IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Cora M. Lautenschlager,
:
PlaintiffAppellant,
:
No. 07AP308
(C.P.C. No. 04CVA1112202)
v.
:
(REGULAR CALENDAR)
MidOhio Cardiology and Vascular
:
Consultants, Inc. et al.,
:
DefendantsAppellees.
:
O P I N I O N
Rendered on July 24, 2008
Blue Wilson & Blue, Deborah J. Mandt
and
Douglas J. Blue
,
for appellant.
Arnold Todaro & Welch, Kevin W. Popham
and
Maryellen C.
Spirito
, for appellee.
APPEAL fromthe Franklin County Court of Common Pleas.
PETREE, J.
{¶1}
Plaintiffappellant ("plaintiff"), Cora Lautenschlager, appeals from a
judgment of the Franklin County Court of Common Pleas granting a directed verdict in
favor of defendantappellee MidOhio Cardiology and Vascular Consultants, Inc.
("defendant" or "MidOhio Cardiology"). Because the trial court did not abuse its discretion
when it determined plaintiff's identified expert witness was not qualified to offer opinion
testimony, we affirm the judgment of the trial court.
No. 07AP308
2
{¶2}
Alleging injuries sustained by plaintiff in a fall from a treadmill during a
cardiac stress test on December 8, 2003, were the direct and proximate result of
defendant's agent's negligence in administering the stress test, plaintiff sued MidOhio
Cardiology and anonymous defendants in common pleas court in November 2004. By
her complaint, plaintiff sought more than $25,000 in damages and demanded a jury trial.
MidOhio Cardiology denied plaintiff's assertion of negligence.
{¶3}
Claiming that plaintiff's identified expert witness, Joel M. Chupp, RN, RVT,
lacked specialized knowledge, skill, experience, training, or education to testify as an
expert witness, in a pretrial motion defendant moved the trial court to bar Mr. Chupp from
offering opinion testimony at trial. After conducting a pretrial hearing, the trial court
reserved its ruling until after the parties had an opportunity to conduct a voir dire
examination of Mr. Chupp at trial.
1
{¶4}
After the parties examined Mr. Chupp on the voir dire, the trial court granted
MidOhio Cardiology's motion to preclude Mr. Chupp from offering opinion testimony. At
the close of plaintiff's presentation of evidence, defendant moved for a directed verdict
under Civ.R. 50(A). Construing the evidence most strongly in favor of plaintiff, the trial
court found that reasonable minds could come to but one conclusion, which was adverse
to plaintiff. Accordingly, the trial court directed a verdict in favor of defendant. The trial
court also denied plaintiff's motion for a mistrial.
1
Both parties agree that: (1) a pretrial hearing was held; (2) at the hearing, the trial court reserved ruling on
defendant's motion; and (3) a transcript of this pretrial hearing is unavailable. Absent a transcript of the
pretrial hearing, the parties have not filed an App.R. 9(C) statement reflecting the evidence presented at the
pretrial hearing. See, generally, App.R. 9(C) and (D); see, also,
Knapp v. Edwards Laboratories
(1980), 61
Ohio St.2d 197, 199 (explaining that "[t]he duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the burden of showing error by reference to
matters in the record. * * * When portions of the transcript necessary for resolution of assigned errors are
omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors,
the court has no choice but to presume the validity of the lowercourt'sproceedings, and affirm").
No. 07AP308
3
{¶5}
From the trial court's judgment in favor of defendant, plaintiff assigns a
single error for our consideration:
The trial court erred with substantial prejudice to Plaintiff
Appellant Cora Lautenschlager, by ruling as a matter of law
that PlaintiffAppellant's expert witness, Joel Chupp, RN,
RVT, was not competent to give opinion testimony regarding
the issue of whether DefendantAppellees deviated from the
Standard of Care in their evaluation and treatment of Cora
Lautenschlager.
{¶6}
"The determination of the admissibility of expert testimony is within the
discretion of the trial court."
Valentine v. Conrad
, 110 Ohio St.3d 42, 2006Ohio3561, at
¶9, reconsideration denied, 111 Ohio St.3d 1418, 2006Ohio5083, citing former Evid.R.
104.
2
Such a determination will not be disturbed absent an abuse of discretion.
Valentine
, at ¶9, citing
Miller v. Bike Athletic Co.
(1998), 80 Ohio St.3d 607, 616.
{¶7}
" ' "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." ' "
State v. Smith,
Franklin App. No. 03AP1157, 2004Ohio4786, at
¶10, quoting
Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219, quoting
State v.
Adams
(1980), 62 Ohio St.2d 151, 157. An unreasonable decision is one that is
unsupported by a sound reasoning process.
AAAA Enterprises, Inc. v. River Place
Community Urban Redevelopment Corp.
(1990), 50 Ohio St.3d 157, 161; see, also,
Dayton ex rel. Scandrick v. McGee
(1981), 67 Ohio St.2d 356, 359, citing Black's Law
Dictionary (5 Ed.) (observing that " ' [u]nreasonable' means 'irrational' ");
State v.
Congrove,
Franklin App. No. 06AP1129, 2007Ohio3323, at ¶9. An arbitrary attitude, on
the other hand, is an attitude that is " 'without adequate determining principle * * * not
2
After the Supreme Court of Ohio issued
Valentine
, Evid.R. 104 was amended, effective July 1, 2007.
No. 07AP308
4
governed by any fixed rules or standard.' "
Scandrick,
at 359, quoting Black's Law
Dictionary (5 Ed.); see, also,
Congrove,
at ¶9. "Unconscionable" may be defined as
"affronting the sense of justice, decency, or reasonableness." Black's Law Dictionary (8
Ed.2004) 1561.
{¶8}
" ' "[A]n abuse of discretion involves far more than a difference in * * *
opinion * * *. The term discretion itself involves the idea of choice, of an exercise of the
will, of a determination made between competing considerations. In order to have an
'abuse' in reaching such determination, the result must be so palpably and grossly
violative of fact and logic that it evidences not the exercise of will but perversity of will, not
the exercise of judgment but defiance thereof, not the exercise of reason but rather of
passion or bias. * * *" ' "
Huffman v. Hair Surgeon, Inc.
(1985), 19 Ohio St.3d 83, 87,
quoting
State v. Jenkins
(1984), 15 Ohio St.3d 164, 222, certiorari denied (1985), 472
U.S. 1032, 105 S.Ct. 3514, rehearing denied (1985), 473 U.S. 927, 106 S.Ct. 19.
{¶9}
When applying an abuseofdiscretion standard, an appellate court may not
substitute its judgment for that of the trial court.
Berk v. Matthews
(1990), 53 Ohio St.3d
161, 169;
Stockdale v. Baba,
153 Ohio App.3d 712, 2003Ohio4366, at ¶54, citing
Berk,
at 169;
Congrove
, at ¶9; see, also,
Valentine
, at ¶9, citing
Calderon v. Sharkey
(1982), 70
Ohio St.2d 218, 222.
{¶10}
Here, the issue raised by plaintiff's sole assignment of error resolves to
whether the trial court abused its discretion when it precluded plaintiff's identified expert
witness, Joel M. Chupp, RN, RVT, from offering opinion testimony at trial. Stated
differently, the issue raised by her sole assignment of error resolves to whether the trial
No. 07AP308
5
court acted unreasonably, arbitrarily, or unconscionably, when it barred plaintiff's
identified expert witness from offering opinion testimony at trial.
3
{¶11}
"There is no presumption that a witness is competent to give an opinion,
and it is incumbent upon the party offering opinion testimony to show that the witness
possesses the necessary learning, knowledge, skill, or practical experience to enable him
to competently give such testimony."
Tully v. Mahoning Exp. Co.
(1954), 161 Ohio St.
457, paragraph two of the syllabus. Former 104(A), which was in effect at all times
pertinent to the proceedings at issue, provided, among other things, that preliminary
questions concerning the qualification of a person to be a witness shall be determined by
the court, subject to provisions in former Evid.R. 104(B). See, also, former Evid.R.
104(B).
4
Former Evid.R. 104(A) further provided that "[i]n making its determination [a
court]is not bound by the rules of evidence except those with respect to privileges."
{¶12}
Evid.R. 702(B) provides that a witness may testify as an expert if "[t]he
witness is qualified as an expert by specialized knowledge, skill, experience, training, or
education regarding the subject matter of the testimony[.]" See, also, Evid.R. 702
3
By her assignment of error, plaintiff only challenges the trial court's determination precluding plaintiff's
identified expert from offering opinion testimony. Plaintiff does not, however, challenge the granting of a
directed verdict in favor of defendant or the trial court's denial of her motion for a mistrial. See, generally,
Groob v. Keybank
, 108 Ohio St.3d 348, 2006Ohio1189, at ¶14, reconsideration denied, 109 Ohio St.3d
1483, 2006Ohio2466 (stating that "[a]ccording to Civ.R. 50(A)(4), a motion for directed verdict should be
granted when, after construing the evidence most strongly in favor of the party against whom the motion is
directed, 'reasonable minds could come to but one conclusion upon the evidence submitted and that
conclusion is adverse to such party' "); see, also, Civ.R. 59 (new trials).
Absent any challenge by plaintiff to the directed verdict itself, we shall not review the trial court's grant of a
directed verdict in favor of defendant. See, e.g.,
Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black
Angus Steak House No. III, Inc.
(1986), 24 Ohio St.3d 198, 202, citing former App.R. 12(A);
C. Miller
Chevrolet v. Willoughby Hills
(1974), 38 Ohio St.2d 298, 301 (observing that "[i]t is certainly true * * * that in
reviewing the judgment of a lower court, a court of appeals need only pass upon errors assigned and
briefed; errors not specifically raised may be disregarded").
4
Former Evid.R. 104(B) provided: "When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support
a finding of the fulfillment of the condition."
No. 07AP308
6
(providing that a witness may testify as an expert if divisions [A], [B], and [C] of Evid.R.
702 are satisfied).
5
"Neither special education nor certification is necessary to confer
expert status upon a witness. The individual offered as an expert need not have complete
knowledge of the field in question, as long as the knowledge he or she possesses will aid
the trier of fact in performing its factfinding function."
State v. Hartman
(2001), 93 Ohio
St.3d 274, 285, citing
State v. Baston
(1999), 85 Ohio St.3d 418, 423, reconsideration
denied, 86 Ohio St.3d 1421, certiorari denied, 528 U.S. 1049, 120 S.Ct. 587;
State v.
D'Ambrosio
(1993), 67 Ohio St.3d 185, 191; see, also,
State v. Were
, ___ Ohio St.3d
___, 2008Ohio2762, at ¶235;
State v. Davis
, 116 Ohio St.3d 404, 2008Ohio2, at ¶148,
reconsideration denied, ___ Ohio St.3d ___, 2008Ohio969, petition for certiorari and
motion for leave to file in forma pauperis filed on June 4, 2008, sub nom.
Davis v. Ohio
,
U.S. Supreme Court case No. 0711308;
State v. Drummond
, 111 Ohio St.3d 14, 2006
5
Evid.R. 702 provides:
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. To the extent that the testimony reports the
result of a procedure, test, or experiment, the testimony is reliable only if all
of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is
objectively verifiable or is validly derived from widely accepted knowledge,
facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements
the theory;
(3) The particular procedure, test, or experiment was conducted in a way
that will yield an accurate result.
No. 07AP308
7
Ohio5084, at ¶113, motion to reopen denied (2007), 113 Ohio St.3d 1463, 2007Ohio
1722;
State v. Conway
, 108 Ohio St.3d 214, 2006Ohio791, at ¶116, motion to reopen
denied, 110 Ohio St.3d 1461, 2006Ohio4288, certiorari denied, ___ U.S. ___, 127 S.Ct.
122;
State v. Foust
, 105 Ohio St.3d 137, 2004Ohio7006, at ¶77, reconsideration denied
(2005), 105 Ohio St.3d 1454, 2005Ohio763, motion to reopen denied (2005), 106 Ohio
St.3d 1478, 2005Ohio3978;
State v. Williams
, 99 Ohio St.3d 439, 2003Ohio4164, at
¶69;
State v. Thomas
, 97 Ohio St.3d 309, 2002Ohio6624, at ¶46, reconsideration
denied, 97 Ohio St.3d 1498, 2002Ohio7248, certiorari denied (2003), 539 U.S. 916, 123
S.Ct. 2295. Cf.
State Auto Mut. Ins. Co. v. Chrysler Corp.
(1973), 36 Ohio St.2d 151,
160, quoting 21 Ohio Jurisprudence 2d 429, Evidence, Section 421 (stating that "[t]he test
for determining the competency of an expert witness is * * * as follows: '* * * his
qualification depends upon his possession of special knowledge which he can impart to
the jury, and which will assist them in regard to a pertinent matter, which he must have
acquired either by study of recognized authorities on the subject or by practical
experience, and it must appear that he has an opinion of his own, or is able to form one,
upon the matter in question' ").
{¶13}
During the voir dire examination, Mr. Chupp testified that he is the manager
of the cardiovascular services department at Wooster (Ohio) Community Hospital. (Tr.,
March 5, 2007, at 4243.) Mr. Chupp testified that he holds a certificate in nursing and he
is a registered nurse. Id. at 43. Mr. Chupp further testified that in 1990 he became a
"vascular lab coordinator" at Wooster Community Hospital, where he trained on the job
and later became a registered vascular technologist. Id. at 4344. When asked what his
duties as a registered vascular technician entailed, Mr. Chupp testified: "[N]oninvasive
No. 07AP308
8
vascular testing utilizing ultrasound, diagnosing blockage in cardiac environments as well
as blockage in neck and blockage in the veins of extremities, in other words, the arms
and the legs." Id. at 4445. Mr. Chupp testified that he practiced as a registered vascular
technologist from 1990 to 1996. Id. at 45.
{¶14}
According to Mr. Chupp, in 1996, he became the coordinator of the vascular
lab as well as a newly opened "echo and cardiac sonographer lab." Id. Mr. Chupp
testified: "I was more of a supervisor in that, but I continued my work in the vascular lab
on more of a parttime basis, but also I functioned as a registered nurse, again in the
echocardiology lab, where I did stress testing, and I primarily did the stress testing in the
echo lab as well as my nursing portion of duties." Id. When asked what he meant when
he testified that he did stress testing in the echo lab, Mr. Chupp testified:
This stress testing procedure was done for patients who came
to the hospital primarily with symptoms of chest pains or for
arrhythmia and the doctor wanted to evaluate them, and what
we would do is we would first image them by echo and then
we would place them a on treadmill where we would hook
them up to an EKG where we could monitor them, the
protocol where we could stop the treadmill due to fatigue
using the regular stop button, and then we would remove
them from the treadmill, if need be, to cardiacally [sic]
examine them again by echocard [sic] to determine if there is
any change in their heart functions.
Id. at 46.
{¶15}
Mr. Chupp testified that, during the period from approximately 1996 to
approximately 2003, he used a Case 16 machine when he administered an echocardiac
stress test. Id. at 4748. According to Mr. Chupp, in 2003, he was promoted to his
current position where he "oversee[s] the activity of the cardiac vascular services,
No. 07AP308
9
including all aspects of vascular, echo, stress testing, and all aspects of all the diagnostic
cardiology testing, EKGs." Id. at 48.
{¶16}
During the voir dire examination, upon questioning by plaintiff's counsel, Mr.
Chupp described the difference between a "cardiolite stress test" and an "echo stress
test." Id. at 4950. When asked whether there was a difference in the use of a treadmill
in both tests, Mr. Chupp testified:
The only difference is in the use of the treadmill, and in both
cases would be in the stress testing where we start and
where we stop the treadmill suddenly, and then the patient is
taken back to the examination bed.
In the cardiolite testing is one where the patient reaches their
heart rate, the treadmill is then slowed down and the patient is
brought to a walk and there is a bit more recovery time, but
the protocol is about the same protocol, primarily we use the
same protocol as to the same speed of the treadmill, the
same incline.
Id. at 5051.
{¶17}
When asked whether he had been involved in cardiolite stress testing, Mr.
Chupp answered affirmatively. Id. at 51. And, when asked in what manner he had been
involved in cardiolite stress testing, Mr. Chupp testified:
Primarily as a supervisor, coming in and out of the nuclear
stress room and checking to see how the scheduling is going
and monitoring if there are any problems that should occur in
that stress room, such as problems with the computer,
occasionally the computer will malfunction and I would go in
and help them to either reset the computer or correct
whatever that program is.
Occasionally a patient will have issues on the treadmill and
the technologist will ask me for an opinion, and then I'll go in
and from time to time as needed, I may administer some
pharmaceutical agent that is given during the stress test.
Id. at 5152.
No. 07AP308
10
{¶18}
During the voir dire examination, upon questioning by defendant's counsel,
Mr. Chupp testified:
Q. [By Ms. Maryellen C. Spirito] And would you agree that the
test in this case was a treadmill cardiolite nuclear stress test?
A. That is correct.
Q. All right. You are not a stress therapist, are you?
A. That is correct, I am not.
Id. at 53.
{¶19}
When asked whether he had ever been involved in administering a
cardiolite stress test, Mr. Chupp testified: "I have been involved but not personally myself
performing a stress test solely, but I have been involved." Id. at 54. Clarifying his
previous deposition testimony, Mr. Chupp also testified:
The distinction is been involved or performed; and what I'm
saying today, and I may not have understood at the time of
the deposition, is that the statement involved, because by
being involved I could be a second person in the room
assisting with the stress test. So if you're saying have I
performed independently, no, the answer is no, but if you're
asking have I been involved in the performance of the stress
test, then the answer is yes, and at my deposition perhaps I
was not clear or that the question was misleading to me and I
did not understand it.
Id. at 55.
{¶20}
Defendant's counsel further inquired of Mr. Chupp:
Q. [By Ms. Spirito]: Have you ever been involved in a stress,
cardiolite stress test where you have been the one working
the computer?
A. No, I have not.
Q. Yet you're being critical of someone working the computer
in a cardiolite stress test; is that correct?
No. 07AP308
11
A. That's correct. That's because of my involvement in the
echo stress test, which is pretty much identical to the
cardiolite stress test.
Q. It is not the same, is it?
A. There are minor differences, yes, you're correct.
Q. It is not identical, is it?
A. No.
Id. at 56.
{¶21}
Defendant's counsel also inquired:
Q. Now, when you were in this [patient's] record, you could
not interpret this record on your own, could you?
A. I had a few questions about it that I needed clarification on,
yes.
* * *
Q. You had to speak to two people, two stress therapist
people who do this work to figure out what this report said; is
that true?
A. Not all together true, no. I formed my opinion and then
asked for clarification from two stress therapists, where I said,
am I thinking clearly here? And that's the question I had.
Q. Isn't it a fact when you first saw this report, you were
confused?
A. I was, I would say yes, I was, but it was not because of the
report itself, but it was because of the lines drawn through a
lot of the numbers and the changes that were made as to
what the computer said, and that's what I had questions
about.
Q. Well, isn't it a fact you were confused because you did not
know what duration of stage meant; is that correct?
No. 07AP308
12
A. I had questions about time in phase, that is correct.
Q. So you did not know what that meant without asking
somebody?
A. I needed clarification for that. I thought I knew what it
meant, but I did my homework and I asked a couple people to
make sure that I was thinking correctly.
Q. You did not know what duration of stage mean and you
had to ask someone?
A. I clarified that with someone, yes.
Q. The fact of the matter is, you clarified it with somebody
who was a stress test therapist; is that correct?
A. That is correct.
Q. Now, in your deposition, you indicated that you did not
know the difference in the duration of stage. Do you
remember saying that in your deposition?
A. Yes.
Q. So, you did not know that on your own from your own
knowledge and education and experience, you had to ask
somebody what the difference was; is that correct?
A. Yes.
Q. So you come into this courtroom and you start to testify
about time in phases and what they mean and duration of
stage, what that means, and that is information you only
understood after you spoke to somebody else who is not
coming into this courtroom; is that correct?
A. Yes.
Id. at 5760.
{¶22}
Defendant's counsel also inquired of Mr. Chupp, as follows:
Q. Also, one of the other things that confused you and you
also told me during your deposition, and that's down here
where it says, "manual";is that correct?
No. 07AP308
13
A. Yes.
Q. Okay. And you do not know how this test started in the
Case 16 protocol and yet this procedure is indicated in the
manual and you did not understand that; is that correct?
A. The experience I had on Case 16, I never had the
opportunity to start out with the Bruce protocol and switch to
the manual, that is correct.
Q. So you did not understand when you read this report why it
said manual here, all that is stated in the Bruce protocol; is
that correct?
A. That is correct.
Q. So you had to ask somebody who is a stress therapist
because you could not explain how that could be; is that
correct?
A. Yes.
Q. So you want to come in and tell the jury how this manual
here, and even though it's in the Bruce protocol, you're only
able to tell this jury because this stress expert told you; is that
correct?
A. That is correct.
Q. You're not basing any of this from your own personal
knowledge, education and training, you had to ask somebody
about what that means; is that correct.
A. You are correct. But in summary, the test is .
Q. I'm not asking you that. What I'm asking you is well, the
reason I'm asking you these questions is to determine what
you know from your own knowledge and education and
experience, and you told us you're not a cardiologist or a
vascular therapist, you do not know many of the things in this
report or how to read them without talking to a third person
who is neither coming into this courtroom to testify; is that
correct?
No. 07AP308
14
A. That is correct. But for clarification, you know, it was
simply for clarification. I felt that I was doing my homework to
make sure I was knowledgeable.
Id. at 6061.
{¶23}
Mr. Chupp further testified as follows:
Q. [By Ms. Maryellen C. Spirito] * * * So in order to express
your opinions that you will be expressing to this jury, you will
be indicating that you had to talk to Mr. Starcky; is that
correct?
A. Yes.
Q. And Mr. Starcky is somebody who is a stress therapist; is
that correct?
A. Yes.
Q. And he is not coming in here to testify; is that correct?
A. That is correct.
* * *
Q. As a matter of fact, in addition to Mr. Starcky, you went to a
second stress therapist to find out or to make sure of what this
report meant; is that correct?
A. For further clarification to make sure all three of us agreed,
yes.
Q. And, of course, this, all of this report with respect to this
exercise test; is that correct?
A. Yes.
Q. And you had to ask a second stress expert because you
are not a stress expert, would you agree?
A. I did not have to ask, but I chose to.
* * *
No. 07AP308
15
Q. I'm sorry to be argumentative, but I just asked you, you
could not come to your own opinion, you had to ask Mr.
Starcky; is that correct?
A. Yes.
Q. You're not changing that testimony, are you?
A. It is how you're wording the question. Really, I did not put
that much thought into it, and, you know, all I can tell you is
that I formed my opinions before I talked to these other
gentlemen, I simply went to them wanting to know if I was
thinking with clarity and thinking correctly and to explain to me
how this particular study was good from the Bruce manual, I
did not understand that, that's very correct, and how the
stages worked on the stress test, yes, and, you know, why
basically they said what they did, and well, I felt that I had an
understanding of it but I wanted to clarify that with these
gentlemen, who did stress testing every day, and I am not in
the room every day, but I wanted to understand more, have
clarification as to what happened here.
* * *
Q. Then you also spoke to a third person about this case; is
that correct?
A. Yes. I spoke to Dr. Nicolozakes.
Q. And one of the things you needed to talk to this third expert
about, the cardiologist, Dr. Nicolozakes, was because you did
not have your own knowledge or experience about this, is that
correct, and, in fact, you had to ask Dr. Nicolozakes why a
cardiologist would prefer a treadmill cardiolite stress test as
opposed to an echo stress test, that is information that you
had to get from somebody else; is that correct?
A. I asked him the difference between the two, the difference
from a cardiologist perspective, was one more accurate or
better, and he indicated to me it was more a functiontype
thing, and I questioned him about that.
Id. at 6265.
No. 07AP308
16
{¶24}
After the parties examined Mr. Chupp on the voir dire, the court inquired of
plaintiff's counsel, as follows:
THE COURT: Now, what information, what opinions are you
attempting to elicit from this witness relative to your case,
what do you wish to elicit from this witness?
MS. MANDT: The opinion I'm asking Joel to express is one,
whether the cardiology technician exercised correct care in
the proper manner to do the assessment of the patient in this
case, Mrs. Lautenschlager's cardio stress test, and if the
technician used proper care prior to putting her on the
treadmill, whether proper care goes to the next stage and
whether it was appropriate to allow her to fall off the treadmill,
that the person to allow her to fall off the treadmill. That is
the opinion I'm asking him to express.
(Tr., March 6, 2007, at 2.)
{¶25}
Granting defendant's motion to preclude Mr. Chupp from offering expert
testimony, the trial court stated: "The Court had an opportunity to listen to the voir dire of
this witness, to listen to the totality of this witness's testimony. Based on the information
from voir dire, the Court does not find this witness's knowledge and education and
experience rises to the level to testify relative to the things that are being sought relative
to this, his decision as an expert witness, so the Court sustains the motion to exclude this
witness's testimony." Id. at 34.
{¶26}
"It has been held that an expert witness is not required to be the best
witness on any particular subject. * * * [I]t is also true that a witness may be qualified to
testify as an expert on one subject but may not be qualified to testify as an expert on
another related subject."
Campbell v. The Daimler Group, Inc.
(1996), 115 Ohio App.3d
783, 793, appeal not allowed (1997), 78 Ohio St.3d 1456. (Citation omitted.) See, also,
No. 07AP308
17
Nationwide Mut. Ins. Co. v. ICON Health & Fitness, Inc.
, Franklin App. No. 04AP855,
2005Ohio2638, at ¶8.
{¶27}
Here, plaintiff's identified expert witness, Joel Chupp, RN, RVT, conceded
that he had never performed a cardiolite stress test. Mr. Chupp also admitted that he
relied on the expertise of two stress therapists and a cardiologist to confirm his opinions
related to plaintiff's cardiolite stress testing. Cf.
Beard v. Meridia Huron Hosp.
, 106 Ohio
St.3d 237, 2005Ohio4787, at syllabus (holding that "[e]xpert witnesses are permitted to
testify that their opinions are based, in part, on their review of professional literature").