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Porter v. Sidor2/24/2005
{ } Plaintiff-appellant, Samuel F. Porter, III ("Porter"), as administrator of the Estate of Mary E. Porter (the "decedent"), appeals the trial court's decision granting defendant-appellee's, Tim A. Sidor, M.D. ("Sidor"), motion in limine excluding the testimony of Porter's expert, Dr. David M. Grischkan ("Grischkan"). Finding merit to the appeal, we reverse and remand.
{ } In 2002, Porter filed a medical malpractice action against Sidor, alleging that he acted negligently in treating the decedent which proximately caused her death. Sidor filed a motion in limine to exclude the testimony of Porter's expert, Grischkan, because he was not qualified to testify regarding the treatment rendered to the decedent. On the day of trial, the court conducted a hearing and found that Grischkan was not qualified under Evid.R. 702(B) "as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony," specifically, the placement of an ileal conduit to divert urine. Porter appeals, raising a single assignment of error, in which he claims that the trial court erred in granting Sidor's motion in limine.
{ } Initially in this matter, we find that the granting of the motion in limine is a final appealable order. Generally, the granting of a motion in limine is a tentative, precautionary ruling reflecting the court's anticipated treatment of an evidentiary ruling, and in most instances, finality of the matter does not attach when the motion is granted, and thus, is not a final appealable order. State v. Grubb (1986), 28 Ohio St.3d 199, 201-202, 503 N.E.2d 142. However,
" n order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things." Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 346 N.E.2d 673, paragraph one of the syllabus. "Proof of the recognized standards must necessarily be provided through expert testimony." Id. at 131-132.
{ } Thus, without the testimony from an expert, Porter would be unable to sustain his burden of proof. The exclusion of Grischkan as a qualified expert immediately prior to the commencement of trial prevented Porter from proceeding with his case. The granting of the motion in limine thus created a final appealable order.
{ } Moreover, Evid.R. 103 does not require a proffer of evidence when the substance of the evidence was "apparent from the context within which questions were asked." In the instant case, the hearing on Sidor's motion in limine was immediately prior to trial. The substance of Grischkan's testimony was set forth in that hearing. The record demonstrates that Grischkan would have testified that Sidor's placement of the stoma and post-operative care to the decedent fell below the standard of care, and that this failure proximately caused the death of the decedent. Thus, the matter is properly before this court.
{ } Pursuant to Evid.R. 104(A), the trial court determines whether an individual qualifies as an expert, and that determination will be overturned only for an abuse of discretion. State v. Williams (1983), 4 Ohio St.3d 53, 58, 446 N.E.2d 444, 448.
"An abuse of discretion connot
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