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Claar v. Munk10/17/2005
JUDGMENT: Judgment affirmed.
{ } Plaintiff-appellant Gary Claar ("Claar"), administrator of the Estate of Austin Claar ("Austin"), brings this appeal from the judgment of the Court of Common Pleas of Union County granting a directed verdict to defendant-appellee Merry Munk ("Munk").
{ } On November 20, 2001, nine week old Austin was taken to his babysitter, Munk. Sometime during the day, Munk laid Austin down for his nap on a futon bed. Later, Munk checked on Austin and noticed that he was not breathing. She called 911 and started CPR. At 5:16, Austin was pronounced dead. An autopsy was performed and the cause of death was listed as Sudden Infant Death Syndrome ("SIDS").
{ } On October 28, 2003, Claar individually and as administrator of Austin's estate filed a wrongful death and negligence action against Munk. A jury trial was commenced on October 12, 2004. Claar presented the evidence of various witnesses. The only expert witness to connect Munk's actions to the death was Dr. Linda Norton ("Norton"). Norton testified that she believed Munk's laying Austin on a standard twin mattress to sleep rather than a crib mattress was the proximate cause of Austin's death. Tr. 214. However, she admitted that she did not know what was meant by the term "proximate cause." Tr. 255. The trial court conducted a voir dire of Norton outside the presence of the jury and determined that Norton's theories had not been subjected to peer review or testing and had not gained general acceptance. Thus, the trial court excluded her testimony. Finding that no other evidence of proximate cause was provided, the trial court granted Munk's motion for a directed verdict. Claar appeals this judgment and raises the following assignments of error.
The trial court erred in excluding [Norton's] opinion testimony in toto.
The trial court erred in granting a directed verdict after excluding [Norton's] opinion testimony in toto.
Munk also raises assignments of error, but filed no notice of appeal. Thus, her assignments of error are really assignments in defense of judgment pursuant to App.R. 3. Munk's assignments of error in support of judgment are as follows.
The trial court erred to prejudice of [Munk] by excluding evidence on the issue of foreseeability of harm in this negligence case. The trial court erred to prejudice of [Munk] by admitting evidence on the issue of loss-of-chance of survival outside a medical malpractice case.
The trial court erred to prejudice of [Munk] by excluding evidence of other proposed mechanisms of SIDS related deaths except for the mechanism alleged by [Claar].
The trial court erred to prejudice of [Munk] by allowing [Claar's] expert witness to rely on facts in this particular case that were not perceived by the witness or admitted at trial.
This court also notes that only a partial transcript was provided in this case. Claar chose only to provide this court with the testimony of Dr. Mary Applegate ("Applegate"), Dr. Patrick M. Fardal ("Fardal"), and Norton.
{ } The first assignment of error claims that the trial court erred in excluding the testimony of Norton. The admission of expert testimony is governed by Evid.R. 702, which provides as follows.
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons.
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the
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