 [Cite as Hetzer-Young v. Elano Corp., 2014-Ohio-1104.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    GREENE COUNTY

 REBECCA HETZER-YOUNG, et al

         Plaintiffs-Appellants

 v.

 ELANO CORPORATION, et al.

         Defendants-Appellees

 Appellate Case No.      2013-CA-32

 Trial Court Case No. 2011-CV-597


 (Civil Appeal from
 (Common Pleas Court)
                                               ...........

                                               OPINION

                               Rendered on the 21st day of March, 2014.

                                               ...........

BRADLEY STOLL, Atty. Reg. No. 2263, 1710-12 Locust Street, Philadelphia, Pennsylvania 19103,
MARY JANE TRAPP, Atty. Reg. No. 0005315, 1400 West Sixth Street, Suite 400, Cleveland, Ohio
44113, THOMAS INTILI, Atty. Reg. No. 0036843, 130 West Second Street, Suite 310, Dayton, Ohio
45402
       Attorneys for Plaintiffs-Appellants

ELIZABETH B. WRIGHT, Atty. Reg. No. 0018456, ANDREW H. COX, Atty. Reg. No. 0071459,
STACEY A. GREENWELL, Atty. Reg. No. 0077909, CONOR A. McLAUGHLIN, Atty. Reg. No.
0082524, 3900 Key Center, 127 Public Square, Cleveland, Ohio 44114
      Attorneys for Defendant-Appellee
                                                                                             2



                                                   .............

WELBAUM, J.

        {¶ 1}      The Plaintiffs-Appellants in this case are Rebecca Hetzer-Young, individually

 and as personal representative of the Estate of Michael Young; Anise Nash, individually and as

 personal representative of the Estate of Ginny Young, deceased; and Elizabeth Lampe,

 individually and as personal representative of the Estate of Charles Lampe, deceased

 (collectively, “Plaintiffs”).   The Defendants-Appellees are Elano Corporation and Unison

 Industries, LLC (collectively, “Unison”).

        {¶ 2}      Plaintiffs contend that the trial court erred in granting summary judgment in

 favor of Unison. The decision was based on the court’s earlier ruling, which excluded all of

 Plaintiff’s expert testimony on causation as a sanction for spoliation of evidence. Plaintiffs

 further contend that the trial court abused its discretion in relying solely upon the testimony of a

 defense expert without first ruling on a pending Daubert challenge to the expert’s testimony. In

 addition, Plaintiffs maintain that the trial court abused its discretion by striking spoliation

 rebuttal affidavits, and in failing to consider arguments supporting equitable relief from the

 court’s spoliation judgment.

        {¶ 3}      We conclude that the trial court abused its discretion in awarding sanctions for

 alleged spoliation of evidence and precluding Plaintiffs from presenting expert testimony on

 causation. Because the trial court based its summary judgment decision on the lack of evidence

 of causation, summary judgment was also not properly rendered in favor of Unsion.

        {¶ 4}      We further conclude that the remaining assignments of error are moot, due to

 the disposition of the assignment of error relating to spoliation and summary judgment.
                                                                                            3


Accordingly, the judgment of the trial court will be reversed, and this cause will be remanded for

further proceedings.



                                I. Facts and Course of Proceedings

       {¶ 5}      On March 13, 2005, Dr. Michael Young took his daughter, Ginny Young, and

Ginny’s boyfriend, Charles Lampe, for a short flight in his 1974 Grumman AA-5 Traveler

airplane. Dr. Young had previously purchased the airplane in November 2003.

       {¶ 6}      After briefly cruising in the area of the Lawrence County Airport in Chesapeake,

Ohio, Dr. Young made two approaches to Runway 26, but did not land the airplane. On the

second attempt, the airplane cleared some trees at the end of the runway, went into an

aerodynamic stall, and crashed. The airplane then caught on fire. All three occupants of the

plane were killed as a result of the crash.

       {¶ 7}      Initially, the National Safety Transportation Board (NTSB) had custody of the

wreckage.      After NTSB released the wreckage, Plaintiffs first inspected the wreckage on

November 7, 2005, at storage facilities at the Sandusky Regional Airport. At that time, the

components of the aircraft engine were visually inspected and photographed. According to

Allan Fielder, one of Plaintiffs’ experts, the entire exhaust system was distorted by impact forces.

       {¶ 8}      The next inspection occurred at Anglin Aircraft Recovery (“Anglin”) on

December 14, 2005, after the wreckage had been transported to Anglin’s facility. Among those

present were various representatives of Plaintiffs, including Fielder.       Also present were a

representative of Lycoming Engineers, which had manufactured the airplane engine (a Lycoming

O-329-E2G), and a representative (Hope Alexander) of Aviation Adjusting Associates, an
                                                                                            4


independent adjusting firm that had been retained by Global Aerospace (“Global”). Global

insured the airplane and was the custodian of the wreckage.

       {¶ 9}     At the time of the initial inspection, no muffler manufacturer had been

identified. Both Fielder’s and Lycoming’s experience was that any identifying marks would be

on the muffler assembly itself. However, the muffler did not contain any identifying marks.

The muffler had been replaced in 1987, but the shroud on the muffler was original to the

airplane’s manufacture in 1974. In a subsequent inspection, the shroud of the muffler was

cleaned and was found to contain the Elano name (Unison’s predecessor), with a part number

and manufacture date.

       {¶ 10}    The inspection in December 2005 indicated that the shroud, outer case, header

pipe, and tailpipe of the muffler had all been deformed by impact damage. The inspection

further revealed that deformation of the outlet stack for the muffler impaired the participants’

ability to view the internal flame tube of the muffler. Accordingly:

                After discussions with the representatives of the insurer of the aircraft

       (custodian of the wreckage) and the engine manufacturer a decision was made to

       remove the outlet stack for a better view of the internal flame tube of the muffler.

       * * * The internal flame tube fragments were lodged in place in the area of the

       muffler outlet; however, the entire flame tube could not be viewed through the

       outlet stack. A pressure or flow test of the muffler was not feasible and would

       not have reliable results due to the damaged state of the muffler assembly. It was

       agreed by the parties present at the inspection to use a precision milling machine

       to cut open the muffler canister. This equipment would reduce the possibility of
                                                                                          5


          damaging the internal components of the muffler. * * * Doc. #16, Exhibit D, June

          30, 2010 Affidavit of Allen Fieldler, p. 4, ¶ 12.

          {¶ 11}   Subsequently, on August 21, 2006, McSwain Engineering received the

propeller, engine, and engine accessories, including the muffler, from Anglin. McSwain had

been retained to provide expert opinions to Plaintiffs. In March 2007, Plaintiffs filed suit

against Lycoming and various other defendants, including Unison, in the Cuyahoga County Court

of Common Pleas. Unsion did not assert spoliation as an affirmative defense at that time.

          {¶ 12}   After Unison requested an inspection of the muffler assembly, an inspection was

held at McSwain Engineering on October 9, 2007. At that inspection, Unison did not ask that

the muffler housing be re-secured for purposes of performing muffler air flow testing.

          {¶ 13}   On June 24, 2008, representatives of the defendants in the court action,

including Unison, attended another joint inspection. At that time, small pieces of the internal

baffle of the muffler were sectioned, or cut, so that optical and electron microscopic examination

and chemical analysis could be performed. This would not have affected the ability to perform

muffler air flow analysis, and Unison did not object to this process. Unison also did not ask that

the muffler housing be re-secured for purposes of air flow testing prior to the sectioning of the

baffle.

          {¶ 14}   In a report dated July 15, 2008, Plaintiffs’ expert, Dr. Donald Sommer, stated

that the crash was caused by the aircraft’s inability to remain airborne after departure due to a

power loss. Sommer attributed the power loss to a plugged muffler exit due to deterioration of

internal components, exacerbated by a carburetor float that was of an “old, composite style

incapable of producing the correct fuel/air ratio.” Doc. #16, Exhibit C, Affidavit of Donald
                                                                                           6


Sommer, p. 1, ¶ 1, and Exhibit B attached to the Sommer Affidavit, p. 15.

       {¶ 15}    Pursuant to Unison’s request, the muffler parts were shipped to Unison’s expert,

Fowler, Inc., and a further inspection was held at that facility on September 4-5, 2008.

Previously, on August 4, 2008, Unison had alerted Plaintiffs’ counsel to a potential spoliation

defense, but did not assert the specific nature of the claim. Despite this assertion, Unison did

not attempt to reseal the muffler for purposes of air flow testing; instead, Unison cut the muffler

into separate parts, which precluded resealing of the muffler to allow air flow testing.

       {¶ 16}    Subsequently, Unison’s experts issued several reports regarding the cause of the

accident. On October 7, 2008, Dr. Gary Fowler, of Fowler, Inc., concluded that there was no

evidence of a metallurgical defect in the muffler components.           He further concluded that

oxidation of the baffle walls and end caps occurred gradually during engine operation, causing

likely separation of small pieces that would have passed out from the exhaust (meaning,

therefore, that the pieces would not have plugged the muffler). Doc. #137, Exhibit A, p. 4.

       {¶ 17}    In a report dated September 30, 2008, Dr. Lee Swanger, of Exponent, Inc.,

concluded that the material used to construct the muffler (type 321 stainless steel), was an

acceptable choice for the construction of mufflers on the type of aircraft involved, subject to

periodic inspections to detect impending failure, and that the thickness of deposits on the baffle

indicated that the baffle did not fracture during the March 13, 2005 flight, but was fractured for

some period of time prior to the accident. Doc. #137, Exhibit C, p. 4.

       {¶ 18}    In addition, in a report dated October 1, 2008, defense expert, Dr. C. Dennis

Moore, noted that a slow-turning engine, like the one used on the subject airplane, would not be

greatly affected by exhaust back pressure. Doc. #137, Exhibit D, p. 6. Moore also concluded
                                                                                            7


that Dr. Sommer’s exemplar testing, which produced a back pressure of 3.9 psi by blocking the

tailpipe with a piece of flame cone, would not have a significant effect on the output horsepower

of the subject engine. Id.    Moore was also critical of Plaintiffs for failing to use a borescope

prior to cutting the muffler open, and for opening the muffler and precluding Unison’s ability to

test internal back pressure of the muffler during operation. However, Moore conducted his own

back flow tests with an exemplar muffler, and rejected the possibility of any significant loss of

horsepower to the engine using a range of back pressures produced by various blockages,

including the blockages used by Plaintiffs’ expert during his tests. Id. at pp. 6-7,14-25, and 36.

       {¶ 19}    Finally, William Jeffrey Edwards of Aviation Safety Consulting Services

(Avsafe), concluded that Dr. Young caused the accident by failing to meet the standard of care

required of pilots in maintaining and operating an airplane. Doc. #137, Exhibit C., pp.7-9, and

14-15. Edwards further stated that the condition of the muffler had no bearing on the accident.

Id. at p. 16, ¶ 18. Instead, Edwards stated that:

                Exemplar flights were conducted at Lawrence County Airpark on June 5,

       2008 to better understand the location of the touchdown and rotation as reported

       by the eyewitness and to gain information on local flying conditions at the

       accident Airpark. Exemplar flying confirmed that the late go around decision by

       Dr. Young would not leave enough distance to safely clear the trees. Based on

       the exemplar flying at the Lawrence County Airpark, the cause of the accident was

       Dr. Young’s failure to landing [sic] in the landing zone and his late decision to

       abort the landing and to attempt a go around that result[ed] in the subsequent stall

       of the aircraft. Id. at pp. 33-34, Section 1.17, ¶ 1.
                                                                                           8


       {¶ 20}    The airplane involved in the accident was sold to its first purchaser in 1974, and

was more than 30 years old at the time of the accident. In the original action in Cuyahoga

County, the trial court granted summary judgment in favor of several defendants, including

Lycoming and Unison, based on the 18-year statute of repose in the General Aviation

Revitalization Act of 1994, 49 U.S.C. 40101. See Hetzer-Young v. Precision Airmotive Corp.,

184 Ohio App.3d 516, 2009-Ohio-5365, 921 N.E.2d 683, ¶ 2 and 23-24 (8th Dist.). On appeal,

the Eighth District Court of Appeals reversed the judgment in part, and affirmed in part. The

court of appeals held that summary judgment had been improperly rendered in Unison’s favor,

due to the existence of genuine issues of material fact concerning whether a new replacement

muffler had been installed in August 1987, which would have been within 18 years of the March

2005 accident. Id. at ¶ 54-55.    The judgment was affirmed, however, with respect to the other

defendants. Id. at ¶ 56-80.

       {¶ 21}    The decision of the court of appeals was issued on October 8, 2009.

Subsequently, Plaintiffs dismissed the action without prejudice, pursuant to Civ.R. 41(A)(1)(a),

in September 2010. They refiled the action against Unison in the Montgomery County Court of

Common Pleas in November 2010. In June 2011, the case was transferred to the Greene County

Common Pleas Court because Unison’s principal place of business was in Greene County, rather

than Montgomery County. The action then proceeded in Greene County.

       {¶ 22}    Plaintiffs’ complaint against Unison asserted several counts, including strict

liability, negligence, misrepresentation, concert of action, and willful, wanton, and outrageous

conduct. Unison’s answer raised various defenses, including the contention that Plaintiffs’

complaint should be dismissed, based on Plaintiffs’ spoliation of critical evidence. In July 2012,
                                                                                          9


the trial court filed a supplemental case management order, indicating that trial would take place

in June 2013. Discovery was to be completed by November 1, 2012, and the deadline for filing

summary judgment motions was November 15, 2012.

       {¶ 23}    On November 14, 2012, Unison filed a motion for sanctions based on Plaintiffs’

alleged spoliation of evidence. In the motion, Unison alleged that Plaintiffs failed to properly

document or photograph the muffler’s immediate post-accident condition using a borescope.

Unison also alleged that it had been deprived of an opportunity to conduct a back pressure test on

the muffler because Plaintiffs had cut open the muffler. Unison, therefore, asked the court to

either dismiss the complaint or preclude Plaintiffs’ experts from testifying that the muffler’s

condition caused or contributed to a loss of power to the engine. Unison also filed a motion for

summary judgment on the same day. Among other things, Unison argued that without expert

evidence of causation, Plaintiffs would not be able to establish that Unison’s product caused the

accident.

       {¶ 24}    On November 15, 2012, Plaintiffs also filed a motion for sanctions, based on

Unison’s alleged spoliation of evidence. In this regard, Plaintiffs argued, first, that Unison’s

spoliation motion had no merit, because the muffler in its post-accident condition did not

resemble its pre-impact state in terms of blockage. Plaintiffs’ second argument was that the

back pressure created by the compressed muffler canister, which was damaged by the impact,

was completely irrelevant to the pre-impact condition of the muffler.          Finally, Plaintiffs

contended that by cutting the muffler into pieces in September 2008, Unison precluded Plaintiffs

from being able to defend against the spoliation defense. During November 2012, both sides

also filed motions to exclude testimony of expert witnesses.
                                                                                         10


       {¶ 25}    In January 2013, the trial court issued a judgment entry granting Unison’s

motion for sanctions. The court ordered that Plaintiffs would be precluded from offering any

opinion testimony concerning the post-crash condition of the muffler, including any opinions

related to or based on deterioration of the flame cone and its end cap, and any resulting increase

in back pressure and decrease in engine power. The court also held that Plaintiffs’ motion for

spoliation was moot, and did not address the merits of the motion.

       {¶ 26}    Following the court’s decision, Plaintiffs filed a motion for relief from the

January 11, 2013 order. They also filed various affidavits challenging the testimony of defense

expert, Dr. Moore. In March 2013, the trial court denied Plaintiffs’ motion for relief, and

granted a motion Unison had filed, challenging the admission of the affidavits, which were from

new expert witnesses. Subsequently, in May 2013, Plaintiffs filed another motion for relief

from judgment and for sanctions. This motion was based on the fact that Global was Unison’s

insurance carrier, and had consented at the December 2005 inspection to the opening of the

muffler. Various other motions, primarily motions in limine to exclude expert and witness

testimony, were filed by both sides during May 2013. Without ruling on any of these motions,

the trial court issued an entry on May 14, 2013, granting Unison’s motion for summary

judgment. The court concluded that in view of the sanction imposed in the spoliation entry,

there was insufficient evidence for Plaintiffs to be able to survive summary judgment. The same

day, the trial court filed an amended entry granting summary judgment to Unison.

       {¶ 27}    Plaintiffs appeal from the January 11, 2013 spoliation entry, the March 1, 2013

entry granting Unison’s motion to exclude Plaintiffs’ late-disclosed expert opinions and denying

relief from the January 11, 2013 entry, and the May 14, 2013 amended entry granting Unison’s
                                                                                         11


motion for summary judgment.



                   II. Did the Trial Court Err in Granting Summary Judgment

                            Based on Its Earlier Spoliation Decision?

       {¶ 28}    Plaintiffs’ First Assignment of Error states that:

                The Trial Court Erred as a Matter of Law in Awarding Summary Judgment

       to Appellees in this Products Liability Action Based upon and as a Consequence

       of Its Earlier Order Excluding All of Appellant’s Experts’ Causation Testimony as

       a Sanction for “Spoilation” of Evidence.

       {¶ 29}    Under this assignment of error, Plaintiffs argue that opening a window in the

muffler (which could have been resealed), in order to examine the interior was an accepted

investigative technique and was not a material or prejudicial change in the muffler.   Plaintiffs,

therefore, maintain that the trial court erred in granting the motion for sanctions, and in

subsequently basing its summary judgment decision on the lack of evidence of causation.

Conversely, Unison maintains that all requirements for spoliation have been met, and that

preclusion of the testimony was appropriate.

                In product liability cases where evidence is intentionally or negligently

       “spoiled” or destroyed by a plaintiff or his expert before the defense has an

       opportunity to examine that evidence for alleged defects, a court may preclude any

       and all expert testimony as a sanction for “spoliation of evidence.” In such cases,

       the intent of the spoliator in destroying or altering evidence can be inferred from

       the surrounding circumstances. In other words, intent can be inferred from the fact
                                                                                          12


       that the evidence was destroyed prior to the commencement of any litigation

       against the defendant and there is only a potential for litigation. Therefore, the

       plaintiff is under a duty to preserve evidence which it knows or reasonably should

       know is relevant to the action.      (Citations omitted.)   Cincinnati Ins. Co. v.

       General Motors Corp., 6th Dist. Ottawa No. 94OT017, 1994 WL 590566, *3

       (Oct. 28, 1994).

       {¶ 30}    In such situations, “the defendant must first establish (1) that the evidence is

relevant; (2) that the plaintiff's expert had an opportunity to examine the unaltered evidence; and

(3) that, even though the plaintiff was contemplating litigation against the defendant, this

evidence was intentionally or negligently destroyed or altered without providing an opportunity

for inspection by the defense.” Id. at *4, citing Hirsch v. General Motors Corp., 266 N.J.Super.

222, 628 A.2d 1108, 1118 (1993). Once this threshold showing has been made:

       “[T]he burden then shifts to the proponent of the evidence to prove that the other

       side was not prejudiced by the alteration or destruction of the evidence. The test

       for prejudice is whether there is a reasonable possibility, based on concrete

       evidence, that access to the evidence which was destroyed or altered, and which

       was not otherwise obtainable, would produce evidence favorable to the objecting

       party.” Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d at 804, citing

       Bright v. Ford Motor Co. (1990), 63 Ohio App.3d 256, 578 N.E.2d 547. In

       applying this test, the trial court “must determine the degree of prejudice to the

       defendant and impose a sanction commensurate with that degree of prejudice.”

       Loukinas v. Roto-Rooter Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855
                                                                                                                                   13


         N.E.2d 1272, ¶ 14 (1st Dist.), quoting Cincinnati Ins. Co. at *4.1

         {¶ 31}        Review of a spoliation ruling “requires a determination of whether the trial

court abused its discretion in determining an appropriate sanction.” Holiday v. Ford Motor Co.,

8th Dist. Cuyahoga No. 86069, 2006-Ohio-284, ¶ 26, citing Transamerica Ins. Group v. Maytag,

99 Ohio App.3d 203, 205, 650 N.E.2d 169 (9th Dist. 1994). See, also, Simeone v. Girard City

Bd. of Edn., 171 Ohio App.3d 633, 2007-Ohio-1775, 872 N.E.2d 344, 355, ¶ 69 (11th Dist.).

         {¶ 32}        An abuse of discretion “ ‘implies that the court's attitude is unreasonable,

arbitrary or unconscionable.’ ” (Citation omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983). However, “an abuse of discretion most commonly arises from a

decision that was unreasonable.” (Citations omitted.) Wilson v. Lee, 172 Ohio App.3d 791,

2007-Ohio-4542, 876 N.E.2d 1312, ¶ 11 (2d Dist.). “Decisions are unreasonable if they lack a

sound reasoning process to support them.”                               Id., citing AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

         {¶ 33}        In contending that the trial court did not abuse its discretion, Unison argues that

the court’s error must have been more than an error of law. However, as we recently stressed,

“We have rejected the more-than-an-error-of-law formulation for abuse of discretion, concluding

that ‘[n]o court * * * has the authority, within its discretion, to commit an error of law.’ ” State

v. Pierce, 2011-Ohio-4873, 968 N.E.2d 1019, ¶ 72 (2d Dist.), quoting State v. Beechler, 2d Dist.



            1
                We note that Nationwide Mut. Fire Ins. Co. was overruled in 2009, insofar as it held state law applicable to federal spoliation.
 Instead, federal courts have inherent power to craft spoliation sanctions. See Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir.2009).
 However, federal and Ohio law apply the same standards with respect to the threshold showing of relevance, the duty to preserve, and so
 forth. See R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F.Supp.2d 878, 887 (N.D.Ohio 2009).
                                                                                                                                14


Clark No. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.

         {¶ 34}        After reviewing the record in the case before us, we conclude that the trial court

abused its discretion in imposing sanctions for spoliation of evidence. Based on the damaged

condition of the muffler from the crash, testing the damaged muffler for back pressure would be

of marginal, if not questionable relevance. The more relevant and determinative evidence is the

defense expert’s successful back pressure testing of an identical, intact muffler, and his

conclusion that a range of back pressures and blockages, including those set forth by Plaintiffs,

would not affect engine operability.2

         {¶ 35}        In this regard, we note that the October 1, 2008 report of Dr. Moore (the only

defense expert to claim the effects of spoliation) indicates that Dr. Moore pressure-tested an

exemplar muffler as well as a muffler that had been cut to resemble the subject flame cone, based

on the earliest photographs available. Motion of Defendants Elano Corporation and Unison

Industries, LLC, for Sanctions for Spoliation of Evidence, Docket #91, Exhibit A attached to the

Affidavit of C. Dennis Moore, pp. 14-25. In this regard, Dr. Moore noted that “Although no

large, loose flame cone pieces were found in the muffler, and it is virtually certain that the flame

cone deteriorated with small pieces being expelled one by one, the cut out flame cone piece

represents the largest possible flame cone blockage, however improbable. The cut end cap

represents the maximum possible blockage that the subject muffler could have seen.” Id. at p.

17. Based on his test results, Dr. Moore concluded that:

                    A slow-turning engine, such as an O-320, is not greatly affected by back

           2
               Generally, back pressure refers to increased pressure of exhaust gases exiting an engine when restricted by the exhaust system.
 Back pressure generally has an inverse relationship to engine power. Doc.# 16, Exhibit C, September 2, 2010 Affidavit of Donald Sommer,
 ¶ 12.
                                                                                         15


       pressure. Thus, it is not surprising that Exponent’s testing demonstrated that,

       across a range of back pressures produced by various blockages, including ones

       similar to that used by Mr. Donald Sommer in his tests, there was no significant

       effect on horsepower. Mr. Sommer’s own tests also demonstrate the lack of

       sensitivity of the engine output to back pressure. Id. at p. 36.

       {¶ 36}    As an additional matter, Plaintiffs provided the trial court with evidence, prior

to the court’s spoliation decision, that sectioning of an exemplar muffler in the same manner as

was done to the subject muffler, followed by resealing of the muffler and application of pressure,

“demonstrated that a muffler housing, sectioned the same as the subject muffler during the

plaintiffs’ initial inspection, could be resealed and would perform the same as its original

condition in a static pressure test.” Doc. #16, Exhibit B, August 31, 2010 Affidavit of Richard

H. McSwain, PhD., P.E., ¶ 12.     Accordingly, we see no possible prejudice to Unison from the

opening of the muffler.

       {¶ 37}    Furthermore, with respect to the borescope, Unison failed to establish the

relevance of this procedure. As was noted, the muffler was significantly damaged as a result of

the crash. There is also no evidence that the internal pieces of the muffler were disturbed in any

way when the cover of the muffler canister was cut with a precision saw and rolled back. Dr.

Moore admitted that both a borescope and opening the canister would allow access for telling

what parts had been deformed in the crash. Plaintiffs’ Memorandum of Law in Support of their

Motion to Preclude Testimony from Defense Expert, Dennis Moore, Doc. #100, Exhibit H,

Deposition of C. Dennis Moore, pp. 77-78.

       {¶ 38}    Dr. Moore expressed the opinion that pieces of the flame cone “may” have been
                                                                                            16


lost, but there is no evidence that this occurred. Id. at p. 81-82. To the contrary, the evidence

indicated that the cover was carefully cut and rolled back so that the parties conducting the

inspection could look at the interior of the muffler. However, once again, this matter is of little

relevance, because the issue, according to both sides, was whether the back pressure from the

muffler exhaust caused the engine to lose power. Dr. Moore was able to conduct testing of an

exemplar muffler and opine that the maximum possible blockage across the potential ranges of

back pressure would have not caused the engine to lose power.

       {¶ 39}    Accordingly, the trial court’s decision to grant Unison’s motion for spoliation

was an abuse of discretion. Furthermore, even if a sanction had been appropriate, the court also

abused its discretion by imposing an unreasonable sanction.

       {¶ 40}    “Ordinarily, Ohio courts have followed the policy of imposing the least severe

sanction, or at least a sanction short of outright dismissal of the action with prejudice, unless the

plaintiff's conduct evidences bad faith.” Transamerica Ins. Group, Inc., 99 Ohio App.3d at

206-207, 650 N.E.2d 169 (9th Dist.1994), citing Evans v. Smith, 75 Ohio App.3d 160, 163, 598

N.E.2d 1287 (1st Dist.1991). “The degree of prejudice suffered by the defendant is the major

consideration for determining the sanction. * * * Thus, a trial court must determine the degree of

prejudice to the defendant and impose a sanction commensurate with that degree of prejudice.”

(Citation omitted.) Holiday, 8th Dist. Cuyahoga No. 86069, 2006-Ohio-284, at ¶ 21.

       {¶ 41}    As was noted, the evidence in question was of marginal, if not questionable

relevance. By precluding Plaintiffs’ experts from testifying about “the post-crash condition of

the muffler, including any opinions relating to or based on the deterioration of the flame cone and

its end cap, and any resulting increase to back pressure and decrease in engine power,” the trial
                                                                                         17


court imposed a sanction that was unreasonable and unrelated to the degree of prejudice, if any,

that Unison suffered.

       {¶ 42}     Furthermore, the trial court’s grant of summary judgment was based solely on

the fact that Plaintiffs could not establish causation due to the exclusion of their expert

testimony.     In view of our prior conclusions regarding spoliation, the court also erred in

rendering summary judgment in favor of Unison on this basis.

       {¶ 43}     Accordingly, Plaintiffs’ First Assignment of Error is sustained. The judgments

of the trial court granting sanctions for spoliation, and the amended judgment granting summary

judgment in Unison’s favor will be reversed, and this cause will be remanded for further

proceedings.



                              III. Did the Trial Court Err in Relying

                                Solely on Dr. Moore’s Testimony?

       {¶ 44}     Plaintiffs’ Second Assignment of Error states that:

                The Trial Court Abused Its Discretion by Relying Solely upon Testimony

       of a Defense Expert Who Was the Subject of a pending Daubert Challenge

       Without First Ruling on That Challenge.

       {¶ 45}     Under this assignment of error, Plaintiffs contend that the trial court erred in

relying on the opinions of defense expert, Dr. Moore, without having first ruled on Plaintiffs’

Daubert challenge to Moore’s testimony. In response, Unison argues that the trial court is

presumed to have denied the motion, because all motions not ruled on by trial courts are assumed

on appeal to have been considered and rejected.
                                                                                        18


       {¶ 46}    In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.

2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that trial courts must act as

“gatekeepers” of scientific testimony,   This role “entails a preliminary assessment of whether

the reasoning or methodology underlying the testimony is scientifically valid and of whether that

reasoning or methodology properly can be applied to the facts in issue.” Id. at 593-594. A few

years later, the Ohio Supreme Court adopted this role for Ohio state court trial judges. See

Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735 (1998), and Terry v. Caputo, 115

Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 24.

       {¶ 47}    In Winner Bros., L.L.C. v. Seitz Elec., Inc., 182 Ohio App.3d 388,

2009-Ohio-2316, 912 N.E.2d 1180 (2d Dist.), we noted that:

                “The test for reliability requires an assessment of the validity of the

       expert's methodology, by applying with flexibility several factors set forth in

       Daubert. * * * The trial court should first assess whether the method or theory

       relied upon has been tested. * * * Next, it should consider whether the theory

       has been the subject of peer review, and then whether the method has a known or

       potential error rate[.]   * * * Finally, Daubert instructs trial courts to look at

       whether the theory has gained general acceptance in the scientific community[.]

       * * * None of these factors, of course, is dispositive of the inquiry, and when

       gauging the reliability of a given expert's testimony, trial courts should focus

       ‘solely on principles and methodology, not on the conclusions’ generated.”

       (Citations omitted.) Winner Bros. at ¶ 47, quoting Terry at ¶ 25.

       {¶ 48}    Prior to the trial court’s decision on spoliation, Plaintiffs filed a motion to
                                                                                          19


exclude Dr. Moore’s testimony, and raised the reliability of his opinion under the principles

enunciated in Daubert and Miller. See Plaintiffs’ Memorandum of Law in Support of their

Motion to Preclude Testimony from Defense Expert Dennis Moore, Doc. #100, p. 13. The trial

court issued its spoliation decision less than a month later, without having ruled on the motion to

exclude. Shortly thereafter, Plaintiffs filed a reply memorandum in support of their motion to

exclude Moore’s testimony, together with affidavits from experts in the field of thermal fluids

that strongly dispute the validity of Moore’s statements about various scientific principles

(Bernoulli’s principle, the law of conservation of mass, and Newton’s Second Law of Motion).

Moore had relied on his interpretation of these principles to support his theory that the muffler

had been materially altered so that it could not be reassembled for pressure testing. See Doc.

#133, Affidavit of Ashwani Gupta, and Doc. #134, Affidavit of Wagdi George Habashi.

       {¶ 49}    Plaintiffs additionally filed a motion, asking the trial court to reconsider its

decision on the motion for spoliation. The trial court declined to do so, and also rejected the

affidavits of Plaintiffs’ experts in March 2013. See Doc. #152, filed on March 1, 2013.

       {¶ 50}    There is logic in the contention that a court should consider a challenge to an

expert’s testimony prior to ruling on spoliation. If the scientific conclusions supporting the

expert’s claims of spoliation are invalid, there would be no reason to grant a motion for

sanctions. However, we need not consider whether the trial court abused its discretion in the

case before us, because we have already determined that the court erred in granting the motion

for spoliation. Accordingly, the Second Assignment of Error is overruled, as moot.



                          IV. Did the Trial Court Abuse Its Discretion
                                                                                           20


                         By Striking the Spoliation Rebuttal Affidavits?

       {¶ 51}    Plaintiffs’ Third Assignment of Error is as follows:

                The Trial Court Abused Its Discretion by Striking the Spoliation Rebuttal

       Affidavits Submitted in Families’ Reply Brief to the Daubert Challenge to Moore.

       {¶ 52}    Under this assignment of error, Plaintiffs contend that the trial court erred in

striking the rebuttal affidavits of Drs. Habashi and Gupta, as well as the supplemental affidavits

of Plaintiffs’ other experts that were submitted for purposes of challenging the scientific validity

of Dr. Moore’s opinions. In response to Plaintiffs’ argument, Unison contends that the trial

court did not abuse its discretion when it struck these expert opinions, because Plaintiffs had

ample time to discover Dr. Moore’s opinions regarding spoliation, and Plaintiffs’ new experts

and any supplemental opinions of prior experts were not disclosed before the deadline for

disclosing expert testimony had elapsed.

       {¶ 53}    We have previously indicated that issues pertaining to the expert opinions and

the Daubert challenge to Dr. Moore’s testimony are moot, in view of the trial court’s erroneous

imposition of sanctions for spoliation. Accordingly, the Third Assignment of Error is overruled,

as moot.



                           V. Did the Trial Court Abuse Its Discretion

                    in Failing to Consider Arguments about Equitable Relief?

       {¶ 54}    Plaintiffs’ Fourth Assignment of Error states that:

                The Trial Court Abused Its Discretion by Failing to Consider the

       Arguments Supporting Equitable Relief From the Trial Court’s Spoliation
                                                                                              21


       Judgment.

       {¶ 55}    Under this assignment of error, Plaintiffs contend that the trial court should have

considered the application of equitable estoppel. Plaintiffs’ argument in this regard relates, first,

to the participation of Global and its representative, Hope Alexander, in the December 14, 2005

inspection. Global insured the airplane and owned the wreckage at the time. Alexander, as

Global’s representative, agreed to the opening of the muffler casing at the inspection. Plaintiffs

later discovered that Global represented Unison as well as the owner of the airplane.

       {¶ 56}    As another basis for equitable estoppel, Plaintiffs rely on Unison’s failure to

imprint the muffler with identifying marks, as required by 14 C.F.R. 45.15. Finally, Plaintiffs

argue that Unison, itself, is guilty of spoliation, because its actions in cutting apart the muffler in

September 2008 precluded Plaintiffs from being able to defend against the spoliation claim.

Specifically, if Plaintiffs knew that spoliation would be based on the inability to test the muffler

for back pressure, they could have resealed it and could have demonstrated that opening the

canister had no effect.

       {¶ 57}    In responding to this assignment of error, Unison argues that equitable estoppel

is not properly part of this appeal because Plaintiffs’ Second Motion for Relief from Judgment

was not included in the notice of appeal that Plaintiffs filed. We disagree. The trial court

granted summary judgment to Unison after Plaintiffs’ May 2013 motion for relief from judgment

was briefed by both sides. As a result, we assume that the trial court overruled the motion, even

though the court did not specifically rule on it and granted summary judgment in favor of

Unison.   See, e.g., Clark Cty. Bd. of Commrs. v. Stewart, 2d Dist. Clark No. 09-CA-104,

2010-Ohio-5290, ¶ 16 (plaintiffs’ motion for relief from admissions was considered to have been
                                                                                         22


overruled when the trial court failed to rule on the motion, but instead granted summary

judgment against plaintiffs).

       {¶ 58}    Unison also argues that Alexander cannot be considered to have acted on its

behalf, because she and Global were representing a different party at the time of the December

14, 2005 inspection. In addition, Unison contends that Plaintiffs’ motion for sanctions for

spoliation was without merit, because Plaintiffs were present at the inspection when the muffler

was completely cut apart, and failed to object. Unison has not responded to the allegation of a

violation of 14 C.F.R. 45.15, based on the failure to properly label the muffler.

       {¶ 59}    Again, this assignment of error is moot, in view of our conclusion that the trial

court erred in granting the motion for sanctions and in rendering summary judgment against

Plaintiffs. Accordingly, the Fourth Assignment of Error is overruled, as moot.



                                         VI. Conclusion

       {¶ 60}    Plaintiffs’ First Assignment of Error having been sustained, and the Second,

Third, and Fourth Assignments of Error having been overruled as moot, the judgment of the trial

court is reversed, and this cause is remanded for further proceedings.




                                                   .............

FROELICH, P.J. and HALL, J., concur.
                       23


Copies mailed to:

Bradley Stoll
Mary Jane Trapp
Thomas J. Intili
Elizabeth B. Wright
Andrew H. Cox
Stacey A. Greenwell
Conor A. McLaughlin
Hon. Stephen Wolaver
