Expert’s past conviction not fodder for testimony in workers’ comp case
Keith Arnold
Special to the Legal NewsA Franklin County appellate panel accepted the argument of a Washington Courthouse man who alleged a trial court abused its discretion when it allowed cross examination testimony centering on a prior criminal conviction of his expert medical witness.
A three-judge panel of the 10th District Court of Appeals found that the probative value of the prior criminal conviction of Mark Keaton’s expert witness, Dr. Charles Kistler, was clearly outweighed by the prejudicial effect on Keaton, who sought workers’ compensation for a job-related injury.
“... Indeed, Dr. Kistler testified on direct examination that under the HPP program he could not get approval for an MRI from the Bureau of Workers’ Compensation. Nothing in his direct examination however refers to his decertification with the HPP program or his prior criminal conviction,” 10th District Judge Patrick McGrath wrote for the court.
“Appellees contend the reason that the MRI was not approved is clearly relevant; however, obtaining the reason the HPP program denied approval for the MRI, i.e., because Dr. Kistler is not a certified provider under the program, could easily have been asked and answered without delving into the fact that Dr. Kistler had a prior criminal conviction, let alone delving into the detailed facts underlying the same,” as in Ruff v. Bowden (Mar. 28, 1995), 10th Dist. No. 94APE08-1116, citing United States v. Solomon (C.A.11, 1982), 686 F.2d 863.
Keaton was injured on Oct. 7, 2004, in the course and scope of his employment with Abbruzzese Bros. Inc., and a workers’ compensation claim was allowed for multiple conditions, case summary provided.
Thereafter, he requested an additional allowance of “L5-S1 Disc Protrusion.” In support of his request, appellant relied on the medical report of Kistler. The request for the additional claim was denied at all administrative levels; therefore, in accordance with R.C. 4123.512, Keaton filed an appeal with the Franklin County Court of Common Pleas.
In preparation for trial, Kistler’s deposition was taken, at which time Keaton’s counsel objected to a line of questioning on cross-examination. A day prior to the jury trial conducted by a visiting judge, the assigned judge reviewed the deposition and overruled Keaton’s objections.
The jury heard the evidence, and after deliberations rendered a verdict in favor of appellees finding appellant was not entitled to the requested condition of L5-S1 disc protrusion.
Keaton subsequently appealed.
The appellate panel considered Ohio Evid.R. 609, which provides in relevant part:
“(A) For the purpose of attacking the credibility of a witness: ...
“(3) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that any witness, including an accused, has been convicted of a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment and whether based upon state or federal statute or local ordinance.
“(B) Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
“However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.”
The appellate court found no merit in the assertion by Abbruzzese Bros. and the Industrial Commission of Ohio that Dr. Kistler “opened the door” to the issue of his conviction.
“Dr. Kistler was the only witness testifying in support of the requested claim for L5-S1 disc protrusion,” McGrath continued. “The majority of Dr. Kistler’s cross-examination concerned his prior conviction; yet, the prior conviction, which concerned billing procedures, was completely unrelated to Dr. Kistler’s opinion pertaining to diagnosis and causation. The admission into evidence of Dr. Kistler’s stale conviction, particularly its underlying details, could do nothing more than prejudice the minds of the jurors, and any probative value did not substantially outweigh its prejudicial effect.
“In fact, the details of the underlying criminal conviction would not be admissible even under an appropriate use of Evid.R. 609 that permitted the admission of evidence of the criminal conviction itself. Thus, overruling appellant’s objection to the admission of testimony regarding Dr. Kistler’s prior criminal conviction was an abuse of discretion.”
The common pleas court decision was reversed with the cause remanded for further proceedings in accordance with law and the appellate decision.
Keaton’s attorney, Michael Dusseau of the Columbus firm Philip J. Fulton Law Office, was not immediately available for comment Tuesday.
Fellow 10th District judges William Klatt and John Connor joined McGrath to form the majority.
The case is cited as Keaton v. Abbruzzese Bros., 2010-Ohio-3969.
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