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Smith v. Sass2/5/2004
xperience in cardiology. Regardless of the merits of the expert's past qualifications, it is important to understand that Evid.R. 601(D) is a rule of competency, not qualification. The world's foremost medical expert could be rendered incompetent to testify if that expert had retired from medical practice only days before because that expert would not be "actively" engaged in clinical practice at the time of trial testimony. The lifetime of experience gained in the field -- the expert's qualifications -- would mean nothing for purposes of the rule. Evid.R. 601(D) is a remedial rule and like other remedial rules or statutes, "should be liberally construed and applied to effect their respective purposes." See Wellston Iron Furnace Co. v. Rinehart (1923), 108 Ohio St. 117, syllabus. The purpose of Evid.R. 601(D) is to ensure that those testifying about applicable standards of care give their testimony based on experience within the field. The expert's research had no direct relationship with the cardiac issues raised by the estate. Consequently, the expert should have been declared incompetent and his testimony on matters of expert opinion should have been stricken. I would hold that the court abused its discretion by refusing to do so. And because the estate's expert witness was its only expert witness, the record as it stands before us would not establish any evidence going to the applicable standard of care; hence, the court should have found the witness incompetent and directed a verdict in Price's favor. Accordingly, I respectfully dissent.
It is ordered that appellee recover of appellants her costs herein taxed.
The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1).
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