Theresa Eve and Brian Eve v. Robert E. Johnson, 98-LW-3778

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtPer Curiam.
PartiesTHERESA EVE and BRIAN EVE, Plaintiffs-Appellees, v. ROBERT E. JOHNSON, Defendant-Appellant. APPEAL
Decision Date30 October 1998
Docket NumberC-970957,98-LW-3778

THERESA EVE and BRIAN EVE, Plaintiffs-Appellees,
v.

ROBERT E. JOHNSON, Defendant-Appellant.

No. C-970957

98-LW-3778 (1st)

Court of Appeals of Ohio, First District, Hamilton

October 30, 1998


TRIAL NO. A-9601531

Civil Appeal From Hamilton County Court of Common Pleas

David A. Caldwell, for Plaintiffs-Appellees,

James V. Heath, for Defendant-Appellant.

OPINION

Per Curiam.

Defendant-appellant Robert E. Johnson appeals from the trial court's October 17, 1997, entry of judgment in favor of plaintiffs-appellees Theresa Eve and her husband, Brian, on their claims for damages for injuries she sustained when her automobile was struck from behind by Johnson's vehicle.[1] Because the trial court abused its discretion in failing to qualify Johnson's medical witness as an expert, the trial court's entry as to the amount of damages and its award of prejudgment interest are reversed, and the cause is remanded for further proceedings.

Facts and Procedure

On March 17, 1994, as Eve drove her automobile on Cross County Highway, she saw two boys leaning over an overpass railing, making gestures as if they were throwing objects onto the roadway. Several years previously, Eve had been seriously injured when someone threw an object from an interstate overpass. To avoid a repetition of that incident, she looked in her rear-view mirror, saw no one behind her, and then either stopped her automobile for 30 to 60 seconds or merely slowed her vehicle. Johnson, who also saw the boys, struck Eve's car, destroying both vehicles and injuring Eve.

Eve and her husband brought suit seeking damages for injuries to her neck, back, and hand. Johnson answered, raising the affirmative defenses of assumption of the risk and comparative negligence. The case was referred to an arbitration panel which recommended an award of $10,000 for the Eves. Johnson appealed to the court of common pleas, and the case was assigned to a visiting judge for a jury trial. Johnson retained Dr. James Duffy, a board-certified orthopedic surgeon, to conduct an independent medical examination of Eve. Dr. Duffy was deposed by means of videotape and gave opinions as to the extent and duration of Eve's injuries. At the trial, the court refused to qualify Dr. Duffy as an expert witness. In her case-in-chief, Eve called, inter alia, the investigating police officer to the stand. Over objection, he was permitted to testify that he issued Johnson a citation for violating the assured-clear-distance statute.

The effect of the trial court's action was to direct a verdict, at the conclusion of the evidence, for the Eves on the issue of liability and causation. The issue of the amount of damages to be awarded the Eves was given to the jury. The jury returned an award of $61,000. This appeal followed the trial court's October 17, 1997, entry of judgment, and the court's subsequent October 24, 1997, award of prejudgment interest.

Expert Qualification

In his first assignment of error, Johnson contends that the trial court abused its discretion in failing to qualify his medical witness to testify as an expert pursuant to Evid.R. 702.

During Dr. Duffy's videotape deposition, after inquiring about Dr. Duffy's medical qualifications, his counsel asked:

Q. And Doctor, in the course of your deposition today, you will be rendering opinions, and when you do so, would you make those opinions % or render those opinions based upon your background, training, education, and experience, and also, based upon the history and your examination of Theresa Eve as those opinions relate to her
A. Yes
Q. And, you can base those also on a reasonable degree of scientific and medical certainty
A. Correct

T.p. 11-12 (Appellant's Proffered Exhibit B).

Immediately before asking Dr. Duffy to give his opinion as to whether Eve had recovered from her injuries, his counsel asked:

Q. And, applying those criteria I asked you to apply opinions to before, do you have an opinion?

A. Yes.

T.p. 21. Dr. Duffy proceeded to give his opinions that, at the time of his examination, there was no evidence of injury to the soft-tissue structure, discs, or nerve roots in Eve's spine, that she had recovered from any injuries sustained in the automobile accident, and that she required no future treatment.

At the voir dire of Dr. Duffy's testimony, over objection, the trial court refused to qualify Dr. Duffy as a medical expert, stating that:

Now, I am fascinated an expert, this doctor, can examine this patient and be told that she has pain, and testify that she recovered from any injury she may have sustained in the automobile accident. I don't understand how he can make that. How he can make that statement? That certainly goes to his credibility right there.

T.p. 342. After discussion with the court, Johnson's counsel inquired:

So I understand, the Court is of the opinion that none of those opinions are properly stated, are going to be allowed in to evidence in this case?

The court responded: "I'm afraid that's what I'm going to have to hold." T.p. 353.

Evid.R. 702 and 704 allow for the admission of expert testimony on an ultimate issue to be decided by the trier of fact, if the witness is qualified as an expert...

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