Taylor v. Norfolk S. Ry. Co. , 2020 Ohio 2657 ( 2020 )

[Cite as Taylor v. Norfolk S. Ry. Co., 2020-Ohio-2657.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Paul Taylor Court of Appeals No. E-18-036
Appellant Trial Court No. 2016-CV-0196
v.
Norfolk Southern Railway Company DECISION AND JUDGMENT
Appellee Decided: April 24, 2020
*****
Charles M. Murray, Florence J. Murray and Joseph A. Galea,
for appellant.
David A. Damico, Edwin B. Palmer and Ira L. Podheiser,
for appellee.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Erie County Court of Common
Pleas which entered a judgment on a jury verdict in favor of appellee. For the reasons set
forth below, this court affirms the judgment of the trial court.
{¶ 2} On March 10, 2016, as amended on March 30, 2017, plaintiff-appellant Paul
Taylor filed a complaint against his employer, defendant-appellee Norfolk Southern
Railway Company, setting forth claims of breach of duty to provide a safe working
environment and negligence under the Federal Employer’s Liability Act, 45 U.S.C. 51-60
(“FELA”), for exposing him and others to harmful levels of “occupational noise.”
Appellant alleged that as a machinist for appellee at a local railyard since 2005, he was
required to work in close proximity to locomotives and other railroad equipment that
emitted excessive noise during railyard operations that, even with protective devices,
resulted in his tinnitus. Appellee generally denied the allegations and asserted a number
of affirmative defenses.
{¶ 3} Discovery by the parties ensued, and each retained expert witnesses. In
response to a flurry of disputed motions in limine, the trial court ruled on 12 in limine
motions on March 27, 2018, held a Daubert hearing for unresolved in limine matters on
April 6, 2018, and received post-hearing briefing by the parties. The trial court then ruled
on the remaining in limine matters on April 19, 2018. After additional pre-trial disputes
were resolved by the trial court, a seven-day jury trial began on May 15, 2018. On
May 24, 2018, the jury returned a verdict in favor of appellee, which was journalized on
June 8, 2018. Appellant then timely filed this appeal setting forth seven assignments of
error:
I. The trial court erred by excluding the testimony of Plaintiff’s
treating physician pursuant to Daubert standards.
2.
II. The trial court erred by failing to grant Plaintiff’s motion for a
continuance to obtain a new medical expert witness.
III. The trial court erred by permitting the Defendant to make
comments regarding the economic activity created by Defendant’s
operations at the Moorman Yard.
IV. The trial court erred by denying Plaintiff’s motion for a jury
view.
V. The trial court erred by limiting Plaintiff’s cross-examination of
a defense witness on the basis that the cross-examination concerned matters
protected by the work product doctrine.
VI. The trial court erred by permitting Defendant to make a closing
argument suggesting that railroad workers assume certain level of risk
inherent in their employment.
VII. The trial court’s cumulative error was sufficiently prejudicial to
Plaintiff as to deprive the Plaintiff of a fair trial.
A. Evidence Admissibility
{¶ 4} We will address all assignments of error together as they collectively
challenge the trial court’s decisions on the admissibility of evidence at trial. We review a
trial court’s decision on admissibility of evidence, including decisions granting or
denying motions in limine, for an abuse of discretion. Estate of Johnson v. Randall
Smith, Inc., 135 Ohio St. 3d 440, 2013-Ohio-1507, 989 N.E.2d 35, ¶ 22. Abuse of
3.
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, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St. 2d 151, 157,
404 N.E.2d 144 (1980).
1. Excluding Expert Testimony
{¶ 5} In support of his first assignment of error, appellant argued the trial court
erred when it excluded his treating otolaryngologist, Erik W. Nielsen, M.D., from
testifying as to his expert opinions on the medical causation of appellant’s tinnitus.
Appellant argued although the trial court correctly recognized Dr. Nielsen as an expert, it
erred when it determined Dr. Nielsen was not qualified to provide an opinion on the
medical causation of tinnitus pursuant to Evid.R. 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Appellant urged us to follow our decision “on the reliability of the doctors’ causation
opinions” when the practitioner relied on his patient for the workplace exposure and
medical history in Cutlip v. Norfolk Southern Corp., 6th Dist. Lucas No. L-02-1051,
2003-Ohio-1862, ¶ 47.
{¶ 6} In response, appellee argued the trial court did not err because Dr. Nielsen’s
differential diagnosis of appellant’s tinnitus was based on unreliable speculation.
i. FELA Negligence
{¶ 7} FELA provides, “Every common carrier by railroad while engaging in
commerce * * *, shall be liable in damages to any person suffering injury while he is
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employed by such carrier in such commerce, * * * for such injury * * * resulting in
whole or in part from the negligence of any of the officers, agents, or employees of such
carrier * * *.” 45 U.S.C. 51.
{¶ 8} A FELA plaintiff has the burden to prove four elements.
[The] plaintiff must present more than a scintilla of evidence to
prove that: (1) an injury occurred while the plaintiff was working within
the scope of his or her employment with the railroad, (2) the employment
was in the furtherance of the railroad’s interstate transportation business,
(3) the employer railroad was negligent, and (4) the employer’s negligence
played some part in causing the injury for which compensation is sought
under the Act.
Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258-59 (6th Cir.2001). In this case,
the parties stipulated to the first two FELA elements, leaving the jury to determine the
third and fourth elements of appellant’s FELA claim, known as FELA negligence and
FELA causation, respectively.
[FELA] imposes liability only for negligent injuries. But the issue
of negligence is one for juries to determine according to their finding of
whether an employer’s conduct measures up to what a reasonable and
prudent person would have done under the same circumstances. And a jury
should hold a master “liable for injuries attributable to conditions under his
control when they are not such as a reasonable man ought to maintain in the
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circumstances,” bearing in mind that “the standard of care must be
commensurate to the dangers of the business.”
Wilkerson v. McCarthy, 336 U.S. 53, 61, 69 S. Ct. 413, 93 L. Ed. 497 (1949), quoting
Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S. Ct. 444, 87 L. Ed. 610 (1943).
{¶ 9} While state and federal courts have concurrent jurisdiction over FELA
claims, federal law governs FELA claims. Norfolk Southern Ry. Co. v. Sorrell, 549 U.S.
158, 165, 127 S. Ct. 799, 166 L. Ed. 2d 638 (2007), citing 45 U.S.C. 56. When FELA
cases are adjudicated in a state court, state procedural rules will apply, “but the
substantive law governing them is federal.’” Vance v. Consol. Rail Corp., 73 Ohio St. 3d
222, 227, 652 N.E.2d 776 (1995), quoting St. Louis Southwestern Ry. Co. v. Dickerson,
470 U.S. 409, 411, 105 S. Ct. 1347, 84 L. Ed. 2d 303 (1985).
That FELA is to be liberally construed, however, does not mean that
it is a workers’ compensation statute. We have insisted that FELA “does
not make the employer the insurer of the safety of his employees while they
are on duty. The basis of his liability is his negligence, not the fact that
injuries occur.” And while “[w]hat constitutes negligence for the statute’s
purposes is a federal question,” we have made clear that this federal
question generally turns on principles of common law: “[T]he Federal
Employers’ Liability Act is founded on common-law concepts of
negligence and injury, subject to such qualifications as Congress has
imported into those terms.” * * * Thus, although common-law principles
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are not necessarily dispositive of questions arising under FELA, unless they
are expressly rejected in the text of the statute, they are entitled to great
weight in our analysis. (Citations omitted.)
Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543-44, 114 S. Ct. 2396, 129 L. Ed. 2d 427
(1994).
{¶ 10} Appellant heavily relies on our decision in Cutlip to support this
assignment of error. However, unlike this case, the jury in Cutlip found the railroad was
negligent under FELA, and then proceeded to determine FELA causation. The May 24,
2018 jury verdict in this case unanimously answered “No” in response to interrogatory
No. 1, which asked, “Do you find that Norfolk Southern Railway Company was negligent
in failing to provide Paul Taylor with a reasonably safe place to work?” As instructed by
the trial court, “If six or more of you answer no, your deliberations are complete. Answer
no more Interrogatories and sign the General Verdict Form for the defendant,” which the
jury did. The jury did not reach interrogatory No. 2 on FELA causation, nor the
remaining interrogatories Nos. 3 through 7. The verdict form unanimously signed by the
jury found in favor of appellee and against appellant.
{¶ 11} “To prevail on a FELA claim, a plaintiff must ‘prove the traditional
common law elements of negligence: duty, breach, foreseeability, and causation.’”
Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir.1990), quoting Robert v. Consol.
Rail Corp., 832 F.2d 3, 6 (1st Cir.1987).
7.
{¶ 12} For the duty prong of FELA negligence, we find the record shows appellee
had a duty, irrespective of Dr. Nielsen’s testimony, to provide appellant with a reasonably
safe work environment. “There is no doubt that an employer has a responsibility under
the FELA to provide a safe place to work.” Vance at 231, citing Atchison, Topeka &
Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 558, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987).
“FELA is a negligence-based statute. A railroad’s duty under FELA is to provide for its
employees a ‘reasonably safe place to work.’ ‘Reasonableness’ is measured by what a
reasonably prudent person (or in this case, railroad) would have or could have anticipated
under similar circumstances.” (Citations omitted.) Cutlip, 6th Dist. Lucas No. L-02-1051,
2003-Ohio-1862, at ¶ 68.
{¶ 13} For the next prongs of FELA negligence, whether appellee breached its
duty to appellant and whether injury was foreseeable, we find those were jury questions
to determine whether appellee provided appellant a reasonably safe place to work.
The jury, therefore, must be asked, initially: Did the carrier “fai[l] to
observe that degree of care which people of ordinary prudence and sagacity
would use under the same or similar circumstances[?]” In that regard, the
jury may be told that “[the railroad’s] duties are measured by what is
reasonably foreseeable under like circumstances.” Thus, “[i]f a person has
no reasonable ground to anticipate that a particular condition * * * would or
might result in a mishap and injury, then the party is not required to do
anything to correct [the] condition.” If negligence is proved, however, and
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is shown to have “played any part, even the slightest, in producing the
injury,” then the carrier is answerable in damages even if “the extent of the
[injury] or the manner in which it occurred” was not “probable” or
“foreseeable.” (Citations omitted.)
CSX Transp., Inc. v. McBride, 564 U.S. 685, 703-04, 131 S. Ct. 2630, 180 L. Ed. 2d 637
(2011).
{¶ 14} The record shows the trial court clearly instructed the jury, “Before you
impose liability on Defendant, you must still find that Defendant Norfolk Southern failed
to exercise reasonable care under the circumstances.” Because foreseeability is a fact
issue under FELA, “‘the right of the jury to pass on this issue must be liberally
construed.’” (Citations omitted.) Platt v. CSX Transp., Inc., 135 Ohio App. 3d 280, 285,
733 N.E.2d 672 (6th Dist.1999).
{¶ 15} For reasons that will be discussed more thoroughly in the next section, the
trial court redacted specific portions of Dr. Nielsen’s videotaped testimony, and the
redacted testimony was heard by the jury. We reviewed the record of Dr. Nielsen’s
original testimony and find he did not offer any testimony to support appellant’s FELA
claim that appellee was negligent in failing to provide appellant with a reasonably safe
place to work or to provide reasonable hearing protection. Dr. Nielsen repeatedly
testified his role as appellant’s treating physician was not to evaluate any of those matters
because it had “no bearing” on how he takes care of, or treats, his patients. In addition,
Dr. Nielsen’s redacted testimony to the jury did not offer any testimony to support
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appellant’s claim of FELA negligence. Dr. Nielsen simply did not know about
appellant’s noise exposure at work, nor about appellant’s practices using hearing
protection devices nor whether the hearing protection appellee provided appellant was
“appropriate.” Dr. Nielsen testified that he had “no clue” about appellant’s work for the
railroad.
{¶ 16} Instead, the record shows the jury heard testimony at trial on FELA
negligence from appellant, three of appellant’s co-workers, and Thomas Thunder, a
doctor of audiology and an industrial hygiene expert specializing in audiometrics. In
sum, appellant’s witnesses collectively testified that appellant’s work environment was
not reasonably safe because appellee was aware of appellant’s tinnitus; employees raised
concerns about inadequate hearing protection with management during safety committee
meetings; appellee refused to build a wall between the noise source, retarders, and the
portion of the railyard where appellant worked; and hearing protection provided by
appellee was inadequate.
{¶ 17} It is well-settled a jury, as the fact finder in either a criminal or civil case,
primarily determines the weight to be given the evidence and the credibility of the
witnesses. State v. DeHass, 10 Ohio St. 2d 230, 231, 227 N.E.2d 212 (1967). Since it is
clear from the record the jury received appellant’s evidence to support his FELA
negligence claim, and Dr. Nielsen’s redacted testimony did not deny appellant the jury’s
role to “pass” on FELA negligence, we will not disturb the jury’s verdict appellee was
not negligent.
10.
ii. FELA Causation
{¶ 18} Despite our decision on the foregoing, we will next review appellant’s first
assignment of error on FELA causation in order to evaluate his overall FELA claim.
{¶ 19} We are mindful the causation element of common-law negligence is not the
same in a FELA claim because common-law causation is expressly rejected in the text of
the FELA statute. “The charge proper in FELA cases, we hold, simply tracks the
language Congress employed, informing juries that a defendant railroad caused or
contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in
bringing about the injury.” McBride, 564 U.S. at 688, 131 S. Ct. 2630, 180 L. Ed. 2d 637.
The U.S. Supreme Court has interpreted the causation element of FELA claims as “‘the
test for proximate causation applicable in FELA suits.’” (Citation omitted.) Id. at 700.
{¶ 20} The quantum of evidence under FELA “sufficient to present a jury question
of causation is less than it is in a common law tort action. * * * This does not mean,
however, that FELA plaintiffs need make no showing of causation. Nor does it mean that
in FELA cases courts must allow expert testimony that in other contexts would be
inadmissible.” Claar v. Burlington Northern R. Co., 29 F.3d 499, 503 (9th Cir.1994).
a. Expert Testimony
{¶ 21} Medical testimony evidence in a FELA case must have some reasonable
basis and have some degree of certainty. Mayhew v. Bell S.S. Co., 917 F.2d 961, 963 (6th
Cir.1990). Speculative medical testimony is inadmissible unless the medical expert can
articulate “that it is likely that the defendant’s negligence, or more than possible that the
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defendant’s negligence, had a causal relationship with the injury.” Id. at 964. The expert
does not need to testify to a reasonable degree of medical certainty in order to be
admissible. Id. The jury’s function to find causation under FELA is to determine all the
factual issues in order to reasonably draw the particular inference or conclusion submitted
to it, that there was more than a possibility a causal relation existed between the
employer’s negligence and the employee’s injury. Id. at 963. “Congress vested the
power of decision in these actions exclusively in the jury in all but the infrequent cases
where fair-minded jurors cannot honestly differ whether fault of the employer played any
part in the employee’s injury.” Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 510, 77
S. Ct. 443, 1 L. Ed. 2d 493 (1957).
{¶ 22} Tinnitus is a “subjective ringing, buzzing, tinkling, or hissing sound in the
ear. For some patients, this causes only minor irritation; for others, it is disabling.” Tarr
v. Commr. of Social Sec., N.D.Ohio No. 3:12 CV 1090, 2013 WL 1363582, *1, fn. 1
(Apr. 2, 2013), citing Taber’s Medical Cyclopedic Dictionary (2011).
{¶ 23} The parties do not dispute that Dr. Nielsen is an expert, as appellant’s
treating otolaryngologist. However, not all expert testimony is automatically admissible
at trial. “Expert testimony in Ohio is admissible if it will assist the trier of fact in search
of the truth. However, when such knowledge is within the ken of the jury, expert
testimony is inadmissible.” State v. Koss, 49 Ohio St. 3d 213, 216, 551 N.E.2d 970
(1990). “It is a settled rule that, ‘Unless a matter is within the comprehension of a
layperson, expert testimony is necessary.’” Migliori v. Merritt, 6th Dist. Lucas No.
12.
L-11-1136, 2012-Ohio-3614, ¶ 13, quoting Ramage v. Cent. Ohio Emergency Servs.,
Inc., 64 Ohio St. 3d 97, 102, 592 N.E.2d 828 (1992).
{¶ 24} “[N]othing in [FELA] alters the accepted fact that unless the connection
between the negligence and the injury is a kind that would be obvious to laymen, expert
testimony is required.” Myers v. Illinois Cent. R. Co., 629 F.3d 639, 643 (7th Cir.2010),
citing Brooks v. Union Pacific R. Co., 620 F.3d 896, 899 (8th Cir.2010); Claar at 504
(“expert testimony is necessary to establish even that small quantum of causation
required by FELA” where drawing a particular conclusion requires specialized
knowledge).
{¶ 25} We review a trial court’s decision related to the use of expert-opinion
testimony for an abuse of discretion. Brummitt v. Seeholzer, 6th Dist. Erie No. E-16-020,
2019-Ohio-1555, ¶ 23.
{¶ 26} Evid.R. 702 requires appellant to prove a three-part test for Dr. Nielsen’s
expert testimony:
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;
13.
(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.
{¶ 27} In addition, appellant must meet the tests of relevance and reliability of Dr.
Nielsen’s expert testimony under Daubert: “the trial court must act as a ‘gatekeeper’ to
ensure both the relevance and the reliability of expert testimony before it is admitted at
trial.” Cutlip, 6th Dist. Lucas No. L-02-1051, 2003-Ohio-1862, at ¶ 42, citing Daubert,
509 U.S. at 593-94, 113 S. Ct. 2786, 125 L. Ed. 2d 469. In doing so, a trial court may
conduct a flexible analysis of the reliability of the expert’s opinion and consider all
relevant factors, including these four: “(1) whether the testimony is based on a theory or
method that has or can be tested; (2) whether the testimony is based on a theory or
method that has been subject to peer review; (3) the error rate of the particular theory or
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method; and (4) whether the theory or method has gained general acceptance in the
field.” Id.
b. Motion in Limine
{¶ 28} “A motion in limine is a precautionary request directed to the discretion of
the court to limit introduction of specified evidence until its admissibility may be
determined outside the presence of the jury.” O’Loughlin v. Ottawa St. Condominium
Assn., 6th Dist. Lucas No. L-16-1128, 2018-Ohio-327, ¶ 46. Appellant must show the
exclusion of Dr. Nielsen’s testimony affected appellant’s substantial rights. Id. at ¶ 47,
citing Evid.R. 103(A); Civ.R. 61 (harmless error unless the exclusion of evidence
affected the substantial rights of the parties).
{¶ 29} Dr. Nielsen was deposed on June 2, 2017, and the deposition transcript is in
the record. On September 15, 2017, appellee filed a motion in limine to exclude Dr.
Nielsen’s expert testimony on medical causation alleging his methodology failed to
satisfy the admissibility standards under Evid.R. 702 and Daubert. Appellee alleged Dr.
Nielsen consulted no scientific data or studies, as required by Evid.R. 702 and Daubert,
before forming his opinion appellant’s tinnitus was medically caused, in part, by the
noise environment at appellant’s work. Dr. Nielsen neither knew what appellant did at
his job nor to what noise appellant’s job exposed him. Dr. Nielsen assumed the medical
causes were a combination of appellant’s self-reporting of his noise exposure at work and
from shooting rifles and guns for recreation. Dr. Nielsen did not prepare a report of his
expert opinion.
15.
{¶ 30} Appellant opposed the motion on October 27, 2017. Then Dr. Nielsen was
deposed, again, on March 22, 2018, on videotape, and his opinion on medical causation
remained unchanged, nor did he prepare an expert report. The transcript of his
videotaped deposition is also in the record.
{¶ 31} On March 27, 2018, the trial court denied the September 15, 2017 motion
in limine to the extent it sought to exclude all of Dr. Nielsen’s testimony, and then set the
matter, along with another disputed expert opinion, Thomas Thunder, Au.D., for an
evidentiary Daubert hearing on April 6, 2018. The trial court concluded in its judgment
entry:
So this issue boils down to whether Dr. Nielsen did a proper or
thorough differential diagnosis to reach his opinion as to causation in this
case. Based on the record, * * *, this Court finds that it is prudent to set
this for Evidentiary Hearing so this Court can have the benefit of a
complete record and not be limited to Dr. Nielsen’s discovery deposition to
make this important decision.
{¶ 32} The transcript of the April 6, 2018 hearing is in the record. Dr. Nielsen did
not attend the April 6, 2018 Daubert evidentiary hearing, and the reason for his absence
is not in the record. In the end, the trial court only had Dr. Nielsen’s March 22, 2018
videotaped deposition with which to make the important determination of Dr. Nielsen’s
expert differential diagnosis on medical causation. No report or other data relied upon by
Dr. Nielsen is part of the record of his videotaped deposition.
16.
{¶ 33} On April 19, 2018, the trial court granted the motion to exclude Dr.
Nielsen’s testimony only as to medical causation because:
(4) From Dr. Nielsen’s testimony, with the exception of him
performing auditory brainstem response (ABR), it is very apparent that his
causation opinion is predicated, and totally reliant upon, what Plaintiff told
him. Dr. Nielsen did not know anything about the occupational exposure of
Plaintiff to noise. Dr. Nielsen had no understanding of the nature of
Plaintiff’s job duties; no conversation with Plaintiff about specific noise
exposures on the job and never looked at any quantifiable data. Dr. Nielsen
could not explain the pattern of asymmetrical hearing loss to work
exposure. Dr. Nielsen testified at one point that he “had no clue” what
Plaintiff did at work. Dr. Nielsen made no inquiry into or assessment of
what hearing protection Plaintiff used on the job.
{¶ 34} Then on April 25, 2018, appellee objected to, and sought redaction of
specific portions of Dr. Nielsen’s March 22, 2018 video deposition in light of the trial
court’s ruling. Appellant opposed the motion, and on May 9, 2018, the trial court ruled
on all of the pending objections and ordered very specific redactions of Dr. Nielsen’s
video deposition with respect to medical causation. On the fourth day of trial, Dr.
Nielsen’s redacted video deposition was played for the jury.
17.
{¶ 35} For the reasons stated herein, we find the trial court did not abuse its
discretion when it determined Dr. Nielsen’s expert testimony on his differential diagnoses
was not reliable under Evid.R. 702 and Daubert.
c. Differential Diagnosis
{¶ 36} This court recognizes evidence of differential diagnosis, also known as
differential etiology or the study of causation, for the reliability prong under Daubert.
Cutlip, 6th Dist. Lucas No. L-02-1051, 2003-Ohio-1862, at ¶ 45-46, citing Hardyman,
243 F.3d at 260-61.
Differential diagnosis is defined for physicians as “the determination
of which of two or more diseases with similar symptoms is the one from
which the patient is suffering, by a systematic comparison and contrasting
of the clinical findings.” The elements of a differential diagnosis may
consist of the performance of physical examinations, the taking of medical
histories, and the review of clinical tests, including laboratory tests. A
doctor does not have to employ all of these techniques in order for the
doctor’s diagnosis to be reliable. (Citations omitted.)
Id. at ¶ 45; Hardyman at 260.
{¶ 37} “Because differential diagnosis is essentially a learned process of
elimination, it naturally requires the physician to consider all possible causes and to
discard those that are least likely. * * * [T]he physician ought to be able to offer a
reasonable explanation as to why the physician’s conclusion remains reliable.” Cutlip at
18.
¶ 47. The use of differential diagnosis to determine FELA causation “is appropriate only
when considering potential causes that are scientifically known.” Valentine v. Conrad,
110 Ohio St. 3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 22, citing Westberry v. Gislaved
Gummi AB, 178 F.3d 257, 262 (4th Cir.1999).
{¶ 38} While conducting a Daubert analysis of the reliability of the expert’s
opinion, the focus of the flexible analysis is on the principles and methodology employed
by the witness rather than the conclusions drawn. Miller v. Bike Athletic Co., 80 Ohio
St.3d 607, 611-12, 687 N.E.2d 735 (1998), citing Daubert, 509 U.S. at 595, 113 S. Ct.
2786, 125 L. Ed. 2d 469.
But conclusions and methodology are not entirely distinct from one
another. Trained experts commonly extrapolate from existing data. But
nothing in either Daubert or the Federal Rules of Evidence requires a [trial]
court to admit opinion evidence that is connected to existing data only by
the ipse dixit of the expert. A court may conclude that there is simply too
great an analytical gap between the data and the opinion proffered.
General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
Merely labeling a methodology as a “differential diagnosis” does not automatically make
it reliable under Daubert:
but prompts three more [questions]: (1) Did the expert make an
accurate diagnosis of the nature of the disease? (2) Did the expert reliably
rule in the possible causes of it? (3) Did the expert reliably rule out the
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rejected causes? If the court answers “no” to any of these questions, the
court must exclude the ultimate conclusion reached.
Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 674 (6th Cir.2010).
{¶ 39} On the fourth day of trial Dr. Nielsen testified to the jury via videotape as
appellant’s treating otolaryngologist. “[E]ven without expert testimony on specific
causation, a jury still could reasonably infer causation based upon admissible testimony
alone.” Hardyman, 243 F.3d at 269. Specifically, the trial court stated in its March 27,
2018 judgment entry, “Dr. Nielsen can testify as to his observations, treatment, and his
opinion on permanency of the hearing loss. * * * It is beyond question that a treating
physician/clinician can render an opinion based on the theory (or application of) a
differential diagnosis or differential etiology.”
{¶ 40} “Such testimony, even without expert causation testimony, certainly would
be adequate to provide a jury with the ‘special expertise * * * necessary to draw a causal
inference.’” Id., citing Claar, 29 F.3d at 504. Dr. Nielsen testified that appellant had
tinnitus and, based on his knowledge and experience, determined the diagnostic cause
was noise exposure, which he assumed was from appellant’s self-reporting of shooting
guns and his work environment. “Finally, nothing would preclude Plaintiff from
testifying as to his work and non-work-related activities,” which appellant did. Id.
{¶ 41} We reviewed the record and find that Dr. Nielsen was able to testify to the
jury extensively as to his opinions of his diagnosis of appellant’s tinnitus and of its
causes, from which the jury could infer was his work environment. In addition, the jury
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heard appellant and other witnesses generally claim that appellee’s work environment
caused hearing injuries.
{¶ 42} Dr. Nielsen testified that in November 2015 his, “Diagnosis was that
[appellant] had noise effects on the inner ear in both ears and other specified hearing
losses on the left, which just means * * * that ear hears worse than the right, that was my
diagnosis at the time.” He then diagnosed tinnitus based on appellant’s own complaints.
Q: You don’t know when his tinnitus began, correct?
A: No.
Q: And while we’re talking about tinnitus, tinnitus is a subjective
condition, correct?
A: Yes, it is.
Q: There’s no test to definitely confirm that Mr. Taylor has it or
how bad it is, correct?
A: No, there’s not.
Q: We have to take his word on that, correct?
A: Yes.
***
Q: And you haven’t assigned any impairment or hearing impairment
percentage to him, correct?
A: I wouldn’t do that anyway.
21.
{¶ 43} Dr. Nielsen testified that, “hearing loss can happen because your ear bones
are damaged because * * * the eardrum or the inner ear, the nerve itself is damaged, or
there could be a growth or something on the nerve itself going into the brain.” As to
potential causes of tinnitus, he testified, “there’s different ways you can cause permanent
damage. Otherwise, permanent damage can be caused by continuous exposure or a very
loud exposure.”
{¶ 44} Dr. Nielsen testified that his goal was to “figure out the cause” of
appellant’s tinnitus in order to render the proper treatment. He testified being familiar
with “the workplace environment and how it may cause some of the injuries.” He
testified he was familiar with publications that “discuss how hearing loss is occurring in
the workplace.” He testified that “occupational noise” can cause “hearing damage.” He
testified to conducting a differential diagnosis on appellant to try “to figure out * * *
what’s causing the presenting symptoms.” He testified that in doing so, he was “coming
up with obvious possibilities of what could be causing the problem, and the workup, the
history, and everything you do is to limit it and become a more definitive diagnoses.” He
testified that as a physician he was “trying * * * to diagnose what is probable and try to
help the patient with what is probably causing their concern.”
{¶ 45} During Dr. Nielsen’s testimony, the following potential causes of
appellant’s tinnitus were discussed before the jury: work, gunfire, tumor, smoking, and
unusual/rare or “zebras” diagnosis. Dr. Nielsen dismissed without much discussion
smoking or a “zebras” diagnosis. To rule out a tumor on a nerve causing the more
22.
significant tinnitus in the left ear, Dr. Nielsen suggested appellant undergo an auditory
brainstem response (“ABR”) test, the result of which was normal. Dr. Nielsen testified
the ABR did not help him diagnose the cause of appellant’s condition, but “it just
eliminates a potential cause.”
{¶ 46} Dr. Nielsen assumed gunfire noise exposure was a cause, particularly in
light of appellant’s asymmetrical hearing loss. Dr. Nielsen testified that his office first
saw appellant in 2010, because “he had some testing done at work and then he was found
to have some asymmetry and so then he was a little concerned. He came here to get a
little more workup.” Although Dr. Nielsen did not see or treat appellant until 2015, in
2010 appellant met with Dr. Nielsen’s physician assistant, who tested appellant.
Q: So Paul underwent some testing on that day. Did he bring with
him test results that he had from * * * the railroad? Does your chart show
that?
A: I don’t recall that there was anything, if there was. * * * I think
he reported that he was told that there was hearing loss. * * * [The 2010
audiogram test results] tells me that the likelihood here is that he has had
some noise exposure[.] * * * And since he reported using firearms, the left
ear being worse is pretty classic, because when you shoot a rifle, the burst
of noise will hit the left ear first. The head gets in the way, and so the right
ear gets the shadow of the noise, which is much less.
***
23.
Q: And to the extent that when [appellant] was deposed he testified
that he did not wear hearing protection when discharging a rifle on multiple
occasions, you would agree that that would be important to your opinions
regarding the cause of Mr. Taylor’s hearing loss.
A: I already assumed that it was caused by his gun.
***
Q: And would you agree, sir, that gunfire alone can cause the type
and pattern of hearing loss that Mr. Taylor has.
A: Yes, it can.
{¶ 47} Dr. Nielsen also assumed noise exposure at appellant’s work was a cause of
the tinnitus, and appellant’s tinnitus will continue.
Q: And you would agree that one of the principle characteristics of
occupational noise-induced hearing loss * * * that [the American College
of Occupational and Environmental Medicine] identify is that occupational
noise-induced hearing loss is typically bilateral or it affects both ears the
same because noise exposures in the workplace are generally symmetrical,
correct?
A: Correct.
Q: And so you would agree, sir, that unless a worker is stationary
and in the same spot with, like in this case, his left ear toward a constant
24.
noise source, you would expect a person with occupational noise-induced
hearing loss to have a symmetrical hearing loss, correct?
A: Yes.
***
Q: And, sir, Mr. Taylor does not have a stationary job where he is
exposed to noise only on his left side, correct?
A: I don’t know that.
***
Q: So does the [2010] record suggest that anyone told him that the
noise at his job was causing the hearing damage?
A: Well, I don’t believe that was discussed * * * to any degree. He
said that he was an avid shooter and he has a lot of noise exposure. * * *
[I]t wasn’t designated whether it was work or not, but the assumption was
obviously it was probably at work, in addition to * * * being someone who
shoots guns and stuff.
***
Q: Okay. So let’s tease out the very specific question. In terms of
Paul Taylor, do you have an opinion to a reasonable degree of professional
certainty as to whether his tinnitus will go away? Do you have an opinion
to a reasonable degree of professional certainty, as a physician who’s
treated Paul Taylor and examined him a few times in your office, as to
25.
whether the tinnitus that he has experience will, with reasonable medical
certainty, continue?
A: I think it will continue.
{¶ 48} The record shows Dr. Nielsen’s differential diagnosis did not identify
potential work-related causes of appellant’s tinnitus that are scientifically known. Aside
from appellant’s self-reporting that work was a cause, Dr. Nielsen did not consult any
data or records to inform him of that causal relationship. See Swords v. Norfolk & W. Ry.
Co., 4th Dist. Scioto No. 95 CA 2342, 1996 WL 255859, *8 (May 8, 1996). When Dr.
Nielsen testified he assumed work and gunfire noise exposure caused appellant’s tinnitus,
those assumptions, standing alone, did not meet the reliability test under Evid.R. 702 and
Daubert. During Dr. Nielsen’s testimony, he admitted he did not review any of
appellant’s work history records, including medical records, clinical history, audiograms,
noise exposure, hearing protection devices or data, job duties, or photographs of
appellee’s railyard prior to rendering his medical causation opinion. Evid.R. 702(C);
Cutlip, 6th Dist. Lucas No. L-02-1051, 2003-Ohio-1862, at ¶ 42; Tamraz, 620 F.3d at
674.
{¶ 49} We are mindful this court previously found that where a treating physician
testifies he personally examined the FELA plaintiff, reviewed his medical records, took a
history, ordered tests, reviewed the results of those tests, and ruled out other possible
causes of the plaintiff’s asthma, those actions were deemed a reliable differential
diagnoses under Evid.R. 702 and Daubert. Cutlip at ¶ 48, citing Hardyman, 243 F.3d at
26.
260-261. However, in this case Dr. Nielsen testified he did not review appellant’s
medical records or review data related to such medical records.
{¶ 50} Separately, the Cutlip court found, similar to this case, the record contained
other evidence to support the treating physician’s differential diagnosis. Id. at ¶ 56.
Despite appellant’s argument that the trial court’s decision limiting Dr. Nielsen’s
testimony deprived the jury from hearing any evidence on the causation of appellant’s
tinnitus, we find that the jury still received evidence on FELA causation. The jury heard
other testimony at trial, particularly from appellant and appellant’s other expert, Dr.
Thunder, that the work environment caused appellant’s tinnitus. Dr. Thunder testified he
tested the railyard noise:
Q: And based upon your training, experience, and research in the
field, are you able to describe for the jury with professional certainty
whether the noise that you heard in the Bellevue Yard emanating from
these retarders can cause tinnitus with specific certainty?
A: Yes.
Q: What’s your opinion, Doctor?
A: My opinion of that kind of noise, based on its intensity, duration,
and the character of the noise, meaning the frequency, puts people at risk of
developing hearing damage.
***
27.
Q: So if Paul Taylor works in the B Yard for three and four hours at
the noise measurements that you found at Location A, is he at risk of
hearing loss and tinnitus?
A: Yes.
{¶ 51} We reviewed the entire record and find the jury in this case, like in Cutlip,
received sufficient evidence in which it could have determined appellee was negligent
under FELA in order to proceed to the issue of whether appellee’s negligence caused, in
whole or in part, appellant’s tinnitus. In re Estate of Flowers, 2017-Ohio-1310, 88
N.E.3d 599, ¶ 83 (6th Dist.). As previously noted, unlike in Cutlip, the jury in this case
determined appellee was not negligent. We will not disturb the jury’s verdict that did not
reach FELA causation because it was not manifestly against the weight of the evidence
after every reasonable intendment and every reasonable presumption was made in favor
of the judgment and the finding of facts. Id. at ¶ 94. We do not find Dr. Nielsen’s
redacted testimony to the jury deprived the jury of its duty to weigh the evidence and
determine appellant’s FELA claim. Put another way, we do not find Dr. Nielsen’s
original testimony would suddenly compel the jury to find appellee was negligent under
FELA. Smith v. Strong, 6th Dist. Lucas No. L-17-1058, 2017-Ohio-6918, ¶ 12. We do
not find the exclusion of portions of Dr. Nielsen’s testimony affected appellant’s
substantial rights. Evid.R. 103(A); Civ.R. 61.
{¶ 52} We do not find the trial court abused its discretion when it granted
appellee’s motion in limine, in part, to exclude portions of Dr. Nielsen’s videotaped
28.
expert testimony opinion of medical causation of appellant’s tinnitus. The jury heard Dr.
Nielsen testify about his differential diagnosis, and it was the jury’s duty to determine the
reliability of his expert testimony based on his stated assumptions. In addition, the jury
heard testimony from a number of witnesses, including Dr. Nielsen, as to how noise
exposure at appellant’s work is a cause of tinnitus. Ultimately, the jury decided who to
believe and weighed the evidence to determine the lack of FELA negligence without
determining FELA causation. We do not find the court’s attitude was unreasonable,
arbitrary or unconscionable.
{¶ 53} Appellant’s first assignment of error is not well-taken.
2. Motion for Continuance
{¶ 54} In support of his second assignment of error, appellant argued the trial
court erred when it denied his motion for a continuance because it would exceed the time
limits set by the Supreme Court Rules of Superintendence. After Dr. Nielsen’s testimony
was limited by the trial court on April 19, 2018, appellant then filed on April 25, 2018, a
motion to continue the May 15, 2018 trial for 90 days in order to find and depose an
expert witness who can testify as to medical causation. Appellant argued appellee would
only have been minimally prejudiced by the continuance, while his case was “severely
prejudiced” by the trial court’s delayed ruling.
{¶ 55} We review the grant or denial of a continuance by the trial court for an
abuse of discretion. Cherry v. Baltimore & O. Rd. Co., 29 Ohio St. 2d 158, 160, 280
N.E.2d 380 (1972). We also review for abuse of discretion to the extent the trial court’s
29.
denial of a continuance prohibited additional discovery to potentially admit more
evidence at trial.
{¶ 56} Appellee opposed appellant’s motion, and on May 2, 2018, the trial court
denied the motion. The trial court stated in its judgment entry that the trial date was
previously re-set twice. In addition, the Daubert hearing was held on April 6, 2018, at
the conclusion of which the parties and the trial court held a lengthy discussion about
scheduling. Upon mutual agreement, the parties submitted their post-hearing briefs on
April 13, 2018, so that the trial court could review them on April 17 and 18, 2018, after
attending to its criminal docket, and then issue a decision by the scheduled pre-trial on
April 19, 2018. The trial court then timely journalized its decision on April 19, 2018.
The trial court stated in its May 2, 2018 decision that during the April 19, 2018 pre-trial,
appellant made no indication in the record he was considering a continuance in light of
the court’s decision that day limiting Dr. Nielsen’s testimony on medical causation. The
trial court stated it takes Ohio Supreme Court guidelines seriously, and “[t]his case is
over guideline as of the end of March 2018.” The trial court reviewed the extensive
procedural history of the case and determined adhering to the Ohio Supreme Court’s
guidelines still allowed substantial justice to the parties.
{¶ 57} Based on our decision for the first assignment of error, we find this second
assignment of error to be moot on the jury’s verdict of FELA negligence. App.R.
12(A)(1)(c). Even if the second assignment of error were not moot, we find the trial
30.
court did not abuse its discretion when it denied appellant’s motion for a continuance.
We find the trial court’s attitude was not unreasonable, arbitrary, or unconscionable.
{¶ 58} Appellant’s second assignment of error is not well-taken.
3. Economic Activity Comments
{¶ 59} In support of his third assignment of error, appellant argued the trial court
erred when it overruled his relevance objection when appellee asked appellant if he knew
whether the opening of a new section of the railyard created any jobs. Appellant argued
the result of the trial court allowing the jury to hear his testimony that the new section
might have doubled the size of the yard and added 100 jobs was manipulating the jury
into sympathizing with appellee as a job creator. “The jobs created by such an expansion
have nothing to do with the elements of duty, breach, foreseeability, causation, or
damages. * * * The trial court’s failure to stop this line of questioning, or to provide any
curative instruction, so grossly taints the jury’s verdict as to result in reversible error.”
{¶ 60} “The admission of relevant evidence pursuant to Evid.R. 401 rests within
the sound discretion of the trial court.” Rigby v. Lake Cty., 58 Ohio St. 3d 269, 271, 569
N.E.2d 1056 (1991). “‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Evid.R. 401.
{¶ 61} We reviewed the record and find the objection the trial court overruled
occurred on the fourth day of trial. Immediately preceding the cross-examination
31.
question at issue was a line of questioning of appellant’s job duties, occupational history,
medical history and use of hearing protection.
Q: Since the new bowl came on board, that’s created over a hundred jobs,
hasn’t it.
Ms. Murray: Objection.
Court: Basis?
Ms. Murray: Relevance.
Court: Overruled. Continue.
A: I really don’t know how many.
Q: They doubled the size, I think, of the yard and added a hundred jobs?
A: It could be, yes.
Q: No further questions.
{¶ 62} Immediately following the question at issue, on re-direct appellant
responded to questions regarding the frequency and scope of his repair jobs or
assignments at the yard in 2015, which was after the yard was expanded in 2014.
{¶ 63} We also reviewed appellant’s closing argument to the jury and find that,
unprompted, appellant stated the following:
Paul asks you to be fair. He doesn’t know what’s a fair verdict. He
asks you to do what you think is right under the circumstances. But let me
suggest that defense counsel gave us some answers here. One of them, they
32.
asked Paul if the railroad created a hundred jobs. The company seemed to
have chosen that a hundred jobs are worth the risk. * * *.
{¶ 64} During the entire course of the lengthy trial the trial court repeatedly ruled
on objections raised by both parties. If the trial court erred in this particular evidentiary
ruling, it was harmless, which appellant admits had “no bearing, even tangentially” on the
elements of his claims or appellee’s defenses.
{¶ 65} We do not find the trial court abused its discretion when it overruled
appellant’s relevance objection during trial. We do not find the trial court’s attitude was
unreasonable, arbitrary or unconscionable. We do not find a substantial right of appellant
was affected by the trial court’s evidence admissibility decision.
{¶ 66} Appellant’s third assignment of error is not well-taken.
4. Jury View
{¶ 67} On April 17, 2018, appellant filed a motion for jury view, pursuant to R.C.
2315.02, arguing the jury’s fact finding role would benefit from viewing the size and
scale of the railroad operation and hear the volume, frequency and proximity of the
“reality of the circumstances.” Appellant sought specific views to be pointed out to the
jury and that the jury wear hearing protection during the view. Appellant argued the jury
view would not prejudice appellee.
{¶ 68} Appellee opposed the motion, and on May 2, 2018, the trial court’s
judgment entry states, “This Court holds that a Jury View is not necessary or proper and
there is a danger of misleading the jury, and/or being prejudicial. Additionally, there are
33.
practical problems which hinder conducting a jury view in this particular case.” The trial
court reached its conclusion after analyzing five areas of concern:
In sum, this Court finds that there is very, very little to be gained
from the Jury View. There is greater danger the jury would be misled by
sensory observation during the Jury View, which isn’t evidence, and
confuse that with what is relevant – Plaintiff’s workplace experience and
exposure. A jury view would not be representative of Plaintiff’s job duties
and placement in the railyard. Photographic and aerial exhibits can
adequately display the size and scale of Defendant’s operations; Plaintiff’s
position within the railyard and the location of the retarder vis-à-vis the
locations Plaintiff most frequently works. Defendant’s operational and
safety rules serve as significant, if not impossible, impediments to
conducting a jury view in this particular case.
{¶ 69} We review a trial court’s decision on a motion for a jury view pursuant to
R.C. 2315.02 for an abuse of discretion. Davis v. State, 118 Ohio St. 25, 34, 160 N.E.
473 (1928). R.C. 2315.02 states in relevant part:
If the court is of the opinion that it is proper for the jurors to have a
view of property which is the subject of litigation, or of a place where a
material fact occurred, it may order them to be conducted in a body under
the charge of an officer to such property or place, which shall be shown to
them by a person appointed by the court for that purpose.
34.
{¶ 70} We are guided by the Ohio Supreme Court’s reminder that a jury view is
not, standing alone, evidence of any fact not otherwise established at trial. Perry v.
Eastgreen Realty Co., 53 Ohio St. 2d 51, 55, 372 N.E.2d 335 (1978). “The view by the
jury of the property which is the subject of litigation, or of the place where a material fact
occurred * * * is solely for the purpose of enabling them to apply the evidence offered
upon the trial.” Machader v. Williams, 54 Ohio St. 344, 43 N.E. 324 (1896), syllabus.
{¶ 71} We find that what appellant sought through the jury view was to furnish
evidence that it claimed could not be conveyed by other evidence admitted at trial;
however, that is appellant’s burden at trial. “A view of a premises is conducted for ‘the
purpose of enabling the trier of fact to understand and apply the evidence offered at trial’
and ‘is not conducted to gather evidence; rather, the case must be tried and determined
upon the evidence offered at trial.’” (Citations omitted.) Koller v. Zellman, 11th Dist.
Geauga No. 2018-G-0153, 2018-Ohio-2463, ¶ 25. Appellant testified, along with
numerous other witnesses, as to the size and layout of the railyard, railyard operations,
and the loud noises from those operations, among other facts.
{¶ 72} We reviewed the entire record and do not find the trial court abused its
discretion when it denied appellant’s motion for a jury view. We do not find the trial
court’s attitude was unreasonable, arbitrary or unconscionable.
{¶ 73} Appellant’s fourth assignment of error is not well-taken.
35.
5. Witness Cross-Examination
{¶ 74} In support of his fifth assignment of error, appellant argued the trial court
erred when it limited his cross-examination of appellee’s fact witness, Mark Dudle,
appellee’s corporate representative. Appellant questioned Mr. Dudle regarding a noise
survey from 2015 and the underlying data collected by another person for that noise
survey. Appellant wanted the jury to hear Mr. Dudle admit that the data collected by the
other person, who was not a witness, was not in a document “in the Courtroom.” After a
sidebar during which appellee argued exclusion based on work-product privilege and
irrelevance, appellant agreed to discontinue the question, and the trial judge struck the
question, without objection.
{¶ 75} Nevertheless, appellant argued the evidence was relevant and not protected
by the work-product privilege. Appellant argued the data was relevant because it “can
establish whether noise levels in the Yard were sufficient to cause [appellant’s hearing
loss] * * * [and] establishes NS’s possible knowledge of hazardous conditions in the
Yard – which is directly relevant to NS’s duty under FELA.” According to appellant,
“Paul should have been permitted to inquire of Dudle regarding the existence of the 2015
data; whether Dudle had seen it; whether it had been entered into evidence already at
trial; and other topics related to the data.” Appellant further argued because appellee
failed to meet its burden of proving the work-product privilege applied, the jury should
have heard this evidence which “would have weighed heavily on a central question
36.
considered by the jury (whether NS negligently failed to provide Paul with a reasonably
safe place to work) * * *.”
{¶ 76} The cross-examination question at issue occurred on the third day of trial:
Q: You’ve seen the data collected on the survey.
A: Yes.
Q: Okay. And – but we don’t have that document in the Courtroom.
We didn’t see that by your testimony today, true?
{¶ 77} Appellee then requested a sidebar. According to the record, the following
exchange concluded the sidebar:
Mr. Palmer: Well, we raised an objection. They never filed a
motion to compel or never raised it with the Court. It’s not employee
testing and it could – I know it’s been litigated in the other Court, but there
– we filed a motion for reconsideration on issues still pending in that Court.
I mean, it’s not –
Mr. Murray: I’ll move on. I’ll move on.
Court: Okay.
Mr. Lyda: Could we ask that the jury disregard that, Judge?
Court: Well, I think it should be cleaned up, maybe ask if it was
employee related.
Mr. Murray: No, I’m not going to do that.
Court: Okay. Then I’m going to strike it.
37.
{¶ 78} We review the trial court’s decisions on the scope of cross-examination and
the admissibility of evidence during cross-examination for an abuse of discretion.
Calderon v. Sharkey, 70 Ohio St. 2d 218, 222, 436 N.E.2d 1008 (1982); O’Brien v.
Angley, 63 Ohio St. 2d 159, 163, 407 N.E.2d 490 (1980). In this case, the trial court
ordered stricken the disputed cross-examination question because appellant announced,
“I’ll move on. I’ll move on”; did not withdraw the question; and refused to rephrase the
question to determine relevance to this litigation. After the trial court ordered the
question stricken, appellant did not object.
{¶ 79} Where appellant did not object on the record to the trial court’s
determination to strike the question appellant asked appellee’s witness on cross-
examination, he waived all but plain error. Risner v. Ohio Department of Natural
Resources, 144 Ohio St. 3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 26-27. The Supreme
Court of Ohio has instructed us to strictly limit the plain error doctrine “to the extremely
rare case involving exceptional circumstances when the error, left unobjected to at the
trial court, rises to the level of challenging the legitimacy of the underlying judicial
process itself.” (Emphasis sic.) Id. at ¶ 27. We do not find the record shows this was
such an exceptional circumstance.
{¶ 80} We reviewed the entire record and find appellant did not meet his burden to
show there was an actual and obvious plain error from which the jury clearly would not
have found in favor of appellee. We do not find the trial court abused its discretion when
38.
it struck appellant’s cross-examination question. We do not find the trial court’s attitude
was unreasonable, arbitrary or unconscionable.
{¶ 81} Appellant’s fifth assignment of error is not well-taken.
6. Closing Argument
{¶ 82} In support of his sixth assignment of error, appellant argued the trial court
erred by overruling his objections to appellee’s statements during closing arguments that
were misstatements of the law, confused the jury, and was prejudicial to appellant.
Appellant argued, “In a FELA action, assumption of the risk is not a defense to liability.
Therefore, it is improper for the defense to argue, as it did, that a railroad worker like the
Plaintiff has to expect some dangers to be present in the workplace.” Appellant further
argued appellee’s argument was not supported by the evidence and did not fairly
characterize the evidence presented at trial.
{¶ 83} Prior to the start of appellee’s closing argument on the sixth day of trial, the
record shows the following sidebar exchange after appellant concluded his closing
argument and before appellee commenced its closing argument:
Mr. Murray: I wanted to object to the * * * exhibit * * * in light of
the Court’s ruling and the jury instructions. It’s a demonstrative that he’s
going to put up and it suggests some sort of risk.
Court: What – what – what are you talking about?
Mr. Murray: It’s a – it’s a board he’s going to use. He showed it to
me, and we’ve talked about it, but Joe points out that after the instruction –
39.
Mr. Galea: Well, it really doesn’t have to do with the instruction
itself. Assumption of the risk is never in an FELA case, and so to the
extent that that demonstrative will suggest that some workplaces are safer
than others, I think that gets into assumption of the risk territory by saying
almost that he’s going to be in a situation where we can’t make everything
safe for him. Yes, that’s true, but he’s not assuming the risk of those type –
Mr. Lyda: We’re not making an argument. The instruction is that
the railroad (inaudible) ensure the safety of the employee.
Court: That’s right.
Mr. Lyda: So –
Court: Yeah.
Mr. Murray: Okay.
Court: Assumption of the risk is not an issue.
Mr. Murray: I just didn’t want you to be (inaudible).
Court: Yeah. No.
Mr. Murray: Give it (inaudible).
Court: I’ll weigh that.
{¶ 84} Appellee then proceeded with closing arguments with one objection
by appellant on a different issue:
Mr. Lyda: There was a member of the jury panel who said that he
went to the Cleveland –
40.
Mr. Murray: Objection, Your Honor.
Court: Basis?
Mr. Murray: You can’t have a jury – a juror testify.
Court: Sustained.
{¶ 85} It is well established that closing arguments are not evidence for the fact-
finder. Stafford v. Columbus Bonding Ctr., 177 Ohio App. 3d 799, 2008-Ohio-3948, 896
N.E.2d 191, ¶ 26 (10th Dist.), citing State v. Frazier, 73 Ohio St. 3d 323, 338, 652 N.E.2d
1000 (1995). Parties are granted some latitude during closing argument “so long as
counsel stays within the boundaries of the record.” Frazier at 338. Counsel may
comment during closing argument on evidence adduced at trial, except for “evidence
which was excluded or declared inadmissible by the trial court or otherwise make
statements which are intended to get evidence before the jury which counsel was not
entitled to have the jury consider.” Villella v. Waikem Motors, Inc., 45 Ohio St. 3d 36, 39,
543 N.E.2d 464 (1989), quoting Drake v. Caterpillar Tractor Co., 15 Ohio St. 3d 346,
347, 474 N.E.2d 291 (1984). Persistent abuse during closing argument may be grounds
for a new trial. Carper v. Snodgrass, 6th Dist. Lucas No. L-03-1065, 2003-Ohio-6975,
¶ 15.
{¶ 86} We find the trial court explicitly instructed the jury that closing arguments
are not evidence:
Court: This is closing arguments, and, once again, this is what
you’ve seen in television and movies. This is where the parties are going to
41.
be able to argue or a summation of what they believe their evidence has
shown in their case. The important thing to remember, and although
they’re both outstanding attorneys on both sides of the table, it’s not
evidence. It’s a summation of what they believe they have proven, okay, or
what the evidence has shown and any reasonable inferences from that
evidence, okay?
{¶ 87} We presume the jury followed the trial court’s instructions. State v. Jones,
135 Ohio St. 3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194. In addition, appellant failed
to show that the jury considered appellee’s closing arguments as substantive evidence.
Grimm v. Summit Cty. Children Servs. Bd., 9th Dist. Summit No. 22702, 2006-Ohio-
2411, ¶ 50.
{¶ 88} We reviewed the entire record and do not find the trial court abused its
discretion when it overruled appellant’s objection prior to appellee’s closing argument.
We do not find appellee persistently abused the scope of closing argument. We find the
trial court properly instructed the jury on the limitations of closing argument. We do not
find the trial court’s attitude was unreasonable, arbitrary or unconscionable.
{¶ 89} Appellant’s sixth assignment of error is not well-taken.
7. Cumulative Error
{¶ 90} In support of his seventh assignment of error, appellant argued that the
cumulative effect of all of the trial court’s errors warrant reversal of the judgment and
42.
granting a new trial. Appellee responded that the trial court did not err, so there was no
cumulative effect.
{¶ 91} This court has held that “the cumulative effect of errors occurring in a trial
court’s evidentiary rulings can deprive a party of a full and fair hearing.” Furr v. State
Farm Mut. Auto. Ins. Co., 128 Ohio App. 3d 607, 631, 716 N.E.2d 250 (6th Dist.1998).
Where we find no trial court error to appellant’s prejudice in any of the alleged
assignments of error, there is no cumulative effect of errors that would have violated
appellant’s right to a full and fair hearing. Id.
{¶ 92} We reviewed the entire record and do not find the trial court cumulatively
abused its discretion when it determined issues on admissibility of evidence throughout
the course of this case and at trial. We do not find the trial court’s attitude was
unreasonable, arbitrary or unconscionable.
{¶ 93} Appellant’s seventh assignment of error is not well-taken.
B. Conclusion
{¶ 94} On consideration whereof, the judgment of the Erie County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
43.
Taylor v. Norfolk S. Ry. Co.
C.A. No. E-18-036
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
CONCUR. _______________________________
JUDGE
Christine E. Mayle, J. _______________________________
CONCURS AND WRITES JUDGE
SEPARATELY.
MAYLE, J.
{¶ 95} I concur in the foregoing judgment. I write separately with respect to the
first assignment of error because I believe that the trial court abused its discretion when it
excluded the causation opinions of appellant’s treating physician, Dr. Erik Nielsen.
However, I nonetheless concur with the majority’s decision to affirm the trial court
judgment because I believe that the trial court’s error was harmless.
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{¶ 96} The trial court granted appellee’s motion in limine to exclude Dr. Nielsen’s
causation opinions because, as part of his differential diagnosis, Dr. Nielsen relied upon
appellant’s own statements that he was exposed to “loud noise” as a railroad employee.
In its written opinion, the trial court stated that it excluded Dr. Nielsen’s causation
opinions because he did not have any information about appellant’s specific job duties,
nor did he have “any quantifiable data” regarding the “specific noise exposures on the
job.” The majority similarly concludes that Dr. Nielsen’s causation testimony was
inadmissible because he “did not review any of appellant’s work history records,
including medical records, clinical history, audiograms, noise exposure, hearing
protection devices or data, job duties, or photographs of appellee’s railyard prior to
rendering his medical causation opinion.” I disagree.
{¶ 97} Dr. Nielsen is not an industrial hygienist who evaluates workplace
conditions or noise exposure assessments. Dr. Nielsen is a treating physician whose
expertise is patient care in the medical field of otolaryngology. As appellant’s
otolaryngologist, Dr. Nielsen treated appellant after he narrowed down the probable
cause of his hearing loss and tinnitus after taking a patient history, conducting a
comprehensive physical examination, and reviewing medical records—including the
results of multiple audiograms and an auditory brainstem response (“ABR”) that his
office conducted, as well as the medical records of appellant’s physical exams with Dr.
Nielsen’s physician assistant. This is a well-established reliable methodology for medical
45.
testimony from a treating physician. See, e.g., Cutlip v. Norfolk S. Corp., 6th Dist. Lucas
No. L-02-1051, 2003-Ohio-1862, ¶ 45.
{¶ 98} Indeed, “[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.” Hutchins v. Delco Chassis Sys.,
2d Dist. Montgomery No. 16659, 1998 WL 70511, *4 (Feb. 20, 1998); see also Warner
v. DMAX Ltd., LLC, 2d Dist. Montgomery No. 26644, 2015-Ohio-4406, ¶ 17. While Dr.
Nielsen was not personally familiar with appellant’s specific work conditions or specific
levels of noise exposure, “[w]eaknesses in the factual bases of an expert’s testimony go
to the weight and credibility of the expert’s testimony, not to its admissibility.” Dejaiffe
v. KeyBank USA Natl. Assn., 6th Dist. Lucas No. L-05-1191, 2006-Ohio-2919, ¶ 19.
{¶ 99} In Warner, for example, a medical expert opined that plaintiff’s injuries
were “‘caused by the push, pull movements and repetitive movements used to perform
her job * * *.’” Warner at ¶ 19. The appellate court determined that this opinion was
admissible even though the expert did not have any information about plaintiff’s job
duties other than information that the plaintiff provided herself. The expert witness in
Warner—like Dr. Nielsen in this case—“was the treating physician, and he based his
opinion on his records and what he perceived, which included his personal observations
and his patient’s description of her working environment.” Id. at ¶ 17. The appellate
court concluded that this was a reliable methodology and that the treating physician,
testifying as a medical expert, “‘could have been cross-examined relative to a possible
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change of opinion after being told of the prior and subsequent injuries [or different
working conditions or duties], for the primary purpose of cross-examination is to test the
accuracy, truthfulness, soundness, and thereby the credibility, of testimony given by a
witness on direct examination.’” (Brackets sic.) Id., quoting Baird v. Cincinnati Transit
Co., 110 Ohio App. 94, 99, 168 N.E.2d 413 (1st Dist.1959).
{¶ 100} Likewise, in Hutchins, 2d Dist. Montgomery No. 16659, 1998 WL 70511,
at *5, the appellate court concluded that a treating physician’s opinion that plaintiff’s
injuries were caused by a workplace accident was admissible even though the treating
physician did not have any independent information regarding plaintiff’s workplace other
than information that was provided by the plaintiff himself. The appellate court
explained that, under Evid.R. 705, an expert may provide opinions in response to
hypothetical questions that assume the existence of facts outside the expert’s own
personal knowledge as long as those facts are somewhere in the record. Id. For example,
“‘[a]n expert giving an opinion not based upon his personal knowledge is in effect giving
hypothetical testimony-“If A, B, and C are true, then, based upon my expertise in the area
of fire causation, the defendant’s act proximately caused the fire.”’” Id., quoting
Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc., 110 Ohio App. 3d 732,
739, 675 N.E.2d 65 (2d Dist.1996). Thus, in this regard, the hypothetical questions to the
doctor were appropriate. The court further noted that the treating physician did not rely
“wholly” upon the plaintiff’s history—as the defendant argued—because the physician
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performed his own physical examination and found that his opinion “was also supported
by the consistency of [plaintiff’s] injuries with his version of events * * *.” Id. at *6.
Similarly here, Dr. Nielsen repeatedly testified that the medical records he
reviewed were consistent with noise-induced hearing injuries. That is, after reviewing
the initial audiogram that his office performed in 2010, Dr. Nielsen testified that it was
likely that appellant had noise-exposure damage because “noise exposure classically will
show this little drop worse at about 4000 hertz,” which is what his 2010 audiogram
showed. Dr. Nielsen further testified that appellant’s 2015 audiogram showed
“significant worsening” between 2010 and 2015, which was also consistent with noise
exposure. The trial court did not exclude these statements.
{¶ 101} The trial court did, however, exclude all causation opinions that either
depended upon statements that appellant made to Dr. Nielsen regarding appellant’s work
history, or that were given in response to a hypothetical question in which appellant’s
attorney “assumed” for purposes of questioning that appellant would testify regarding
certain facts. For example, the trial court excluded Dr. Nielsen’s testimony that “in view
of his history, that * * * I believe he said that there was more noise at work [between
2010 and 2015] than there had been, that I felt that the ringing was probably—the
worsening of his ringing was probably related to work.” The trial court also excluded his
testimony that, assuming that appellant testified that he was exposed to daily and routine
noise emanating from the retarders at the railyard, such noise exposure “could be causing
some additional hearing loss, but, more importantly, it would make—could make his
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tinnitus worse.” The trial court also excluded his testimony that, assuming that the
“only” noise exposure appellant had at the time was at the railyard, that it was “probable”
that such noise exposure made his tinnitus worse. The trial court also excluded Dr.
Nielsen’s testimony that, assuming that appellant “stopped using guns except for one
occasion between 2010 and 2016,” that “[t]he worsening of the tinnitus I felt was related
to his exposure at work.” The court also excluded testimony in which Dr. Nielsen stated
that, “from [appellant’s] history, if he is no longer shooting guns and he shows change in
his hearing, that exposure has—of greater sounds and louder sounds would definitely
cause his tinnitus to be worse.”
{¶ 102} The exclusion of such causation opinions was an abuse of discretion and
contrary to the Ohio Rules of Evidence for several reasons. Under Evid.R. 705, “[t]he
expert may testify in terms of opinion or inference and give the expert’s reasons therefor
after disclosure of the underlying facts or data. The disclosure may be in response to a
hypothetical question or otherwise.” And under Evid.R. 703, an expert may provide
testimony regarding “inferences” that are based upon facts outside his or her personal
knowledge as long as such facts are otherwise contained in the record—which they were
in this case.
{¶ 103} Most importantly, as the courts recognized in Warner and Hutchins, it is
appropriate for a treating physician to base his or her opinion testimony on patient
history, review of his medical records, and patient examination. Any weaknesses in Dr.
Nielsen’s “underlying factual assumptions may affect credibility, but do not affect
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admissibility.” Warner, 2d Dist. Montgomery No. 26644, 2015-Ohio-4406, at ¶ 18.
Indeed, in this case—as in Warner—the appellee’s attorney did challenge Dr. Nielsen on
cross-examination with a series of questions that revealed that “he was not personally
familiar with all of the working conditions * * *” and that the plaintiff’s own history “did
not contain a complete recitation of all the facts * * *.” Id. It should have been up to the
jury to assess Dr. Nielsen’s credibility after such weaknesses in his causation opinion
were exposed through cross-examination. “The absence of certain facts, or the failure of
proof of others, goes to the weight and credibility of the [expert] testimony, and not to its
admissibility. The burden falls on the opposing party to discredit or minimize the
expert’s testimony through cross-examination, just as defense counsel attempted to do in
this case.” Johnson v. Knipp, 36 Ohio App. 2d 218, 220, 304 N.E.2d 914 (9th Dist.1973)
{¶ 104} Moreover, Dr. Nielsen’s differential diagnosis was an accepted and
reliable methodology under Evid.R. 702. As this court recognized in Cutlip, 6th Dist.
Lucas No. L-02-1051, 2003-Ohio-1862,
“[d]ifferential diagnosis is defined for physicians as ‘the
determination of which of two or more diseases with similar symptoms is
the one from which the patient is suffering, by a systematic comparison and
contrasting of the clinical findings.’ The elements of a differential
diagnosis may consist of the performance of physical examinations, the
taking of medical histories, and the review of clinical tests, including
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laboratory tests. A doctor does not have to employ all of these techniques
in order for the doctor’s diagnosis to be reliable.
Id. at ¶ 45, quoting Kannankeril v. Terminix Internatl., Inc., 128 F.3d 802, 807 (3d
Cir.1997).
{¶ 105} And here, Dr. Nielsen actually did employ all of these techniques when
performing his differential diagnosis—he and his PA performed comprehensive physical
examinations of appellant, took appellant’s medical history, and performed a variety of
clinical tests, including audiograms and an ABR. As he performed these techniques, Dr.
Nielsen systematically ruled out a tumor, smoking, and appellant’s age as unlikely causes
of appellant’s hearing loss and tinnitus—thereby leaving noise exposure as the probable
cause. Further, as Dr. Nielsen testified, appellant’s audiograms were entirely consistent
with appellant’s self-reported noise exposure (and, also, an increase in noise exposure),
which further supported his causation opinion. Hutchins, 2d Dist. Montgomery No.
16659, 1998 WL 70511, at *6 (physician’s causation opinion “was also supported by the
consistency of [plaintiff’s] injuries with his version of events * * *.”).
{¶ 106} The majority, however, finds that Dr. Nielsen’s differential diagnosis was
unreliable—and therefore inadmissible—because, unlike the plaintiff’s expert witness in
Cutlip, there is no indication that Dr. Nielsen reviewed any historical medical records.1
1
The majority states that “Dr. Nielsen testified he did not review appellant’s medical
records or review data related to such medical records.” But, from Dr. Nielsen’s
testimony, it is clear that he did review certain medical records—including records from
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See Cutlip at ¶ 12 (stating that the physician knew from “earlier medical records” that
plaintiff had used an inhaler in the past (emphasis added)) and ¶ 13 (stating that the
physician had reviewed plaintiff’s “previous medical records” (emphasis added)).
Although we noted in Cutlip that the treating physicians had performed a “thorough
deferential diagnosis,” id. at ¶ 48, that does not suggest that those same exact techniques
and processes are always required for a physician’s differential diagnosis to be reliable
and admissible. To the contrary, we expressly recognized in Cutlip that “‘[a] doctor does
not have to employ all of these [differential diagnosis] techniques in order for the
doctor’s diagnosis to be reliable.’” Id. at ¶ 45, quoting Kannankeril at 807. In fact,
courts recognize that “there will be some cases in which a physician can offer a reliable
differential diagnosis without examining the patient, looking at medical records, taking a
medical history, and performing laboratory tests.” In re Paoli R.R. Yard PCB Litigation,
35 F.3d 717, 762 (3d Cir.1994); see also Kannankeril at 808, quoting Paoli at 759 (“‘to
the extent that the district court concluded otherwise [i.e., that a differential diagnosis
made on less than all types of information cannot be reliable], we hold that it abused its
discretion.’” (Brackets sic.)).
{¶ 107} Again, in this case, Dr. Nielsen did examine the patient, did look at
medical records, did take a medical history, and did perform various medical tests.
Although he did not obtain and review all possible information that could conceivably
appellant’s visits with his PA, the audiograms and ABR that his office performed, and his
own medical records of his various examinations of the appellant.
52.
have some bearing on his analysis—i.e., he did not review appellant’s historical medical
records, nor did he gather information regarding appellant’s job duties or specific
workplace noise exposure levels—“any weaknesses in the factual basis of an expert
witness’ opinion * * * bear on the weight of the evidence rather than on its
admissibility.” United States v. L.E. Cooke Co., Inc., 991 F.2d 336, 342 (6th Cir.1993).
{¶ 108} In sum, given that Dr. Nielsen’s differential diagnosis was a sufficiently
reliable methodology, and given that it was appropriate for appellant’s counsel to ask
hypothetical questions under Evid.R. 705 with “assumed” facts that were otherwise in the
record as required by Evid.R. 703, I believe that the trial court abused its discretion by
excluding Dr. Nielsen’s causation opinions.
{¶ 109} But, I believe that the trial court’s error was harmless. See Civ.R. 61
(“[n]o error in either the admission or the exclusion of evidence * * * is ground for
granting a new trial or for setting aside a verdict * * * unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.”). That is because the jury concluded that appellee did
not breach its duty of care to appellant under the Federal Employer’s Liability Act—i.e.,
the jury found that appellee did not fail to provide appellant with a reasonably safe place
to work—and, therefore, did not reach the issue of causation. The trial court’s error in
excluding Dr. Nielsen’s causation opinions was therefore harmless. See Hopkins v.
Mason, 9th Dist. Medina No. 06CA0103-M, 2007-Ohio-4345, ¶ 11 (trial court’s error in
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excluding expert testimony on damages was harmless because the jury did not find that
appellee breached the contract at issue); Grubbs v. Admr., Bur. of Workers’ Comp., 5th
Dist. Ashland No. CA 1236, 1998 WL 517693, *4 (Apr. 9, 1998) (trial court’s error in
excluding expert testimony was harmless because the plaintiff failed to establish a
separate element of his workers’ compensation claim).
{¶ 110} I therefore agree with the majority’s decision to affirm the trial court
judgment.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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