Kane v. Ford Motor Co.

• Decision Date: 11 June 1984
• Docket Number: Nos. 47404,47725,s. 47404
• Citation: 477 N.E.2d 662,17 Ohio App.3d 111,17 OBR 173
• Parties: , 17 O.B.R. 173 KANE, Appellee, v. FORD MOTOR COMPANY, Appellant, et al.
• Court: Ohio Court of Appeals

Page 111

17 Ohio App.3d 111

477 N.E.2d 662, 17 O.B.R. 173

KANE, Appellee, v. FORD MOTOR COMPANY, Appellant, et al.

Nos. 47404, 47725.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

June 11, 1984.

Syllabus by the Court

1. As long as the evidence can establish a substantial causal relationship that a preexisting condition was substantially aggravated by a work-related injury, recovery under the Workers' Compensation Act can be made.

2. Once an appeal has been perfected, the trial

court loses jurisdiction over the matter, pending the outcome of the appeal. The trial court retains jurisdiction as to any area not pertaining to the final order, judgment or decree sought to be reviewed.

Richard C. Alkire and Joel Levin, Cleveland, for plaintiff-appellee.

Robert H. Gillespy and Howard J.C. Nicols, Cleveland, for defendant-appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Mitchell A. Stern, Cleveland, for defendants-appellees Bureau of Workers' Compensation and Industrial Com.

PATTON, Judge.

This is a consolidation of actions arising from separate judgments entered by the Court of Common Pleas of Cuyahoga County. For the purposes of clarity, the two contested determinations upon which our review is sought shall be discussed separately.

In April 1977, plaintiff-appellee herein, Joan Kane, was injured while at work and sought workers' compensation benefits. Kane's claim was denied by the Industrial Commission. She appealed to the common pleas court, pursuant to R.C. 4123.519, and was accorded a trial de novo. Appellee claimed that a preexisting medical condition, multiple sclerosis, was substantially aggravated by an injury received at work. Specifically, Kane claimed that a blow to her left leg, inflicted by a fellow worker driving a tow motor, caused her leg to be pinned between metal racks pushed forward by the tow motor and assembly line, thereby causing her latent multiple sclerosis condition to become substantially aggravated. Within one week of this accident, appellee began to display marked symptoms of multiple sclerosis; within four months of the accident, her condition was diagnosed as multiple sclerosis.

Upon appeal, the appellant, Ford Motor Company, has assigned six errors for this court's review.

I

Initially, appellant takes exception to the trial court's allowance of the testimony of appellee's expert witness, Dr. William R. Bauer, without first passing on appellant's motion for exclusion of the same. Additionally, appellant argues that Dr. Bauer's testimony was improper as it was based upon unfounded medical theories concerning the development of multiple sclerosis. Appellant argues that it should have been permitted concerning the 1981 Bamford Study entitled "Trauma as an Etiologic and Aggravating Factor in Multiple Sclerosis." ¹

As established in the case of Solon v. Solon Baptist Temple (1982), 8 Ohio App.3d 347, 457 N.E.2d 858, at paragraph two of the syllabus: " * * * Where the court fails to rule on an objection or motion, it will be presumed that the court overruled the objection or motion." In the instant matter, we must presume that the trial court, in failing to respond to appellant's motion in limine, impliedly overruled the same.

With regard to the contested testimony of Dr. Bauer, we note that it is perfectly proper for an expert to rely upon "facts or data * * * perceived by him," Evid.R. 703, as well as to draw upon knowledge gained from other experts in the field, whether this knowledge was communicated orally or in writing. This information forms the "scientific, technical, or other specialized knowledge" which qualifies the witness as an expert. Evid.R. 702. See Hurley v. Connor (March 22, 1984), Cuyahoga App. No. 47187, unreported.

In the instant matter, Dr. Bauer did not quote specific statements of other experts. His testimony merely referenced these studies as providing a partial basis for his knowledge on the disease of multiple sclerosis and hence his opinion on appellee's case. Moreover, appellant failed to object to or dispute the qualifications of Dr. Bauer as an expert at trial. We therefore conclude that the admission of Dr. Bauer's presently contested testimony was consistent with Evid.R. 702 and 703 and, accordingly, properly allowed by the trial court.

Regarding appellant's argument concerning the trial court's refusal to allow specific reference and quotation to be presented from the 1981 Bamford Study, we conclude that the contested quotations were properly excluded. Ohio has not adopted the "learned treatise" exception to the hearsay rule, as have the federal courts (Fed.R.Evid. 803 ). A fine line must therefore be drawn between admission of an expert opinion incorporating such medical studies from direct quotation, as appellant sought in the instant matter. Direct quotation is not permitted, and exclusion of same was proper.

We note in passing, however, that while direct quotations from the Bamford Study were excluded, appellant's witnesses were able to provide their opinion on the validity of medical literature relied upon by Dr. Bauer, as well as their opinion on the effect of trauma as a cause or aggravation of multiple sclerosis in light of the recent 1981 study and its findings. This error and supporting arguments raised are therefore without merit.

It is next argued that the trial court erred in failing to grant appellant's motion for a directed verdict. Specifically, appellant contends that appellee failed, as a matter of law, to sustain her burden of proving that her multiple sclerosis existed prior to April 6, 1979 and that her work-related injury substantially aggravated her multiple sclerosis. ² We disagree.

To prevail on a motion for a directed verdict, it is necessary for the trial court in construing the evidence most strongly in favor of the party against whom the motion is directed, to find that upon any determinative issue, reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party. The court shall then sustain the motion and direct a verdict for the moving party as to that issue. Civ.R. 50(A)(4).

In review of the record sub judice, we note that Dr. William Bauer, Director of Neurology and Electroencephology at the Euclid General Clinic, testified concerning the cause or origin of multiple sclerosis, whether appellee had multiple sclerosis prior to her April 6, 1979 injury, and whether such injury substantially aggravated appellee's multiple sclerosis condition.

The testimony of Dr. Bauer established that the disease of multiple sclerosis, as it is presently understood, is caused by a virus which affects the myelin sheath of the nervous system. According to Dr. Bauer, the illness is not genetic, but environmental, and is caused when the virus comes into contact with an individual sometime before the age of twenty. Though the individual has this virus before the age of twenty, it will remain dormant until some point between the ages of twenty and forty, when unmasked either spontaneously or by a factor in the environment, such as trauma.

When questioned on whether appellee's multiple sclerosis existed prior to April 6, 1979, Dr. Bauer responded affirmatively:

"Q. * * * Doctor, do you have an opinion, based upon reasonable medical certainty and probability, as to whether Joan Kane's condition for which you diagnosed the multiple sclerosis existed prior to April the 6th, 1979? First of all, do you have an opinion?

"A. Yes, I have an opinion.

"Q. What is that opinion, Doctor?

"A. My opinion is--

"THE COURT: Answer.

"A. --that the illness that she has, the multiple sclerosis was latent prior to that injury, as I have described here today.

"Q. Now, Doctor, what is the basis of that opinion?

"A. The basis of that opinion is the information that I have given to you here today on multiple sclerosis, which is the sum total of my time spent understanding this illness, directly working with people in the field, in the research, the sum total of the literature that I review, and my own patients, and based upon that experience and the knowledge of this patient, it is my opinion that this illness was latent prior to that and became unmasked with this injury. That is my opinion. And there are also other cases in the literature in all languages to substantiate my belief."

Dr. Bauer further testified that based upon a reasonable degree of medical certainty and probability, there existed a direct cause and effect relationship between appellee's April 6, 1979 injury (trauma) and the aggravation of appellee's multiple sclerosis:

"Q. Now, Doctor, do you have an opinion, based upon reasonable medical certainty and probability, as to whether Joan Kane's condition of multiple sclerosis was substantially aggravated, accelerated or worsened by reason of the accident and event of April the 6th, 1979?

" * * *

"A. I have an opinion.

"Q. Doctor, what is that opinion? * * *

"A. It is my opinion that the injury unmasked this illness and aggravated the multiple sclerosis, as I have described for you here today.

"Q. Doctor--

"Q. --what is the basis of your opinion?

"A. The basis of my opinion, again, is the knowledge of my training, working with this illness, the world's literature, my own experiences, other similar cases, and the literature which cites specific examples similar to this patient in which this has occurred. That is my opinion and that is my belief."

Appellant presently argues that the expert opinion rendered by Dr. Bauer was insufficient as a matter of law with regard to the preexistence of multiple sclerosis prior to appellee's injury and its aggravation thereof, as such opinion was not supported by facts within his personal knowledge, or by those established by other evidence. We disagree.

Dr. Bauer provided testimony on multiple sclerosis based upon approximately ten years of experience as a neurologist and predicated such testimony on...