Lambert v. Goodyear Tire Rubber Co. , 79 Ohio App. 3d 15 ( 1992 )

I concur in the portion of the judgment and opinion overruling appellant's second assignment of error but respectfully dissent from the judgment and opinion sustaining appellant's first, second, and fourth assignments of error and reversing the directed verdict entered by the court below.

The dispositive issue in the case at bar concerns the common pleas court's refusal to admit into evidence the June 5, 1986 CT scan report of Stephen C. Johnson, M.D., and the May 10, 1989 CT scan report of Manuel A. Casanova, M.D. The court further excluded the deposition testimony of Richard M. Ward, M.D., and John Q. Brown, M.D., which assumed the two CT scan reports as evidence in order to render expert opinions that appellant's injuries were causally related to his prior employment.

Initially, I would note that the admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Combs (1991), 62 Ohio St.3d 278, 284, 581 N.E.2d 1071, 1077 (trial court's refusal to admit a hospital report as a hearsay exception pursuant to Evid.R. 803[6] did not constitute reversible error); State v.Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus. The term "abuse of discretion" connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Wilmington Steel Products, Inc. v. ClevelandElec. Illum. Co. (1991), 60 Ohio St.3d 120, 121, 573 N.E.2d 622,623. The merits of appellant's contentions must be reviewed with this limited standard of review in mind.

Hearsay is generally not admissible except as otherwise provided by the Ohio Rules of Evidence. Evid.R. 802. Evid.R. 803(6) recognizes an exception to the hearsay rule for certain business records, which are defined as:

"[A] memorandum, report, record, or data compilation, in any form, of acts, events, 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)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness." (Emphasis added.)

As noted in the majority opinion, Ohio explicitly chose to delete "opinions or diagnoses" from its version of the business records exception. One reasonable inference from the foregoing failure to explicitly include "opinions or diagnoses" in the Evid.R. 803(6) business records hearsay exception is that the Ohio Supreme Court expressly intended to exclude "opinions or diagnoses" from the ambit of the exception. In an analogous context, the maxim of statutory interpretation, expressio uniusest exclusio alterius means that the expression of one thing is the exclusion of another. Black's Law Dictionary (6 Ed.1990) 581. Under this maxim, if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded. Vincent v.Zanesville Civ. Serv. Comm. (1990), 54 Ohio St.3d 30, 33,560 N.E.2d 226, 229, at fn. 2. Here, the Supreme Court had the option of adopting the federal business records hearsay exception in toto but explicitly decided to delete "opinions or diagnoses." Accordingly, it must have intended their exclusion from Ohio's version of the business records hearsay exception. This conclusion is bolstered by the fact that the Supreme Court in Weis, supra, had previously allowed the admission of a "diagnosis by one qualified to make it." Weis was decided prior to the adoption of the Rules of Evidence and as such represented the common law. Notwithstanding committee notes to the contrary, the omission of "opinions or diagnoses" from the rule mandates a change, both from the federal rule and prior Ohio law. See Evid.R. 102.

At any rate, the majority opinion holds that the CT scan reports contained only "facts" or "data" and not "opinions or diagnoses." However, the proffered evidence does not include a copy of the computerized tomography which Dr. Johnson and Dr. Casanova actually viewed in making their CT scan reports. Instead, the reports contain, following the title "IMPRESSION," their medical diagnoses of the abnormalities of appellant's back. In effect, these are their medical evaluations of the CT scans. As such, they include substantially more than facts or data which would not require a trained physician's evaluation. There is no indication that evaluation of a CT scan is necessarily as simplistic a process as, for example, taking a person's temperature by reading it from a thermometer. Indeed, Dr. McCloud testified as follows:

"[W]hen it comes to CT scans I do not feel as confident in looking at those as I do regular films. CT scans are simply computer ogmented [sic, augmented] types of films, but it takes a lot of practice to get good at reading them. I have not had a lot of practice at reading CT scans and I did look at them but was not adversely or favorably influenced by what I saw from them at all."

The foregoing testimony indicates that a CT scan report relies heavily upon the qualifications of the physician rendering it. This supports a finding that the physician's ultimate "IMPRESSION" in such a report is an opinion or diagnosis based not only upon the CT scan but also upon his training and qualifications, i.e., this is something more than facts or data; it requires a subjective evaluation of data. Since Evid.R. 803(6) does not except opinions or diagnoses from the hearsay rule, the trial court did not abuse its discretion in excluding the CT scan reports and the expert opinion testimony based thereon.

Assuming, arguendo, that opinions or diagnoses are not perse excluded from the business records hearsay exception, in order to qualify under such exception, the diagnoses must have been made by a qualified person. See Weis, supra; Giannelli, Ohio Evidence Manual (1989) 49, Section 803.10(b); Hytha,supra; see, also, Quiller, supra (holding that the physician's opinion is admissible only where "the trial court, in its discretion, has found the statement to be based upon a professional conclusion arrived at after a proper examination of the observable facts, by one qualified to make such anexamination and render such an opinion, and where the statement or opinion is relevant to the issue being tried." (Emphasis added.) In the case at bar, appellee, although stipulating to authentication, never waived its hearsay objection and the foundational prerequisites explicitly stated in Evid.R. 803(6). There was no indication in the record as to either Dr. Johnson's or Dr. Casanova's qualifications. Based upon the foregoing, I am not persuaded that the trial court abused its discretion in excluding the CT scan reports and the expert opinions based on those reports. Accordingly, although I recognize that this is a close issue, I would overrule appellant's assignments of error and affirm the directed verdict entered by the court below.