O'Brien v. Angley

• Decision Date: 16 July 1980
• Docket Number: No. 79-1309,79-1309
• Citation: 63 Ohio St.2d 159,407 N.E.2d 490,17 O.O.3d 98
• Parties: , 17 O.O.3d 98 O'BRIEN et al., Appellants, v. ANGLEY et al., Appellees.
• Court: Ohio Supreme Court

Page 159

63 Ohio St.2d 159

407 N.E.2d 490, 17 O.O.3d 98

O'BRIEN et al., Appellants, v. ANGLEY et al., Appellees.

No. 79-1309.

Supreme Court of Ohio.

July 16, 1980.

Rini, Cosiano & Pedley, Martin A. Rini and E. A. Pedley, Cleveland, for appellants.

Reminger & Reminger Co., L.P.A., and Gary H. Goldwasser, Cleveland, for appellees Drs. Angley and Bartley.

Weston, Hurd, Fallon, Paisley & Howley and Jerome S. Kalur, Cleveland, for appellee Lakewood Hospital.

PER CURIAM.

Appellants argue that it was prejudicial error for the trial court to allow appellees, over appellants' objection, to introduce in evidence excerpts from the editorial published in the Journal of the American Medical Association, since the thrust of the article involved litigable matters and its effect was to excite sympathy for appellees' cause.

The scope of cross-examination and the admissibility of evidence during cross-examination are matters which rest in the sound discretion of the trial judge. Thus, when the trial court determines that certain evidence will be admitted or excluded from trial, it is well established that the order or ruling of the court will not be reversed unless there has been a clear and prejudicial abuse of discretion. State v. Lane (1976), 49 Ohio St.2d 77, 358 N.E.2d 1081; State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035; Smith v. State (1925), 125 Ohio St. 137, 180 N.E. 695; Lima v. Freeman (1971), 27 Ohio App.2d 72, 272 N.E.2d 637.

Furthermore, it is generally recognized that the trial court's discretion in regulating the admissibility of evidence includes controlling the extent to which learned treatises may be used in the cross-examination of expert witnesses. Dolcin Corp. v. Federal Trade Comm. (C.A.D.C., 1954), 219 F.2d 742, certiorari denied, 348 U.S. 981, 75 S.Ct. 571, 99 L.Ed. 763; Lawrence v. Nutter (C.A. 4, 1953), 203 F.2d 540; Fonda v. Northwestern Pub. Serv. Co. (1940), 138 Neb. 262, 292 N.W. 712. Although the admission of learned treatises in evidence would constitute a violation of the rule against the admission of hearsay evidence, in that such evidence purports to employ testimonially a statement made out of court by a person not subject to cross-examination, 5 Wigmore on Evidence (Chadbourn Rev.), 2, Section 1362, and 6 Wigmore on Evidence (Chadbourn Rev.), 3, Section 1690, the primary justification for admitting such evidence as a limited exception to the hearsay rule is predicated upon consensus that learned treatises are inherently more trustworthy than customary forms of hearsay. 4 Weinstein's Evidence 803-253, Section 803(18)(01). This view is founded upon a recognition that learned treatises are ordinarily written for members of the author's profession and, therefore, the author is thought to have no motive to misrepresent the material construed therein. A powerful incentive exists to publish a work which will be accepted by the other members of the author's profession as a fundamentally sound and authoritative exposition of the subject. Where, however, the author publishes an article with a view toward litigation, or where he possesses a personal interest in a litigable matter, a probability of bias exists which undermines the logic supporting the admission of this material in evidence as an exception to the rule against hearsay. Such publications do not as a matter of course fall within the learned treatise exception to the hearsay rule. 6 Wigmore on Evidence, supra, at page 6, Section 1692. ³

In our view, the admission of excerpts of the editorial published in the Journal of the American Medical Association was prejudicially erroneous, as a perusal of that article indicates that it was written with a view toward litigation, and lacked the requisite indicia of objectivity and trustworthiness essential to the admissibility of such material in evidence. This editorial was not an authoritative exposition of medical theory or principle which might be characterized as a "learned treatise," but was primarily an expression of opinion by a physician concerning a controversial subject which posed a risk of litigation for his colleagues in the medical profession.

It should be noted that the erroneous admission in evidence of "learned treatises" will not justify reversal of an otherwise valid adjudication where the error does not affect substantial rights of the complaining party, or the court's action is not inconsistent with substantial justice. Civ.R. 61; R.C. 2309.59; Annotation, 60 A.L.R.2d 77, Sections 2, 10. Paragraph three of the syllabus in Hallworth v. Republic Steel Corp. (1950), 153 Ohio St. 349, 91 N.E.2d 690, states:

"Generally, in order to find that substantial justice has been done to an appellant so as to prevent reversal of a judgment for errors occurring at the trial, the reviewing court must not only weigh the prejudicial effect of those errors but also determine that, if those errors had not occurred, the jury or other trier of the facts would probably have made the same decision."

It is our conclusion that substantial justice has not been done, and that the trier of the facts would probably not have reached the same conclusion had this error not occurred. The admission of the editorial as a basis to contradict appellants' expert witness, when the publication did not qualify as a "learned treatise," placed before the jury hearsay evidence which appellants were unable to rebut by way of cross-examination. Furthermore, several passages in the editorial contained references to matters prejudicial to appellants' cause, and which had no apparent relevance to the cause except to elicit sympathy from the jury. ⁴ See Westinghouse Electric Corp. v. Dolly Madison Corp. (1975), 42 Ohio St.2d 122, 326 N.E.2d 651; cf. Hallworth v. Republic Steel Corp., supra.

Appellants also challenge the trial court's...