MARILYN L. LUCKETT, PLAINTIFF-APPELLANT, v. MARSHA P. RYAN, ADMINISTRATOR, BWC, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 1-10-49
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
June 20, 2011
2011-Ohio-2999
Administrative Appeal from Allen County Common Pleas Court Trial Court No. CV090379 Judgment Affirmed
James C. Ayers for Appellant
Hilla M. Zerbst and Catherine F. Lacho for Appellee, CFA Staffing
Andrew J. Alatis for Appellee, Admr., Ohio B.W.C.
PRESTON, J.
{¶1} Plaintiff-appellant, Marilyn L. Luckett (hereinafter “Luckett“), appeals the Allen County Court of Common Pleas’ judgment adopting the jury‘s determination that she was not entitled to participate in thе benefits of the Workers’ Compensation Act for the additional condition of “closed head injury.” For the reasons that follow, we affirm.
{¶2} On September 9, 2006, Luckett was struck in the back of her head with a box containing empty liquid laundry detergent bottles while working for C.F.A. Staffing, Inc. at the Proctor and Gamble distribution center in Lima, Ohio. (May17-18, 2010 Tr. at 99); (Dоc. No. 2, Ex. A). The box that struck Luckett weighed two pounds, eight ounces (2.0 lbs. 8.0 oz.) and measured twelve inches (12“) by eleven inches (11“) by eight inches (8“) by sixteen inches (16“). (May 17-18, 2010 Tr. at 157, 171).
{¶3} On September 11, 2006, Luckett filed claim no. 06-859138 with the Ohio Bureau of Workers’ Compensation (“BWC“) alleging that she suffered cervical sprain and a closed head injury as a result of thе accident. (Doc. No. 28, Ex. 4); (P‘s Ex. 4). Luckett‘s claim was originally allowed for contusion of the scalp. (Doc. No. 2, Ex. A).
{¶4} On October 23, 2008, Luckett filed a motion with the BWC for the following additional allowances arising from her accident: (1) cervical
{¶5} Both parties appealed the decision, and, on February 4, 2009, the Staff Hearing Officer affirmed the District Heаring Officer‘s additional allowances for cervical, thoracic, and lumbar strain/sprain, but disagreed with the additional allowance for closed head injury. (Doc. No. 2, Ex. B).
{¶6} On February 20, 2009, the Ohio Industrial Commission affirmed the Staff Hearing Officer‘s decision. (Doc. Nos. 1-2).
{¶7} On April 20, 2009, Luckett filed a notice of appeal and a complaint against the BWC Administrator and C.F.A., Inc. in the Allen County Court of Common Pleas pursuant to
{¶8} On May 11, 2010, Luckett filed a motion in limine seeking to exclude from trial: the testimony of Drs. Neidhardt and Chavez concerning Luckett‘s other emergency room visits after the work-related injury; the medical records created as a result of these visits; and testimony concerning Luckett‘s previous medical history. (Doc. No. 24). Luckett argued that the testimony was irrelevant and the medical records were both irrelevant and inadmissible as hearsay. (Id.).
{¶10} On May 17, 2008, before the jury trial commenced, the trial court issued its orders on the depositions of Drs. Chavez and Neidhardt. (Doc. Nos. 31-32). That same morning before the jury trial commenced, the trial court ruled that: the ICD codes were inadmissible; Luckett‘s testimony was admissible; the extent of injury was admissible; the medical evidence presented to the experts was admissible; testimony concerning Luckett‘s possible drug-seeking and symptom magnification was admissible for imрeachment purposes; and impeachment of the experts was admissible. (May 17-18, 2010 Tr. at 3).
{¶11} On May 17-18, 2010, the matter was presented to the jury, and, on May 18, 2010, the jury rendered its verdict, finding that Luckett was not entitled to
{¶12} On June 21, 2010, the trial court entered judgment upon the jury‘s verdict, and, thereafter, filed an amended judgment entry reflecting the same on July 8, 2010. (Doc. Nos. 37-38).
{¶13} On July 20, 2010, Luckett filed a notice of appeal. (Doc. No. 40). Luckett now appeals raising three assignments of error raising evidentiary matters, which we will combine for our analysis.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF THE PLAINTIFF-APPELLANT WHEN IT PERMITTED DEFENDANTS-APPELLEE [SIC] EXHIBITS, OVER OBJECTION, THAT WERE NEITHER AUTHENTICATED NOR RELEVANT TO THE ISSUES AND TO WHICH NO WITNESSES WERE CALLED TO TESTIFY AS TO THE TRUTHFULNESS OF THE MATTER WITHIN WHEREBY HEARSAY AND HEARSAY WITHIN HEARSAY WAS ADMITTED.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF THE PLAINTIFF-APPELLANT WHEN IT PERMITTED DEFENDANTS-APPELLEE [SIC], TO SOLICIT OPINIONS OF THEIR MEDICAL EXPERT WITNESS, JOSE CHAVEZ, M.D., OVER OBJECTIONS (105 OBJECTIONS OVERRULED), CONCERNING MATTER [SIC] WITHIN EXHIBITS NOS. B THROUGH W THAT WERE NEITHER AUTHENTICATED NOR RELEVANT TO THE ISSUES AND TO WHICH NO WITNESSES WERE CALLED TO TESTIFY
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF THE PLAINTIFF-APPELLANT WHEN IT PERMITTED, OVER OBJECTIONS (36 OBJECTIONS OVERRULED), DEFENDANTS-APPELLEES’ COUNSEL ON CROSS-EXAMINATION TO EITHER READ, OSTENSIBLY AS A QUESTION, OR REQUEST THAT DR. NEIDHARDT READ, OSTENSIBLY AS AN ANSWER TO A QUESTION, STATEMENTS FROM APPELLEES’ EXHIBITS B THROUGH I, THAT WERE NEITHER AUTHENTICATED NOR RELEVANT TO THE ISSUES, AND TO WHICH NO WITNESSES WERE CALLED TO TESTIFY AS TO THE TRUTHFULNESS OF THE MATTER WITHIN; THEREBY INTRODUCING IRRELEVANT MATTER [SIC] AND HEARSAY STATEMENTS INTO THE RECORD THAT WERE UNDULY PREJUDICIAL TO APPELLANT.
{¶14} In her three assignments of error, Luckett argues that the trial court erred by allowing several of her medical records and testimony regarding those medical records into evidence since: (1) the medical records were not properly authenticated; (2) the medical records and testimony related thereto was irrеlevant; and (3) the medical records and testimony related thereto was inadmissible hearsay.
{¶15} As a preliminary matter, we note that, on January 13, 2011, Luckett filed a motion to withdraw her arguments related to the authenticity of the medical
{¶16} “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without thе evidence.”
(A) Exclusion mandatory
Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.(B) Exclusion discretionary
Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless prеsentation of cumulative evidence.
{¶17} Hearsay evidence is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medicаl history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
* * *
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, еvents, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(1), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
“’
{¶18}
[T]hose portions of hospital records made in the regular course of business and pertaining to the business of hospitalization and recording observable acts, transactions, occurrences or events incident to the treatment of a patient are admissible, in the absence of privilege, as evidence of the facts therein recorded, insofar as such records are helpful to an understanding of the medical or surgicаl aspects of the case, provided such records have been prepared, identified and authenticated in the manner specified in the statute itself. (Citations omitted).
Such a hospital or physician‘s office record may properly include case history, diagnosis by one qualified to make it, conditiоn and treatment of the patient covering such items as temperature, pulse, respiration, symptoms, food and medicines given, analysis of the tissues or fluids of the body and the behavior of and complaints made by the patient. (Citations omitted).
{¶19} A trial court has broad discretion to determine whether to admit or excludе evidence. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66, 567 N.E.2d 1291. As such, we will not disturb the trial court‘s decision on that issue unless the trial court abused its discretion. Id. An abuse of discretion suggests the trial court‘s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶20} With these applicable rules in mind, we turn to the medical records at issue in this case. Dr. Neidhardt, the St. Rita‘s Emergency Room physician who treated Luckett on November 11, 2006 and diagnosed her with a “closed head injury,” identified exhibits B, C, D, E, and F as CT scan reports for Luckett dated 11/02/06, 12/5/06, 4/10/08, and 7/30/08. (Neidhardt Depo. at 5-8, 21-28); (May 17-18, 2010 Tr. at 133). Dr. Neidhardt testified that each of these CT scans were “normal” or “unremarkable,” meaning “that the radiologist could not see anything on the x-ray image that seemed out of the ordinary.” (Neidhardt Depo. at 21-31). Neidhardt further testified that exhibits B, C, D, E, and F were true and accurate copies kept in the ordinary course of business. (Id. at 29). Contrary to Luckett‘s arguments, we find that these exhibits were relevant to whether or not Luckett suffered a closed head injury on Septеmber 9, 2006 as a result of her workplace injury. Furthermore, since the record contains testimony from a qualified witness that the CT scans were true and accurate copies kept in the ordinary course of business, we cannot conclude that the trial court abused its discretion by allowing the CT scans to be admitted as businеss records under
{¶22} “[T]he credibility of a witness who testifies at trial is always in issue. For that reason, a witness‘s credibility may be imрeached by extrinsic evidence probative of the witness‘s bias, prejudice, interest, or motive to misrepresent.” Damron v. CSX Transp., Inc., 184 Ohio App.3d 183, 2009-Ohio-3638, 920 N.E.2d 169, ¶53, citing
{¶23} Several other medical reports also contained statements Luckett made to mediсal providers for purposes of medical treatment, admissible under
{¶24} Finally, Luckett argues that the trial court committed plain error by allowing exhibits B through I into evidence. We disagree. We have already concluded that exhibits B, C, D, E, and F, Luckett‘s CT scan reports, were admissible under
{¶25} Luckett‘s three assignments of error are, therefore, overruled.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
/jlr