COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72620 FRANK CAPUTO ACCELERATED DOCKET JOURNAL ENTRY AND OPINION PER CURIAM Plaintiff-appellant vs. SILVER ARROW SYSTEMS, ET AL. Defendant-appellees DATE OF ANNOUNCEMENT OF DECISION OCTOBER 30, 1997 CHARACTER OF PROCEEDINGS Civil appeal from Court of Common Pleas Case No. CV-313249 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For plaintiff-appellant: For defendant-appellees: JEFFERY S. WATSON, ESQ. VINCENT T. LOMBARDO, ESQ. CATHERINE B. TWOHIG, ESQ. Assistant Attorney General Yulish, Twohig & Associates State Office Bldg., 12th Place Hilliard Bldg. 615 West Superior Avenue 1419 West Ninth Street Cleveland, OH 44113-1899 Cleveland, OH 44113 - 2 - PER CURIAM: This cause came to be heard on the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas, the briefs and oral arguments of counsel. In 1990, defendant-appellee Administrator of the Bureau of Workers' Compensation allowed plaintiff-appellant Frank Caputo's claim for a herniated cervical disc (C4-5) that required a spinal fu- sion/anterior discectomy. In 1995, plaintiff sought to have that claim further allowed for a herniation that developed farther down the cervical vertebrae (C6-7). The administrator denied the claim, arguing that plaintiff had not proved the second herniation developed as a result of the 1990 claim. A jury ultimately decided that plaintiff was not entitled to participate in the workers' compensation fund. The sole issue in this appeal is whether the trial court abused its discretion by permitting the administrator's expert to express an opinion based upon materials that were not in evidence and were not within the personal knowledge of the expert. The expert testified that he examined plaintiff, took x-ray photographs and a personal history. The expert also reviewed plaintiff's medical records and reports detailing the results of an MRI, CT scan, myleogram and x-rays taken by other physicians prior to his examination. Of these records, only the MRI report and the notes and office chart of plaintiff's treating neurosurgeon were admitted - 3 - into evidence at trial. Plaintiff argues the expert's opinion based upon materials not admitted into trial violates Evid.R. 703. The administrator argues plaintiff waived the right to challenge the expert's testimony when he failed to make a timely objection during the testimony. Plaintiff objected after the expert testified, telling the court he did so in anticipation that the attorney generals [sic] would have no medicals. A party may not assign as an error a ruling which admits evidence unless a substantial right of the party is affected and a timely objection or motion to strike the evidence appears of record. See Evid.R. 103(A)(1); Sheeler v. Ohio Bur. Of Workers' Comp. (1994), 99 Ohio App.3d 443, 447. Because the expert testified by videotaped deposition, plaintiff had ample opportunity to object before the expert's testimony had been played to the jury. Moreover, we find plaintiff's reason for waiting to make the objection unpersuasive. In his trial brief, the administrator indicated he would not be submitting into evidence any exhibits other than those relied on by plaintiff; hence, plaintiff knew that the administrator would not be relying on any exhibits that had not previously been admitted into evidence by plaintiff. Park Ridge Co. Franklin Cty. Bd. Of Revision (1987), 29 Ohio St.3d 12, 15. Even if an objection had been timely interposed, we find the trial court would not have abused its discretion by permitting the expert's opinion. Evid.R. 703 states, The facts or data in the - 4 - 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 is satisfied when an expert bases his opinion, in whole or in major part, on facts or data perceived by him. State v. Solomon (1991), 59 Ohio St.3d 124, syllabus; State v. Mack (1995), 73 Ohio St.3d 502, 512. The trial court could reasonably find the administrator's expert based his opinion in major part on facts or data either perceived by him or admitted into evidence at trial. The data perceived by the expert included his own physical examination of plaintiff and x-rays taken at the time of the examination. Information that had been admitted into evidence included records prepared by plaintiff's surgeon, plaintiff's office chart by that same surgeon and an MRI report. All this information would have been admissible under Solomon, supra. This information ultimately had little impact on the expert's opinion on causation since the expert thought it highly unlikely that a herniated disc would result two vertebrae away from the initial fusion in the absence of any other injury or trauma to that region. It is important to note that the expert did not question the existence of the herniation at the time of trial (in fact, both parties stipulated to the existence of the C6-7 herniation), nor did either party dispute the absence of the herniation in 1990. The expert referred to the medical records simply to corroborate the absence of any abnormalities in the C6-7 vertebrae at the time - 5 - of plaintiff's 1990 surgery. This conclusion was not tied to the information cited during trial. The expert concluded the herniation most probably occurred from arthritis resulting from the natural aging process, and was wholly unrelated to the 1987 injury. Interestingly, plaintiff's surgeon gave her own opinion that likewise did not rely on the same information used by the expert. The surgeon could not accurately give the cause of the herniation, other than to say that herniation two vertebrae down from a fusion would only occur about twenty percent of the time. Another physician testifying for plaintiff admitted not knowing whether a person could develop a herniated disc as part of the normal aging process. None of these opinions were based on evidence that plaintiff now complains should not have formed the basis for the expert's opinion. The assigned error is overruled. Judgment affirmed. - 6 - It is ordered that appellee recover of appellants 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 Court of Common Pleas 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. PATRICIA A. BLACKMON, PRESIDING JUDGE .