Chambers v. Lee

2014 Ohio 4651

Opinion

[Cite as Chambers v. Lee, 2014-Ohio-4651.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

RASHANDA CHAMBERS, et al. C.A. No. 27239

Appellees

v. APPEAL FROM JUDGMENT ENTERED IN THE JESSICA L. LEE, et al. AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 12 CVE 04202

DECISION AND JOURNAL ENTRY

Dated: October 22, 2014

HENSAL, Judge.

{¶1} Appellant, Jessica L. Lee, appeals orders from the Akron Municipal Court that

limited the questioning of Appellees’ medical expert. This Court affirms.

I.

{¶2} Appellees, Rashanda Chambers and Dominic Woods, sued Ms. Lee for injuries

they sustained in a car accident.1 Appellees received chiropractic treatment for their injuries

from Dr. Minas Floros at Akron Square Chiropractic. After Ms. Chambers, Mr. Woods, and Dr.

Floros were deposed, the Appellees filed a motion in limine to exclude any testimony or

evidence concerning the fact that the Appellees were solicited by chiropractors and attorneys

after the accident. Ms. Lee opposed the motion arguing that such evidence was necessary to

expose bias and a pecuniary interest between the Appellees, their attorney, and Dr. Floros. Ms.

Lee also filed a separate motion to strike Dr. Floros’s testimony on the basis that it was

1 The suit was brought on behalf of Mr. Woods by his parent and natural guardian, Carla Brown. 2

unresponsive and contained inappropriate references to nonrelevant matters. Appellees opposed

Ms. Lee’s motion and moved to strike her cross-examination of Dr. Floros arguing that it elicited

irrelevant testimony that was designed to annoy, harass, and oppress him.

{¶3} On September 18, 2012, the trial court issued an order granting in part and

denying in part each of the motions. It found that testimony concerning Akron Square

Chiropractic’s general marketing practices and referrals to legal counsel was unduly prejudicial,

could mislead the jury, and that the danger of unfair prejudice outweighed the probative value of

the evidence. The trial court did, however, permit testimony about how Akron Square

Chiropractic contacted Appellees, their arrangement with Appellees for payment of the services

rendered, and how Appellees were referred to legal counsel. The trial court also struck Ms.

Lee’s cross-examination of Dr. Floros at deposition and ordered her to cross-examine Dr. Floros

again in accordance with its order.

{¶4} After Dr. Floros’s second deposition was filed in the record, the trial court sua

sponte issued a journal entry on January 23, 2013, ordering redactions of his testimony in

accordance with its September 18, 2012, order. It held that the redactions were necessary so that

the jury would be neither mislead nor confused as to the issues. Prior to the start of trial, Ms.

Lee proffered the disputed testimony and requested that the court reconsider its prior order

prohibiting the evidence. The court denied Ms. Lee’s motion. The matter proceeded to trial

wherein Dr. Floros’s redacted video depositions were played to the jury. The jury returned a

verdict for the Appellees. Ms. Lee appeals the trial court’s orders of September 18, 2012, and

January 23, 2013, raising one assignment of error. 3

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN PRECLUDING TESTIMONY OF MINAS FLOROS, D.C. CONCERNING THE MARKETING PRACTICES OF AKRON SQUARE CHIROPRACTIC AND THE SYMBIOTIC RELATIONSHIP BETWEEN AKRON SQUARE CHIROPRACTIC AND PLAINTIFFS’ COUNSEL * * *.

{¶5} Ms. Lee argues in her sole assignment of error that the trial court abused its

discretion by prohibiting Dr. Floros from testifying about Akron Square Chiropractic’s

marketing practices and its referrals to the law firm that represented the Appellees. She

maintains that this testimony was necessary to establish that Dr. Floros was biased and had a

pecuniary interest in the outcome of the litigation. We disagree.

{¶6} The trial court precluded Dr. Floros’s testimony pursuant to Evidence Rule

403(A), which states 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.” “[T]he trial court is vested with broad discretion and an appellate court

should not interfere absent a clear abuse of that discretion.” State v. Yarbrough, 95 Ohio St.3d

227, 2002-Ohio-2126, ¶ 40, quoting State v. Allen, 73 Ohio St.3d 626, 633 (1995). An abuse of

discretion “implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “But the exclusion of relevant evidence

under Evid.R. 403(A) is even more of a judgment call than determining whether the evidence has

logical relevance in the first place.” Yarbrough at ¶ 40. An appellate court may not substitute its

judgment for that of the trial court when applying the abuse-of-discretion standard. Berk v.

Matthews, 53 Ohio St.3d 161, 169 (1990).

{¶7} Evidence Rule 611(B) permits cross-examination on all matters that are relevant

and that affect credibility. Further, “[b]ias, prejudice, interest, or any motive to misrepresent 4

may be shown to impeach the witness either by examination of the witness or by extrinsic

evidence.” Evid.R. 616(A). “Thus, Evid.R. 611 and 616, by specifically mentioning credibility,

bias, and prejudice as appropriate subjects of cross-examination, are a testament to the inherent

probative value of such evidence. Evid.R. 403 seeks to eliminate the potential for prejudice of

certain evidence by prohibiting its use in certain circumstances.” Oberlin v. Akron Gen. Med.

Ctr., 91 Ohio St.3d 169, 171 (2001).

{¶8} “Admissibility under Evid.R. 403(A) turns on the balance of the evidence’s

probative value as compared to the danger of unfair prejudice that it presents.” Haynal v.

Nordonia Hills City School Dist. Bd. of Edn., 9th Dist. Summit No. 25242, 2011-Ohio-3191, ¶

13. “[T]he ‘probative value [of evidence] must be minimal and the prejudice great before the

evidence may be excluded [under Evid.R. 403].’” Id., quoting State v. Morales, 32 Ohio St.3d

252, 258 (1987).

Exclusion on the basis of unfair prejudice involves more than a balance of mere prejudice. If unfair prejudice simply meant prejudice, anything adverse to a litigant’s case would be excludable under Rule 403. Emphasis must be placed on the word “unfair.” Unfair prejudice is that quality of evidence which might result in an improper basis for a jury decision. Consequently, if the evidence arouses the jury’s emotion sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence may be unfairly prejudicial. Usually, although not always, unfairly prejudicial evidence appeals to the jury’s emotions rather than intellect.

Oberlin at 172, quoting Weissenberger, Ohio Evidence, Section 403.3, 85-87 (2000).

{¶9} The trial court in its September 18, 2012, order limiting Dr. Floros’s testimony on

the general marketing and referral efforts of Akron Square Chiropractic concluded that such

evidence failed to establish either bias or a pecuniary interest in the litigation. The Ohio

Supreme Court has held that certain evidence concerning an expert’s potential bias or prejudice

is probative and admissible. In Ede v. Atrium S. OB-GYN, Inc., 71 Ohio St.3d 124 (1994), the

Supreme Court held that “evidence of a commonality of insurance interests between a defendant 5

and an expert witness is sufficiently probative of the expert’s bias as to clearly outweigh any

potential prejudice evidence of insurance might cause.” Id. at the syllabus. In Oberlin, the

Supreme Court held that evidence an expert witness is the subject of a pending malpractice

action involving a similar error is probative to prove bias and prejudice. Oberlin at the syllabus.

{¶10} Appellants cite to several decisions from our sister districts that allowed the

admission of evidence concerning potential witness bias or self-interest. In House v. Swann, 6th

Dist. Lucas No. L-09-1232, 2010-Ohio-4704, the appellate court affirmed the trial court’s

decision to allow the defendant to cross-examine the plaintiff’s medical expert on several matters

affecting his credibility and pecuniary interest in the litigation, including evidence that he

participated in a website designed to generate medical malpractice referrals for himself and his

attorney-son. Id. at ¶ 30-31. In Susanu v. Cliche, 143 Ohio App.3d 776 (8th Dist.2001), the

appellate court affirmed the trial court’s decision to deny a motion in limine filed by the

plaintiffs that sought to preclude the defendant from asking their medical expert in a personal

injury case how the plaintiffs in that case were referred to his office. Id. at 780. Similarly to this

case, the defendant in Susanu sought to show an interdependent relationship between the treating

physician and plaintiffs’ counsel that suggested a medical bias which resulted in over-treatment

and inflated damages. Also similar to this case, the Eighth District noted that several appeals to

their court involved the same scenario in Susanu wherein attorneys for the accident victims

referred their clients to the same medical office. The court concluded that inquiry into the

relationship between the medical expert and plaintiffs’ counsel was a valid basis for

impeachment as it pertained to the treating physician’s pecuniary interest in prolonging treatment

resulting in inflated damages. Id. 6

{¶11} Even if Ms. Lee is correct that the excluded testimony suggested that Dr. Floros

was biased or had a pecuniary interest in the outcome of the case, the crucial question is whether

the evidence of bias is unfairly prejudicial. Oberlin, 91 Ohio St.3d at 173. The trial court found

that the challenged evidence was unfairly prejudicial to the Appellees as it would tend to mislead

the jury. Ms. Lee argues that, because Dr. Floros’s testimony was vital to the Appellees’ case in

establishing their claim for damages, it was not unfairly prejudicial to them to question his

credibility and financial interest in the outcome of the litigation.

{¶12} We have reviewed Dr. Floros’s excluded testimony which was given in two video

depositions. He indicated that Akron Square Chiropractic’s marketing and advertisement efforts

are performed by outside companies. Dr. Floros did not testify to any direct knowledge of the

companies’ practices in soliciting clients for Akron Square Chiropractic. He further testified that

he has referred his patients to various law firms in the Akron area, including to the law firm

representing Appellees in this case. When confronted with his testimony in prior cases

concerning the number of referrals to the same law firm, he could not recall giving such

testimony. Dr. Floros admitted that he has provided his patients with the business cards of local

attorneys, which included the law firm representing the Appellees in this case, and contacted the

firms on behalf of his patients. He was unsure how he obtained the business cards to hand out.

Dr. Floros did not recall ever offering one of his patients a legal contingency fee agreement

involving the law firm representing the Appellees.

{¶13} We conclude that the trial court did not abuse its discretion in limiting Dr.

Floros’s testimony on the general marketing and referral practices of Akron Square Chiropractic.

We note that the trial court did not exclude all evidence on the disputed topics, but rather, in its

discretion, limited the testimony to these specific Appellees. Accordingly, the jury did hear and 7

was able to evaluate Ms. Chambers’, Mr. Woods’, and Dr. Floros’s testimony concerning how

Appellees initiated medical treatment and arranged for legal representation. On matters

concerning the scope of expert witness cross-examination, the Supreme Court has stated that,

[w]e should stress the salient point that we do not hereby create any per se rule with respect to * * * the subject of an expert witness’ bias and financial interest. To the contrary, we hold * * * that the scope of cross-examination of a medical expert on the question of the expert’s bias and pecuniary interest and the admissibility of evidence relating thereto are matters that rest in the sound discretion of the trial court.

Calderon v. Sharkey, 70 Ohio St.2d 218, 224 (1982). While Ms. Lee advocates that the jury

should have heard about other cases involving both Dr. Floros and the Appellees’ legal

representatives, we are not persuaded that the trial court acted in an unreasonable, arbitrary, or

unconscionable manner in limiting Dr. Floros’s testimony to the Appellees’ specific case so as to

avoid potentially misleading the jury. This is especially so because the contested testimony

demonstrates that Dr. Floros had either limited knowledge about the contested topics of cross-

examination or was unable to recall his testimony in the prior cases. Ms. Lee’s assignment of

error is overruled.

III.

{¶14} Ms. Lee’s sole assignment of error is overruled. The orders of the Akron

Municipal Court are affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 8

We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

MOORE, J. CONCURS.

BELFANCE, P. J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

FRANK G. MAZGAJ and EMILY R. YODER, Attorneys at Law, for Appellant.

MARK C. LINDSEY and CHRISTOPHER J. VAN BLARGAN, Attorneys at Law, for Appellees.