EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, February 10, 2012

The Oh In Ohio: Court Of Appeals Of Ohio Finds Improper Admission Of Learned Treatise As Exhibit Was Harmless Error

Like its federal counterpartOhio Rule of Evidence 803(18) provides an exception to the rule against hearsay for 

Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

I'm inclined to believe that, as with a recorded recollection under Rule 803(5), an appellate court is unlikely to reverse based upon a trial court correctly allowing for the admission of a learned treatise but incorrectly allowing for admission of a learned treatise as an exhibit. And that inclination is born out in the recent opinion of the Court of Appeals of Ohio, Tenth District, in Bradley v. Ohio Dept. of Transp., 2012 WL 385636 (Ohio App. 10 Dist. 2012).

In Bradley,  Laura M. Bradley, appealed a judgment of the Franklin County Court of Common Pleas in favor of the Ohio Department of Transportation ("ODOT" and Marsha P. Ryan, Administrator of the Bureau of Workers' Compensation ("BWC"), in connection with her claim for workers' compensation for reflex sympathetic dystrophy of the right foot. According to Bradley, this dystrophy came as a result of her employment with ODOT.

In her appeal, Bradley claimed, inter alia, that the court of common pleas "erred in admitting into evidence section 16.5e of Guides to the Evaluation of Permanent Impairment, entitled ‚ÄúComplex Regional Pain Syndromes (CRPS), Reflex Sympathetic Dystrophy (CRPS I), and Causalgia (CRPS II). The Court of Appeals of Ohio, Tenth District agreed, finding that while the guides were admissible as learned treatises under Ohio Rule of Evidence 803(18), they were inadmissible as exhibits under the plain language of the Rule. That said, the court ultimately 

conclude[d] that the erroneous admission of the text did not materially prejudice Bradley. In its findings of fact and conclusions of law, the trial court did not refer to or rely on any portion of the text that Steiman had not discussed and explained in his testimony. Consequently, the judgment did not result from a misinterpretation or misapplication of technical information in the text. As the danger that independent analysis poses did not arise, the admission of the text itself amounted to only harmless error



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