Therefore, Ford contended that James could not have been involved in the changeover work that occurred after June 1981.

Our standard of review for evidentiary issues is whether the trial court abused its discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky.1996) (overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky.2008)). Our Supreme Court has defined abuse of discretion as a court’s acting arbitrarily, unreasonably, unfairly, or in a manner “unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

The Rehms contend that the newspaper articles should not have been admitted because they are hearsay. In fact, the court admitted on the record that newspaper articles are “the most specious form of hearsay.” However, the judge decided to admit the articles pursuant to the ancient-documents exception to the hearsay rule. Kentucky Rule(s) of Evidence (KRE) 803(16) provides that even if they are hearsay, “[statements in ancient documents ... in existence twenty (20) years or more the authenticity of which is established” may be admitted into evidence.

The articles at issue were twenty-eight years of age. The Rehms argue that they were not properly authenticated. However, according to KRE 902(6), newspaper articles are self-authenticating. Although no published Kentucky cases have applied the ancient-document exception, Professor Lawson acknowledges that the rule is applicable to newspaper articles. Robert G. Lawson, The Kentucky Evidence Law Handbook, § 8.85(4), at 730 (4th Ed.2003).

We have reviewed the cases that the Rehms submitted to support their argument that the articles were inadmissible hearsay. All of them are distinguishable from the facts before us because none of them involved newspaper articles old enough to qualify as eligible for the ancient-document exception. They were contemporaneous with the proceedings for which they were offered. See Bowling v. Lexington-Fayette Urban Cnty. Gov’t, 172 S.W.3d 333, 342 (Ky.2005); Shirley v. Commonwealth, 378 S.W.2d 816, 818 (Ky.1964); Turner v. City of Taylor, 412 F.3d 629, 651 (6th Cir.2005); Barbo v. Kroger Co., 2007 WL 2350183, at *2 (W.D.Ky. Aug. 13, 2007); Gantt v. Whitaker, 57 Fed.Appx. 141, 149 (4th Cir.2003); Spotts v. U.S., 562 F.Supp.2d 46, 54-55 (D.D.C.2008); Eisenstadt v. Allen, 113 F.3d 1240 (9th Cir.1997).

Additionally, we note that neither the Rehms nor Ford could produce any other written documentation pertaining to the actual dates involving the plant changeover. Each produced witnesses who were asked to recall events of nearly thirty years ago regarding dates that were a mere two months apart. James provided detailed testimony of working at Ford during the changeover; he testified that for several months during that period he had worked in the Ford plant seven days per week — including holidays and Saturdays. Ford presented written evidence that James had left Rapid in March 1981— prior to the changeover date of June 1981 recounted in the newspaper articles. Bolstering the pertinence of the articles was the testimony of one of Ford’s witnesses, who related that the plant would not have retained records relating to the changeover beyond five or six years. The evidence was undeniably tenuous. But we are persuaded that the newspaper articles were more probative than prejudicial in aiding the jury in its finding of fact concerning whether James could have participated in the changeover.

The Rehms argued that the tearing out of equipment could have begun before the last LTD rolled off the assembly line (June 1981). They presented testimony to that effect and reiterated that theory in closing argument. The trial court admonished the jury that the articles were not necessarily true, leaving to the jury the ultimate task of fact-finding based on conflicting evidence derived from the newspaper articles versus witness recollection. Based on the lengthy passage of time in this case involving some thirty years, the trial court did not abuse its discretion in admitting the newspaper articles under the ancient-documents exception to the hearsay rule.

The Rehms’ next arguments are related to the trial court’s allowing testimony from Ford’s expert witness, Dr. Robert Morgan, an occupational epidemiologist. Dr. Morgan offered his theory that James had developed mesothelioma as a result of household exposure to his own father’s work clothes. The elder Mr. Rehm had worked as an elevator mechanic, and Dr. Morgan speculated that he could have carried home asbestos in his hair and on his clothing. Dr. Morgan also mentioned that James had been exposed to asbestos in plants other than Ford as possible alternate sources of contamination.

The Rehms argue that Dr. Morgan’s household exposure theory is speculative and without foundation because James’s father testified that he had never been exposed to asbestos during his work as an elevator mechanic. They also contend that the testimony was prejudicial in giving the jury the suggestion that James’s own work as an elevator mechanic could have been the source of his exposure to asbestos.

Rehm also contends that Dr. Morgan’s testimony about the household exposure was unreliable. KRE 702 sets forth the standards for expert testimony as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

Additionally, the Supreme Court of the United States has provided a list of factors to assist the trial court in its determination: 1) whether the expert’s theory can be or has been tested; 2) whether the expert’s theory has been published or subject to peer review; 3) a scientific technique’s potential rate of error and standards for its operation; and 4) the general acceptance of the theory in the scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469 (1993).

In its restatement of Daubert, the Supreme Court of Kentucky has admonished that the standard is flexible — “a court may consider one or more or all of the factors mentioned in Daubert, or even other relevant factors, in determining the admissibility of expert testimony.” Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 40 (Ky.2004) (quoting Johnson v. Commonwealth, 12 S.W.3d 258, 264 (Ky.2000)).

Our Supreme Court has recently evaluated a case very much like the one before us, Burton v. CSX Transp., Inc., 269 S.W.3d 1 (Ky.2008). In Burton, as in this case, the trial court was not assessing the reliability of a “particular theory or technique” as indicated by Daubert. Instead, Ford presented general theories of a causal link between domestic exposure and mesothelioma and of higher risk in elevator mechanics. In Burton, the court held that when expert testimony was based on literature, the expert must be “sufficiently qualified in the proper field of study to offer an opinion that is helpful to decide the specific questions presented.” Id. at 7. If the expert is qualified, then the testimony will “pass muster under the Daubert rubric.” Id.

Dr. Morgan reviewed two articles detailing studies which had concluded that elevator mechanics carry a greater risk of developing asbestos-related diseases than the general population. He further recounted that it was established fact that household exposure can be a source of mesothelioma.

The parties do not dispute Dr. Morgan’s qualifications as an expert in asbestos-related diseases. He has many-years of experience as an epidemiologist and has published articles pertaining to asbestos-related diseases. He developed a mathematical model to aid in determination of when a patient’s asbestos exposure occurred (which was not applied in this case). Therefore, we must conclude — as did the trial court — that Dr. Morgan was sufficiently qualified to review the literature pertaining to high risk for asbestos-related disease in elevator mechanics.

Admittedly, the evidence for the home-exposure theory was weak. In its assessment of Dr. Morgan’s proffered testimony, the trial court acknowledged that it '“flew in the face” of ninety percent of the evidence. However, we do not agree that it was admitted erroneously. It is settled law that in evidentiary matters, the trial court serves as a gatekeeper to prohibit unreliable expert testimony, but the jury bears the sole responsibility for assessing the weight of the testimony. Commonwealth v. Martin, 290 S.W.3d 59, 67 (Ky.App.2008). Our courts have repeatedly held that the weaknesses of an expert’s testimony are subject to being discredited upon effective cross-examination. U.S. v. L.E. Cooke Co., Inc., 991 F.2d 336, 342 (6th Cir.1993); U.S. v. 0.161 Acres of Land, 837 F.2d 1036, 1040 (11th Cir.1988); Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir.2002); Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir.2003).

In our thorough examination of the record, we particularly scrutinized the Rehms’ cross-examination of Dr. Morgan. It was robust, thorough, and effective. The Rehms cast considerable doubt on the viability of the home-exposure theory and undermined the theories presented by Dr. Morgan. During cross-examination, Dr. Morgan admitted that as of the time of trial, no known cases of asbestos-related disease had ever been diagnosed in any elevator mechanic in Louisville. It was the sole province of the jury to evaluate the conflict clearly demonstrated and highlighted by the effective cross-examination. As our court remarked in Martin, “[w]e are confident that Kentucky juries can hear ... expert testimony and weigh it accordingly.” Commonwealth v. Martin, 290 S.W.3d at 69.

The Rehms also argue that the trial court improperly allowed Dr. Morgan to provide testimony that was not disclosed prior to trial. In his deposition, Dr. Morgan stated that he would testify only regarding the home-exposure theory. However, during the trial, he alluded to James’s potential occupational exposures in plants other than Ford. The trial court agreed that the testimony was improper and admonished the jury that it could “consider the fact that he did not previously disclose that opinion and when asked about it did not offer that opinion as part of your evaluation of his credibility.”

A jury verdict is not easily disturbed or disregarded. Kentucky Rule(s) of Civil Procedure (CR) 61.01 provides that appellate courts may not overturn a verdict or disturb a judgment based on an evidentia-ry error unless the error or defect had affected “the substantial rights of the parties.” In this case, Dr. Morgan’s testimony lasted a few hours in a trial that included nearly two weeks of testimony. In addition to their vigorous cross-examination of Dr. Morgan, the Rehms also presented a strong closing argument. His opinions were a proper subject for the jury’s analysis and were not erroneously considered by the jury under the directives of CR 61.01. Furthermore, Dr. Morgan’s fleeting reference to James’s exposure from other locations did not prejudice the Rehms; the jury had been made aware of them from other testimony presented in the Rehms’ case-in-chief.

The Rehms also appealed the trial court’s dismissal of their loss of consortium claims. Debbie, Christina, and Nicholas Rehm all sought damages for the loss of their husband and father.

The trial court dismissed the loss of consortium claims because James’s exposure to asbestos occurred prior to his marriage to Debbie and before the children were born. The Rehms argue that dismissal was improper because the injury did not occur until James developed the disease well into his marriage and after the births of the children. They are correct in so contending.

The Supreme Court of Kentucky addressed this very issue in Capital Holding Corp. v. Bailey, 873 S.W.2d 187 (Ky.1994). Bailey had sued Capital Holding after he was exposed to asbestos in a building owned by Capital Holding. Bailey had not developed any symptoms of an asbestos-related disease. The Court held that without actual symptoms, Bailey did not have an actionable injury and that a cognizable claim did not come into being until the injury occurred.

In Louisville Trust Co. v. Johns-Manville Products, the plaintiff died from “lung cancer [‘mesothelioma’], caused by breathing asbestos dust and fibers,” and his estate sued Johns-Man-ville on “a theory of products liability arising from an alleged failure to adequately warn of known dangers associated with the inhalation of asbestos dust.” 580 S.W.2d [497,] at 498 [(Ky.1979)]. The issue was whether “to extend the discovery rule of our medical malpractice case to tort actions for injury resulting from a latent disease caused by exposure to harmful substance.” Id. at 499. We held “that when an injury does not manifest itself immediately, the cause of action should not accrue when the injury was initially inflicted, but when the plaintiff knew or should have known that he had been injured by the conduct of the tortfeasor.” Id. at 500. [Emphasis added.] The portion of the Johns-Manville opinion which is critical for present purposes is a quotation from Saylor v. Hall, Ky., 497 S.W.2d 218, 225 (1973) incorporated into the opinion at 580 S.W.2d at 500:

“A cause of action does not exist until the conduct causes injury that produces loss or damage.”

Thus we recognized that with a substance capable of causing cancer, just as with any other defective product, no cause of action accrues until the potentially harmful exposure actually “causes injury that produces loss or damage.” [Emphasis added.]

This rule is fair to both plaintiff and defendant: it protects the plaintiff from a statute of limitations cutting off a cause of action before it accrues, and it affords the defendant the benefit of the traditional principle that for negligent conduct to be actionable it must not only create an unreasonable risk of harm but it must be a substantial factor in causing a harmful result.

Capital Holding Corp. v. Bailey, 873 S.W.2d at 192.

James’s injury occurred when the meso-thelioma became manifest rather than upon mere exposure. Although it was error for the trial court to dismiss his family’s loss of consortium claims, the error is moot because it pertains to damages. Since it is derivative upon a finding of damages, which was rejected by the jury, it cannot now be considered anew.

Since we are affirming the trial court’s judgment, Ford’s cross-appeal is moot. However, we will address the merits. Ford first argues that the trial court erred when it denied Ford’s motion for summary judgment based upon up-the-ladder immunity. We disagree.

In General Elec. Co. v. Cain, 236 S.W.3d 579 (Ky.2007), the Supreme Court of Kentucky decided that Ford is not subject to up-the-ladder immunity. On remand in the present case, which is the subject of this appeal, Ford presented the trial court with affidavits from Ford employees that contradicted the Supreme Court’s holding and filed a motion for summary judgment. The trial court denied the motion.

It is well established that a “final decision of [the Supreme] Court, whether right or wrong, is the law of the case and is conclusive of the questions therein resolved. It is binding upon the parties, the trial court, and the Court of Appeals.” Ellison v. Commonwealth, 994 S.W.2d 939, 940 (Ky.1999). It is a trial court’s duty to apply the decision of an appellate court. Buckley v. Wilson, 177 S.W.3d 778, 781 (Ky.2005). Therefore, Ford’s new evidence was irrelevant and should not have been considered. We affirm the trial court’s denial of Ford’s motion for summary judgment because the Supreme Court had already determined the issue of up-the-ladder immunity as the binding law of the case. Inman v. Inman, 648 S.W.2d 847, 849 (Ky.1982).

Ford next argues that the trial court should not have admitted a group of exhibits referred to as “the Sugano documents.” Among those documents were internal memoranda (dating from August 25, 1975, through August 14, 1980) listing Ford employees who had died as a result of mesothelioma. Ford alleges that the documents were prejudicial because they do not refer to any employees at the Louisville plant or to any millwrights. On the other hand, the Rehms contend that the documents³ were relevant to prove negligence. We agree.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” KRE 401. All relevant evidence is admissible unless excluded by some other rule. KRE 402. If the probative value of relevant evidence is “substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence,” it may be excluded. KRE 403.

The Rehms contend that the Sugano documents were relevant to prove an element of negligence; i.e., that Ford was aware of the risky circumstances to which it subjected its LAP employees and contractors. See CSX Transp., Inc. v. Moody, 313 S.W.3d 72, 82 (Ky.2010). We agree. The documents had the tendency to prove that Ford was aware that working with asbestos is hazardous. The trial court admitted them for the limited purpose of showing that Ford had notice of the risks — not as proof that James Rehm’s mesothelioma was caused by asbestos at LAP.

Although Ford argues that it was unduly prejudiced, we do not agree. The jury found in Ford’s favor. All relevant evidence is potentially prejudicial to the party against whom it is offered. Lawson, supra, at § 2.10(4)(b) at 89. Evidence that is unduly prejudicial “appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.” Id. (quoting Carter v. Hewitt, 617 F.2d 961, 972 (3rd Cir.1980)). Ford has not offered any proof of such prejudice, and, therefore, we conclude that the trial court did not abuse its discretion.

Ford’s final argument on cross-appeal is that the trial court erred by denying Ford’s motion to dismiss the Rehms’ claims pursuant to the Kentucky Occupational Safety and Health Act (KOSHA). That argument is moot in light of the jury verdict and our decision affirming.

We affirm the judgment of the Jefferson Circuit Court both as to the appeal and as to the cross-appeal.

CAPERTON, Judge, Concurs in Part, Dissents in Part and Files Separate Opinion.

THOMPSON, Judge, Concurs in Result and Files Separate Opinion.

1 . The judgment from which this appeal is taken was also entered against Garlock Sealing Technologies, which has filed for bankruptcy. Therefore, Garlock is subject to the automatic stay provisions of the United States Bankruptcy Code. This appeal involves only Ford.

2 . The other defendants either had been granted summary judgment or had reached settlements with the Rehms.

3 . Ford's brief refers both to “the memo” and "Sugano documents.” Its objection in the record pertains to several documents. Since the analysis is the same for all of them, we will refer to the “group of documents.”