MARY SLIWINSKI, Aрpellant v. THE VILLAGE OF ST. EDWARDS, et al., Appellees
C.A. No. 27247
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
October 22, 2014
2014-Ohio-4655
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2009 05 4106
Dated: October 22, 2014
WHITMORE, Judge.
{1} Plaintiff-Appellant, Mary Sliwinski, executrix of the estate of Alice Sekerak, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I
{2} In December 2005, Alice Sekerak suffered a stroke and was admitted to the Village at St. Edwards (“the Village“) for rehabilitation. Sekerak was 86 years old and had a history of various health problems, but was expecting to return home after rehabilitation at the Village. Dr. Robert Norman was selected to be Sekerak‘s attending physician while she remained a resident.
{3} At some point during Sekerak‘s stay, Mary Sliwinski, Sekerak‘s daughter and executrix of her estate, contacted the Ohio Department of Health (“ODH“) to report her concerns about the care being provided to Sekerak. On March 9, 2006, ODH investigated and produced a written report. Sekerak, still a resident at the Village, passed away on March 10, 2006.
II
Assignment of Error
THE JURY VERDICT FOR THE DEFENDANTS WAS PROCURED BY JUDICIAL ERRORS AND EVIDENTIARY FAILURES[.]
{5} In her sole assignment of error, Sliwinski argues that the court erred by: (1) failing to conduct a Daubert hearing, (2) refusing to take judicial notice of Ohio Administrative Code (“OAC“) regulations, and (3) excluding ODH‘s survey results from discovery depositions and trial.
Daubert
{6} Sliwinski first argues that the court erred by failing to conduct a separate Daubert hearing before allowing the Appellees’ experts to testify at trial. We disagree.
{7} As a preliminary matter,
{8} Sliwinski does not appear to argue that the Appellees’ experts were not competent to testify. Instead, she argues that the court was required to hold a hearing to detеrmine whether their testimony was admissible under
{9}
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 еxperiment 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.
{10} “The qualification and reliability requirements of
{11} The determination as to the admissibility of expert testimony is a matter within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Miller at 616. An abuse of discretion indicates that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{12} The Appellees presented three expert witnesses, Nurse Denise Winzler, Dr. Timothy Fetterman, and Dr. Mark Evans. Nurse Winzler is a registered nurse аnd a licensed nursing home administrator. She is currently employed with HCR Manorcare overseeing four long-term care facilities to ensure quality of patient care. In her duties, Nurse Winzler reviews patients’ charts to determine if the nursing staff is following HCR‘s policies and procedures and maintaining the appropriate standard of care. Nurse Winzler has also worked as a Dirеctor of Nursing in a long-term care facility. Nurse Winzler is qualified by her specialized knowledge, skill, experience, and education to testify about the standard of care for nursing staff in a long-term care facility. Further, her testimony of that standard of care is beyond the knowledge possessed by a lay person. Therefore,
{14} At trial, Sliwinski‘s primary contention appears to focus on
{15} Upon review, the trial court did not abuse its discretion by determining that the testimony of the Appellees’ three experts was admissible under
{16} Sliwinski‘s assignment of error, as it relates to the admissibility of the expert witnesses’ testimony, is overruled.
Judicial Notice
{17} Sliwinski further argues that the court erred in refusing to take judicial notice of OAC regulations. However, the issue of the admissibility of the OAC regulations was not preserved for appeal.
{18} In November 2013, Sliwinski filed a motion, pursuant to
{19} “A motion in limine ‘is a precautionary request, directed to the inherent discretion of the trial judge, to limit the examination of witnesses by opposing counsel in a specified area until its admissibility is determined by the court outside the presence of the jury.‘” State v. Gay, 9th Dist. Summit No. 26487, 2013-Ohio-4169, ¶ 28, quoting State v. Echard, 9th Dist. Summit No. 24643, 2009-Ohio-6616, ¶ 3. “At trial it is incumbent upon [the party], who has been
{20} Sliwinski did not raise the issue of the admissibility of the OAC regulations at trial to enable the trial court to make a final determination as to the admissibility. Therefore, she has failed to preserve for appeal her argument that the court erred in excluding the regulations at trial. Sliwinski‘s assignment of error, as it relates to the OAC regulations, is overruled.
ODH Surveys
{21} Lastly, Sliwinski аrgues that the court erred in finding that the ODH survey was, by statute, inadmissible at trial and by prohibiting her from deposing witnesses about the survey.
a. Admissibility at trial
{22} The trial court concluded that the ODH survey was inadmissible “[p]ursuant to
{24}
{25}
The results of a survey of a nursing facility that is conducted under section
5165.64 of the Revised Code, including any statement of deficiencies and all findings and deficiencies cited in the statement on the basis of the survey, shall be used solely to determine the nursing facility‘s compliancе with certification requirements or with this chapter or another chapter of the Revised Code. Those results of a survey, that statement of deficiencies, and the findings and deficiencies cited in that statement shall not be used in any court or in any action
or proceeding that is pending in any court and are not admissible in evidence in any action or proceеding unless that action or proceeding is an appeal of an administrative action by the department of [M]edicaid or contracting agency under this chapter or is an action by any department or agency of the state to enforce this chapter or another chapter of the Revised Code.
Nothing in this section prohibits the results of a survey, a statement of deficiencies, or the findings and deficiencies cited in that statement on the basis of the survey under this section from being used in a criminal investigation or prosecution.
Thus, the results of an ODH survey are not admissible except in: (1) an appeal of an administrative action by the department of Medicaid (or contracting agency), (2) an action by a state department or agency to enforce a chapter of the Revised Code, or (3) criminal proceedings. Because Sliwinski‘s case does not fall within any of these three categories, the trial court did not err in finding that the ODH survey was inadmissible at trial.
{26} To the extent Sliwinski argues that
{27} A review of the ODH survey papers proffered by Sliwinski at trial, reflect that the documents were produced pursuant to
{28} Additionally, the documents proffered were in compliance with
{29} Having reviewed the documents proffered by Sliwinski, we cоnclude that
b. Discovery Deposition
{30} Sliwinski further argues that the court erred by prohibiting her from deposing witnesses about the ODH survey. This argument, however, was never made to the trial court and, therefore, has not been preserved for appeal.
{32} Based on Sliwinski‘s limited argument before the trial court, we conclude that she has waived any argument on appeal that the Civil Rules permitted her to depose or re-depose witnesses about the inadmissible ODH survey. See Bigler v. Personal Serv. Ins. Co., 7th Dist. Belmont No. 12 BE 10, 2014-Ohio-1467, ¶ 82 (“[W]hen a party raises one specific theory in support of admission of evidence below, he waives on appeal the theories not raised.“).
{33} Sliwinski‘s assignment of error, as it relates to the ODH survey, is overruled.
III
{34} Sliwinski‘s sole assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
There were reasonable grounds for this appeal.
Judgment affirmed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
JOHN WOOD and DENNIS NIERMANN, Attorneys at Law, for Appellant.
MARIN T. GALVIN and STEPHAN C. KREMER, Attorneys at Law, for Appellee.
BRET C. PERRY and DONALD H. RICHARDSON, Attorneys at Law, for Appellee.