COMES NOW EVELYN POTTS, Individually and as Personal Representative of the Estate of CHARLES POTTS, Deceased (“Plaintiff”), in the above-entitled and numbered cause and submits this response to the motion in limine regarding the testimony of Dr. Eugene Mark. Plaintiff would respectfully show the Court as follows:

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Defendant Edward R. Hart Company (“Hart”) has filed a motion in limine arguing that Dr. Eugene Mark’s expert testimony is insufficient to prove causation. The motion should be denied on both procedural and substantive grounds: (1) under Krejci v. Halak (Ohio App. Cuyahoga Cty. 1986), 34 Ohio App.3d 1, 516 N.E.2d 235, it is improper to challenge the sufficiency of the evidence in a motion in limine; and (2) under Horton v. Harwick Chem. Co. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, the question of whether evidence is “strong enough to prove causation” should be resolved by the jury.


It is well settled that a motion in limine may not be used to challenge the sufficiency of a plaintiff’s evidence. See Krejci v. Halak (Ohio App. Cuyahoga Cty. 1986), 34 Ohio App.3d 1, 516 N.E.2d 235. Such challenges must be made through a properly supported motion for summary judgment under Civ.R. 56. See id. at 238. In Krejci, the defendants filed a motion in limine challenging three counts of the plaintiff’s complaint. The trial court granted the motion, even though “at that point in the trial not a single witness had taken the stand” and “[n]o affidavits, stipulations, or admissions were submitted” pursuant to Civ.R. 56. Id. The Court of Appeals held that it was reversible error to permit defendants to “circumvent the requirements of the Civil Rules” through a motion in limine. Id. The proper subject of a motion in limine is the admissibility of evidence, not its sufficiency. See id.

Although styled a “motion in limine,” Hart’s motion is actually a challenge to the sufficiency of the Plaintiff’s evidence.[1] Indeed, all of the cases cited by Hart involve motions for summary judgment. Hart’s sole argument is that Dr. Mark’s testimony, standing alone, is insufficient to prove causation as a matter of law. See Memorandum in Support of Motion in Limine (“Memorandum”) at 2-3. Such arguments have no bearing whatsoever on the admissibility of expert testimony. In Miller v. Bike Athletic Co., the Ohio Supreme Court expressly stated that a trial court, when determining the admissibility of expert testimony, may not consider whether the testimony is in itself sufficient to meet the plaintiff’s burden: “a trial court’s role in determining whether an expert’s testimony is admissible under Evid. R. 702(C) focuses on whether the opinion is based upon scientifically valid principles, not whether the expert’s conclusions are correct or whether the testimony satisfies the proponent’s burden of proof at trial.” Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 613-14, 687 N.E.2d 735, 741 (emphasis added).

Even if the sufficiency of the evidence could be raised by a motion in limine, Hart has not identified any valid basis for excluding Dr. Mark’s testimony. Dr. Mark’s testimony must be viewed in conjunction with the other evidence presented at trial, including fact testimony about Mr. Potts’s repeated exposure to asbestos-containing products supplied by Hart. Expert testimony about the effects of such exposure is certainly admissible, provided that there is “sufficient evidence introduced during the course of the trial to indicate that the [plaintiff was] exposed to asbestos . . . .” Shesler v. Consol. Rail Corp. (Ohio App. Cuyahoga Cty. 2003), 151 Ohio App.3d 462, 472, 784 N.E.2d 725, 733.


It is also well settled that the question of whether evidence of asbestos exposure is “strong enough to prove causation” is a question for the jury to decide. Horton, 73 Ohio St. 3d at 686, 653 N.E.2d at 1201. To grant Hart’s motion, this Court would essentially have to set aside the standards adopted by the Ohio Supreme Court in Horton.

Hart relies primarily on Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir. 2005), which was decided under maritime law. Hart contends that argues that the legal standards applied in Lindstrom are identical to those applied in Horton because both cases use the words “substantial factor.” Memorandum at 4 n.6. Upon closer examination, this semantic argument collapses. The mere fact that a court uses the term “substantial factor” does not mean that its reasoning is compatible with Horton. In Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), the Fourth Circuit also used the term “substantial factor,” but the Ohio Supreme Court explicitly rejected the Lohrmann test for determining “whether a particular product was a substantial factor in producing the plaintiff’s injury.” Horton, 73 Ohio St.3d at 683, 653 N.E.2d at 1200.

The Lindstrom decision, which explicitly cites Lohrmann, cannot be reconciled with the Ohio Supreme Court’s interpretation of “substantial factor.” For example, Lindstrom requires that a plaintiff must prove exposure for “a substantial period of time.” 424 F.3d at 492. By contrast, the Ohio Supreme Court in Horton specifically held that a plaintiff “need not prove that he was exposed to a specific product on a regular basis over some extended period of time . . . in order to prove that the product was a substantial factor in causing his injury.” 73 Ohio St.3d at 686, 653 N.E.2d at 1202. The sort of temporal requirement imposed in Lohrmann and Lindstrom “flies in the face of evidence which indicates that short periods of exposure – from one day to three months – can cause significant damage to the lungs.” 73 Ohio St.3d at 684, 653 N.E.2d at 1200 (quoting Schultz v. Keene Corp. (N.D. Ill.1990), 729 F.Supp. 609, 615). The court observed that such a focus on the “temporal aspects” of asbestos exposure was “scientifically dubious.” Id. (“The length of time that an individual was exposed to asbestos does not in itself determine how serious the injury will be.”).

The court in Lindstrom also held that “‘[m]inimal exposure’ to a defendant’s product is insufficient.” 424 F.3d at 492. In Horton, the court recognized that “[m]edical science suggests that very limited exposure to asbestos can cause mesothelioma, perhaps the worst of asbestos-related diseases.” 73 Ohio St.3d at 684, 653 N.E.2d at 1200. On this point, the Ohio Supreme Court is in accord with the consensus among scientists, which is that “[a]n occupational history of brief or low-level exposure [to asbestos] should be considered sufficient for mesothelioma to be designated as occupationally related.” Consensus Report, Asbestos, Asbestosis, and Cancer: The Helsinki Criteria for Diagnosis and Attribution, Scand. J. Work Envtl. Health 23:311-316 (1997), attached as Exhibit 1, at 313. By contrast, the Lohrmann/Lindstrom approach advocated by Hart is rooted in “pseudoscience.” Horton, 73 Ohio St. 3d at 685, 653 N.E.2d at 1201. This Court should not adopt a legal standard that the Ohio Supreme Court has expressly rejected, particularly when the standard disregards the consensus among reputable scientists.

Hart’s reliance on Summers v. Certainteed Corp. (Pa. Super. Ct. 2005), 886 A.2d 240, is even more misplaced. Summers did not even involve mesothelioma and did not squarely address any of the issues raised in this case. Hart cites dicta from Summers, but the court’s actual holding was that the expert’s testimony was insufficient in the absence of any evidence that the plaintiff actually suffered from an asbestos-related disease. The court noted that “[i]f Mr. Summers develops a discernable asbestos-related disease in the future, such as mesothelioma, lung cancer, or symptomatic asbestosis, he can return to court.” Id. at 245. In this case, there is no dispute that Mr. Potts’s mesothelioma was a “discernable asbestos-related disease.” Indeed, mesothelioma is considered a “signature disease” of asbestos exposure, meaning that it is “so associated with a particular cause that the presence of the disease presumes that cause.” Hall v. Baxter Healthcare Corp., 947 F.Supp. 1387, 1402 n.33 (D. Or. 1996). Dr. Mark certainly has a valid scientific basis for attributing Mr. Potts’s mesothelioma to his repeated exposures to asbestos-containing products supplied by Hart.


Hart’s arguments fly in the face of settled law and accepted science. The Plaintiff respectfully requests that this Court deny Hart’s motion in limine regarding Dr. Mark’s testimony.

  1. Almost as an afterthought, Hart cites Evid.R. 403, but this argument rests exclusively on Hart’s contention that the evidence is “insufficient as a matter of law.” Memorandum at 5.