Theis v. LaneTheis v. Lane
Charles H. Cooper, Jr., Rex H. Elliott and Karl C. Kerschner, for appellant.
Jeffrey W. Van Wagner and Jennifer R. Becker, for appellee Brian Lane, M.D.
Donald J. Moracz and Justin D. Harris, for appellees The Center for Weight Loss Surgery at Wood County Hospital, Wood County Hospital and Wood County Hospital Association.
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JENSEN, J.
{¶ 1} Plaintiff-appellant, Robert Theis, timely appeals the August 2, 2012 judgment of the Wood County Court of Common Pleas which granted summary
{¶ 2} As such, appellant assigns one error for our review:
The trial court erred by granting summary judgment against Plaintiff.
For the reasons that follow, we find appellant‘s assignment of error well-taken and we reverse the trial court‘s decision.
I. Factual Background
{¶ 3} On June 18, 2007, appellant underwent a laparoscopic ventral hernia repair during which he alleges that appellee Lane perforated his bowel. Appellant claims that Dr. Lane then negligently failed to timely detect the perforation, resulting in widespread infection and significant harm. Appellant retained New York surgeon Howard Beaton, M.D., to provide opinions as to the applicable standard of care, breach of that standard of care, and proximate cause.
{¶ 4} Dr. Beaton is a board-certified general surgeon with extensive experience in hernia repair and laparoscopic surgery. He completed his surgical residency in 1981 at New York Hospital-Cornell Medical Center and maintains a private practice at New York
{¶ 5} Dr. Lane and the hospital entities filed motions for summary judgment challenging the reliability of Dr. Beaton‘s testimony under
{¶ 6} We must decide whether the trial court erred in granting summary judgment to appellees on this basis.
II. Standard of Review
{¶ 7} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978),
Civ.R. 56(C) .
{¶ 8} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,
III. Analysis
{¶ 9}
(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:
- 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;
- The design of the procedure, test, or experiment reliably implements the theory;
- The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
{¶ 10} More succinctly stated, for expert testimony to be admissible,
{¶ 11} “A trial court‘s role in determining whether an expert‘s testimony is admissible under
{¶ 12} Discretion in determining the admissibility of expert testimony generally lies with the trial court. Valentine v. Conrad, 110 Ohio St.3d 42, 43, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9. Absent an abuse of discretion, the trial court‘s decision will be upheld. Id. “‘Abuse of discretion’ suggests unreasonableness, arbitrariness, or unconscionability. Without those elements, it is not the role of [the] court to substitute its judgment for that of the trial court.” Id.
{¶ 13} At his deposition, Dr. Beaton testified that the standard of care required Dr. Lane to recognize that Mr. Theis’ abdominal pain, tachycardia, and abnormal bowel sounds experienced in the days following his surgery were signs and symptoms of a bowel perforation. He was critical that Dr. Lane failed to order appropriate tests to determine whether, in fact, a bowel perforation was the cause of appellant‘s symptoms. He concluded that Dr. Lane failed to recognize and to perform tests to determine whether a bowel perforation was the cause of appellant‘s symptoms and that this failure delayed a
{¶ 14} Appellees claim, and the trial court held, that Dr. Beaton, a board certified surgeon with more than 30 years of experience, including extensive experience with laparoscopic and abdominal surgeries, should be precluded from offering his opinions because they were not based on any particular medical literature. Notably,
{¶ 15} Citing Valentine, appellees insist that Dr. Beaton‘s failure to recite medical literature in support of his opinions renders his testimony unreliable. Valentine addressed the issue of whether exposure to toxic chemicals caused decedent‘s glioblastoma multiforme, a type of brain cancer. There was great debate over whether chemical toxins were capable of causing glioblastoma multiforme and the only proven cause was ionizing radiation—not at issue in that case. The court conducted a Daubert analysis. Valentine at ¶ 21. The experts’ testimony attempting to make this causal connection was ultimately held to be unreliable based on the absence of studies establishing that chemical exposure caused brain cancer.
{¶ 16} Valentine is not applicable to the present case. The evidence and testimony presented here is that bowel perforation can occur during the procedure that Mr. Theis underwent. Dr. Beaton described that although this may occur, it is incumbent on the surgeon to recognize and treat the perforation in order to prevent further harm to the
{¶ 17} We agree with the First District Court of Appeals that despite
{¶ 18} The Eleventh District considered a similar issue in Chaffins v. Al-Madani, 11th Dist. Nos. 2002-P-0037, 2003-P-0090, 2004-Ohio-6703. There, the appellant argued that the trial court erred in allowing the testimony of a pathologist who rendered opinions based on his review of medical records and pathology slides. Appellant argued that the pathologist‘s opinions were not sufficiently reliable. The court held that the physician‘s testimony—which was based on his observations, training, and experience as
{¶ 19} We also agree with appellant that the principles and methodology for identifying complications following laparoscopic abdominal surgery are not “junk science,” just as the First and Second District Courts of Appeals determined that “orthopaedics is simply not the kind of ‘junk science’ or unproven theory that
{¶ 20} Even if
IV. Conclusion
{¶ 21} It was error for the trial court to conclude that appellant‘s expert‘s testimony lacked sufficient reliability. Summary judgment should not have been granted and the court, therefore, reverses the August 2, 2012 judgment of the Wood County Court of Common Pleas. The costs of this appeal are assessed to appellees pursuant to
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, P.J.
Thomas J. Osowik, J.
James D. Jensen, J.
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.