[Cite as Hart v. Cardinal Health 110, Inc., 2010-Ohio-3551.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




TIA L. HART,

        PLAINTIFF-APPELLANT,                                    CASE NO. 5-10-10

        v.

CARDINAL HEALTH 110, INC., ET AL.,                              OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. CV 2009-172

                                      Judgment Affirmed

                            Date of Decision:         August 2, 2010




APPEARANCES:

        David Lancione and Nicholas E. Eusanio for Appellant

        Douglas E. Spiker and Amy L. Butler for Appellees
Case No. 5-10-10



PRESTON, J.

         {¶1} Plaintiff-appellant, Tia L. Hart (hereinafter “Hart”), appeals the

judgment of the Hancock County Common Pleas rendered in favor of her former

employer, defendant-appellee, Cardinal Health 110, Inc. (hereinafter “Cardinal

Health”), on her complaint to participate in the workers’ compensation system.

We affirm.

         {¶2} On January 23, 2007, Hart suffered a neck injury when she moved

and rearranged three (3) solid-wood (or Formica) tables that she used at work,

which were moved to a different location twenty to thirty (20-30) feet across the

room. (Hart Depo. at 36, 70-76).         Hart filed an application for workers’

compensation as a result of this injury, which was assigned claim no. 07-803521.

(Complaint, Doc. No. 1, ¶4). This claim was allowed for cervical sprain/strain.

(Id.).

         {¶3} In May 2007, Hart filed an administrative request for an allowance

of three (3) additional conditions she claimed resulted from the January 2007 work

injury, including: (1) an acute and direct degeneration of her cervical spine at C5-

C6; (2) bulging discs at C5-C6; and (3) a substantial aggravation of existing

degenerative disk disease at C5-C6. (Feb. 2, 2010 JE, Doc. No. 36). After a

District Hearing Officer denied Hart’s motion, she appealed, and a Staff Hearing

Officer granted the motion. (Complaint, Doc. No. 1, at ¶¶6-7); (Answer, Doc. No.


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8, at ¶¶6-7); (Plaintiff’s and Defendant’s Trial Briefs, Doc. Nos. 27, 34).

Thereafter, Cardinal Health appealed to the Ohio Industrial Commission, which

denied the appeal on September 13, 2007.                       (Complaint, Doc. No. 1, at ¶8);

(Answer, Doc. No. 8, at ¶8); (Plaintiff’s and Defendant’s Trial Briefs, Doc. Nos.

27, 34). Thereafter, Cardinal Health filed a notice of appeal with the common

pleas court. (Complaint, Doc. No. 1, at ¶9); (Answer, Doc. No. 8, at ¶9);

(Plaintiff’s and Defendant’s Trial Briefs, Doc. Nos. 27, 34).1

        {¶4} On March 2, 2009, Hart filed a complaint in the Hancock County

Court of Common Pleas, pursuant to R.C. 4123.512(D), seeking participation in

the workers’ compensation system for her additional three (3) claims filed in May

2007. (Doc. No. 1). On March 11, 2009, Cardinal Health filed its answer. (Doc.

No. 8). On November 12 and 13, 2009, respectively, Hart and Cardinal Health

filed their trial briefs. (Doc. Nos. 27, 34).

        {¶5} On November 16, 2009, the matter proceeded to a bench trial

wherein evidence was presented through the testimony of Hart, along with the

depositional testimony of Hart’s expert, Dr. Criblez, and Cardinal Health’s expert,

Dr. Shtull. (Feb. 2, 2010 JE, Doc. No. 36). During the trial, the trial court granted


1
 We note that the trial court’s judgment entry indicates that Hart’s additional claims were administratively
denied. (Feb. 2, 2010 JE, Doc. No. 36). However, throughout the record and on appeal, the parties have
consistently maintained that Hart was ultimately successful in the administrative proceedings, and that this
action was as a result of Cardinal Health’s appeal to the common pleas court. (See, e.g., Complaint, Doc.
No. 1, at ¶¶6-9; Answer, Doc. No. 8, at ¶¶6-9; Trial Briefs, Doc. Nos. 27, 34; and Appellant’s Brief at 2;


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Cardinal Health’s motion for dismissal2 on Hart’s claim for an acute and direct

degeneration of her cervical spine at C5-C6 (claim one) but denied the motion as

to Hart’s remaining two claims. (Id.). Thereafter, Cardinal Health presented the

depositional testimony of its expert witness, Dr. Shtull, rested, and then renewed

its motion for a dismissal of Hart’s remaining claims. (Id.). The motion was

denied. (Id.). At the conclusion of the evidence, the trial court determined that the

evidence was equal on both sides, and therefore, the verdict must be in favor of

Cardinal Health since Hart bore the burden of persuasion as plaintiff. (Id.).

         {¶6} On February 16, 2010, the trial court entered judgment dismissing

the case. (Doc. No. 37). On March 17, 2010, Hart filed a notice of appeal. (Doc.

No. 42).

         {¶7} Hart now appeals raising one assignment of error for our review.

                                   ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED IN ADMITTING AND
         CONSIDERING   DEFENDANT’S   MEDICAL     EXPERT
         OPINION TESTIMONY OF KIVA SHTULL, M.D., AS SUCH
         OPINION WAS IMPROPERLY BASED PRIMARILY ON



Appellee’s Brief at 1). Therefore, we adopt the procedural history provided by the parties since it is
consistent with the record.
2
  In its judgment entry, the trial court cites Civ.R. 41(A)(2) as the basis for the motion for dismissal. (Feb.
2, 2010 JE, Doc. No. 36). Civ.R. 41(A)(2) governs voluntary dismissals by order of the court for those
instances not specified in (A)(1) and “upon such terms and conditions as the court deems proper.” It
appears that the trial court meant to cite Civ.R. 41(B)(2), which provides, in pertinent part, “After the
plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff’s
evidence * * * may move for a dismissal on the ground that upon the facts and the law the plaintiff has
shown no right to relief.”


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Case No. 5-10-10



       EVIDENCE NOT IN THE RECORD IN VIOLATION OF
       EVIDENCE RULE 703.

       {¶8} In her sole assignment of error, Hart argues that the trial court

abused its discretion by admitting the testimony of Cardinal Health’s medical

expert, Dr. Shtull. Specifically, Hart argues that Dr. Shtull’s opinions primarily

relied upon the following three (3) medical reports, which were not admitted into

evidence at trial: (1) Dr. Sullivan’s x-ray report, dated January 24, 2007; (2) Dr.

Baker’s operative report, dated October 8, 2007; and (3) Dr. Manjul’s cervical

spine MRI report, dated May 8, 2008.           Hart further argues that because Dr.

Shtull’s inadmissible testimony was Cardinal Health’s only evidence before the

trial court, the trial court should have ruled in her favor. As such, Hart argues that

the trial court’s erroneous evidentiary ruling constitutes reversible error.

       {¶9} “[A] trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is

exercised in line with the rules of procedure and evidence.” Rigby v. Lake County

(1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056. Therefore, a trial court’s

admission or exclusion of evidence will not be reversed absent an abuse of

discretion. Id. An abuse of discretion exists when the judgment is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

219, 450 N.E.2d 1140.       Pursuant to Evid.R. 703, “[t]he facts or data in the



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particular case upon which an expert bases an opinion or inference may be those

perceived by the expert or admitted in evidence at the hearing.”

       {¶10} Whether the trial court properly admitted Dr. Shtull’s expert

testimony depends upon if the facts or data upon which his opinion was based

were “admitted in evidence at the hearing.” Evid.R. 703. That determination

necessarily requires a trial transcript in this case, which Hart has failed to provide

this Court as she was required under App.R. 9(B). Knapp v. Edwards

Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384, citing State v.

Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d 1355 (“The duty to provide a

transcript for appellate review falls upon the appellant. This is necessarily so

because an appellant bears the burden of showing error by reference to matters in

the record.”). The limited record here indicates that evidence was presented at

trial through the testimony of Hart and the depositions of the parties’ medical

experts. (Feb. 2, 2010 JE, Doc. No. 37). Although exhibits were attached to the

depositions of both parties’ medical expert witnesses, and thereby included in the

record on appeal, it is not clear whether those exhibits were admitted as exhibits at

trial. In such circumstances, the Ohio Supreme Court has instructed: “[w]hen

portions of the transcript necessary for resolution of assigned errors are omitted

from the record, the reviewing court has nothing to pass upon and thus, as to those

assigned errors, the court has no choice but to presume the validity of the lower


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court’s proceedings, and affirm.” Knapp, 61 Ohio St.2d at 199. Hart states in her

brief that the reports Dr. Shtull relied upon were not admitted as exhibits at trial,

but we will not presume her bald assertions are true. Rather, the presumption is

that the trial court properly admitted the testimony in conformity with the rules of

evidence. Knapp, 61 Ohio St.2d at 199.

         {¶11} Moreover, the limited record before this Court fails to demonstrate

an abuse of discretion by the trial court. Contrary to Hart’s claim, it appears that

Dr. Baker’s October 8, 2007 operative report and Dr. Manjul’s May 8, 2008 MRI

report were attached to Dr. Shtull’s deposition as exhibits C and D; and therefore,

admitted into evidence at trial, along with Dr. Shtull’s deposition. The only item

that was not one of the exhibits at either expert witness’s deposition was Dr.

Sullivan’s January 24, 2007 x-ray report.3 In reviewing Dr. Shtull’s deposition,

however, it is clear that his opinion was based upon several medical reports

admitted into evidence, along with Hart’s personal history, and his physical

examination of Hart. (Shtull Depo. at 15-19); (Shtull Exs. A-E). Furthermore, we

note that this matter was a trial to the bench. For these reasons, we cannot

conclude that the trial court abused its discretion by admitting Dr. Shtull’s expert

testimony.


3
  Although Dr. Sullivan’s report was not an admitted exhibit, Hart’s expert also referenced this report at his
deposition and in his July 26, 2007 report, which was an attached exhibit to his deposition. (Criblez Depo.
at 23); (Criblez Ex. E).


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       {¶12} Hart’s assignment of error is, therefore, overruled.

       {¶13} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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