[Cite as Roberts v. Boehl, 2018-Ohio-1118.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




SHIRLEY L. ROBERTS,                              :

        Plaintiff-Appellant,                     :     CASE NO. CA2017-08-039

                                                 :             OPINION
    - vs -                                                      3/26/2018
                                                 :

SCOTT BOEHL, et al.,                             :

        Defendants-Appellees.                    :



       CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2016-CVC-00449



O'Connor, Acciani & Levy, LPA, Wesley M. Nakajima, 600 Vine Street, Suite 1600,
Cincinnati, Ohio 45202, for plaintiff-appellant

David P. Bolek, P.O. Box 145496, Cincinnati, Ohio 45250, for defendant-appellee, Scott
Boehl



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, Shirley L. Roberts, appeals the decision of the Clermont

County Court of Common Pleas which granted summary judgment in favor of defendant-

appellee, Scott Boehl. For the reasons discussed below, this court reverses the trial court's

decision and remands for further proceedings.

        {¶ 2} On January 12, 2015, Boehl was driving his truck on Interstate 275 and began
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to feel lightheaded. Boehl decided he would get off at the next exit, approximately five

minutes travel time away. Boehl felt progressively worse as he continued to drive towards

the exit.

         {¶ 3} Boehl exited the highway at Ohio Pike and turned right, looking for the nearest

place to park. He turned right onto Mount Carmel Tobasco Road and then entered the

parking lot of Butterbee's restaurant. Boehl positioned his truck to reverse into a parking

space.

         {¶ 4} Boehl claimed to be unconscious for what occurred next.                         Boehl's truck

reversed out of Butterbee's parking lot and crossed all four lanes on Mount Carmel Tobasco

Road. The truck collided with several vehicles in its path, including one driven by Roberts.

Boehl's truck stopped after impacting a McDonald's restaurant across the street from

Butterbee's.

         {¶ 5} In March 2016, Roberts filed a complaint alleging that Boehl was negligent.1

Boehl answered, raising the affirmative defense of a sudden medical emergency. At his

deposition, Boehl testified concerning his recollection of the January accident. Boehl also

revealed that a week prior to the accident he suffered a concussion after being physically

assaulted. And Boehl testified that six to eight years earlier he had become lightheaded

while driving, lost consciousness, and rear-ended a car. Boehl thought he suffered a panic

attack in that earlier accident, for which he sought no medical treatment. The January

accident was "much more severe" than what he experienced in the earlier accident.

         {¶ 6} Roberts moved for summary judgment and filed Boehl's deposition in support.

Roberts argued that Boehl could not prove the defense of sudden medical emergency




1. Roberts also asserted claims against her insurer, Nationwide Mutual Fire Insurance Company ("Nationwide"),
for its subrogated interest in the litigation and for uninsured/underinsured coverage. The McDonald's franchisee
and its insurer later intervened in the case, asserting property damage claims against Boehl.
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because: (1) his loss of consciousness was not sudden but occurred only after experiencing

progressively worsening lightheadedness for miles of driving, and, (2) the accident was

foreseeable as Boehl lost consciousness in a similar prior event.

      {¶ 7} Boehl responded in a cross-motion for summary judgment asking the court to

grant judgment in his favor on the sudden medical emergency defense. Boehl supported his

motion with the affidavit of a medical expert witness, Dr. Gerald Steiman. Dr. Steiman's

affidavit incorporated his written medical report, which discussed both the methodology and

results of his evaluation of Boehl's accident.     The report explained that Dr. Steiman

interviewed Boehl, conducted a physical examination, and reviewed Boehl's medical records.

Dr. Steiman further stated, "[t]his evaluation has been conducted with the assumption that

the representations of the examinee are true and correct." Ultimately, the doctor opined that

during the January accident Boehl suffered either a seizure related to the earlier concussion

or a panic attack. The doctor further opined that Boehl's loss of consciousness was "neither

anticipated nor expected" and that Boehl "would not have foreseen he would lose

consciousness."

      {¶ 8} Boehl also filed the affidavit of a witness to the January accident. The witness

stated that Boehl's truck side-swiped the front of her stopped vehicle. The witness saw Boehl

inside the truck as it passed her vehicle and it was her impression that Boehl was

unconscious during the January accident.

      {¶ 9} The trial court found that Boehl's deposition testimony and the two affidavits

satisfied Boehl's burden of demonstrating that he was suddenly rendered unconscious by a

medical emergency. With respect to whether Boehl had any reason to anticipate the

accident, the court credited Dr. Steiman's opinion that Boehl would not have foreseen he

would lose consciousness. The court noted that Roberts had not challenged this expert

opinion evidence with a contradictory medical opinion. Consequently, the court concluded
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that Boehl met his burden of proof with respect to the defense of sudden medical emergency

and Roberts failed to meet her reciprocal burden of demonstrating a genuine issue of fact for

trial. The court granted summary judgment in favor of Boehl and dismissed the action.2

        {¶ 10} Roberts appeals and raises the following assignment of error:

        {¶ 11} THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY

JUDGMENT FILED BY DEFENDANT-APPELLEE.

        {¶ 12} Roberts argues that there remain genuine issues of fact for trial on whether

Boehl suffered a sudden medical emergency and if so, whether the accident was

foreseeable.

        {¶ 13} This court reviews summary judgment decisions de novo, which means we

review the trial court's judgment independently and without deference to the trial court's

determinations, using the same standard in our review that the trial court should have

employed. Ludwigsen v. Lakeside Plaza, LLC, 12th Dist. Madison No. CA2014-03-008,

2014-Ohio-5493, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)

there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as

a matter of law, and (3) the evidence submitted can only lead reasonable minds to a

conclusion which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82

Ohio St.3d 367, 369-70 (1998).

        {¶ 14} The moving party bears the initial burden of informing the court of the basis for

the motion and demonstrating the absence of a genuine issue of material fact. Robinson v.




2. Nationwide, the McDonald's franchisee, and the franchisee's insurer also filed motions for summary
judgment. Those motions generally supported the arguments made in Roberts' motion but added no additional
summary judgment evidence. The court denied these motions and dismissed their claims against Boehl.
Nationwide, the McDonald's franchisee and its insurer have not appealed the judgments rendered against them
and in favor of Boehl. Nationwide had earlier amended its summary judgment motion with an alternative
argument requesting that the court dismiss Robert's uninsured/underinsured claim against it if the court were to
grant summary judgment in favor of Boehl. The court granted Nationwide's alternative motion on the basis that it
found that Boehl was not liable to Roberts.
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Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden is

met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is

some genuine issue of material fact yet remaining for the trier of fact to resolve. Id. In

determining whether a genuine issue of material fact exists, the evidence must be construed

in favor of the nonmoving party. Vanderbilt v. Pier 27, LLC, 12th Dist. Butler No. CA2013-02-

029, 2013-Ohio-5205, ¶ 8.

       {¶ 15} The Ohio Supreme Court set forth the sudden medical emergency defense to

a motor vehicle personal injury action as follows:

              1. "Where the driver of an automobile is suddenly stricken by a
              period of unconsciousness which he has no reason to anticipate
              and which renders it impossible for him to control the car he is
              driving, he is not chargeable with negligence as to such lack of
              control." (Lehman v. Haynam [1956], 164 Ohio St. 595, 59 O.O.
              5, 133 N.E.2d 97, paragraph two of the syllabus, approved and
              followed.)

              2. "Where in an action for injuries arising from a collision of
              automobiles the defense of the defendant driver is that he was
              suddenly stricken by a period of unconsciousness, which
              rendered it impossible for him to control the car he was driving
              and which he had no reason to anticipate or foresee, the burden
              of proof as to such defense rests upon such driver." (Lehman v.
              Haynam [1956], 164 Ohio St. 595, 59 O.O. 5, 133 N.E.2d 97,
              paragraph three of the syllabus, approved and followed.)

Roman v. Estate of Gobbo, 99 Ohio St.3d 260, 2003-Ohio-3655, at paragraphs one and two

of the syllabus.

       {¶ 16} Cases where sudden medical emergency is raised as a defense "are not well

suited to resolution by summary judgments or directed verdicts, but must proceed to trial,

where it is incumbent upon the factfinder to determine whether the requirements of the

defense have been met." Id. at ¶ 58. In Gobbo, the factual issues to be resolved were "(1)

Was Gobbo stricken with a sudden medical emergency, and, if he was, at what point in the

sequence of events did it occur? and (2) Should Gobbo's medical past and problems with his


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heart have caused him to foresee that he was likely to suffer a heart attack while driving?"

Id. at ¶ 5. The foreseeability element of the sudden medical emergency requires an inquiry

into whether the evidence establishes that the defendant had previous experiences or

knowledge that would have warned a reasonably prudent person under the same or similar

circumstances of a likelihood of losing consciousness. See Ohio Jury Instructions, CV

Section 401.21.

       {¶ 17} Boehl's deposition revealed that he was approximately 44 years old on the

date of the January accident. He was self-employed in the glass block business. A week

before the accident, Boehl suffered a concussion after being assaulted by three men and

knocked unconscious. He was treated and released by EMTs. He sought no medical

treatment but knew he was concussed because he was a former boxer. He spent the next

week at home resting. He felt better by the end of the week and decided to go to his farm in

Kentucky. He left home, stopped for coffee, then got on the interstate.

       {¶ 18} Boehl began feeling lightheaded while driving on the interstate. He decided he

should get off the interstate at the next exit, some five minutes away, to "get some air." He

began feeling progressively worse as he continued towards the exit. By the time he was

exiting the interstate, Boehl described what he was experiencing as "almost overwhelming."

       {¶ 19} Boehl was looking for the first parking lot he could locate, which he found at

the Butterbee's restaurant immediately off the exit. Boehl opted to reverse into the parking

space at Butterbee's. Boehl did not recall entering the parking space but did recall "going to

throw my truck into park." The next thing Boehl recalled was regaining consciousness after

impacting the McDonald's restaurant. Boehl thought he "passed out or had a seizure."

Boehl was transported to the hospital but released the same day. Later, he had an MRI,

because the police would not give him his driver's license back until he did so. "Everything

looked okay" from the MRI and Boehl was allowed to drive again. Boehl said that employees
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at the hospital thought he had a seizure. Boehl sought no medical treatment as he is "not a

big fan of doctors."

        {¶ 20} Six or seven years earlier Boehl experienced lightheadedness while driving his

vehicle that resulted in him losing consciousness. Boehl thought what he experienced in that

incident was a panic attack. That incident resulted in a traffic incident where Boehl impacted

another car's bumper. Boehl did not go to the hospital but was treated by EMTs, who

released him. Boehl stated that the January accident was "much more severe" than the

earlier panic attack.

        {¶ 21} After reviewing this evidence in a light most favorable to Roberts, this court

concludes that genuine issues of fact remain on the issue of foreseeability, and therefore

Boehl is not entitled to summary judgment on the defense of sudden medical emergency.3

Boehl testified concerning two medical events six or seven years apart, both of which began

with lightheadedness, led to unconsciousness, and resulted in a motor vehicle accident.

Given the apparent similarity between the two events, this court finds that there are genuine

issues for the factfinder as to whether a reasonably prudent person in Boehl's circumstances

would have anticipated the accident that would occur several minutes after Boehl decided he

needed to exit the interstate.

        {¶ 22} The trial court based its conclusion on lack of foreseeability primarily on Dr.

Steiman's expert opinion. Dr. Steiman's report states in relevant part:

                OPINION: The medical opinions set forth are based on my
                education, training and experience as well as Mr. Boehl's history,
                physical examination, and the pain and functional assessment.
                The medical records were reviewed and taken into consideration.
                 The medical opinions are expressed to a reasonable degree of
                medical probability and certainty.


3. As this issue is dispositive of Boehl's entitlement to summary judgment on the defense of sudden medical
emergency, we need not address whether Boehl met his summary judgment burden to demonstrate that he was
suddenly stricken by a loss of consciousness. However, for purposes of this opinion we presume that Boehl was
rendered unconscious during the January accident.
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              Mr. Boehl's history, medical record review, and physical exam
              provide sufficient and credible evidence that the most likely
              explanation of his episode of unconsciousness was either
              vasovagal syncope secondary to a beta-adrenergic
              hypersensitivity, commonly referred to as hyperventilation
              syncope or panic attack, or an isolated seizure secondary to the
              recent head trauma.       With either etiology, the loss of
              consciousness was neither anticipated nor expected. Mr. Boehl
              would not have foreseen he would lose consciousness.

       {¶ 23} Expert testimony on an ultimate issue is admissible at trial. Bostic v. Connor,

37 Ohio St.3d 144, 148 (1988). However, expert testimony is only necessary where a factual

issue is beyond the ordinary, common knowledge and experience of a lay person. Ramage

v. Cent. Ohio Emergency Servs. Inc, 64 Ohio St.3d 97, 103 (1992).

       {¶ 24} The jury instructions on the defense of sudden medical emergency provide the

following:

              To decide whether [the defendant] had reasonable cause to
              foresee the possibility of sudden [loss of consciousness] * * * you
              should consider whether the evidence establishes that he/she
              had previous experiences or knowledge that would have warned
              a reasonably (cautious) (careful) (prudent) person under the
              same or similar circumstances of a likelihood of such [loss of
              consciousness].

Ohio Jury Instructions, CV Section 401.21.

       {¶ 25} The instruction presents jurors with a subjective standard that considers what

Boehl – not a neurologist such as Dr. Steiman – would perceive under the circumstances.

Although Dr. Steiman is qualified to offer his opinion on that matter, he has no greater insight

into Boehl's thoughts in the moments before the accident than a lay person. Thus, the issue

of foreseeability necessarily becomes a credibility issue that in a case of this nature must be

resolved by a factfinder.

       {¶ 26} Notably, Dr. Steiman's report fails to offer any medical explanation for why

Boehl would not have foreseen losing consciousness despite the apparent similarity to the

earlier accident. This is likely explained by the following excerpt from the report with respect
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to what Boehl told the doctor concerning the earlier accident: "Approximately 10-12 years

ago, he was driving his work truck when he became lightheaded. He bumped a vehicle in

front of his. He cannot recall whether or not he lost consciousness." (Emphasis added.)

       {¶ 27} Thus, Boehl provided Dr. Steiman with facts that differed in some significant

respects from his sworn deposition testimony, i.e., Boehl told Dr. Steiman that nearly twice as

much time had elapsed between the two incidents and that he could not recall if he lost

consciousness in that earlier accident. Thus, Boehl's deposition testimony conflicts with a

factual basis of Dr. Steiman's expert opinion. For these reasons, this court concludes that

Dr. Steiman's affidavit did not establish the absence of a genuine issue of fact on the issue of

foreseeability.

       {¶ 28} The trial court also found that Roberts failed to meet her reciprocal burden

under Civ.R. 56(E) to show a genuine issue of fact through contradictory medical testimony.

Boehl cites a Sixth District Court of Appeals case where the appeals court concluded that an

injured driver failed to counter the defendant's expert's medical opinion that the defendant's

sudden medical emergency was unforeseeable. Duchene v. Finley, 6th Dist. Lucas No. L-

13-1256, 2015-Ohio-387. There, the doctor opined that he had reviewed the defendant's

medical history and it contained no medical issues that would have put the defendant at a

risk of losing consciousness while operating a motor vehicle. Id. at ¶ 3. Moreover, the doctor

opined that the loss of consciousness was caused by a disease that was not clinically

apparent and that up until the moment that he lost consciousness, the defendant was

asymptomatic. Id.

       {¶ 29} In Duchene there is no indication as to whether the defendant’s deposition or

affidavit were submitted in summary judgment. However, in our case, Boehl’s deposition was

in the record, and, as discussed above, contradicted facts in Dr. Steiman's report and called

into question his expert medical opinion. Therefore, because Dr. Steiman’s affidavit did not
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establish the absence of a genuine issue of fact on the issue of foreseeability, Robert’s had

no reciprocal summary judgment burden to meet.

       {¶ 30} This court concludes that in a case of sudden medical emergency where, as in

this case, the issue of foreseeability is doubtful, the question should be submitted to the jury

or factfinder. We therefore reverse the trial court's grant of summary judgment in favor of

Boehl and against Roberts. Additionally, we reverse the trial court's grant of summary

judgment to Nationwide on Roberts' uninsured/underinsured coverage, as that decision was

premised on the underlying decision to grant summary judgment to Boehl. In all other

respects, the judgment of the trial court is affirmed.

       {¶ 31} Judgment reversed in part, affirmed in part, and remanded for further

proceedings.


       PIPER and M. POWELL, JJ., concur.




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