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Ohio Supreme Court Update: Mold & Sovereign Immunity

There are a number of things going on in the Supreme Court, both in Ohio and the US, and today I wanted to follow up on a couple of rulings from the latter last week.  Tomorrow I'll touch on some pending cases before both.

The first case from last week is Terry v. Caputo, which involved one of the new faves in personal injury law, mold; the issue was the expert testimony necessary to get past summary judgment.  The plaintiff's expert had testified that mold in general can cause the health problems from which the plaintiffs suffered, but the trial court concluded that the expert's testimony as to specific causation in this case didn't meet acceptable scientific standards.  The court of appeals agreed, but reversed the grant of summary judgment, holding that the remaining evidence created a "genuine dispute of fact."

The Supreme Court reversed that, and, as I said, the holding is pretty simple:

  To make a prima facie case of exposure to mold or any other toxic substance, a plaintiff has to present expert testimony as to both general and specific causation.  What's more, since the issue of specific causation deals with a medical condition, it must be proven by a medical expert.

That doesn't necessarily mean he has to be a doctor; as Justice Pfeiffer, the lone dissenter, points out, the court approved non-physician expert testimony as to a medical condition back in 1992.  Pfeiffer makes an argument that proof of general causation should be sufficient for summary judgment purposes.  He's got a point; trial and appellate courts have become far too willing to use summary judgment to get rid of doubtful cases, especially in slip-and-falls ("open and obvious") and employer intentional torts.  Still, it's hard to fault the majority for concluding that if plaintiff didn't have an expert on specific causation by this point, there wasn't much sense in keeping alive the possibility that they'd find one by the time of trial.

The second case was Xenia v. Hubbell, which again came before the Court on summary judgment, this time in the context of sovereign immunity, specifically, RC 2744.02(C), which provides that an order denying a political subdivision "the benefit of an alleged immunity from liability" is a final order which can be appealed.  The trial court had denied summary judgment on the grounds that there was a genuine dispute of fact as to whether immunity existed, and the court of appeals had dismissed the appeal, holding this wasn't a final order.  The Supreme Court reversed and said, yes it is.

This is going to have a significant impact on sovereign immunity cases, because the courts have read the appeal provision very restrictively.  Typical is this 8th District decision from four months ago, in which the court held that an unexplained denial of summary judgment in a police chase wasn't appealable, because there were factual questions as to whether immunity should apply.  There's certainly some merit to the appellate court's argument that if factual issues exist in the trial court, they're going to exist in the court of appeals, too, and allowing appeal in such cases just wastes time.  But that's the way it's going to be.

Justice Pfeiffer was the lone dissenter from that one, too.


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