[Cite as Duchene v. Finley, 2015-Ohio-387.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Kristy M. Duchene, et al.                         Court of Appeals No. L-13-1256

        Appellants                                Trial Court No. CI0201204752

v.

Ross E. Finley, et al.                            DECISION AND JUDGMENT

        Appellees                                 Decided: January 30, 2015

                                              *****

        Robin E. Fuller, for appellants.

        Paul R. Bonfiglio, for appellees.

                                              *****


        SINGER, J.

        {¶ 1} Appellants, Kristy M. and Jason Duchene and their two minor children,

appeal from the October 15, 2013 judgment of the Lucas County Court of Common Pleas

granting summary judgment to appellees, Ross E. Finley and Smiley Tire & Retreading,

and dismissing the complaint of appellants. Because we find summary judgment was

appropriate, we affirm.
       {¶ 2} This case arises out of an automobile accident which occurred on August 11,

2010, involving appellant Kristy Duchene, and appellee Finley, who was driving a truck

owned by appellee Smiley Tire and Retreading. The Duchenes asserted in their

complaint that Finley negligently struck Kristy Duchene’s vehicle from the rear causing

damage to her vehicle and physical injuries to her. The Duchenes also asserted that

Smiley Tire and Retreading was negligent for permitting Finley to drive when they knew

or should have known that he was an incompetent driver. Appellees admitted the

accident occurred, but asserted the defense of a sudden medical emergency.

       {¶ 3} Appellees sought summary judgment arguing that because Finley suffered a

sudden, unexpected loss of consciousness, which he could not have reasonably foreseen,

he could not be held liable for the damages he caused. In support of their motion,

appellees presented the affidavit of Dr. Albert Kolibash, a practicing cardiologist, who

attested that after reviewing Finley’s medical records, it was his opinion that Finley had a

sudden loss of consciousness which caused the accident and that there was nothing in his

medical history that would have put him at risk of losing consciousness while operating a

motor vehicle. Dr. Kolibash further opined that Finley’s sudden loss of consciousness

was due to an underlying conduction system disease that was not clinically apparent and

that Finley was asymptomatic until that moment.

       {¶ 4} Appellants opposed the motion arguing that Finley had multiple health

issues prior to the accident and, therefore, should have known that a sudden loss of

consciousness was possible, and that he should not have been driving. Appellants




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submitted the affidavit of a nurse who reviewed and outlined Finley’s medical history.

She summarized that he has “memory impairment from a history of strokes, several

incidents of confusion, difficulty speaking, thinking clearly and memory loss since

2008.” The records further showed that Finley suffered a stroke in 2009 and was

“diagnosed more than once with atrial fibrillation beginning in 2008.” The nurse further

attested that “[a]trial fibrillation can cause loss of consciousness.” The nurse also

reviewed the medical records from the emergency room where Finley was taken after the

accident. From those records she attested that Finley “had filled a prescription for

Ambien the morning of the accident * * * and two of those pills were missing.” The

nurse also concluded by attesting that “Finley suffered from several medical diagnoses

which caused or could have cause [sic] loss of consciousness, confusion and/or memory

loss.”

         {¶ 5} The trial court found that the nurse was unable to give a medical opinion or

testify regarding causation and, therefore, no conclusion could be drawn by the nurse’s

affidavit to dispute the testimony of Dr. Kolibash. Furthermore, appellants submitted an

unauthenticated driver abstract the indicated Finley had an accident in 2012. Appellants

also submitted evidence of an accident in 2010, which the court disregarded as irrelevant.

         {¶ 6} Finding that appellants did not present evidence to dispute the opinion of Dr.

Kolibash, the trial court found that there was no genuine issue of material fact.

Therefore, the trial court granted summary judgment to appellees, and dismissed the




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complaint of appellants. Appellants then sought an appeal to this court from that

judgment.

       {¶ 7} On appeal, appellants assert two assignments of error:

              I. FIRST ASSIGNMENT OF ERROR.

              THE COURT MISCONSTRUED THE APPLICATION OF CIVIL

       RULE 56(E) AND O.R.C. SECTION 4723.151(A) AS IT WAS APPLIED

       IN THIS CASE.

              II. SECOND ASSIGNMENT OF ERROR.

              THE COURT ERRED IN GRANTING SUMMARY JUDGMENT

       TO DEFENDANTS-APPELLANTS [sic] AS THE ISSUE OF SUDDEN

       MEDICAL EMERGENCY IS BEST DECIDED BY A TRIER OF FACT.

       {¶ 8} The appellate court reviews the grant of summary judgment under a de novo

standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000),

citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Applying the requirements of Civ.R. 56(C), we uphold summary judgment when it is

clear “(1) that there is no genuine issue as to any material fact; (2) that the moving party

is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but

one conclusion, and that conclusion is adverse to the party against whom the motion for

summary judgment is made, who is entitled to have the evidence construed most strongly

in his favor.” Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375

N.E.2d 46 (1978). Once the moving party has identified the issues where there is no




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genuine issue of material fact and the issue can be determined as a matter of law, the non-

moving party must come forward with specific facts to show that there is a genuine issue

for trial. Dumas v. Estate of Dumas, 68 Ohio St.3d 405, 408, 627 N.E.2d 978 (1994).

       {¶ 9} The sudden medical emergency defense is a complete defense to liability in

a motor vehicle negligence case. Roman v. Estate of Gobbo, 99 Ohio St.3d 260, 2003-

Ohio-3655, 791 N.E.2d 422, ¶ 1, quoting Lehman v. Haynam, 164 Ohio St. 595, 133

N.E.2d 97 (1956), paragraph two of the syllabus. The defendant bears the burden of

proving the defense by a preponderance of the evidence. Gobbo at paragraph two of the

syllabus, quoting Lehman at paragraph three of the syllabus.

       {¶ 10} On appeal, appellant asserts in her first assignment of error that the nurse’s

affidavit did not contain an opinion and was presented solely to present Finley’s medical

history to the jury. First, we disagree with appellant’s statement that the nurse’s affidavit

did not contain her opinion. The nurse did opine in her affidavit that Finley “suffered

from several medical diagnoses which caused or could cause loss of consciousness,

confusion and/or memory loss.” She also opined that atrial fibrillation can cause loss of

consciousness. Nonetheless, we address the issue raised by appellant on appeal, which is

whether the factual evidence presented through the affidavit was sufficient to raise a

genuine issue of material fact by discrediting the expert’s medical opinion.

       {¶ 11} Expert testimony on the element of proximate cause is not required in

every case to establish negligence. The need for expert testimony depends on the nature

of the negligence claim and the circumstances. Bernardini v. Fedor, 9th Dist. Wayne No.




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12CA0063, 2013-Ohio-4633, citing Yates v. Brown, 185 Ohio App.3d 742, 2010-Ohio-

35, ¶ 18, 24 (9th Dist.). Expert testimony is necessary whenever a factual issue is beyond

the ordinary, common and general knowledge and experience of a layperson. Ramage v.

Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97, 103, 592 N.E.2d 828 (1992) and

Darnell v. Eastman, 23 Ohio St.2d 13, 261 N.E.2d 114 (1970), syllabus. Generally, the

determination of medical issues requires professional skill and judgment beyond that of

an ordinary person. Crosswhite v. Desai, 64 Ohio App.3d 170, 174, 580 N.E.2d 1119 (2d

Dist.1989) (expert opinion is necessary in a medical malpractice because it involves the

determination of special facts that can only be understood by a person with special

training and experience).

       {¶ 12} A nurse may testify as a lay witness providing an opinion. Evid.R. 701 and

Bruce v. Junghun, 182 Ohio App.3d 341, 2009-Ohio-2151, 912 N.E.2d 1144, ¶ 30 (10th

Dist.). A nurse may also render an expert opinion as to a medical issue about any matter

in which she has expertise. Ramage v. Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d

97, 103, 592 N.E.2d 828 (1992) (nurse may testify as expert on nursing standard of care)

and Shilling v. Mobile Analytical Servs., Inc., 65 Ohio St.3d 252, 252-53, 602 N.E.2d

1154 (1992), syllabus (“witness who is not a physician, but who qualifies as an expert

under Evid.R. 702, may give evidence that would be relevant to diagnosis of a medical

condition if the testimony is within the expertise of the witness.”).

       {¶ 13} However, a nurse cannot testify as a medical expert on the issue of a

medical diagnosis because that matter is outside her medical expertise. R.C. 4723.151(A)




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(“[m]edical diagnosis, prescription of medical measures, and the practice of medicine or

surgery or any of its branches by a nurse are prohibited”); R.C. 4731.08 and 4731.34 (the

practice of medicine, including the diagnosis of an adverse health condition and the

prescription of a course of treatment for its management and care, is limited to licensed

physicians); and Hager v. Fairview Gen. Hosp., 8th Dist. Cuyahoga No. 83266, 2004-

Ohio-3959, ¶ 46 (nurse could not qualify as an expert because the cause of the decedent’s

dental condition was outside her knowledge, skill, and expertise).

       {¶ 14} We agree that the jury is not required to accept the medical opinion of an

expert and we agree that appellants could attack the credibility of the medical expert

without producing their own medical expert opinion since they did not bear the burden of

proof at trial. When there is “evidence from which the jury could have found that the

assumptions underlying the medical experts’ opinions were inaccurate or incomplete, the

jury is not required to credit the medical experts’ opinions with respect to the issue of

causation.” Marsico v. Skrzypek, 9th Dist. Lorain No. 13CA010410, 2014-Ohio-5185,

¶ 35, citing Butler v. Stevens, 2d Dist. Montgomery No. 22822, 2009-Ohio-2775, ¶ 52.

       {¶ 15} Nonetheless, even when we consider only the nurse’s summation of the

medical facts and not her opinions in this case, her statements do not discredit the

medical expert’s opinion that a loss of consciousness was not foreseeable. The

significance of the medical facts are not within common knowledge and therefore,

without the aid of an expert’s medical opinion, we find as a matter of law that a jury

could only find that the medical records support the medical opinion of appellees’ expert.




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Without any evidence to contradict the medical expert’s opinion, we find that there is no

genuine issue of material question of fact regarding the issue of whether Finley’s

unconsciousness was foreseeable and appellees were entitled to summary judgment.

Appellants’ first assignment of error is found not well-taken.

       {¶ 16} In their second assignment of error, appellants argue that the trial court

abused its discretion by granting summary judgment to appellees when there was a

question of fact as to whether there had been a sudden medical emergency.

       {¶ 17} Summary judgment does not involve the trial court’s discretionary powers.

Rather, summary judgment is granted as a matter of law whenever there is insufficient

evidence to raise a question of fact on a material issue. Therefore, because we have

found that there was no genuine issue of material fact regarding the defense of sudden

medical emergency, appellant’s second assignment of error is not well-taken.

       {¶ 18} Having found that the trial court did not commit error prejudicial to

appellants, the judgment of the Lucas County Court of Common Pleas is affirmed.

Appellants are ordered to pay the court costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.




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                                                                      Duchene v. Finley
                                                                      C.A. No. L-13-1256




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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