Hotz v. Cleveland

2020 Ohio 1383

• Court: Ohio Court of Appeals
• Decided: April 9, 2020
• Docket: 108490
• Status: Published

Opinion

[Cite as Hotz v. Cleveland, 2020-Ohio-1383.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOHN A. HOTZ, :

Plaintiff-Appellant, : No. 108490 v. :

CITY OF CLEVELAND, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 9, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-892886

Appearances:

Nager, Romaine & Schneiberg Co., L.P.A., Jennifer L. Lawther, Daniel A. Kirschner, and Corey J. Kuzma, for appellant.

Dave Yost, Ohio Attorney General, and, Steven K. Aronoff, Assistant Attorney General, for appellee Bureau of Workers’ Compensation.

Barbara A. Langhenry, Cleveland Director of Law, and Lisa A. Mack and Wesley M. Kretch, Assistant Directors of Law, for appellee, City of Cleveland. RAYMOND C. HEADEN, J.:

Plaintiff-appellant John A. Hotz (“Hotz”) appeals from a jury verdict

in favor of appellees city of Cleveland (the “City”) and Bureau of Workers’

Compensation (“Workers’ Comp”). For the reasons that follow, we affirm.

I. Factual and Procedural History

In February 2013, Hotz, a police officer employed by the City, suffered

an injury while handcuffing a suspect. Hotz filed an initial Workers’ Comp

application that was allowed for a left shoulder sprain.

Hotz was diagnosed on March 26, 2013, at Parma Community

General Hospital with left-leg deep-vein thrombosis (“DVT”). Hotz’s DVT was

treated by Dr. Priya Pujara (“Pujara”) in April 2013. Pujara’s records indicate that

the DVT “occurred in [a] setting of acute injury” but do not specifically relate the

condition to Hotz’s work injury of February 2013. (Trial Exhibit O.) Anthony

Wyrwas, D.C. (“Wyrwas”), treated Hotz on April 29, 2013, and released Hotz to

return to work based upon his shoulder injury. Wyrwas also stated the February

2013 work incident was “the most probable cause of [Hotz’s] DVT.” (Trial

Exhibit P.) Hotz was subsequently treated by Dr. Lawrence Payne (“Payne”) on July

17, 2013. Payne’s records do not indicate that Hotz’s DVT was causally related to the

February 2013 work incident. (Trial Exhibit R.)

The Ohio Industrial Commission (the “OIC”) approved Hotz’s motion

for additional allowances filed on August 16, 2014, to include the conditions of left- supraspinatus tear, left-infraspinatus tendonitis, left-shoulder impingement,

cervical sprain, thoracic sprain, left-knee sprain, and left-infraspinatus tendon tear.

On June 16, 2015, Hotz filed a motion for an additional allowance of

left-leg DVT. Dr. James R. Donovan (“Donovan”) was retained on July 15, 2015, by

Workers’ Comp to review Hotz’s medical records and opine whether his DVT was

related to the February 2013 incident. Donovan concluded the DVT was not causally

related to Hotz’s work incident. Donovan’s report was neither introduced at trial

nor presented to the jury.

The City hired Steven Brose, D.O. (“Brose”), on November 7, 2014, to

examine Hotz regarding his DVT. Dr. Brose opined that Hotz’s work incident did

not cause his left-leg DVT.

The OIC denied the additional allowance for DVT at two

administrative levels — the district hearing office and staff hearing office — because

Hotz did not establish that his DVT was causally related to his work injury. Hotz

appealed to the common pleas court.

The case was tried to a jury on March 27, 2019. The sole issue was

whether Hotz was entitled to Workers’ Comp benefits for his left-leg DVT. Expert

medical testimony from Hotz’s witness, Dr. Nouraldin (“Nouraldin”), and the City’s

witness, Brose, was presented through videotaped trial testimony. Nouraldin

testified that Hotz’s February 2013 work-related injury caused his left-leg DVT;

Brose denied the work-related injury resulted in Hotz’s DVT. On direct examination, Brose answered questions based upon the nontestifying doctors’

opinions.

Counsel from both sides objected throughout the videotaped trial

testimony of Drs. Nouraldin and Brose and objection logs were provided to the trial

judge listing the stated objections. Prior to empaneling the jury, the trial judge

overruled all such objections. The videotaped trial testimony was played to the jury.

At the close of trial, Hotz and the City stipulated to the medical

records that were submitted as trial exhibits. Donovan’s report was not included as

a trial exhibit. The medical records of Pujara, Wyrwas, and Payne were submitted

as trial exhibits. The jury found Hotz was not entitled to Workers’ Comp benefits

for his left-leg DVT.

On April 25, 2019, Hotz filed a timely notice of appeal, presenting

verbatim the following assignments of error for our review:

First Assignment of Error: The Trial Court erred in allowing Dr. Brose to testify about the causation opinions of other nontestifying doctors. (See Dr. Brose Tr. At 51 to 63)

Second Assignment of Error: The trial court abused its discretion when it severely limited Appellant’s voir dire. (See Tr. At 58.)

II. Law and Analysis

A. Evid.R. 803(6)

1. Standard of Review

Our standard of review on the admissibility of evidence is abuse of

discretion. Szulinski v. Kellison & Co., 8th Dist. Cuyahoga Nos. 99672 and 99674,

2014-Ohio-111, ¶ 11. An abuse of discretion is more than simply an error of law or judgment, but implies an unreasonable, arbitrary, or unconscionable attitude by the

court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A

trial court’s decision to admit or exclude evidence will stand unless the court abused

its discretion and that decision affects the substantial rights of the party. Edge v.

Fairview Hosp., 8th Dist. Cuyahoga No. 95215, 2011-Ohio-2148, ¶ 17.

2. Testimony regarding Drs. Pujara, Wyrwas, and Payne

Hotz argues Brose should not have been permitted to testify about the

opinion testimony of Pujara, Wyrwas, and Payne because (1) the opinion testimony

was hearsay, and (2) Brose’s testimony did not qualify under the business records

exception to hearsay contained in Evid.R. 803(6). The City and Workers’ Comp

counter that the doctors’ opinions regarding causation were contained within

authenticated medical records kept in the regular course of treatment; the testimony

was subject to the Evid.R. 803(6) exception to hearsay; and the testimony did not

prejudice Hotz.

Evid.R. 803(6) — Exceptions to the rule against hearsay – Regardless

of whether the declarant is available as a witness — reads as follows:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

***

(6) Records of regularly conducted activity.

A 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. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

This court has interpreted Evid.R. 803(6) and found opinion and

diagnosis testimony of nontestifying doctors is subject to the hearsay exception if

the opinion or diagnosis is contained in medical records or reports that meet the

necessary foundational and authentication requirements and do not violate other

evidentiary rules. Smith v. Dillard’s Dept. Stores, 8th Dist. Cuyahoga No. 75787,

2000-Ohio-2689, ¶ 9-11, 27;1 accord Sanders v. Stover, 8th Dist. Cuyahoga

No. 89241, 2007-Ohio-6202, ¶ 24.

During his videotaped trial testimony, the City’s expert medical

witness, Brose, was questioned about Wyrwas, Pujara, and Payne’s opinions on the

causal relationship between Hotz’s DVT and his February 2013 work-related

incident. Wyrwas, Pujara, and Payne provided medical treatment to Hotz following

his work-related incident, but did not testify at trial. They are classified as

nontestifying physicians.

Upon direct examination, Brose characterized Wyrwas’s statement in

his February 21, 2013 letter that he “suspect[s] that [Hotz] tore a muscle or partially

1 While Hotz “requests this district to limit the Smith holding regarding opinions and diagnoses in hospital records to opinions and diagnose[s] that do not include causation opinions at the heart of a workers’ compensation [t]rial,” there is no basis to apply such a limitation in this matter and we are bound by and will follow our precedent — Smith. tore a muscle/tendon in his lower leg and that may be the etiology of his DVT and

pulmonary embolism” as speculation rather than a diagnosis. (Brose tr. 49; trial

Exhibit J.) 2 Brose also referenced Wyrwas’s April 29, 2013 letter and read the

following excerpt:

Otherwise, we need to modify this claim to further demonstrate that he did suffer acute left lower leg hamstring partial tear injury from wrestling the suspect while making the arrest.

He did have significant ecchymosis present in his left leg and hamstring region. This is the most probable cause of his DVT and pulmonary embolism.

(Brose tr. 54; trial Exhibit P.) Brose testified Wyrwas’s conclusion in the April 29,

2013 letter was unsupported by any objective evidence, and therefore, was simply

conjecture. (Brose tr. 54.)

Brose reviewed Pujara’s notes from Hotz’s visit on April 24, 2013, and

commented that Pujara made no mention of a traumatic injury to Hotz’s leg and did

not determine whether the DVT occurred as a result of the February 2013 work-

related incident. (Brose tr. 51-53; trial Exhibit O.) In regard to Pujara’s notes from

a follow-up visit on August 12, 2013, Brose stated Pujara examined Hotz’s lower

extremities, but did not express an opinion as to the cause of Hotz’s DVT. (Brose

tr. 54-56; trial Exhibit Q.)

Payne examined Hotz on July 17, 2013, and the medical records from

that date were introduced as trial Exhibit R. According to Brose’s testimony, Payne

2 Brose’s videotaped trial testimony is referenced throughout this opinion as “Brose tr. ___.” examined Hotz’s lower extremities, but did not offer an opinion as to the cause of

his DVT. (Brose tr. 55-56; trial Exhibit R.)

At trial, the parties stipulated to the authenticity of Wyrwas, Pujara,

and Payne’s medical records — trial Exhibits J, O, P, Q, and R — that were referenced

by Brose.3 In accordance with Ohio law, the parties’ stipulation to the authenticity

of the medical records constitutes a waiver of Evid.R. 803(6)’s foundational

requirements. Edge, 8th Dist. Cuyahoga No. 95215, 2011-Ohio-2148, at ¶ 16.

Further, Hotz concedes that “the opinions [of Pujara, Wyrwas, and Payne] were

within otherwise authenticated medical records.” Appellee’s brief at 12.

The opinions and diagnosis of Wyrwas, Pujara, and Payne —

nontestifying doctors — contained in medical records, and testified to by Brose

satisfied Evid.R. 803(6)’s hearsay exception because they were contained in

authenticated medical records and did not violate other evidentiary rules, and

therefore, were admissible at trial. Further, Wyrwas, Pujara, and Payne’s records

were contained in the stipulated records that were submitted to the jury.

The trial court did not abuse its discretion when it permitted Brose’s

testimony regarding Wyrwas, Pujara, and Payne’s opinions and diagnosis.

3. Testimony regarding Dr. Donovan

Hotz argues that the trial court erred when it allowed Brose to testify

about Donovan’s opinion. Specifically, Hotz argues he was prejudiced when the jury

3See joint stipulation filed with the trial court on October 15, 2018. Additionally, the parties agreed to the introduction of these medical records as trial exhibits. (Tr. 270-271.) Trial transcript is referenced throughout this opinion as “Tr. ___.” heard Donovan’s opinion — a self-serving report that was not part of an

authenticated hospital record — and Donovan was not subject to cross-examination.

Donovan was hired in 2015 by Workers’ Comp to review Hotz’s

medical records and determine whether Hotz’s DVT was causally related to his work

injury. Donovan’s physician file review was not introduced at trial. (Tr. 270-271.)

During direct examination, Brose testified that he agreed with

Donovan’s conclusions including that Hotz’s DVT was not directly, causally related

to the February 2013 work-related injury. (Brose tr. 60-63.) In support of his

position, Brose read these comments from Donovan’s physician file review:

[W]ithin a reasonable degree of medical probability [the review] does not show, in my medical opinion, the injured worker’s deep vein thrombosis left leg as being directly causally related to the industrial injury being reviewed.

Within a reasonable degree of medical probability [the review] does not show, in my medical opinion, the deep vein thrombosis left leg as having been substantially aggravated due to the work injury in this claim. Again, not evidence that it occurred previously. * * *

(Brose tr. 61-62.)

Donovan did not testify at trial, was not subject to cross-examination,

and his report was not introduced at trial. Yet, Brose testified regarding Donovan’s

physician file review and read excerpts of the review. The testimony regarding

Donovan’s physician file review is hearsay:

“Hearsay” is a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Evid.R. 801.

Hotz argues that because Donovan was a retained expert on behalf of

Workers’ Comp, his report was self-serving, untrustworthy, and unauthenticated,

and was inadmissible, prejudicial hearsay. The City and Workers’ Comp do not deny

Brose’s testimony regarding Donovan’s opinion constituted the admission of

hearsay, but challenge its introduction was harmless error. Our focus is whether the

introduction of Brose’s testimony regarding Donovan constituted harmless error.

A court’s error may be considered harmless if it does not affect the

substantial rights of the parties. Ford v. Sunbridge Care Ents., 2016-Ohio-1122, 62

N.E.3d 609, ¶ 19 (8th Dist.), citing Cappara v. Schibley, 85 Ohio St.3d 403, 709

N.E.2d 117 (1999). The erroneous admission of Brose’s testimony regarding

Donovan’s report constituted harmless error because it was cumulative to other

admissible evidence. Id.

Brose was questioned extensively by plaintiff’s counsel regarding

Hotz’s injuries. (Brose tr. 67-77.) Brose testified that Hotz suffered a severe

shoulder injury on February 21, 2013. (Brose tr. 69-70.) Based upon Brose’s review

of Hotz’s medical records, the medical history Brose obtained from Hotz, and the

physical examination he performed of Hotz, Brose testified that his professional

opinion, based upon a reasonable degree of medical certainty, was that Hotz did not

develop DVT as a result of a workplace injury. (Brose tr. 63.) The jury heard Brose’s

testimony — and his opinion that Hotz’s DVT was not causally related to the February 2013 work-related incident — upon which they could base their defense

verdict.

Brose did not rely upon Donovan’s physician review and conclusions

to form his own opinion:

[Defense counsel]: Okay. Also, did you need to rely on Dr. Donovan’s physician review, in order to form your opinion of whether the deep vein thrombosis was caused by the injury of February 21, 2013.

Brose: No.

[Defense counsel]: You were able to form your own opinion based on the medical records?

Brose: Yes.

(Brose tr. 66-67.)

The record is devoid of any evidence that Brose relied upon

Donovan’s report to render his own expert opinion. Thus, Donovan’s opinion that

Hotz’s DVT was not causally related to his work-related injury was cumulative and

did not change the outcome of the trial.

Based on the foregoing, Hotz’s first assignment of error is overruled.

B. Voir Dire

Hotz’s second assignment of error argues that the trial court abused

its discretion when it “severely limited [his] voir dire.”

The trial judge outlined her expectations of trial counsel during voir

dire, instructing counsel not to indoctrinate the jurors as to the law or facts of the

case. (Tr. 11-13.) If counsel violated the court’s rules, the trial judge stated she would

call counsel to the bench and chastise him or her. (Tr. 13.) If counsel committed a second violation, the judge would simply say “thank you” to counsel who would then

take a seat and the trial judge would conclude voir dire as she saw fit. (Tr. 13.)

After committing a second violation of the trial court’s voir dire

requirements, Hotz’s counsel was thanked by the trial judge and discontinued

questioning the potential jurors. (Tr. 58-59.) Even though the trial judge

prematurely suspended counsel’s questioning, Hotz’s counsel subsequently

resumed participation in voir dire, dismissing jurors for cause and questioning

newly proposed jurors. (Tr. 70-71; 76-132.) Hotz now argues that the trial court

abused its discretion when Hotz’s attorney was stopped from questioning potential

jurists.

A review of the record indicates that no objection was made, during

trial, when the trial court ended Hotz’s counsel’s participation in voir dire. A failure

to object waives all but plain error. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121-

123, 679 N.E.2d 1099 (1997).

Courts are reticent to apply plain error in civil matters:

[i]n applying the doctrine of plain error in a civil case, reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceeding.

Id. at 121, citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 N.E.2d

1001 (1982). Such exceptional circumstances are not presented in this case. Further, in addition to failing to object during voir dire, Hotz does not

invoke the plain-error doctrine on appeal. Where a litigant fails to object at trial and

fails to raise the plain-error doctrine on appeal, an appeals court need not consider

the claim. Ohio Valley Business Advisors, L.L.C. v. AER Invest. Corp., 8th Dist.

Cuyahoga No. 104771, 2017-Ohio-1283, ¶ 19. A “court will not sua sponte undertake

a plain-error analysis if a defendant fails to do so.” State v. Cross, 9th Dist. Summit

No. 25487, 2011-Ohio-3250, ¶ 41.

Accordingly, Hotz’s second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellees 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 said 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.

RAYMOND C. HEADEN, JUDGE

PATRICIA ANN BLACKMON, P.J., and ANITA LASTER MAYS, J., CONCUR