On November 12, 1991, the plaintiff, appellee was shopping with a friend at a T.J. Maxx department store in Akron, Ohio. While in the store, the plaintiff was confronted by a security guard who believed that she had just shoplifted a pair of gloves from the store.

She was detained in an office for a little under an hour and a half before being escorted out of the store by police. She was prosecuted for theft and found not guilty. The friend who had accompanied her on the ill-fated outing, had seen the gloves in her purse prior to their visit to T.J. Maxx.

Then Rasalon sued T.J. Maxx and four named individuals (including the security guard) on a number of counts.

Now Wait a Minute

At the trial, not only was the plaintiff’s expert witness (an expert in retail security) permitted to opine as to the credibility of the security guard, he was allowed to form that conclusion and other aspects of his opinion on the basis of the contents of documents he had viewed that were not part of the record.

He stated, for instance, that on the basis of his examination of the background of the security guard (specifically possibly false statements contained in her employment application, which was not admitted into evidence) he did not consider any statements she made to be credible.

The trial judge overruled the defense objections to admission of this evidence.

This didn’t involve just any old rule of evidence, either, but Oh. R. Evid. 703. This rule distinguishes Ohio from many other jurisdictions, including the Federal, in that experts may only draw from data of which they have personal knowledge or data admitted into evidence during the hearing.

In Rasalan, the data relied upon by the expert may not even have met the federal standard. Rasalon received judgment on her claims, with a total award in excess of two million dollars.

The Court of Appeals held that the opinion of the expert here not only intruded on the jury’s responsibility to determine the credibility of witnesses, but also relied on data not admitted into evidence as required by the Ohio rule.

Perhaps this case should stand as an argument against the system of electing judges. The entire matter was vacated and remanded for a new trial because either the trial judge didn’t bother to read the rules of evidence, or he didn’t care.