Brooks, et al. v. Stone Architecture, P.A., et al.
| Docket Number: | 2004-CA-00919-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-18-2006 Opinion Author: KING, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Fear of future disease - Expert testimony - M.R.C.P. 56(e) - M.R.E. 702 Judge(s) Concurring: LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 04-19-2004 Appealed from: NOXUBEE COUNTY CIRCUIT COURT Judge: Lee J. Howard Disposition: DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT GRANTED. Case Number: 98-0001 |
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| Party Name: | Attorney Name: | |||
| Appellant: | DEIDRA BROOKS; ELBERT COLE; TRAKENA COLE; VINCENT DANCY; EARL DEW; VALEXIA EDWARDS; MICHAEL HUGHES; VELMA
JENKINS; SHAWNEGUA RUCKER; AND RUSSELL SMART |
MEREDITH ANNE MAYBERRY, GERALD MAPLES |
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| Appellee: | STONE ARCHITECTURE, P.A.; SNEEDCONSTRUCTION COMPANY, P.A.; G & G CONSTRUCTION, SHEET METAL AND ROOFING, INC.; AND COLE REFRIGERATION | THOMAS MICHAEL CRONIN, LONNIE D. BAILEY, CAROLYN BUTTLES MILLS, GEORGE E. DENT KATHRYN RUSSELL GILCHRIST, STEVEN CAVITT COOKSTON, WHITNEY MORGAN STONE |
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| Topic: | Personal injury - Fear of future disease - Expert testimony - M.R.C.P. 56(e) - M.R.E. 702 |
| Summary of the Facts: | Students and teachers of two Noxubee County schools, Earl Nash Elementary School and B.F. Liddell Middle School, filed suit against Stone Architecture, P.A. and several subcontractors that performed work at the schools, alleging fear of future disease due to asbestos exposure. Stone moved for and was granted summary judgment. The appellants appeal. |
| Summary of Opinion Analysis: | The appellants’ only claimed damages is fear of future disease. Since the appellants chose to bring their case before any manifestation of illness, in order to survive summary judgment, they were required to show that genuine issues of material fact existed regarding their substantial exposure to asbestos and medical or scientific evidence supporting the reasonableness of their emotional fear. The appellants claim that Stone exposed them to asbestos. Stone claims that some of the construction materials contained non-friable asbestos which is not respirable. Both sides submitted admissible evidence to support their positions regarding the appellants’ alleged substantial exposure to asbestos. What is the proper testing methodology to determine asbestos exposure to individuals occupying the sampled space, what is the relevance of exposure to non-friable versus friable asbestos, and whether the appellants’ potential exposure to any type of asbestos was substantial are material questions of fact. M.R.C.P. 56(e) requires that evidence in support of and in opposition to a summary judgment motion must be admissible evidence. In order to be admissible under M.R.E. 702, expert testimony must be based upon sufficient facts or data and be the product of reliable principles and methods. Also, the expert must apply the principles and methods reliably to the facts of the case. In addition to the requirements of Rule 702, the admissibility of expert testimony is governed by the modified Daubert standard. The appellants’ expert opined that the appellants’ non-occupational exposure to asbestos provides a reasonable basis for their fear of contracting future disease. In his testimony, the expert stated that all asbestos-related diseases except for mesothelioma were doserelated diseases. Later in his testimony, he admitted that he did not know how long the appellants had been exposed to asbestos. If all asbestos-related diseases except mesothelioma are dose-related, and the expert was unaware of the duration of the appellants’ exposure to asbestos, his opinion that the appellants are at a greater risk for asbestos-related diseases other than mesothelioma is unreliable because it lacks the necessary factual foundation required to reach that conclusion. The expert also admitted that he had not met with any of the appellants, had not reviewed their medical records, nor did he know a single appellant’s name. He also admitted that he could not identify the source of the asbestos. Finally, he admitted that he was not familiar with how asbestos testing was done, nor the particulars of how the EMP data was generated. Clearly, the expert’s opinion was not based on sufficient facts. Therefore, the trial court’s grant of summary judgment in favor of Stone is correct. |
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