COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59515, 59955 : EDWARD C. WILSON : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : LTV STEEL COMPANY, INC. ET AL. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 11, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 120110 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: MARTIN J. SAMMON TIMOTHY J. KRANTZ 1160 Rockefeller Building BAUGHMAN & ASSOC. Cleveland, Ohio 44113 Suite 2215 55 Public Square Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: This appeal originates from a jury verdict in the Cuyahoga County Court of Common Pleas against LTV Steel Company ("Appellant"), defendant-employer and in favor of Edward Wilson ("Appellee"), plaintiff-former employee. The original action was a claim for workers' compensation filed by Appellee, which was allowed by the Industrial Commission and Appellant appealed to the Court of Common Pleas. Appellant claimed that the injury was not related to Appellee's employment with its company. The jury was not convinced and upheld the claim. Before this court, Appellant raises several claims: the trial court abused its discretion in allowing certain evidentiary matters to be introduced to the jury; the trial court erred in overruling Appellant's motion for a directed verdict; the trial court erred in instructing the jury on dual proximate causation. Because we hold that the trial court did not abuse its discretion and did not err as a matter of law, we affirm. This evidence presented at trial was as follows: Appellee alleged that he became infected with chronic obstructive pulmonary disease of the bronchitic type as a result of his employment with Appellant from 1956 through 1979. Initially, he was employed as a laborer, however, he performed various jobs during his tenure with Appellant. During the period as a laborer, he was required to crawl into hot open hearths to -3- remove old brick, shovel and vacuum flue dust, soot, and debris without any type of breathing safety equipment. Appellee worked for approximately nineteen years as an oiler for the cranes all over the steel mill. He was responsible for the maintenance of the cranes and his job was principally outdoors. Appellant was surrounded by a number of other industrial facilities that generated industrial pollutants. Appellee began to experience serious symptomology from his chronic obstructive pulmonary disease in 1979 and began to treat with Dr. David Schultz. Dr. Schultz referred Appellee to a pulmonary specialist, Dr. David Tuthill, during a hospitaliza- tion at Lutheran Medical Center for difficulty in breathing. Dr. Tuthill's diagnosis was chronic obstructive pulmonary disease which was partially related to his industrial environmental exposure. Because of his inability to continue working, Appellee retired from his employment with Appellant. Subsequent to his retirement, Appellee filed a workers' compensation claim for his alleged occupational disease. In response, the Industrial Commission performed an investigation in 1984 at Appellant's facility to determine if there was injurious air exposure. This investigation included an inspection by Ronald Sherman, a certified industrial hygienist from the Commission, who went to the plant on four occasions to inspect the premises and take air samples. The inspection results proved favorable to Appellant in that the substances in the air were -4- within the safe and acceptable range as well as in compliance with the standards required by the state. Appellee was examined by Dr. David Rosenberg, a pulmonary specialist, at the request of the Industrial Commission. Dr. Rosenberg concluded that the appellee did have chronic obstructive pulmonary disease and that it was related exclusively to his twenty-three year exposure to dust, fumes, gases, and other substances while employed by Appellant. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION INTO EVIDENCE, OVER THE OBJECTION OF THE DEFENDANT, THE DIAGNOSIS AND OPINION OF CAUSAL RELATIONSHIP RENDERED BY DR. TIMOTHY TUTHILL, A NON-TESTIFYING PHYSICIAN. This assignment of error raises the issue of the opinion regarding causal relationship and diagnosis, contained in the consultation report from Dr. Tuthill to Dr. Schultz, was improperly admitted into evidence by the trial court, resulting in undue prejudice to Appellant. We have carefully reviewed the record to track the utilization of Dr. Tuthill's consultation report by the parties. Dr. Rosenberg was the first physician to be deposed by way of videotape for purposes of presentation at trial in June, 1989. He was called as a witness for Appellee. In response to being asked to outline his review of Appellee's medical records, Dr. Rosenberg stated: There are records from the Lutheran Medical Center from his March, 1979 admission and reports and records of Dr. -5- Schultz, who was his primary physician. Pulmonary specialist had seen him, Dr. Tuthill (phonic) over at Lutheran Medical Center. Various other medical reports that followed his condition over the years. The record is void of any objection at that time, as to the admissibility of Dr. Tuthill's consultation report on hearsay grounds. Although the questions were confined to the history obtained from Appellee by Dr. Tuthill, counsel for Appellant then utilized Dr. Tuthill's consultation report during his cross- examination of Dr. Rosenberg. Dr. Anthony DiMarco was the next physician to be deposed by videotape for purposes of presentation at trial. Dr. DiMarco was called as a witness for Appellant. At Appellant's request, Dr. DiMarco was asked to explain to the jury what Dr. Tuthill's consultation report indicates. Dr. DiMarco was then asked on cross examination if he was "aware that he was seen by Dr. Franklin Kraus, a pulmonary specialist, who also concurred in the diagnosis of Dr. Rosenberg, Dr. Tuthill, and Dr. Schultz." Counsel for Appellant, even though he objects, never makes reference to the hearsay associated with this question. It should be noted that the objection was detailed and specific, with no reference to the hearsay problem. Counsel for Appellant then questioned Dr. DiMarco during his direct examination about the consultation report of Dr. Tuthill, again without any preservation of the hearsay objection. Dr. David Schultz was the last physician to be deposed by videotape. Counsel for Appellant objected to Dr. Schwartz's -6- recitation of Dr. Tuthill's diagnosis. Counsel for Appellant utilized Dr. Tuthill's report in his cross-examination of Dr. Schwartz, however, again he confined his use to the portion of the record relating to patient history. During the trial of this matter, the report of Dr. Tuthill was discussed, initially, in chambers where the following discussion took place: MR. KRANTZ: *** Actually, your Honor, there is some stipulations to medical records. The medical records of Lutheran Hospital I believe are Exhibit A. MR. SAMMON: We don't have any objection to them going in. Who is going to introduce them? [sic] MR. KRANTZ: Joint. MR. SAMMON: Except some of the records have been highlighted. I would ask the Court if I'm able to substitute them with cleaner copies. MR. KRANTZ: We can copy them. THE COURT: Whiting out the offensive stuff. MR. KRANTZ: B is supposed to be Dr. Schultz's but they are incorporated into the Lutheran Hospital records, they are one in the same. THE COURT: Joint exhibits. MR. SAMMON: Joint exhibits. I have been through them, no objection, with the exception to the highlighting. MR. KRANTZ: I have no problem with that. THE COURT: Anything else? -7- MR. KRANTZ: I believe that's it. MR. SAMMON: There is one thing, judge, there are Defendant's Exhibits that are marked right now that Mr. Krantz has pulled out, which I take it your going to use because they are specifically parts of the record. MR. KRANTZ: A 1, 2 and 3. MR. SAMMON: I don't have any problem using them and arguing. I have a problem them going to the jury. [sic] They are contained within the joint exhibits that we will stipulate to and I think it's just bringing added attention to various parts of those records to have them duplicated. MR. KRANTZ: I would like to have them marked A-2 and 3 and have them characterized -- THE COURT: Joint exhibits. MR. KRANTZ: They are joint. They are mine but I would like them marked. If they are in fact in the other records we can pull them. Out but I would like to leave them as A-1, 2, 3, and 4 for clarity purposes. [sic] After this exchange, the trial court called Dr. David Schultz as a witness and permitted both parties to cross-examine him. During Appellee's cross-examination of Dr. Schwartz, Dr. Tuthill's diagnosis and opinion were elicited from Dr. Schwartz. Counsel for Appellant interposed objections. Finally, Dr. Tuthill's actual diagnosis and opinion were elicited from Dr. Schwartz in the following exchange. -8- Q. Now, is Dr. Tuthill's diagnosis, with which you concurred, Dr. Schultz, contained on that consultation report? A. Yes. MR. KRANTZ: Objection. THE COURT: Overruled. Q. And did what does that consultation report say with respect to the diagnosis? [sic] MR. KRANTZ: Objection. THE COURT: Overruled. A. "Moderately severe obstructive: -- Q. Airways? A. I guess that's, "Moderately severe obstructive airways of the bronchitic type in part related to industrial exposure." MR. KRANTZ: Move to strike. THE COURT: Overruled. Q. Doctor, did you rely upon Dr. Tuthill's expertise in this field with respect to your diagnosis and your treatment? A. Yes. After the testimony of Dr. Schultz, counsel for Appellant attempted to object to the admissibility of Dr. Tuthill's consultation report by stating: We have agreed to stipulate to the authenticity of said medical records. However, defense counsel does not waive any objection to any hearsay or any inadmissible statements made in those medical records. We request, we object to anything as far as hearsay or anything that is not admissible. -9- Appellant's argument, in this regard, is not persuasive. In response to Appellee's statement and inquiry, "we don't have any objection to them going in. Who is going to introduce them?" Counsel for Appellant responds, "joint." This exchange by its express terms indicated that the joint stipulation was to the medical records going into evidence. If the stipulation had been exclusively for identification and authentication purposes as Appellant argues there should have been a statement from Appellant's counsel to clarify that the medical records were not "going in". The term "going in," as used by Appellee's counsel, means going into evidence. Further- more, the question "who's going to introduce them?" removes any doubt that the stipulation was to their introduction into evidence. There would be no need to "introduce" them in a stipulation to authenticity or a stipulation for purposes of identification. In a case involving very similar issues, the Court of Common Pleas for Summit County held in Estes v. Goodyear Tire & Rubber Co. (1951), 99 N.E. 2d 619 that: Where employer's counsel agreed to the admission of the whole record of employer's dispensary, employer's counsel could not thereafter object to admission of that part of record containing statement by deceased employee as to how alleged injury occurred, even though such statement would otherwise have been wholly inadmissible, even though a part of the hospital record of the employer. This court is persuaded by this reasoning. The record is clear that the parties and the trial court were contemplating the medical records going into evidence at the time that Appellant's -10- counsel stipulated to them being a joint exhibit. Presumably, since extensive pretrial discovery had been conducted and counsel for Appellant should have been aware of the consultation report of Dr. Tuthill, a stipulation to authenticity alone and a preser- vation of the hearsay objection should have been entered on the record at the first opportunity available to Appellant's counsel. Instead, the record contains language that indicates that the stipulation was to admission of the medical records in their entirety as a joint exhibit. Finally, this court cannot unequiv- ocally determine that the jury relied exclusively on the report of Dr. Tuthill to reach its verdict that Appellee's illness was work-related, where there was other credible evidence for this proposition contained in the record. Dr. Rosenberg, a physician who examined Appellee at the request of the Industrial Commission, found that Appellee's illness was causally related to his employment with Appellant. Based on the existence of Dr. Rosenberg's testimony, we cannot speculate on what combination of medical evidence the jury utilized to reach its verdict. Assignment of error one is overruled. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN PRECLUDING *** THE DEFENDANT FROM REFERRING, IN OPENING STATEMENT TO DR. SCHULTZ, A PHYSICIAN IDENTIFIED AS PLAINTIFF'S EXPERT, REFERRED TO BY PLAINTIFF'S COUNSEL DURING VOIR DIRE, AND WHOSE VIDEO- TAPED [SIC] TRIAL DEPOSITION HAD BEEN PREVIOUSLY TAKEN BY PLAINTIFF. -11- This assignment of error raises the issue of whether it was reversible error for the trial court to preclude Appellant from making reference to Dr. Schultz during his opening statement when Dr. Schultz was identified as a potential expert witness for Appellee, referred to by Appellee's counsel during voir dire, and a videotaped trial deposition had been taken. At the outset, it should be noted that rulings regarding opening statements and the limitations placed upon an opening statement are left to the trial court's sound discretion. Maggio v. Cleveland (1949), 151 Ohio St. 136, 140. The function of an opening statement by counsel in a jury trial is to inform the jury in a concise and orderly way of the nature of the case and the questions involved, and to outline the facts intended to be proved. Id. at Syllabus 1. Furthermore, when counsel makes a statement through accident, inadvertence or misconception which is improper and patently harmful to the opposing side, it may constitute the basis for ordering a new trial or for the reversal by a reviewing court of a judgment favorable to the party represented by such counsel. Id. at Syllabus 2. Finally, this court agrees with the proposition in Hatsio v. Red Cab Co. (1945), 77 Ohio App. 301 that members of the jury at this stage of the trial are particularly alert and impressionable, and this lends emphasis to the propriety of observing statutory provisions. -12- In the instant matter, the trial court was faced with a set of facts that had the potential to be confusing to the jury. It is accurate that Appellee's counsel made the first reference to Dr. Schultz as a potential witness during the voir dire. However, Appellee's counsel during opening statement only makes reference to his client going to "a doctor," with no specific reference to Dr. Schultz. During Appellant's opening statement, counsel stated that "the key witness in my opinion, and I think you'll find this to be true, is Dr. David Schultz." An objection by Appellee was overruled as to this statement. Appellant's counsel then goes on to state that "Dr. Schultz was the treating physician." An objection to this statement, by Appellee, was also overruled. It was, at that point, that the trial court was advised at the sidebar that Dr. Schultz would not be called as a witness in Appellee's case in chief. Having been advised of this decision by Appellee, the trial court's ruling was that reference could be made to the thrust of Dr. Schultz's findings, however, there could be no further reference to Dr. Schultz by name. Given the particularly impressionable state of the jury referred to in Hatsio, supra, and the potential for confusion, it was not an abuse of discretion for the trial court to preclude the use of Dr. Schultz's name. At the point in the trial when the ruling was made, the jurors had already heard that Dr. Schultz was going to testify. The trial court is then informed -13- that he will not be called by Appellee and that there is a possibility that Dr. Schultz will be called by Appellant. Given these facts, to avoid further confusion, it was not an abuse of discretion to prohibit any further use of the doctor's name but not preclude reference to his findings generally. Lastly, on this issue, the matters that were proffered into the record as to what would have been stated by Appellant's counsel during opening statement were in fact elicited and put before the jury during the course of the trial. Thus, there was no significant prejudice to the Appellant that would constitute reversible error. Appellant indicates that he would have referred to Dr. Schultz's assessment of Appellee as a lousy historian. This point was made on numerous occasions during the course of the trial by counsel for Appellant. It was, in fact, made with Dr. Schultz during his live testimony. Secondly, the inability of Dr. Schultz to conclude that Appellee's illness was causally related to his occupation was also brought out during Appellant's cross-examination of Dr. Schultz. Because the proffered matters were eventually placed before the jury, there was no prejudice that inured to Appellant and any alleged error would have to be deemed harmless. This assignment of error is therefore overruled. Appellant's third and fourth assignments of error state: THE TRIAL COURT ERRED IN PRECLUDING THE DEFENDANT FROM INTRODUCING THE TRIAL DEPOSITION OF DR. SCHULTZ AS EVIDENCE IN ITS CASE IN CHIEF. -14- THE TRIAL COURT ERRED IN ALLOWING THE PLAINTIFF, OVER THE OBJECTION OF THE DEFENDANT, TO CROSS-EXAMINE HIS OWN TREATING PHYSICIAN WHOSE TRIAL DEPOSITION HAD BEEN TAKEN BY THE PLAINTIFF AND FILED WITH THE COURT. These assignments of error raise the issue of whether the trial court may preclude the use of a videotaped trial deposition in lieu of the witness' live testimony where the witness is the court's and both parties are permitted to cross-examine. The utilization of depositions in court proceedings is governed by Civ. R. 32. However, some salient facts must be enumerated to insure a proper application of Civ. R. 32. The first fact is that Appellee noted and took the videotaped deposition of Dr. Schultz. Appellee, however, did not file the deposition with the trial court. Appellant requested leave to file the deposition transcript because the attempt to file it by Appellant was made on the second day of trial. Appellant argued to the trial court that Dr. Schultz should not have to testify live pursuant to Civ. R. 32(A)(3)(e) which states: The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: *** (e) that the witness is an attending physician or medical expert, although residing within the county in which the action is heard *** (Emphasis added.) Further, Civ. R. 32(C) states that "the introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition ***" -15- R.C. 4123.51.9 states regarding the use of a physician's deposition in a worker's compensation case the following: In the event the deposition is taken and filed, the physician whose deposition is taken shall not be required to respond to any subpoena issued in the trial of the action. We are not persuaded by Appellant's assertion that the prevention of its use of Dr. Schultz's videotaped deposition is in direct contravention of Civ. R. 32 and R.C. 4123.51.9 and unduly prejudicial to Appellant. The trial court, with respect to this issue, was faced with three options. The first would be to permit the utilization of the videotaped deposition of Dr. Schultz by Appellant. The second option was to preclude Dr. Schultz's deposition or his live testimony. The third option was to permit the live testimony of Dr. Schultz as the court's witness and allow cross- examination by both parties, which would include use of the deposition for impeachment purposes. With respect to the first option, the trial court could not compel Appellee to use the deposition. "A party does not make a person his own witness for any purpose by taking his deposition." Civ. R. 32(C). The use of the videotape by Appellant would have resulted in undue prejudice to Appellee because the right of cross-examination would have been wholly denied to Appellee. Clearly, Appellee's decision not to call Dr. Schwartz as a witness was indicative of the adverse nature of his testimony. -16- Therefore, the first option would have resulted in Appellee's inability to confront witnesses of an adversarial nature. The second option would have resulted in undue prejudice to Appellant. Dr. Schultz's inability to testify that a causal relationship existed between Appellee's illness and his employment was material and relevant to Appellant's defense. Consequently, the absolute preclusion of such a medical opinion would have unduly prejudiced Appellant. Therefore, the trial court was prohibited from exercising the second option. In discussing the third option and the only viable one, R.C. 4123.51.9 is not mandatory as Appellant suggests. The language shall as used in R.C. 4123.51.9 is discretionary language regarding the physician's response to being subpoenaed. In this case, the record contains nothing to suggest that Dr. Schultz's response to his subpoena was involuntary. This third option permitted the live testimony of Dr. Schultz which unquestionably was the best evidence. Secondly, the trial court permitted latitude to both sides during cross-examination. Finally, Appellant was able to elicit from Dr. Schultz his opinions that Appellee was a poor and inconsistent historian and that he could not causally relate the illness of Appellee to his employment with Appellant. The parties also had available to them the deposition transcript which could be used for impeachment purposes. -17- For these reasons, the trial court's choice of the third option was not an abuse of discretion that resulted in undue prejudice to either party. Appellant's assignments of error three and four are overruled. Appellant's fifth assignment of error states: THE TRIAL COURT ERRED IN PERMITTING PLAINTIFF'S COUNSEL TO CONTINUALLY LEAD THE PLAINTIFF ON DIRECT EXAMINATION. This record is replete with indications of the fact that Appellee was a poor witness, poor and inconsistent historian, and actually difficult. The trial court stated the following about Appellee. "I think for the record it should be noted that the court's rulings have been predicated upon the proposition that the witness is a very difficult witness to, with whom to conduct a direct examination and in order to expedite the matter and also in the interest of justice, the court feels that counsel under examination should have some latitude with respect to leading, otherwise an inordinate amount of time is going to be spent in this trial, and which will serve the interests of no one." Evid. R. 611(C) states that "leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony." The allowance or refusal of the use of leading questions in the examination of a witness is a matter within the discretion of the trial court. Evans v. State (1873), 24 Ohio St. 458. The existence of such discretion is fundamental and well recognized. State v. Wallen (1969), 21 Ohio App. 2d 27. -18- Assignment of error five is overruled. It is apparent from the record and the applicable legal principles that the use of leading questions was not an abuse of discretion in this instance. Appellant's assignments of error six and seven states: THE TRIAL COURT ERRED IN ADMITTING, OVER THE OBJECTION OF THE DEFENDANT, THE OPINION TESTIMONY OF THE INDUSTRIAL HYGIENIST, RONALD SHERMAN, SINCE HIS TESTIMONY WAS IRRELEVANT, IMMATERIAL, SPECULATIVE, AND PREJUDICIAL. THE TRIAL COURT ERRED IN ALLOWING THE OPINION OF DR. DAVID ROSENBERG TO BE ADMITTED INTO EVIDENCE, OVER THE OBJECTION OF THE DEFENDANT, WHERE DR. ROSENBERG HAD RELIED ON THE REPORT OF THE INDUSTRIAL COMMISSION HYGIENIST AND OTHER FACTORS NOT ADMITTED INTO EVIDENCE. The threshold question raised by these assignments of error was whether the testimony of a qualified Industrial Hygienist was relevant or material to this case, when the entire case hinged on an allegation that Appellee contracted chronic obstructive pulmonary disease that was causally related to Appellant's environment at LTV Steel. Evid. R. 401 defines relevant evidence to be "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The testimony of Ron Sherman, an Industrial Hygienist, was relevant and material to the issue in this case (i.e. whether Appellee's illness was causally related to his environment at work.) -19- The next question is as easily determined and that is whether Sherman's testimony constituted expert testimony. The test is put forth in Gannett v. Booher (1983), 12 Ohio App. 3d 49, Syllabus 2. The test in determining the admissibility of testimony of a witness offered as an expert is whether that witness will aid the trier of fact in search of the truth rather than whether the proposed expert witness is the best witness on the particular subject. Rulings concerning the admissibility of expert testimony are within the discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion. Frank v. Vulcan Materials Co. (1988), 55 Ohio App. 3d 153. The testimony of a qualified Industrial Hygienist, given the backdrop of issues in this case, was of assistance to the jury in its search for the truth. Ron Sherman was asked by the Industrial Commission of Ohio to evaluate the industrial atmosphere of Appellant and assist this objective tribunal in its search for the truth. If the Industrial Commission of the State of Ohio feels that Ron Sherman's opinion was of substantial aid to it, it is clearly not an abuse of discretion by the trial court to permit Sherman's opinion to assist the jury. We, there- fore, hold that Sherman was an expert witness because his testimony aided the trier of fact in search of the truth. Expert testimony is governed by both Evid. R. 702 and 703. Evid. R. 702 reads as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an -20- expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (Emphasis added.) The underlying principle of Evid. R. 702 is embodied in the case of McKay Machine Co. v. Rodman (1967), 11 Ohio St. 2d 77. In all proceedings involving matters of scientific, mechanical, professional or other like nature, requiring special study, experience or observation not within the common knowledge of laymen, expert opinion testimony is admissible to aid the court or the jury in arriving at a correct determination of the litigated issue. Id. at Syllabus. Evid. R. 703 governs the bases of opinion testimony by experts. It reads: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. This rule places two express categories on the facts or data used by the expert as the basis of his/her opinion, either may suffice. The first category is that the facts or data be perceived by the expert. The second is that the facts and data be admitted into evidence at the trial. The case of State v. Minor (1988), 47 Ohio App. 3d 22 enlarges the qualifications placed on facts and data with the following rule: The facts or data upon which an expert opinion is offered at trial must be either perceived by the expert or based upon evidence admitted at trial. However, an expert necessarily brings to each case knowledge of facts or data which are not in evidence, for it is this knowledge which qualifies a witness as an expert. Thus, to the extent that the expert applies to the facts in evidence scientific -21- principles, theories, calculations, measurements, or tables -- which have qualified the witness as an expert -- such principles, theories, calculations, measurements, or tables need not be in evidence if the predicate facts are in evidence. An application of the principles embodied in Evid. R. 702 and 703 to the instant case reflect that the testimony of Ron Sherman was properly admitted and controlled by the trial court. There was no abuse of discretion by the trial court, with respect to Sherman, resulting in any undue prejudice to Appellant. As defined by Sherman, an Industrial Hygienist is an individual involved in the recognition and evaluation of occupational exposure to air contaminants, for purposes of controlling these chemical and physical agents. The litigated issue in this case was whether Appellee's exposure to air contaminants during his employment with Appellant caused or partially caused his chronic obstructive pulmonary disease. Thus, this proceeding satisfied the test in McKay, supra, and Evid. R. 702. This proceeding involved matters of scientific, mechanical, professional or other like nature requiring special study, experience, or observation not within the common knowledge of laymen. Sherman testified about the Appellee's exposure to a number of harmful air pollutants, which he defined, explained their sources when he could, and explained their injurious qualities where he could. Sherman did this not always in the form of an opinion, but otherwise, in satisfaction of Evid. R. 702. -22- His testimony was not given in terms of possibilities or probabilities, as Appellant's argument attempts to assert. Instead, Sherman spoke with certainty as it related to Appellee's exposure to certain air pollutants and their injurious nature. When he was unable to, the trial court did an excellent job of handling objections and offering curative instructions on the few occasions where they were appropriate. He clearly stayed within his initial ruling that "the testimony of the witness may be presented to the jury objectively and realistically, and that counsel for the defendants rely on cross-examination to minimize the contentions of the plaintiff." The admission of Ron Sherman's testimony satisfied the criteria of Evid. R. 702 and was therefore properly admitted on those grounds. Interestingly, we are compelled to also point out on the question of prejudice that reasonable and objective minds could find Sherman's testimony helpful to Appellant. Sherman testified that the air pollutants that were present at Appellant's facility during his inspection were all within safe levels and below the Threshold Limit Values, which he testified was an allowable limit or concentration of a chemical air contaminant that one is permitted to be exposed to without injurious health problems. The expert testimony of Sherman is also attacked by Appellant on the grounds that it does not satisfy Evid. R. 703, because the basis of his opinion was improper. -23- Evid. R. 703 sets some definite criteria about the facts and data upon which an expert may base an opinion. The first is that the facts and data be perceived by him. The second is that the facts and data be admitted into evidence during the trial. Finally, there is a common law expansion of these two criteria in Minor, supra. Ron Sherman brought to this case knowledge of facts and data that were not in evidence. Indeed, "it is this knowledge which qualifies a witness as an expert." Id. at Syllabus 2. His statements regarding Appellant's exposure prior to 1976 could be determined through the application of facts in evidence to scientific principles, theories, measurements, calculations, and his knowledge of the state of the art of industrial hygiene. Consequently, there was a legally sufficient set of facts and data upon which Sherman could base his opinions. Therefore, assignment of error six is overruled. Appellant's assignment of error seven states: THE TRIAL COURT ERRED IN ALLOWING THE OPINION OF DR. DAVID ROSENBERG TO BE ADMITTED INTO EVIDENCE, OVER THE OBJECTION OF THE DEFENDANT, WHERE DR. ROSENBERG HAD RELIED ON THE REPORT OF THE INDUSTRIAL COMMISSION HYGIENIST AND OTHER FACTORS NOT ADMITTED INTO EVIDENCE. Having deemed Ronald Sherman's report and testimony properly admissible into evidence at the trial, assignment of error seven is also overruled as it relates to Dr. Rosenberg's reliance on it. Pursuant to Evid. R. 703, Dr. Rosenberg may rely on facts -24- and data admitted into evidence at the trial. The remaining factor that Appellant argues was improperly relied on by Dr. Rosenberg was the report of Dr. Tuthill. The same rationale applies. Dr. Tuthill's medical report was stipulated into evidence by Appellant. Again, pursuant to Evid. R. 703, an expert may rely on facts and data admitted at the trial. Since Dr. Tuthill's report was admitted at the trial, it was not improper for Dr. Rosenberg to rely on it. Therefore, assignment of error seven is overruled. Appellant's assignments of error eight and nine address the directed verdict and state: THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF PLAINTIFF'S CASE. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S RENEWED MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF DEFENDANT'S CASE. The essential elements that Appellee was to prove by a preponderance of the evidence were outlined in Ohio Bell Telephone Co. v. Krise (1975), 42 Ohio St. 2d 247. The first was that the claimant contracted the disease during the scope of his employment. The second was that the disease was peculiar to the employment, or conditions of the employment resulted in a hazard which distinguished the employment in character from employment generally. Third, the employment created a risk of contracting the disease in a greater degree and in a different manner than in the public generally. -25- Having already discussed the propriety of Dr. Rosenberg's opinion and the report of Ron Sherman, we are not inclined to reiterate them here. However, at the close of Appellee's case, there was a sufficient amount of evidence on each of the essential elements such that reasonable minds could reach different conclusions. The testimony of Dr. Rosenberg, Ron Sherman, and Appellee was sufficient to withstand a directed verdict challenge. With respect to the directed verdict after Appellant's case, reasonable minds could also reach different conclusions about the proof of the essential elements. Dr. DiMarco placed a completely different cause for Appellee's disease before the jury, cigarette smoking and pneumonia. Dr. Schultz, Appellee's treating physician, was unsure of the causal relationship between Appellee's disease and his employment. Dr. Tuthill causally related Appellee's illness to his employment in part. If reasonable medical minds could differ as to the causal relationship, it is plausible that reasonable minds could differ on the essential elements. The directed verdict motion was properly overruled at both stages of the proceeding. Assignments of error eight and nine are overruled. Assignment of error ten states: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON DUAL PROXIMATE CAUSATION SINCE THERE WAS NO MEDICAL TESTIMONY THAT TWO FACTORS COMBINED TO PRODUCE CLAIMANT'S LUNG DISEASE. -26- Norris v. Babcock and Wilcox Co. (1988), 48 Ohio App. 3d 723 is indeed similar factually to the instant case. "B and W's defense was that it was Robert's smoking which proximately caused the cancer and not the working environment. Thus, the outcome of the trial hinged on whether the jury found Dorothy's expert or B and W's expert more credible." Id. at 67. The same factors were present in the instant case. From the expert medical testimony at trial, there were several possible causes for Appellee's lung condition. Dr. DiMarco, Appellant's expert, attributed Appellee's lung disease to the combination of cigarette smoking, working in the coal mines, and an episode of pneumonia. Dr. Rosenberg's opinion was that Appellee's lung disease was exclusively related to Appellee's employment with Appellant and the resulting exposure to chemical air pollutants. Dr. Tuthill's diagnosis and opinion was that Appellee's disease was probably in part related to his exposure to industrial pollutants while employed by Appellant. Dr. Schultz was unsure. With these differing opinions on the cause of Appellee's illness, an instruction on dual proximate causation was proper pursuant to Norris. Assignment of error ten is overruled. Appellant's assignment of error eleven states: PLAINTIFF'S COUNSEL COMMITTED MISCONDUCT IN HIS CLOSING ARGUMENT BY MAKING EXTREMELY INFLAMMATORY AND PREJUDICIAL STATEMENTS ABOUT THE DEFENDANT. The conduct of counsel during trial is subject to the discretion of the trial judge, and his discretion will not be -27- controlled by a reviewing court unless abuse results to the prejudice of one of the parties to the action, as where it is of such a character and so persistent as to prevent a fair trial of the cause. 89 O. Jur. 3d Section 46. The character of counsel's statements, while improper and sustained as such, was not so unrelated to the issues of the trial that we can unequivocally conclude that their prejudicial result warrants a new trial. Furthermore, the comments were not so persistent that we can determine that they were blatantly intended to exceed proper boundaries. The most important fact, in our overruling of this assignment of error, is that the trial court granted both motions to strike and gave curative instructions immediately. Therefore, assignment of error eleven is overruled. Assignment of error twelve states: THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION TO TAX COSTS AND FOR ATTORNEYS' FEES AGAINST DEFENDANT LTV STEEL COMPANY. With respect to Appellant's assertion that the trial court lacked jurisdiction to grant Appellee's motion to tax costs and for attorney's fees against it, where a notice of appeal has been filed prior to the ruling, this court is not persuaded by this argument. During the pendency of an appeal a trial court continues to have jurisdiction to exercise so long as the exercise of that jurisdiction does not interfere with the power of the appellate -28- court to review the judgment under appeal and affirm, modify or reverse that judgment. Buckles v. Buckles (1988), 46 Ohio App. 3d 118. In the instant case, unlike Vaurina v. Geczanich (1974), 40 Ohio App. 2d 129 that is relied on by Appellant, the decision to grant a motion for costs and attorney fees to be paid by Appellant does not interfere with the power of the appellate court to review the judgment under appeal and affirm, reverse, or modify it. Vaurina, supra, dealt with a trial court's jurisdiction to act on a motion for relief from judgment pursuant to Civ. R. 60(B). Clearly, a trial court's ruling on a motion for relief from judgment would interfere with the power of the appellate court to review the judgment under appeal. For the above reasons, Appellant's argument pertaining to jurisdiction lacks merit. This court has ruled on both of these issues in the past. In Sorci v. General Motors Corp. (1983), 13 Ohio App. 3d 223, this court held: Pursuant to R.C. 4123.519, where the claimant is victorious on appeal to the court of common pleas from an order of the Industrial Commission, attorney fees and costs shall be taxed against the employer if it was the employer, as opposed to the Industrial Commission or administrator, who contested the claimant's right to benefits. Additionally, in Moore v. General Motors Corp. (1985), 18 Ohio St. 3d 259, the Ohio Supreme Court held that pursuant to R.C. 4123.519, a common pleas court may tax to the employer the costs of an expert's witness fee in preparing and giving his deposition -29- as a "cost of any legal proceedings authorized by this section." Id. at Syllabus. Judgment affirmed. It is ordered that Appellee recover of Appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. SPELLERBERG, J.*, and DYKE, P.J., CONCUR. (SEE CONCURRING OPINION, DYKE, P.J., ATTACHED). PATRICIA A. BLACKMON JUDGE (*JUDGE THOMAS R. SPELLERBERG, SENECA COUNTY COMMON PLEAS COURT, SITTING BY ASSIGNMENT.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .