{¶ 46} Being unable to agree with the majority opinion's or the concurring opinion's disposition of the first and second assignments of error, I respectfully dissent.
{¶ 47} As to the first assignment of error, while I agree with the concurring opinion that error occurred, I disagree that the error was "harmless." At issue here is a one-doctor-witness personal-injury case. The defense did not call its own expert to prove an alternative cause and was cross-examining the plaintiffs doctor as to the soundness and credibility of his opinion of causation. Cross-examination is the accepted method to test the soundness of the expert's opinion and to require an answer as to why and how the expert came to the conclusion that the accident was the probable cause of plaintiffs injury over and above other possible causes. In the majority's view, once an expert espouses a probable cause, the defense may not even ask the witness if he considered and rejected other possible causes or even acknowledged that other possible causes exist.
{¶ 48} In this case, there is evidence in the form of testimony from the plaintiff, and to some extent, her doctor, that the plaintiff had been and continues to be a very physically active person engaging in physical conditioning, which includes rollerblading, kayaking, and weightlifting. Plaintiffs doctor even acknowledges these activities as strenuous and would not rule out kayaking as the type of activity which could aggravate the preexisting shoulder tendonopathy. Moreover, the excluded testimony reveals not only did the plaintiffs doctor not rule out the plaintiffs physical activity as being a possible aggravating factor, but ultimately he decided it was not the more probable cause, due to the plaintiffs own history of not reporting the activity as causing pain. Thus, we have a situation where Mileti's "probable" causation opinion rests entirely on the medical history provided to him by the plaintiff. This raises an issue with respect to the strength and credibility of his opinion, which is linked 100 percent to the credibility of a heavily interested party in reporting symptoms. The jury did not get to consider any of this in weighing the strength of Mileti's ultimate opinion. All this in a case where the plaintiff is reporting a pain level of two on a ten scale, and evidently kayaking during some of the time period of physical therapy (i.e., kayaking in May and the final visit with Mileti being in July). *Page 355
{¶ 49} The only reason to exclude questions to a plaintiffs doctor on cross-examination as to how other activities were excluded as causes would be if there were no evidence in the case that the plaintiff engaged in those activities. But that is not the case here where plaintiff, her sister, and even Mileti testified to these very strenuous activities. The doctor was not made to tell the jury what was ruled out and why — only what was ruled in. So how does a jury weigh the strength and credibility of that opinion?
{¶ 50} Under these circumstances, the trial court's denial of the basic right of cross-examination to test the credibility of both the plaintiff and her doctor's opinion with respect to her claimed medical injury was not only error but error that was far from harmless. Where it turns out that the doctor's opinion on causation versus unrelated causative factors rests solely on the reporting history of the plaintiff to her doctor, then the jury must be able to weigh everyone's credibility. But here the jury did not get that chance and, thus, the defendant did not get a fair consideration of the issue.
{¶ 51} Both the majority opinion and the concurring opinion cite Stinson v. England (1994),69 Ohio St.3d 451, 633 N.E.2d 532, as setting forth the law of Ohio governing this matter. However, a review of Stinson reveals that that case actually permitted testimony by adefense medical expert to support an alternative theory ofcausation, which was stated in something less than a "reasonable probability." In Stinson, the opinion included a discussion of three possible causes, including the plaintiffs expert's theory and the conclusion that the defense theory was the more possible. The Ohio Supreme Court reasoned that since the competing experts' opinions included the plaintiffs expert theory as to a "possible" cause, it was proper to testify to having compared the two possibilities in finding one "more possible" than the other.
{¶ 52} In the case at bar, we have a situation in which the barred questions are asked of only the plaintiffsexpert, which certainly includes the plaintiffs theory of causation within a reasonable degree of medical probability but is also the plaintiffs expert's explanation of how he arrived there. If one cannot question how the expert arrived at his conclusion, then it is difficult to see how one can test that conclusion through cross-examination.
{¶ 53} Giving the aforesaid, I would conclude the trial court's exclusion of the defense cross-examination questions to be error, and because the jury was therefore unable to weigh the plaintiffs or her doctor's credibility against the opinion, I would further conclude that the error was not harmless.
{¶ 54} As to the second assignment of error, the plaintiffs medical expert (her treating physician who is a board-certified orthopedic surgeon) rendered an opinion that the only condition suffered by the plaintiff attributed to the accident in this case was an inflammation or aggravation of a preexisting shoulder *Page 356 situation known as rotator tendonopathy. The plaintiff had 20 physical therapy sessions and was released in a year. Plaintiffs doctor ruled out a rotator-cuff tear and, although he recognized that the plaintiff had some impingement-like symptoms, he did not conclude that she had a shoulder impingement or a condition known as bursitis.
{¶ 55} Plaintiff, who was an anesthesiology registered nurse for 20 years, testified as to her medical condition. The defense objected to the plaintiffs testifying as an expert, to which plaintiffs counsel argued: "She is a medical expert. She's got extensive training in that and she's certainly qualified to tell us what impingement syndrome is. She testified she had impingement syndrome symptoms, and I asked her what is that?"
{¶ 56} Therefore, plaintiff was offering herself as a medical expert in this case. Over objection, she testified that the accident caused her to suffer a classic impingement syndrome and went on to explain precisely and in great medical detail what that entailed. Plaintiff also added that she suffered from a bursitis condition and likewise described in great detail what that included.
{¶ 57} The trial court simply overruled the objection without explanation, did not rule on the plaintiffs qualification (or lack thereof), and allowed her to testify as an expert medical witness. Moreover, plaintiff not only testified in detail as if she were an orthopedically trained expert, but she also contradicted her own doctor, introduced an "impingement" and a "bursitis" condition into the case, and said both conditions were supported by the MRI. Thus, plaintiff is testifying as an orthopedic and radiology expert medical witness though she was never listed as an expert on the plaintiffs witness list, would certainly not be qualified as to these specialties based only on being an anesthesiology registered nurse, and is the only medical support for additional "related" conditions, neither of which is supported by her doctor.
{¶ 58} I am not unmindful of the fact that a plaintiff may testify as to his or her pain and suffering and medical treatments. However, he or she may not, simply because he or she is a plaintiff, become specialized medical experts able to testify to the diagnosis and causation in specific medical specialties. Without specific qualification of an expert medical witness, plaintiffs testimony is clearly in violation of Evid. R. 702.
{¶ 59} This error also is not harmless error as it is unknown what made up the jury's thinking with respect to plaintiffs injury when the jury found the damages to be over $50,000 in a case involving less than $7,000 in special damages. For example, did the jury consider an impingement syndrome and a bursitis condition in addition to an aggravation of the tendonopathy? Were those two medical conditions included within the aggravation? None of this is supported by the plaintiffs doctor, yet it was in evidence for the jury's consideration. *Page 357
{¶ 60} For the foregoing reasons, I would sustain appellant's first and second assignments or error, reverse the judgment of the trial court, and remand the matter to that court for a new trial, rendering appellant's third assignment of error moot.