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Ott v. Alliedsignal5/19/2005
the evidence in this case ignores her rights under the Indiana Constitution. We address each issue in turn.
I. Affidavits
The trial court granted the four defendants' motions to strike three physicians' affidavits submitted by Ott. Two of the affidavits were prepared for different litigation, and none of the three specifically discussed Jerome. The four defendants argued, therefore, that the affidavits were not relevant or reliable. We review the trial court's decision to exclude evidence for abuse of discretion. In re Paternity of P.E.M., 818 N.E.2d 32, 38 (Ind. Ct. App. 2004).
Ott argues that the affidavits are relevant because they "made the point that all cancer develops in the same pattern. Further, they make the point that non-cancer asbestos disease can be detected within ten years." Appellant's Br. p. 12. The trial court excluded the affidavits because they did not specifically deal with Jerome. "None of these affidavits address Jerome Ott specifically. None of these affidavits apply the scientific knowledge of the doctors to the facts of the specific case of Jerome Ott." Appellant's App. p. 79.
We conclude that the trial court interpreted principles of evidence overstrictly in striking the affidavits. The cases upon which the four defendants and the trial court relied support exclusion of evidence opining upon the facts of a specific case without adequate basis. Here, in contrast, the affidavits in question provided only general background regarding the etiology of asbestos-related cancers. See, e.g., id. at 448 ("The asbestos fibers react with human tissue to become malignant beginning the process of lung cancer relatively soon after inhalation, certainly within a few months if not on initial inhalation."). This information, which explains the disease process applicable to all victims of asbestos-related cancer, including Jerome, is therefore relevant in that it makes facts of consequence to the determination of the action more or less probable than it would be without the evidence. Ind. Evidence Rule 401. This case is therefore unlike Indiana Michigan Power Co. v. Runge, 717 N.E.2d 216, 237 (Ind. Ct. App. 1999), reh'g denied, on which the four defendants rely, because the evidence in this case is relevant.
The trial court questioned the affidavits' reliability under Evidence Rule 702 because the affiants did not examine Jerome or his medical records before rendering their opinions. Whether a particular expert statement meets the standard of reliability in Rule 702 must be decided on the facts of each case. The circumstances of this case differ from Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360 (Ind. Ct. App. 2002), trans. denied. In Armstrong, we ruled that an expert affidavit expressing a conclusion about how a workplace accident occurred should not be admitted because the expert did not perform his own testing and was not qualified to opine on the effects of inhaling certain chemicals. Id. at 367-68. In contrast, the physicians' conclusions in this case did not deal with the specific facts of a particular accident, but rather they dealt with how a disease progresses from exposure to full-blown manifestation. Because the affidavits express what appears to be consensus medical opinion that the disease progresses in the same manner in each patient who develops lung cancer, the affidavits are not unreliable just because the physicians did not examine Jerome.
For the same reason, this case differs from Hannan v. Pest Control Svc., Inc., 734 N.E.2d 674 (Ind. Ct. App. 2000), reh'g denied, trans. denied. In Hannan, we approved a trial court's rejection of an expert's opinion purporting to diagnose a plaintiff's illness when the expert
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