Taylor v. Norfolk S. Ry. Co.

2020 Ohio 2657

• Court: Ohio Court of Appeals
• Decided: April 24, 2020
• Docket: E-18-036
• Status: Published

Opinion

[Cite as Taylor v. Norfolk S. Ry. Co., 2020-Ohio-2657.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

Paul Taylor Court of Appeals No. E-18-036

Appellant Trial Court No. 2016-CV-0196

v.

Norfolk Southern Railway Company DECISION AND JUDGMENT

Appellee Decided: April 24, 2020

*****

Charles M. Murray, Florence J. Murray and Joseph A. Galea, for appellant.

David A. Damico, Edwin B. Palmer and Ira L. Podheiser, for appellee.

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Erie County Court of Common

Pleas which entered a judgment on a jury verdict in favor of appellee. For the reasons set

forth below, this court affirms the judgment of the trial court. {¶ 2} On March 10, 2016, as amended on March 30, 2017, plaintiff-appellant Paul

Taylor filed a complaint against his employer, defendant-appellee Norfolk Southern

Railway Company, setting forth claims of breach of duty to provide a safe working

environment and negligence under the Federal Employer’s Liability Act, 45 U.S.C. 51-60

(“FELA”), for exposing him and others to harmful levels of “occupational noise.”

Appellant alleged that as a machinist for appellee at a local railyard since 2005, he was

required to work in close proximity to locomotives and other railroad equipment that

emitted excessive noise during railyard operations that, even with protective devices,

resulted in his tinnitus. Appellee generally denied the allegations and asserted a number

of affirmative defenses.

{¶ 3} Discovery by the parties ensued, and each retained expert witnesses. In

response to a flurry of disputed motions in limine, the trial court ruled on 12 in limine

motions on March 27, 2018, held a Daubert hearing for unresolved in limine matters on

April 6, 2018, and received post-hearing briefing by the parties. The trial court then ruled

on the remaining in limine matters on April 19, 2018. After additional pre-trial disputes

were resolved by the trial court, a seven-day jury trial began on May 15, 2018. On

May 24, 2018, the jury returned a verdict in favor of appellee, which was journalized on

June 8, 2018. Appellant then timely filed this appeal setting forth seven assignments of

error:

I. The trial court erred by excluding the testimony of Plaintiff’s

treating physician pursuant to Daubert standards.

2. II. The trial court erred by failing to grant Plaintiff’s motion for a

continuance to obtain a new medical expert witness.

III. The trial court erred by permitting the Defendant to make

comments regarding the economic activity created by Defendant’s

operations at the Moorman Yard.

IV. The trial court erred by denying Plaintiff’s motion for a jury

view.

V. The trial court erred by limiting Plaintiff’s cross-examination of

a defense witness on the basis that the cross-examination concerned matters

protected by the work product doctrine.

VI. The trial court erred by permitting Defendant to make a closing

argument suggesting that railroad workers assume certain level of risk

inherent in their employment.

VII. The trial court’s cumulative error was sufficiently prejudicial to

Plaintiff as to deprive the Plaintiff of a fair trial.

A. Evidence Admissibility

{¶ 4} We will address all assignments of error together as they collectively

challenge the trial court’s decisions on the admissibility of evidence at trial. We review a

trial court’s decision on admissibility of evidence, including decisions granting or

denying motions in limine, for an abuse of discretion. Estate of Johnson v. Randall

Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d 35, ¶ 22. Abuse of

3. discretion “‘connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980).

1. Excluding Expert Testimony

{¶ 5} In support of his first assignment of error, appellant argued the trial court

erred when it excluded his treating otolaryngologist, Erik W. Nielsen, M.D., from

testifying as to his expert opinions on the medical causation of appellant’s tinnitus.

Appellant argued although the trial court correctly recognized Dr. Nielsen as an expert, it

erred when it determined Dr. Nielsen was not qualified to provide an opinion on the

medical causation of tinnitus pursuant to Evid.R. 702 and Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Appellant urged us to follow our decision “on the reliability of the doctors’ causation

opinions” when the practitioner relied on his patient for the workplace exposure and

medical history in Cutlip v. Norfolk Southern Corp., 6th Dist. Lucas No. L-02-1051,

2003-Ohio-1862, ¶ 47.

{¶ 6} In response, appellee argued the trial court did not err because Dr. Nielsen’s

differential diagnosis of appellant’s tinnitus was based on unreliable speculation.

i. FELA Negligence

{¶ 7} FELA provides, “Every common carrier by railroad while engaging in

commerce * * *, shall be liable in damages to any person suffering injury while he is

4. employed by such carrier in such commerce, * * * for such injury * * * resulting in

whole or in part from the negligence of any of the officers, agents, or employees of such

carrier * * *.” 45 U.S.C. 51.

{¶ 8} A FELA plaintiff has the burden to prove four elements.

[The] plaintiff must present more than a scintilla of evidence to

prove that: (1) an injury occurred while the plaintiff was working within

the scope of his or her employment with the railroad, (2) the employment

was in the furtherance of the railroad’s interstate transportation business,

(3) the employer railroad was negligent, and (4) the employer’s negligence

played some part in causing the injury for which compensation is sought

under the Act.

Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258-59 (6th Cir.2001). In this case,

the parties stipulated to the first two FELA elements, leaving the jury to determine the

third and fourth elements of appellant’s FELA claim, known as FELA negligence and

FELA causation, respectively.

[FELA] imposes liability only for negligent injuries. But the issue

of negligence is one for juries to determine according to their finding of

whether an employer’s conduct measures up to what a reasonable and

prudent person would have done under the same circumstances. And a jury

should hold a master “liable for injuries attributable to conditions under his

control when they are not such as a reasonable man ought to maintain in the

5. circumstances,” bearing in mind that “the standard of care must be

commensurate to the dangers of the business.”

Wilkerson v. McCarthy, 336 U.S. 53, 61, 69 S.Ct. 413, 93 L.Ed. 497 (1949), quoting

Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610 (1943).

{¶ 9} While state and federal courts have concurrent jurisdiction over FELA

claims, federal law governs FELA claims. Norfolk Southern Ry. Co. v. Sorrell, 549 U.S.

158, 165, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007), citing 45 U.S.C. 56. When FELA

cases are adjudicated in a state court, state procedural rules will apply, “but the

substantive law governing them is federal.’” Vance v. Consol. Rail Corp., 73 Ohio St.3d

222, 227, 652 N.E.2d 776 (1995), quoting St. Louis Southwestern Ry. Co. v. Dickerson,

470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985).

That FELA is to be liberally construed, however, does not mean that

it is a workers’ compensation statute. We have insisted that FELA “does

not make the employer the insurer of the safety of his employees while they

are on duty. The basis of his liability is his negligence, not the fact that

injuries occur.” And while “[w]hat constitutes negligence for the statute’s

purposes is a federal question,” we have made clear that this federal

question generally turns on principles of common law: “[T]he Federal

Employers’ Liability Act is founded on common-law concepts of

negligence and injury, subject to such qualifications as Congress has

imported into those terms.” * * * Thus, although common-law principles

6. are not necessarily dispositive of questions arising under FELA, unless they

are expressly rejected in the text of the statute, they are entitled to great

weight in our analysis. (Citations omitted.)

Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543-44, 114 S.Ct. 2396, 129 L.Ed.2d 427

(1994).

{¶ 10} Appellant heavily relies on our decision in Cutlip to support this

assignment of error. However, unlike this case, the jury in Cutlip found the railroad was

negligent under FELA, and then proceeded to determine FELA causation. The May 24,

2018 jury verdict in this case unanimously answered “No” in response to interrogatory

No. 1, which asked, “Do you find that Norfolk Southern Railway Company was negligent

in failing to provide Paul Taylor with a reasonably safe place to work?” As instructed by

the trial court, “If six or more of you answer no, your deliberations are complete. Answer

no more Interrogatories and sign the General Verdict Form for the defendant,” which the

jury did. The jury did not reach interrogatory No. 2 on FELA causation, nor the

remaining interrogatories Nos. 3 through 7. The verdict form unanimously signed by the

jury found in favor of appellee and against appellant.

{¶ 11} “To prevail on a FELA claim, a plaintiff must ‘prove the traditional

common law elements of negligence: duty, breach, foreseeability, and causation.’”

Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir.1990), quoting Robert v. Consol.

Rail Corp., 832 F.2d 3, 6 (1st Cir.1987).

7. {¶ 12} For the duty prong of FELA negligence, we find the record shows appellee

had a duty, irrespective of Dr. Nielsen’s testimony, to provide appellant with a reasonably

safe work environment. “There is no doubt that an employer has a responsibility under

the FELA to provide a safe place to work.” Vance at 231, citing Atchison, Topeka &

Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 558, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987).

“FELA is a negligence-based statute. A railroad’s duty under FELA is to provide for its

employees a ‘reasonably safe place to work.’ ‘Reasonableness’ is measured by what a

reasonably prudent person (or in this case, railroad) would have or could have anticipated

under similar circumstances.” (Citations omitted.) Cutlip, 6th Dist. Lucas No. L-02-1051,

2003-Ohio-1862, at ¶ 68.

{¶ 13} For the next prongs of FELA negligence, whether appellee breached its

duty to appellant and whether injury was foreseeable, we find those were jury questions

to determine whether appellee provided appellant a reasonably safe place to work.

The jury, therefore, must be asked, initially: Did the carrier “fai[l] to

observe that degree of care which people of ordinary prudence and sagacity

would use under the same or similar circumstances[?]” In that regard, the

jury may be told that “[the railroad’s] duties are measured by what is

reasonably foreseeable under like circumstances.” Thus, “[i]f a person has

no reasonable ground to anticipate that a particular condition * * * would or

might result in a mishap and injury, then the party is not required to do

anything to correct [the] condition.” If negligence is proved, however, and

8. is shown to have “played any part, even the slightest, in producing the

injury,” then the carrier is answerable in damages even if “the extent of the

[injury] or the manner in which it occurred” was not “probable” or

“foreseeable.” (Citations omitted.)

CSX Transp., Inc. v. McBride, 564 U.S. 685, 703-04, 131 S.Ct. 2630, 180 L.Ed.2d 637

(2011).

{¶ 14} The record shows the trial court clearly instructed the jury, “Before you

impose liability on Defendant, you must still find that Defendant Norfolk Southern failed

to exercise reasonable care under the circumstances.” Because foreseeability is a fact

issue under FELA, “‘the right of the jury to pass on this issue must be liberally

construed.’” (Citations omitted.) Platt v. CSX Transp., Inc., 135 Ohio App.3d 280, 285,

733 N.E.2d 672 (6th Dist.1999).

{¶ 15} For reasons that will be discussed more thoroughly in the next section, the

trial court redacted specific portions of Dr. Nielsen’s videotaped testimony, and the

redacted testimony was heard by the jury. We reviewed the record of Dr. Nielsen’s

original testimony and find he did not offer any testimony to support appellant’s FELA

claim that appellee was negligent in failing to provide appellant with a reasonably safe

place to work or to provide reasonable hearing protection. Dr. Nielsen repeatedly

testified his role as appellant’s treating physician was not to evaluate any of those matters

because it had “no bearing” on how he takes care of, or treats, his patients. In addition,

Dr. Nielsen’s redacted testimony to the jury did not offer any testimony to support

9. appellant’s claim of FELA negligence. Dr. Nielsen simply did not know about

appellant’s noise exposure at work, nor about appellant’s practices using hearing

protection devices nor whether the hearing protection appellee provided appellant was

“appropriate.” Dr. Nielsen testified that he had “no clue” about appellant’s work for the

railroad.

{¶ 16} Instead, the record shows the jury heard testimony at trial on FELA

negligence from appellant, three of appellant’s co-workers, and Thomas Thunder, a

doctor of audiology and an industrial hygiene expert specializing in audiometrics. In

sum, appellant’s witnesses collectively testified that appellant’s work environment was

not reasonably safe because appellee was aware of appellant’s tinnitus; employees raised

concerns about inadequate hearing protection with management during safety committee

meetings; appellee refused to build a wall between the noise source, retarders, and the

portion of the railyard where appellant worked; and hearing protection provided by

appellee was inadequate.

{¶ 17} It is well-settled a jury, as the fact finder in either a criminal or civil case,

primarily determines the weight to be given the evidence and the credibility of the

witnesses. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). Since it is

clear from the record the jury received appellant’s evidence to support his FELA

negligence claim, and Dr. Nielsen’s redacted testimony did not deny appellant the jury’s

role to “pass” on FELA negligence, we will not disturb the jury’s verdict appellee was

not negligent.

10. ii. FELA Causation

{¶ 18} Despite our decision on the foregoing, we will next review appellant’s first

assignment of error on FELA causation in order to evaluate his overall FELA claim.

{¶ 19} We are mindful the causation element of common-law negligence is not the

same in a FELA claim because common-law causation is expressly rejected in the text of

the FELA statute. “The charge proper in FELA cases, we hold, simply tracks the

language Congress employed, informing juries that a defendant railroad caused or

contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in

bringing about the injury.” McBride, 564 U.S. at 688, 131 S.Ct. 2630, 180 L.Ed.2d 637.

The U.S. Supreme Court has interpreted the causation element of FELA claims as “‘the

test for proximate causation applicable in FELA suits.’” (Citation omitted.) Id. at 700.

{¶ 20} The quantum of evidence under FELA “sufficient to present a jury question

of causation is less than it is in a common law tort action. * * * This does not mean,

however, that FELA plaintiffs need make no showing of causation. Nor does it mean that

in FELA cases courts must allow expert testimony that in other contexts would be

inadmissible.” Claar v. Burlington Northern R. Co., 29 F.3d 499, 503 (9th Cir.1994).

a. Expert Testimony

{¶ 21} Medical testimony evidence in a FELA case must have some reasonable

basis and have some degree of certainty. Mayhew v. Bell S.S. Co., 917 F.2d 961, 963 (6th

Cir.1990). Speculative medical testimony is inadmissible unless the medical expert can

articulate “that it is likely that the defendant’s negligence, or more than possible that the

11. defendant’s negligence, had a causal relationship with the injury.” Id. at 964. The expert

does not need to testify to a reasonable degree of medical certainty in order to be

admissible. Id. The jury’s function to find causation under FELA is to determine all the

factual issues in order to reasonably draw the particular inference or conclusion submitted

to it, that there was more than a possibility a causal relation existed between the

employer’s negligence and the employee’s injury. Id. at 963. “Congress vested the

power of decision in these actions exclusively in the jury in all but the infrequent cases

where fair-minded jurors cannot honestly differ whether fault of the employer played any

part in the employee’s injury.” Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 510, 77

S.Ct. 443, 1 L.Ed.2d 493 (1957).

{¶ 22} Tinnitus is a “subjective ringing, buzzing, tinkling, or hissing sound in the

ear. For some patients, this causes only minor irritation; for others, it is disabling.” Tarr

v. Commr. of Social Sec., N.D.Ohio No. 3:12 CV 1090, 2013 WL 1363582, *1, fn. 1

(Apr. 2, 2013), citing Taber’s Medical Cyclopedic Dictionary (2011).

{¶ 23} The parties do not dispute that Dr. Nielsen is an expert, as appellant’s

treating otolaryngologist. However, not all expert testimony is automatically admissible

at trial. “Expert testimony in Ohio is admissible if it will assist the trier of fact in search

of the truth. However, when such knowledge is within the ken of the jury, expert

testimony is inadmissible.” State v. Koss, 49 Ohio St.3d 213, 216, 551 N.E.2d 970

(1990). “It is a settled rule that, ‘Unless a matter is within the comprehension of a

layperson, expert testimony is necessary.’” Migliori v. Merritt, 6th Dist. Lucas No.

12. L-11-1136, 2012-Ohio-3614, ¶ 13, quoting Ramage v. Cent. Ohio Emergency Servs.,

Inc., 64 Ohio St.3d 97, 102, 592 N.E.2d 828 (1992).

{¶ 24} “[N]othing in [FELA] alters the accepted fact that unless the connection

between the negligence and the injury is a kind that would be obvious to laymen, expert

testimony is required.” Myers v. Illinois Cent. R. Co., 629 F.3d 639, 643 (7th Cir.2010),

citing Brooks v. Union Pacific R. Co., 620 F.3d 896, 899 (8th Cir.2010); Claar at 504

(“expert testimony is necessary to establish even that small quantum of causation

required by FELA” where drawing a particular conclusion requires specialized

knowledge).

{¶ 25} We review a trial court’s decision related to the use of expert-opinion

testimony for an abuse of discretion. Brummitt v. Seeholzer, 6th Dist. Erie No. E-16-020,

2019-Ohio-1555, ¶ 23.

{¶ 26} Evid.R. 702 requires appellant to prove a three-part test for Dr. Nielsen’s

expert testimony:

A witness may testify as an expert if all of the following apply:

(A) The witness’ testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter of the

testimony;

13. (C) The witness’ testimony is based on reliable scientific, technical,

or other specialized information. To the extent that the testimony reports

the result of a procedure, test, or experiment, the testimony is reliable only

if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is

based is objectively verifiable or is validly derived from widely accepted

knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably

implements the theory;

(3) The particular procedure, test, or experiment was conducted in a

way that will yield an accurate result.

{¶ 27} In addition, appellant must meet the tests of relevance and reliability of Dr.

Nielsen’s expert testimony under Daubert: “the trial court must act as a ‘gatekeeper’ to

ensure both the relevance and the reliability of expert testimony before it is admitted at

trial.” Cutlip, 6th Dist. Lucas No. L-02-1051, 2003-Ohio-1862, at ¶ 42, citing Daubert,

509 U.S. at 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469. In doing so, a trial court may

conduct a flexible analysis of the reliability of the expert’s opinion and consider all

relevant factors, including these four: “(1) whether the testimony is based on a theory or

method that has or can be tested; (2) whether the testimony is based on a theory or

method that has been subject to peer review; (3) the error rate of the particular theory or

14. method; and (4) whether the theory or method has gained general acceptance in the

field.” Id.

b. Motion in Limine

{¶ 28} “A motion in limine is a precautionary request directed to the discretion of

the court to limit introduction of specified evidence until its admissibility may be

determined outside the presence of the jury.” O’Loughlin v. Ottawa St. Condominium

Assn., 6th Dist. Lucas No. L-16-1128, 2018-Ohio-327, ¶ 46. Appellant must show the

exclusion of Dr. Nielsen’s testimony affected appellant’s substantial rights. Id. at ¶ 47,

citing Evid.R. 103(A); Civ.R. 61 (harmless error unless the exclusion of evidence

affected the substantial rights of the parties).

{¶ 29} Dr. Nielsen was deposed on June 2, 2017, and the deposition transcript is in

the record. On September 15, 2017, appellee filed a motion in limine to exclude Dr.

Nielsen’s expert testimony on medical causation alleging his methodology failed to

satisfy the admissibility standards under Evid.R. 702 and Daubert. Appellee alleged Dr.

Nielsen consulted no scientific data or studies, as required by Evid.R. 702 and Daubert,

before forming his opinion appellant’s tinnitus was medically caused, in part, by the

noise environment at appellant’s work. Dr. Nielsen neither knew what appellant did at

his job nor to what noise appellant’s job exposed him. Dr. Nielsen assumed the medical

causes were a combination of appellant’s self-reporting of his noise exposure at work and

from shooting rifles and guns for recreation. Dr. Nielsen did not prepare a report of his

expert opinion.

15. {¶ 30} Appellant opposed the motion on October 27, 2017. Then Dr. Nielsen was

deposed, again, on March 22, 2018, on videotape, and his opinion on medical causation

remained unchanged, nor did he prepare an expert report. The transcript of his

videotaped deposition is also in the record.

{¶ 31} On March 27, 2018, the trial court denied the September 15, 2017 motion

in limine to the extent it sought to exclude all of Dr. Nielsen’s testimony, and then set the

matter, along with another disputed expert opinion, Thomas Thunder, Au.D., for an

evidentiary Daubert hearing on April 6, 2018. The trial court concluded in its judgment

entry:

So this issue boils down to whether Dr. Nielsen did a proper or

thorough differential diagnosis to reach his opinion as to causation in this

case. Based on the record, * * *, this Court finds that it is prudent to set

this for Evidentiary Hearing so this Court can have the benefit of a

complete record and not be limited to Dr. Nielsen’s discovery deposition to

make this important decision.

{¶ 32} The transcript of the April 6, 2018 hearing is in the record. Dr. Nielsen did

not attend the April 6, 2018 Daubert evidentiary hearing, and the reason for his absence

is not in the record. In the end, the trial court only had Dr. Nielsen’s March 22, 2018

videotaped deposition with which to make the important determination of Dr. Nielsen’s

expert differential diagnosis on medical causation. No report or other data relied upon by

Dr. Nielsen is part of the record of his videotaped deposition.

16. {¶ 33} On April 19, 2018, the trial court granted the motion to exclude Dr.

Nielsen’s testimony only as to medical causation because:

(4) From Dr. Nielsen’s testimony, with the exception of him

performing auditory brainstem response (ABR), it is very apparent that his

causation opinion is predicated, and totally reliant upon, what Plaintiff told

him. Dr. Nielsen did not know anything about the occupational exposure of

Plaintiff to noise. Dr. Nielsen had no understanding of the nature of

Plaintiff’s job duties; no conversation with Plaintiff about specific noise

exposures on the job and never looked at any quantifiable data. Dr. Nielsen

could not explain the pattern of asymmetrical hearing loss to work

exposure. Dr. Nielsen testified at one point that he “had no clue” what

Plaintiff did at work. Dr. Nielsen made no inquiry into or assessment of

what hearing protection Plaintiff used on the job.

{¶ 34} Then on April 25, 2018, appellee objected to, and sought redaction of

specific portions of Dr. Nielsen’s March 22, 2018 video deposition in light of the trial

court’s ruling. Appellant opposed the motion, and on May 9, 2018, the trial court ruled

on all of the pending objections and ordered very specific redactions of Dr. Nielsen’s

video deposition with respect to medical causation. On the fourth day of trial, Dr.

Nielsen’s redacted video deposition was played for the jury.

17. {¶ 35} For the reasons stated herein, we find the trial court did not abuse its

discretion when it determined Dr. Nielsen’s expert testimony on his differential diagnoses

was not reliable under Evid.R. 702 and Daubert.

c. Differential Diagnosis

{¶ 36} This court recognizes evidence of differential diagnosis, also known as

differential etiology or the study of causation, for the reliability prong under Daubert.

Cutlip, 6th Dist. Lucas No. L-02-1051, 2003-Ohio-1862, at ¶ 45-46, citing Hardyman,

243 F.3d at 260-61.

Differential diagnosis is defined for physicians as “the determination

of which of two or more diseases with similar symptoms is the one from

which the patient is suffering, by a systematic comparison and contrasting

of the clinical findings.” The elements of a differential diagnosis may

consist of the performance of physical examinations, the taking of medical

histories, and the review of clinical tests, including laboratory tests. A

doctor does not have to employ all of these techniques in order for the

doctor’s diagnosis to be reliable. (Citations omitted.)

Id. at ¶ 45; Hardyman at 260.

{¶ 37} “Because differential diagnosis is essentially a learned process of

elimination, it naturally requires the physician to consider all possible causes and to

discard those that are least likely. * * * [T]he physician ought to be able to offer a

reasonable explanation as to why the physician’s conclusion remains reliable.” Cutlip at

18. ¶ 47. The use of differential diagnosis to determine FELA causation “is appropriate only

when considering potential causes that are scientifically known.” Valentine v. Conrad,

110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 22, citing Westberry v. Gislaved

Gummi AB, 178 F.3d 257, 262 (4th Cir.1999).

{¶ 38} While conducting a Daubert analysis of the reliability of the expert’s

opinion, the focus of the flexible analysis is on the principles and methodology employed

by the witness rather than the conclusions drawn. Miller v. Bike Athletic Co., 80 Ohio

St.3d 607, 611-12, 687 N.E.2d 735 (1998), citing Daubert, 509 U.S. at 595, 113 S.Ct.

2786, 125 L.Ed.2d 469.

But conclusions and methodology are not entirely distinct from one

another. Trained experts commonly extrapolate from existing data. But

nothing in either Daubert or the Federal Rules of Evidence requires a [trial]

court to admit opinion evidence that is connected to existing data only by

the ipse dixit of the expert. A court may conclude that there is simply too

great an analytical gap between the data and the opinion proffered.

General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

Merely labeling a methodology as a “differential diagnosis” does not automatically make

it reliable under Daubert:

but prompts three more [questions]: (1) Did the expert make an

accurate diagnosis of the nature of the disease? (2) Did the expert reliably

rule in the possible causes of it? (3) Did the expert reliably rule out the

19. rejected causes? If the court answers “no” to any of these questions, the

court must exclude the ultimate conclusion reached.

Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 674 (6th Cir.2010).

{¶ 39} On the fourth day of trial Dr. Nielsen testified to the jury via videotape as

appellant’s treating otolaryngologist. “[E]ven without expert testimony on specific

causation, a jury still could reasonably infer causation based upon admissible testimony

alone.” Hardyman, 243 F.3d at 269. Specifically, the trial court stated in its March 27,

2018 judgment entry, “Dr. Nielsen can testify as to his observations, treatment, and his

opinion on permanency of the hearing loss. * * * It is beyond question that a treating

physician/clinician can render an opinion based on the theory (or application of) a

differential diagnosis or differential etiology.”

{¶ 40} “Such testimony, even without expert causation testimony, certainly would

be adequate to provide a jury with the ‘special expertise * * * necessary to draw a causal

inference.’” Id., citing Claar, 29 F.3d at 504. Dr. Nielsen testified that appellant had

tinnitus and, based on his knowledge and experience, determined the diagnostic cause

was noise exposure, which he assumed was from appellant’s self-reporting of shooting

guns and his work environment. “Finally, nothing would preclude Plaintiff from

testifying as to his work and non-work-related activities,” which appellant did. Id.

{¶ 41} We reviewed the record and find that Dr. Nielsen was able to testify to the

jury extensively as to his opinions of his diagnosis of appellant’s tinnitus and of its

causes, from which the jury could infer was his work environment. In addition, the jury

20. heard appellant and other witnesses generally claim that appellee’s work environment

caused hearing injuries.

{¶ 42} Dr. Nielsen testified that in November 2015 his, “Diagnosis was that

[appellant] had noise effects on the inner ear in both ears and other specified hearing

losses on the left, which just means * * * that ear hears worse than the right, that was my

diagnosis at the time.” He then diagnosed tinnitus based on appellant’s own complaints.

Q: You don’t know when his tinnitus began, correct?

A: No.

Q: And while we’re talking about tinnitus, tinnitus is a subjective

condition, correct?

A: Yes, it is.

Q: There’s no test to definitely confirm that Mr. Taylor has it or

how bad it is, correct?

A: No, there’s not.

Q: We have to take his word on that, correct?

A: Yes.

***

Q: And you haven’t assigned any impairment or hearing impairment

percentage to him, correct?

A: I wouldn’t do that anyway.

21. {¶ 43} Dr. Nielsen testified that, “hearing loss can happen because your ear bones

are damaged because * * * the eardrum or the inner ear, the nerve itself is damaged, or

there could be a growth or something on the nerve itself going into the brain.” As to

potential causes of tinnitus, he testified, “there’s different ways you can cause permanent

damage. Otherwise, permanent damage can be caused by continuous exposure or a very

loud exposure.”

{¶ 44} Dr. Nielsen testified that his goal was to “figure out the cause” of

appellant’s tinnitus in order to render the proper treatment. He testified being familiar

with “the workplace environment and how it may cause some of the injuries.” He

testified he was familiar with publications that “discuss how hearing loss is occurring in

the workplace.” He testified that “occupational noise” can cause “hearing damage.” He

testified to conducting a differential diagnosis on appellant to try “to figure out * * *

what’s causing the presenting symptoms.” He testified that in doing so, he was “coming

up with obvious possibilities of what could be causing the problem, and the workup, the

history, and everything you do is to limit it and become a more definitive diagnoses.” He

testified that as a physician he was “trying * * * to diagnose what is probable and try to

help the patient with what is probably causing their concern.”

{¶ 45} During Dr. Nielsen’s testimony, the following potential causes of

appellant’s tinnitus were discussed before the jury: work, gunfire, tumor, smoking, and

unusual/rare or “zebras” diagnosis. Dr. Nielsen dismissed without much discussion

smoking or a “zebras” diagnosis. To rule out a tumor on a nerve causing the more

22. significant tinnitus in the left ear, Dr. Nielsen suggested appellant undergo an auditory

brainstem response (“ABR”) test, the result of which was normal. Dr. Nielsen testified

the ABR did not help him diagnose the cause of appellant’s condition, but “it just

eliminates a potential cause.”

{¶ 46} Dr. Nielsen assumed gunfire noise exposure was a cause, particularly in

light of appellant’s asymmetrical hearing loss. Dr. Nielsen testified that his office first

saw appellant in 2010, because “he had some testing done at work and then he was found

to have some asymmetry and so then he was a little concerned. He came here to get a

little more workup.” Although Dr. Nielsen did not see or treat appellant until 2015, in

2010 appellant met with Dr. Nielsen’s physician assistant, who tested appellant.

Q: So Paul underwent some testing on that day. Did he bring with

him test results that he had from * * * the railroad? Does your chart show

that?

A: I don’t recall that there was anything, if there was. * * * I think

he reported that he was told that there was hearing loss. * * * [The 2010

audiogram test results] tells me that the likelihood here is that he has had

some noise exposure[.] * * * And since he reported using firearms, the left

ear being worse is pretty classic, because when you shoot a rifle, the burst

of noise will hit the left ear first. The head gets in the way, and so the right

ear gets the shadow of the noise, which is much less.

23. Q: And to the extent that when [appellant] was deposed he testified

that he did not wear hearing protection when discharging a rifle on multiple

occasions, you would agree that that would be important to your opinions

regarding the cause of Mr. Taylor’s hearing loss.

A: I already assumed that it was caused by his gun.

Q: And would you agree, sir, that gunfire alone can cause the type

and pattern of hearing loss that Mr. Taylor has.

A: Yes, it can.

{¶ 47} Dr. Nielsen also assumed noise exposure at appellant’s work was a cause of

the tinnitus, and appellant’s tinnitus will continue.

Q: And you would agree that one of the principle characteristics of

occupational noise-induced hearing loss * * * that [the American College

of Occupational and Environmental Medicine] identify is that occupational

noise-induced hearing loss is typically bilateral or it affects both ears the

same because noise exposures in the workplace are generally symmetrical,

correct?

A: Correct.

Q: And so you would agree, sir, that unless a worker is stationary

and in the same spot with, like in this case, his left ear toward a constant

24. noise source, you would expect a person with occupational noise-induced

hearing loss to have a symmetrical hearing loss, correct?

Q: And, sir, Mr. Taylor does not have a stationary job where he is

exposed to noise only on his left side, correct?

A: I don’t know that.

Q: So does the [2010] record suggest that anyone told him that the

noise at his job was causing the hearing damage?

A: Well, I don’t believe that was discussed * * * to any degree. He

said that he was an avid shooter and he has a lot of noise exposure. * * *

[I]t wasn’t designated whether it was work or not, but the assumption was

obviously it was probably at work, in addition to * * * being someone who

shoots guns and stuff.

Q: Okay. So let’s tease out the very specific question. In terms of

Paul Taylor, do you have an opinion to a reasonable degree of professional

certainty as to whether his tinnitus will go away? Do you have an opinion

to a reasonable degree of professional certainty, as a physician who’s

treated Paul Taylor and examined him a few times in your office, as to

25. whether the tinnitus that he has experience will, with reasonable medical

certainty, continue?

A: I think it will continue.

{¶ 48} The record shows Dr. Nielsen’s differential diagnosis did not identify

potential work-related causes of appellant’s tinnitus that are scientifically known. Aside

from appellant’s self-reporting that work was a cause, Dr. Nielsen did not consult any

data or records to inform him of that causal relationship. See Swords v. Norfolk & W. Ry.

Co., 4th Dist. Scioto No. 95 CA 2342, 1996 WL 255859, *8 (May 8, 1996). When Dr.

Nielsen testified he assumed work and gunfire noise exposure caused appellant’s tinnitus,

those assumptions, standing alone, did not meet the reliability test under Evid.R. 702 and

Daubert. During Dr. Nielsen’s testimony, he admitted he did not review any of

appellant’s work history records, including medical records, clinical history, audiograms,

noise exposure, hearing protection devices or data, job duties, or photographs of

appellee’s railyard prior to rendering his medical causation opinion. Evid.R. 702(C);

Cutlip, 6th Dist. Lucas No. L-02-1051, 2003-Ohio-1862, at ¶ 42; Tamraz, 620 F.3d at

674.

{¶ 49} We are mindful this court previously found that where a treating physician

testifies he personally examined the FELA plaintiff, reviewed his medical records, took a

history, ordered tests, reviewed the results of those tests, and ruled out other possible

causes of the plaintiff’s asthma, those actions were deemed a reliable differential

diagnoses under Evid.R. 702 and Daubert. Cutlip at ¶ 48, citing Hardyman, 243 F.3d at

26. 260-261. However, in this case Dr. Nielsen testified he did not review appellant’s

medical records or review data related to such medical records.

{¶ 50} Separately, the Cutlip court found, similar to this case, the record contained

other evidence to support the treating physician’s differential diagnosis. Id. at ¶ 56.

Despite appellant’s argument that the trial court’s decision limiting Dr. Nielsen’s

testimony deprived the jury from hearing any evidence on the causation of appellant’s

tinnitus, we find that the jury still received evidence on FELA causation. The jury heard

other testimony at trial, particularly from appellant and appellant’s other expert, Dr.

Thunder, that the work environment caused appellant’s tinnitus. Dr. Thunder testified he

tested the railyard noise:

Q: And based upon your training, experience, and research in the

field, are you able to describe for the jury with professional certainty

whether the noise that you heard in the Bellevue Yard emanating from

these retarders can cause tinnitus with specific certainty?

Q: What’s your opinion, Doctor?

A: My opinion of that kind of noise, based on its intensity, duration,

and the character of the noise, meaning the frequency, puts people at risk of

developing hearing damage.

27. Q: So if Paul Taylor works in the B Yard for three and four hours at

the noise measurements that you found at Location A, is he at risk of

hearing loss and tinnitus?

{¶ 51} We reviewed the entire record and find the jury in this case, like in Cutlip,

received sufficient evidence in which it could have determined appellee was negligent

under FELA in order to proceed to the issue of whether appellee’s negligence caused, in

whole or in part, appellant’s tinnitus. In re Estate of Flowers, 2017-Ohio-1310, 88

N.E.3d 599, ¶ 83 (6th Dist.). As previously noted, unlike in Cutlip, the jury in this case

determined appellee was not negligent. We will not disturb the jury’s verdict that did not

reach FELA causation because it was not manifestly against the weight of the evidence

after every reasonable intendment and every reasonable presumption was made in favor

of the judgment and the finding of facts. Id. at ¶ 94. We do not find Dr. Nielsen’s

redacted testimony to the jury deprived the jury of its duty to weigh the evidence and

determine appellant’s FELA claim. Put another way, we do not find Dr. Nielsen’s

original testimony would suddenly compel the jury to find appellee was negligent under

FELA. Smith v. Strong, 6th Dist. Lucas No. L-17-1058, 2017-Ohio-6918, ¶ 12. We do

not find the exclusion of portions of Dr. Nielsen’s testimony affected appellant’s

substantial rights. Evid.R. 103(A); Civ.R. 61.

{¶ 52} We do not find the trial court abused its discretion when it granted

appellee’s motion in limine, in part, to exclude portions of Dr. Nielsen’s videotaped

28. expert testimony opinion of medical causation of appellant’s tinnitus. The jury heard Dr.

Nielsen testify about his differential diagnosis, and it was the jury’s duty to determine the

reliability of his expert testimony based on his stated assumptions. In addition, the jury

heard testimony from a number of witnesses, including Dr. Nielsen, as to how noise

exposure at appellant’s work is a cause of tinnitus. Ultimately, the jury decided who to

believe and weighed the evidence to determine the lack of FELA negligence without

determining FELA causation. We do not find the court’s attitude was unreasonable,

arbitrary or unconscionable.

{¶ 53} Appellant’s first assignment of error is not well-taken.

2. Motion for Continuance

{¶ 54} In support of his second assignment of error, appellant argued the trial

court erred when it denied his motion for a continuance because it would exceed the time

limits set by the Supreme Court Rules of Superintendence. After Dr. Nielsen’s testimony

was limited by the trial court on April 19, 2018, appellant then filed on April 25, 2018, a

motion to continue the May 15, 2018 trial for 90 days in order to find and depose an

expert witness who can testify as to medical causation. Appellant argued appellee would

only have been minimally prejudiced by the continuance, while his case was “severely

prejudiced” by the trial court’s delayed ruling.

{¶ 55} We review the grant or denial of a continuance by the trial court for an

abuse of discretion. Cherry v. Baltimore & O. Rd. Co., 29 Ohio St.2d 158, 160, 280

N.E.2d 380 (1972). We also review for abuse of discretion to the extent the trial court’s

29. denial of a continuance prohibited additional discovery to potentially admit more

evidence at trial.

{¶ 56} Appellee opposed appellant’s motion, and on May 2, 2018, the trial court

denied the motion. The trial court stated in its judgment entry that the trial date was

previously re-set twice. In addition, the Daubert hearing was held on April 6, 2018, at

the conclusion of which the parties and the trial court held a lengthy discussion about

scheduling. Upon mutual agreement, the parties submitted their post-hearing briefs on

April 13, 2018, so that the trial court could review them on April 17 and 18, 2018, after

attending to its criminal docket, and then issue a decision by the scheduled pre-trial on

April 19, 2018. The trial court then timely journalized its decision on April 19, 2018.

The trial court stated in its May 2, 2018 decision that during the April 19, 2018 pre-trial,

appellant made no indication in the record he was considering a continuance in light of

the court’s decision that day limiting Dr. Nielsen’s testimony on medical causation. The

trial court stated it takes Ohio Supreme Court guidelines seriously, and “[t]his case is

over guideline as of the end of March 2018.” The trial court reviewed the extensive

procedural history of the case and determined adhering to the Ohio Supreme Court’s

guidelines still allowed substantial justice to the parties.

{¶ 57} Based on our decision for the first assignment of error, we find this second

assignment of error to be moot on the jury’s verdict of FELA negligence. App.R.

12(A)(1)(c). Even if the second assignment of error were not moot, we find the trial

30. court did not abuse its discretion when it denied appellant’s motion for a continuance.

We find the trial court’s attitude was not unreasonable, arbitrary, or unconscionable.

{¶ 58} Appellant’s second assignment of error is not well-taken.

3. Economic Activity Comments

{¶ 59} In support of his third assignment of error, appellant argued the trial court

erred when it overruled his relevance objection when appellee asked appellant if he knew

whether the opening of a new section of the railyard created any jobs. Appellant argued

the result of the trial court allowing the jury to hear his testimony that the new section

might have doubled the size of the yard and added 100 jobs was manipulating the jury

into sympathizing with appellee as a job creator. “The jobs created by such an expansion

have nothing to do with the elements of duty, breach, foreseeability, causation, or

damages. * * * The trial court’s failure to stop this line of questioning, or to provide any

curative instruction, so grossly taints the jury’s verdict as to result in reversible error.”

{¶ 60} “The admission of relevant evidence pursuant to Evid.R. 401 rests within

the sound discretion of the trial court.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569

N.E.2d 1056 (1991). “‘Relevant evidence’ means evidence having 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.

{¶ 61} We reviewed the record and find the objection the trial court overruled

occurred on the fourth day of trial. Immediately preceding the cross-examination

31. question at issue was a line of questioning of appellant’s job duties, occupational history,

medical history and use of hearing protection.

Q: Since the new bowl came on board, that’s created over a hundred jobs,

hasn’t it.

Ms. Murray: Objection.

Court: Basis?

Ms. Murray: Relevance.

Court: Overruled. Continue.

A: I really don’t know how many.

Q: They doubled the size, I think, of the yard and added a hundred jobs?

A: It could be, yes.

Q: No further questions.

{¶ 62} Immediately following the question at issue, on re-direct appellant

responded to questions regarding the frequency and scope of his repair jobs or

assignments at the yard in 2015, which was after the yard was expanded in 2014.

{¶ 63} We also reviewed appellant’s closing argument to the jury and find that,

unprompted, appellant stated the following:

Paul asks you to be fair. He doesn’t know what’s a fair verdict. He

asks you to do what you think is right under the circumstances. But let me

suggest that defense counsel gave us some answers here. One of them, they

32. asked Paul if the railroad created a hundred jobs. The company seemed to

have chosen that a hundred jobs are worth the risk. * * *.

{¶ 64} During the entire course of the lengthy trial the trial court repeatedly ruled

on objections raised by both parties. If the trial court erred in this particular evidentiary

ruling, it was harmless, which appellant admits had “no bearing, even tangentially” on the

elements of his claims or appellee’s defenses.

{¶ 65} We do not find the trial court abused its discretion when it overruled

appellant’s relevance objection during trial. We do not find the trial court’s attitude was

unreasonable, arbitrary or unconscionable. We do not find a substantial right of appellant

was affected by the trial court’s evidence admissibility decision.

{¶ 66} Appellant’s third assignment of error is not well-taken.

4. Jury View

{¶ 67} On April 17, 2018, appellant filed a motion for jury view, pursuant to R.C.

2315.02, arguing the jury’s fact finding role would benefit from viewing the size and

scale of the railroad operation and hear the volume, frequency and proximity of the

“reality of the circumstances.” Appellant sought specific views to be pointed out to the

jury and that the jury wear hearing protection during the view. Appellant argued the jury

view would not prejudice appellee.

{¶ 68} Appellee opposed the motion, and on May 2, 2018, the trial court’s

judgment entry states, “This Court holds that a Jury View is not necessary or proper and

there is a danger of misleading the jury, and/or being prejudicial. Additionally, there are

33. practical problems which hinder conducting a jury view in this particular case.” The trial

court reached its conclusion after analyzing five areas of concern:

In sum, this Court finds that there is very, very little to be gained

from the Jury View. There is greater danger the jury would be misled by

sensory observation during the Jury View, which isn’t evidence, and

confuse that with what is relevant – Plaintiff’s workplace experience and

exposure. A jury view would not be representative of Plaintiff’s job duties

and placement in the railyard. Photographic and aerial exhibits can

adequately display the size and scale of Defendant’s operations; Plaintiff’s

position within the railyard and the location of the retarder vis-à-vis the

locations Plaintiff most frequently works. Defendant’s operational and

safety rules serve as significant, if not impossible, impediments to

conducting a jury view in this particular case.

{¶ 69} We review a trial court’s decision on a motion for a jury view pursuant to

R.C. 2315.02 for an abuse of discretion. Davis v. State, 118 Ohio St. 25, 34, 160 N.E.

473 (1928). R.C. 2315.02 states in relevant part:

If the court is of the opinion that it is proper for the jurors to have a

view of property which is the subject of litigation, or of a place where a

material fact occurred, it may order them to be conducted in a body under

the charge of an officer to such property or place, which shall be shown to

them by a person appointed by the court for that purpose.

34. {¶ 70} We are guided by the Ohio Supreme Court’s reminder that a jury view is

not, standing alone, evidence of any fact not otherwise established at trial. Perry v.

Eastgreen Realty Co., 53 Ohio St.2d 51, 55, 372 N.E.2d 335 (1978). “The view by the

jury of the property which is the subject of litigation, or of the place where a material fact

occurred * * * is solely for the purpose of enabling them to apply the evidence offered

upon the trial.” Machader v. Williams, 54 Ohio St. 344, 43 N.E. 324 (1896), syllabus.

{¶ 71} We find that what appellant sought through the jury view was to furnish

evidence that it claimed could not be conveyed by other evidence admitted at trial;

however, that is appellant’s burden at trial. “A view of a premises is conducted for ‘the

purpose of enabling the trier of fact to understand and apply the evidence offered at trial’

and ‘is not conducted to gather evidence; rather, the case must be tried and determined

upon the evidence offered at trial.’” (Citations omitted.) Koller v. Zellman, 11th Dist.

Geauga No. 2018-G-0153, 2018-Ohio-2463, ¶ 25. Appellant testified, along with

numerous other witnesses, as to the size and layout of the railyard, railyard operations,

and the loud noises from those operations, among other facts.

{¶ 72} We reviewed the entire record and do not find the trial court abused its

discretion when it denied appellant’s motion for a jury view. We do not find the trial

court’s attitude was unreasonable, arbitrary or unconscionable.

{¶ 73} Appellant’s fourth assignment of error is not well-taken.

35. 5. Witness Cross-Examination

{¶ 74} In support of his fifth assignment of error, appellant argued the trial court

erred when it limited his cross-examination of appellee’s fact witness, Mark Dudle,

appellee’s corporate representative. Appellant questioned Mr. Dudle regarding a noise

survey from 2015 and the underlying data collected by another person for that noise

survey. Appellant wanted the jury to hear Mr. Dudle admit that the data collected by the

other person, who was not a witness, was not in a document “in the Courtroom.” After a

sidebar during which appellee argued exclusion based on work-product privilege and

irrelevance, appellant agreed to discontinue the question, and the trial judge struck the

question, without objection.

{¶ 75} Nevertheless, appellant argued the evidence was relevant and not protected

by the work-product privilege. Appellant argued the data was relevant because it “can

establish whether noise levels in the Yard were sufficient to cause [appellant’s hearing

loss] * * * [and] establishes NS’s possible knowledge of hazardous conditions in the

Yard – which is directly relevant to NS’s duty under FELA.” According to appellant,

“Paul should have been permitted to inquire of Dudle regarding the existence of the 2015

data; whether Dudle had seen it; whether it had been entered into evidence already at

trial; and other topics related to the data.” Appellant further argued because appellee

failed to meet its burden of proving the work-product privilege applied, the jury should

have heard this evidence which “would have weighed heavily on a central question

36. considered by the jury (whether NS negligently failed to provide Paul with a reasonably

safe place to work) * * *.”

{¶ 76} The cross-examination question at issue occurred on the third day of trial:

Q: You’ve seen the data collected on the survey.

Q: Okay. And – but we don’t have that document in the Courtroom.

We didn’t see that by your testimony today, true?

{¶ 77} Appellee then requested a sidebar. According to the record, the following

exchange concluded the sidebar:

Mr. Palmer: Well, we raised an objection. They never filed a

motion to compel or never raised it with the Court. It’s not employee

testing and it could – I know it’s been litigated in the other Court, but there

– we filed a motion for reconsideration on issues still pending in that Court.

I mean, it’s not –

Mr. Murray: I’ll move on. I’ll move on.

Court: Okay.

Mr. Lyda: Could we ask that the jury disregard that, Judge?

Court: Well, I think it should be cleaned up, maybe ask if it was

employee related.

Mr. Murray: No, I’m not going to do that.

Court: Okay. Then I’m going to strike it.

37. {¶ 78} We review the trial court’s decisions on the scope of cross-examination and

the admissibility of evidence during cross-examination for an abuse of discretion.

Calderon v. Sharkey, 70 Ohio St.2d 218, 222, 436 N.E.2d 1008 (1982); O’Brien v.

Angley, 63 Ohio St.2d 159, 163, 407 N.E.2d 490 (1980). In this case, the trial court

ordered stricken the disputed cross-examination question because appellant announced,

“I’ll move on. I’ll move on”; did not withdraw the question; and refused to rephrase the

question to determine relevance to this litigation. After the trial court ordered the

question stricken, appellant did not object.

{¶ 79} Where appellant did not object on the record to the trial court’s

determination to strike the question appellant asked appellee’s witness on cross-

examination, he waived all but plain error. Risner v. Ohio Department of Natural

Resources, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 26-27. The Supreme

Court of Ohio has instructed us to strictly limit the plain error doctrine “to the extremely

rare case involving exceptional circumstances when the error, left unobjected to at the

trial court, rises to the level of challenging the legitimacy of the underlying judicial

process itself.” (Emphasis sic.) Id. at ¶ 27. We do not find the record shows this was

such an exceptional circumstance.

{¶ 80} We reviewed the entire record and find appellant did not meet his burden to

show there was an actual and obvious plain error from which the jury clearly would not

have found in favor of appellee. We do not find the trial court abused its discretion when

38. it struck appellant’s cross-examination question. We do not find the trial court’s attitude

was unreasonable, arbitrary or unconscionable.

{¶ 81} Appellant’s fifth assignment of error is not well-taken.

6. Closing Argument

{¶ 82} In support of his sixth assignment of error, appellant argued the trial court

erred by overruling his objections to appellee’s statements during closing arguments that

were misstatements of the law, confused the jury, and was prejudicial to appellant.

Appellant argued, “In a FELA action, assumption of the risk is not a defense to liability.

Therefore, it is improper for the defense to argue, as it did, that a railroad worker like the

Plaintiff has to expect some dangers to be present in the workplace.” Appellant further

argued appellee’s argument was not supported by the evidence and did not fairly

characterize the evidence presented at trial.

{¶ 83} Prior to the start of appellee’s closing argument on the sixth day of trial, the

record shows the following sidebar exchange after appellant concluded his closing

argument and before appellee commenced its closing argument:

Mr. Murray: I wanted to object to the * * * exhibit * * * in light of

the Court’s ruling and the jury instructions. It’s a demonstrative that he’s

going to put up and it suggests some sort of risk.

Court: What – what – what are you talking about?

Mr. Murray: It’s a – it’s a board he’s going to use. He showed it to

me, and we’ve talked about it, but Joe points out that after the instruction –

39. Mr. Galea: Well, it really doesn’t have to do with the instruction

itself. Assumption of the risk is never in an FELA case, and so to the

extent that that demonstrative will suggest that some workplaces are safer

than others, I think that gets into assumption of the risk territory by saying

almost that he’s going to be in a situation where we can’t make everything

safe for him. Yes, that’s true, but he’s not assuming the risk of those type –

Mr. Lyda: We’re not making an argument. The instruction is that

the railroad (inaudible) ensure the safety of the employee.

Court: That’s right.

Mr. Lyda: So –

Court: Yeah.

Mr. Murray: Okay.

Court: Assumption of the risk is not an issue.

Mr. Murray: I just didn’t want you to be (inaudible).

Court: Yeah. No.

Mr. Murray: Give it (inaudible).

Court: I’ll weigh that.

{¶ 84} Appellee then proceeded with closing arguments with one objection

by appellant on a different issue:

Mr. Lyda: There was a member of the jury panel who said that he

went to the Cleveland –

40. Mr. Murray: Objection, Your Honor.

Mr. Murray: You can’t have a jury – a juror testify.

Court: Sustained.

{¶ 85} It is well established that closing arguments are not evidence for the fact-

finder. Stafford v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 2008-Ohio-3948, 896

N.E.2d 191, ¶ 26 (10th Dist.), citing State v. Frazier, 73 Ohio St.3d 323, 338, 652 N.E.2d

1000 (1995). Parties are granted some latitude during closing argument “so long as

counsel stays within the boundaries of the record.” Frazier at 338. Counsel may

comment during closing argument on evidence adduced at trial, except for “evidence

which was excluded or declared inadmissible by the trial court or otherwise make

statements which are intended to get evidence before the jury which counsel was not

entitled to have the jury consider.” Villella v. Waikem Motors, Inc., 45 Ohio St.3d 36, 39,

543 N.E.2d 464 (1989), quoting Drake v. Caterpillar Tractor Co., 15 Ohio St.3d 346,

347, 474 N.E.2d 291 (1984). Persistent abuse during closing argument may be grounds

for a new trial. Carper v. Snodgrass, 6th Dist. Lucas No. L-03-1065, 2003-Ohio-6975,

¶ 15.

{¶ 86} We find the trial court explicitly instructed the jury that closing arguments

are not evidence:

Court: This is closing arguments, and, once again, this is what

you’ve seen in television and movies. This is where the parties are going to

41. be able to argue or a summation of what they believe their evidence has

shown in their case. The important thing to remember, and although

they’re both outstanding attorneys on both sides of the table, it’s not

evidence. It’s a summation of what they believe they have proven, okay, or

what the evidence has shown and any reasonable inferences from that

evidence, okay?

{¶ 87} We presume the jury followed the trial court’s instructions. State v. Jones,

135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194. In addition, appellant failed

to show that the jury considered appellee’s closing arguments as substantive evidence.

Grimm v. Summit Cty. Children Servs. Bd., 9th Dist. Summit No. 22702, 2006-Ohio-

2411, ¶ 50.

{¶ 88} We reviewed the entire record and do not find the trial court abused its

discretion when it overruled appellant’s objection prior to appellee’s closing argument.

We do not find appellee persistently abused the scope of closing argument. We find the

trial court properly instructed the jury on the limitations of closing argument. We do not

find the trial court’s attitude was unreasonable, arbitrary or unconscionable.

{¶ 89} Appellant’s sixth assignment of error is not well-taken.

7. Cumulative Error

{¶ 90} In support of his seventh assignment of error, appellant argued that the

cumulative effect of all of the trial court’s errors warrant reversal of the judgment and

42. granting a new trial. Appellee responded that the trial court did not err, so there was no

cumulative effect.

{¶ 91} This court has held that “the cumulative effect of errors occurring in a trial

court’s evidentiary rulings can deprive a party of a full and fair hearing.” Furr v. State

Farm Mut. Auto. Ins. Co., 128 Ohio App.3d 607, 631, 716 N.E.2d 250 (6th Dist.1998).

Where we find no trial court error to appellant’s prejudice in any of the alleged

assignments of error, there is no cumulative effect of errors that would have violated

appellant’s right to a full and fair hearing. Id.

{¶ 92} We reviewed the entire record and do not find the trial court cumulatively

abused its discretion when it determined issues on admissibility of evidence throughout

the course of this case and at trial. We do not find the trial court’s attitude was

unreasonable, arbitrary or unconscionable.

{¶ 93} Appellant’s seventh assignment of error is not well-taken.

B. Conclusion

{¶ 94} On consideration whereof, the judgment of the Erie County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed.

43. Taylor v. Norfolk S. Ry. Co. C.A. No. E-18-036

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. CONCUR. _______________________________ JUDGE

Christine E. Mayle, J. _______________________________ CONCURS AND WRITES JUDGE SEPARATELY.

MAYLE, J.

{¶ 95} I concur in the foregoing judgment. I write separately with respect to the

first assignment of error because I believe that the trial court abused its discretion when it

excluded the causation opinions of appellant’s treating physician, Dr. Erik Nielsen.

However, I nonetheless concur with the majority’s decision to affirm the trial court

judgment because I believe that the trial court’s error was harmless.

44. {¶ 96} The trial court granted appellee’s motion in limine to exclude Dr. Nielsen’s

causation opinions because, as part of his differential diagnosis, Dr. Nielsen relied upon

appellant’s own statements that he was exposed to “loud noise” as a railroad employee.

In its written opinion, the trial court stated that it excluded Dr. Nielsen’s causation

opinions because he did not have any information about appellant’s specific job duties,

nor did he have “any quantifiable data” regarding the “specific noise exposures on the

job.” The majority similarly concludes that Dr. Nielsen’s causation testimony was

inadmissible because he “did not review any of appellant’s work history records,

including medical records, clinical history, audiograms, noise exposure, hearing

protection devices or data, job duties, or photographs of appellee’s railyard prior to

rendering his medical causation opinion.” I disagree.

{¶ 97} Dr. Nielsen is not an industrial hygienist who evaluates workplace

conditions or noise exposure assessments. Dr. Nielsen is a treating physician whose

expertise is patient care in the medical field of otolaryngology. As appellant’s

otolaryngologist, Dr. Nielsen treated appellant after he narrowed down the probable

cause of his hearing loss and tinnitus after taking a patient history, conducting a

comprehensive physical examination, and reviewing medical records—including the

results of multiple audiograms and an auditory brainstem response (“ABR”) that his

office conducted, as well as the medical records of appellant’s physical exams with Dr.

Nielsen’s physician assistant. This is a well-established reliable methodology for medical

45. testimony from a treating physician. See, e.g., Cutlip v. Norfolk S. Corp., 6th Dist. Lucas

No. L-02-1051, 2003-Ohio-1862, ¶ 45.

{¶ 98} Indeed, “[i]f Ohio courts considered the examination of a patient, review of

his medical records, and the taking of his history to be an unreliable methodology, the

bulk of all medical testimony would be inadmissible.” Hutchins v. Delco Chassis Sys.,

2d Dist. Montgomery No. 16659, 1998 WL 70511, *4 (Feb. 20, 1998); see also Warner

v. DMAX Ltd., LLC, 2d Dist. Montgomery No. 26644, 2015-Ohio-4406, ¶ 17. While Dr.

Nielsen was not personally familiar with appellant’s specific work conditions or specific

levels of noise exposure, “[w]eaknesses in the factual bases of an expert’s testimony go

to the weight and credibility of the expert’s testimony, not to its admissibility.” Dejaiffe

v. KeyBank USA Natl. Assn., 6th Dist. Lucas No. L-05-1191, 2006-Ohio-2919, ¶ 19.

{¶ 99} In Warner, for example, a medical expert opined that plaintiff’s injuries

were “‘caused by the push, pull movements and repetitive movements used to perform

her job * * *.’” Warner at ¶ 19. The appellate court determined that this opinion was

admissible even though the expert did not have any information about plaintiff’s job

duties other than information that the plaintiff provided herself. The expert witness in

Warner—like Dr. Nielsen in this case—“was the treating physician, and he based his

opinion on his records and what he perceived, which included his personal observations

and his patient’s description of her working environment.” Id. at ¶ 17. The appellate

court concluded that this was a reliable methodology and that the treating physician,

testifying as a medical expert, “‘could have been cross-examined relative to a possible

46. change of opinion after being told of the prior and subsequent injuries [or different

working conditions or duties], for the primary purpose of cross-examination is to test the

accuracy, truthfulness, soundness, and thereby the credibility, of testimony given by a

witness on direct examination.’” (Brackets sic.) Id., quoting Baird v. Cincinnati Transit

Co., 110 Ohio App. 94, 99, 168 N.E.2d 413 (1st Dist.1959).

{¶ 100} Likewise, in Hutchins, 2d Dist. Montgomery No. 16659, 1998 WL 70511,

at *5, the appellate court concluded that a treating physician’s opinion that plaintiff’s

injuries were caused by a workplace accident was admissible even though the treating

physician did not have any independent information regarding plaintiff’s workplace other

than information that was provided by the plaintiff himself. The appellate court

explained that, under Evid.R. 705, an expert may provide opinions in response to

hypothetical questions that assume the existence of facts outside the expert’s own

personal knowledge as long as those facts are somewhere in the record. Id. For example,

“‘[a]n expert giving an opinion not based upon his personal knowledge is in effect giving

hypothetical testimony-“If A, B, and C are true, then, based upon my expertise in the area

of fire causation, the defendant’s act proximately caused the fire.”’” Id., quoting

Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc., 110 Ohio App.3d 732,

739, 675 N.E.2d 65 (2d Dist.1996). Thus, in this regard, the hypothetical questions to the

doctor were appropriate. The court further noted that the treating physician did not rely

“wholly” upon the plaintiff’s history—as the defendant argued—because the physician

47. performed his own physical examination and found that his opinion “was also supported

by the consistency of [plaintiff’s] injuries with his version of events * * *.” Id. at *6.

Similarly here, Dr. Nielsen repeatedly testified that the medical records he

reviewed were consistent with noise-induced hearing injuries. That is, after reviewing

the initial audiogram that his office performed in 2010, Dr. Nielsen testified that it was

likely that appellant had noise-exposure damage because “noise exposure classically will

show this little drop worse at about 4000 hertz,” which is what his 2010 audiogram

showed. Dr. Nielsen further testified that appellant’s 2015 audiogram showed

“significant worsening” between 2010 and 2015, which was also consistent with noise

exposure. The trial court did not exclude these statements.

{¶ 101} The trial court did, however, exclude all causation opinions that either

depended upon statements that appellant made to Dr. Nielsen regarding appellant’s work

history, or that were given in response to a hypothetical question in which appellant’s

attorney “assumed” for purposes of questioning that appellant would testify regarding

certain facts. For example, the trial court excluded Dr. Nielsen’s testimony that “in view

of his history, that * * * I believe he said that there was more noise at work [between

2010 and 2015] than there had been, that I felt that the ringing was probably—the

worsening of his ringing was probably related to work.” The trial court also excluded his

testimony that, assuming that appellant testified that he was exposed to daily and routine

noise emanating from the retarders at the railyard, such noise exposure “could be causing

some additional hearing loss, but, more importantly, it would make—could make his

48. tinnitus worse.” The trial court also excluded his testimony that, assuming that the

“only” noise exposure appellant had at the time was at the railyard, that it was “probable”

that such noise exposure made his tinnitus worse. The trial court also excluded Dr.

Nielsen’s testimony that, assuming that appellant “stopped using guns except for one

occasion between 2010 and 2016,” that “[t]he worsening of the tinnitus I felt was related

to his exposure at work.” The court also excluded testimony in which Dr. Nielsen stated

that, “from [appellant’s] history, if he is no longer shooting guns and he shows change in

his hearing, that exposure has—of greater sounds and louder sounds would definitely

cause his tinnitus to be worse.”

{¶ 102} The exclusion of such causation opinions was an abuse of discretion and

contrary to the Ohio Rules of Evidence for several reasons. Under Evid.R. 705, “[t]he

expert may testify in terms of opinion or inference and give the expert’s reasons therefor

after disclosure of the underlying facts or data. The disclosure may be in response to a

hypothetical question or otherwise.” And under Evid.R. 703, an expert may provide

testimony regarding “inferences” that are based upon facts outside his or her personal

knowledge as long as such facts are otherwise contained in the record—which they were

in this case.

{¶ 103} Most importantly, as the courts recognized in Warner and Hutchins, it is

appropriate for a treating physician to base his or her opinion testimony on patient

history, review of his medical records, and patient examination. Any weaknesses in Dr.

Nielsen’s “underlying factual assumptions may affect credibility, but do not affect

49. admissibility.” Warner, 2d Dist. Montgomery No. 26644, 2015-Ohio-4406, at ¶ 18.

Indeed, in this case—as in Warner—the appellee’s attorney did challenge Dr. Nielsen on

cross-examination with a series of questions that revealed that “he was not personally

familiar with all of the working conditions * * *” and that the plaintiff’s own history “did

not contain a complete recitation of all the facts * * *.” Id. It should have been up to the

jury to assess Dr. Nielsen’s credibility after such weaknesses in his causation opinion

were exposed through cross-examination. “The absence of certain facts, or the failure of

proof of others, goes to the weight and credibility of the [expert] testimony, and not to its

admissibility. The burden falls on the opposing party to discredit or minimize the

expert’s testimony through cross-examination, just as defense counsel attempted to do in

this case.” Johnson v. Knipp, 36 Ohio App.2d 218, 220, 304 N.E.2d 914 (9th Dist.1973)

{¶ 104} Moreover, Dr. Nielsen’s differential diagnosis was an accepted and

reliable methodology under Evid.R. 702. As this court recognized in Cutlip, 6th Dist.

Lucas No. L-02-1051, 2003-Ohio-1862,

“[d]ifferential diagnosis is defined for physicians as ‘the

determination of which of two or more diseases with similar symptoms is

the one from which the patient is suffering, by a systematic comparison and

contrasting of the clinical findings.’ The elements of a differential

diagnosis may consist of the performance of physical examinations, the

taking of medical histories, and the review of clinical tests, including

50. laboratory tests. A doctor does not have to employ all of these techniques

in order for the doctor’s diagnosis to be reliable.

Id. at ¶ 45, quoting Kannankeril v. Terminix Internatl., Inc., 128 F.3d 802, 807 (3d

Cir.1997).

{¶ 105} And here, Dr. Nielsen actually did employ all of these techniques when

performing his differential diagnosis—he and his PA performed comprehensive physical

examinations of appellant, took appellant’s medical history, and performed a variety of

clinical tests, including audiograms and an ABR. As he performed these techniques, Dr.

Nielsen systematically ruled out a tumor, smoking, and appellant’s age as unlikely causes

of appellant’s hearing loss and tinnitus—thereby leaving noise exposure as the probable

cause. Further, as Dr. Nielsen testified, appellant’s audiograms were entirely consistent

with appellant’s self-reported noise exposure (and, also, an increase in noise exposure),

which further supported his causation opinion. Hutchins, 2d Dist. Montgomery No.

16659, 1998 WL 70511, at *6 (physician’s causation opinion “was also supported by the

consistency of [plaintiff’s] injuries with his version of events * * *.”).

{¶ 106} The majority, however, finds that Dr. Nielsen’s differential diagnosis was

unreliable—and therefore inadmissible—because, unlike the plaintiff’s expert witness in

Cutlip, there is no indication that Dr. Nielsen reviewed any historical medical records.1

1 The majority states that “Dr. Nielsen testified he did not review appellant’s medical records or review data related to such medical records.” But, from Dr. Nielsen’s testimony, it is clear that he did review certain medical records—including records from

51. See Cutlip at ¶ 12 (stating that the physician knew from “earlier medical records” that

plaintiff had used an inhaler in the past (emphasis added)) and ¶ 13 (stating that the

physician had reviewed plaintiff’s “previous medical records” (emphasis added)).

Although we noted in Cutlip that the treating physicians had performed a “thorough

deferential diagnosis,” id. at ¶ 48, that does not suggest that those same exact techniques

and processes are always required for a physician’s differential diagnosis to be reliable

and admissible. To the contrary, we expressly recognized in Cutlip that “‘[a] doctor does

not have to employ all of these [differential diagnosis] techniques in order for the

doctor’s diagnosis to be reliable.’” Id. at ¶ 45, quoting Kannankeril at 807. In fact,

courts recognize that “there will be some cases in which a physician can offer a reliable

differential diagnosis without examining the patient, looking at medical records, taking a

medical history, and performing laboratory tests.” In re Paoli R.R. Yard PCB Litigation,

35 F.3d 717, 762 (3d Cir.1994); see also Kannankeril at 808, quoting Paoli at 759 (“‘to

the extent that the district court concluded otherwise [i.e., that a differential diagnosis

made on less than all types of information cannot be reliable], we hold that it abused its

discretion.’” (Brackets sic.)).

{¶ 107} Again, in this case, Dr. Nielsen did examine the patient, did look at

medical records, did take a medical history, and did perform various medical tests.

Although he did not obtain and review all possible information that could conceivably

appellant’s visits with his PA, the audiograms and ABR that his office performed, and his own medical records of his various examinations of the appellant.

52. have some bearing on his analysis—i.e., he did not review appellant’s historical medical

records, nor did he gather information regarding appellant’s job duties or specific

workplace noise exposure levels—“any weaknesses in the factual basis of an expert

witness’ opinion * * * bear on the weight of the evidence rather than on its

admissibility.” United States v. L.E. Cooke Co., Inc., 991 F.2d 336, 342 (6th Cir.1993).

{¶ 108} In sum, given that Dr. Nielsen’s differential diagnosis was a sufficiently

reliable methodology, and given that it was appropriate for appellant’s counsel to ask

hypothetical questions under Evid.R. 705 with “assumed” facts that were otherwise in the

record as required by Evid.R. 703, I believe that the trial court abused its discretion by

excluding Dr. Nielsen’s causation opinions.

{¶ 109} But, I believe that the trial court’s error was harmless. See Civ.R. 61

(“[n]o error in either the admission or the exclusion of evidence * * * is ground for

granting a new trial or for setting aside a verdict * * * unless refusal to take such action

appears to the court inconsistent with substantial justice. The court at every stage of the

proceeding must disregard any error or defect in the proceeding which does not affect the

substantial rights of the parties.”). That is because the jury concluded that appellee did

not breach its duty of care to appellant under the Federal Employer’s Liability Act—i.e.,

the jury found that appellee did not fail to provide appellant with a reasonably safe place

to work—and, therefore, did not reach the issue of causation. The trial court’s error in

excluding Dr. Nielsen’s causation opinions was therefore harmless. See Hopkins v.

Mason, 9th Dist. Medina No. 06CA0103-M, 2007-Ohio-4345, ¶ 11 (trial court’s error in

53. excluding expert testimony on damages was harmless because the jury did not find that

appellee breached the contract at issue); Grubbs v. Admr., Bur. of Workers’ Comp., 5th

Dist. Ashland No. CA 1236, 1998 WL 517693, *4 (Apr. 9, 1998) (trial court’s error in

excluding expert testimony was harmless because the plaintiff failed to establish a

separate element of his workers’ compensation claim).

{¶ 110} I therefore agree with the majority’s decision to affirm the trial court

judgment.

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

54.