Intentional Infliction of Emotional Distress – Burden of Proof
Buckman-Peirson v. Brannon, (2004) 159 Ohio App.3d 12
In Buckman-Peirson v. Brannon, the Second District Court of Appeals upheld the propriety of the trial court’s granting defendant’s motion for summary judgment as it pertains to a claim predicated upon intentional infliction of emotional distress. However, a more careful reading of the Court’s opinion (authored by Judge Mark P. Painter), clearly stands for the proposition that an expert witness is not automatically required to prove the claim.
On paragraph 40 of its opinion, the Court stated the following:
“A plaintiff claiming severe and debilitating emotional distress must present some “guarantee of genuineness” in support of his or her claim to prevent summary judgment in favor of the defendant. The Ohio Supreme Court has held, “In most instances, expert medical testimony will help establish the validity of the claim of serious emotional distress.”
The Court next discussed the issue of whether or not expert medical testimony was an absolute requirement in the intentional infliction of emotional distress setting. The Court answered that question in the negative and in paragraph 46 of its opinion, indicated the following:
“Therefore, we conclude that although expert testimony may be a helpful and effective method of proving emotional distress and its relationship to the defendant’s conduct, in Ohio it is not always necessary. The question then becomes what evidence of emotional distress is sufficient? More specifically, is the testimony of the plaintiff alone enough?”
The Court answered the question it framed above and stated in paragraph 56 of its opinion, the following:
“We conclude that a plaintiff in a case for intentional infliction of emotional distress must present some evidence beyond the plaintiff’s own testimony that he or she has experienced emotional distress due to the defendant’s actions. Though Ohio is not as strict as some states in that it allows claims to proceed based on lay testimony only, there must still be some additional component to the plaintiff’s evidence supporting an allegation of severe emotional distress that provides a “guarantee of genuineness.”
Choice of Laws
Bertram v. Norden, (2004) 159 Ohio App.3d 171
A common question posed to Curtin & Associates, LLP deals with a factual situation wherein a lawsuit is initiated in the State of Ohio relating to a tort claim that occurred in another state. In Bertram v. Norton, a snowmobile accident occurred in Michigan. A lawsuit was commenced, for injuries relating to the Michigan-based accident, in the State of Ohio. Under Michigan law, an individual who engaged in the sport of snowmobiling assumed the risks of all injuries associated with the snowmobiling and thus, the plaintiff could not maintain a cause of action if Michigan law was applied.
In paragraph 1 of its syllabus, the Court stated the following:
“Michigan law, which precludes participant in sport of snowmobiling from recovering for injuries sustained as participant in such sport, rather than Ohio law, which does not contain similar provision, applied so as to preclude negligence action brought by driver of first snowmobile against driver of second snowmobile seeking to recover for leg injury allegedly sustained when first driver was struck by second driver’s snowmobile; although drivers were Ohio residents, the conduct causing the injury as well as accident itself occurred in Michigan, and Michigan had enacted specific legislation involving risks of snowmobiling.”
The Court noted in paragraph 3 of its syllabus that in choice of law situations, a presumption always exists that the law of the place of injury controls unless the other jurisdiction has a more significant relationship to the lawsuit. Finally, the Court stated in paragraph 5 of its syllabus the factors a trial court should follow in determining the appropriate choice of law to apply. The Court stated the following:
“In determining the choice of law, the court must take into account the following factors, which are to be evaluated according to their relative importance to the case: (1) the place of the injury; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; (4) the place where the relationship between the parties, if any, is located; and (5) any factors under the Restatement section setting forth choice-of-law principles which the court may deem relevant to the litigation. Restatement (Second) of Conflict of Laws §6.”
Learned Treatise Exception to the Hearsay Rule; Application at Trial
Hinkle v. Cleveland Clinic Foundation, (2004) 159 Ohio App.3d. 351
In Hinkle v. Cleveland Clinic Foundation, the Eighth District Court of Appeals dealt with a medical malpractice case which, among other issues reviewed on appeal, presented the question of whether or not the cross-examination of a hospital’s (defendant) expert witnesses through the use of a “learned treatise,” thereby permits the hospital/defendants to use the same “learned treatise” to rehabilitate the witnesses on redirect examination.
The case is interesting in light of the fact that the learned treatise exception to the hearsay rule exists in federal court, but is not recognized in the Ohio Rules of Evidence. The Court began its analysis by noting the foregoing and stated as follows:
“The learned-treatise exception to the hearsay rule set forth in Fed.Evid.R. 803(18) has no counterpart in Ohio Evid.R. 803. Thus, in Ohio, medical books or treatises are not admissible as substantive evidence. However, a learned treatise may be used for impeachment purposes to demonstrate that an expert witness is either unaware of the text or unfamiliar with its contents (citations omitted). Moreover, the substance of the treatise may be used only to impeach the credibility of an expert witness who has relied upon the treatise or has acknowledged its authoritative nature. A learned treatise may not be admitted into evidence.”
The Eighth District Court of Appeals noted that no Ohio case supported the position of utilizing a learned treatise in the manner utilized by the hospital defendants in the case at bar. The Court stated the following in paragraph 37:
“There is no Ohio authority supporting the use of a learned treatise on redirect examination to rehabilitate a witness that was impeached with the treatise. See Toth v. Oberlin Clinic, Inc., Lorain App. No. 01CA007891. In Toth, the Ninth District Court of Appeals held that the Ohio Rules of Evidence did not entitle a party to read from the treatise on redirect in order to rehabilitate the expert.
However, we do not agree with the Ninth District ...
It is only fair to conclude that when an adverse party impeaches an expert during cross-examination, the expert may be rehabilitated during redirect examination using that same treatise. This is not to say that a party may use a learned treatise to rehabilitate an expert witness who was not impeached with the learned treatise during cross-examination. Furthermore, the use of a learned treatise on redirect should not go beyond the scope of the cross-examination. Again, a learned treatise is not to be used as substantive evidence; however, fairness dictates that the jury view statements in context.”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Intentional Infliction of Emotional Distress – Burden of Proof
Buckman-Peirson v. Brannon, (2004) 159 Ohio App.3d 12
In Buckman-Peirson v. Brannon, the Second District Court of Appeals upheld the propriety of the trial court’s granting defendant’s motion for summary judgment as it pertains to a claim predicated upon intentional infliction of emotional distress. However, a more careful reading of the Court’s opinion (authored by Judge Mark P. Painter), clearly stands for the proposition that an expert witness is not automatically required to prove the claim.
On paragraph 40 of its opinion, the Court stated the following:
“A plaintiff claiming severe and debilitating emotional distress must present some “guarantee of genuineness” in support of his or her claim to prevent summary judgment in favor of the defendant. The Ohio Supreme Court has held, “In most instances, expert medical testimony will help establish the validity of the claim of serious emotional distress.”
The Court next discussed the issue of whether or not expert medical testimony was an absolute requirement in the intentional infliction of emotional distress setting. The Court answered that question in the negative and in paragraph 46 of its opinion, indicated the following:
“Therefore, we conclude that although expert testimony may be a helpful and effective method of proving emotional distress and its relationship to the defendant’s conduct, in Ohio it is not always necessary. The question then becomes what evidence of emotional distress is sufficient? More specifically, is the testimony of the plaintiff alone enough?”
The Court answered the question it framed above and stated in paragraph 56 of its opinion, the following:
“We conclude that a plaintiff in a case for intentional infliction of emotional distress must present some evidence beyond the plaintiff’s own testimony that he or she has experienced emotional distress due to the defendant’s actions. Though Ohio is not as strict as some states in that it allows claims to proceed based on lay testimony only, there must still be some additional component to the plaintiff’s evidence supporting an allegation of severe emotional distress that provides a “guarantee of genuineness.”
Choice of Laws
Bertram v. Norden, (2004) 159 Ohio App.3d 171
A common question posed to Curtin & Associates, LLP deals with a factual situation wherein a lawsuit is initiated in the State of Ohio relating to a tort claim that occurred in another state. In Bertram v. Norton, a snowmobile accident occurred in Michigan. A lawsuit was commenced, for injuries relating to the Michigan-based accident, in the State of Ohio. Under Michigan law, an individual who engaged in the sport of snowmobiling assumed the risks of all injuries associated with the snowmobiling and thus, the plaintiff could not maintain a cause of action if Michigan law was applied.
In paragraph 1 of its syllabus, the Court stated the following:
“Michigan law, which precludes participant in sport of snowmobiling from recovering for injuries sustained as participant in such sport, rather than Ohio law, which does not contain similar provision, applied so as to preclude negligence action brought by driver of first snowmobile against driver of second snowmobile seeking to recover for leg injury allegedly sustained when first driver was struck by second driver’s snowmobile; although drivers were Ohio residents, the conduct causing the injury as well as accident itself occurred in Michigan, and Michigan had enacted specific legislation involving risks of snowmobiling.”
The Court noted in paragraph 3 of its syllabus that in choice of law situations, a presumption always exists that the law of the place of injury controls unless the other jurisdiction has a more significant relationship to the lawsuit. Finally, the Court stated in paragraph 5 of its syllabus the factors a trial court should follow in determining the appropriate choice of law to apply. The Court stated the following:
“In determining the choice of law, the court must take into account the following factors, which are to be evaluated according to their relative importance to the case: (1) the place of the injury; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; (4) the place where the relationship between the parties, if any, is located; and (5) any factors under the Restatement section setting forth choice-of-law principles which the court may deem relevant to the litigation. Restatement (Second) of Conflict of Laws §6.”
Learned Treatise Exception to the Hearsay Rule; Application at Trial
Hinkle v. Cleveland Clinic Foundation, (2004) 159 Ohio App.3d. 351
In Hinkle v. Cleveland Clinic Foundation, the Eighth District Court of Appeals dealt with a medical malpractice case which, among other issues reviewed on appeal, presented the question of whether or not the cross-examination of a hospital’s (defendant) expert witnesses through the use of a “learned treatise,” thereby permits the hospital/defendants to use the same “learned treatise” to rehabilitate the witnesses on redirect examination.
The case is interesting in light of the fact that the learned treatise exception to the hearsay rule exists in federal court, but is not recognized in the Ohio Rules of Evidence. The Court began its analysis by noting the foregoing and stated as follows:
“The learned-treatise exception to the hearsay rule set forth in Fed.Evid.R. 803(18) has no counterpart in Ohio Evid.R. 803. Thus, in Ohio, medical books or treatises are not admissible as substantive evidence. However, a learned treatise may be used for impeachment purposes to demonstrate that an expert witness is either unaware of the text or unfamiliar with its contents (citations omitted). Moreover, the substance of the treatise may be used only to impeach the credibility of an expert witness who has relied upon the treatise or has acknowledged its authoritative nature. A learned treatise may not be admitted into evidence.”
The Eighth District Court of Appeals noted that no Ohio case supported the position of utilizing a learned treatise in the manner utilized by the hospital defendants in the case at bar. The Court stated the following in paragraph 37:
“There is no Ohio authority supporting the use of a learned treatise on redirect examination to rehabilitate a witness that was impeached with the treatise. See Toth v. Oberlin Clinic, Inc., Lorain App. No. 01CA007891. In Toth, the Ninth District Court of Appeals held that the Ohio Rules of Evidence did not entitle a party to read from the treatise on redirect in order to rehabilitate the expert.
However, we do not agree with the Ninth District ...
It is only fair to conclude that when an adverse party impeaches an expert during cross-examination, the expert may be rehabilitated during redirect examination using that same treatise. This is not to say that a party may use a learned treatise to rehabilitate an expert witness who was not impeached with the learned treatise during cross-examination. Furthermore, the use of a learned treatise on redirect should not go beyond the scope of the cross-examination. Again, a learned treatise is not to be used as substantive evidence; however, fairness dictates that the jury view statements in context.”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.