Metro. Life Ins. Co. v. Tomchik
| Decision Date | 20 September 1999 |
| Docket Number | No. 98-CO-22.,98-CO-22. |
| Citation | 134 Ohio App.3d 765,732 NE 2d 430 |
| Parties | METROPOLITAN LIFE INSURANCE COMPANY, Appellee, v. TOMCHIK, Appellant. |
| Court | D.C. Court of Appeals |
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C. Scott Lanz, for appellee.
Allen Schulman, Jr., for appellant.
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Defendant-appellant, David Tomchik, appeals the decision of the Columbiana County Court of Common Pleas finding in favor of plaintiff-appellee, Metropolitan Life Insurance Company ("MetLife"), in its declaratory judgment action.
On January 16, 1994, appellant, a licensed podiatrist, amputated his thumb while operating a band saw at his home. Appellant filed claims with his disability insurers, New York Life Insurance Company, and appellee, MetLife. MetLife denied appellant's claim and on September 21, 1994 filed a declaratory judgment action in the Columbiana County Court of Common Pleas. On August 25, 1995 New York Life filed its own complaint in the same court. At issue in both cases was whether appellant had intentionally amputated his thumb.
The declaratory judgment actions filed by New York Life and MetLife both sought a declaration that appellant was not entitled to benefits under any of the policies issued. In response, appellant filed a counterclaim for bad faith against MetLife, but not against New York Life. On February 12, 1996, appellant filed a motion to consolidate the two cases.
In order to facilitate the consolidation, appellant voluntarily dismissed the bad faith claim against MetLife. Thereafter, appellant sought to file amended counterclaims in bad faith against both MetLife and New York Life. The trial court denied appellant's request, ruling that appellant had preserved his right to file the claims at a subsequent date should he prevail at trial.
A jury trial commenced on June 23, 1997. Subsequently, New York Life moved for a mistrial, which motion was granted on July 1, 1997. Following the mistrial, on August 27, 1997, the two cases were bifurcated. The MetLife case was set for jury trial commencing on March 2, 1998. At the conclusion of the trial, on March 18, 1998, in response to a submitted interrogatory, the jury found that appellant had intentionally severed his right thumb and returned a verdict in favor of MetLife. On April 2, 1998, appellant filed a notice of appeal from this decision.
Appellant brings nine assignments of error, the first of which states:
"The trial court abused its discretion in denying Dr. Tomchik's motion for voir dire of MetLife's expert witness, Frank Lurwig, by requiring Dr. Tomchik to disprove the qualifications of MetLife's expert witness rather than requiring MetLife to prove the witness' qualifications, by qualifying Lurwig as an expert and permitting him to give opinion testimony based upon a reasonable degree of certainty in the fields of forensic engineering, accident reconstruction and wood science, and by overruling Dr. Tomchik's Motion to Strike Lurwig's testimony."
Appellant argues that the trial court permitted Frank Lurwig to testify as an expert witness without permitting appellant an opportunity to challenge Lurwig's credentials. Appellant notes that prior to Lurwig's testimony, appellant moved to conduct voir dire questioning on Lurwig's qualifications as an expert, which motion was denied by the trial court.
In addition, appellant claims that a trial court must require some proof that a proposed expert's opinions are based upon the knowledge and experience of his or her discipline, and the burden of establishing this is placed upon the party seeking to introduce the testimony (citing Daubert v. Dow Pharmaceuticals, Inc. 1993, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469). Appellant argues that in the instant case, the trial court reversed the burden of proof, requiring appellant to demonstrate why Lurwig was not qualified to testify.
Appellant also argues that pursuant to Daubert, supra, the trial court was required to exercise control over Lurwig's testimony to insure that he did not testify beyond the scope of his expertise. Appellant notes that the trial court qualified Lurwig as an expert in his field without stating what that field was. Appellant concedes that Lurwig was qualified to testify as an expert in agricultural engineering and the design of agricultural tools, and, as an amateur wood worker, could offer limited testimony as to the operation of band saws. However, appellant claims that the trial court placed no limits on Lurwig's testimony, permitting him to testify on matters far beyond the scope of his expertise, which testimony misled the jury.
Specifically, appellant points to a portion of the transcript where Lurwig was permitted to testify as to whether the physical evidence introduced was consistent with appellant's claim that his hand had slipped while operating the band saw. Appellant argues that this testimony would have required expertise in forensic engineering, accident reconstruction, and wood science, all of which were beyond the expertise of Lurwig. Appellant argues that Lurwig's experience using band saws for many years did not qualify him to offer an expert opinion on the cause of appellant's accident.
In response, MetLife first notes that the trial court did not qualify Lurwig as a saw expert based solely upon his status as an amateur woodworker, but also considered Lurwig's considerable qualifications and prior experience as an engineer and product safety and design consultant. In addition, MetLife notes that Lurwig did not testify beyond the scope of his expertise, nor did he give an opinion on the ultimate issue in the case, viz., whether appellant had intentionally severed his thumb.
Rather, MetLife notes that Lurwig testified concerning the basic features and operation of the band saw in question, the safety features of band saws in general, and how band saws operate as compared to other types of saws. In addition, in response to appellant's claim that he had slipped while cutting a piece of wood, Lurwig testified that the piece of wood in question did not indicate that any sudden movement had occurred during the cutting. Lurwig based this opinion on the "kerf marks" or blade marks on the wood, which appeared uniform, suggesting the blade had passed through the wood at a uniform speed. Hence, MetLife argues that Lurwig simply testified that in his opinion, the marks on the piece of wood were inconsistent with appellant's version of the events.
Lurwig also testified that the straightness of the cut was inconsistent with appellant's claim that he had released the board as he slipped. Appellee claims that Lurwig did not testify as to how the accident occurred, but rather, rendered an opinion that the piece of wood appellant claimed to have been cutting at the time of the accident did not show any evidence to confirm that amputation had occurred in the manner claimed by appellant. MetLife argues that this testimony was based on reliable, technical, and specialized knowledge, including Lurwig's experience as a design engineer for the company that manufactured the saw in question, and that the trial court did not abuse its discretion in permitting such testimony.
With respect to the trial court's failure to permit appellant to conduct voir dire on Lurwig, MetLife notes that Lurwig's report and curriculum vitae were provided to appellant on May 19, 1997, but that appellant chose not to conduct discovery of the witness. Nor did appellant file a pretrial motion in limine to exclude Lurwig's testimony, but rather, he waited until the witness was called before objecting. MetLife notes that the trial court has broad discretion to control the mode and order of witness examination, and that this discretion was not abused by refusing to permit a voir dire at trial where appellant had made no efforts to conduct discovery on the witness or to depose him prior to trial.
In addition, contrary to appellant's contention, MetLife claims that the burden of establishing Lurwig as an expert remained with itself, and that this burden was met by its counsel through questioning designed to qualify the witness. MetLife argues that appellant was not required to show why Lurwig was not an expert, but, rather, was asked by the trial court for the basis of appellant's objection to Lurwig's qualifications as an expert. Finally, MetLife claims that any error in declining to permit a voir dire examination was harmless error as appellant conducted a lengthy cross-examination of Lurwig regarding his qualifications, and because the record nonetheless indicates that Lurwig was qualified as an expert based on his background, education, and experience.
Evid.R. 702 states:
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