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Caputo v. Silver Arrow Systems10/30/1997
PER CURIAM
JUDGMENT Affirmed
This cause came to be heard on the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas, the briefs and oral arguments of counsel. In 1990, defendant-appellee Administrator of the Bureau of Workers' Compensation allowed plaintiff-appellant Frank Caputo's claim for a herniated cervical disc (C4-5) that required a spinal fu- sion/anterior discectomy. In 1995, plaintiff sought to have that claim further allowed for a herniation that developed farther down the cervical vertebrae (C6-7). The administrator denied the claim, arguing that plaintiff had not proved the second herniation developed as a result of the 1990 claim. A jury ultimately decided that plaintiff was not entitled to participate in the workers' compensation fund.
The sole issue in this appeal is whether the trial court abused its discretion by permitting the administrator's expert to express an opinion based upon materials that were not in evidence and were not within the personal knowledge of the expert. The expert testified that he examined plaintiff, took x-ray photographs and a personal history. The expert also reviewed plaintiff's medical records and reports detailing the results of an MRI, CT scan, myleogram and x-rays taken by other physicians prior to his examination. Of these records, only the MRI report and the notes and office chart of plaintiff's treating neurosurgeon were admitted into evidence at trial. Plaintiff argues the expert's opinion based upon materials not admitted into trial violates Evid.R. 703.
The administrator argues plaintiff waived the right to challenge the expert's testimony when he failed to make a timely objection during the testimony. Plaintiff objected after the expert testified, telling the court he did so in anticipation that the attorney generals would have no medicals.
A party may not assign as an error a ruling which admits evidence unless a substantial right of the party is affected and a timely objection or motion to strike the evidence appears of record. See Evid.R. 103(A)(1); Sheeler v. Ohio Bur. Of Workers' Comp. (1994), 99 Ohio App.3d 443, 447. Because the expert testified by videotaped deposition, plaintiff had ample opportunity to object before the expert's testimony had been played to the jury.
Moreover, we find plaintiff's reason for waiting to make the objection unpersuasive. In his trial brief, the administrator indicated he would not be submitting into evidence any exhibits other than those relied on by plaintiff; hence, plaintiff knew that the administrator would not be relying on any exhibits that had not previously been admitted into evidence by plaintiff. Park Ridge Co. Franklin Cty. Bd. Of Revision (1987), 29 Ohio St.3d 12, 15.
Even if an objection had been timely interposed, we find the trial court would not have abused its discretion by permitting the expert's opinion. Evid.R. 703 states, The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. This rule is satisfied when an expert bases his opinion, in whole or in major part, on facts or data perceived by him. State v. Solomon (1991), 59 Ohio St.3d 124, syllabus; State v. Mack (1995), 73 Ohio St.3d 502, 512.
The trial court could reasonably find the administrator's expert based his opinion in major part on facts or data either perceived by him or admitted into evidence at trial. The data perceived by the expert included his own physical examination of plaintiff and x-rays taken at the time of the examination. Information that had been admitted in
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