Schutte v. Mooney

DONOVAN, Judge, concurring in part and dissenting in part.

{¶ 38} I concur in judgment only as to the resolution of the second assignment of error. I disagree with the majority's resolution of Schutte's first assignment of error. The record does not support the conclusion that the trial judge abused his discretion in prohibiting Dr. Vermilion, a vascular surgeon, from testifying as to the standard of care to be applied to an emergency-room physician.

{¶ 39} "It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. A decision is unreasonable if there is no sound reasoning process that would support that decision." AAA Enterprises, Inc. v.River Place Community Redev. Corp. (1990), 50 Ohio St.3d 157,161, 553 N.E.2d 597.

{¶ 40} As the majority correctly observed, the facts inTaulbee are similar to the case before us in many respects. This similarity and the law dictate a finding that the trial court did not abuse its discretion in excluding Dr. Vermilion's testimony. It was clearly established that Dr. Vermilion had not kept current on emergency-room literature and had not practiced emergency room medicine for some 28 years. It cannot credibly be said that the protocol in an emergency room to diagnose or rule out DVT is analogous to that of a vascular surgeon's private office. The two settings, an emergency room on one hand versus a vascular surgeon's private office on the other, are as different as night and day. The trial court correctly concluded under Evid.R. 702 that Dr. Vermilion "lacked the specialized knowledge, skill, experience, training and education in emergency medicine" to attest to the standard of care of an ER physician in diagnosing DVT.

{¶ 41} A full hearing was held by the trial court before excluding Dr. Vermilion. An analysis of Taulbee and Evid.R. 702 occurred. I cannot conclude that the judge abused his discretion.

{¶ 42} I would affirm the judgment excluding appellant's expert and thus affirm the decision of the trial court in its entirety.