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Ede v. Atrium S. OB-GYN12/14/1994
he fifteenth day of January, with the clerk of each house of the general assembly during a regular session thereof * * *. Such rules shall take effect on the following first day of July, unless prior to such day the general assembly adopts a concurrent resolution of disapproval."
(Emphasis added.) The majority's new procedure for changing the evidence rules is contrary to law.
For the foregoing reasons, I respectfully dissent.
_____________________ Footnote:
1 Perhaps inadvertently, the majority has reversed the judgment of the court of appeals and remanded this cause in violation of Civ.R. 61, which states:
"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, 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."
This means that, in order for a reviewing court to reverse a judgment concerning a matter within a court's discretion, the reviewing court must find not only that an abuse of discretion occurred below, but that such abuse of discretion actually prejudiced the substantial rights of the party seeking reversal. Assuming for the sake of argument that the trial court abused its discretion in this case, I do not believe that the exclusion of "evidence of a commonality of insurance interests" between defendant and defendant's expert witness affected the ultimate outcome of the case so as to prejudice the substantial rights of Ede.
I am puzzled by the suggestion in the concurring opinion that my discussion of Civ.R. 61 in this footnote is somehow inconsistent with the discussion of Civ.R. 61 in my dissent in Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, 642 N.E.2d 615. In both opinions I adhere to the principle that an error must prejudice the substantial rights of the parties in order to constitute reversible error. A finding of reversible error obviously depends on the unique facts of each case. In this case, the alleged error did not prejudice the substantial rights of the parties. In Continental, supra, the error did prejudice the substantial rights of the parties.
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