BUCHMAN, APPELLANT AND CROSS-APPELLEE, v. BOARD OF EDUCATION OF THE WAYNE TRACE LOCAL SCHOOL DISTRICT, APPELLEE AND CROSS-APPELLANT.
No. 94-412
SUPREME COURT OF OHIO
Submitted April 4, 1995—Decided August 23, 1995
73 Ohio St.3d 260 | 1995-Ohio-136
ALICE ROBIE RESNICK, J.
APPEAL and CROSS-APPEAL from the Court of Appeals for Paulding County, No. 11-92-11.
R.C. 2744.05(B) is constitutional.- Social Security and Medicare benefits are the type of collateral source benefits contemplated by
R.C. 2744.05(B) . - Pursuant to
R.C. 2744.05(B) , future collateral benefits, to the extent they can be determined with a reasonable degree of certainty, are deductible from the jury‘s verdict against a political subdivision. - Under
R.C. 2744.05(B) , a collateral benefit is deductible only to the extent that the loss for which it compensates is actually included in the jury‘s award. It is the political subdivision‘s burden to prove the extent to which it is entitled to an offset under R.C. 2744.05(B) .- A political subdivision has a legal right to discover collateral benefits at any time during the pendency of an action against it, irrespective of the issue of admissibility.
Gretick, Bish, Lowe & Roth and Craig L. Roth, for appellant and cross-appellee.
Clemens, Korhn & Liming, John M. Liming and Stephen F. Korhn, for appellee and cross-appellant.
Mark W. Ruf, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.
Means, Bichimer, Burkholder & Baker Co., L.P.A., and Kimball H. Carey, urging affirmance for amicus curiae, Ohio School Boards Association.
Malcolm C. Douglas and John E. Gotherman, urging affirmance for amici curiae, Ohio Municipal League, Ohio Municipal League Joint Self-Insurance Pool and County Commissioners Association of Ohio.
ALICE ROBIE RESNICK, J.
{¶ 1} On September 1, 1989, appellant and cross-appellee, Donald A. Buchman, was driving his automobile south on State Route 127 in Paulding County. His wife Johanna and his two sons, Adam and Paul, were passengers in the car. At the same time, a school bus, empty of passengers, owned by appellee and cross-appellant, Board of Education of the Wayne Trace Local School District (“Wayne Trace“), was stopped at a stop sign controlling westbound traffic on County Road 60 where it intersects with State Route 127. As the Buchmans’ vehicle approached the intersection, the school bus proceeded across State Route 127 and into the path of their vehicle. As a result of the collision, Donald suffered a C5-6 fracture, dislocation and a complete transection of his spinal cord, and was rendered a permanent level C4 quadriplegic.
{¶ 2} On November 20, 1989, the Buchmans filed a complaint against Wayne Trace in the Paulding County Court of Common Pleas. Prior to trial, the claims for the personal injuries of Johanna, Adam and Paul were settled, leaving for trial only a claim for personal injuries to Donald and Johanna‘s claim for loss of consortium.1
{¶ 4} The interrogatories proposed by Wayne Trace concerning Donald‘s damages sought a total monetary figure representing the amount of damages which would fully and fairly compensate Donald, categorized only according to economic and noneconomic damages. It was Wayne Trace‘s position that “[t]here should be no further breakdown other than that from a total amount.”
{¶ 5} The trial court rejected Buchmans’ proposed interrogatories with respect to Donald‘s damages, on the basis that “[t]o break those down into individual elements *** as the Plaintiffs are requesting *** is not necessary *** [and] is really [not] a determinative issue as [
“INTERROGATORY NO. 5
“WHAT IS THE TOTAL AMOUNT OF MONEY DAMAGES THAT WILL FULLY AND FAIRLY COMPENSATE DONALD BUCHMAN FOR HIS PAST MEDICAL BILLS, HOME AIDE CARE EXPENSES, EXPENSES FOR MEDICATION AND SUPPLIES USED AT HOME, LOST WAGES, LOST HOUSEHOLD SERVICES, AND EQUIPMENT COSTS?
“(In answering this question you will totally disregard whether or not Donald Buchman had any fault.)
“$947,684.00”
“INTERROGATORY NO. 6
“WHAT IS THE TOTAL AMOUNT OF MONEY DAMAGES THAT WILL FULLY AND FAIRLY COMPENSATE DONALD BUCHMAN FOR HIS FUTURE MEDICAL BILLS, HOME AIDE CARE EXPENSES, EXPENSES FOR MEDICATIONS AND SUPPLIES USED AT HOME, EQUIPMENT NEEDS, LOST EARNINGS AND LOST EARNING CAPACITY, LOST HOUSEHOLD SERVICES, HOME MODIFICATIONS AND REMODELING EXPENSES, AND COLLEGE TUITION, BOOKS AND SUPPLIES[?]
“(In answering this question you will totally disregard whether or not Donald Buchman had any fault.)
“$3,884,798.00”
“INTERROGATORY NO. 7
“WHAT IS THE TOTAL AMOUNT OF MONEY DAMAGES THAT WILL FULLY AND FAIRLY COMPENSATE DONALD BUCHMAN FOR HIS PAST AND FUTURE PAIN AND SUFFERING (PHYSICAL PAIN, PHYSICAL IMPAIRMENT, LOSS OF ENJOYMENT OF LIFE, PERMANENT INJURIES,
INABILITY TO PERFORM USUAL ACTIVITIES, INCREASED RISK OF FUTURE COMPLICATIONS AND ILLNESS, ANXIETY, MENTAL ANGUISH, EMOTIONAL STRESS, ETC.)? “(In answering this question you will totally disregard whether or not Donald Buchman had any fault.)
“$250,000.00”
{¶ 7} On August 21, 1992, the trial court held a post-verdict hearing to determine the appropriate collateral source deductions to be made under
| “Undisputed collateral benefits | 62,887.82 |
| “Medicare payment of future medical (non-hospital) expenses | 18,077.93 |
| “Medicare payment of future hospitalization expenses | 1,296,945.42 |
| “Social Security disability benefits | 281,324.00 |
| Total | $1,659,235.17” |
{¶ 8} Accordingly, the trial court entered judgment in favor of Donald in the amount of $3,423,246.83.
{¶ 9} The court of appeals reversed, finding many of the trial court‘s calculations speculative. In addition, the court of appeals found that “the interrogatories submitted to the jury were inadequate to permit determination of the specific losses for which the jury awarded compensation, thus compelling the trial court to speculate when calculating collateral benefit deductions.” The court of appeals also held that Social Security payments to Donald‘s children were not in any event deductible benefits pursuant to
{¶ 10} This cause is now before the court upon the allowance of a motion and cross-motion to certify the record.
{¶ 11} Except for a single proposition of law raised by the cross-appeal concerning the use of a party-opponent‘s videotaped deposition, these appeals relate solely to the validity, construction, and application of
I
Collateral Benefit Deductions under R.C. 2744.05(B)
A
Social Security and Medicare
{¶ 13}
“If a claimant receives or is entitled to receive benefits for injuries or loss allegedly incurred from a policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and the amount of the benefits shall be deducted from any award against a political subdivision recovered by that claimant. No insurer or other person is entitled to bring an action under a subrogation provision in an insurance or other contract against a political subdivision with respect to such benefits.”
{¶ 14} In Vogel v. Wells (1991), 57 Ohio St.3d 91, 98, 566 N.E.2d 154, 161, we defined a “benefit” as “‘[f]inancial assistance received in time of sickness, disability, unemployment, etc. either from insurance or public programs such as social security.‘” Id., quoting from Black‘s Law Dictionary (6 Ed.1990) 158.
{¶ 15} Recently, in Galanos v. Cleveland (1994), 70 Ohio St.3d 220, 222, 638 N.E.2d 530, 532, we were “persuaded that Medicaid benefits are the type of collateral source benefits contemplated by
{¶ 16} Accordingly, we hold that Social Security and Medicare benefits are the type of collateral source benefits contemplated by
{¶ 17} The Social Security benefits which Donald‘s children have received or are entitled to receive, however, are not deductible from the jury‘s verdict. No part of the $5,082,482 verdict against which Wayne Trace seeks to offset these benefits was awarded to Donald‘s children. Moreover, these benefits, as explained by John Stevenson, Northwest Ohio District Manager for the Social Security Administration, during the post-verdict hearing, “are for the care and welfare and use of the children.”
{¶ 18} Accordingly, the judgment of the court of appeals is affirmed as to these issues.
B
Future Benefits
{¶ 19} The collateral benefits to be deducted under
{¶ 20} A review of the various provisions on which Buchman relies reveals only that legislative intent cannot necessarily be determined from the General Assembly‘s failure to use time-distinctive language in
{¶ 21} Instead, legislative intent regarding the inclusion or exclusion of future collateral benefits under
{¶ 22} It would clearly contravene the design of the statute to permit recovery of future losses from a political subdivision without allowing an offset for corresponding future collateral benefits.
{¶ 23} In Morris v. Savoy (1991), 61 Ohio St.3d 684, 693, 576 N.E.2d 765, 773, we held
{¶ 24} Accordingly, we hold that pursuant to
C
Matching
{¶ 25} The issue here is whether
{¶ 27} Our analysis in Menefee reflected a two-step process, whereby the court is first required to identify a valid state interest and then required to determine whether the method or means by which the state has chosen to advance that interest is rational. See Schweiker v. Wilson (1981), 450 U.S. 221, 226, 101 S.Ct. 1074, 1079, 67 L.Ed.2d 186, 193; United States RR. Retirement Bd. v. Fritz (1980), 449 U.S. 166, 177, 101 S.Ct. 453, 460, 66 L.Ed.2d 368, 377-378. No determination was made in Menefee as to whether the state may rationally advance its interest in preserving the financial soundness of its political subdivisions by allowing a trial court to deduct collateral benefits from the jury‘s verdict, irrespective of whether such benefits are duplicated in the jury‘s verdict. In other words, we determined in Menefee that the second sentence of
{¶ 28} In Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504, we considered the constitutionality of
{¶ 29} We noted that the purpose of the Act, as stated in its title, was premised on “‘reducing the causes of the current insurance crisis.‘” Id. at 420, 633 N.E.2d at 509. We doubted the validity of this goal “given the paucity of credible empirical evidence that a crisis existed.” Id. at 423, 633 N.E.2d at 511.
{¶ 30} In addition, we found that even if the goals of
{¶ 31} In between the time of the decisions in Menefee, supra, and Sorrell, supra, we decided Morris, supra. In Morris, the majority held that
{¶ 32} Unlike the perceived insurance “crisis” advanced in support of
{¶ 33}
{¶ 34} Accordingly, we hold that under
Procedural Issues
{¶ 35} The primary issue here is whether the court of appeals erred in remanding the cause for a new trial on the issue of damages in order that more detailed interrogatories may be submitted to the jury.
{¶ 36}
{¶ 37} Properly construed,
{¶ 38} Although
{¶ 39} Moreover, in the case sub judice, it was Buchman who actually proposed the interrogatories that would have quantified the categories of damages that made up the jury‘s verdict. Those interrogatories sought an allocation between, among other things, past and future lost wages as well as between past and future hospital expenses; the very categories against which Social Security and Medicare benefits must be offset. Wayne Trace, however, proposed interrogatories which would have categorized the jury‘s verdict only according to economic and noneconomic damages, asserting that “[t]here should be no further breakdown other than that from a total amount.” As this court explained in State v. Kollar (1915), 93 Ohio St. 89, 91, 112 N.E. 196, 197:
“The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted.
“It follows, therefore, that, for much graver reasons, a litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible.”
{¶ 40} Wayne Trace argues, however, that even if it did have a burden to prove its entitlement to an offset under
{¶ 41} Wayne Trace‘s argument rests upon the unstated assertion that had it known, or had the means to know, that Buchman would be eligible for Medicare benefits, it would have proposed (or at least not opposed) an interrogatory quantifying the amount of damages allocated to future hospitalization expenses. This assertion, however, is belied by Wayne Trace‘s position at trial, that there should be no further breakdown of damages from a total amount other than that between economic and noneconomic damages. This position is underscored by the fact that Wayne Trace, who admits in its merit brief that it was fully aware of Buchman‘s entitlement to Social Security benefits, nevertheless opposed a breakdown of jury damages between past and future lost wages and between lost wages and other economic damages.
{¶ 42} Moreover, we reject Wayne Trace‘s explanation of why it failed to seek discovery regarding collateral benefits. Wayne Trace explains that “[a] motion for discovery of collateral benefits would, undoubtedly, have been met with an objection, since there is no legal basis for discovery by a defendant of collateral benefits and such evidence would have been inadmissible at trial. Hence, such a motion would have been a ‘vain thing.‘”
{¶ 43} The fact that
{¶ 44} Thus, we hold that the court of appeals erred in ordering a new trial on the issue of damages in order that more detailed interrogatories may be submitted to the jury, and the judgment of the court of appeals is reversed as to this issue.
Application
{¶ 45} We now turn our attention to determining the extent to which the record, as it stands, supports future collateral source deductions for Social Security and/or Medicare benefits under
1
Social Security Deductions
{¶ 46} The trial court‘s Social Security benefit deductions were calculated on the basis that the payments to Donald‘s children are deductible pursuant to
{¶ 47} Stevenson testified that Donald‘s eligibility for Social Security benefits began in February 1990 in the amount of $914.80 a month. In December 1991, the amount was raised to $967 a month. However, any additional increases are “anybody‘s guess.” Thus, the deductible amount of Social Security benefits between February 1990 and December 1991 is $20,125.60 ($914.80 per month times twenty-two months).
{¶ 48} Beginning December 1991, Donald was entitled to $967 per month. The question remaining is the length of time it is reasonably certain for Donald to receive such benefits.
{¶ 49} Donald‘s eligibility for Social Security benefits is a result of a determination that his condition is “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy ***.”
{¶ 51} Several factors are considered in determining whether an individual has the skills and ability to work at a substantial gainful activity level, including the nature of the work, the performance level, the existence of special conditions, and the time spent at work.
{¶ 52} Specifically, the regulations provide that certain levels of earnings will ordinarily show that an applicant has or has not engaged in substantial gainful activity. If an individual‘s earnings from work averaged more than $500 a month in calendar years after 1989, such work will ordinarily be considered substantial gainful activity.
{¶ 53} The evidence in this case suggests that Donald will be capable of engaging in substantial gainful employment beginning in 1998. Prior to his injury, Donald had attended Ohio Northern University for approximately two years. Subsequent to his injury, in the summer of 1991, Donald enrolled as a student at Defiance College. Between that time and the time of trial, Donald completed four courses and had “gotten straight A‘s.” He is presently a junior in college.
{¶ 54} Donald has definite plans of completing college, becoming a social worker and working at a hospital or physical rehabilitation facility. At the time of trial, he was already vice-president of a spinal cord injury group which was attempting to become associated with the National Spinal Cord Association.
{¶ 55} The medical and vocational experts overwhelmingly agreed that Donald is very motivated, extremely intelligent, and has the capability of completing his education sometime between 1996 and 1998 and becoming a social worker which, in 1996, would carry a starting salary of $25,000 per year.
{¶ 56} The trial court, however, declined to limit collateral benefit setoffs to the period of time prior to Donald‘s anticipated return to work, on the basis of former
“In determining whether an individual is able to engage in substantial gainful activity by reason of his earnings, where his disability is sufficiently severe to result in a functional limitation requiring assistance in order for him to work, there shall be excluded from such earnings an amount equal to the cost (to such individual) of any attendant care services, medical devices, equipment, prostheses,
and similar items and services (not including routine drugs or routine medical services unless such drugs or services are necessary for the control of the disabling condition) which are necessary (as determined by the Secretary in regulations) for that purpose, whether or not such assistance is also needed to enable him to carry out his normal daily functions; except that the amounts to be excluded shall be subject to such reasonable limits as the Secretary may prescribe.”
{¶ 57} The trial court opined that “if Donald Buchman does return to employment (which certainly should be encouraged) the cost of attendant care services, medical devices, equipment, prostheses, and similar items and services necessary to enable him to return to employment will certainly exceed his potential earnings and not disqualify him from any future Social Security disability benefits or Medicare benefits.”
{¶ 58} The record, however, affords an insufficient basis for drawing such a conclusion. The evidence presented both at trial and during the post-verdict collateral benefits hearing is insufficient to permit a determination as to the amount of impairment-related work expenses that would be subtracted from Donald‘s earnings under the conditions and limitations set forth in
{¶ 59} Thus, it cannot be found, to a reasonable degree of certainty, that Donald will receive Social Security benefits beyond 1998. Accordingly, Wayne Trace is entitled to a setoff for Social Security benefits from December 1991 in the
2
Future Medicare Deductions
{¶ 60} In order to make a determination as to the amount of Medicare Part A benefits to be deducted from the jury‘s verdict pursuant to
{¶ 61} The trial court made two sets of findings. First, it found that the jury awarded future hospital damages to Donald on the basis that Donald would be hospitalized an average of thirty days per year at an average cost of $2,751 per day over a fifteen-year life expectancy period.
{¶ 62} Second, the trial court attempted mathematically to isolate that portion of the jury‘s verdict attributable to future hospital costs. The court purportedly accomplished this by subtracting various amounts of nonhospital future damages from the $3,884,798 awarded by the jury under Interrogatory No. 6. Initially, the court segregated the various damage components comprising Interrogatory No. 6 into future losses that are independent of life expectancy and those that are dependent upon life expectancy. The court identified the former as “future lost earnings, future lost household services that would have been performed by Donald Buchman, and future college expenses.”
{¶ 64} Next, the trial court subtracted three categories of future nonhospitalization damages that are dependent upon Donald‘s life expectancy. In computing these amounts, the court essentially multiplied by sixty percent the projections made for each respective category by the Buchmans’ economist, Dr. Harvey Rosen, over a twenty-five-year life expectancy. Thus, the trial court subtracted $86,448 for future nonhospital medical expenses, $1,170,790.80 for future home health care (apparently computed on the basis of $8.50 per hour, twenty-four hours a day), and $134,516.40 for future equipment expenses.
{¶ 65} The trial court opined that the amount that remained after subtracting these nonhospitalization damages, i.e., $1,317,772.80, must represent the amount awarded by the jury “for the cost of future hospitalizations over the next 15 years.” The court reasoned that “the similarity between these figures and the result obtained when you calculate the cost of 30 days hospitalization at $2,751.00 per day for 15 years (30 days x $2,751.00/day x 15 yrs. = $1,237,950.00) is more than coincidental.”
{¶ 66} The trial court then found that Medicare will pay all future hospitalization expenses over the next fifteen years, after Donald satisfies a $652 deductible per period of hospitalization. The court assumed, per the suggestion of Wayne Trace, that the thirty days of hospitalization per year would fall into two deductible periods, thus requiring Donald to pay $20,827.38 in Medicare Part A deductibles over the next fifteen years. The trial court then deducted the $20,827.38 from the $1,317,772.80 figure, concluding thereby that Donald will receive
{¶ 67} The trial court‘s formula assumes one of many possible combinations of jury findings concerning Donald‘s future damages. It assumes, e.g., that the jury chose to award a total of $1,175,270 to Donald in damages unrelated to life expectancy. Yet, Dr. Harvey Rosen, plaintiff‘s economic expert, actually performed four separate calculations concerning Donald‘s lost wages alone, ranging between $901,040 and $1,659,708, depending upon Donald‘s projected age of retirement and expected promotions. The jury could have chosen any one of these figures, especially since there was sufficient testimony upon which the jury could have found that Donald would have received several promotions.
{¶ 68} The same is true as to the trial court‘s finding that the jury awarded $1,170,790.80 for future home health care. This figure was obviously arrived at by taking sixty percent of Dr. Rosen‘s calculations based on $8.50 per hour, for twenty-four hours per day, over a twenty-five-year life expectancy period. However, Dr. Rosen also performed calculations for future home health care based on $8 and $12 per hour, and for eight and sixteen hours per day, for a range in future home health care costs between $612,178 and $2,754,802. Moreover, the testimony at trial was sufficient to allow the jury to choose any of these calculations or a hybrid thereof.
{¶ 69} In addition, it is not a foregone conclusion that the jury opted to accept Dr. Rosen‘s figures coupled with a fifteen-year life expectancy. The record reflects a range of expert opinions regarding future hospitalizations between ten and thirty days per year at a cost of at least $1,300 per day; a range of differing opinions as to Donald‘s life expectancy between one year following trial and approximately twenty-four years; evidence regarding Donald‘s capability of returning to employment as a social worker between 1996 and 1998, after completing his education, at a starting salary of between $22,000 and $25,000; and widely divergent views on the amounts and methods used to calculate future
{¶ 70} Given the vastly divergent expert opinions on the issues that underlie the trial court‘s calculations, as well as the multitude of possible combinations thereof, there is simply no way to determine, with any reasonable degree of certainty, how the jury actually allocated Donald‘s future damages amongst the various damage components of Interrogatory No. 6. The methodology employed by the trial court, based as it is on so many unverifiable assumptions, places its calculations beyond the boundaries of the “reasonable degree of certainty” standard.
{¶ 71} Nevertheless, we cannot simply ignore that the verdict obviously comprises an award for future hospitalizations. It would be patently unjust, and contrary to
{¶ 72} We hold, therefore, that Wayne Trace is entitled to a setoff against the verdict for future Medicare Part A benefits up to an amount that corresponds to the minimum amount that the jury could have awarded for future hospitalizations based on the evidence in the record. If we were to assume that the jury awarded more for future hospital costs than the minimum amount reflected in the record, we would be engaging in speculation.
{¶ 73} The minimum amount that the jury could have awarded Donald for future hospitalizations, based on the evidence in the record, is an amount equal to ten days per year at a cost of $1,300 per day over a ten-year life expectancy.5 Thus,
{¶ 74} We find that Donald will be eligible for Medicare over the ten-year period beginning February 1992. Stevenson testified that Donald became entitled to Medicare Part A benefits in February 1992 and that if such benefits were to be terminated on the basis of his return to substantial gainful activity, such termination would become effective thirty-nine months after Social Security disability benefits ceased (sometime in late 1998).
{¶ 75} The same considerations apply to Medicare Part B payments. Thus, Wayne Trace is entitled to a deduction for Medicare Part B payments in the amount of $10,928 ($1,466 per year in covered medical expenses minus $100 yearly Medicare Part B deductible, multiplied by ten years, and then multiplied by eighty percent).
3
Judgment Modified
{¶ 76} Accordingly, we modify the judgments of the courts below as they relate to
| Verdict | $5,082,482.00 |
| Collateral benefit setoffs | |
| 1. undisputed | 62,887.82 |
| 2. future Medicare benefits | |
| a - Part A | 123,480.00 |
| b - Part B | 10,928.00 |
| 3. Social Security benefits | 101,353.60 |
| TOTAL | $4,783,832.58 |
II
Cross-Appeal; Videotaped Deposition
{¶ 77} On June 3, 1992, Wayne Trace took the videotaped deposition of Dr. Michael J. DeVivo at the Spain Rehabilitation Center, University of Alabama-Birmingham. At the time, Dr. DeVivo was an epidemiologist, an assistant professor at the University of Alabama-Birmingham and the manager of analytic services for the National Spinal Cord Injury Statistical Center. Also, at the time, it was Wayne Trace‘s intention to call Dr. DeVivo as a witness on its behalf.
{¶ 78} Prior to trial, however, Wayne Trace decided not to present Dr. DeVivo‘s deposition to the jury. Instead, the Buchmans played Dr. DeVivo‘s videotaped deposition to the jury as part of their case-in-chief.
{¶ 79} Wayne Trace claims that it was error to permit the Buchmans to use the videotaped deposition of Dr. DeVivo. It is Wayne Trace‘s position that although
{¶ 80} Wayne Trace‘s entire argument is undercut by the Staff Notes (1972) to
“Rule 32(A) Use of Depositions
“The first sentence of Rule 32(A) has been amended to provide that a deposition may be ‘presented as evidence’ at trial. The quoted language replaces that language of the first sentence of the rule which had provided that a deposition may be ‘read in evidence’ at trial. “Rule 30(B)(3) provides that a deposition may be ‘recorded by other than stenographic means.’ The language ‘by other than stenographic means’ obviously includes all forms of electronic recording of depositions including videotape. An electronically recorded deposition, under the appropriate circumstances for use of depositions at trial as provided by the subdivisions of Rule 32, would be ‘presented as evidence’ and not ‘read into evidence.’ Of course, a stenographically recorded deposition would be ‘presented as evidence’ at trial by ‘reading’ the deposition in evidence.”
{¶ 81} Accordingly, Wayne Trace‘s argument lacks merit, see, also, DiMarco v. Bernstein (Oct. 13, 1988), Cuyahoga App. No.54406, unreported, and the judgment of the court of appeals is affirmed as to this issue.6
Summary
{¶ 82} The judgment of the court of appeals is affirmed in part and reversed in part. The jury verdict against Wayne Trace in favor of Donald Buchman is reinstated, but shall be reduced as set forth in Part I (E)(3), of this opinion.
Judgment affirmed in part and reversed in part.
DOUGLAS and F.E. SWEENEY, JJ., concur.
MOYER, C.J., WRIGHT and COOK, JJ., concur in part and dissent in part.
PFEIFER, J., concurs in paragraph four of the syllabus and in judgment only.
WRIGHT, J., concurring in part and dissenting in part.
{¶ 83} I concur in paragraphs one, two, three, five and six of the syllabus in this case. However, for the reasons stated in Chief Justice Moyer‘s dissenting opinion in Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504, which I joined, I believe that
MOYER, C.J., and COOK, JJ., concur in the foregoing opinion.
{¶ 84} I concur in paragraph four of the syllabus and in judgment only. I would apply this court‘s analysis in Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504, to this case and hold that