Johnson v. Abdullah (Slip Opinion) ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-3304JOHNSON ET AL., APPELLEES, v. ABDULLAH, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304.]
Evid.R. 601—Expert testimony in medical-malpractice case—A physician
employed in an executive position who does not directly oversee physicians
who treat patients does not satisfy the active-clinical-practice requirement
of Evid.R. 601.
(No. 2020-0303—Submitted March 30, 2021—Decided September 22, 2021.)
APPEAL from the Court of Appeals for Hamilton County, No. C-180309,
2019-Ohio-4861.
__________________
FISCHER, J.
{¶ 1} In this case, we are asked to consider what constitutes “active clinical
practice” as that term is used in Evid.R. 601(B)(5). In accordance with the plain
language of that rule, we hold that a physician employed in an executive position
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who does not directly oversee physicians who treat patients does not satisfy the
active-clinical-practice requirement of Evid.R. 601.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Appellees, Mark Johnson (acting both in his individual capacity and
in his capacity as a guardian of his brother, David Johnson) and two of his
siblings—Glenda Johnson and Gary Johnson—filed a medical-malpractice suit.
(For ease of discussion, we will refer to appellees collectively as “Johnson.”) The
allegation in the complaint that is relevant to this decision is Johnson’s allegation
that appellant, Dr. Anthony Abdullah, was negligent in his treatment of David in
2011.
{¶ 3} During the trial, Abdullah called Dr. Ron Walls to testify as an expert
regarding the standard of care. Johnson had sought to prevent Walls from testifying
on the basis that Walls failed to satisfy the requirements of Evid.R. 601 because he
was not involved in the active clinical practice of medicine. After counsel
conducted voir dire of Walls, the trial court determined that he was competent to
testify. The jury found that Abdullah had not been negligent in treating David.
{¶ 4} Johnson raised numerous assignments of error on appeal. In its
decision reversing and remanding the case for a new trial, the First District Court
of Appeals addressed only Johnson’s assignment of error challenging the trial
court’s decision to admit the expert testimony of Walls. 2019-Ohio-4861, 136
N.E.3d 581, ¶ 33. In beginning its analysis, the court stated that Ohio courts have
sometimes struggled to apply the active-clinical-practice requirement of Evid.R.
601. Id. at ¶ 1. The court noted that Walls was the chief operating officer (“COO”)
of a hospital system. Id. at ¶ 2. Although Walls had testified that everything he did
in his role as COO had an effect on patient care, the First District concluded that
Walls’s job was “almost entirely administrative.” Id. The court reasoned that if
Walls’s activities constituted the active clinical practice of medicine, then
nonphysician COOs would also be engaged in the active clinical practice of
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medicine. Id. Considering this conclusion antithetical to Evid.R. 601, the court
rejected Abdullah’s argument that Walls was engaged in the active clinical practice
of medicine, despite Walls’s being an accomplished doctor. Id. at ¶ 2-3.
Concluding that the plain language of Evid.R. 601 should have prevented Walls
from testifying and that the trial court’s decision permitting Walls’s testimony was
not harmless error, the court reversed the trial court’s judgment and remanded the
case for a new trial. Id. at ¶ 3, 32.
{¶ 5} We accepted jurisdiction over Abdullah’s appeal, in which he set forth
a single proposition of law: “When reviewing a trial court’s decision on a
witness’[s] competence, an appellate court is not free to weigh in on the credibility
of that witness and substitute its own judgment for that of the trial court.” See 158
Ohio St.3d 1511, 2020-Ohio-2815, 144 N.E.3d 462.
II. ANALYSIS
{¶ 6} In his proposition of law, and throughout much of his argument before
this court, Abdullah asserts that the First District improperly reweighed Walls’s
credibility. He maintains that in reversing the trial court’s judgment, the appellate
court rejected the trial court’s finding that Walls’s testimony was credible and
substituted its own determination that Walls was not telling the truth. It is well-
settled that the responsibility of weighing the credibility of a witness rests with the
fact-finder. See, e.g., State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. The First District did not violate this principle. It
accepted Walls’s descriptions of his professional duties, activities, and
responsibilities. E.g., 2019-Ohio-4861, 136 N.E.3d 581, at ¶ 21. In reversing the
trial court’s judgment, the First District did not find Walls’s testimony to be
untruthful; instead, the court concluded, based on Walls’s testimony, that Abdullah
had failed to establish that Walls devoted at least one-half of his professional time
to the active clinical practice of medicine. Id. at ¶ 24.
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{¶ 7} Although Walls testified that he did meet this standard, neither the
First District nor this court is required to accept Walls’s determination that his
professional duties satisfied the definition of the legal term “active clinical
practice.” See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d
1245, ¶ 25 (explaining that appellate courts apply the law to the facts of individual
cases to make legal determinations and that just because “facts are involved in the
analysis does not make the issue a question of fact deserving of deference to a trial
court”). In such instances, the appellate court must independently determine,
without deference to the trial court’s conclusion, whether the facts satisfy the
applicable legal standard. Id. at ¶ 26, citing State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Indeed, no court should abdicate its duty to
interpret the law to anyone, including an expert witness. Because this case turns on
whether at least 50 percent of Walls’s professional time was devoted to the active
clinical practice of medicine as that term is used in Evid.R. 601, our analysis will
focus on determining whether the activities that Walls spent the majority of his
professional time engaged in qualify as the active clinical practice of medicine.
{¶ 8} Abdullah emphasizes that Walls is not a “hired gun” or “professional
witness.” In light of the fact that Walls’s professional role changed in 2015,
Abdullah asserts that pursuant to Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-
Ohio-3697, 871 N.E.2d 557 (plurality opinion), the trial court was permitted to look
at Walls’s activities at the time the alleged malpractice occurred to determine
whether Walls was qualified to testify as an expert witness at trial. Abdullah asserts
that based on the evidence in the record, 75 percent of Walls’s professional time
prior to 2015 was devoted to the active clinical practice of medicine or its
instruction. Looking at the period after 2015 (the trial occurred in 2017), Abdullah
asserts that Walls’s testimony—particularly Walls’s assertion that “[e]verything
that happens related to patient care in [the] hospital is [his] direct responsibility”—
establishes that Walls was engaged in the active clinical practice of medicine.
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{¶ 9} Johnson responds that Walls was not competent to testify under
Evid.R. 601, because the evidence in the record shows that prior to 2015, Walls
devoted the majority of his professional time to administrative matters and medical-
legal consulting work and that after 2015, Walls devoted 90 percent of his time to
administrative and executive matters.
{¶ 10} The parties do not dispute the substance of Walls’s testimony
regarding the specific duties and responsibilities he had prior to and after 2015.
Each accepts that testimony at face value, with the differences between the parties’
positions essentially consisting of differing views on whether those duties and
responsibilities may be characterized as the active clinical practice of medicine
under Evid.R. 601.
{¶ 11} Evid.R. 601(B) provides in relevant part that a person is disqualified
to testify as a witness when the court determines that the person is
(5) * * * giving expert testimony on the issue of liability in
any medical claim, as defined in R.C. 2305.113, asserted in any civil
action against a physician, podiatrist, or hospital arising out of the
diagnosis, care, or treatment of any person by a physician or
podiatrist, unless:
***
(b) The person devotes at least one-half of his or her
professional time to the active clinical practice in his or her field of
licensure, or to its instruction in an accredited school.
(Emphasis added.) Evid.R. 601 was amended in 2020 and 2021 (while this case
was pending), and the amendments caused this provision to be renumbered from
Evid.R. 601(D) to Evid.R. 601(B)(5). The amendments did not substantively
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change the relevant provision. For the purposes of this analysis, we will refer to
the provision by its current section.
A. An overview of our decisions addressing the active-clinical-practice
requirement
{¶ 12} Before addressing to what extent Walls was engaged in the active
clinical practice of medicine under Evid.R. 601, we will briefly review our previous
decisions addressing the active-clinical-practice requirement.
1. McCrory v. State
{¶ 13} The seminal case in this area is McCrory v. State, 67 Ohio St.2d 99,
423 N.E.2d 156 (1981). In that case, we held that “active clinical practice” includes
“work [that] is so related or adjunctive to patient care as to be necessarily included
in that definition for the purpose of determining fault or liability in a medical
claim.” Id. at syllabus.
{¶ 14} In McCrory, in which we interpreted a statutory precursor to the
current Evid.R. 601, we began our analysis by noting that the relevant statute (like
the current rule) did not define the term “active clinical practice.” Id. at 103. We
explained that “the statute deals with the basic unfairness of permitting the pointing
of accusatory fingers by those who do not take care of the sick toward those who
do.” Id. We added that
the purpose of the statute is to preclude testimony by the physician
who earns his living or spends much of his time testifying against
his fellows as a professional witness, and to prevent those whose
lack of experiential background in the very field they seek to judge,
the clinical practitioner, makes the validity of their opinions suspect,
from expressing those opinions for pay or otherwise.
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Id. In analyzing the term “active clinical practice,” we cautioned that “we must
devise a definition of active clinical practice of medicine that is not so narrow as to
include only the physician who is in direct contact with the patient at his bedside,”
because to do so “would exclude the large panoply of medical expertise of various
physician-specialists who work daily in and for our hospitals often assisting,
directing, or advising the attending physician in his care of the sick.” Id. We
explained that the definition of “active clinical practice” must include the work of
doctors “directly involved in the care of the patient,” because those doctors’
“ministrations form inseparable parts of that patient’s care” and their expertise is
necessary to determine any fault or responsibility. Id. Thus, we concluded that
“active clinical practice” necessarily includes the work typical of pathologists,
radiologists, hematologists. Id. at 104.
2. Celmer v. Rodgers
{¶ 15} Approximately 25 years after McCrory, 67 Ohio St.2d 99, 423
N.E.2d 156, was decided, and after the active-clinical-practice requirement had
been incorporated into Evid.R. 601, we revisited the issue of what satisfies the
active-clinical-practice requirement. Celmer, 114 Ohio St.3d 221, 2007-Ohio-
3697, 871 N.E.2d 557 (plurality opinion). In Celmer, a trial that was scheduled to
start was continued at the request of the defense and was then stayed due to the
insolvency of a defendant’s insurance carrier. Id. at ¶ 2. As a result of the delays,
the trial took place more than two years after the originally scheduled trial date, and
at that time, the plaintiff’s expert witness no longer devoted at least one-half of his
professional time to the active clinical practice of medicine. Id. The specific issue
before the court was whether under those circumstances a trial court may permit
that witness to testify as an expert. Id.{¶ 16} In Celmer, a plurality of the court emphasized that the McCrory
court had rejected a narrow interpretation of the active-clinical-practice
requirement and had explained that the purpose of the requirement is to preclude
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testimony by a physician who spends much of his or her time testifying as a
“professional witness” and to prevent expert testimony by physicians who lack an
experiential background in the area at issue in a case. Celmer at ¶ 21, citing
McCrory at 104. The plurality further explained that the preliminary questions
concerning the qualification of a person to be a witness “ ‘shall be determined by
the [trial] court.’ ” (Emphasis added in Celmer deleted.) Celmer at ¶ 24, quoting
Evid.R. 104(A).
{¶ 17} Unlike McCrory, Celmer did not turn on whether the expert
witness’s professional activities constituted the active clinical practice of medicine.
Instead, the key issue was whether a trial court has discretion to permit a party’s
medical expert to testify as an expert when the expert does not satisfy the
requirements of Evid.R. 601 at the time the trial takes place but did satisfy the
requirements at the time the trial was originally scheduled to start, the trial having
been delayed at the request of the opposing party. Celmer at ¶ 2. The Celmer
plurality noted that the active-clinical-practice requirement of Evid.R. 601 is
written in the present tense. Id. at ¶ 25. Nevertheless, the plurality found it
appropriate in that case to apply an exception to the rule’s present-tense language:
“[The present-tense language] * * * does not preclude a trial court from exercising
discretion in an appropriate case to determine that a physician is competent to
testify, as in this case, where the witness would have qualified as an expert but for
defense continuances and a stay of proceedings resulting from the insolvency of a
defendant’s carrier.” Id. The plurality emphasized that “[g]enerally, an expert
witness in a medical malpractice action must meet the requirements of Evid.R.
601[(B)(5)(b)] at the time the testimony is offered at trial.” Id. at ¶ 27. “But,” it
stated, “the facts here are an exception to that general rule.” Id.{¶ 18} In a dissent, Justice Robert Cupp emphasized that the active-clinical-
practice requirement is written in the present tense. Id., 114 Ohio St.3d 221, 2007-
Ohio-3697, 871 N.E.2d 557, at ¶ 34 (Cupp, J., dissenting). He concluded that no
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judicially created exception should override the plain language of the rule. Id. at
¶ 37 (Cupp, J., dissenting). Because the trial court’s decision allowing the expert
to testify was contrary to what Justice Cupp viewed to be the plain language of the
rule, he concluded that the trial court’s ruling constituted an abuse of its discretion.
Id.B. We decline to expand the Celmer exception
{¶ 19} The first question before us in analyzing the present case is which
period of time to look at in determining whether Walls was engaged in the active
clinical practice of medicine. Abdullah asks us to expand the Celmer exception to
allow a court to consider the expert’s job duties at the time of the alleged
malpractice. If we do not expand the Celmer exception, we focus on the time of
trial, i.e., the time when Walls testified.
{¶ 20} We decline to expand the Celmer exception. As the Celmer plurality
explained, the general rule is that the witness must meet the active-clinical-practice
requirement of Evid.R. 601 at the time the testimony is offered at trial. Id., 114
Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557, at ¶ 27 (plurality opinion).
Celmer sets forth a limited exception to that rule, and the exception is clearly
confined to the particular facts of that case.
{¶ 21} Abdullah relies on the timeline of this case in asserting that this court
should look at Walls’s pretrial activities in determining Walls’s competency.
According to Abdullah, Johnson filed the original complaint in 2012, Walls was
first identified as an expert witness in 2013, and Johnson voluntarily dismissed the
case in 2014. In January 2015, Walls took on the role of COO (the same role that
he was in at the time of trial). Johnson refiled the case in April 2015, and the trial
occurred in 2017.
{¶ 22} These facts are significantly different from the facts of Celmer.
Again, in Celmer, the court created a limited exception to allow for consideration
of the witness’s activities at the time the trial was originally scheduled to begin.
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Here, Abdullah asks us to extend that exception to consider a witness’s activities
not only before the original trial date, but before the case was even filed in its
current incarnation.
{¶ 23} It is an unfortunate reality that medical-malpractice actions often
proceed at a snail’s pace. Abdullah has not demonstrated that Johnson acted with
the intention of stalling until Walls was not competent to testify under the rule.
Moreover, Abdullah had ample time after the complaint was refiled to find a
witness who was qualified under the rule. If we were to extend the Celmer
exception to permit the expert’s testimony in this case, we would in effect be
rewriting the plain language of Evid.R. 601, which states that the witness must
presently be engaged in the active clinical practice of medicine.
{¶ 24} For these reasons, we limit Celmer to its facts, and we instead apply
the general rule identified in that case: the witness must meet the active-clinical-
practice requirement of Evid.R. 601 at the time the testimony is offered at trial. We
accordingly decline to consider Walls’s activities prior to 2015.
C. Walls did not satisfy Evid.R. 601’s active-clinical-practice
requirement at the time of trial
{¶ 25} This brings us to the key issue in this case: Did Walls satisfy Evid.R.
601’s active-clinical-practice requirement at the time of trial? Under McCrory, we
should not read the requirement so narrowly that it precludes the testimony of a
physician who does not directly treat patients but still acts in a role that is adjunctive
to patient care. Id., 67 Ohio St.2d at 103-104, 423 N.E.2d 156.
{¶ 26} The evidence in this case indicates that Walls did not act in a role
adjunctive to patient care. Walls initially testified, “[P]robably 90 percent of my
work would be characterized as purely executive or administrative.” As part of this
executive or administrative work, Walls testified, he is “responsible for all of the
teaching and training programs in the hospital” and that he is responsible for “[a]ll
of the quality and safety related to patient care” and “[a]ll of the clinical operations
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related to patient care, including the operating rooms, all of the inpatient units, the
emergency department, [and] post-operative recovery areas.” He testified:
I’m responsible for the introduction of new innovations and
technology into the hospital, new programs and quality assessment,
I mean safety and quality for the patients, and the teaching programs
that train residents and students in medicine, and programs that train
our future leaders in quality, safety, and how to provide excellent
patient care.
{¶ 27} Regarding his professional time that is not executive or
administrative related, Walls testified that he devotes one hour a week to making
hospital rounds with the hospital’s chief nurse, which consists of visiting with
residents and nurses who deliver direct patient care. He also testified that he holds
mentoring sessions with faculty “about their research and career development,” but
he noted that these mentoring sessions do not take up “a huge amount” of his time.
{¶ 28} In trying to establish that Walls served in a role that was adjunctive
to patient care, Abdullah relies on Walls’s testimony that “all [of his] administrative
work, with a very tiny exception, is directly related to patient care.” But in
following up that statement, in response to the question whether his role was “so
adjunctive to patient care as to practically constitute clinical practice in and of
itself,” Walls said, “I would say it directly influences our organization.” Walls
disagreed with the attorney’s assertion that what Walls does “really doesn’t
constitute clinical practice” and said: “Virtually everything I do in my day, in my
week, in my month, how I plan, has a direct influence on patient care,” and “I’m
influencing the care every single day of thousands of * * * people.” As examples,
he stated that he is responsible for making sure that the hospital is adequately
staffed and that hospital staff has the proper technology to treat patients. He
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summed up his voir dire testimony by stating, “I have * * * a direct role every day
in mentoring and guiding our department chairs, our clinical nurse leaders. I run
the entire quality and safety programs, the education programs. Everything that
happens related to patient care in our hospital is my direct responsibility.”
{¶ 29} The proponent of expert testimony bears the burden of showing that
the expert is qualified to testify competently regarding the issue at hand. See United
States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004). In this case, Abdullah failed
to show that Walls was engaged in the active clinical practice of medicine at the
time of trial. Walls was a true executive. Notably, Walls did not testify that he
directly supervised any of the physicians at the hospital who treated patients.
Instead, he ensured that the hospital was running properly. At best, Walls indirectly
supervised doctors, as he emphasized that he mentored and guided the hospital’s
department chairs and clinical-nurse leaders. His testimony indicates that he was
not involved in supervising doctors who were treating patients but that his day-to-
day contact was primarily with the hospital’s management personnel.
{¶ 30} While it may be true that everything that Walls did had an impact on
the hospital’s overriding mission of treating patients, Walls did not interact with
the physicians who were treating patients. While Walls’s role was vital and
essential to the hospital, he was not engaged in the active practice of medicine or
in a role adjunctive to patient care.
{¶ 31} We further note that time spent teaching may be used to qualify
under Evid.R. 601. Evid.R. 601 provides that in order to qualify as a witness, a
person must devote “at least one-half of his or her professional time to the active
clinical practice in his or her field of licensure, or to its instruction in an accredited
school.” (Emphasis added.) Walls testified that he teaches an hour-long classroom
session once every three or four months. Given the limited amount of time that
Walls devoted to the instruction of medicine, we conclude that even when Walls’s
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teaching responsibilities are taken into account, he was not qualified to testify under
Evid.R. 601.
{¶ 32} Just as we decline to extend the Celmer exception, we decline to
extend McCrory to hold that “active clinical practice” of medicine as that term is
used in Evid.R. 601(B)(5)(b) includes the primarily executive work of a doctor in
an administrative role. We accordingly hold that a physician employed in an
executive position who does not directly oversee physicians engaged in treating
patients does not satisfy the active-clinical-practice requirement of Evid.R. 601.
{¶ 33} Applying that holding to this case, we conclude that the trial court
committed reversible error in permitting Walls to testify as an expert. Abdullah
asks us to apply the traditional abuse-of-discretion standard in reviewing this case
and to determine whether the trial court’s decision was arbitrary, unreasonable, or
unconscionable. The abuse-of-discretion standard, however, does not neatly apply
to a case like this—i.e., a case in which the trial court relied on an erroneous
conception of the active-clinical-practice requirement of Evid.R. 601.
{¶ 34} We have stated that “[a]n abuse of discretion is more than an error
of law or judgment; it implies that the trial court’s attitude, in reaching its decision,
was arbitrary, unreasonable, or unconscionable.” See, e.g., Celmer, 114 Ohio St.3d
221, 2007-Ohio-3697, 871 N.E.2d 557, at ¶ 19 (plurality opinion), citing Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, it has
been noted by at least one Ohio appellate court that this is an “offensive
formulation.” State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d
345, ¶ 17 (2d Dist.). As the Second District detailed in Boles, the notion that an
abuse of discretion is more than an error of law can be traced back to a 1940
decision of this court, Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855 (1940).
Boles at ¶ 17. In Steiner, the court relied upon the second edition of Black’s Law
Dictionary as support for its statement that “[t]he meaning of the term ‘abuse of
discretion’ in relation to [the granting of a motion for a new trial] connotes
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something more than an error of law or judgment.” Steiner at 451. The Steiner
court, however, did not quote the Black’s Law Dictionary definition in its decision.
It did, however, quote a Massachusetts Supreme Court decision in stating that
“[s]uch term has been defined as ‘a view or action “that no conscientious judge,
acting intelligently, could honestly have taken.” ’ ” Steiner, quoting Long v.
George, 296 Mass. 574, 579, 7 N.E.2d 149 (1937), quoting Davis v. Boston
Elevated Ry. Co., 235 Mass. 482, 502, 126 N.E. 841 (1920).
{¶ 35} In fact, the second edition of Black’s Law Dictionary, which the
court relied upon in Steiner, does not support the court’s statement that an abuse of
discretion connotes something more than an error of law:
This term, commonly employed to justify an interference by a
higher court with the exercise of discretionary power by a lower
court, implies not merely error of judgment, but perversity of will,
passion, prejudice, partiality, or moral delinquency. The exercise of
an honest judgment, however erroneous it may appear to be, is not
an abuse of discretion.
(Emphasis added.) Black’s Law Dictionary 11 (2d Ed.1910). Clearly absent from
this definition is any indication that the abuse-of-discretion standard applies when
a court is making a determination of law. Indeed, this definition squares with the
common understanding of what constitutes an abuse of discretion: a court
exercising its judgment, in an unwarranted way, in regard to a matter over which it
has discretionary authority.
{¶ 36} It bears noting that the holding of Steiner focused on a specific
application of the term “abuse of discretion”: “The meaning of the term ‘abuse of
discretion’ in relation to the granting of a motion for a new trial connotes more than
an error of law or of judgment; it implies an unreasonable, arbitrary or
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unconscionable attitude on the part of the court.” Steiner at paragraph two of the
syllabus. That conclusion was grounded in the context of a motion for a new trial,
with the court stating that “the granting or refusing of a motion for a new trial rests
largely in the sound discretion of the trial court.” Id. at 451. Thus, Steiner should
not be read as applying to questions that are not within “the sound discretion” of a
trial court.
{¶ 37} This court made that point clear in Rohde v. Farmer, 23 Ohio St.2d
82, 262 N.E.2d 685 (1970). In that decision, the court explained, “The concept of
‘abuse of discretion’ as the basis for determining ‘error’ of the trial court connotes
the right to exercise a sound discretion. Conversely, where a specific action, ruling
or order of the court is required as a matter of law, involving no discretion, the test
of ‘abuse of discretion’ should have no application.” Id. at 89. The Rohde court
accordingly held that “[w]here a new trial is granted by a trial court, for reasons
which involve no exercise of discretion but only a decision on a question of law,
the order granting a new trial may be reversed upon the basis of a showing that the
decision was erroneous as a matter of law.” Id. at paragraph two of the syllabus.
{¶ 38} As the Second District stated in Boles, “No court—not a trial court,
not an appellate court, nor even a supreme court—has the authority, within its
discretion, to commit an error of law.” Boles at ¶ 26. This should be axiomatic: a
court does not have discretion to misapply the law. A court has discretion to settle
factual disputes or to manage its docket, for example, but it does not have discretion
to apply the law incorrectly. That is why courts apply a de novo standard when
reviewing issues of law. See, e.g., Hudson v. Petrosurance, Inc., 127 Ohio St.3d
54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 30.
{¶ 39} We take this opportunity to make it clear that courts lack the
discretion to make errors of law, particularly when the trial court’s decision goes
against the plain language of a statute or rule. In this case, the First District
correctly determined that a physician employed in an executive position who does
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not directly oversee physicians engaged in treating patients does not satisfy the
plain language of the active-clinical-practice requirement of Evid.R. 601. Because
the trial court committed an error of law in determining otherwise, and because the
error was not harmless, see 2019-Ohio-4861, 136 N.E.3d 581, at ¶ 30-32, we affirm
the First District’s judgment.
{¶ 40} As the First District noted in its decision, this result may not be ideal,
given that Walls’s credentials would seem to make him well suited to testify in this
case. 2019-Ohio-4861, 136 N.E.3d 581, at ¶ 24. Nevertheless, to hold otherwise
would be contrary to Evid.R. 601 and would elevate its perceived purpose above
its actual text. Being an executive far removed from treating patients does not
qualify as engaging in the active clinical practice of medicine. If Ohio’s Rules of
Evidence should allow doctors who work in positions such as Walls’s to testify as
experts in cases like this, then the rule must be amended through the proper rule-
amendment process. We should not amend the rule by misinterpreting its plain
language.
{¶ 41} As a final note, we acknowledge that a large portion of Johnson’s
merit brief is dedicated to issues that are unrelated to the proposition of law
accepted for review by this court and are not properly before this court in this
appeal. Because the additional issues raised by Johnson were not addressed by the
First District below and are beyond the scope of the proposition of law accepted for
review in this appeal, we decline to address them.
III. CONCLUSION
{¶ 42} We hold that a physician employed in an executive position who
does not directly oversee physicians who treat patients does not satisfy the active-
clinical-practice requirement of Evid.R. 601. Because Walls did not satisfy the
active-clinical-practice requirement of the rule, we affirm the decision of the First
District.
Judgment affirmed.
16
January Term, 2021
O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, and BRUNNER, JJ.,
concur.
STEWART, J., concurs in judgment only.
_________________
Brannon & Associates, Dwight D. Brannon, and Kevin A. Bowman, for
appellees.
Arnold Todaro Welch & Foliano Co., L.P.A., John B. Welch, and Gregory
B. Foliano, for appellant.
_________________
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