Holman v. Shiloh Grove Ltd. Partnership

[Cite as Holman v. Shiloh Grove Ltd. Partnership, 2016-Ohio-2809.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jelmal Holman, :
Appellant-Appellant, : No. 15AP-228
&
v. : No. 15AP-797
(C.P.C. No. 13CV-12129)
Shiloh Grove Limited Partnership et al., :
(REGULAR CALENDAR)
Appellees-Appellees. :
D E C I S I O N
Rendered on May 3, 2016
On brief: Malek & Malek and Douglas C. Malek, for
appellant. Argued: Douglas C. Malek
On brief: Michael DeWine, Attorney General, and Kevin J.
Reis, for appellee Administrator, Ohio Bureau of Workers'
Compensation. Argued: Kevin J. Reis
APPEALS from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Appellant-appellant, Jelmal Holman, appeals from a judgment of the
Franklin County Court of Common Pleas denying him the right to participate in the
benefits of the Ohio Bureau of Workers' Compensation Fund (the "fund") for a medical
condition he alleges resulted from a workplace injury. For the following reasons, we
affirm.
I. Facts and Procedural History
{¶ 2} On January 30, 2009, Holman sustained an injury in the course of and
arising out of his employment with Shiloh Grove Limited Partnership ("Shiloh Grove").
The Industrial Commission of Ohio allowed the following medical conditions as part of
Holman's workers' compensation claim: "contusion scalp (head); contusion neck; [and]
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cervical sprain/strain." (Complaint, exhibit B.) The Industrial Commission denied
Holman's request for the allowance of the following additional medical conditions:
substantial aggravation of pre-existing disc herniation at C5-6, C6-7; substantial
aggravation of pre-existing foraminal stenosis at C5-6, C6-7; and substantial aggravation
of pre-existing degenerative disc disease at C5-6.
{¶ 3} In December 2010, Holman appealed the denial of his request for the
allowance of additional medical conditions to the Franklin County Court of Common
Pleas. In November 2012, defendants Administrator, Ohio Bureau of Workers'
Compensation ("Administrator"), and Shiloh Grove moved to exclude the opinion and
testimony of David Weaner, a high school physics teacher, based on Evid.R. 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The trial court held
a Daubert hearing on December 10, 2012. Three days later, the trial court granted the
motion and entered an order excluding the opinion and testimony of Weaner. In January
2013, Holman voluntarily dismissed the action.
{¶ 4} In November 2013, Holman refiled his appeal in the Franklin County Court
of Common Pleas. The trial court referred the matter to a magistrate pursuant to
Civ.R. 53. Before trial, the Administrator filed a motion in limine requesting the exclusion
of "flow through" medical causation testimony. The magistrate granted the
Administrator's motion in limine, effectively limiting the issue for the jury to whether
Holman's January 30, 2009 industrial injury caused a substantial aggravation of pre-
existing degenerative disc disease at C5-6. Consistent with this decision, the depositions
of Stephen Altic, D.O., Kenneth Writesel, D.O., and Karl Kumler, M.D., were edited before
their testimony was presented at trial. Holman filed a motion in limine requesting the
exclusion of the deposition testimony of either Dr. Writesel or Dr. Kumler on the basis
that their testimony was cumulative. The magistrate denied Holman's motion in limine.
Additionally, and consistent with the trial court's earlier decision, the magistrate ruled
that she would not permit Weaner to testify.
{¶ 5} A jury trial commenced in February 2015 on the issue of Holman's request
to participate in the fund for his alleged substantial aggravation of pre-existing
degenerative disc disease at C5-6. At trial, Holman testified that a falling "sheet of ice"
struck him in the head, neck, and back as he was working as a maintenance employee at
Nos. 15AP-228 and 15AP-797 3
Mount Vernon Plaza residential complex, which Shiloh Grove owns. (Feb. 2, 2015
Tr., 37.) Although Holman did not see the ice fall as he was walking away from the
thirteen-floor building, he believed that the ice fell from the top of the building. Holman
acknowledged that there is an awning near the exit of the building, but he testified that he
was past the awning when the ice struck him. He also testified that surveillance video of
the incident "showed the ice and the snow falling down from the top." (Feb. 2, 2015
Tr., 47.)
{¶ 6} The edited testimony of Holman's treating physician, Dr. Altic, was read
into the record at trial. Dr. Altic testified that he saw Holman many times from his initial
physical examination in May 2009 until July 2011. Holman had two MRIs performed,
one in April 2009 and the other in February 2010. According to Dr. Altic, "[b]oth MRIs
show degenerative [disc] disease at C5-6. However, the pathology in the 2010 MRI
appears to be significantly worse than the previous MRI over a period of time * * * in
which we wouldn't normally see that sort of pathology developing that quickly." (Altic
Dep., 71.) Based on his review of the MRI reports, Dr. Altic opined that Holman had
degenerative disc disease at C5-6 prior to January 30, 2009. Dr. Altic further opined that
Holman's injury on January 30, 2009 substantially aggravated the pre-existing
degenerative disc disease at C5-6.
{¶ 7} The edited videotaped depositions of Drs. Writesel and Kumler were played
for the jury at trial. Dr. Writesel testified that he is board certified in geriatrics and
emergency medicine and is board eligible in occupational medicine. Occupational
medicine is a specialty devoted to "the evaluation and treatment of individuals that have
been injured or have suffered illness in a workplace setting." (Writesel Dep., 11.)
Dr. Writesel physically examined Holman in August 2010, and he reviewed Holman's
medical records, including the MRI reports. Dr. Writesel opined that the injury Holman
sustained on January 30, 2009 did not cause a substantial aggravation of the pre-existing
degenerative disc disease at C5-6.
{¶ 8} Dr. Kumler is board certified in orthopedic surgery. Dr. Kumler physically
examined Holman in February 2012, and he reviewed Holman's medical records,
including the April 2009 and February 2010 MRI reports. Dr. Kumler opined that
Nos. 15AP-228 and 15AP-797 4
Holman's January 30, 2009 injury did not substantially aggravate the pre-existing
degenerative disc disease at C5-6.
{¶ 9} A number of Holman's Mount Vernon Plaza co-workers testified regarding
the circumstances surrounding the January 30, 2009 incident. As pertinent here,
Christopher Burns, a groundskeeper at Mount Vernon Plaza, testified regarding the
accumulation of ice on the building. Burns observed icicles, or other forms of ice
accumulation, at various levels of the building, but he noted that they were "mainly * * *
[at] the top of the building." (Feb. 3, 2015 Tr., 136.) Burns also testified that he had seen
icicles that were up to two feet in length, but they varied in size. Neither Burns nor any
other testifying witness personally saw the frozen object strike Holman. William Dutton,
another groundskeeper at Mount Vernon Plaza, testified that he watched a surveillance
video show "something" strike Holman, causing Holman to "go down to a knee." (Feb. 3,
2015 Tr., 121.)
{¶ 10} After the presentation of evidence, the jury found that Holman is not
entitled to participate in the fund for the condition of "substantial aggravation of pre-
existing degenerative disc disease at C5-6" as a result of his January 30, 2009 injury.
(Feb. 5, 2015 Verdict.) On February 26, 2015, the trial court filed a judgment entry
reflecting the jury's verdict.
{¶ 11} On March 23, 2015, Holman filed a motion for new trial. Four days later,
Holman filed a notice of appeal from the February 26, 2015 judgment entry. In May 2015,
this court remanded the matter, for the limited purpose of allowing the trial court to rule
on the motion for new trial, and stayed the pending appeal. In July 2015, the trial court
denied Holman's motion for new trial. Holman filed a notice of appeal from the denial of
his motion for new trial. This court consolidated the two appeals for purposes of briefing
and oral argument.
Nos. 15AP-228 and 15AP-797 5
II. Assignments of Error
{¶ 12} Holman assigns the following errors for our review:1
[1.] The trial court erred on July 27, 2015, to the prejudice of
Plaintiff-Appellant, Jelmal Holman ("Holman"), when it
denied Holman's Motion for a New Trial.
[2.] The trial court erred on February 2, 2015 when it denied
Holman's January 23, 2015 Motion in Limine, seeking to
exclude cumulative expert testimony.
[3.] The trial court erred on February 2, 2015 when it granted
Defendant-Appellee, Bureau of Workers' Compensation's
("BWC"), January 30, 2015 Motion in Limine, preventing the
jury from addressing four of the five conditions noticed on
appeal, disc herniations at C5-6 and C6-7 with foraminal
stenosis at these same two levels.
[4.] The trial court erred to the prejudice of Holman on
February 4, 2015 when it admitted the expert opinion
testimony of BWC's expert physicians without also admitting
records relied upon by these experts or admitting testimony
made by these experts in discussing the clinical findings
contained within these records.
[5.] [T]he trial court erred on December 13, 2012 and again
on February 2, 2015, to the prejudice of Holman, when it
excluded the opinion and testimony of David Weaner, a high
school physics teacher.
III. Discussion
{¶ 13} For ease of discussion, we address Holman's assignments of error out of
order, and we address related assignments of error together. Holman's second, third,
fourth, and fifth assignments of error address evidentiary issues. Holman's first
assignment of error challenges the trial court's denial of his motion for new trial.
A. Evidentiary Rulings
{¶ 14} The admission or exclusion of evidence is generally within the sound
discretion of the trial court, and a reviewing court may reverse only on the showing of an
abuse of that discretion. Peters v. Ohio State Lottery Comm., 63 Ohio St.3d 296, 299
1Because Holman presents his assignments of error in a narrative format, we separate and number the
alleged errors.
Nos. 15AP-228 and 15AP-797 6
(1992). The term "abuse of discretion" connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
1. Holman's challenges to the admission of Drs. Kumler and Writesel's
testimony
{¶ 15} In Holman's second assignment of error, he asserts the trial court erred in
denying his motion in limine seeking to exclude cumulative expert testimony. Holman
argues that the trial court erred in permitting both Drs. Kumler and Writesel to testify.
We disagree.
{¶ 16} Evid.R. 403(B) provides that relevant evidence is not admissible if its
probative value is substantially outweighed by consideration of undue delay or needless
presentation of cumulative evidence, and a trial court has the discretion to exclude expert
testimony where the testimony would not assist the trier of fact. Bostic v. Connor, 37
Ohio St.3d 144 (1988), paragraph three of the syllabus; see State v. Campbell, 69 Ohio
St.3d 38, 51 (1994) ("Evid.R. 403(B) does not require exclusion of cumulative evidence.
The court has discretion to admit or exclude it."). Cumulative evidence "is additional
evidence of the same kind to the same point." Smith v. Chatwood, 2d Dist. No. 2618
(Aug. 15, 1990), citing Kroger v. Ryan, 83 Ohio St. 299 (1911), paragraph one of syllabus.
{¶ 17} Here, Holman argues that the testimony of Drs. Kumler and Writesel was
unfairly cumulative. Holman contends that these physicians considered the same facts
and reached the same conclusions regarding the condition at issue. Thus, according to
Holman, the magistrate should have permitted only one of these physicians to testify.
This argument is unpersuasive. To be sure, Drs. Kumler and Writesel both opined that
Holman's injury on January 30, 2009 did not cause a substantial aggravation of pre-
existing degenerative disc disease at C5-6; however, their agreement did not render the
evidence needlessly cumulative. Each doctor physically examined Holman at different
times and each has a different medical specialty. Dr. Kumler is an orthopedic surgeon,
and Dr. Writesel has extensive experience in occupational medicine. Because the
testimony of Drs. Kumler and Writesel were not needlessly cumulative, we find that the
magistrate did not abuse her discretion by permitting both to testify.
{¶ 18} Accordingly, Holman's second assignment of error is overruled.
Nos. 15AP-228 and 15AP-797 7
{¶ 19} Holman's fourth assignment of error alleges that the magistrate abused her
discretion by allowing Drs. Writesel and Kumler to testify as to their opinions even though
they relied on certain medical records not admitted into evidence. Holman also alleges
that because the opinion testimony was permitted, the magistrate erred by refusing to
admit into evidence all of the medical records they relied on in reaching their opinions.
These arguments are unpersuasive.
{¶ 20} Holman argues that the magistrate should have excluded the opinions of
Drs. Writesel and Kumler based on Evid.R. 703 because these physicians relied on
medical records that were not admitted into evidence—the reports of Robert Dixon, D.O.,
and Roman Kovac, D.O. ("Dixon and Kovac reports"). Neither Dr. Dixon nor Dr. Kovac
testified at trial. Evid.R. 703 specifies the permissible basis of expert opinion testimony.
The rule states: "The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by the expert or admitted in evidence at the
hearing." The Supreme Court of Ohio has noted that "Evid.R. 703 is written in the
disjunctive. Opinions may be based on perceptions or facts or data admitted in evidence."
(Emphasis omitted.) State v. Solomon, 59 Ohio St.3d 124, 126 (1991). In Solomon, the
Supreme Court concluded that, "[w]here an expert bases his opinion, in whole or in major
part, on facts or data perceived by him, the requirement of Evid.R. 703 has been
satisfied." Id. at syllabus. The objecting party bears the burden of demonstrating that the
expert principally relied on facts not admitted into evidence and not perceived by the
expert. Havanec v. Havanec, 10th Dist. No. 08AP-465, 2008-Ohio-6966, ¶ 15, citing
Farkas v. Detar, 126 Ohio App.3d 795 (9th Dist.1998).
{¶ 21} Here, Holman fails to demonstrate that Drs. Writesel and Kumler
principally relied on facts not admitted into evidence and not perceived by them. As
noted above, both of these physicians personally examined Holman. Additionally,
although Drs. Writesel and Kumler both testified that they reviewed the Dixon and Kovac
reports as part of their review of Holman's medical records, they did not indicate that the
information contained therein was the basis of their opinions regarding the alleged
substantial aggravation of pre-existing degenerative disc disease at C5-6. To the contrary,
the testimony of Drs. Writesel and Kumler indicate that both primarily relied on the MRI
reports and their own examination of Holman in reaching their opinions regarding the
Nos. 15AP-228 and 15AP-797 8
alleged substantial aggravation of pre-existing degenerative disc disease at C5-6.
Therefore, we find that the magistrate did not abuse her discretion in permitting
Drs. Writesel and Kumler's opinion testimony despite the non-admission of the Dixon
and Kovac reports.
{¶ 22} Holman's challenge to the magistrate's decision to exclude the Dixon and
Kovac reports as inadmissible hearsay is also unavailing. Hearsay is an out-of-court
statement offered for the truth of the matter asserted, and hearsay is generally not
admissible. Evid.R. 801(C) and 802. There are exceptions to the hearsay rule, however,
and those exceptions are listed in Evid.R. 803 and 804. While Holman asserts that the
Dixon and Kovac reports were admissible, he does not present any argument explaining
why the magistrate erroneously concluded that the reports were inadmissible hearsay. In
the absence of such an explanation, this argument fails. See, e.g., Bank of New York v.
Barclay, 10th Dist. No. 04AP-48, 2004-Ohio-4555, ¶ 10 (undeveloped arguments
normally cannot form the basis for reversing a trial court's judgment).
{¶ 23} For these reasons, we overrule Holman's fourth assignment of error.
2. Granting of the Administrator's motion to exclude evidence
regarding additional requested "flow through" conditions
{¶ 24} In his third assignment of error, Holman asserts the trial court erred in
granting the Administrator's motion to exclude medical evidence regarding four of the
five additional conditions he requested. Holman argues that evidence regarding all of the
additional requested conditions should have been presented to the jury. This assignment
of error is without merit.
{¶ 25} In addition to seeking the allowance for the condition of substantial
aggravation of pre-existing degenerative disc disease at C5-6, Holman sought the
allowance of additional conditions based on a "flow through" theory of causation. A "flow
through" injury is generally defined as an injury that subsequently develops in a body part
not originally alleged under R.C. 4123.84(A)(1). Click v. S. Ohio Corr. Facility, 152 Ohio
App.3d 560, 2003-Ohio-2208, ¶ 9 (4th Dist.), citing Dent v. AT&T Technologies, Inc., 38
Ohio St.3d 187 (1988). Whether a flow through injury is compensable depends on the
existence of a direct or proximate causal relationship between the previously allowed
Nos. 15AP-228 and 15AP-797 9
injury and the claimant's flow through injury. Kenyon v. Scott Fetzer Co., 113 Ohio
App.3d 264, 266 (8th Dist.1996).
{¶ 26} Here, Dr. Altic testified at his deposition that the substantial aggravation of
the pre-existing degenerative disc disease at C5-6 caused the other requested conditions.
Consequently, Holman's theory was that his workplace injury caused the substantial
aggravation of the pre-existing degenerative disc disease at C5-6, and that the C5-6
aggravation caused four other compensable conditions. As explained above, the
magistrate limited the issues at trial to the question of whether the workplace injury
caused the substantial aggravation of the pre-existing degenerative disc disease at C5-6.
Based on this ruling, Dr. Altic's deposition transcript was edited and read to the jury, and
Drs. Kumler and Writesel's video depositions were edited and played for the jury.
{¶ 27} Holman concedes that the jury would have had to find the substantial
aggravation of the pre-existing degenerative disc disease at C5-6 in order to conclude the
C5-6 aggravation caused the "flow through" injuries requested. Thus, the jury's finding
that Holman is not entitled to participate in the fund for the condition of substantial
aggravation of pre-existing degenerative disc disease at C5-6 necessarily precluded
Holman from participating in the fund for the other requested additional conditions.
Holman acknowledges this conclusion but argues that he was prejudiced because the
edited testimony of the physicians resulted in confusing evidence. Holman also argues
that timing of the decision to limit the testimony to the C5-6 aggravation prejudiced him
because it required an alteration to his strategy at trial. These arguments are
unpersuasive.
{¶ 28} Holman does not explain how the magistrate's editing of the transcripts
prejudiced him. Upon our review of the transcripts, we find that the magistrate carefully
edited the transcripts consistent with her rulings. While we agree with Holman insofar as
he asserts that the some of the testimony was disjointed because of the editing, we are
unconvinced that such minor fragmentation was prejudicial to Holman. At least some
degree of fragmentation is inevitable when a trial deposition is edited prior to its
presentation to the trier of fact. Furthermore, while Holman generally argues that the
magistrate's limitation of the case to one condition altered his approach at trial, he does
not explain how the limitation precluded him from prosecuting his case as it related to
Nos. 15AP-228 and 15AP-797 10
that condition. Thus, we conclude that the magistrate's editing of the physicians'
depositions did not prejudice Holman.
{¶ 29} Accordingly, we overrule Holman's third assignment of error.
3. Exclusion of testimony of high school physics teacher David Weaner
{¶ 30} In his fifth assignment of error, Holman asserts the trial court erred in
excluding the opinion and testimony of David Weaner, a high school physics teacher.
Holman argues that the trial court abused its discretion by not permitting Weaner to
testify as an expert because he could have explained to the jury the forces involved with
falling ice striking a fixed object. This assignment of error lacks merit.
{¶ 31} A fundamental problem with Weaner's proposed testimony was that it
relied on assumed facts that were largely speculative. Based on testimony at trial, certain
basic facts regarding Holman's injury were undisputed. On January 30, 2009, Holman
was struck by falling ice or snow, or a combination of both, as he walked away from the
thirteen-floor building at Mount Vernon Plaza. Other circumstances of the incident were
unclear. For example, evidence was conflicting regarding the path of the frozen object as
it descended. Holman testified that he was past the awning when he was struck, and thus
the frozen object could not have come from the awning. But Dr. Writesel testified that
Holman told him that the object fell, ricocheted off the awning, and then struck him.
Moreover, no one at trial testified regarding the dimensions of the frozen object that
struck Holman.
{¶ 32} It is a basic physics principle that force equals mass times acceleration.
Thus, if either mass or acceleration is unknown, then force is also unknown. Holman
addresses the absence of any testimony indicating the dimensions of the frozen object that
struck him by referring to general testimony regarding the formation of icicles at Mount
Vernon Plaza. Holman asserts that Burns testified regarding the location and size of
icicles on Mount Vernon Plaza and that he had previously witnessed icicles fall off the
building to the ground. Indeed, Burns testified that he had observed icicles, or other ice
accumulation, at various levels of the building, and he noted that the icicles usually were
located at the top of the building. Burns testified that he had seen icicles that were up to
two feet in length, and he acknowledged that the icicles varied in size. Thus, Burns'
testimony simply outlined the types of ice accumulation that he had generally observed at
Nos. 15AP-228 and 15AP-797 11
Mount Vernon Plaza. But Burns' testimony did not provide a reasonably limited
framework in which a physicist could determine the impact force of the actual frozen
object that struck Holman. Under these circumstances, the magistrate reasonably
concluded that the information on which Weaner based his testimony was impermissibly
speculative.
{¶ 33} Because the magistrate did not abuse her discretion in excluding Weaner's
testimony, we overrule Holman's fifth assignment of error.
B. Denial of motion for new trial
{¶ 34} Holman's first assignment of error alleges the trial court erred in denying
his motion for new trial pursuant to Civ.R. 59(A). Although Holman assigns as error the
trial court's denial of his motion for new trial, he does not separately set forth arguments
directly addressing his first assignment of error. Instead, it appears Holman relies on the
arguments set forth in support of his other assignments of error to demonstrate the trial
court abused its discretion in denying his motion for new trial. Thus, we construe
Holman's first assignment of error as incorporating his other assignments of error related
to the trial court proceedings. For the reasons expressed in response to Holman's second,
third, fourth, and fifth assignments of error, we find the trial court did not abuse its
discretion in denying Holman's motion for new trial. Therefore, his first assignment of
error is overruled.
IV. Disposition
{¶ 35} Having overruled Holman's five assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and KLATT, JJ., concur.