As a preliminary matter, I believe the proper standard of review to be "abuse of discretion." The determination of whether a treatise has been established as "reliable authority" is left to the trial court's discretion under Evid.R. 104 (A). See staff notes; Weisenberger's Ohio Evid. (1999), Sections 706.1 and 706.3; Gianelli Snyder, Baldwins Ohio Practice, Evidence (1996), Section 706.4. See also St. v. Allard (1996), 75 Ohio St.3d 482 and State v. Heinish (1990), 50 Ohio St.3d 231. *Page 135
Based solely upon the stipulation that the trial court's exclusionary ruling related to all three potential impeachment documents, I agree that the trial court erred in preventing use of the Tatsuo and Leestma articles. However, I cannot agree that this error requires reversal.
Initially, since the articles themselves were not proffered, we cannot determine if, in fact, they would have directly contradicted Dr. Smith's opinions. Specifically, we have no way of knowing if they state that with a tearing or shearing of the arteries as described by Dr. Yates, a patient could survive for more than a matter of minutes. The only evidence in this case is that upon autopsy one of two large arteries was discovered to be torn. The uncontroverted evidence revealed that this would cause rapid and voluminous blood flow into the cranial cavity. Thus, reported occurrences or opinions that a victim could survive for extended periods upon minor hemorrhaging would not be critical or damaging to Dr. Smith's opinion that death was almost contemporaneous with the blow that caused it. Without anyway of knowing if either the Tatsuo or Leestma articles actually contradict Dr. Smith's opinion given the uncontroverted factual nature of the injury, i.e. a torn artery as opposed to broken veins or capillaries, we cannot not determine if the error was prejudicial.
Secondly, neither Dr. Yates or Dr. Gabis was impeached. Their testimony was consistent with Dr. Smith's. In fact, Dr. Gabis and to some extent, Dr. Smith, based their opinions on Dr. Yate's finding that a torn artery was the precipitating factor that caused cardio-pulmonary arrest. In sum, Dr. Smith's testimony really was cumulative and since the two other experts were not confronted with the articles, their testimony remained unimpeached. Given that Ohio's "learned treatise" exception is limited to impeachment and cannot be used as substantive evidence, I cannot find prejudicial error in light of the cumulative nature of Dr. Smith's testimony.
Thus, I dissent.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and the cause remanded to the trial court for further proceedings consistent with this opinion and that costs herein be taxed to the appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this Entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Evans, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Part and Dissents in Part With Opinion.
For the Court
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes afinal judgment entry and the time period for further appealcommences from the date of filing with the clerk. *Page 136