Bogdanov v. Ahres

2021 Ohio 1322

• Court: Ohio Court of Appeals
• Decided: April 16, 2021
• Docket: C-190660
• Status: Published

Opinion

[Cite as Bogdanov v. Ahres, 2021-Ohio-1322.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

VLADIMIR BOGDANOV, : APPEAL NO. C-190660 TRIAL NO. A-1704199 Plaintiff-Appellant, :

: O P I N I O N. vs. :

SOFIANE AHRES, :

and :

LM GENERAL INSURANCE : COMPANY, : Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 16, 2021

Mezibov Butler, Brian J. Butler, Susan L. Butler, and Daniel J. Treadaway, for Plaintiff-Appellant,

Patsfall, Yeager & Pflum, Stephen J. Patsfall, for Defendant-Appellee Sofiane Ahres,

Law Offices of Raymond H. Decker, Jr., Molly Vance, for Defendant-Appellee LM General Insurance Company. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Presiding Judge.

{¶1} In this case arising out of a fender-bender, plaintiff-appellant

Vladimir Bogdanov sued the other driver, claiming that the accident caused a disc

herniation in his lower back. Despite admitting liability, the other driver contested

whether the accident actually caused any injuries, offering up an expert to dispute

causation. The case proceeded to trial and the jury found for the defendant. On

appeal, Dr. Bogdanov faults the expert’s testimony as tainted by hearsay (after the

expert referenced unnamed medical studies) as well as permeated by leading

questions. After reviewing this testimony in detail, however, we conclude that the

trial court did not abuse its discretion in permitting the expert’s testimony. We

accordingly affirm the trial court’s judgment.

I.

{¶2} Dr. Bogdanov (the plaintiff is a medical doctor) was driving near his

home when he and defendant-appellee Sofiane Ahres ran into each other in a slow-

speed collision, with both drivers traveling about 5-10 miles per hour. Neither party

complained of any injury at the scene, and Dr. Bogdanov drove his vehicle back home

afterwards.

{¶3} A couple of years later, however, Dr. Bogdanov sued Mr. Ahres for

physical injury, alleging that the accident caused a disc herniation in his lower back.

Although waiting quite a while to pursue his claim, Dr. Bogdanov testified that he

began experiencing low back pain within a few days of the accident. To substantiate

his testimony, he explained that he visited an orthopedic surgeon shortly after the

accident, and that a subsequent MRI revealed a herniated disc in his lower back.

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{¶4} For his part, Mr. Ahres did not contest liability for the accident—

perhaps because his car ran into Dr. Bogdanov’s. He did, however, dispute whether

the accident caused any back injury. Mr. Ahres presented evidence that Dr.

Bogdanov suffered from a long history of back problems, along with consuming

Tramadol for years to manage the pain. Additionally, the MRI showing the disc

herniation also revealed that Dr. Bogdanov had scoliosis, which can cause low back

pain and other problems. Tying all of these threads together, Mr. Ahres’s expert, Dr.

Steven Wunder, assured the jury that this type of low-impact, T-bone collision could

not have caused the disc herniation.

{¶5} In response, Dr. Bogdanov conceded that he had chronic back pain.

But he insisted that his pain had previously been limited to his mid-back region. He

also produced his own expert, who verified that the accident likely caused the

herniated disc. Somewhat predictably, the trial devolved into a battle of the experts

on the question of causation, and the jury sided with Mr. Ahres’s expert, rendering a

defense verdict.

{¶6} On appeal, Dr. Bogdanov marshals two assignments of error, focusing

his attention on the testimony of Dr. Wunder. Dr. Bogdanov first takes issue with a

reference the expert made to unnamed studies, criticizing this as inadmissible

hearsay. Second, Dr. Bogdanov attacks the pervasive use of leading questions by

counsel as he questioned Dr. Wunder. We address each assignment of error in turn.

II.

{¶7} In his first assignment of error, Dr. Bogdanov complains that the trial

court abused its discretion in allowing Dr. Wunder to reference unnamed studies to

support his opinion. More specifically, he maintains that Dr. Wunder injected

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inadmissible hearsay when he commented: “So the scientific studies would show

that—a hundred percent—that there’s no way that this type of [T-bone] accident

would cause a disc herniation. As I said before, the vertebrae will fracture before the

disc ruptures.”

{¶8} If the expert’s statement constituted hearsay (as Dr. Bogdanov claims),

it would be inadmissible unless some other law or rule specifically provided

otherwise. Evid.R. 802. As relevant here, only one exception potentially applies—

the learned treatise exception for expert witnesses. See Evid.R. 803(18). That

exception provides that “statements contained in published treatises” are not

excludable on hearsay grounds if they are “established as a reliable authority.” Id.

And although that standard of admissibility is low, the trial court has discretion to

determine whether a treatise is reliable. See Beard v. Meridia Huron Hosp., 106

Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, ¶ 20 (“Decisions regarding the

admissibility of evidence are within the broad discretion of the trial court.”); Staff

Note to Evid.R. 803 (“The rule applies only to a learned treatise found by the judge

to be a ‘reliable authority’ under Evid.R. 104(A).”); Bradley v. Ohio Dept. of Transp.,

10th Dist. Franklin Nos. 11AP-409 and 11AP-410, 2012-Ohio-451, ¶ 23 (“According to

Evid.R. 803(18), an expert witness need only testify that a learned treatise is a

reliable authority for a court to admit statements from that treatise.”). We can easily

dispense with this exception because the defense never laid the requisite foundation

for admissibility of any learned treatise. Thus, the trial court was within its

discretion to not apply the learned treatise exception. As a result, we must determine

whether the trial court abused its discretion in finding Dr. Wunder’s statement not

hearsay. See State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508,

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¶ 97 (“Ordinarily, we review a trial court’s hearsay rulings for an abuse of

discretion.”).

{¶9} “Hearsay” is any “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). And in applying this rule to an expert’s reference

to medical studies, we find the Ohio Supreme Court’s decision in Beard v. Meridia

Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, instructive. In

Beard, the court held that “an expert witness may testify that his or her opinions are

based, in part, on a review of professional literature.” Id. at ¶ 1. And in explaining

that holding, the court gave this oft-quoted explanation:

There is a difference between a witness’s referring to specific

statements in professional literature as substantive evidence and an

expert witness’s referring to the literature as being part of the basis for

that expert’s opinion. While the former reference would be

inadmissible hearsay, numerous courts in Ohio have held that the

latter reference is admissible. We agree with the decisions in those

cases.

(Emphasis deleted.) Id. at ¶ 24.

{¶10} The expert in Beard offered two opinions that were at issue: (1) that a

surgeon had satisfied the requisite standard of care; and (2) that the patient’s white-

blood-cell count was high enough for the surgeon to operate. Id. at ¶ 28, 30. In the

first opinion about the standard of care, the expert explained that his opinion aligned

with findings “documented in the medical and surgical literature.” Id. at ¶ 28. And

the court found no flaw with this comment because the surgeon did not offer a

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statement from the literature for its truth: “indeed, [the surgeon] did not offer any

statement from the literature for any purpose.” (Emphasis deleted.) Id. However,

the court found the surgeon’s second opinion “more problematic.” Id. at ¶ 32. The

surgeon specifically stated that surgery was appropriate because the medical

literature indicated that surgery is safe when the white-blood-cell number exceeds

1,000. Id. at ¶ 31. This second statement triggered concerns because the surgeon

“was apparently offering a statement from the literature.” (Emphasis deleted.) Id. at

¶ 32. But even so, the Supreme Court determined that the trial judge acted within its

discretion in allowing the testimony, for three reasons: (1) the surgeon did not

provide precise statements from the literature; (2) the surgeon merely referred to the

literature’s conclusions to “explain[] the basis” for his opinion; and (3) the expert

clarified “that the literature provided only a partial basis for his opinion.” (Emphasis

deleted.) Id.

{¶11} We acknowledge that Dr. Wunder’s statement in this case probably

falls closer to the latter statement at issue in Beard than the former. The expert

appeared to summarize the findings of the unnamed studies as he wrapped up his

conclusion by indicating that they “show that—a hundred percent—that there’s no

way that this type of [T-bone] accident would cause a disc herniation.” At the same

time, the guidance from Beard convinces us that the trial court did not abuse its

discretion. First, like in Beard, Dr. Wunder did not provide any precise statement

from the studies. He merely indicated that “the scientific studies would show” that

this accident could not have caused Dr. Bogdanov’s injury. Second, just as in Beard,

the overall context of Dr. Wunder’s testimony confirms that he mentioned these

studies in order to provide justification for his own opinion. This disputed reference

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represented just a small excerpt from the expert’s fairly extensive testimony detailing

the lack of any causative mechanism for Dr. Bogdanov’s injury. Finally, the expert

similarly clarified that he offered his opinion based upon his “education, training,

and experience and [] independent medical examination.” Viewed in the context of

his entire testimony, it is apparent that the medical studies represented but a part of

the fabric of Dr. Wunder’s opinion, rather than a concrete basis for it. Consistent

with the analysis in Beard, we cannot find an abuse of discretion on this record. We

would also note that Dr. Bogdanov’s attorney had every opportunity to challenge the

expert’s reference to the unnamed studies on cross-examination, but elected not to.

For all of the reasons above, we conclude that the trial court did not abuse its

discretion and overrule Dr. Bogdanov’s first assignment of error.

III.

{¶12} In his second assignment of error, Dr. Bogdanov argues that the trial

court abused its discretion in allowing defense counsel to utilize a blizzard of leading

question when examining Dr. Wunder. Evidence Rule 611(C) provides: “Leading

questions should not be used on the direct examination of a witness except as may be

necessary to develop the witness’ testimony.” Nonetheless, “[t]he trial court has

discretion to permit leading questions on direct examination.” State v. Lee, 1st Dist.

Hamilton No. C-160294, 2017-Ohio-7377, ¶ 20.

{¶13} Although Dr. Bogdanov proclaims that 70 instances of leading

questions saturated the record, he only identifies three sets of questions with any

specificity in his appellate brief. Therefore, we confine our review to this trio of

questions, and we decline the invitation to scour the record for the other questions or

to speculate on their prejudicial effect. See id. at ¶ 21 (refusing a leading question

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argument because the appellant “ha[d] not analyzed any specific questions or

explained how he was prejudiced.”), citing McKelton, 148 Ohio St.3d 261, 2016-

Ohio-5735, 70 N.E.3d 508, at ¶ 264 (rejecting a misleading question argument

because the defendant “[did] not analyze any specific questions asked or how they

prejudiced him.”). The parties also debate whether objections to these questions

were properly preserved, but we’ll assume for sake of argument that they were.

Therefore, we review these matters for abuse of discretion.

{¶14} In the first set of questions, defense counsel asked the following:

And, in fact, there’s quite a number of plaintiffs’ attorneys that think so

highly of your ability and your credibility that they hire you as well. Is

that correct?

****

In fact, Doctor, there are only a select number of doctors in the area

who have the education, training and experience and credentials to do

quality independent medical examination?

And, Doctor, are independent medical examinations customary and

necessary in the medical and legal communities?

{¶15} Unfortunately, Dr. Bogdanov does little more than identify these as

leading questions, perhaps indirectly claiming prejudice because the leading

question bolstered the expert’s credibility. However, in reviewing his objection, the

trial court explained: “He’s a frequent expert witness here, and I’d have to say that

based on my own personal knowledge of Dr. Wunder, he does have the ability to

testify as to what, how important [independent medical examinations] are to the

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legal community because that’s all he does.” Furthermore, we fail to see how this

type of routine witness-credentialing affected the trial in any way. Parties routinely

highlight the qualifications and backgrounds of their experts. Thus, we decline to

find that the trial court abused its discretion in permitting this first set of questions.

{¶16} The remaining two sets of questions occurred as defense counsel

highlighted Dr. Bogdanov’s history with back pain. Defense counsel first queried:

And [Dr. Bogdanov] had his chronic low back pain even before he

moved to Cincinnati, correct?

{¶17} The attorney then later followed up:

There’s no indication in [the opposing expert’s] report that [Dr.

Bogdanov] was taking Tramadol pain medication for back problems

before the accident, correct? * * * And Doctor, that would be an

inaccurate history as well, correct?

{¶18} Dr. Bogdanov argues that these two sets of questions unfairly

discredited him—and his own expert—by portraying them as dishonest. But the facts

that Dr. Bogdanov had previously experienced back pain, and that he had taken

Tramadol, had already been well-established. And if the leading question prompted

the expert to overstep, cross-examination surely could have cured any exaggeration

(which might have damaged the expert’s own credibility). In any event, we fail to see

how allowing these two leading questions constituted an abuse of discretion given

the entire record of the trial, nor do we see any prejudicial impact from them that

might command reversal. We therefore overrule Dr. Bogdanov’s second assignment

of error.

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* * *

{¶19} In light of the foregoing analysis, we overrule both of Dr. Bogdanov’s

assignments of error and affirm the judgment of the trial court.

Judgment affirmed.

WINKLER and BOCK, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion