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Aldridge v. Garner2/23/2005
n it ruled that Dr. Kirwin is not competent to testify as an expert. Garner contends that the trial court acted within its discretion in determining that Dr. Kirwin's failure to spend at least 50 percent of his time in active clinical practice renders him incompetent as an expert witness.
{ } A trial court has broad discretion in the admission or exclusion of evidence, and so long as the court exercises its discretion in line with the rules of procedure and evidence, we will not reverse its judgment absent a clear showing of an abuse of discretion with attendant material prejudice to defendant. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271; State v. Hymore (1967), 9 Ohio St.2d 122. A finding that a trial court abused its discretion implies that the court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse-of-discretion standard, we may not substitute our judgment for the trial court's judgment. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169.
{ } Evid.R. 601(D) governs whether a doctor is competent to testify at trial. The rule states: "Every person is competent to be a witness except: * * * (D) A person giving expert testimony on the issue of liability in any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless the person testifying is licensed to practice medicine * * * and unless such person devotes at least one-half of his professional time to the active clinical practice in his field of licensure, or to its instruction in an accredited school." Accordingly, the proponent of a doctor's expert testimony first must show that the doctor is licensed to practice medicine in Ohio or any other state. Second, the proponent must show that the doctor devotes at least one-half of his professional time to active clinical practice or instruction in an accredited university.
{ } Evid.R. 601(D) is a remedial rule and, like other remedial rules or statutes, "'should be liberally construed and applied'" to effect its purpose. Smith v. Sass, Friedman & Assoc., Inc., Cuyahoga App. No. 81953, 2004-Ohio-494, at (Corrigan, J., dissenting), quoting Wellston Iron Furnace Co. v. Rinehart (1923), 108 Ohio St. 117, paragraph one of the syllabus; see, also, R.C. 1.11. Because Evid.R. 601(D) does not explicitly define "active clinical practice," the requirement is a subjective one. Crosswhite v. Desai (1989), 64 Ohio App.3d 170, 175. The purpose of the "active clinical practice" rule is to "preclude testimony by the physician who earns his living or spends much of his time testifying against his fellows as a professional witness, and to prevent those whose lack of experiential background in the very field they seek to judge, the clinical practitioner, makes the validity of their opinions suspect, from expressing those opinions for pay or otherwise." McCrory v. State (1981), 67 Ohio St.2d 99, 103.
{ } While the term "active clinical practice" generally describes treating patients, "it also includes the physician-specialist whose work is so related or adjunctive to patient care as to be necessarily included in that definition." McCrory, 67 Ohio St.2dat 104. Thus, flexibility is permitted in determining whether a physician spends an adequate percentage of time engaged in active clinical practice. Id. In McCrory, the court found that a person who did medical research and supervised research done by a staff of doctors who evaluated and developed new drugs was competent to testify about the use of a drug he studied, because his testimony would not frustrate the purpose of Evid.R. 601(D). Id.
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