McQueen v. Goldey

• Decision Date: 06 August 1984
• Docket Number: No. CA83-05-042,CA83-05-042
• Citation: 20 Ohio App.3d 41,484 N.E.2d 712,20 OBR 44
• Parties: , 20 O.B.R. 44 McQUEEN et al., Appellants, v. GOLDEY, Appellee.
• Court: Ohio Court of Appeals

Page 41

20 Ohio App.3d 41

484 N.E.2d 712, 20 O.B.R. 44

McQUEEN et al., Appellants, v. GOLDEY, Appellee.

No. CA83-05-042.

Court of Appeals of Ohio, Twelfth District, Butler County.

Aug. 6, 1984.

Bettman & Donenfeld and Marianna Brown Bettman, Cincinnati, for appellants.

Millikin & Fitton and James E. Michael, Hamilton, for appellee.

Syllabus by the Court

1. Statements in a hospital record regarding the cause of the injury or the manner in which the accident happened are not admissible insofar as they are not pertinent to the diagnosis or treatment. (Evid.R. 803 and .)

2. A juror's acquaintance with a witness is not a challenge for cause under R.C. 2313.42.

3. Evidence of character is not admissible to show that a person acted in conformity therewith. (Evid. R. 404[A].)

4. Evid. R. 704 does not permit expert testimony on the ultimate issue in each and every instance; it merely provides that opinion evidence on an ultimate issue is not excludable per se. The rule must be read in conjunction with Evid. R. 701 and 702.

5. As a prerequisite to testifying, the expert must be sufficiently qualified; that is, it must appear that his opinion is based upon some superior knowledge not possessed by ordinary jurors.

6. Comparison of expert witnesses' professional stature and the weight of the experts' testimony are for the trier of the facts.

7. The admissibility of experiment evidence is within the sound discretion of the trial court.

8. Evidence of experiments performed out of court, tending to prove or disprove a contention, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence. (St. Paul Fire & Marine Ins. Co. v. B. & O. RR. Co. [1935], 129 Ohio St. 401 (2 O.O. 396], followed.)

PER CURIAM.

This cause came on to be heard upon an appeal from the Court of Common Pleas of Butler County, Ohio.

On the night of August 30, 1980, on U.S. Route 27, plaintiff-appellant, Joanne McQueen, was struck by an automobile driven by defendant-appellee, James M. Goldey, M.D. McQueen, who had left Kings Club Lounge on the west side of U.S. Route 27, was in the process of crossing the highway to go to a bar, the Rusty Nail, on the east side of U.S. Route 27, at the time she was struck. McQueen testified that she was at the centerline when she saw the automobile's headlights and that she began to run because she decided that she would have a good chance of making it to the other side. She was struck in the northbound lane approximately "one step" from the east side of the highway.

There were no marked crosswalks, traffic signals or crossing signs in the area. The lighting conditions were poor between the two business establishments. The posted advisory speed in the area was forty m.p.h. The enforceable speed limit was fifty-five m.p.h.

As a result of the accident, both of McQueen's legs were broken. McQueen underwent numerous hospitalizations, surgeries, and other medical treatments within the two years following the accident. Some of the injuries sustained by McQueen were permanent.

Appellants filed a complaint against appellee alleging negligence. The case was tried before a jury. The jury found that Goldey was twenty percent negligent in that he "was not fully observant at the time of the accident * * * and McQueen was 80 percent negligent." Therefore, pursuant to R.C. 2315.19, the comparative negligence statute, McQueen did not recover any of the damages that she sought.

Appellants bring a timely appeal to this court.

Appellants' first assignment of error is as follows:

"The trial court erred to the prejudice of plaintiff/appellants [sic] in refusing to grant their motion in limine regarding certain portions of hospital records."

The assignment of error, as framed by appellants regarding the motion in limine, may not be proper as pointed out by appellee. However, appellee agrees and a review of the record shows that appellants timely objected at trial to the admission of the evidence and the trial court permitted such evidence to be admitted. Therefore, we will treat appellants' assignment of error as though it raised the question of the admissibility of certain evidence.

The trial court permitted McQueen's treating physician, Dr. Bryant, to read the following statements from the hospital's emergency room record: " 'patient stepped in front of car and struck by front of * * * [i]n Oxford car driving, * * * [f]ive to ten miles per hour.' " Appellants contend that said statements as to the cause of the accident were inadmissible hearsay and that the statements were not proven to have been made by McQueen. Appellee contends that the statements were admissible pursuant to Evid. R. 801(D)(2) and/or Evid. R. 803(4).

Evid. R. 801(D)(2) states, in pertinent part:

"A statement is not hearsay if:

" * * * The statement is offered against a party and is (a) his own statement, in either his individual or a representative capacity, or (b) a statement of which he has manifested his adoption or belief in its truth, or (c) a statement by a person authorized by him to make a statement concerning the subject, * * *."

The statements in question are not admissible under Evid. R. 801(D)(2). There was no proof that McQueen ever made the statements. Nor was the truth of the statements ever adopted by McQueen.

Furthermore, the statements are not admissible under the exceptions to the hearsay rule set forth in Evid. R. 803(4) and (6) which state:

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

" * * *

"(4) * * * Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

" * * *

"(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 * * *."

Statements in an official report are not automatically admissible simply because they have been written down in the report.

" * * * [A]lthough such [hospital] records, properly authenticated, may be admissible into evidence, any statements contained therein, disassociated from and not observed as a fact, transaction, occurrence, or event incident to the treatment of the patient, and helpful to the understanding of the medical or surgical aspects of the matter, are not admissible." Green v. Cleveland (1948), 150 Ohio St. 441 , citing and following Weis [v. Weis (1947), 147 Ohio St. 416, 72 N.E.2d 245 (34 O.O. 350)]." Hytha v. Schwendeman (1974), 40 Ohio App.2d 478, 484, 320 N.E.2d 312 .

Statements in a hospital record regarding the cause of the injury or the manner in which the accident happened are not admissible insofar as they are not pertinent to the diagnosis or treatment. Green v. Cleveland (1948), 150 Ohio St. 441, 83 N.E.2d 63 ¹; Schmitt v. Doehler Die Casting Co. (1944), 143 Ohio St. 421, 55 N.E.2d 644 ²; Dorsten v. Lawrence (1969), 20 Ohio App.2d 297, 253 N.E.2d 804 ³; and Dickson v. Gastl (1940), 64 Ohio App. 346, 28 N.E.2d 688 . ⁴

The Staff Notes to Evid. R. 803(4) state:

"The exception is limited to those statements made by the patient which are reasonably pertinent to an accurate diagnosis and should not be a conduit through which matters of no medical significance would be admitted."

The statements, in the case at bar, pertain to the manner of the accident, not the medical or surgical treatment of McQueen. Therefore, the admission of the statements constituted error as they do not qualify as exceptions to the hearsay rule under Evid. R. 803(4) or (6).

However, the existence of error does not necessarily require a reversal unless such error is prejudicial to the complaining party. The error must affect the substantial rights of the complaining party, or substantial justice must not have been done. Civ. R. 61; Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192, 423 N.E.2d 831 ; O'Brien v. Angley (1980), 63 Ohio St.2d 159, 407 N.E.2d 490 ; and Smith v. Flesher (1967), 12 Ohio St.2d 107, 233 N.E.2d 137 .

In the case at bar, a review of the record readily demonstrates that the alleged error was not prejudicial. The statements were merely cumulative and corrobative of the testimony of other witnesses. Dr. Bryant testified that "[s]he said she was struck by a car when she stepped out into the street." He also read from his personal medical notes that McQueen stepped in front of a car. An emergency room nurse testified that she heard McQueen tell appellee that " * * * she was sorry that she had been drinking, that she had walked out in front of his car." Appellee testified that McQueen had made the same statements to him. Additionally, McQueen testified that she saw the car and decided to try to make it to the other side.

As for the statements regarding speed, no one, including appellee, ever contended that appellee's speed was even close to five to ten m.p.h. All of the testimony was that appellee's speed was either thirty-five m.p.h., forty m.p.h., or forty-five m.p.h.

Given the cumulative nature of the statements, we do not view the admission of the statements as prejudicial or affecting the substantial rights of appellants. Therefore, the first assignment of error is hereby overruled.

Appellants' second assignment of error is as follows:

"The ...