{¶ 37} While I concur in the disposition of the second and third assignments of error, I write separately to address the first assignment of error, which raises the issue whether the trial court erred in excluding Mileti's testimony on cross-examination as to possible causation.
{¶ 38} Cross-examination can serve several purposes. It may show that a witness should not be believed. SeeDorsey v. Parke (C.A.6, 1989), 872 F.2d 163, 167 (noting that a primary purpose of cross-examination is to challenge whether a witness was sincerely telling what he or she believed to be the truth). Cross-examination may also be used to allow the admission of "facts which support a theory contrary to the one advanced by [the opposing side]." McGowan v.Goodyear Tire Rubber Co. (Apr. 15, 1982), 4th Dist. No. 443, 1982 WL 3422. Destructive cross-examination is designed to attack the credibility of the witness. On the other hand, constructive cross-examination is designed to secure concessions from the witness to be used to support or prove alternative theories or explanations for certain events.
{¶ 39} While each type of cross-examination is an important tool, and is critical to leading a jury to the truth, how a party can use information elicited during cross-examination is a separate matter. For instance, evidence elicited during cross-examination may be admissible for impeaching the credibility of a witness but insufficient to support a questioner's theory of the case. Likewise, evidence elicited on cross-examination may, without more, provide a sufficient legal basis to support or prove an alternative theory or explanation. Proper jury instructions and arguments of counsel can fairly insure that juries do not use evidence for an improper purpose. See, e.g., Barnett v. Sexten, 10th Dist. No. 05AP-871, 2006-Ohio-2271, 2006 WL 1230676, ¶ 14 ("Where evidence is admitted for one purpose but inadmissible for other purposes, the risk that the evidence will be *Page 352 used for its improper purpose can generally be cured by a limiting instruction explaining the proper use of such evidence"). Thus, if requested, a proper jury instruction would highlight the distinction, noted above, by informing jurors that such testimony may be considered (1) only for impeachment purposes, (2) as admissible to prove an alternative theory or explanation for the circumstances at issue, or (3) as corroboration of an established or subsequently established competent alternative theory.
{¶ 40} If an expert witness concedes that the position advanced by the questioner is more likely than not to be true, then the answer may be used as substantive evidence. On the other hand, if the expert concedes only that the position could, but is not likely to occur, such evidence would be insufficient to support an argument that the position occurred. In the case of Stinson v. England (1994),69 Ohio St.3d 451, 633 N.E.2d 532, the Supreme Court of Ohio addressed the competence of testimony in support of an alternative theory or explanation for the circumstances at issue regardless of whether such testimony was advanced by the plaintiff or defendant or elicited on direct or cross-examination of any witness. The ruling of Stinson has been cited as a basis for unduly restricting cross-examination of experts. I believeStinson does not preclude or necessarily limit cross-examination when the purpose of the cross-examination is to attack the credibility of the testifying witness or to attack the testimony of another witness or other evidence. Such "destructive cross-examination" is not necessarily limited byStinson, as Stinson addresses only the threshold for the admissibility of constructive cross-examination to prove an alternative theory.
{¶ 41} The analysis, thus, first begins by determining whether the cross-examination is constructive or destructive. If the elicited testimony is constructive cross-examination to support an alternative theory or explanation for circumstances at issue in the case, then the court should apply the standards set forth in Stinson and require a more-probable-than-not threshold before permitting admission. A secondary analysis would then be utilized to determine whether the cross-examination, even though incompetent under Stinson, is admissible to (1) impeach the witness' credibility, (2) impeach the testimony of another witness' credibility or other evidence, or (3) provide some corroboration to another expert's testimony that did establish the position to a reasonable degree of probability. The evidence elicited on cross-examination thus may be admissible, if relevant, for these limited purposes. A "not probable concession" could support an argument that attacks or affects the credibility of an expert witness or adds some corroboration to a proponent's expert witness's contrary position.
{¶ 42} In the instant case, Mileti, the only testifying physician, conceded on cross-examination that paddling a kayak could be a cause of appellee's injury, but *Page 353 further opined that it was not probable. Such testimony would be insufficient to argue to the jury that kayaking caused injury to appellee. The trial court properly excluded such testimony on the basis of being incompetent to support an alternative theory or explanation for appellee's injury. The next question to be addressed is whether the destructive cross-examination is admissible to (1) attack the credibility of the witness, (2) attack the credibility of another witness, or (3) provide corroboration to a competent, alternative explanation. Since appellant did not provide competent evidence for the alternative explanation in his case-in-chief, the concessions of Mileti are not relevant to corroborate such explanation, as none was advanced by appellant. Likewise, such testimony or concession was not inconsistent with other witnesses called by either party, since no other experts testified at trial. The only remaining issue for the court to address is whether the concessions, although "not probable," are relevant to attack the credibility of Mileti. The concession that kayaking could be a causative factor if appellee had experienced pain after kayaking could arguably be used by appellant to argue that Mileti did not consider all of the relevant factors and that the basis of his opinion may be flawed, thus affecting his credibility. Appellant could argue that the jury should simply not believe Mileti's testimony. The jury should be able to know if the physician considered whether kayaking could, under certain circumstances, cause this type of injury, i.e., a denial might call into question his credibility, while a concession might call into question whether he has evaluated all the history. Thus, I conclude that the trial court erred in sustaining the objection to appellant's question.
{¶ 43} I find, however, the exclusion of the testimony at issue to be harmless under the facts of this case. Part of the excluded expert's testimony included counsel's question whether age and level of activity could be a cause of the degeneration appellee suffered prior to the accident. In response, the physician stated he could not rule it out. In his deposition, however, the physician admitted that degeneration occurs over time, and, therefore, the excluded testimony was nothing more than a rehash of what the physician had already testified about. The physician explained, in the objected-to answer, that the degeneration is a chronic condition and that the accident caused an irritation and aggravation of that condition.
{¶ 44} Further, the expert's concession on cross-examination was conditional upon appellee experiencing similar symptoms while kayaking, but there was no evidence in the record that appellee had experienced pain in her shoulder after kayaking. In the absence of such evidence, the testimony is not relevant as it does not make a fact more or less probable than it would have been without that evidence. Evid. R. 401. Because Mileti's opinion was conditional upon appellee *Page 354 having experienced similar symptoms while kayaking, a fact never established, the exclusion of the evidence was clearly harmless error.
{¶ 45} Accordingly, I concur with the disposition of the first assignment of error on the basis that the exclusion of the subject testimony constituted harmless error.