Calderon v. Sharkey
| Decision Date | 23 June 1982 |
| Docket Number | No. 81-1315,81-1315 |
| Citation | 70 Ohio St.2d 218,24 O.O.3d 322,436 N.E.2d 1008 |
| Parties | , 24 O.O.3d 322 CALDERON, Appellee, v. SHARKEY, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
The scope of cross-examination of a medical expert on the questions of the expert's bias and pecuniary interest and the admissibility of evidence relating thereto are matters that rest in the sound discretion of the trial court.
Appellee, Anne E. Calderon, suffered injuries when the automobile in which she was riding as a passenger was involved in an accident with a vehicle operated by appellant, Judith A. Sharkey, in July 1978. Appellee subsequently filed a complaint against appellant in the Court of Common Pleas of Stark County. The complaint alleged that appellant had been negligent and sought $75,000 in damages for the injuries appellee had sustained.
Appellant admitted her negligence and trial was held on the questions of damages and proximate cause. Prior to trial appellee had served a subpoena duces tecum on appellant's medical expert, Dr. Edward Hanley. 1 Appellant filed a motion to quash and a motion in limine regarding the materials identified in the subpoena, which motions were sustained. Appellant's medical expert testified at the trial. On cross-examination appellee sought to elicit testimony regarding the expert's preparation of reports and court appearances in previous cases in which appellant's counsel was involved. Appellant objected repeatedly to this line of questioning. The court sustained two of the objections but overruled several others.
The jury awarded appellee $3,100. She appealed to the Court of Appeals claiming, inter alia, that the trial court erred in limiting the scope of cross-examination. The Court of Appeals reversed in a split decision. The majority took the position that the trial court abused its discretion in sustaining the motion in limine and limiting cross-examination because "effective cross-examination of the defense expert witness was effectively prohibited on the legitimate subject of bias and interest * * *." 2
The majority below predicated its holding on the following observation:
Judge Milligan, dissenting, was satisfied that the trial judge had not abused his discretion. The dissent, relying on Evid.R. 103 and 403(B) and a thorough review of the disputed portion of the record, concluded that appellee "was armed with sufficient testimony to argue bias to the jury."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Roderick & Trifelos and George H. Trifelos, Canton, for appellee.
Vogelgesang, Howes, Lindamood, Zawaly & Brunn, Glenn W. Vogelgesang and Robert B. Daane, Canton, for appellant.
The question presented in this appeal is whether the trial court abused its discretion in limiting cross-examination on appellant's medical expert's bias and pecuniary interest. In reviewing this issue, we must keep in mind that State v. Adams (1980), 62 Ohio St.2d 151, at pages 157-158, 404 N.E.2d 144.
Appellant contends that "Ohio Rules of Evidence 103(A) and 403(B) grant a trial court broad discretion in limiting the cross-examination of a medical expert on issues of bias and pecuniary interest," and that "this discretion is not abused where the court permits a general inquiry on issues of bias and prejudice but limits its scope on the grounds of undue delay or needless presentation of cumulative evidence." In the case at bar, the trial court sustained objections to two questions in a series of questions relating to the expert's alleged bias. The two questions ruled inadmissible went to the ongoing business relationship between defense counsel and the expert and the number of times the expert had testified for defendants in the previous year. The court allowed questions going to the expert's fees, the frequency of his testimony in the then current year, and his exclusive appearances for defendants. 3
The record indicates that the court permitted appellee to inquire into the expert's financial interest at some length, and the jury was made abundantly aware that Dr. Hanley would be paid by appellant's counsel for the services he performed in connection with the instant litigation. Thus, notwithstanding the two excluded questions appellee had a sufficient evidentiary basis to argue on the issues of bias and pecuniary interest, which issues were squarely before the jury by virtue of the testimony that the court deemed admissible on these matters. 4
Evid.R. 403(B) grants the trial court discretion to limit questioning if the "probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence." The trial court apparently was of the view that the excluded questions would delay the proceedings or be cumulative. We are not prepared to say that in ruling these questions inadmissible the trial court's attitude was unreasonable, arbitrary, or unconscionable. It is important to remember that the question before this court is not whether the trial court ruled as we would have ruled if confronted with these questions, but whether the court abused its discretion so as to prejudice appellee. We stated that general rule in O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163, 407 N.E.2d 490:
Although the O'Brien case was not decided under the rules, the principle enunciated therein remains applicable pursuant to Evid.R. 102. 5 Thus O'Brien and now the rules stand for the proposition that close evidentiary questions are within the domain of the trial court. 6
The Court of Appeals majority seemed to assume the bias of medical experts. The opinion below cast somewhat sinister aspersions on doctors who forsake clinical practice to testify in court. In accordance with this view, the majority would have allowed extensive questioning on all matters touching upon the expert's business practices and his relationship with defense counsel irrespective of cumulativeness and collaterality. The court below has apparently established a double standard for expert witnesses whereby "a healer of the sick" is ipso facto more credible than "a professional witness." It is this characterization of medical experts that has prompted the amicus, Ohio State Medical Association, to file its brief in this cause.
The amicus argues that the dichotomy developed by the court below is faulty because "(t)he rules regarding discovery and cross-examination of treating physicians who appear as witnesses, and examining physicians who appear as expert witnesses, are essentially the same, and the participation at trial of both types of witnesses is necessary to the proper disposition of medically-related litigation in this state." We agree with the amicus that the rules do not support the distinction drawn by the Court of Appeals' majority. 7 Evidence of bias and pecuniary interest is a legitimate subject of inquiry of all expert witnesses within the limits imposed by the trial court in the reasonable exercise of its discretion. One category of otherwise competent experts, however, is not to be singled out as a matter of law to be questioned more extensively and to be required to produce more detailed records than other experts on matters relating to bias and prejudice. If in a particular case it appears to the trial judge that a medical expert, or for that matter, a treating physician, should be cross-examined in considerable detail on bias and interest, then we are confident that the court will permit a party to pursue this line of questioning. If, on the other hand, it appears that digressive excursions into the expert's past dealings serve no useful purpose in demonstrating bias and interest, then the court may properly limit the scope of the inquiry pursuant to Evid.R. 403(B).
We should stress the salient point that we do not hereby create any per se rule with respect to the scope of cross-examination on the subject of an expert witness' bias and financial interest. To the contrary, we hold, consistent with O'Brien and Evid.R. 403(B), that the scope of cross-examination of a medical expert on the question of the expert's bias and pecuniary interest and the admissibility of evidence relating thereto are matters that rest in the sound discretion of the trial court. Accordingly, the trial judge did not err either in excluding the disputed questions or in sustaining appellant's motion in limine. 8
For the reasons hereinbefore stated the judgment of the Court of Appeals is reversed.
Judgment reversed.
HOLMES, J., concurs in the syllabus and judgment.
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