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Estate Of Raymond v. Goodyear Tire & Rubber Co.8/23/2000
r to his death was Mr. Raymond suffering from alcoholic cirrhosis of the liver?
A: He was suffering, yes.
Q: And did that contribute to his death?
A: It contributed to the coagulopathy which contributed to his death, yes.
*
Q: What was the ultimate cause of Mr. Raymond's death?
A: The ultimate cause was--proximate cause is the fact he had a bleeding disorder. Alcoholics * have bleeding disorders because of what I said, the bone marrow suppression, the liver problems. * Basically his alcoholism was responsible for his death for a variety of factors.
It is apparent from the above that the requisite disclosure of underlying facts prior to an expert's testifying, as mandated in Evid. R. 705, was satisfied here.
Appellant further argues, however, that Dr. Trangle should not have been permitted to testify, because the medical records containing the facts upon which he based his opinions had not been admitted into evidence at the time Dr. Trangle took the stand. Appellant cites no authority for this argument.
The plain language of Evid. R. 705 does not require admission of predicate facts into evidence before an expert may testify. The rule states only that an expert may testify "after disclosure of the underlying facts or data." Evid. R. 703 requires that the facts or data upon which an expert relies must either be perceived or admitted in evidence. However, Rule 703 does not specify, where the basis of the testimony is admitted evidence, that only evidence admitted prior to the time the expert testifies may be used as a basis for the expert's opinion. See, Stephenson v. Guda (Mar. 15, 1995), Pike App. No. 532, unreported. Neither rule then mandates the admission of predicate facts before the expert testifies.
Ohio courts that have addressed the issue of when predicate facts must be disclosed and/or admitted have held that failure to abide by the order of presentation prescribed in Evid. R. 705 is harmless error, provided that the specific facts are eventually admitted into evidence, unless there is some demonstrable prejudice. See, e.g., Wells v. Miami Valley Hosp., Patrick v. Painesville Commercial Properties, and Stephenson v. Guda, supra. In Wells, the Second District court concluded that the experts' failure to specify underlying facts before testifying was harmless error, where the facts were subsequently identified, because the jury was still able to utilize those facts to assess the validity of their opinions. The court noted that "the assessment of the validity of the expert testimony continues after the case is submitted to the jury." Id., 90 Ohio App.3d at 857.
In Loura v. Adler, the First District court addressed the precise issue raised by appellant here. In that case, the medical records containing predicate facts upon which the expert relied were not formally admitted until after the expert had testified. Nonetheless, the court found this was harmless error, where the expert had "clearly specified, before giving his opinion, the particular facts, or events, upon which he relied." Id., 105 Ohio App.3d at 642.
Even where the rule is not strictly followed, provided that the specific facts are eventually admitted into evidence, any error is harmless unless there is some demonstrable prejudice. * Given the fact that the medical records in this case were not controverted and were ultimately made part of the trial record, we find nothing of a prejudicial nature in the order of presentation of [the expert's] testimony. Id., 105 Ohio App.3d at 642-43, citing to Wells, supra.
We find Loura persuasive. Error, if any, in admitting Dr. Tra
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