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Lambert v. Goodyear Tire & Rubber Co.3/26/1992
PETER B. ABELE, Judge.
This is an appeal from a judgment entered by the Jackson County Commons Pleas Court granting a motion for a directed verdict in favor of Goodyear Tire and Rubber Company, defendant below and appellee herein, and against Donald J. Lambert, plaintiff below and appellant herein.
Appellant assigns the following errors:
First assignment of error:
"The court erred when it refused to admit into evidence the CT scan interpretation from Holzer Medical Center dated 6-5-86 (Exhibit `1') and thsCT scan interpretation from Holzer Medical Center dated 5-10-89 (Exhibit `2')."
Second assignment of error:
"The court erred when it refused to admit into evidence plaintiff's Exhibits `1' and `2', being the CT scan interpretation of Holzer Medical Center dated 6-5-86 and 5-10-89 after Dr. McCloud, an orthopedic surgeon, testified concerning the interpretation of those films consistent with the exhibits."
Third assignment of error:
"The court erred when it refused to permit the opinion testimony of Drs. Brown and Ward concerning the causal relationship of the plaintiff's industrial injury to the bulging disc at level L4-5."
Fourth assignment of error:
"The court erred when it directed a verdict for the defendant against the plaintiff."
On June 25, 1977, appellant injured his lower back during the course of his employment with appellee. Appellant prevailed in a workers' compensation claim for a lumbar strain suffered as a result of the incident.
In 1987, appellant moved the Industrial Commission of Ohio to allow an additional claim based on the 1977 incident. The additional claim involves a herniated disk between the third and fourth lumbar vertebrae and a diffuse bulging between the fourth and fifth lumbar vertebrae with disk degeneration.
At a May 29, 1990 jury trial, appellant attempted to prove the additional claim. Appellant testified about the June 25, 1977 injury, his limited physical abilities and his visits to Dr. Richard M. Ward and Dr. John Q. Brown. Appellant further testified he underwent two CT scans. The parties marked a June 5, 1986 CT scan report prepared by Dr. Stephen C. Johnson as Exhibit 1, and marked a May 10, 1989 CT scan report prepared by Dr. Manuel A. Casanova as Exhibit 2.
Although appellee stipulated to the authenticity of the CT scan reports, appellee objected to the reports on Evid. R. 803(6) grounds. The court sustained appellee's objections and commented as follows:
"Frankly, I don't think I would have a whole lot of trouble with the documents if I thought there was qualification satisfaction under Hytha."
The court, referring to Hytha v. Schwendeman (1974), 40 Ohio App.2d 478, 69 O.O.2d 419, 320 N.E.2d 312, and Quiller v. Mayfield (Aug. 17, 1989), Franklin App. No. 88AP-11115, unreported, 1989 WL 95356, concluded that the CT scan reports could not be admitted into evidence unless appellant either (1) presented evidence regarding the qualifications of Drs. Johnson and Casanova to make the reports, or (2) brought Drs. Johnson and Casanova to the witness stand.
After the court disallowed the CT scan reports, appellant read portions of orthopedic surgeon Dr. Jerry McCloud's May 17, 1990 deposition into evidence. The parties stipulated that Dr. McCloud is an expert orthopedic surgeon. Dr. McCloud testified that although he does not feel as confident interpreting CT scans as he feels interpreting X-rays, he agrees the June 5, 1986 CT scan reveals a herniated disk and a diffuse bulging at L4-5, and the May 10, 1989 CT scan re
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