IN THE SUPREME COURT OF OHIO

TERRANCE W. ASBURY, etc., et al. . S. Ct. Case No. 08-1726

Plaintiff-Appellants On Appeal from the Montgomery CountyCourt of Appeals

vs. Second Appellate District

KEY MOBILITY SERVICES, LTD., et al. Court of Appeals Case No. CA22509

Defendants-Appellees

APPELLEE KEY MOBILITY SERVICES, LTD.'SMEMORANDUM IN RESPONSE TO MEMORANDUM IN SUPPORT OF

JURISDICTION OF APPELLANTS TERRANCE W. ASBURY, INDIVIDUALLY ANDAS GUARDIAN OF BRENDA K. ASBURY; SEAN T. ASBURY;

TRENTON O. ASBURY; IAN N. ASBURY AND JERRY W. TAYLOR, EXECUTOR OFTHE ESTATE OF JEAN TAYLOR, DECEASED

Edward J. Dowd, Sup. Ct. No. 0018681Dawn M. Frick, Sup. Ct. No. 0069068Surdyk, Dowd & Turner Co., L.P.A.40 North Main St., Suite 1610Dayton, Ohio 45423(937) 222-2333, (937) 222-1970 (fax)edowd@sdtlawyers.comdfrick(a,sdtlawyers.com

Frank A. Ray, Sup. Ct. No. 0003922Janica A. Pierce, Sup. Ct. No. 0075074Chester, Willcox & Saxbe, L.L.P.65 East State Street, Suite 1000Columbus, Ohio 43215(614) 221-7791, (614) 221-8957 (fax)frayna cwslaw.com

ercen cwslaw.co

COUNSEL FOR APPELLEEKEY MOBILITY SERVICES, LTD.

Nicholas E. Subashi, Sup. Ct. No. 0033953Anne P. Keeton, Sup. Ct. No. 0076811Subashi, Wildermuth & Ballato, L.P.A.The Greene Town Center50 Chestnut Street, Suite 230Dayton, Ohio 45440(937) 427-8800, (937) 427-8816 (fax)nsubashi(a,swbohiolaw.comakeetonn,swbohiolaw.com

COUNSEL FOR APPELLEE EZ LOCK, INC.

Lee C. Falke, Sup.Falke & Dunphy,30 Wyoming StreeDayton, Ohio 454

• (937) 222-3000, (93falke@ohiolaw ey rs.cc

,.;_OHIO

CO-COUNSEL FOR APPELLANTSTERRANCE W. ASBURY, INDIVIDUALLYAND AS GUARDIAN OF BRENDA K.ASBURY; SEAN T. ASBURY; TRENTON O.ASBURY; IAN N. ASBURY AND JERRYW. TAYLOR, EXECUTOR OF THE ESTATEOF JEAN TAYLOR, DECEASED

t No. 3L.C. ^5 'l,.008

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I. EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC ORGREAT GENERAL INTEREST'

"1'his appeal is not a case of public or great general interest. Public interest indicates

something in which the public has some interest by which their legal rights or liabilities are

affected. State ex rel. Ross v. Guion (1959), 82 Ohio Law Abs. 1, 161 N.E.2d 800, 803 citing

State ex rel. Freeling v. Lyon, 63 Okl. 285, 165 P. 419, 420. Rather than presenting such

matters, the Appellants instead bring to this Honorable Court their frustration over the Courts'

proper application Ohio Evid. Rule 702, Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993),

509 U.S. 579 and cases such as Miller v. Bike Athletic Co., (1998) 80 Ohio St.3d 607 and Terry

v. Caputo (2007), 115 Ohio St.3d 351, 875 N.E.2d 72, 2007-Ohio-5023 when evaluation the

admissibility of their expert, John F. Wiechel, Ph.D., P.E. ("Dr. Wiechel.").

This case involves no novel issues; no conflict with Ohio Supreme Court case law or

statutory law; and, contrary to Appellants' contention, there is no basis for stating that lower

courts in Ohio are faced with confusion on how to manage hearings under Civ. R. 104 and 702.

Rather, the Court of Appeals' decision stands for the unremarkable proposition that an expert's

testimony can properly be excluded when the testimony "did not comply with Evid. R. 702(C),

because his theories were not objectively verifiable and the tests, to the extent any tests were

performed, did not reliably implement his theories and were not conducted in a way that would

yield accurate results." Asbury v. Key Mobility Services, Ltd., $econd Dist. App. No. 22509,

2008-Ohio-3609 at ¶89.

In Miller and Caputo, this Court has already had an occasion to address the very issue

Appellants seek to bring before the Court. As was noted by the Second District Court of

Appeals, in this matter:

1 The Appellant does not claim this case presents a substantial constitutional question.

2

The United States Supreme Court concluded in Daubert that trial judges have aresponsibility under Fed. R. Evid 702 to ensure that scientific testimony is notonly relevant but reliable, Daubert (1993), 509 U.S. 579, 589, 113 S.Ct. 2786,2795, 125 L.Ed.2d 469. In 1998, the Ohio Supreme Court adopted this role forOhio state court trial judges as well. See Miller v. Bike Athletic Co., 80 OhioSt.3d 607, 616, 1998-Ohio-178, 687 N.E.2d 735, and Terry v. Caputo, 115 OhioSt.3d 351, 356-357, 2007-Ohio-5023, 875 N.E.2d 72. (Emphasis added)

The Second District also recognized that this Court has described the trial court's role as a

"gatekeeping function" that "imposes an obligation upon a trial court to assess both the reliability

of an expert's methodology and the relevance of any testimony offered before permitting the

expert to testify." citing Caputo, 2007-Ohio-5023, at ¶ 24.

In Caputo, 115 Ohio St.3d at 356-357, this Court specifically held:

The test for reliability requires an assessment of the validity of the expert'smethodology, by applying with flexibility several factors set forth in Daubert. 509U.S. at 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469. The trial court should firstassess whether the method nr theory relied upon has been tested. Id. at 593, 113S.Ct. 2786, 125 L.Ed.2d 469. Next, it should consider whether the theory hasbeen the subject of peer review, and then whether the method has a known orpotential error rate. Id. at 593-594, 113 S.Ct. 2786, 125 L.Ed.2d 469. Finally,Daubert instructs trial courts to look at whether the theory has gained generalacceptance in the scientific community. Id. at 594, 113 S.Ct. 2786, 125 L.Ed.2d469.

Notwithstanding the foregoing, Appellants incorrectly contend that this Court has never

expressly adopted the precedent of Daubert.

Appellants also question which party has the burden in a motion to exclude expert

testimony filed under Evid R. 702(C). However, it is important to note that Appellants never

raised this issue on appeal before the Second District. Moreover, Courts have consistently held

that plaintiffs, as proponents of the testimony, bear the burden of establishing the testimony's

admissibility by a preponderance of proof. Bradley v. Brown, 852 F. Supp. 690 (N.D. Ind.

1994)(Once a challenge to expert testimony has been made, the burden should shift and the

proponent of the challenged evidence should bear the burden of persuasion.); see also Daubert,

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509 U.S. at 592, 113 S.Ct. at 2796 (Plaintiffs, as proponents of the testimony, bear the burden of

establishing the testimony's admissibility by a preponderance of proof); Schmaltz v. Norfolk &

W. Ry. (1995) 878 F Supp 1119 and 896 F Supp 180 (Proponent of proffered expert testimony

bears burden of establishing its admissibility by preponderance of proot); Newman v. Farmacy

Natural & Specialty Foods, 168 Ohio App.3d 630, 861 N.E.2d 559, 2006 -Ohio- 4633, ¶11 (The

party seeking to admit expert testimony bears the burden of establishing the testimony's

admissibility.); Metro. Life Ins. Co. v. Tomchik (1999), 134 Ohio App.3d 765, 776, 732 N.E.2d

430 (Burden was clearly on disability insurer seeking to introduce testimony of purported expert

regarding whether evidence supported insured's claim to qualify witness as an expert); Tully v.

Mahoning Exp. Co. (1954), 161 Ohio St. 457, 119 N.E.2d 831 (There is no presumption that a

witness is competent to give an opinion, and it is incumbent upon the party offering opinion

testimony to show that the witness possesses the necessary learning, knowledge, skill, or

practical experience to enable him competently to give such testimony.)

Thus, the court determines whether plaintiffs have met this burden by application of Rule

702 to a plaintiff's offer of proof and supporting materials. Placing this burden on the offering

party is justified. Moreover, the offering party typically has ready access to the foundational

information. Thus, requiring that party to make such a showing prerequisite to admissibility

should not be unduly burdensome:

Inexplicably, Appellants' criticize both courts below for being "so focused on Evid.R.

702(C)" (Appellants' Memo. p. 2), but then state that it is "a matter of great public interest for

this Court to undertake a thorough and in depth review of how Rule 702 of the Ohio Rules of

Evidence should function within this state's trial and appellate courts." (Appellants' Memo. p.

3.) Such a request simply ignores this Court's prior decisions in Miller, Caputo, and Valentine v.

Conrad, 110 Ohio St.3d 42,850 N.E. 2d 683 2006-Ohio-3561. Accordingly, an "instruction

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manual" for Appellants as to the application of these cases and Ohio Evid. R. 702, certainly is

not of "great public interest."

Finally, it has long been held by the courts, including this Court, that the determination of

the admissibility of expert testimony should not be disturbed absent abuse of discretion. Miller v.

Bike Athletic Co. (1998), 80 Ohio St.3d 607, 616, 687 N.E.2d 735. An abuse of discretion is

more than an error of law or judgment but implies an unreasonable, unconscionable, or arbitrary

attitude on the part of the court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140. This Court has previously held that without those elements, it is not the role of this

court to substitute its judgment for that of the trial court. Valentine v. Conrad, 110 Ohio St.3d at

43, 850 N.E.2d at 686. Here, Appellants have not argued before this Court that either of the

lower courts abused their discretion, nor have they sought a change in that standard. Thus, this

case is not one of "great public interest."

II. STATEMENT OF THE CASE AND FACTS

A. Relevant Procedural History

Appellants filed their Complaint on January 21, 2005, against EZ Lock, Inc. ("EZ Lock")

and Key Mobility Services, Ltd. ("Key Mobility") On June 26, 2007, Key Mobility and EZ

Lock filed their respective "Motions for Sununary Judgment" and EZ Lock filed the "Motion to

Preclude the Testimony of Plaintiffs' Expert John F. Wiechel, Ph.D., P.E." Key Mobility

followed with its "Memorandum Regarding Motion of Defendant EZ Lock, Inc. to Preclude

Testimony of Plaintiffs' Expert, John F. Wiechel, Ph.D., P.E. and Defendant EZ Lock, Inc.'s

Request for Hearing on Its Motion to Preclude Testimony of Plaintiffs' Expert, John F. Weichel,

Ph.D., P.E." joining in and incorporating the Motion filed by Appellee EZ Lock.

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On September 13, 2007, the Trial Court conducted a full day's hearing on the Motions to

preclude Plaintiffs' expert, Dr. Wiechel. Thereafter, the Trial Court issued its "Decision and

Entry Sustaining Defendants' Motions to Exclude Expert Testimony" stating:

Plaintiffs' expert testimony is not reliable under the standards established underDaubert and Evid. R. 702. Moreover, exclusion of Plaintiffs' expert is an appropriatesanction for Plaintiffs' spoliation of the evidence in this case. Accordingly,Defendants' motion to preclude Plaintiffs' expert are sustained.

In addition to fmding that Dr. Wiechel's testimony is not reliable under the testing factor, the

Trial Court also held that Plaintiff did not satisfy all of the Daubert factors and that "exclusion

of Dr. Wiechel's testimony is an appropriate sanction for [Appellants'] spoliation of the subject

device, considering Plaintiffs' intent, the level of prejudice, and the reasonableness of Plaintiffs'

actions."

Subsequently, the Trial Court filed its "Decision and Entry Sustaining Defendants'

Motion to Strike the Affidavit of Dr. Wiechel and Sustaining Defendants' Motions for Summary

Judgment and Rendering Moot Plaintiffs' Motions for Summary Judgment." The Trial Court

held that:

Plaintiffs' statutory and common law product liability claims for design defect, failureto warn, and supplier liability are supported by the testimony of Dr. Wiechel. By wayof separate decision, this Court has determined that Dr. Wiechel's testimony isunreliable based on the standard expressed in Daubert v. Merrell DowPharmaceuticals, Inc. (1993), 509 U.S. 579, and encompassed by Ohio Evid. R. 702.For the reasons contained in that decision, the Court finds Defendants' motions tostrike the affidavit testimony of Dr. Wiechel well taken. Moreover, there is noevidence indicating a stabilizer bar was required, or that such ought to have beeninstalled, at the time of installation, for the type of wheelchair at issue.Furthermore, there was no testing performed on this issue. Rather, the Court finds thetestimony and evidence demonstrates the absence of a genuine issue as to Plaintiffs'claims for design defect and failure to warn. Accordingly, Defendants' motions forsummary judgment are sustained. (Emphasis added.)

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Thus, the Trial Court's decision included a separate and independent basis for granting Key

Mobility's Motion for Summary Judgment, other than just the exclusion of Dr. Wiechel's

testimony.

Appellants appealed the Trial Court's decisions raising two Assignments of Error. The

First Assignment of Error was that "the trial court erred in granting the motion of Appellee EZ

Lock, Incorporated ("EZ Lock") to exclude the testimony of Appellants' expert witness, John F.

Wiechel, Ph.D. P.E. ("Dr. Wiechel"), for insufficient reliability, as Dr. Wiechel's expert

testimony possesses ample reliability under Evid. R. 702." Appellants did not raise as an

Assignment of Error or as an Issue for Review the alternate grounds for the trial court's decision

based upon spoliation. The Second Assigmnent of Error was: "[g]iven that Dr. Wiechel's

testimony possesses ample reliability for submission of his offered expert opinions at trial, the

trial court erred in granting the motions for summary judgment of EZ Lock and Key Mobility

Services, Ltd. ("Key Mobility") based on a finding that Dr. Wiechel's testimony did not meet the

requisite standard for reliability of Evid. R. 702." Although Appellants listed the Second

Assignment of Error as such, they did not raise any arguments or brief this assignment of error in

their Merit Brief and did not address the additional basis for granting summary judgment.

Based upon the foregoing, in Key Mobility's Brief to the Court of Appeals, under the

Assignment of Error Number One, Second Issue for Review, Key Mobility raised the following

issue relating to spoliation:

Did Appellants' failure to raise the Trial Court's alternate grounds forprecluding the testimony of Dr. Wiechel as an Assignment of Error make theirappeal of the exclusion of Dr. Wiechel's testimony moot?

Additionally, under the Assignment of Error Number Two, First Issue for Review, Key lvfobility

raised the following issue:

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Pursuant to App. R. 12, should this Court disregard Appellants SecondAssignment of Error for their failure to argue the assignment of error in theirbrief?

On May 5, 2008, Appellants filed their "Reply Brief of Appellants to Appellee Key

Mobility Services, Ltd's Brief and to Appellee EZ Lock, Inc.'s Brief." In their Reply Brief,

Appellants for the first time address the above two issues. As such, Appellee Key Mobility did

not have an opportunity to respond to the arguments and issues first raised by Appellants in their

Reply. Accordingly, Appellee Key Mobility sought to strike those portions of Appellants Reply

Brief, or in the alternative sought leave to file a Sur-Reply Brief to address those issues.

Similarly, EZ Lock filed a Motion to Strike and a Motion to Dismiss Appellants' appeal as moot.

However, because the Second District had already scheduled oral argument on the matter for

May 27, 2008, there was no time for a Sur-Reply to be filed and the Motion to Strike could not

fully be briefed.

The Second District Court of Appeals overruled Appellants' First and Second

Assignments of Error and affirmed the Trial Court's decision. The Court of Appeals noted that

in the "absence of expert testimony, there was no evidence to causally connect any actions or

inactions of EZ Lock or Key Mobility to the injuries that occurred." However, the Second

District also specifically found that notwithstanding the exclusion of expert testimony, there was

not even any circumstantial evidence which would be competent evidence "to causally link any

alleged defect with the injuries that were sustained." Asbury at ¶96. As such, the Court of

Appeals held that the Trial Court "did not err in rendering summary judgment in favor of EZ

Lock and Key Mobility." Id. Finally, with regard to the Motions to Strike filed by Appellees and

the Motion to Dismiss filed by EZ Lock, the Second District found that in view of their

disposition of the First and Second Assignments of error, "the motion to dismiss and motions to

strike are overruled as moot." Here, Appellants, again have not addressed these issues in their

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Memorandum in Support of Jurisdiction.Z Thus, Appellee Key Mobility contends that because

the Trial Court had alternate grounds for excluding the testimony of Dr. Wiechel (spoliation) and

for granting summary judgment (duty), and the Court of Appeals' decision did not address or

overrule those grounds, but rather affirmed the Trial Court's decision, those alternate basis

remain unchallenged here and Appellants' appeal is moot.

B. Summary of Relevant Facts

Appellants' Complaint arose out of a tragic and unfortunate accident which occurred on

January 25, 2003. On January 25, 2003, Brenda K. Asbury and Jean Taylor were loading

groceries into the back of their vehicle at the GFS Marketplace located on Harshman Road,

Dayton, Ohio. At approximately the same time, Eric Bigler ("Mr. Bigler"), a disabled individual

was driving a 1988 Econoline Van (the "Van") southbound on Harshman Road.

Mr. Bigler was stopped at a stop light in the right hand lane at Brandt Pike. He wanted to

turn into Meijers and needed to get into the left hand turn lane ahead of him. When the light

turned green, Mr. Bigler accelerated to get ahead of the car in the left hand lane. Mr. Bigler

advised the police that when he gave the Van gas, his wheelchair came loose from the EZ Lock

system and he rolled backwards approximately eighteen inches. Mr. Bigler lost control of the

Van and it swerved across Harshman Road to his right, jumped a curb, traveled several hundred

feet through a grassy area and into the GFS Marketplace parking lot where he struck Jean Taylor

and Brenda Asbury.

Mr. Bigler is a forty-five-year-old quadriplegic. The Van was modified and equipped

with an EZ Lock Model 6290 (the "EZ Lock system") locking device which was installed by

Key Mobility. The EZ Lock system was ordered by Key Mobility from EZ Lock in late 1997,

2 Nor does Appellants' Memorandum address the other factors of Daubert which areencompassed in Rule 702.

9

and was installed in December 1997 and January 1998. After the initial installation of the EZ

Lock system in late 1997, Mr. Bigler returned to Key Mobility on a couple of occasions for

maintenance and repairs of the system. On the date of the accident Mr. Bigler was using an

Invocare Arrow wheelchair.

The EZ Lock system consisted of a base which was installed on the floor of the Van and

a bracket which was installed on the bottom of Mr. Bigler's wheelchair. The base is the docking

station mounted to the floor of the vehicle and the chair bracket is an attachment to a wheelchair

that interfaces with the base lock by a large bolt which protruded down from the bracket. When

the wheelchair was driven into the Van and the driver's position, the bolt would engage in the

base and metal jaws would lock around the bolt, securing the wheelchair in position. The EZ

Lock system was equipped with a visual and audible alarm system which will notify the user

when the ignition is started if the wheelchair is not fully engaged into the base lock.

In addition, in 1997, the EZ Lock system had an optional piece of equipment called the

stabilizer bar. As was noted by even, Appellants' expert, Dr. John Wiechel, in 1997, the

stabilizer bar was not required, nor even recommended, for the type of wheelchair used by Mr.

Bigler-the Invocare Arrow wheelchair. The purpose of the stabilizer bar was generally to

prevent an individual's wheelchair from rocking back and forth and to keep the wheelchair from

tipping backwards. There were two parts to a stabilizer bar. The first piece, the stabilizer v-

guide was attached to the leading edge of the EZ Lock bracket on the bottom of an individual's

wheelchair. That picce had a v-shaped notch in the end. The second piece, the stabilizer base

and hook was bolted to the floor of the vehicle in front of the base of the EZ Lock system. The

v-guide would then fit into the stabilizer hook when the wheelchair was driven forward.

The only actual criticism of Key Mobility by Dr. Wiechel was the alleged failure of Key

Mobility to notify Mr. Bigler of the availability of the stabilizer bar. However, it is undisputed

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that there was not a stabilizer bar made, or required, for the type of wheelchair used by Mr.

Bigler on the day of the accident. At some point at or about late 1998 or 1999, E-Z Lock began

recommending the use of stabilizer bars for the driver application on newer models of

wheelchairs. The advent of a different design of wheelchairs that provided a very tight turning

radius, thereby utilizing smaller wheels which made them more susceptible to tipping,

precipitated E-Z Lock's later recommendation for the installation of the stabilizer bar on those

wheelchairs with the E-Z Lock system. There was no specific "notifrcation" from E-Z Lock that

as of a specific date the stabilizer bar became required for driver applications. Rather, E-Z Lock

simply began recommending the stabilizer bar for particular wheelchairs when the bracket

system was ordered by a supplier.

III. ARGUMENTS IN RESPONSE TO APPELLANTS' PROPOSITIONS OF LAW

A. Response to Proposition of Law No. 1

Appellants' first proposition of law illustrates Appellee's above assertion that this appeal

involves no novel issues and is not one of great public interest. Ohio courts, led by this Court,

have consistently evaluated the admissibility of expert testimony pursuant to Rule 702 of the

Ohio Rules of Evidence. See generally, Caputo, supra. More importantly to this case, the Trial

Court and Second District Court of Appeals also evaluated the admissibility of Dr. Weichel's

testimony pursuant to Rule 702. In support of their first proposition of law, Appellants' simply

reiterate the basic requirements of Rule 702.

Generally Appellee Key Mobility does not dispute this proposition of law, and

Appellants do not make any substantive argument for a change of this Court's application of

Rule 702 in its previous decisions. However, Appellants continue to fail to recognize that in this

case the Court of Appeals agreed with the Trial Court that based upon Rule 702, Dr. Wiechel

should have been prohibited from testifying. In so doing, the court essentially concluded that Dr.

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Wiechel's testimony was not based upon any objectively verifiable testing in accordance with

valid scientific methodology as required by Rule 702.

Pursuant to Rule 702, Dr. Wiechel's causation opinions, adorned as they were in the

dress of scientific or technical expertise, did not satisfy the element of reGability required under

Rule 702. It is precisely this kind of testimony that Rule 702 is designed to, and did in this case,

weed out as a part of a court's "gatekeeping function." Thus, the lower courts properly and

effectively evaluated the admissibility of Dr. Wiechel's testimony pursuant to Rule 702 of the

Ohio Rules of Evidence.

B. Response to Proposition of Law No. 2

Trial courts when faced with a proffer of expert scientific testimony, conduct a

"gatekeeping" preliminary assessment to determine whether the proffered expert's testimony is

admissible under the Rule 702 criteria. Trial judges are thus required to satisfy themselves, at

the outset, that the proposed scientific evidence meets a certain standard of reliability before

admitting it. Mere assertions of scientific validity are insufficient; rather, there must be a

showing that the expert's opinions are based on sound science.

According to the Supreme Court in Daubert, whether or not a theory or technique at issue

can be, and has been, tested is ordinarily a key consideration in determining whether or not said

theory or technique constitutes scientific knowledge. Fundamentally, this factor questions

whether the purported theory or methodology has been subjected to the scientific method, given

that, as the Daubert court noted, the testing of hypotheses is a basic characteristic of the

scientific method. See id.; see also Porter II, 9 F.3d at 614. Scientific method "is based on

generating hypotheses and testing them to see if they can be falsified." Daubert, 509 U.S. at 593,

113 S.Ct. at 2796 (citation omitted). Scientific method "is what distinguishes science from other

fields of human inquiry." Id. This distinction justifies the special treatment expert testimony is

12

given under evidentiary rules. See id. at 593, 113 S.Ct. at 2796. Specifically, scientific expert

opinion testimony is allowed on the rationale that the expert can tie the facts of a particular case

to tested scientific theory. Id. This explains Daubert's focus on scientific method: the court must

rule out `subjective belief or unsupported speculation.' Daubert, 509 U.S. at 590, 113 S.Ct. at

2795.)

A trial court's Daubert responsibilities, however, do not end with reliability, because the

trial court's "gatekeeping function" also requires it to judge whether an expert's testimony is

"`relevant to the task at hand' in that it logically advances a material aspect of the proposing

party's case." Caputo, supra at ¶26 citing Valentine v. PPG Industries, Inc. (2004), 158 Ohio

App.3d 615, 2004-Ohio-4521, 821 N.E.2d 580, quoting Daubert, 509 U.S. at 597, 113 S.Ct.

2786. This aspect requires a "connection between the scientific research or test result *** and

particular disputed factual issues in the case." Id. citing U.S. v. Downing (3`d Cir. 1985), 753

F.2d 1224, 1237; In re Paoli RR. Yard PCB Litigation (3`d Cir. 1994), 35 F.3d 717, 743.

The absence of testing is a consistent factor in court decisions excluding expert

testimony. Milanowicz v. The Raymond Corp. (D.N.J. 2001), 148 F.Supp.2d 525, 535; see e.g.,

Brooks v. Outboard Marine Corp. (2"d Cir.2000), 234 F.3d 89, 92 (noting that failure to test

theory of causation can justify trial court's exclusion of expert testimony.) This is especially true

in cases dealing with product design. Id, citing e.g., Jaurequi v. Carter Mfg. Co., Inc. (8`'

Cir.1999), 173 F.3d 1076, 1084 (finding that expert's failure to test proposed alternative design

was factor justifying the exclusion of expert testimony.); see also e.g., Clark v. Takata Corp (7`h

Cir.1999), 192 F.3d 750, 758-59 (holding that expert's failure to test his alternative design was

proper basis for excluding testimony.); Dancy v. Hyster Co. (8`" Cir.1997), 127 F.3d 649, 651

(same); Kinser v. Gehl Co. (10th Cir.1999), 184 F.3d 1259, 1271-72 (holding that expert

13

testimony was unreliable and should have been excluded, because its foundation did not include

any testing of alternative design for product that was allegedly defective).

Similar to cases involving scientific analysis, in products liability cases involving

engineering analysis, objective testing is the most reliable evidence from a causation standpoint.

Although, theoretically a hypothesis ma.y satisfy Daubert if it is untested by the expert proposing

it, in such cases the proponent of the testimony must demonstrate other appropriate indicia of

reliability. This requirement is all the more critical in a case in which an engineer who

conducted no testing is testifying about a design defect, particularly given that actual testing is

the principal method employed by the engineering community to prove or disprove an

engineering hypothesis. Clay v. Ford Motor Co. (6`h Cir. 2000), 215 F.3d 663, 677, dissent. In

this instance, the Trial Court found that "the particular procedure, test, or experiment was not

conducted in a way that yields an accurate result." (Daubert Decision, pp. 7-8.)

Ohio Civil Rule 702 incorporates Daubert's testability factor which requires the ability to

"be challenged in some objective sense." See Fed.R.Evid. 702, Committee Note. Thus, it is

axiomatic that expert testimony which is not based on testing is not sufficiently reliable or of a

type reasonably relied upon by experts in the field. Scientific expert opinion testimony is

allowed on the rationale that the expert can tie the facts of a particular case to a tested scientific

theory. The focus in Rule 702 and Daubert is clearly on scientific method; subjective belief or

unsupported speculation must be ruled out. Thus, one of the strongest attacks to hired experts'

opinions revolves around whether the experts have tested their theories or techniques, and if so,

how they tested their theories or techniques.

As this Court has previously recognized, because expert opinion based on nebulous

methodology is unhelpful to the trier of fact, it has no place in courts of law. Valentine v.

Conrad, 110 Ohio St. 3d 42, 2006-Ohio-3561, 850 N.E.2d 683. The courtroom is not the place

14

for scientific guesswork, even of the inspired sort. Valentine v. Conrad, 110 Ohio St. 3d 42,

2006-Ohio-3561, 850 N.E.2d 683. Accordingly, the lack of reliable testing and methodology

was an appropriate basis for the lower courts to evaluate the admissibility of Dr. Wiechel's

testimony pursuant to Rule 702 of the Ohio Rules of Evidence.

IV. CONCLUSION

For the reasons discussed above, there is no need for this Honorable Court to exercise its

jurisdiction in this case. This case does not involve matters of public or great general interest.

Appellee Key Mobility Services, Ltd. respectfully requests that this Court decline to review the

decision of the Second District Court of Appeals.

'Edward J. Dowd, Ohio5up: Ct. No. 0018681Dawn M. Frick, Ohio Sup. Ct. No. 0069068Surdyk, Dowd & Turner Co., L.P.A.40 North Main St., Suite 1610Dayton, Ohio 45423(937) 222-2333(937) 222-1970 (fax)edowd@sdtlawyers.comdfrick c ,sdtlawyers.com

COUNSEL FOR APPELLEEKEY MOBILITY SERVICES, LTD

CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum in Response has been served by ordinary U.S.Mail this2y'&ay of September, 2008, upon Frank Ray and Janica Pierce, Chester Willcox &Saxbe, LLP, 65 East State Street, Suite 1000, Columbus, Ohio 43215-4213; Lee C. Falke, 30Wyoming Street, Dayton, Ohio 45409; and Nicholas Subashi and Anne Keeton, SubashiWildermuth & Dinkier, LPA, The Greene Town Cgxiter, 50 Chestnut Street, Suite 230, Dayton,Ohio 45440.

^Edward J. Dowd (0018681)Dawn M. Frick (0069068)

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