JAMES W. DAVIS AND LINDA J. DAVIS v. FISCHER SINGLE FAMILY HOMES, LTD.; FSFH, INC.; DAN MESSER'S MASONRY; AND D & P MASONRY, LLC and FISCHER SINGLE FAMILY HOMES AND FSFH, INC. v. JAMES W. DAVIS AND LINDA J. DAVIS
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RENDERED: AUGUST 10, 2007; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000005-MR
JAMES W. DAVIS AND LINDA J. DAVIS
v.
APPELLANTS
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 03-CI-00698
FISCHER SINGLE FAMILY HOMES, LTD.;
FSFH, INC.; DAN MESSER’S MASONRY;
AND D & P MASONRY, LLC
AND:
NO. 2006-CA-000038-MR
FISCHER SINGLE FAMILY HOMES AND FSFH, INC.
v.
APPELLEES
CROSS-APPELLANTS
CROSS-APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 03-CI-00698
JAMES W. DAVIS AND LINDA J. DAVIS
CROSS-APPELLEES
AND:
NO. 2006-CA-000074-MR
DAN MESSER’S MASONRY AND D & P MASONRY,
LLC
v.
CROSS-APPELLANTS
CROSS-APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 03-CI-00698
JAMES W. DAVIS AND LINDA J. DAVIS
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ABRAMSON AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
NICKELL, JUDGE:
James and Linda Davis (hereinafter referred to as “Davis”) have
appealed from a jury verdict finding no liability against Fischer Single Family Homes,
LTD, FSFH, Inc. (hereinafter collectively referred to as “Fischer”), Dan Messer's
Masonry, and D&P Masonry, LLC (hereinafter collectively referred to as “Messer”).
Fischer and Messer have each cross-appealed from the same verdict. We affirm.
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
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In January 2001, Davis contracted with Fischer to construct a house in
Hebron, Kenton County, Kentucky. Messer was sub-contracted to perform the brick
work on the exterior of the home. Construction was completed in July 2001 and Davis
took possession of the home in early August 2001. Included in the contract was a oneyear warranty providing for the correction of any construction defects found within that
period. Davis timely submitted a list of known defects on July 3, 2002, and Fischer
completed the required repairs. During the completion of these repairs in September
2002 Davis informed Fischer of previously unreported damp areas in the living and
dining rooms. Fischer investigated the damp areas and was able to quickly resolve the
leak which caused the dining room problem. Investigation continued into the source of
the living room leak. Davis reported he had contracted to have a mold assessment
performed on the residence, but at that time was unable to produce the results of this
testing.
In accordance with its corporate policy, Fischer offered to provide Davis
with alternate housing while a professional mold assessment was performed and during
the period of any remediation work revealed to be necessary. Davis did not desire to
vacate the residence as no mold-related health symptoms had been experienced. Fischer
employed a certified industrial hygienist to inspect the property for evidence of any mold
infestation. During the hygienist's visit, Davis reported a new leak in the basement of the
home. Fischer determined the source of this leak was a breakdown of a piece of flashing
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which could be and was easily repaired. Fischer was still unable to determine the source
of the living room leak.
Fischer proposed to cut a series of holes in the interior walls of the living
room in order to effectively determine the source of the water intrusion. Davis demanded
a mold test be performed of the wall cavity prior to cutting through the drywall. Davis
informed Fischer he was well experienced with such testing as he worked for his son's
environmental remediation company. Fischer agreed to employ Davis' son to perform the
testing. On October 14, 2002, the requested testing was performed which revealed no
signs of mold growth within the walls. The following day, Davis revealed the results of
his prior mold testing completed on August 28, 2002, which revealed similar results.
On October 21, 2002, Fischer's construction manager visited the residence
and was able to determine the living room leak was the result of a breakdown in the
caulking surrounding a second floor window located directly above the living room.
Fischer then informed Davis of its findings along with a proposed remediation plan for
the existing leak and preventive work on the remainder of the home. Davis declined
Fischer's plan and demanded the entire brick facade be removed and replaced. For the
first time, Davis then reported adverse health effects from exposure to mold within the
home, reciting a long list of alleged symptoms. Davis further revealed his intentions to
have additional mold testing performed and to vacate the residence. Nevertheless,
Fischer continued its attempts to resolve the issues with the Davis residence and again
offered to pay for alternative housing arrangements with a per diem stipend while the
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remediation work was being performed. While Fischer believed there was no mold
contamination within the home, it extended the offer out of an abundance of caution.
Fischer hired two additional companies to evaluate the home and write
remediation plans. Davis rejected each of these and refused to allow Fischer to perform
any further work on the residence unless Fischer would agree to remove and replace the
entire brick facade. When Fischer refused, Davis filed suit on March 14, 2003, in Kenton
Circuit Court alleging various personal injuries related to mold exposure. Subsequently,
Davis expanded his allegations to include multiple construction defects, fraud, and
negligence, ultimately amending his complaint nine months later to include Messer as a
co-defendant.
An eight day jury trial occurred in November 2005 wherein all parties and
numerous experts presented testimony. After deliberations, the jury returned a verdict in
favor of the defendants, allocating 100% fault to Davis. This appeal followed.
Davis contends the trial court erred in (1) allowing each defendant separate
sets of peremptory challenges, (2) refusing to permit examination of a defense witness on
alternative construction techniques, (3) admitting a letter from the Kentucky Department
of Housing, (4) admitting evidence of industry standards which directly contravened a
legislative enactment, (5) excluding evidence of similar problems in other Fischer-built
homes, (6) refusing to permit a chief medical witness to testify live after having
previously testified on videotape, (7) excluding testimony of the future health effects
from mold exposure, and (8) excluding a variety of items regarding Davis' damages.
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Fischer and Messer have each cross-appealed alleging error in the jury instructions. We
shall examine each claim of error separately.
I. PEREMPTORY CHALLENGES
Davis first contends the trial court erroneously granted Fischer and Messer
separate sets of peremptory challenges, thus affecting the fundamental fairness of the
trial. We disagree. In general, each opposing side of a controversy is granted three
peremptory challenges to the jury panel. However, Kentucky Rules of Civil Procedure
(CR) 47.03(1) provides “co-parties having antagonistic interests shall have three
peremptory challenges each.” Davis contends Fischer and Messer were not, in fact,
antagonistic to one another. After a careful review of the record, we hold they were
antagonistic.
Absent an abuse of discretion, we will not substitute our judgment for the
determination of the trial court that the parties had antagonistic interests. Sommerkamp v.
Linton, 114 S.W.3d 811 (Ky. 2003). Further, if the findings of fact are not clearly
erroneous or the opposite result is not compelled by the facts before the trial court, the
decision of the trial court will not be disturbed, even if we would have come to a different
conclusion. In Sommerkamp, the Supreme Court of Kentucky set out the framework for
making the decision as to whether antagonistic interests exist.
Generally there are three elements to be considered in
determining if coparties have antagonistic interests. They are
1) whether the coparties are charged with separate acts of
negligence[;] 2) whether they share a common theory of the
case[;] and 3) whether they have filed cross-claims.
Additional important factors are whether the defendants are
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represented by separate counsel; whether the alleged acts of
negligence occurred at different times; whether the
defendants have individual theories of defense; and whether
fault will be subject to apportionment. All of these factors are
to be weighed by the trial court in determining if the
defendants have antagonistic interests and thus are entitled to
separate peremptory challenges (internal citations omitted).
Id. at 815. Due weight shall be given to each of these factors as the existence or absence
of a single factor is insufficient to make a determination as to the reasonableness of the
trial court's ruling. Each factor must be weighed in the balance with the others. See
Davenport v. Ephraim McDowell Mem'l Hosp. Inc., 769 S.W.2d 56 (Ky.App. 1988).
Davis has not provided any specific references to the record justifying his
demand for reversal, but merely a general objection regarding the common defense
strategies employed by Fischer and Messer during the trial. However, a trial court's
ruling under CR 47.03 must necessarily be made prior to trial and subsequent trial
strategy is irrelevant to our review. See Bayless v. Boyer, 180 S.W.3d 439, 448 (Ky.
2005). While it is true no cross-claims were filed in the instant action and the defendants
engaged in joint defense efforts, those factors cannot be viewed in isolation from the
other elements regarding antagonistic interests. See Roberts v. Taylor, 339 S.W.2d 653
(Ky. 1960) (holding the filing of cross-claims is not required to establish the right to
additional peremptory challenges when the parties hold antagonistic interests in fact);
Sommerkamp, supra.
In the case sub judice, Davis first filed suit against Fischer with no mention
of Messer. Some nine months later, Messer was added as a defendant to the action by
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amended complaint which clearly charged Fischer and Messer with separate acts of
negligence, which negligence was alleged to have occurred at differing times throughout
the construction of the Davis residence. Therefore, Davis' own complaint revealed a
great likelihood of antagonism between the two defendants.2
Further, Fischer and Messer were represented by separate, independent
counsel throughout the litigation. Each defendant practiced the case much differently
from the other, a fact noted by the trial court.3 While Fischer and Messer presented a
unified front of defense, their strategies were quite different.
Finally, before trial an apportionment instruction had been tendered to the
trial court. “Inherent in the Kentucky law of apportionment, KRS 411.182, is that the
interests of codefendants may be considered antagonistic.” Sommerkamp, 114 S.W.2d at
816. As Fischer and Messer were charged with separate and independent acts of
negligence, each would be able to escape or reduce its liability by convincing the finder
of fact that the other was responsible for the alleged damages. Thus, the system of
apportionment is inherently antagonistic. We cannot say the trial court abused its
discretion in granting separate peremptory challenges to Fischer and Messer.
2
Davis argues Fischer and Messer were not charged with separate acts of negligence. However,
even the most cursory review of the amended complaint reveals significant differences in the
allegedly negligent acts imputed to each defendant. Fischer was charged with no less than five
counts af varying degrees and types of negligence, none of which referred to the work performed
by Messer. Messer was charged in only one count of negligently applying the brick facade to the
residence, with no references to the work performed by Fischer. No nexus between the acts of
the parties was provided which would imply a joint connection to Davis' alleged damages.
3
Contrary to Davis' contention, Fischer and Messer filed several separate pretrial motions and
requests for relief.
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II. ALTERNATIVE CONSTRUCTION TECHNIQUES
Davis next contends the trial court erred in refusing to permit the
examination of Messer's expert witness, Gary Wahoff (hereinafter “Wahoff”), regarding
alternative techniques of applying brick and mortar. The trial court based its denial of
such examination on the proscription set forth in Kentucky Rules of Evidence (KRE) 407
regarding subsequent remedial measures. As this is a question regarding an evidentiary
matter, our standard of review is limited to a determination as to whether the trial court
abused its discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577
(Ky. 2000).
KRE 407 states as follows:
When, after an event, measures are taken which, if taken
previously, would have made an injury or harm allegedly
caused by the event less likely to occur, evidence of the
subsequent measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect in a product's
design, or a need for a warning or instruction. This rule does
not require the exclusion of evidence of subsequent measures
when offered for another purpose, such as proving ownership,
control, or feasibility of precautionary measures, if
controverted, or impeachment (emphasis added).
The technique about which Davis intended to question Wahoff was one
implemented by Messer subsequent to the construction of the Davis residence intended to
reduce the amount of mortar which collected behind the brick veneer. Davis contends
Wahoff's testimony during direct examination opened the door to questions regarding
alternative techniques. However, our review of the record reveals no such testimony.
Wahoff testified only as to the general techniques and mechanics of brick masonry.
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Further, he confirmed it was a normal occurrence to find some mortar squeezed out
behind the layers of brick. He offered no testimony regarding any techniques to
minimize the amount of such “squeeze-out” nor the feasibility of applying any such
remedial measures. We can find no way in which this testimony could be viewed as
opening the door to the examination requested by Davis.
Alternatively, Davis contends he intended to elicit the testimony based
upon the feasibility exception of KRE 407. However, Davis presented no evidence to
controvert any of Wahoff's testimony. Pursuant to the plain language of the rule, in the
absence of controversy, the feasibility exception of KRE 407 simply does not apply.
Therefore, the trial court did not abuse its discretion in disallowing the requested
examination of Wahoff.
III. OPINION LETTER
Davis next contends the trial court erred in admitting a letter from an
employee of the Kentucky Environmental and Public Protection Cabinet, Office of
Housing, Buildings and Construction (hereinafter “OHBC”)4 concerning the acceptability
of a smaller gauge5 of wall ties6 than was required by the building code in effect at the
4
OHBC is the state agency responsible for promulgating state building codes and for the
administration of standards relating to the construction of buildings.
5
The parties use the spelling “gage” which is used in the building code, rather than the more
common spelling “gauge” to refer to the size of the wall ties. As these spellings are
interchangeable, for purposes of this opinion we shall adopt the more common spelling.
6
Wall ties are pieces of steel which are used to anchor brick veneer to the supporting wall of the
structure. The code in effect at the time of construction of the Davis residence called for the use
of 22 gauge wall ties, but Fischer provided Messer with 28 gauge wall ties for use in the Davis
residence.
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time of the construction at issue herein. Davis alleges the letter constituted inadmissible
hearsay under KRE 802. We disagree.
During cross-examination of Davis's building code and structural
engineering experts, Fischer referenced an opinion letter from OHBC addressed to the
Home Builders Association of Kentucky which stated the use of the smaller gauge wall
ties was an acceptable alternative under the applicable building code. The letter was not
read to the jury, was not published to the jury, and was never admitted into evidence.
The general rule is that hearsay is not admissible. KRE 802. However,
Fischer's reference to the letter in issue does not meet the definition of hearsay. KRE
801(c) defines hearsay as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” In the case sub judice, the letter was not offered into evidence, nor was it
offered to prove the truth of the matters asserted therein. The letter was referenced only
in an effort to impeach the credibility of Davis's experts and their expressed opinions.
More particularly, Fischer referenced the OHBC letter merely to ascertain the experts'
awareness of its existence and whether they had considered it in reaching their
conclusions or forming their opinions. Therefore, pursuant to the plain language of the
rule, the letter cannot be construed as hearsay, and the trial court did not err in allowing
Fischer to utilize it during cross-examination.
Even were we to determine, arguendo, that Fischer's reference to the
OHBC opinion letter constituted inadmissible hearsay, any error in its admission would
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be insufficient to entitle Davis to the relief he seeks. The substantial rights of the parties
were not affected by reference to the letter during examination of the witnesses or during
closing arguments. Further, denial of the relief requested will not result in a violation of
the interests of substantial justice. We are unable to conclude the outcome of the trial
would have been any different had reference to the letter been excluded. Therefore, any
alleged error would be harmless at best. See CR 61.01.
Davis next argues Fischer sought the opinion letter from OHBC in order to
defeat any claims of liability based on the use of the smaller gauge wall ties. However,
nothing in the record indicates Fischer or Messer had any involvement in the
procurement of the advisory opinion. The letter was not addressed to any of the parties to
this litigation, nor was the Davis residence referenced in the letter. Further, Davis is
unable to provide any reference to the record indicating the opinion letter was
untrustworthy. Therefore, this argument is without merit.
IV. INDUSTRY STANDARDS
Davis next contends the trial court erred in admitting evidence of the
industry standards regarding the use of smaller gauge wall ties in contravention of the
plain language of the building code. Davis claims admission of this testimony allowed
the jury to nullify a legislative pronouncement regarding the applicable standard of care.
This argument is without merit.
It is true that “building code violations, if proven, constitute negligence per
se . . . .” Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921, 927 (Ky. 1994).
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However, “there can be no recovery unless the negligence was the proximate or
contributing cause of an accident.” Louisville Taxicab & Transfer Co. v. Holsclaw
Transfer Co., 344 S.W.2d 828, 829 (Ky. 1961).
In the case at bar, conflicting evidence was presented to the jury as to
whether Fischer and Messer had, in fact, violated the building code by using smaller wall
ties. While the code specifically required the use of the larger gauge wall ties, it also
specifically allows for the use of alternative materials and methods which substantially
comply with the spirit of the code. Experts for both Davis and Fischer agreed that the
smaller gauge ties would be an acceptable alternative under the code. Thus, it was up to
the jury to weigh the evidence in order to determine whether there had, in fact, been a
violation of the building code. A review of the jury's verdict reveals it did not so find and
we will not disturb that finding as there was sufficient evidence upon which the jury
could have reasonably based its decision. Commonwealth Department of Highways v.
Stocker, 423 S.W.2d 510, 515 (Ky. 1968) (a verdict based upon substantive evidence of
probative value must be upheld even if the reviewing court would have come to a
different result). Further, even if the jury were to have found a building code violation
had occurred, Davis failed to produce any evidence that such violation was the proximate
or contributing cause of the water intrusion into the structure. In the absence of such
proof, Davis is entitled to no recovery for the building code violation. See Louisville
Taxicab, supra.
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V. EVIDENCE OF SIMILAR PROBLEMS
Davis's fifth allegation of error centers upon the trial court's failure to allow
him to present evidence regarding defective brick work in other Fischer-built homes in
the same neighborhood as the Davis residence. This argument is also without merit.
It has long been held that evidence of prior negligent acts or customary
practices, offered solely in an attempt to prove negligence on a different occasion, is
inadmissible as it offers very little probative value and presents a potential for confusion
of the issues. See Dowell v. Bivins, 586 S.W.2d 297 (Ky.App. 1979); Moore v. Bothe,
479 S.W.2d 634 (Ky. 1972); and Kentucky-West Virgina Gas Co. v. Slone, 238 S.W.2d
476 (Ky. 1951). Any testimony regarding other homes in the neighborhood which had
been built by Fischer or Messer would have no bearing on the facts in issue in the instant
litigation. Therefore, the trial court correctly excluded the evidence on the basis of
relevancy.
Further, Davis' contention that Fischer opened the door to such questioning
is without merit. Davis fails to point to any specific place in the record supportive of his
argument, and our review of the record indicates no such support exists. Thus, the trial
court correctly rejected Davis's request to question Fischer's experts regarding similar
problems in other homes.
VI. REFUSAL TO ALLOW LIVE TESTIMONY
Davis next contends the trial court erred in requiring the testimony of his
chief medical expert, Dr. Jonathan Bernstein (hereinafter “Bernstein”), to be presented by
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videotape and refusing to allow Bernstein to testify live before the jury. We disagree.
Again, as this is a ruling upon an evidentiary matter, our review is limited to a
determination of whether the trial court's ruling constituted an abuse of discretion.
Goodyear Tire and Rubber, supra.
Davis and Bernstein initially took advantage of CR 32.01(c) which allows
practicing physicians the privilege of testifying via deposition rather than having to
personally appear at the trial. Davis served notice of this intent and Bernstein was
deposed as if testifying at trial, including direct, cross, and redirect examination.
Bernstein's deposition was videotaped for use at trial. Subsequent to this deposition,
Davis secured a continuance of the scheduled trial date and proceeded to have Bernstein
prepare a supplemental report to address weaknesses revealed during his deposition.
Fischer sought an order to limit the testimony of all deposed witnesses to that which had
been provided during their respective depositions. The trial court entered such order on
May 5, 2005, and later extended the restrictions by order entered June 29, 2005, limiting
medical expert testimony to that produced prior to the aforementioned continuance.
After obtaining new counsel, Davis asked the trial court to allow previously
deposed witnesses to give live testimony at trial. The trial court overruled this motion.
Davis now argues this was error as courts from other jurisdictions have expressed a
preference for live testimony over other technological presentations. Davis cites no
Kentucky authorities supportive of his contention, and we have found no such preference
in opinions from courts within the Commonwealth. While there is foreign authority for
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this proposition, they are not binding on this Court. Further, based on the facts before us
on this appeal, we decline to announce any preference for live testimony. Even if a
preference for live testimony was suggested by binding precedent, it is within the
considerable discretion of the trial court to determine the admissibility evidence and how
such evidence is presented. See Baker v. Kammerer, 187 S.W. 3d 292, 294 (Ky. 2006)
(acknowledging general rule that trial judge has discretion as to the “presentation of
evidence as well as the scope and duration of cross-examination” (citations omitted)); and
Estep v. Commonwealth, 957 S.W.2d 191 (Ky. 1997).
Here, the trial court sought to “lock in” the testimony of the experts and
other witnesses so as to prevent any party from gaining an unfair advantage due to the
numerous continuances which had been granted in this litigation. The trial court was
aware that Davis had previously utilized continuances in this case in order to supplement
his experts' testimony once weaknesses were revealed during their cross-examination
depositions. The trial court thus limited Dr. Bernstein's testimony7 to that of his
videotaped deposition for reasons of fundamental fairness and judicial economy. Under
the facts and circumstances presented to the trial court in this case, we find no abuse of
discretion in the trial court's ruling.
Further, Davis' contention that he was prejudiced by the inability to have
live testimony at trial is severely undercut by the fact that Bernstein's testimony was
presented via videotape. The jury was able to observe Bernstein during direct and cross7
While the issue raised in this appeal is limited to Dr. Bernstein's testimony, we note the trial
court limited all expert testimony to that provided during their respective videotaped depositions.
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examination and to assess his credibility firsthand. This is substantially different than
having testimony from a deposition read to the jury by a third party. Davis made the
initial choice to have Bernstein testify via videotaped deposition and cannot now be heard
to complain for being held to such choice. See Trevillian v. Boswell, 241 Ky. 237, 43
S.W.2d 715, 718 (Ky.App. 1931) (collecting cases) (“The client is responsible for his
counsel's conduct for whatever may be done by him in the pursuit of his cause or defense,
in the conduct of the trial, in the interrogation of the witnesses, and in the argument of the
case.”).
VII. FUTURE HEALTH EFFECTS
Davis next contends the trial court erred in excluding Bernstein's testimony
regarding the future health effects of mold exposure. We disagree. After conducting a
hearing as required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993), the trial court excluded the proffered testimony. On
appeal, a trial court's decision on the admissibility of expert witness testimony is
generally entitled to deference as the trial court is in the best position to judge the
credibility of the evidence presented. Miller v. Eldridge, 146 S.W.3d 909 (Ky. 2004). As
previously stated, we review such findings for an abuse of discretion. Goodyear Tire and
Rubber, supra.
The central question surrounding the admissibility of expert testimony is
“an assessment of whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly can be applied
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to the facts in issue.” Daubert, 509 U.S at 592, 113 S.Ct. at 2796. Bernstein was the
only witness to testify at the hearing. He testified as to the short-term and long-term
permanent health effects of exposure to mold. His testimony at the Daubert hearing
included an admission that current scientific testing practices have significant limitations
in establishing a causal link between mold exposure and health effects. He was unable to
identify substantial scientific or medical data or testing which corroborated his diagnosis
or testimony related to long-term permanent health effects. Further, Bernstein was
unable to conclusively rule out other medical possibilities and explanations for Davis'
reported symptoms.8 Thus, the trial court concluded such testimony was unreliable and
should be excluded from presentation to the jury. However, the trial court did rule that it
would allow Bernstein's testimony as to the short-term health effects of mold exposure
after finding that portion of the testimony to be scientifically valid and pertinent to the
facts in issue. Having reviewed the pertinent portions of the record, we are unable to
conclude the trial court abused its discretion.
VIII. EVIDENCE OF COLLATERAL DAMAGES
Finally, Davis contends the trial court erred in excluding evidence of “a
number of items of damages” which allegedly flowed directly from the negligent acts
charged against Fischer and Messer. These damages included the cost to purchase a
motor home, the cost to purchase a second residence including duplicative tax and utility
8
We note Bernstein did not make his diagnosis of irritant-induced asthma until approximately
one year after Davis vacated the residence, and was unable to conclusively state the cause of the
asthma was mold-related. Furthermore, Bernstein was unaware Davis had reported being
asthmatic to another physician approximately one year prior to moving into the residence.
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payments on such residence, the cost of purchasing furnishings for the second residence,
proof of stigma damages associated with mold contamination, and proof of emotional
distress and depression. While the trial court's ruling on this issue appears to deal
exclusively with evidentiary matters, in actual fact this is a question of law. The trial
court excluded the evidence only after making a determination as a matter of law that
Davis was not entitled to recovery for these damages. “Our review of a question of law is
de novo as contrasted with the deferential standard to which we are held as to questions
of fact.” New v. Commonwealth, 156 S.W.3d 769, 774 (Ky.App. 2005) (citing Faust v.
Commonwealth of Kentucky, Tourism Development Cabinet, Department of Parks, 142
S.W.3d 89, 96 (Ky. 2004)).
After hearing the arguments of counsel, the trial court ruled Davis would be
allowed to offer evidence related to damages sustained within a “reasonable time”
following the discovery of the alleged mold contamination. In order to define this time
period, the trial court relied upon testimony from Davis' own remediation expert that the
residence could be repaired and returned to a safe state for habitation within a period of
two months. Thus, the trial court ruled Davis could, at most, be potentially entitled to
damages incurred only within that two month time period. However, Davis wished to
produce testimony regarding the motor home purchased seven months after the initial
discovery of mold, as well as the purchase and associated costs of the second home which
occurred approximately two and one-half years later. The trial court ruled these expenses
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were not incurred within a reasonable time and excluded any testimony regarding same.
We hold the trial court did not err in this ruling.
Davis was unable to provide evidence that the excluded damages were
incurred as a natural consequence of the negligent actions of Fischer or Messer. Fischer
had offered to pay for alternative living arrangements while remediation work was
performed on the Davis residence. Further, Fischer had offered Davis a per diem stipend
while such work was being performed. Both of these offers were categorically refused
by Davis. Thus, Davis could not thereafter complain that alternative living expenses
incurred during the period of disagreement should be the responsibility of Fischer or
Messer. This is especially true in light of the fact that the disagreement continued for an
extended period prior to the filing of the instant action, and that the litigation below
continued for a period in excess of two years. To hold Fischer or Messer responsible for
such expenses would lead to an absurd state of the law, one in which a party allegedly
wronged by another could increase the damages due him by merely extending the period
of disagreement and subsequent litigation. It is well-settled in this Commonwealth that a
party must mitigate his damages. See Howard v. Adams, 246 S.W.2d 1002 (Ky. 1952)
(an award of damages for loss of use must be based on a reasonable time to effectuate
repairs and unnecessary delay by owner before undertaking repairs or time consumed in
negotiations for settlement cannot be considered as a part of such reasonable time).
Davis failed to so mitigate and the trial court correctly refused to allow evidence
regarding such exaggerated damages.
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Next, we hold the trial court properly denied Davis's request to introduce
evidence regarding stigma damages associated with ownership of a residence
contaminated with mold. First, Davis failed to provide any reliable evidence as to the
appropriate amount of such damages. The only testimony offered was by avowal of a
real estate appraiser who admitted any testimony he could offer on the subject would be
speculative at best. Such speculative testimony is insufficient to be presented to a jury.
Further, Kentucky law does not allow for recovery for damages to the reputation of real
estate. See Morgan v. Hightower's Adm'r, 291 Ky. 58, 163 S.W.2d 21, 22 (Ky. 1942).
Finally, in direct contravention of an order of the trial court, Davis himself placed large
signs in or on the home declaring it to be contaminated with mold due to construction
defects. By doing so, Davis's own intentional actions severely exacerbated the very
stigma for which he now seeks damages. Therefore, we hold the trial court did not err in
excluding evidence regarding stigma damages as a party should not be rewarded for such
insidious actions.
Davis's final contention regarding the exclusion of damage evidence relates
to emotional distress and depression allegedly resulting from the mold contamination.
However, Davis fails to note that his own treating psychiatrist refused to testify on his
behalf. Such refusal to testify effectively eliminated all reliable evidence regarding
Davis's alleged psychological or psychiatric diagnoses, which ultimately resulted in
Davis withdrawing his claim for mental and/or psychological injuries and damages. The
trial court did allow Davis to testify as to his own mental state, and as to how his
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relationships and behavior had been affected. Furthermore, the trial court permitted an
instruction on mental suffering resulting from the exposure to mold while occupying the
residence. Based on these facts, we are unable to hold the trial court committed error.
Having held all of Davis's claims of error to be without merit, we hold the
cross-claims of Fischer and Messer regarding supposed errors in the jury instructions as
to damages to the real property are therefore moot and require no further discussion.
Therefore, for the foregoing reasons, the trial order and judgment of the Kenton Circuit
Court is affirmed.
KNOPF, SENIOR JUDGE CONCURS.
ABRAMSON, JUDGE, CONCURS AND FILES SEPARATE OPINION.
ABRAMSON, JUDGE, CONCURRING: I concur with the disposition of
the issues raised on appeal. I write separately to clarify that my concurrence regarding
the Opinion Letter is based on harmless error analysis. As we note, there was never any
evidence that the gauge of the brick ties contributed in any way to the water intrusion.
Consequently, there was no harm in the use of the Opinion Letter to cross-examine the
Davises' expert on an irrelevant issue which had no effect on the substantial rights of the
parties.
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BRIEFS AND ORAL ARGUMENT FOR
APPELLANTS/CROSS-APPELLEES:
Joseph E. Conley, Jr.
Crestview Hills, Kentucky
BRIEFS AND ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT
FISCHER SINGLE FAMILY HOMES:
David A. Futscher
Covington, Kentucky
BRIEFS AND ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT DAN
MESSER MASONRY:
Otto Daniel Wolff
Edgewood, Kentucky
- 23 -
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