[Cite as Ford v. Sunbridge Care Ents.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103031

CAROL FORD

PLAINTIFF-APPELLANT

vs.

SUNBRIDGE CARE ENTERPRISES, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-825240

BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: March 17, 2016 ATTORNEYS FOR APPELLANT

Jerald A. Schneiberg Daniel A. Kirschner Jennifer L. Lawther Nager, Romaine & Schneiberg Co., L.P.A. 27730 Euclid Avenue Euclid, Ohio 44132

ATTORNEYS FOR APPELLEES

For Sunbridge Care Enterprises

Michael J. Reidy Nicholas W. Lanphear Meredith L. Ullman Ross Brittain & Schonberg Co., L.P.A. 6480 Rockside Woods Blvd. South Suite 350 Cleveland, Ohio 44131

For Bureau of Workers’ Compensation

Mike DeWine Ohio Attorney General

BY: Nancy Q. Walker Assistant Attorney General 615 Superior Avenue, 11th Floor Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Plaintiff-appellant, Carol Ford (“Ford”), appeals the denial of two motions to

exclude evidence at trial. She assigns the following two assignments of error:

1. The trial court erred in denying appellant’s motion to exclude Dr. Fortgang’s Age of Injury Analysis Report.

2. The trial court erred in denying appellant’s motion in limine to exclude any evidence relating to plaintiff’s separate workers’ compensation claims.

{¶2} We find no merit to the appeal, and affirm the trial court’s judgment.

I. Facts and Procedural History

{¶3} Ford was working as a state trained nursing assistant (“STNA”) on July 18, 2011,

when she suffered an injury to her lower back while moving a heavy patient. The injury

occurred while Ford was acting within the course and scope of her employment with

defendants-appellees, Sunbridge Care Enterprises (“Sunbridge”), and Ford submitted a workers’

compensation claim. The Industrial Commission allowed a claim for lumbar sprain, but

disallowed Ford’s additional claims for two herniated discs located at L3-4 and L4-5.

Consequently, Ford filed this administrative appeal of the Industrial Commission’s final order to

the Cuyahoga County Court of Common Pleas.

{¶4} Prior to trial, Ford filed two motions in limine to exclude (1) evidence of her

previous workers’ compensation claims, and (2) a medical report completed by Dr. Kenneth

Fortgang (“Dr. Fortgang”). Ford sought to exclude evidence of her prior workers’ compensation

claims pursuant to Evid.R. 401, 402, and 403. She argued that because the sole issue for trial

was whether her two herniated discs were related to her July 18, 2011 work injury, her prior

workers’ compensation claims were irrelevant. {¶5} With respect to the second motion in limine, Ford sought to exclude an “Age of

Injury Analysis Report” authored by one of Sunbridge’s experts, Dr. Fortgang. Dr. Fortgang

based the Age of Injury Analysis Report on a Magnetic Resonance Image (“MRI”) of Ford’s

spine. He concluded in the report that the herniated discs at L3-4 and L4-5 existed before the

July 18, 2011 injury and were either congenital or developmental abnormalities “exacerbated by

degenerative changes.” Ford argued that Dr. Fortgang’s Age of Injury Analysis Report was

hearsay and did not fall within any exceptions to the hearsay rule. Ford also argued that Dr.

Fortgang’s report contained an expert opinion. Dr. Fortgang did not testify at trial.

{¶6} The trial court denied both motions without opinion. After hearing all the evidence,

the jury returned a verdict in favor of Sunbridge. Ford now appeals the denial of her motions in

limine.

II. Law and Analysis

A. Standard of Review

{¶7} A trial court is vested with broad discretion in determining the admissibility of

evidence so long as such discretion is exercised in compliance with the rules of procedure and

evidence. Rigby v. Lake Cty.,

,

(1991). We therefore

review the trial court’s judgments on Ford’s motions in limine for an abuse of discretion.

B. Age of Injury Analysis Report

{¶8} In her first assignment of error, Ford argues the trial court erred in denying her

motion to exclude evidence of Dr. Fortgang’s Age of Injury Analysis Report. She contends the

report is inadmissible hearsay because it was not created “for the purposes of medical diagnosis

and treatment” and does not fall within any exceptions to the hearsay rule. {¶9} “‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R.

801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls within one of the

exceptions listed in Evid.R. 803.1

{¶10} Dr. Fortgang did not testify at trial and was not subject to cross-examination. Yet,

Sunbridge offered his Age of Injury Analysis Report to prove the matter asserted therein, i.e., that

Ford’s herniated discs existed prior to the work-related injury she sustained on July 18, 2011.

Thus, Dr. Fortgang’s report is a classic example of hearsay.

{¶11} Ford argued at trial that not even Evid.R. 803(4), which makes exceptions for

certain medical records, was applicable to Dr. Fortgang’s report. Evid.R. 803(4) provides a

hearsay exception for statements made for the “purposes of medical diagnosis or treatment.”

Ford argued that Dr. Fortgang did not make his report for purposes of diagnosis or treatment.

Indeed, Dr. Fortgang states in the first paragraph that he created his “consultative report”

pursuant to “an aging request,” and that “[i]t was not meant to be utilized or interpreted for

treatment purposes.”

{¶12} Sunbridge argues that because Ford did not object to the report on grounds that the

report was not authenticated or that there was no foundation laid for the evidence, Ford waived

any error in the admission of the report on those grounds. Sunbridge cites Smith v. Dillard’s

Dept. Stores, 8th Dist. Cuyahoga No. 75787,

(Dec. 14, 2000), in

support of this argument.

1 Evid.R. 802 also provides that hearsay may be admissible pursuant to an applicable statutory or constitutional provision, but none were raised in this case. {¶13} In Smith, we held that a claimant’s expert could testify about other doctors’

opinions contained in medical reports because the reports fell within the hearsay exception

provided in Evid.R. 803(6). Evid.R. 803(6) provides the “business records exception” to the

hearsay rule and states that the following records are not excluded by the hearsay rule:

memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

{¶14} Although Dr. Fortgang’s Age of Injury Analysis Report does not identify who

requested it, the report, which consists of three short paragraphs, is limited to Dr. Fortgang’s

opinion that Ford’s herniated discs existed prior to her July 18, 2011 work injury. As previously

stated, the report clearly states that it is not meant to be used for purposes of medical treatment

and that it was made pursuant to an “aging request.” Therefore, the report was not created in the

regularly conducted business of diagnosing or treating a patient, and a reasonable inference may

be made that Dr. Fortgang made the Age of Injury Analysis Report solely for purposes of this

litigation. And since Dr. Fortgang was not available for cross-examination, the report was

inadmissible.

{¶15} Further, there is no evidence in the record demonstrating that Dr. Fortgang was

qualified to offer an expert opinion before his opinion was admitted into evidence. That is,

Sunbridge did not lay a proper foundation for the admission of Dr. Fortgang’s expert opinion as

required by Evid.R. 702. {¶16} Sunbridge nevertheless argues that Ford is estopped from claiming error in the

admission of the report into evidence because she failed to specifically object to its lack of

authentication or foundation. Evid.R. 103(A)(1) provides, in part, that an error may not be

predicated on the admission or exclusion of evidence unless (1) a substantial right of the party is

affected, and (2) “timely objection or motion to strike appeal of record stating the specific ground

of objection, if the specific ground was not apparent from the context.”

{¶17} Ford filed a motion in limine to exclude Dr. Fortgang’s Age of Injury Analysis

Report, arguing that the report was hearsay and did not fall within any exceptions to the hearsay

rule. At trial, Ford’s counsel renewed her objection and argued:

Dr. Fortgang’s MRI, Age of Injury Analysis [r]eport that was brought up on opening. I believe that it’s hearsay under Evidence Rule 801, with no hearsay exception applying. And I also believe that it’s expert witness testimony. It offers an opinion that was not made just for the purpose of treatment or diagnosis. Dr. Fortgang opines the cause of the disc herniations and I would like to note my objection about that report and do not believe its’ admissible, because it’s hearsay.

{¶18} Although counsel did not expressly use the terms “foundation” or “authentication,”

both of these concepts are apparent from the context of her argument. Counsel’s objection on

grounds that the report contained an expert opinion implicitly includes an analysis of the criteria

necessary for the admission of expert testimony, including the foundational requirements listed in

Evid.R. 702 and 705. As previously stated, counsel’s argument that the report was not made for

purposes of diagnosis and treatment suggests it was not made in the regular course of the

business of a treating physician and constitutes inadmissible hearsay. Therefore, the trial court

erred in admitting Dr. Fortgang’s Age of Injury Analysis Report into evidence.

{¶19} We nevertheless find the trial court’s error harmless. A court’s error may be

considered harmless if it does not affect the substantial rights of the parties. Cappara v. Schibley,

,

(1999). In this case, the admission of Dr.

Fortgang’s report into evidence was harmless because it was cumulative to other admissible

evidence.

{¶20} Dr. Erickson discussed Dr. Fortgang’s report, but did not rely on it to form his own

expert opinion. Before mentioning Dr. Fortgang’s Age of Injury Analysis Report, Dr. Erickson

described the picture presented by the MRI as “a picture of preexisting degenerative disc disease

and degenerative arthritis in the lumbar spine involving those levels that are [in] question, L3-4

and L4-5.”

{¶21} During direct examination, defense counsel commented that the MRI was

conducted less than three months after Ford’s work-related injury, and asked if the conditions

seen in the MRI could develop in three months’ time. Dr. Erickson replied, “No, no, no, no.

These conditions are longstanding. These conditions take years to develop.” (Tr. 30.) After

providing his own professional expert opinion, Dr. Erickson discussed Dr. Fortgang’s report and

indicated that Dr. Fortgang’s aging study was “consistent” with his own opinion. (Tr. 37.)

There is no evidence that Dr. Erickson relied on Dr. Fortgang’s report in rendering his own

expert opinion. Therefore, Dr. Fortgang’s opinion that Ford’s herniated discs existed prior to

her July 18, 2011 injury was cumulative and did not change the outcome of the trial.

{¶22} Accordingly, the first assignment of error is overruled.

C. Prior Workers’ Compensation Claims

{¶23} In the second assignment of error, Ford argues the trial court erred in allowing

Sunbridge to introduce evidence of her prior workers’ compensation claims. She contends the

admission of this evidence was not relevant to the issues in the case and was unfairly prejudicial. {¶24} Ford filed a motion in limine, pursuant to Evid.R. 403(A), to exclude evidence of

her prior workers’ compensation claims, arguing that any probative value in the evidence was

substantially outweighed by unfair prejudice. Evid.R. 403(A) provides that “[a]lthough relevant,

evidence is not admissible if its probative value is substantially outweighed by the danger of

unfair prejudice, of confusion of the issues, or of misleading the jury.”

{¶25} However, perhaps for strategic reasons, Ford’s counsel did not renew her objection

to Ford’s prior claims at trial. A party’s failure to renew a pretrial objection to the presentation

of evidence during trial waives all but plain error. State v. Diar,

,

,

(Defendant waived all but plain error by failing to renew

objections to the introduction of “other acts” testimony at trial following a ruling on a motion in

limine.). The plain error doctrine is applicable in civil cases only where the error “seriously

affects the basic fairness, integrity, or public reputation of the judicial process.” Goldfuss v.

Davidson,

,

(1997), syllabus.

{¶26} In response to Ford’s motion in limine, Sunbridge argued that evidence of Ford’s

prior workers’ compensation claims was admissible because Ford denied having any prior low

back injuries when she sought treatment from Dr. Stern. Indeed, Dr. Stern based his opinion

that Ford’s herniated discs were acute injuries sustained during the July 18, 2011 work-related

incident, in part, on his belief that Ford had no prior low back problems. Dr. Stern might have

reached a different conclusion had he known that Ford had prior back injuries. Ford also reported

to Sunbridge’s independent medical examiner that she had no prior back injuries.

{¶27} The probative value of Ford’s misrepresentations regarding her prior history of

back injuries outweighed the danger of unfair prejudice because this evidence was necessary to

show that Ford’s expert’s opinion was not based on all the relevant facts. Although the evidence was prejudicial to her claims, Ford caused the defendant’s need to introduce the evidence by

failing to provide an accurate medical history to her treating and evaluating physicians. Without

evidence of Ford’s misrepresentations, the jury would not have known that Ford’s own medical

expert lacked relevant information in determining whether Ford’s herniated discs pre-existed her

July 18, 2011 injury. Under these circumstances, we cannot say that the admission of Ford’s

workers’ compensation claims constituted plain error.

{¶28} The second assignment of error is overruled.

III. Conclusion

{¶29} Although the trial court erred in allowing Sunbridge to introduce Dr. Fortgang’s

Age of Injury Analysis Report into evidence, the error was harmless because the report was

cumulative to other evidence and did not affect the outcome of the trial. Evidence of Ford’s

prior workers’ compensation claims was admissible because it was necessary to show that Ford’s

expert opinion was not based on all the relevant facts.

{¶30} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the 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.

EILEEN T. GALLAGHER, JUDGE ANITA LASTER MAYS, J., CONCURS; MARY EILEEN KILBANE, P.J., DISSENTS WITH SEPARATE OPINION

MARY EILEEN KILBANE, P.J., DISSENTING:

{¶31} I respectfully dissent. I would conclude that the trial court committed prejudicial

error in denying Ford’s motion in limine to exclude Dr. Fortgang’s Age of Injury Analysis

Report, and in denying Ford’s motion in limine to exclude evidence of her prior workers’

compensation claims. I would reverse and remand for a new trial.

{¶32} With regard to admission of Dr. Fortgang’s Age of Injury Analysis Report,

Sunbridge offered the report to prove the truth of the matter asserted therein, because he

indicated that her L3-4 and L4-5 discs “have been abnormal for an extended period of time,

greatly exceeding the time frame of three months.” He did not testify and was not subject to

cross-examination. The report is hearsay.

{¶33} I would also conclude that the report is not admissible pursuant to Evid.R. 803(4)

because Dr. Fortgang indicated that the report was a “consultative report,” “based upon initial

interpretation provided,” and “is not meant to be utilized or interpreted for treatment purposes.”

Therefore, the report was not “reasonably pertinent to diagnosis or treatment” as required under

Evid.R. 803(4). I would also conclude that it was not admissible under Evid.R. 803(6) because

it was prepared at the request of Sunbridge’s attorneys for purposes of litigation only and was not

as a business record.

{¶34} The majority acknowledges that the report was not admissible but concludes that

its admission was harmless. I do not agree, as it was repeatedly mentioned during trial and was

discussed by Sunbridge’s expert, Dr. Erikson, who stated that Dr. Fortgang’s report was

consistent with his own opinion. {¶35} With regard to the admission of Ford’s prior workers’ compensation claims,

evidence is considered relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” Evid.R. 401. Nevertheless, even relevant evidence “is not admissible

if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion

of the issues, or of misleading the jury.” Evid.R. 403(A). Further, relevant evidence “may be

excluded if its probative value is substantially outweighed by considerations of undue delay, or

needless presentation of cumulative evidence.” Evid.R. 403(B).

{¶36} Here, Sunbridge was permitted to advise the jury in opening argument that Ford

had made prior injury claims from 1988 through 2001. Sunbridge then introduced evidence

concerning Ford’s 1988 claim for a lumbar sprain; a 1994 claim for a muscle spasm; a 1997

claim for a thoracic sprain, with a disallowed component for lumbar sprain; a 1998 claim for a

leg contusion; a 1999 claim for a dislocated shoulder, shoulder sprain and lumbrosacral sprain;

2000 claim for a thoracic sprain; and 2001 claim for lumbar sprain. I would conclude that the

minimal probative value of this evidence was outweighed by its extremely prejudicial and

inflammatory effect.

{¶37} I would conclude that this evidence did not have the tendency to make the crucial

disputed fact of Ford’s right to workers’ compensation benefits more probable or less probable

than it would be without this evidence under Evid.R. 401. Approximately half of these claims

do not even pertain to the lumbar region, and there is no indication that they address the disc

herniations at the core of Ford’s case, or the degenerative changes at the core of Sunbridge’s

case. Though a substantial amount of other acts evidence was presented, it was, at best,

minimally probative. {¶38} I would additionally conclude that under Evid.R. 403, the intended probative value

of this evidence was substantially outweighed by the danger of unfair prejudice, of confusion of

the issues, and its tendency to mislead the jury. It is important to bear in mind that Ford was

required to prove her claim in this matter by a mere preponderance of the evidence, not beyond

all doubt. In addition, the testimony plainly indicated that an individual with a low-back sprain

can have a new unrelated injury years later. Further, the record indicates that the latest claim,

the 2001 claim for a low-back sprain, was resolved without ongoing treatment. Indeed, Ford

testified that she did not have ongoing problems and did not receive ongoing treatment from the

earlier claims. Moreover, the quantity of this evidence, especially in light of its marginal

probative value, created the possibility of inflaming the jury and prejudicing Ford’s case. This

evidence had the danger of creating the impression that Ford is a chronic complainer, despite the

fact that she has a very physically demanding job, and the claims extend over a 25-year period.

{¶39} The majority concludes that Ford “caused the defendant’s need to introduce this

evidence by failing to provide an accurate medical history.” Neither witness retained by

Sunbridge opined that the prior claims caused the present lumbar 3-4 disc herniations or lumbar

4-5 disc herniations at issue herein, however. To the contrary, Sunbridge’s expert, Dr.

Erickson, stated that “it doesn’t matter” that Ford had prior workers’ compensation claims

regarding her lower back because this fact would not change his opinion that the injury was

simply degenerative. In addition, in his initial assessment, Dr. Stern opined that the disc

herniations were related to the 2011 injury.

{¶40} I would conclude that the challenged evidence was inadmissible and prejudiced

Ford’s trial on the issue of her right to participate in the workers’ compensation fund for

herniated discs L3-4 and L4-5. I would reverse and remand for a new trial.