Gold v. BurnhamGold v. Burnham
Rendered on April 14, 2015
The Behal Group, LLC and John M. Gonzales, for appellant.
Gallagher, Gams, Pryor, Tallan & Littrell, and Mitchell M. Tallan, for appellees.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Plaintiff-appellant, Michael E. Gold, appeals from a judgment of the Franklin County Court of Common Pleas, entered upon a jury verdict in his favor. Plaintiff asserts the following sole assignment of error for our review:
The trial court erred as a matter of law and abused its discrеtion by excluding evidence of the Ohio Bureau of Workers’ Compensation‘s statutory lien.
{¶ 2} Because the trial court did not plainly err by excluding evidence of the statutory lien, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} On October 19, 2012, plaintiff filed a complaint against defendant-appellee, Marjorie A. Burnham, asserting that he had incurred damages as a result of her
{¶ 4} On February 21, 2013, the BWC filed a motion to intervene in the action and align as a new party plaintiff. The BWC sought to intervene in the action “for the purpose of asserting its statutory subrogation claim with respect to any recovery due the Plaintiff.” (Motion to Intervene, 1.) The court granted the motion.
{¶ 5} On November 25, 2013, defendant filed a motion in limine asking the court to exclude all evidence relating to plaintiff‘s claim with the BWC. Defendant noted that the primary issue in the court action was whether the January 12, 2009 accident proximately caused plaintiff‘s shoulder injury. Plaintiff had surgery on his shoulder on January 4, 2012. The BWC had approved plaintiff‘s shoulder injury as an allowed condition, and had paid mediсal bills relating to the shoulder injury. Plaintiff responded to the motion in limine, asserting that the “industrial claim permeate[d] the case,” that “hiding it from the jury [would] be next to impossible,” and that there was “no practical way to separate the injury from the workers compensation claim without prejudicing Mr. Gold and the BWC.” (R. 48, Plaintiff‘s Combined Response, 2.)
{¶ 6} A jury trial commencеd on January 7, 2014. Regarding the motion in limine, the court initially asked plaintiff‘s counsel how his client would be prejudiced if the court did not allow evidence of the BWC payments or of the BWC‘s subrogated lien to be admitted at trial. Plaintiff‘s counsel stated that, potentially, his client would not be prejudiced, stating that, “[i]f I can get Exhibit 1 in, which are the amount of the total mediсal bills, the amount the bureau paid, and the amount Mr. Gold was responsible for, then the plaintiff has no problem with your excluding the evidence. * * * All I care about are the medical bills that have been incurred, and I am okay with telling the jury the Robinson numbers of what has been paid.” (Tr. 18-19.)
{¶ 7} The court then stated that, regarding “the presentation of evidence relаted to the bureau‘s statutory subrogated lien,” the court ruled as follows:
I had an opportunity to review again the Posel versus Dayton Power & Light decision, * * *. I also reviewed the Ross versus Nappier decision.
Based on my review, it appears to me that the Ross decision was written to address a specific set of circumstances that should not have existed under ordinary trial circumstances, and the court notes the unusual nature of the circumstances presented in that case in that the record was replete with references to collateral source evidence that likely should have not been introduced and evidence also of some subrogated interests that should nоt be introduced.
So to that extent, I think that the holding in Ross is limited to the unique circumstances outlined in that particular case. This court finds the Posel decision to be more persuasive where the court first found that the trial court has broad discretion in balancing the probative value of evidence against its potential for unfair prejudice.
This court believes that an introduction of any amounts paid or in dispute on behalf of BWC would be misleading to this panel. It would be more prejudicial then probative.
* * *
I am not interested in having a convoluted set of circumstances for this panel to review. I think that having the bureau present that evidence would be more prejudicial than probative.
The Posel court indicates that this issue is not one of settled Ohio law, and so at some point it will be settled, but the way that I am going to settle it today is that I am going to disallow that presentation as outlined in Mr. Tallan‘s oral motion in limine.
Mr. Tallan has indicated that he will or he does not have disagreement that the court may instruct that the BWC did pay funds to plaintiff, that the verdict should not in any way be influenced by the payment of those funds. Is that correct, Mr. Tallan?
MR. TALLAN: Yes, Your Honor.
THE COURT: Does that still stand?
MR. TALLAN: It does.
THE COURT: All right. I am certain that [plaintiff‘s counsel] has an objection. I will make that instruction to this panel. That is the way that the court is going to rule on this issue.
(Tr. 27-30.)
{¶ 8} Despite the court‘s indication, plaintiff‘s counsel did not object to the court‘s ruling.
{¶ 9} Consistent with the court‘s ruling, the record demonstrates that both plaintiff‘s counsel and defendant‘s counsel briefly referenced the fact that the BWC had paid a portion of plaintiff‘s medical bills. Plaintiff‘s counsel presented exhibit No. 1 to plaintiff, and plaintiff explained that exhibit No. 1 outlined “all of the medical bills that were accrued because of this accident.” (Tr. 105.) Plaintiff explained that exhibit Nо. 1 showed “the total bill amount, how much the BWC -- as we talked about, I had to deal with BWC and the delays in this entire process -- this is what they paid out for the medical bills; and then the column labeled Mike Gold is what I am ultimately financially responsible for.” (Tr. 105.) On cross-examination, defense counsel also addressed exhibit No. 1, and asked plaintiff, “Let‘s take this particular bill whеre BWC pays $6,300 on a $53,000 bill, you understand that there is no obligation to pay anything else after that, right?” (Tr. 108-09.) Plaintiff indicated he did not know “one way or another” if he owed the $47,000 difference. (Tr. 109.) Despite these brief discussions of the BWC payments, the majority of the transcript before this court consists of a discussion of the accident, of plaintiff‘s employment following the accident, and of the events which led to plaintiff‘s shoulder surgery.
{¶ 10} The jury entered an $8,425.91 verdict in plaintiff‘s favor. Through interrogatories, the jury identified that $5,050.91 of the award was for economic damages, with $4,850.91 representing the medical bills and $200.00 representing the lost wages, and that $3,375.00 of the award was for non-economic damages. The court accordingly еntered judgment in plaintiff‘s favor, and noted in the judgment entry that pursuant to
II. NO PLAIN ERROR
{¶ 11} Plaintiff asserts that the “only issue on appeal is whether the trial court abused its discretion by keeping the fact that Mr. Gold was required to pay back the BWC lien from the jury.” (Appellant‘s brief, 1.) Defendant contends that plaintiff “failed to properly object and/or preserve his right to appeal as it pertains to any argument that the jury should have been instructed as to the mechanics of OBWC‘s lien.” (Appellee‘s brief, 17.) Based on the record before us, we agree that plaintiff failed to preserve this issue for appeal.
{¶ 12} Plaintiff filed only an excerpted portion of the entire trial transcript for this court to review. The excerpted portion of the transcript contains the initial conversations between the court and counsel, opening statements, and the plaintiff‘s testimony during plaintiff‘s case-in-chief. Plaintiff also did not file any of the trial exhibits with this court. The duty to provide a transcript for appellate review falls upon the appellant. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980); see also
{¶ 13} A motion in limine is a request ” ‘that the court limit or exclude use of evidence which the movant believes to be imprоper, and is made in advance of the actual presentation of the evidence to the trier of fact, usually prior to trial.’ ” Gordon v. Ohio State Univ., 10th Dist. No. 10AP-1058, 2011-Ohio-5057, ¶ 82, quoting State v. Winston, 71 Ohio App.3d 154, 158 (2d Dist.1991). “[A] motion in limine is a preliminary
{¶ 14} However, failure to draw the court‘s attention to possible error, by objection or otherwise, when the error could have been corrected, results in a waiver of the issue for purposes of appeal, absent plain error. In re Ebenschweiger, 12th Dist. No. CA2003-04-080, 2003-Ohio-5990, ¶ 9-10. “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and * * * [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer.”
{¶ 15} When the court granted defendant‘s motion in limine, and held that evidence of the BWC‘s subrogated lien would be excluded from trial, plaintiff failed to object or otherwise рroffer evidence concerning the lien. (See Tr. 27-31.) On appeal, plaintiff asserts that he did proffer evidence regarding the BWC‘s statutory lien when he attempted to call Howard Sanders, a BWC representative, to testify during plaintiff‘s case-in-chief. (Reply brief, 1-2.) Our review of the available record, however, indicates that the proffered еxhibit and testimony did not concern the BWC‘s statutory lien.
{¶ 16} When counsel attempted to call Sanders to testify, counsel acknowledged the court‘s ruling “following the federal district court in keeping evidence of the BWC lien, to the extent possible, out of the case,” and stated that he would show the court “exactly
{¶ 17} Thus, it appears that the proffered exhibit was merely a timeline of the events which occurred in plaintiff‘s case before the BWC. The record does not indicate whether the proffered exhibit concerned the BWC‘s statutory lien, and counsel expressly stated that Sanders’ testimony would be limited to discussing the time line events. As such, the record fails to demonstrate that plaintiff proffered evidence relating to the BWC‘s statutory lien. Plaintiff thus failed to preserve this issue for appeal, and we accordingly review for plain error only.
{¶ 18}
{¶ 19} Plaintiff acknowledges that
{¶ 20} In Ross, the trial court granted the defendant‘s motion in limine to exclude evidence of the BWC‘s
{¶ 21} Additionally, we note that Ross had “proffered Exhibit 4, the subrogation interest worksheet,” and proffered the “proposed testimony of bureau attorney Leuchtag,” who would hаve testified regarding Ross‘s statutory obligation to repay the bureau in an amount determined by the statutory formula. Id. at ¶ 20. The court noted that “[b]y proffering the exhibit and proposed testimony of Leuchtag, Ross preserved this issue for review.” Id. at ¶ 24. The BWC was not a party in the Ross action.
{¶ 22} In Posel, the district court granted the motion in limine of the defendant, Mid-Atlantic Construction, Inc., to exclude evidence of paymеnts made by Zurich American Insurance Company to the plaintiff, pursuant to a workers’ compensation claim Zurich administered and covered. The Posel court acknowledged the Ross
{¶ 23} Unlike Posel, the trial cоurt herein allowed evidence of collateral source payments, but excluded evidence of the BWC‘s subrogated lien. However, we cannot say that the trial court‘s evidentiary ruling challenges the legitimacy of the underlying judicial process itself. To the contrary, the trial court made an informed ruling after considering relevant case law. Additionally, unlike Ross, the record before this court is not saturated with evidence of workers’ compensation benefit payments. Indeed, in the excerpted portion of the transcript filed by plaintiff, there are only brief references to the BWC payments. The excerpted transcript does not indicate whether exhibit No. 1 was admitted into evidence, and the record on appeal does not contain exhibit No. 1 for this court to review. Moreover, unlike Ross, there is no evidence of juror confusion in the record before us. Accordingly, we find that the trial court did not commit plain error by refusing to admit evidence of the BWC‘s statutorily subrogated lien at trial.
{¶ 24} Based on the foregoing, plaintiff‘s sole assignment of error is overruled. As such, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and LUPER SCHUSTER, JJ., concur.