2015 Ohio 192
Ohio Ct. App.2015Background
- Cranford worked for General Motors (Delphi) beginning in 1997; she developed bilateral elbow epicondylitis and later shoulder complaints. 1997 claim was allowed for elbow epicondylitis. 2005 shoulder claim was denied after administrative proceedings and a jury verdict for GM in Lucas County.
- Cranford obtained a sworn, out-of-court statement from her treating orthopedist, Dr. Rudolf Hofmann, on April 13, 2009; defense counsel had not been notified or allowed to cross-examine him at that time. Hofmann later died in 2013.
- Cranford sought to amend her 1997 claim (C-86) in 2009 to add multiple right-shoulder conditions; the Industrial Commission denied the amendment and administrative appeals were unsuccessful.
- Cranford filed a de novo workers’ compensation civil appeal in Montgomery County (refiled 2013). She listed Hofmann as an expert and sought to use his 2009 sworn statement at trial; GM moved to exclude it for lack of prior cross-examination and hearsay concerns.
- The trial court ruled that non-opinion treatment facts in Hofmann’s statement could be admissible, but redacted his proximate-cause opinions; at trial the jury found Cranford not entitled to benefits for the claimed shoulder conditions. Cranford appealed exclusion of Hofmann’s statement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Hofmann’s sworn statement | Hofmann’s statement is not offered for truth but to show treatment dates and complaints; alternatively admissible as administrative record, medical statements (Evid.R. 803(4)), business records (Evid.R. 803(6)), or former testimony (Evid.R. 804(B)(1)) | Statement is hearsay offered for the truth of diagnosis/causation; not a business record; not former testimony because no prior opportunity to cross-examine | Court affirmed exclusion of Hofmann’s causal opinions and concluded the sworn statement was inadmissible as offered for causation; other hearsay exceptions did not permit admission |
| Use of administrative-filed materials at de novo trial | Administrative consideration of the statement should allow admission at trial | Administrative hearsay relaxation does not bind a civil trial on de novo review | Administrative-admission argument rejected; trial court not required to admit such hearsay |
| Applicability of medical-treatment hearsay exception (Evid.R. 803(4)) | Hofmann’s recollection contains patient statements made for diagnosis/treatment and thus admissible | Even if patient statements to physician are admissible, the physician’s out-of-court sworn narrative/opinion remains hearsay when offered for causation | Patient statements made to treat may be admissible, but Hofmann’s written sworn opinions remain hearsay and were not admissible for causation |
| Former testimony exception (Evid.R. 804(B)(1)) | GM knew Cranford intended to call Hofmann and could have deposed him; thus GM had opportunity and similar motive to cross-examine | No prior hearing or deposition occurred; Hofmann’s statement was not subject to cross-examination and thus not former testimony | 804(B)(1) inapplicable: Hofmann’s statement was not former testimony and GM lacked the required prior opportunity to cross-examine |
Key Cases Cited
- State v. Spahr, 47 Ohio App.2d 221 (preliminary limine rulings are tentative) (appellate discussion regarding effect of in limine rulings)
- State v. White, 6 Ohio App.3d 1 (contemporaneous objection required to preserve evidentiary rulings) (preservation of error for appeal)
- State v. Leslie, 14 Ohio App.3d 343 (liminal rulings and preservation principles) (limine orders are tentative)
- State v. Baker, 170 Ohio App.3d 331 (discussing preservation and review of limine rulings) (preservation under Evid.R. 103)
- Burkhart v. H.J. Heinz Co., 140 Ohio St.3d 429 (construction of Evid.R. 804(B)(1)) (requirements for admission of former testimony under rule)