Schnipke v. Safe-Turf Installation Group, L.L.C.

[Cite as Schnipke v. Safe-Turf Installation Group, L.L.C., 190 Ohio App.3d 89, 2010-Ohio-4173.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
SCHNIPKE,
APPELLEE,
CASE NO. 1-10-07
v.
SAFE-TURF INSTALLATION
GROUP, L.L.C.,
APPELLANT; OPINION
BUREAU OF WORKERS' COMPENSATION,
APPELLEE.
Appeal from Allen County Common Pleas Court
Trial Court No. CV-2008-1288
Judgment Affirmed
Date of Decision: September 7, 2010
APPEARANCES:
Richard E. Siferd and Julie M. Shaw, for appellee Craig Schnipke.
Robert P. King and Mark S. Barnes, for appellant.
Colleen C. Erdman, for appellee Bureau of Workers’ Compensation.
Case No. 1-10-07
WILLAMOWSKI, Presiding Judge.
{¶1} Defendant-appellant, Safe-Turf Installation Group, L.L.C. (“Safe-
Turf”), appeals the decision of the Allen County Court of Common Pleas entering
judgment in favor of plaintiff-appellee, Craig Schnipke, after a jury found that
Schnipke was entitled to participate in the workers’ compensation fund as a result
of a work-related injury to his right knee. Safe-Turf contends that the trial court
erred by failing to exclude unreliable expert testimony, by failing to give proper
jury instructions and jury interrogatories, and by failing to grant Safe-Turf’s
motion for summary judgment prior to trial. For the reasons set forth below, the
judgment is affirmed.
{¶2} This case arises out of a workers’ compensation claim in which
Schnipke claims that he injured his right knee while he was working at Safe-Turf
on February 12, 2008. Safe-Turf makes rubberized athletic sports mats for
running tracks and fitness centers/gyms. While he was working, Schnipke felt his
right knee “pop,” resulting in great pain and precluding him from placing any
weight on it. Schnipke was unable to continue working, so he went home and then
saw a physician at Orthopaedic Institute of Ohio the following day. After an MRI
examination was performed, Dr. Nieman diagnosed Schnipke’s injury as a torn
right medial meniscus, which eventually required surgery.
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{¶3} Safe-Turf maintains that there was nothing about the work process
or the work conditions that caused Schnipke’s torn meniscus. Safe-Turf contends
that Schnipke was merely walking when he claims he felt the pain in his knee, that
he was not carrying any product or loading anything at the time, and, therefore, the
injury was not related to or caused by his job. Safe-Turf claims that the injury was
the result of Schnipke’s large size and could have happened anywhere. Schnipke
was over six feet, eight inches tall1 and weighed over 400 pounds.
{¶4} Schnipke filed a claim for workers’ compensation benefits for his
injury. Initially, the bureau denied the claim, and Schnipke appealed the decision
to the Industrial Commission. On appeal, a hearing officer allowed the claim, and
this decision was upheld by the commission. On August 28, 2008, Safe-Turf
appealed to the trial court pursuant to R.C. 4123.512, and thereafter, filed a motion
for summary judgment. The trial court denied Safe-Turf’s motion for summary
judgment,2 and on November 23, 2009, the case proceeded to a jury trial.
{¶5} At trial, Schnipke testified that he had been working at his job, and
as he was “turning, rotating” to take another bag off the machine, his knee
1
The medical reports listed Schnipke as six feet, eight inches tall. Schnipke testified that he was measured
as six feet eleven. His weight was listed as 420 pounds in one record and 430 pounds in another.
2
Safe-Turf filed a motion for summary judgment on April 3, 2009, and Schnipke filed a response on April
28, 2009. The trial court denied Safe-Turf’s motion on April 30, 2009. However, before Safe-Turf learned
of the trial court’s ruling, it filed a reply memorandum in support of summary judgment. Because the trial
court did not have the opportunity to review the reply memorandum before ruling, Safe-Turf filed a motion
for reconsideration. The trial court reconsidered Safe-Turf’s motion for summary judgment in light of the
arguments set forth in the reply memorandum and, on May 15, 2009, again overruled Safe-Turf’s motion
for summary judgment.
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“popped,” and he was in instant, severe pain. He described his job duties as
follows:
There’s a roll of plastic bags. I pull one off, put it on the
machine and let the machine clamp down. It fills it to 55 pounds. I
take that off, turn, sit it on a sealer, put it in the sealer, let it seal. By
the time I’m grabbing the next bag, putting that on the machine. I
got that bag done. I turn around, grab the bag off the sealer, turn
around, walk over there, put them on a pallet, pat it down to flatten it
out a little bit and then I turn right back around and do the process all
over again. And it’s continuous all night long.
Schnipke also testified that the job was usually a two-person job, but he was doing
it alone because they were short of help. He further testified that his supervisor
had increased the speed of the machine without telling him. He had to move fast
because the conveyor belt feeding the pellets ran continuously, and the bag would
overflow if he did not keep up. He estimated that he had been working for
approximately 20 minutes into his shift and had filled about 25-30 bags before his
knee popped.
{¶6} Schnipke’s mother, Vicky Schnipke, testified that Schnipke was 20
years old at the time of the injury and lived at home. Mrs. Schnipke, a registered
nurse, testified as to the pain and condition of Schnipke’s knee when he returned
home that evening and to taking him to see an orthopedic specialist the following
day. She confirmed Schnipke’s testimony that he had never had any prior health
problems, other than having his tonsils removed when he was five and having to
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miss a few practices and briefly wearing a brace on his left knee when he played
high school football.
{¶7} Dr. Nieman, Schnipke’s treating physician, testified via his video
deposition as to his initial examination of Schnipke and explained the MRI report
finding a “displaced bucket handle tear of the medial meniscus.”3 Based on
Schnipke’s description that the knee popped when he turned or twisted it at work,
Dr. Nieman stated that he believed that the injury was caused by his work. Dr.
Nieman testified that he did not believe that Schnipke’s massive body weight
alone could have caused the injury, stating that he had a “massive injury” and “a
big acute, usually a turn kind of torque injury where the knee somewhat subluxes a
little bit and you grab that tear, and the tear gets pulled in front of the knee.”
{¶8} Richard Horstman, a company owner and vice president, testified
that the work Schnipke was doing that evening was repetitive, but not really
strenuous. He also testified that it was not normally a two-person job unless
someone was being trained.
{¶9} Last, Dr. McGowen testified for Safe-Turf via video deposition.
3
The doctor explained Schnipke’s “bucket handle” tear as follows: “On the side that [Schnipke] had pain
on, the front side of his knee, the meniscus was torn so bad that it was flipped forward and locked, like a
bucket handle would flip forward and lock, in the front part of his knee. So he had lost, I think the back
half or two-thirds of his meniscus that was flipped forward and locked in the front part of his knee. So,
usually very painful at the start and difficulty to walk around on.”
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Dr. McGowen was a semiretired internal-medicine physician who had never met
or personally examined Schnipke. Dr. McGowen deferred to Dr. Nieman’s
diagnosis of the torn meniscus. However, Dr. McGowen testified that it was his
opinion that the meniscus tear occurred spontaneously as a result of precocious
degenerative joint disease, that he didn’t believe that Schnipke’s work activities
proximately caused the torn meniscus, and that Schnipke’s morbid obesity could
not be ruled out as a cause.
{¶10} The jury entered a unanimous verdict in favor of Schnipke. On
December 21, 2009, the trial court filed its judgment, finding that Schnipke was
entitled to participate in the workers’ compensation fund for the condition of
“right medial meniscus tear.” It is from this decision that Safe-Turf now appeals,
raising the following four assignments of error for our review.
First Assignment of Error
The trial court committed reversible error by failing to grant
Safe-Turf Installation Group, LLC’s motion for summary judgment
where Appellee Craig Schnipke sustained an unexplained knee
injury and failed to rule out idiopathic causes of the injury.
Second Assignment of Error
The trial court committed reversible error by failing to
exclude the expert testimony of James Nieman, M.D., because Dr.
Nieman failed to give a reliable opinion under Evid.R. 702(C).
Third Assignment of Error
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Assuming the trial court properly denied Safe-Turf
Installation Group, LLC’s motion for summary judgment, the court
committed reversible error by failing [to] instruct the jury to rule out
idiopathic causes of Appellee Craig Schnipke’s knee injury and by
failing to include Safe-Turf Installation Group’s proposed jury
interrogatory on idiopathic causes.
Fourth Assignment of Error
The trial court committed reversible error by giving the jury
an instruction on “aggravation,” where there was no record evidence
to support an aggravation condition or theory of recovery.
First Assignment of Error
{¶11} In its first assignment of error, Safe-Turf argues that it was entitled
to prevail on its motion for summary judgment because Schnipke failed to rule out
that a pre-existing condition, his morbid obesity, caused his knee injury. Safe-
Turf maintains that a workers’ compensation claimant is required by law to prove
that an injury sustained at work is unrelated to idiopathic causes when the injury
occurs as the result of an unexplained event. And Safe-Turf contends that even if
Schnipke had ruled out a pre-existing condition as the cause of his injury, he failed
to sustain his burden of establishing that the injury was proximately caused by the
performance of his job.
{¶12} Summary judgment is appropriate when there are no genuine issues
as to any material fact and the moving party is entitled to judgment as a matter of
law. Civ.R. 56(C). “Summary judgment shall not be rendered unless it appears * *
* that reasonable minds can come to but one conclusion and that conclusion is
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adverse to the party against whom the motion for summary judgment is made * *
*.” Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364
N.E.2d 267. “The purpose of summary judgment is not to try issues of fact, but is
rather to determine whether triable issues of fact exist.” Schnippel Constr., Inc. v.
Profitt, 3d Dist. No. 17-09-12, 2009-Ohio-5905, ¶10, quoting Lakota Local School
Dist. Bd. of Edn. v. Brickner (1996), 108 Ohio App.3d 637, 643, 671 N.E.2d 578.
{¶13} The trial court denied Safe-Turf’s motion for summary judgment,
finding that there were material issues of fact as to whether Schnipke’s condition
was caused by a workplace accident. For several reasons, we find that Safe-Turf’s
challenge of this decision on appeal is without merit.
{¶14} First, Safe-Turf has misconstrued the burden placed on the
nonmoving party. When responding to a motion for summary judgment, the
nonmoving party does not have to prove its case; it is required only to set forth
specific facts showing that there is a genuine issue for trial. See Civ.R. 56(E);
Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Safe-Turf’s
arguments on appeal complain that Schnipke did not establish the necessary
elements of his case. Schnipke’s only burden was to set forth specific facts
showing that there were genuine issues of fact to be determined at trial.
{¶15} More important, however, the jury weighed all the evidence and
unanimously found that Schnipke had proved by a preponderance of the evidence
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that he was entitled to participate in the workers’ compensation fund as a result of
a work-related injury. This alone demonstrates that there were triable issues of
fact and that reasonable minds could come to a conclusion that was adverse to
Safe-Turf’s position. Safe-Turf’s argument has been rendered moot.
Any error by a trial court in denying a motion for summary
judgment is rendered moot or harmless if a subsequent trial on the
same issues raised in the motion demonstrates that there were
genuine issues of material fact supporting a judgment in favor of the
party against whom the motion was made.
Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, 642 N.E.2d 615,
syllabus. The Ohio Supreme Court further reasoned, “The question whether the
trial court erred in denying [the movant’s] motion for summary judgment became
irrelevant and the error (if any) was corrected when the jury determined the issues
at trial in favor of [the nonmovant].” Id. at 157-158.
{¶16} The issues tried before the jury were the same issues raised by Safe-
Turf in its motion for summary judgment. The jury had the opportunity to hear the
witnesses, judge their credibility, and weigh the evidence. On appeal, Safe-Turf
did not raise any issues questioning the sufficiency of the evidence or whether the
decision was against the manifest weight of the evidence. Nor did Safe-Turf claim
that the trial court erred in denying its motions for a directed verdict. The jury’s
decision after a trial on the merits renders the trial court’s decision on Safe-Turf’s
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motion for summary judgment irrelevant. The issue is moot, and Safe-Turf’s first
assignment of error is overruled.
Second Assignment of Error
{¶17} In its second assignment of error, Safe-Turf argues that Schnipke’s
physician failed to provide a reliable expert opinion on causation under Ohio law.
Even though Dr. Nieman may have qualified as an expert witness under Evid.R.
702(B), Safe-Turf complains that his testimony as to causation should have been
excluded under Evid.R. 702(C), because Dr. Nieman’s expert opinion on causation
was unscientific and unreliable.
{¶18} Safe-Turf maintains that the trial court failed in its role as a gate-
keeper when it denied its motion in limine to exclude Dr. Nieman’s opinion
testimony, because Dr. Nieman failed to provide the scientific methodology
underlying his opinion as required by Daubert v. Merrell Dow Pharmaceuticals,
Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, and Valentine v.
Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683.
{¶19} Trial courts have broad discretion in determining the admissibility of
expert testimony, subject to review for an abuse of discretion. Terry v. Caputo,
115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶16. An abuse of discretion
implies that the court’s decision was unreasonable, arbitrary, or unconscionable.
Valentine at ¶20. “Courts should favor the admissibility of expert testimony
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whenever it is relevant and the criteria of Evid.R. 702 are met.” State v. Nemeth
(1998), 82 Ohio St.3d 202, 207, 694 N.E.2d 1332. In order for scientific evidence
to be admitted, it must be reliable and “must assist the trier of fact in determining a
fact issue or understanding the evidence.” Miller v. Bike Athletic Co. (1998), 80
Ohio St.3d 607, 611, 687 N.E.2d 735, following Daubert.
{¶20} Evid.R. 702 governs the admissibility of expert testimony and
provides as follows:
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.
{¶21} In determining whether an expert’s testimony is reliable, courts must
focus their inquiry “on whether the opinion is based upon scientifically valid
principles, not whether the expert's conclusions are correct or whether the
testimony satisfies the proponent's burden of proof at trial.” Miller v. Bike Athletic
Co., at paragraph one of the syllabus. “The credibility of [an expert's] conclusion
and the relative weight it should enjoy are determinations left to the trier of fact.”
Nemeth at 210.
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{¶22} Safe-Turf does not object to Dr. Nieman’s being qualified as an
expert under Evid.R. 702(B). Under Ohio law, any doctor licensed to practice
medicine may testify as an expert on medical issues. State v. Snodgrass, 177 Ohio
App.3d 556, 2008-Ohio-4019, 895 N.E.2d 259, ¶ 7-8. Safe-Turf complains that
Dr. Nieman failed to provide the basis for his opinion that Schnipke’s employment
proximately caused the torn meniscus, asserting that unscientific opinions must be
excluded because they have no place in a court of law.
{¶23} Dr. Nieman was an experienced orthopedic surgeon with a
subspecialty in orthopedic sports medicine. He was also Schnipke’s treating
physician. He examined Schnipke’s knee the day after the injury, he reviewed the
MRI images diagnosing the torn meniscus, and he performed the surgery on
Schnipke’s knee.
{¶24} Dr. Nieman’s video deposition was played at trial, showing the
doctor answering the questions posed and referring to Schnipke’s medical records.
The doctor answered questions about his training and experience, he described his
examination of Schnipke, and he explained what was involved with a torn medial
meniscus. The doctor was asked, “In your opinion, Doctor, was the injury which
you diagnosed in Schnipke caused by the work activities described by Schnipke
and the history given to you by Schnipke?” Dr. Nieman responded in the
affirmative.
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{¶25} It was evident from the testimony that Dr. Nieman arrived at his
opinions by going through the history of the injury, the background information
given to him by Schnipke, his examinations, and his review of the imaging studies.
He was also given several hypothetical questions, to which he gave his opinion to
a reasonable degree of medical certainty, based on his medical training and
experience. Furthermore, as the trial court noted, “[t]he ‘what if’ questions and
‘please assume’ questions put into play [Schnipke’s] credibility as to the events,”
and were, therefore, matters for the jury to evaluate.
{¶26} The methods and principles used by Dr. Nieman were those
generally applied in the formation of most medical opinions. We do not see any
evidence in the trial or deposition transcripts that Dr. Nieman varied from the
methods that other orthopedic surgeons would use in making a disability
evaluation. We agree with the Second District Court of Appeals’ commentary that
“[i]f Ohio courts considered the examination of a patient, review of his medical
records, and the taking of his history to be an unreliable methodology, the bulk of
all medical testimony would be inadmissible.” See Riblet v. Dayton Foods Ltd.
Partnership, 2nd Dist. No. 2006CA0058, 2007-Ohio-672, ¶18.
{¶27} In Eve v. Johnson (Oct. 30, 1998), 1st Dist. No. C-970957, 1998 WL
754320, the First District Court of Appeals reviewed a similar issue wherein the
defendant was questioning whether the orthopedic physician’s methodology met
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the requirements of Evid.R. 702(C). The court stated, “[T]his is not a Daubert
case,” noting that "[o]rthopaedics is simply not the kind of 'junk science' or
unproven theory that Evid.R. 702(C) was drafted to exclude." Id. at * 3, quoting
Hutchins v. Delco Chassis Sys., GMC (Feb. 20, 1998), 2nd Dist. No. 16659, 1998
WL 70511, * 4.
{¶28} Based on the above, we find that the trial court’s decision to allow
Dr. Nieman’s expert testimony was not unreasonable, arbitrary, or
unconscionable. Safe-Turf’s second assignment of error is overruled.
Third and Fourth Assignments of Error
{¶29} Safe-Turf’s third and fourth assignments of error contend that the
trial court made several errors involving the jury instructions. Specifically, Safe-
Turf maintains that (1) the trial court should not have instructed the jury on
aggravation of injuries, because there was no evidence to support such an
instruction, (2) the trial court failed to give an instruction addressing the idiopathic
nature of Schnipke’s injury, and (3) the trial court erred when it failed to give the
jury interrogatories concerning the potential idiopathic nature of Schnipke’s
injury.
{¶30} In reviewing the sufficiency of jury instructions given by a trial
court, the proper standard of review for an appellate court is whether the trial
court's refusal to give a requested jury instruction constituted an abuse of
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discretion under the facts and circumstances of the case. State v. Wolons (1989),
44 Ohio St.3d 64, 68, 541 N.E.2d 443. A strong presumption exists in favor of the
propriety of jury instructions. Burns v. Prudential Secs., Inc., 167 Ohio App.3d
809, 2006-Ohio-3550, 857 N.E.2d 621, ¶41. Generally, the trial court should give
requested jury instructions “if they are correct statements of the law applicable to
the facts in the case.” Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585,
591, 575 N.E.2d 828. Instructions that in their totality are sufficiently clear to
permit the jury to understand the relevant law will not be the cause of a reversal
upon appeal. Burns at ¶41. Whether the jury instructions correctly state the law is
a question of law, which we review de novo. Murphy at 591.
{¶31} Safe-Turf submitted four proposed jury interrogatories. The trial
court used two of those interrogatories, which were submitted to the jury and
answered in the affirmative by all eight jurors before arriving at their verdict:
(1) Did plaintiff sustain an injury in the course of his employment
at Safe-Turf on February 12, 2008?
(2) Did plaintiff’s injury to his right knee arise out of his
employment on February 12, 2008?
{¶32} The trial court did not use the other two proposed juror
interrogatories, although it did include an instruction to the jury on “pre-existing
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conditions.”4 The two unused interrogatories that were submitted by Safe-Turf
were:
Was plaintiff’s injury on February 12, 2008 the result of an
unexplained event?
Did plaintiff present evidence which would rule out his pre-
existing condition of morbid obesity as a cause of injury on February
12, 2008?
{¶33} Safe-Turf’s first issue concerning the jury instructions complains
that the trial court should not have given the instruction on the risk of aggravation
of pre-existing conditions (see fn. 4) because “the present case does not involve an
aggravation of a pre-existing condition.”
{¶34} The trial court’s jury instruction concerning pre-existing conditions
came from the Ohio Jury Instructions, 1 Ohio Jury Instructions Section 427.13,
and was a correct statement of the law pursuant to R.C. 4123.01(C). Furthermore,
Safe-Turf had submitted a request for an interrogatory concerning Schnipke’s
“pre-existing condition of morbid obesity,” his alleged condition of “morbid
obesity” was mentioned throughout the trial, and Safe-Turf’s expert repeatedly
testified regarding degenerative and arthritic conditions in Schnipke’s right knee,
implying that they were pre-existing conditions involved in Schnipke’s injury. We
fail to see how the trial court erred in giving this instruction to the jury.
4
The instruction concerning pre-existing conditions that was read to the jury was “Employers take their
employees as they find them and assume the risk of having an employee’s pre-existing condition
substantially aggravated by some injury which would not hurt or bother a perfectly healthy person.”
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{¶35} In the remaining two jury-instruction issues, pertaining to the third
assignment of error, Safe-Turf complains that the trial court failed to give jury
instructions and an interrogatory pertaining to the “idiopathic nature of Appellee’s
alleged injury.” In addition to the proposed interrogatory discussed above, Safe-
Turf had requested the following jury instruction: “Injuries caused by unexplained
events are not compensable unless the plaintiff can rule out pre-existing conditions
as the cause of the injury.”
{¶36} For workers’ compensation purposes, “idiopathic” refers to an
employee’s preexisting physical weakness or disease that contributes to the
accident. Waller v. Mayfield (1988), 37 Ohio St.3d 118, 121, 524 N.E.2d 458, fn.
3, citing 1 Larson, The Law of Workmen's Compensation (1985) 3-308, Section
12.00; Chappell v. Wal-Mart Stores, Inc., 3rd Dist. No. 9-08-43, 2009-Ohio-542,
¶17. A trial court must charge a jury with instructions that are a correct and
complete statement of the law. Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12,
482 N.E.2d 583. However, the precise language of a jury instruction is within the
discretion of the trial court. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679,
690, 591 N.E.2d 762. A trial court has no obligation to give jury instructions in
the language proposed by the parties, even if the proposed instruction is an
accurate statement of the law. Henderson v. Spring Run Allotment (1994), 99
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Ohio App.3d 633, 638, 651 N.E.2d 489. “Instead, the court has the discretion to
use its own language to communicate the same legal principles.” Id.{¶37} In addition to the instruction on pre-existing conditions, the trial
court gave the jury the following instruction.
Injury includes any injury, whether caused by external
accidental means or accidental in character, received in the course
of, and arising out of, the injured employee’s employment. Injury
does not include injury or disability caused primarily by the natural
deterioration of tissue, an organ, or part of the body. Nor does injury
include physical harm caused by outside or external circumstances.
{¶38} In reviewing the total of all of the 12 pages of jury instructions, we
find that they were correct statements of the law and were applicable to the facts in
the case. Safe-Turf’s proposed idiopathic instruction was based upon this court’s
decision in Chappell v. Wal-Mart Stores, Inc., 2009-Ohio-542, which involved an
unexplained fall. In the case before us, Schnipke’s injury was not an “unexplained
injury” – the record is replete with evidence that he was turning while he was
walking fast in order to grab another bag, as required by his job. As recorded in
Dr. Nieman’s medical records, Schnipke told him that he was “just somewhat
pivoting or twisting on this right knee and he felt a pop in his knee and he almost
felt like the knee subluxed or gave way on him.” Granted, the weight that
Schnipke put on his knee as he was turning was substantial, but employers must
take their employees as they find them.
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{¶39} The trial court’s choice of jury instructions and interrogatories was
not an abuse of discretion. Safe-Turf’s third and fourth assignments of error are
overruled.
{¶40} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
ROGERS and SHAW, JJ., concur.
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