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Overcasher v. Northland Cranberries9/20/2004
ted her to the hospital because she would have airway problems, which she did not exhibit. The doctor explained often a physician cannot really make a diagnosis, but nevertheless must put down some diagnosis in order to bill for the visit. Dr. Ossakow speculated this was what happened at the emergency room. He also offered as his expert opinion there was no objective medical evidence of any injury at the time, and any symptoms she exhibited when he treated her were not the result of the incident with the grape juice.
{ } We find the trial court was correct in holding appellant had not demonstrated the emergency room physician's diagnosis was based on anything other than her own statements to him regarding her injury . We conclude the diagnosis portion of the hospital records are inadmissible hearsay.
{ } The second assignment of error is overruled.
I.
{ } The trial court set forth the elements a plaintiff must prove in order to recover on a products liability claim: First, there was a defect in the product manufactured and sold by the defendant; second, such defect existed at the time the product left the hands of the defendants; and third, the defect was the direct and proximate cause of the plaintiff's injuries or losses, Shaw v. Toyotomi America, Inc. (1995), 101 Ohio App. 3d 54, citations deleted.
{ } As the trial court correctly found, in order to establish her negligence claim, the appellant must show the existence of a duty, breach of the duty, and an injury proximately resulting from the breach, Texler v. D. O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St. 3d 677.
{ } The trial court found appellant had not produced evidence of an injury , nor of causation.
{ } We find the trial court was correct in finding appellant had not set forth a prima facia case either for product liability or negligence. Because the emergency room diagnosis was inadmissible hearsay, appellant has presented no evidence she was injured.
{ } The first assignment of error is overruled.
{ } For the foregoing reasons, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
By Gwin, P.J., Wise, J., and Boggins, J., concur
JUDGMENT ENTRY
{ } For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs to appellant.
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