On June 4, 2009, the Ohio Court of Appeals upheld the trial court decision in favor of the defendant in Werts v. Goodyear Tire Co., et al.  The appellant claimed that the lower court erred by allowing the defendant’s experts to testify about a study that measured levels of asbestos fibers released by the defendant’s products.  The appellant also claimed the court erred in allowing these experts to testify about studies that had not been admitted into evidence. 

The Appeals Court acknowledged that, although it had precluded testimony about the asbestos fiber release levels in a previous case, it had done so because the goal of that study was not to measure those levels.  In Werts, however, the purpose of the expert studies was to approximate the type of work typically done with the defendant’s products and measure the amount of asbestos fibers released into the air.  Because the rules do not require such experiments to perfectly recreate the plaintiff’s working conditions, the court decided that these studies should not be excluded based on the differences between the plaintiff’s working conditions and the conditions in the experiment.  These differences were disclosed to the jury, and, although they affect the weight of the evidence, the court determined they did not affect its admissibility. The Appeals Court held that because this expert testimony was reliable and helpful to determine the defendant’s liability, the lower court did not abuse its discretion by allowing it at trial.

The court also decided that the expert testimony was admissible even though studies that were inadmissible as evidence were cited as sources that helped to form the foundation for these experts’ opinions.  Rule 703 of the Rules of Evidence allows such testimony as long as that information contains “facts or data perceived by him.” The court held that although the experts relied in part on outside studies, this reliance does not make the expert’s opinion entirely inadmissible. 

The Ohio Court of Appeals affirmed the judgment in favor of the defendant.

By: Claire Irving