Clough v. Watkins
| Citation | 2020 Ohio 3446 |
| Decision Date | 19 June 2020 |
| Docket Number | Case No. 19CA20 |
| Parties | ALAN CLOUGH, Plaintiff-Appellant, v. EMILY WATKINS, Defendants-Appellees. |
| Court | United States Court of Appeals (Ohio) |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Alan Clough, Sheffield Village, Ohio, pro se appellant.
Paul R. Morway, Cleveland, Ohio, for appellee.
CIVIL CASE FROM COMMON PLEAS COURT
{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment in favor of Emily Watkins, defendant below and appellee herein. Alan Clough, plaintiff below and appellant herein, assigns the following errors for review:
{¶ 2} On October 18, 2017, appellant filed a complaint against Emily Watkins and alleged that appellee negligently operated her motor vehicle and caused personal injury to appellant.
{¶ 3} On July 31, 2019, the trial court held a jury trial. Before the trial began, however, the court addressed pending motions. Appellant asserted that he should be permitted to testify that it is common knowledge that getting struck from behind at forty-five miles per hour will cause whiplash. The court, however, stated that because appellant is not a medical expert, appellant could not testify regarding soft tissue injuries. Later, appellant testified that after the accident, he "had a lot of neck pain" and "some pain in [his] back." Appellant then attempted to introduce a report prepared by Dr. Kevin Triangle, but appellee objected. Appellee's counsel pointed out that Dr. Triangle did not personally treat or evaluate appellant, but instead reviewed medical records and prepared a report based upon his review of the records. The court sustained appellee's objection.
{¶ 4} After appellant testified, appellee requested a directed verdict and asserted that appellant did not present any evidence to establish proximate cause between the accident and appellant's injuries. The trial court granted appellee's motion and found that appellant did not present any evidence to establish causation and that he did not present any evidence to establish the amount of damages claimed.
{¶ 5} On August 8, 2019, the court dismissed the case. This appeal followed.
{¶ 6} In his first assignment of error, appellant asserts that the trial court erred by prohibiting appellant from introducing a medical report. Appellant contends that the report should be admissible as a business record.
{¶ 7} Initially, we note that appellant did not proffer the medical report. Generally, a party may not predicate error upon a ruling that excludes evidence unless the party proffers the evidence. See Evid.R. 103;1 State v. Gilmore, 28 Ohio St.3d 190, 503 N.E.2d 147 (1986). Evid.R. 103 does not require a proffer, however, when the substance of the evidence "was apparent from the context within which questions were asked." See also Gilmore, 28 Ohio St.3d at 192. In Gilmore, the court summarized the requirements for predicating error on the exclusion of evidence as follows:
[A] party may not predicate error on the exclusion of evidence during the examination in chief unless two conditions are met: (1) the exclusion of such evidence must affect a substantial right of the party and (2) the substance of the excluded evidence was made known to the court by proffer or was apparent from the context within which questions were asked.
Id.; see also State v. Davie, 80 Ohio St.3d 311, 327, 686 N.E.2d 245 (1997).
{¶ 8} In Gilmore, the court recognized that "the better practice * * * may be to proffer excluded evidence." Id. at 192. The court stated, however, that "under Evid.R. 103 a party is not required to proffer excluded evidence in order to preserve any alleged error for review if the substance of the excluded evidence is apparent to the court from the context within which questions were asked." Id.
{¶ 9} In the case at bar, we do not believe that the substance of the excluded evidence is apparent from the context. Instead, the transcript shows only that appellant wished to introduce a medical report from a doctor who appellee had retained to review appellant's medical records. The transcript does not reveal the substance of the report. Rather, the only significance of the medical report that we can gather from the transcript is that appellant believed that the report would help his case. Consequently, under these circumstances we do not believe that appellant properly preserved the alleged error for appellate review. E.g., State v. Martin, 4th Dist. Pickaway No. 04CA24, 2005-Ohio-1732, 2005 WL 850863, ¶ 43; accord State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, 844 N.E.2d 307, ¶ 67; Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34.
{¶ 10} We additionally note that appellant attached the medical report to his appellate brief. However, "a bedrock principle of appellate practice in Ohio [is] * * * that an appeals court is limited to the record of the proceedings at trial." Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13. Thus, "[a] reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter." State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. The Ohio Supreme Court has consistently enforced this holding. E.g., Morgan; State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 62; State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 50; see Saunders v. Holzer Hosp. Found., 176 Ohio App.3d 275, 2008-Ohio-1032, 891 N.E.2d 1202, fn.3 (4th Dist.) ().
{¶ 11} Moreover, assuming, arguendo, appellant had properly proffered the evidence, we would find no error. A trial court enjoys broad discretion to determine whether to admit evidence. See City of Urbana ex rel. Newlin, 43 Ohio St.3d 109, 113, 539 N.E.2d 140, 144 (1989). Accordingly, absent an abuse of discretion, an appellate court may not reverse the trial court's decision. See Rigby v. Lake Cty., 58 Ohio St.3d 269, 569 N.E.2d 1056 (1991). An abuse of discretion connotes more than an error of law or judgment. As the court stated in Huffman v. Hair Surgeon, Inc., 19 Ohio St .3d 83, 87, 482 N.E.2d 1248 (1985):
The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse" in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.
{¶ 12} Thus, an abuse of discretion will not be found when a reviewing court simply could maintain a different opinion were it deciding the issue de novo. Rather, to find an abuse of discretion, a reviewing court must determine that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. AAAA Enterprises, Inc. v. River Place Community Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597, 601 (1990).
{¶ 13} In the case at bar, appellant argues that the medical report is admissible as a business record under Evid.R. 803(6). Evid.R. 803(6) provides as follows:
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
{¶ 14} The Staff Notes to Evid.R. 803(6) explain that business records are excepted from the rule against hearsay because they carry a "circumstantial guaranty of trustworthiness." The guaranty of trustworthiness results "because [a] business cannot, as a matter of course, function without accurate records." Id.
{¶ 15} In order to be admitted into evidence, "[t]he record keeper * * * must testify that the records are such as are routinely kept as a part of the business and that the entrant (declarant) is under a duty to record the items contained in the record, and that the records are maintained accurately in accordance with a custom or routine." Id.
{¶ 16} We observe that hospital records, such as a CT scan report, generally are admissible under Evid.R. 803(6). Lambert v. Goodyear Tire & Rubber Co., 79 Ohio App.3d 15, 606 N.E.2d 983 (4th Dist.1992), citing Weis v. Weis, 147 Ohio St. 416, 424, 72 N.E.2d 245 (1947). In Weis, the Ohio Supreme Court described the types of hospital records that the rule ordinarily allows as follows:
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