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Fenton v. Fibreboard Corp.9/12/1991
Defendants, Fibreboard Corporation and Owens-Illinois, Inc., appeal the judgment entered on a jury verdict in favor of plaintiff, E. Jeane Fenton. Defendants also appeal the trial court's award of costs and partial denial of a set-off. We affirm in part, reverse in part, and remand with instructions.
Plaintiff initiated this products liability action against a number of manufacturers of insulation products containing asbestos, seeking damages for the illness and death of her husband. Prior to trial, plaintiff settled her claims against all defendants except Fibreboard and Owens-Illinois. Following the jury trial, a verdict in the amount of $190,000 for wrongful death and loss of consortium was returned against these defendants. The court entered judgment in this amount, plus interest and costs.
Subsequently, defendants moved to alter or amend the judgment to reflect a set-off of amount of settlement with other defendants and also filed objections to plaintiff's bill of costs. The trial court ordered a partial set-off and reduced the costs awarded to plaintiff. This appeal asserting errors in both trial and post-trial proceedings followed.
I.
Defendants first assert that the trial court erred in admitting expert testimony which was based upon microscope slides of samples of tissue from decedent. Defendants allege these slides had been withheld from discovery to them and that the testimony constituted inadmissible hearsay. We disagree.
Defendants argue that their cause was unfairly prejudiced by the surprise testimony of plaintiff's expert, Dr. Repsher, and by the hearsay testimony of other experts introduced through Dr. Repsher. Dr. Repsher's testimony was based in part upon his examination of microscope slides prepared by Dr. Abraham from tissue samples taken from decedent and from reports prepared by Drs. Burnett and Craighead following their tissue analyses. Neither the slides nor the reports were admitted into evidence.
Plaintiff had endorsed Dr. Repsher as an expert witness in her trial data certificate and summarized his testimony as "regarding his diagnosis of mesothelioma and how it was caused by exposure to asbestos containing products." Plaintiff's supplemental trial data certificate summarized Dr. Repsher's testimony as concerning "Mr. Fenton's diagnosis and causation, as well as State of the Art Testimony . . . ."
A review of the record reveals that the testimony in controversy is that of the diagnosis and causation of decedent's illness. While it is true that the slides presented to Dr. Repsher shortly before his testimony had not been previously disclosed to defendants, the tissue samples from which they were prepared were available to all parties. Therefore there was no discovery violation. Further, CRE 703 provides that the facts or data upon which an expert bases an opinion may be those perceived or made known to him at or before the hearing.
The electron microscopic analysis of the tissue slides prepared by Dr. Burnett was a second basis for the expert opinion of Dr. Repsher and had likewise not been disclosed to defendants prior to Dr. Repsher's testimony. A copy of the report was provided to defendants at trial.
We perceive no abuse of the trial court's discretion in allowing the testimony of Dr. Repsher based upon his opinion of the data contained in the slides prepared by Dr. Abraham or the report prepared by Dr. Burnett. We do not agree that Dr. Repsher's opinion was based upon the opinion of other experts but rather was "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." CRE
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