Guarino-Wong v. Hosler
2013 Ohio 1625
Ohio Ct. App.2013Background
- Guarino-Wong and Wong sued Hosler for injuries from a July 2008 rear-end collision; damages included medical expenses, lost wages, and pain and suffering.
- Guarino-Wong did not call Dr. George Jewell as a witness; Dr. Kenkel testified and read portions of Jewell’s report under cross-examination.
- Dr. Jewell issued a neuropsychological report noting limited test-taking effort and opinions that Guarino-Wong’s symptoms were not typical of a traumatic brain injury.
- Dr. Bender, an independent medical examiner for Hosler, summarized Jewell’s report and testified that some treatment was unnecessary and that degenerative issues existed.
- The trial court admitted Jewell’s report into evidence; the jury awarded damages totaling about $10,000, well below Guarino-Wong’s request.
- On appeal, Guarino-Wong challenged the admission and the read portions of Jewell’s report as reversible error, and sought a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Jewell's report and readings thereof admissible under Evid.R. 803(4)? | Guarino-Wong sought admission of Jewell’s statements and opinions under 803(4). | Hosler contends the report primarily contains opinions; 803(4) applies only to patient statements for diagnosis/treatment. | Not admissible under 803(4). |
| Are Jewell's report and readings admissible under Evid.R. 803(6) (business records)? | The report could be admitted as a medical/business record. | There was no qualified custodian foundation and no testimony about regular business use of the record. | Not admissible under 803(6) due to lack of proper foundation and inclusion of opinions. |
| Did the admission of Jewell’s report constitute reversible error affecting substantial rights? | Readings were necessary to counter Hosler’s experts and Texas the credibility of Guarino-Wong’s treatment. | Any error was harmless given other testimony and stipulation on liability. | Admission affected substantial rights; reversible error; need remand. |
Key Cases Cited
- State v. Davis, 116 Ohio St.3d 404 (2008-Ohio-2) (foundational requirements for Evid.R. 803(6) business records; need custodian testimony)
- Meyers v. Hot Bagels Factory, Inc., 131 Ohio App.3d 82 (1st Dist.1999) (Evid.R. 803(4) hearsay; errors harmless unless substantial rights affected)
- Johnson v. Cassens Transport Co., 158 Ohio App.3d 193 (3d Dist.2004-Ohio-4011) (Evid.R. 803(4) patient statements; distinguishing doctor opinions from patient statements)