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Harmon v. Allen8/23/2001
articular case upon which an expert bases an opinion or inference may be those perceived by him or admitted into evidence at the hearing. This evidentiary principle has been refined and interpreted by Ohio courts to mean that the requirements of Evid.R. 703 are met if an expert's opinion is based in whole, or in major part, upon data which he has perceived and which has been admitted into evidence in the case.
While the Harmons suggest that, under Azzano v. O'Malley- Clements, where the background and almost entire testimony of the purported expert was an issue, Dr. Eltherington's testimony was fatally tainted by hearsay and the reputation evidence of a non- party, we do not find that case to be applicable.
A review of the testimony reveals that Dr. Eltherington had based his opinion that the C-3 nerve root block and prophylactic blood patch was medically indicated, authorized by Mrs. Harmon, correctly performed on her while she was sedated using a suitable amount of blood (whether 10 cc's, and not 6 cc's, were used), and that the blood clot and ensuing problems were caused by a bleeding epidural vein and not through any professional lapse by Dr. Allen, on a review of the medical records presented during trial and entered into evidence, and his own extensive professional knowledge of the procedures involved.
The decision of a judge to allow the admission of the expert testimony is reviewed under an abuse of discretion standard. To constitute an abuse of discretion, the ruling must be more than legal error; it must be unreasonable, arbitrary, or unconscionable.
Given the unquestionable fact that, at trial, the foundation of Dr. Eltherington's opinions and testimony were Mrs. Harmon's medical records and medical history, in combination with his own base of knowledge about the propriety of the medical procedures employed, we must conclude that his testimony was based much more than in major part on evidence he perceived and which was admitted into evidence. We find no prejudice requiring reversal, even given Dr. Eltherington's reference to the training experiences of Dr. Allen, and the expertise of Dr. Waldman. In light of the totality of his testimony in this case, his reference to these factors as a basis for his opinions is parenthetical at best. The assignment of error is overruled.
Based upon our decision on the Harmons' appeal, we decline to address either the propriety or correctness of any asserted cross- assignment of error.
Judgment affirmed.
It is ordered that the appellee recover from appellant costs herein taxed.
This court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court 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.
JUDGE ANNE L. KILBANE
KENNETH ROCO, P.J. and JAMES J. SWEENEY, J., CONCUR.
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