ROBERT BLINN v. MARK A. BALINT
C.A. No. 26733
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
July 16, 2014
[Cite as Blinn v. Balint, 2014-Ohio-3114.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2011 01 0608
Dated: July 16, 2014
BELFANCE, Judge.
{¶1} Plaintiff-Appellant Robert Blinn appeals following a jury trial in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} On November 17, 2007, Defendant-Appellee Mark Balint was exiting a parking lot and making a left-hand turn when the vehicle he was driving struck Mr. Blinn‘s vehicle. Immediately following the accident, Mr. Blinn did not believe he suffered any injury; however, later that day, Mr. Blinn began to experience pain in his left shoulder. Ultimately, Mr. Blinn was diagnosed with a tear in his left rotator cuff. Mr. Blinn later underwent two surgeries in an effort to rectify the problem.
{¶3} Mr. Blinn initially filed a complaint in Summit County Court of Common Pleas that he dismissed without prejudice on May 17, 2010. Mr. Blinn re-filed his complaint against Mr. Balint and several insurance companies on January 31, 2011. Mr. Blinn alleged that Mr.
{¶4} Ultimately, the matter proceeded to a jury trial. After Mr. Blinn presented his case, the trial court granted a directed verdict in favor of Mr. Blinn concluding that Mr. Balint was at fault for the accident. Thus, the central issue before the jury was whether Mr. Blinn‘s rotator cuff tear was caused by the accident or whether it pre-existed the accident. The jury found in favor of Mr. Blinn and awarded him $200. Mr. Blinn has appealed, raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN PERMITTING BALINT‘S MEDICAL EXPERT TO RENDER OPINIONS WHEN THE OPINIONS WERE NOT SUPPORTED BY FACTS OR DATA PERCEIVED BY THE EXPERT OR ADMITTED IN EVIDENCE IN CONTRAVENTION OF
EVID.R. 703 AND705 .
{¶5} Mr. Blinn asserts in his first assignment of error that the trial court erred in permitting Mr. Balint‘s expert, Dr. Timothy Gordon, M.D., to render an expert opinion when Dr. Gordon‘s opinion was based on facts or data not perceived by him or admitted into evidence in violation of
{¶6} “The determination of the admissibility of expert testimony is within the discretion of the trial court. Such decisions will not be disturbed absent abuse of discretion.” (Internal citation omitted.) Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 9. “‘Abuse of discretion’ suggests unreasonableness, arbitrariness, or unconscionability. Without those elements, it is not the role of this court to substitute its judgment for that of the trial court.” Id.
{¶8} At trial, the central issue before the jury was whether Mr. Blinn‘s rotator cuff injury pre-existed the accident. Mr. Blinn asserted that the tear in his shoulder occurred as a
{¶10} Mr. Balint presented the testimony of Dr. Gordon. Dr. Gordon indicated that, in forming his opinion, he reviewed the records of Dr. Pluskota, Dr. Lippitt, Akron General Hospital, Barberton Citizens Hospital, the MRI scans of Mr. Blinn‘s shoulder, the traffic crash reports, a report from Dr. Lippitt, and “some therapy records[.]” He indicated that he reviewed records from both before and after the accident; however, he did not examine Mr. Blinn, nor, as noted above, did he review the actual x-ray from January 2007.
{¶11} Dr. Gordon testified that the rotator cuff is a group of muscles that become tendons and attach on the greater tuberosity of the humerus. One of those tendons, the supraspinatus tendon, is the most commonly torn in a rotator cuff injury. He indicated that “th[e rotator cuff] muscles allow the function of the shoulder to be enhanced and keep the shoulder [] stable and those kind of things.” He also discussed the things that could cause rotator cuff tears. While he indicated that injuries, such as falling, and heavy lifting could cause tears, he stated
{¶12} While Dr. Gordon did not examine Mr. Blinn, he did look at his medical records.3 Dr. Gordon testified that Mr. Blinn had been evaluated on multiple occasions for left shoulder pain, dating back to 1993. He testified that it was significant that, in January 2007, Mr. Blinn came in to see Dr. Pluskota, that x-rays were obtained, and that the radiologist reported “spurring, meaning osteophytes, bone spurs, at the greater tuberosity of the humeral head.” Dr. Gordon noted that the supraspinatus tendon attaches on the greater tuberosity and that that is where the bone spurs were. He stated that “in [his] experience clinically, that goes along with a rotator cuff tear being present there.” Dr. Gordon testified that there was further evidence of a tear given Mr. Blinn‘s August 2007 examination, which was “consistent with the idea of him having a rotator cuff tear at that time.” Dr. Gordon noted that Mr. Blinn‘s symptoms included tenderness when the doctor palpated the anterior aspect of the shoulder where the tear was later identified in the MRI and that his symptoms were “classic symptoms of a rotator cuff tear.” Additionally, Mr. Blinn‘s range of motion was decreased and he had a “painful arc of 120
{¶13} Mr. Blinn‘s challenges to the propriety of Dr. Gordon rendering an opinion primarily center around: (1) the fact that the MRI was not admitted into evidence; (2) the fact that Dr. Gordon did not review the 2007 x-ray; and (3) the fact that he made conclusions about Mr. Blinn‘s condition based upon the radiologist‘s findings from that x-ray and made statements about the x-ray itself despite not having seen it. We note that these are the only facts or data that Mr. Blinn contends were not perceived by Dr. Gordon or admitted into evidence. Our analysis will be limited accordingly.
{¶14} Initially, Mr. Blinn asserts that Dr. Gordon could not testify about the MRI because it was not admitted into evidence. Dr. Gordon stated that he viewed the MRI films taken in January 2008 after Mr. Blinn‘s accident. Whereas other symptoms could be highly indicative of a cuff tear, Dr. Gordon stated that the MRI is the “gold standard” in definitively diagnosing a rotator cuff tear. In reaching his opinion that Mr. Blinn‘s tear existed prior to the accident, Dr. Gordon relied heavily upon what he observed in the MRI. He stated that, in looking at the MRI, there was significant impingement on the rotator cuff and that the impingement he observed had been there much longer than two months.
{¶16} We note that the cases that Mr. Blinn cites are not precisely on point, as the vast majority deal with an expert‘s opinion being inadmissible due to the expert‘s reliance on written reports of third persons and the failure to admit those writings at trial. See, e.g., State v. Jones, 9 Ohio St.3d 123, 124-125 (1984); In re C.S., 9th Dist. Summit No. 25344, 2010-Ohio-4463, ¶ 41-42; In re Sherman, 3d Dist. Hancock Nos. 05-04-47, 05-04-48, & 05-04-49, 2005-Ohio-5888, ¶ 19. These cases present situations where the expert has relied upon written reports detailing facts which the expert has not personally perceived and which are themselves hearsay. None deal with an expert who has viewed an MRI or an x-ray that was not admitted into evidence.
{¶17} This Court‘s own research, however, has revealed cases from two of our sister districts which have concluded that an expert who has personally looked at an x-ray has perceived the item as contemplated by
{¶18} Mr. Blinn also suggests that Dr. Gordon improperly rendered his opinion in contravention to
{¶19} Mr. Blinn also asserts that Dr. Gordon specifically stated that “there was bone spurring where the supraspinatus tendon attached to the greater tuberosity[,]” and that this statement by Dr. Gordon amounts to him making a conclusion that was outside the findings of the x-ray report, because the x-ray report does not specifically state where along the greater tuberosity the spurring is located. First, we note that pages of the transcript cited by Mr. Blinn do not evidence that those precise words were said. Instead, Dr. Gordon testified that
the radiologist reported that there was spurring, meaning osteophytes, bone spurs, at the greater tuberosity of the humeral head. And remember, we talked about that a little bit before, the idea that where the rotator cuff attaches, the supraspinatus tendon specifically in this case we‘re talking about, is on the greater tuberosity. So some months before the accident, the X-rays showed these bone spurs right here. And in my experience clinically, that goes along with a rotator cuff tear being present there. So that was before the accident.
{¶21} However, even assuming that Dr. Gordon impermissibly made a finding that was beyond what was capable of being known based solely upon the x-ray findings, Dr. Gordon did not base his conclusion that Mr. Blinn had a pre-existing rotator cuff tear in whole or in major part upon the x-ray report and his interpretation of what that report meant, as evidenced by the other testimony in the record. Thus, we cannot conclude that the trial court should have excluded Dr. Gordon‘s expert opinion pursuant to
{¶22} Mr. Blinn also argues that Dr. Gordon was erroneously permitted to render his opinion because he made conclusions about Mr. Blinn‘s condition based upon the 2007 x-ray that was neither viewed by Dr. Gordon nor admitted into evidence. As already described, while Dr. Gordon did not examine Mr. Blinn, he did look at his medical records. Dr. Gordon testified that Mr. Blinn had been evaluated on multiple occasions for left shoulder pain, dating back to 1993. He testified that it was significant that in January 2007, Mr. Blinn came in to see Dr. Pluskota, that x-rays were obtained, and that the radiologist reported “spurring, meaning osteophytes, bone spurs, at the greater tuberosity of the humeral head.” Dr. Gordon noted that
{¶23} However, Dr. Gordon‘s testimony was not limited to discussion of the x-ray findings. As noted above, Dr. Gordon testified that the exam findings on Mr. Blinn‘s August 28, 2007 visit to Dr. Pluskota were “very consistent” with Mr. Blinn having a rotator cuff tear at that time, and he related its significance in light of Dr. Pluskota‘s first exam of Mr. Blinn following the accident. Dr. Gordon testified that
[F]our days after the accident, Dr. Pluskota examined [Mr. Blinn]. He had left shoulder pain. He had tenderness in the anterior aspect, same as before. The range of motion was restricted and the strength was normal. But now, very interestingly, his painful arc was now up to 160 degrees, which is very significant because the idea is that the exam is similar to before the accident; however, if indeed this gentleman had sustained an acute tear of the rotator cuff four days before, he wouldn‘t have been able to lift his arm up to 160 degrees. The idea is that that‘s consistent with a small tear that‘s been there for a while. So, very similar to the exam before, but not consistent with an acute tear * * * of the rotator cuff occurring. So that exam on November 21st is very important.
{¶24} Dr. Gordon went on to discuss the 2008 MRI and how it related to the other clinical findings:
[T]he MRI scan really is the gold standard to evaluate a tear now. The idea is that he did have some radiographic findings before the accident, specifically the changes at the greater tuberosity with the bone spurs * * * and that is consistent with a rotator cuff tear being present. But you can‘t say a hundred percent it‘s there. * * * [The MRI showed] that the acromioclavicular joint very importantly had the arthritic – hypertrophic arthritic changes. Hypertrophic means the bone reacts to the arthritis and makes more bone and bone spurs. So that the impingement on the rotator cuff going down on the cuff was significant on the MRI scan showing that it had, indeed, been impinging on the rotator cuff. And then we find that in this area where the supraspinatus tendon attaches to the greater tuberosity that there was a small tear there and that there were degenerative changes present at the insertion. So it confirms what was seen on the plain x-ray back in January 2007, and it confirms that a rotator cuff tear indeed is present.
the idea is that those findings on an X-ray are very supportive of a rotator cuff tear being present. And then when you combine that with his actual clinical complaints before the accident, and the fact that his shoulder was getting worse than it was before in the year before the accident, it all goes along that he had a rotator cuff tear in his shoulder in January of 2007.
{¶25} Dr. Gordon did not personally examine the 2007 x-ray and the 2007 x-ray was not admitted into evidence. Thus, he had no basis on which to testify about what the x-ray showed. We agree that Dr. Gordon‘s periodic reference to “the X-ray” is problematic. We note that some of these instances occurred during cross-examination when the interaction between Mr. Blinn‘s counsel and Dr. Gordon was argumentative such that it is difficult to know whether Dr. Gordon‘s reference to x-ray was meant to reference the x-ray report. Even so, whether Dr. Gordon misspoke (i.e. referred to the x-ray instead of the x-ray findings) or purposefully referenced the x-ray instead of the findings, he should not have been able to testify in a manner that suggested that he viewed the actual x-ray. It appears that Mr. Blinn is in essence asserting that those portions of the testimony should have been stricken, despite the fact that such an argument is clearly outside the scope of his assignment of error (which asserts that Dr. Gordon‘s entire opinion should have been withheld from the jury). Even if we were to examine whether certain words or phrases should have been stricken from Dr. Gordon‘s testimony, Mr. Blinn has not demonstrated prejudice from those words or phrases in light of the fact that he has not demonstrated that Dr. Gordon‘s ultimate opinion should have been excluded pursuant to
{¶26} From the totality of Dr. Gordon‘s testimony, it is difficult for this Court to conclude that Dr. Gordon‘s opinion should have been excluded under
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN PERMITTING BALINT‘S MEDICAL EXPERT TO RENDER OPINIONS THAT WERE IN CONTRAVENTION OF
EVID.R. 702(C) .
{¶27} Mr. Blinn asserts in his third assignment of error that the admission of Dr. Gordon‘s opinion violated
{¶28}
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
“In evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance.” Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 611 (1998).
{¶29} Mr. Blinn does not contest that Dr. Gordon‘s testimony meets the criteria set forth in
In determining whether the opinion of an expert is reliable under
Evid.R. 702(C) , a trial court examines whether the expert‘s conclusion is based on scientifically valid principles and methods. A court should not focus on whether the expert opinion is correct or whether the testimony satisfies the proponent‘s burden of proof at trial. Accordingly, we are not concerned with the substance of the experts’ conclusions; our focus is on how the experts arrived at their conclusions.
(Internal citations omitted.) Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 16.
{¶30} While it is difficult to understand Mr. Blinn‘s argument with respect to
{¶31} Mr. Blinn‘s other arguments in this assignment of error are similarly problematic. He states there is no evidence that he had an impingement by an acromial spur or a superior migration of the humeral head, which Mr. Blinn asserts would be diagnostic for a chronic rotator cuff tear. However, Dr. Gordon testified that he did not think Mr. Blinn had a chronic rotator cuff tear. Later, in his argument, Mr. Blinn maintains that, “[i]t is physically impossible for a bone spur of the AC joint to cause a tear of the supraspinatus tendon at the enthesis of the greater tuberosity.” For this proposition, Mr. Blinn offers no citation to any text or any testimony of his
{¶32} The heart of Mr. Blinn‘s argument goes to the validity of Dr. Gordon‘s conclusions, not the validity of his methods. The question to be answered under
{¶33} Dr. Gordon is a board-certified orthopedic surgeon. The record reflects that he based his opinion on his medical training and experience and his review of various medical records and the 2008 MRI scan. See Theis v. Lane, 6th Dist. Wood No. WD-12-047, 2013-Ohio-729, ¶ 19 (“A review of medical records in a medical malpractice action, as was performed [here], coupled with [] vast experience, are appropriate principles and methodologies to be used by a physician expert in forming medical opinions.“). Aside from the fact that Dr. Gordon did not conduct an actual examination of Mr. Blinn, or view the 2007 x-ray, we can discern no difference between the methods and procedures used by Dr. Gordon and those used by Mr. Blinn‘s expert. The difference between the experts is that, based upon much of the same information, the two came to opposite conclusions as to the cause of Mr. Blinn‘s injury. However, as noted above, the purpose of
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN PERMITTING BALINT‘S MEDICAL BILLING EXPERT TO RENDER OPINIONS WHEN THE OPINIONS WERE NOT SUPPORTED BY FACTS OR DATA PERCEIVED BY THE EXPERT OR
ADMITTED IN EVIDENCE IN CONTRAVENTION OF
EVID.R. 703 AND705 .
{¶34} Mr. Blinn asserts in his second assignment of error that the admission of Mr. Balint‘s medical billing expert‘s testimony violated
III.
{¶35} In light of the foregoing, we overrule Mr. Blinn‘s assignments of error and affirm the judgment of the Summit County Court of Common Pleas.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
CONCURS.
CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶36} I concur in the majority‘s judgment. I would resolve the first assignment of error solely on the basis that Mr. Blinn did not meet his burden of demonstrating that Dr. Gordon based his opinion on information outside the scope of
Just because [the expert] reviewed extensive documentation not in evidence does not necessarily mean that it was the principal basis for his opinion. * * * It was [the] burden [of the party opposing admission of the expert‘s testimony] to establish that the expert, in forming his opinion * * *, relied principally on facts
not perceived by him and not properly admitted into evidence, in violation of
Evid.R. 703 .
{¶37} Mr. Blinn failed to meet his burden of establishing on which facts or data Dr. Gordon principally relied. Accordingly, I agree that Mr. Blinn‘s first assignment of error must be overruled.
APPEARANCES:
TIMOTHY H. HANNA, Attorney at Law, for Appellant.
KIMBERLY K. WYSS and ROBERT J. MCBRIDE, Attorneys at Law, for Appellee.