Zelenka v. Industrial Commission

Decision Date05 December 1956
Docket NumberNo. 34784,34784
Citation138 N.E.2d 667,165 Ohio St. 587
Parties, 60 O.O. 524 ZELENKA, Appellee, v. INDUSTRIAL COMMISSION of Ohio, Appellant.
CourtOhio Supreme Court

Syllabus by the Court.

An expert witness may not express his opinion based upon evidence which he has heard or read on the assumption that the facts supported thereby are true, where such evidence is voluminous, complicated or conflicting or consists of the opinions, inferences and conclusions of other witnesses.

On August 25, 1949, and prior thereto, Frank Zelenka, husband of the claimant, appellee herein, was employed by the Board of Education of the City of Cleveland.

On that date, Zelenka, in the course of and arising out of his employment, suffered a fracture of the right ankle. His application for workmen's compensation was approved, and compensation for temporary total disability plus certain medical expenses was paid to February 20, 1950.

Zelenka died on September 30, 1950, from diabetes mellitus with gangrene of the left foot. Subsequent to his death, his wife filed an application for compensation on account of the death of her husband, upon whom she was wholly dependent. The application was denied.

On rehearing, the Industrial Commision's case was based upon certain hospital records and the testimony of two expert midical witnesses. The claim was denied, and, on appeal to the Common Pleas Court of Cuyahoga County, the jury found against the claimant and in favor of the Industrial Commission. A motion for new trial was overruled and judgment entered for the commission.

An appeal was taken to the Court of Appeals, which court, in reversing the judgment of the Common Pleas Court, found that 'the judgment of said Common Pleas Court is reversed for error of law in incorporating the hospital record, X-ray photographs and hospital report comprising some 23 pages in the hypothetical question propounded to expert doctor by mere reference and not by actual recitation.'

The cause is now in this court for review by reason of the allowance of a motion to certify the record.

C. William O'Neill, Atty. Gen., James L. Young, Columbus, and John R. Barrett, Akron, for appellant.

Cerrezin & Cerrezin, Cleveland, for appellee.

HART, Judge.

The question here in issue is whether the trial court erred prejudicially in overruling the claimant's objections to hypothetical questions propounded to each of the two expert medical witnesses called by the commission, neither of whom attended the decedent during his lifetime, as to which they were given voluminous exhibits to inspect and read. One such witness was asked to consider and the other to examine the facts they found as true from the exhibits, in forming their opinions, without making such facts known to the jury or having them particularized in the hypothetical questions.

An examination of the record discloses that the exhibits in question introduced at the trial of the case before the referee on rehearing and likewise introduced in the Common Pleas Court as a part of the transcrip of the record consist of X-ray photographs, some of which are accompanied by findings of roentgenologists from an examination of such photographs, and daily progress hospital records made by nurses and physicians, including their opinions as to diagnosis and condition of decedent in respect to his symptoms, physical condition, treatment and progress from time to time. These exhibits were made by persons who were not under oath as to the statements recorded therein and who were not called as witnesses in the case.

The first such expert witness was Dr. Samuel Hantman, who was interrogated and who answered, as follows:

'Q. Doctor, I am about to ask you a hypothetical question based upon the facts in the instant case, and I want you to assume that the following facts are true and to disregard any other facts which you might have learned about this case, and base your answer to this hypothetical question solely upon the facts I am about to relate to you.

'First of all, Doctor, I want you to consider in this hypothetical question mutual exhibit X, the death certificate, which you have just reviewed, as well as claimant's exhibits 1 through 23, inclusive, which are the hospital records of Frank Zelenka, and the Xrays and interpretations of those Xrays.

* * *

* * *

'Doctor, I want you to assume the foregoing facts to be true, and I will ask you whether you have an opinion based upon reasonable medical certainty as to whether or not there is a causal relationship between the injury of August 25, 1949, when Mr. Zelenka injured his right medial malleolus while at work, and his death on September 30, 1950, which, according to the death certificate, shows the disease or condition directly leading to death as diabetes mellitus with gangrene of the left foot.

'Do you have an opinion, Doctor? Just yes or no.

'* * * [Objection; overruled.]

'A. Yes, I have an opinion.

'* * * [Objection; overruled.]

'Q. What is your opinion as to that, Doctor?

'* * * [Objection; overruled.]

'A. In my opinion there is no causal relationship of any kind between the incident of August 25, 1949, when Mr. Zelenka suffered fractures through the medial and lateral malleoli of his right foot and his death on September 30, 1950, from diabetes mellitus and gangrene of the left foot.'

A similar hypothetical question was propounded and submitted to the other expert medical witness, Dr. Alex Gross, and similar answers were given by him over the objection of the claimant.

The commission claims that no error intervened because of the introduction of expert testimony in the manner herein described, and that the Court of Appeals erred in reversing the judgment for the commission.

In the first place, the commission calls attention to the fact that the exhibits in question were introduced in evidence by claimant's counsel as a part of her case. Counsel for the commission states, as follows, its position as to the form of the hypothetical questions propounded to its expert witnesses:

'There can be no valid contention that the manner of presentation of the question was such as to prevent his (counsel for plaintiff) intelligent cross-examination of the witness. The purpose of the hypothetical manner of presentation is to enable the jury to determine whether or not the assumptions propounded have been established by a preponderance of the evidence. It is the sole obligation of counsel conduting the cross-examination to so examine the witness as to determine points of flaw and weakness upon which the opinion rests. Depending upon his adversary's manner of presenting the direct examination he may or may not find it necessary to inquire of the witness what facts in particular were vital to him in forming his opinion. Counsel must then apply his medical knowledge of the problem involved in an effort to test the witnesses' conclusion in regard to these specific evidentiary dentiary facts which his cross- examination has revealed to be crucial to the opinion. Thus, in the instant case simply because such evidentiary facts were 'voluminous' and made cross-examination difficult did not entitle him to aid from the commission counsel in conducting that cross-examination. All the material was there and available to counsel's hand. The manner in which he worked and used it was a matter personal to his own skill and ingenuity.

'There can be no contention that the jury was unaware of the contents contained in the exhibits. The exhibits under discussion accompanied the jury when it retired to diliberate. Both physicians, as is shown by the hypothetical questions, were told to examine the exhibits and assume the truth of the entirety of their contents. There was no discussion whatsoever given to the witnesses to select and assume as true such information therein as they chose.'

Counsel for the commission cite in support of their contention the case of Hall v. Nagel, 139 Ohio St. 265, 39 N.E.2d 612, wherein it was held:

'When an X-ray picture admitted in evidence shows the juncture of the fragments of a broken bone and later pictures show the loss of such juncture, a physician qualified as an expert on the subject may express his opinion as to the cause of the separation of the bone fragments.'

It is the view of this court that the situation presented in the Hall case is not comparable to that presented in the instant case. There can be no valid objection to testimony of an expert witness as to inferences to be drawn from an examination of an X-ray photograph already in...

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