Oleksiw v. Weidener

• Decision Date: 12 May 1965
• Docket Number: No. 38769,38769
• Citation: 2 Ohio St.2d 147,207 N.E.2d 375
• Parties: , 31 O.O.2d 267 OLEKSIW, Appellant, v. WEIDENER et al., Appellees.
• Court: Ohio Supreme Court

Page 147

2 Ohio St.2d 147

207 N.E.2d 375, 31 O.O.2d 267

OLEKSIW, Appellant, v. WEIDENER et al., Appellees.

No. 38769.

Supreme Court of Ohio.

May 12, 1965.

This action originated in the Common Pleas Court of Cuyahoga County. Plaintiff, appellant herein, Michael Oleksiw, herein referred to as plaintiff, brought suit against defendants, Michael G. Weidener (Weidner) and Florindo (Fiorindo) A. Simeone, both being physicians, alleging that he was a patient of defendants and was treated by them jointly; that Weidener, acting for himself and Simeone, performed a bilateral femoral arteriogram upon plaintiff at City Hospital; that this was performed negligently and without plaintiff's consent; and that as a result plaintiff suffered necrosis of his skin and of the underlying tissues, necessitating skin-graft operations.

At the trial, defendants were called for cross-examination pursuant to Section 2317.07, Revised Code. During the examination of defendants, questions were asked which required expert testimony. Objections were made to such questions and sustained by the trial court. The trial court ruled that plaintiff could not ask the defendants any questions calling for expert testimony. Plaintiff did not have any expert medical witnesses testify on his behalf.

The trial court granted defendants' motion for a directed verdict on the issue of malpractice, holding that the medical problem was so involved that without expert testimony a jury could not reach a reasonable conclusion on the issue. The jury returned a verdict for defendants on the remaining issue of technical assault and battery.

On appeal, the judgment was affirmed. The Court of Appeals followed Forthofer v. Arnold, 60 Ohio App. 436, 21 N.E.2d 869, and Wiley v. Wharton, 68 Ohio App. 345, 41 N.E.2d 255, holding that defendants under cross-examination only had to testify as to facts within their own personal knowledge. If plaintiff wanted expert testimony from defendants he should have called them as his own witnesses.

The cause is before this court upon the allowance of a motion to certify the record.

Rini & Hecht, Martin A. Rini and Donald L. Goldman, Cleveland, for appellant.

McNeal & Schick and Harley, J. McNeal, Cleveland, for appellees.

MATTHIAS, Judge.

The question raised by this appeal is whether in a malpractice action expert testimony may be elicited from a physician defendant called by plaintiff 'as if under crossexamination,' pursuant to Section 2317.07, Revised Code.

This section provides as follows:

'As the instance of the adverse party, a party may be examined as if under crossexamination, orally, by way of deposition, like any other witness * * *. The party calling for such examination shall not thereby be concluded but may rebut it by evidence.'

The obvious purpose of this section is to permit the production of all pertinent evidence in order that the trier of facts might have all the facts necessary to render a just decision. Any relevant evidence is made available to the parties, even evidence in the possession of the adverse party. 56 Ohio Jurisprudence 2d 456, Witnesses, Section 21; cf. State, Use of Miles, v. Brainin, 224 Md. 156, 167 A.2d 117, 88 A.L.R.2d 1178.

A witness called under this section may be examined 'as if under cross-examination.' This provision was not intended to restrict the permissible scope of examination but to make clear that the ordinary rules governing direct examination are not applicable to this class of witnesses. Since such witnesses are likely to be hostile and evasive the method ordinarily used on crossexamination, including leading questions and impeaching the witness, is allowed. See 3 Wigmore, Evidence, 431, 436, Section 916; Langford v. Issenhuth, 28 S.D. 451, 459, 134 N.E. 889.

Other jurisdictions which have considered the question in the instant case under a similar statute are divided. Although the modern trend is to permit the examination of the opponent as an expert, the number of jurisdictions on each side is roughly equal. Annotation, 88 A.L.R.2d 1186. Although the question has never previously been before this court, the Ninth District Court of Appeals has twice held that in an action for malpractice a plaintiff may not require expert testimony of the defendant physician called for cross-examination. Forthofer v. Arnold, 60 Ohio App. 436, 21 N.E.2d 869; Wiley v. Wharton, 68 Ohio App. 345, 351, 41 N.E.2d 255.

The cases which do not permit a party to elicit expert testimony from his opponent find that such a practice would be contrary to the purpose of the statute. See Osborn v. Carey, 24 Idaho 158, 168, 132 P. 967; Ericksen v. Wilson, 266 Minn. 401, 123 N.E.2d 687; Hunder v. Rindlaub, 61 N.D. 389, 409, 237 N.W. 915; Forthofer v. Arnold, supra, 60 Ohio App. 442, 21 N.E.2d 869. Those cases do not specify anything inherently wrong with examining the opponent as an expert and are general in their reason for finding that the statute was not intended to include such examination. The real basis seems to be that it would not be fair or sporting to allow the plaintiff to force the defendant to become his expert. See 5 Southern California Law Review 448; Ericksen v. Wilson, supra; Hull, Admr., v. Plume, 131, N.J.Law 511, 517, 37 A.2d 53.

No question of fairness should be involved in this matter. A person has no right to remain silent if he has information which is needed in a judicial proceeding. Since the withholding of relevant testimony obstructs the administration of justice, the duty to testify is owned to society not to the individual parties. The question is not whether it is fair for a party to...