Lambert v. Goodyear Tire & Rubber Co.

• Citation: 606 N.E.2d 983,79 Ohio App.3d 15
• Decision Date: 26 March 1992
• Docket Number: No. 647,647
• Parties: LAMBERT, Appellant, v. GOODYEAR TIRE AND RUBBER COMPANY, Appellee. *
• Court: United States Court of Appeals (Ohio)

Page 15

79 Ohio App.3d 15

606 N.E.2d 983

LAMBERT, Appellant, v. GOODYEAR TIRE AND RUBBER COMPANY, Appellee. ^*

No. 647.

Court of Appeals of Ohio, Fourth District, Jackson County.

Decided March 26, 1992.

Jerry L. Riseling, Columbus, for appellant.

Bradley K. Sinnott, Columbus, for appellee.

PETER B. ABELE, Judge.

This is an appeal from a judgment entered by the Jackson County Common Pleas Court granting a motion for a directed verdict in favor of Goodyear Tire and Rubber Company, defendant below and appellee herein, and against Donald J. Lambert, plaintiff below and appellant herein.

Appellant assigns the following errors:

First assignment of error:

"The court erred when it refused to admit into evidence the CT scan interpretation from Holzer Medical Center dated 6-5-86 (Exhibit '1') and the CT scan interpretation from Holzer Medical Center dated 5-10-89 (Exhibit '2')."

Second assignment of error:

"The court erred when it refused to admit into evidence plaintiff's Exhibits '1' and '2', being the CT scan interpretation of Holzer Medical Center dated 6-5-86 and 5-10-89 after Dr. McCloud, an orthopedic surgeon, testified concerning the interpretation of those films consistent with the exhibits."

Third assignment of error:

"The court erred when it refused to permit the opinion testimony of Drs. Brown and Ward concerning the causal relationship of the plaintiff's industrial injury to the bulging disc at level L4-5."

Fourth assignment of error:

"The court erred when it directed a verdict for the defendant against the plaintiff."

On June 25, 1977, appellant injured his lower back during the course of his employment with appellee. Appellant prevailed in a workers' compensation claim for a lumbar strain suffered as a result of the incident.

In 1987, appellant moved the Industrial Commission of Ohio to allow an additional claim based on the 1977 incident. The additional claim involves a herniated disk between the third and fourth lumbar vertebrae and a diffuse bulging between the fourth and fifth lumbar vertebrae with disk degeneration.

At a May 29, 1990 jury trial, appellant attempted to prove the additional claim. Appellant testified about the June 25, 1977 injury, his limited physical abilities, and his visits to Dr. Richard M. Ward and Dr. John Q. Brown. Appellant further testified he underwent two CT scans. ¹ The parties marked a June 5, 1986 CT scan report prepared by Dr. Stephen C. Johnson as Exhibit 1, and marked a May 10, 1989 CT scan report prepared by Dr. Manuel A. Casanova as Exhibit 2.

Although appellee stipulated to the authenticity of the CT scan reports, appellee objected to the reports on Evid.R. 803(6) grounds. The court sustained appellee's objections and commented as follows:

"Frankly, I don't think I would have a whole lot of trouble with the documents if I thought there was qualification satisfaction under Hytha."

The court, referring to Hytha v. Schwendeman (1974), 40 Ohio App.2d 478, 69 O.O.2d 419, 320 N.E.2d 312, and Quiller v. Mayfield (Aug. 17, 1989), Franklin App. No. 88AP-11115, unreported, 1989 WL 95356, concluded that the CT scan reports could not be admitted into evidence unless appellant either (1) presented evidence regarding the qualifications of Drs. Johnson and Casanova to make the reports, or (2) brought Drs. Johnson and Casanova to the witness stand.

After the court disallowed the CT scan reports, appellant read portions of orthopedic surgeon Dr. Jerry McCloud's May 17, 1990 deposition into evidence. The parties stipulated that Dr. McCloud is an expert orthopedic surgeon. Dr. McCloud testified that although he does not feel as confident interpreting CT scans as he feels interpreting X-rays, he agrees the June 5, 1986 CT scan reveals a herniated disk and a diffuse bulging at L4-5, and the May 10, 1989 CT scan reveals a diffuse bulging at L4-5.

After Dr. McCloud's deposition testimony was read into evidence, appellant renewed his request to have the two CT scan reports admitted into evidence. When appellee asked how Dr. McCloud's testimony qualifies the two CT scan reports, appellant told the court that since Dr. McCloud's interpretation of the CT scans is consistent with the CT scan reports, the reports should be admitted into evidence. The court, citing Hytha, supra, and Evid.R. 803(6), refused to admit the reports. The court commented that the record contains no mention of the qualifications of Drs. Johnson and Casanova to issue the CT scan reports.

Appellant next sought to present by deposition the expert opinion testimony of orthopedic surgeons Dr. Richard M. Ward and Dr. John Q. Brown. Appellee objected on Evid.R. 703 grounds, asserting that Dr. Ward's and Dr. Brown's expert opinions were based in part on the inadmissible CT scan reports by Drs. Johnson and Casanova. Appellee noted that Drs. Ward and Brown did not review the actual CT scans. The court sustained appellee's Evid.R. 703 objection and disallowed the expert opinion testimony of Drs. Ward and Brown.

Appellee moved for a directed verdict based upon the absence of expert medical testimony establishing a causal relationship between the June 25, 1977 accident and the conditions alleged in appellant's complaint. The court granted the motion and dismissed the complaint.

I

In his first assignment of error, appellant asserts the court erred by refusing to admit into evidence the CT scan reports by Drs. Johnson and Casanova. Appellant questions whether the common law surrounding R.C. 2317.40, the statutory equivalent of the Evid.R. 803(6) business records hearsay rule exception, retains validity after the 1980 enactment of the Ohio Rules of Evidence. Appellant argues that since appellee stipulated to the authenticity of the two CT scan reports, and since Drs. Johnson and Casanova are presumed to be qualified to write the reports, the court erred by refusing to admit the reports into evidence.

Appellant relies on Kraner v. Coastal Tank Lines, Inc. (1970), 22 Ohio App.2d 1, 51 O.O.2d 7, 257 N.E.2d 750, reversed on limited grounds in (1971), 26 Ohio St.2d 59, 55 O.O.2d 68, 269 N.E.2d 43, where the court found an electroencephalogram test report was a statement of an observable condition rather than a "mere opinion and speculation." Appellant attempts to distinguish the case sub judice from both Weis v. Weis (1947), 147 Ohio St. 416, 34 O.O. 350, 72 N.E.2d 245, and Quiller, supra, by noting those cases did not involve hospital records, but rather involved diagnostic reports made by one doctor and found among the records of another doctor. Appellant emphasizes the fact that appellee stipulated to the authenticity of the CT scan reports made by Drs. Johnson and Casanova at Holzer Medical Center in Gallipolis, Ohio.

Appellee, in a footnote, asserts that the stipulation as to authenticity simply meant the CT scan reports "were found among the files at the Holzer Medical Center in Gallipolis, Ohio." Appellee argues Quiller is "squarely on point" and prohibits the admission of the CT scan reports into evidence. Appellee further argues the CT scan reports fail to meet the factors listed in the Hytha syllabus for admissibility of records of medical diagnoses.

We will begin our discussion under this assignment of error by examining how the business records exception to the hearsay rule applies to hospital records. Evid.R. 802, the hearsay rule, provides:

"Hearsay is not admissible except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio."

Evid.R. 801(C) defines "hearsay" as follows:

" 'Hearsay' is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted."

Evid.R. 803 creates certain exceptions to the hearsay rule, including the business records exception contained in paragraph (6) of the rule:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

" * * *

"(6) 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." (Emphasis added.) See, also, McCormick v. Mirrored Image, Inc. (1982), 7 Ohio App.3d 232, 7 OBR 294, 454 N.E.2d 1363. The statutory equivalent of the business records exception to the hearsay rule still remains in the Revised Code. R.C. 2317.40 provides in pertinent part:

"A record of an act, condition, or event, in so far as relevant, is competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission."

Unlike the corresponding federal evidence rule, ² neither Ohio Evid.R. 803(6) nor R.C. 2317.40 allows opinions and diagnoses found in business records to be admitted into evidence. The Staff Note to Evid.R. 803(6) hints that the omission of opinions and...