COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72605 TINA A. BENTLER : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION MEGAN GALAIDA, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 1, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-283971 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: A. DALE NATICCHIA (#0037362) MICHAEL P. MEEHAN (#0059515) 160 Plaza West Building 20220 Center Ridge Road Rocky River, Ohio 44116 For Defendants-Appellees: THOMAS E. DOVER (#0016765) Gallagher, Sharp, Fulton & Norman 7th Floor - Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 SPELLACY, J.: Plaintiff-appellant Tina Bentler ( appellant ) appeals from -2- several evidentiary rulings made by the Court of Common Pleas during the trial of the underlying case, which resulted in a jury verdict awarding appellant Fifteen Thousand Dollars ($15,000.00) for injuries she sustained in an automobile accident. Appellant assigns the following errors for our review: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ALLOWED THE HEARSAY TESTIMONY OF PETER KING TO BE READ TO THE JURY. II. THE LOWER COURT COMMITTED PREJUDICIAL ERROR WHEN IT ALLOWED THE TESTIMONY OF PETER KING CONCERNING FACTS NOT WITHIN HIS PERSONAL KNOWLEDGE. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED TESTIMONY FROM DR. BERGFELD CONCERNING STATEMENTS SUPPOSEDLY MADE BY APPELLANT UNRELATED TO TREATMENT OR DIAGNOSIS. IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE OPINION TESTIMONY OF MEDICAL EXPERT RALPH KOVACH SINCE HIS OPINION DID NOT CONFORM TO EV.R. [SIC] 703. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ALLOWED EVIDENCE OF A $50,600.00 DEFAULT JUDGMENT AWARDED FOR APPELLANT FOR AN ASSAULT THAT OCCURRED 2 YEARS PRIOR TO THE AUTOMOBILE ACCIDENT. Finding appellant's assignments of error to lack merit, the judgment of the trial court is affirmed. I. This lawsuit arises out of an automobile accident which occurred on February 3, 1993, between appellant and defendant- appellee Megan Galaida ( appellee ). On that date, appellant and appellee were approaching the same intersection from different -3- directions. At the intersection, appellee made a left-hand turn and the two vehicles collided. Appellant asserts that she had a green light when she entered the intersection. Appellee contends that she had a green left-turn arrow when the accident occurred. On the day of the accident, appellant was treated at Deaconess Hospital. After performing an examination, including x-rays of the right knee and lower jaw, the emergency room doctor, Peter King, M.D., diagnosed appellant's injuries as a minor contusion to the right knee and a laceration to the lower lip. Dr. King dictated his notes from his examination of appellant four days later, on February 7, 1993. Appellant immediately sought medical treatment for pain in her jaw and teeth, including treatment from her orthodontist, Kenneth Agronin, D.D.S. However, appellant did not seek follow-up medical attention for her right knee. In fact, appellant testified that she experienced only minor pain in her right knee during February and March, and remained active during this time. In April 1993, appellant's right knee buckled as she was running while playing frisbee. On May 13, 1993, appellant sought treatment for her right knee for the first time since the date of the subject automobile accident. On that date, appellant came under the care of an orthopedic surgeon, Duret Smith, M.D. On August 11, 1993, an MRI of appellant's right knee was performed; the MRI revealed a tear of appellant's right anterior cruciate ligament ( ACL ). In October 1993, Dr. Smith performed an ACL -4- reconstruction surgery on appellant's right knee. Thereafter, appellant was informed that she would have to undergo a second ACL reconstruction surgery. Appellant sought a second opinion from John Bergfeld, M.D. Before her second surgery, appellant was also examined by Ralph Kovach, M.D. On January 27, 1995, appellant filed a lawsuit against appellee and her parents, Mr. and Mrs. Kenneth Galaida. During litigation, appellant asserted that she sustained multiple injuries, including the torn right ACL, in the motor vehicle accident. Appellant further claimed that she had incurred medical bills in excess of Forty-Five Thousand Dollars ($45,000.00) as a result of the subject accident. Prior to trial, appellant filed several motions in limine, including: (1) a motion to exclude the testimony and records of Dr. King; (2) a motion to exclude the testimony of Dr. Kovach; (3) a motion to exclude Dr. Bergfeld's references to appellant's frisbee incident; and (4) a motion to exclude evidence of another lawsuit appellant had filed for injuries she suffered during an unrelated assault. The trial court denied appellant's motions in limine prior to trial. On March 31, 1997, trial of this matter commenced; during trial, liability and extent of damages were at issue. Appellant presented two fact witnesses, Joseph Offredo and Officer Joseph Manning of the Parma Police Department. Both Mr. Offredo and Officer Manning testified that appellant had the right-of-way, and -5- that the accident was appellee's fault. Appellant also testified that she had a green light when she entered the intersection. During cross-examination, appellee's attorney questioned appellant on an incident in 1991 in which appellant was the victim of an assault. At trial, appellant admitted that she had filed a lawsuit in that case for severe injuries to her face, neck and back. However, during her deposition, appellant denied ever filing this or any other lawsuit and also denied any previous injuries to her face. Appellee's attorney also questioned appellant concerning the Fifty Thousand Six Hundred Dollar ($50,600.00) default judgment appellant was awarded in that case. Appellant's attorney objected to this line of questioning; appellant's objection was overruled by the trial court. Appellant also presented expert testimony from Dr. Agronin and Dr. Smith. During his testimony, Dr. Smith opined that the subject automobile accident was the cause of appellant's torn right ACL. Appellee then presented her case. During her testimony, appellee maintained that she had a green left-turn arrow when she entered the intersection. After her testimony, appellee presented the deposition of Peter King, which was read to the jury. During his testimony, Dr. King read his emergency room notes into evidence. Appellant objected to this particular testimony, and Dr. King's testimony as a whole. The trial court overruled appellant's objections. The deposition of Dr. Bergfeld was also read to the jury. During his deposition, Dr. Bergfeld testified concerning a letter -6- he had written to appellant after he had examined her. Dr. Bergfeld read the letter into evidence. The letter stated, in pertinent part: In April while playing frisbee you twisted your knee. At that time it was felt that you had torn your anterior cruciate ligament. The trial court overruled appellant's objection to this evidence. The videotape deposition of Ralph Kovach was then presented to the jury, over appellant's objections. Dr. Kovach, relying on his examination of appellant and his review of her medical records, including Dr. King's notes, opined that the tear in appellant's right ACL was not caused by the subject automobile accident, but instead occurred during appellant's subsequent frisbee accident. On April 3, 1997, the jury awarded appellant Fifteen Thousand Dollars ($15,000.00). On April 17, 1997, appellant moved for a new trial; the trial court denied appellant's motion for a new trial on April 30, 1997. On May 30, 1997, appellant filed a notice of appeal. On April 23, 1998, this court dismissed appellant's appeal, pursuant to Civ.R. 54(B), because her negligent entrustment claims against Mr. and Mrs. Galaida remained pending. On July 17, 1998, Galaida's parents were dismissed with prejudice. Therefrom, appellant's current appeal was filed. II. In her first assignment of error, appellant argues that the trial court erred in allowing Dr. King to read his emergency room -7- notes into evidence during his testimony because Dr. King had no independent recollection of treating appellant. This assignment of error is without merit. "Hearsay" is defined by Evid.R. 801(C) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 802 prohibits the admission of hearsay except as otherwise provided by the Rules of Evidence. The trial court has broad discretion to determine whether a declaration should be admissible under an applicable hearsay exception. State v. Dever (1992), 64 Ohio St.3d 401, 410. Evid.R. 803(5) states: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: * * * (5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. In order to read a statement into evidence, pursuant to Evid.R. 803(5), a party must establish that: (1) the witness has a lack of present recollection of the recorded matter; (2) the recorded recollection was made at a time when the matter was fresh -8- in the witness's memory; (3) the recorded recollection was made or adopted by the witness; and (4) the recorded recollection correctly reflects the prior knowledge of the witness. See Dayton v. Combs (1993), 94 Ohio App.3d 291, 300, citing 1 Weissenberger, Ohio Evidence (1993) 57, Section 803.58. In the instant case, the necessary foundation was established for the admission of Dr. King's notes as recorded recollection. Appellant correctly notes that Dr. King had no independent recollection of treating appellant. Appellant then contends that, because Dr. King did not dictate his notes until four days after his examination of appellant, his notes were not made at a time when the matter was fresh in his memory. We disagree. Based on the thorough detail of Dr. King's notes, it is apparent that the disputed notes were made at a time when the matter was fresh in Dr. King's memory. Moreover, Dr. King testified that he personally reviews all his dictations. Therefore, we find that the trial court did not abuse its discretion in allowing Dr. King's notes to be read into the record as a recorded recollection. Accordingly, appellant's first assignment of error is overruled. III. In her second assignment of error, appellant contends that the trial court erred in allowing Dr. King to testify concerning facts not within his personal knowledge. Evid.R. 602 states: A witness may not testify to a matter unless evidence is introduced sufficient to support a -9- finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. (Emphasis added.) This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Evid.R. 703 states: 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. The Supreme Court has noted that Evid.R. 703 is written in the disjunctive; [o]pinions may be based on perceptions of facts or data admitted in evidence." State v. Solomon (1991), 59 Ohio St.3d 124, 126 (emphasis added). [T]he trial court has broad discretion in determining the admissibility of expert testimony and its decision must be affirmed unless manifestly erroneous. Berry v. Motorists Mut. Ins. Co. (1983), 13 Ohio App.3d 228, 232. In his testimony, Dr. King testified concerning facts perceived by him when he examined appellant. Moreover, Dr. King's opinion testimony was based, in large part, on his notes, which were read into evidence. Therefore, the trial court did not abuse its discretion in allowing Dr. King to offer his opinion testimony. Accordingly, appellant's second assignment of error is without merit and is overruled. IV. In her third assignment of error, appellant argues that the -10- trial court erred in allowing Dr. Bergfeld to testify concerning a statement made to him by appellant about injuring her knee while playing frisbee. Appellant claims that the disputed statement was unrelated to treatment or diagnosis, and therefore inadmissible hearsay. We disagree. Evid.R. 803(4) provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: * * * Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (Emphasis added.) In State v. Boston (1989), 46 Ohio St.3d 108, 121, the Supreme Court of Ohio stated: Evid.R. 803(4), effective July 1, 1980, permits the admission of three types of patient statements: (1) medical history, (2) past or present symptoms, pain or sensations, and (3) description of the inception or general character of the cause or external source of the disease or injury. These statements, to be admissible, must be made by the patient for purposes of medical diagnosis or treatment. Furthermore, all three types of statements are admissible only where they are "* * * reasonably pertinent to diagnosis or treatment." In the instant case, appellant's statement to Dr. Bergfeld concerning the frisbee incident was clearly made for the purpose of -11- medical diagnosis or treatment. Moreover, contrary to appellant's contention, the external cause of appellant's knee injury was reasonably pertinent to diagnosis or treatment. Therefore, the trial court did not abuse its discretion in allowing the disputed evidence. Accordingly, appellant's third assignment of error is overruled. V. In her fourth assignment of error, appellant claims that the trial court erred in allowing the opinion testimony of Dr. Kovach. Appellant argues that Dr. Kovach's opinions were based primarily on the emergency room notes prepared by Dr. King and, therefore, inadmissible under Evid.R. 703. As stated above, opinions may be based on either an expert's perceptions of facts or data admitted in evidence. Solomon, 59 Ohio St.3d at 126. In our review of appellant's first assignment of error, we held that Dr. King's notes were admissible and properly read into the record. As such, pursuant to Evid.R. 703, the notes were data admitted in evidence and were an appropriate basis for Dr. Kovach's opinion testimony. Moreover, Dr. Kovach indicated that his opinion was based upon his review of appellant's medical records, his experience as an orthopedic surgeon, and his own examination of appellant. Based on the foregoing, the trial court did not abuse its discretion in allowing the opinion testimony of Dr. Kovach. -12- Accordingly, appellant's fourth assignment of error is overruled. VI. In her fifth assignment of error, appellant contends that the trial court erred when it allowed appellee's attorney to cross- examine appellant concerning a default judgment she was awarded in a previous lawsuit. Specifically, appellant argues that evidence of the amount of the default judgment, Fifty Thousand Six Hundred Dollars ($50,600.00), had no probative value. In the instant case, with both liability and the cause of appellant's injuries in dispute, appellant's credibility was a crucial issue. Appellant testified during her deposition that she had never filed any other personal injury claims or lawsuits. Therefore, appellee asserts that evidence of the previous lawsuit, including the amount of the default judgment, was appropriate and relevant to appellant's credibility. Evid.R. 611(B) states: Cross-examination shall be permitted on all relevant matters and matters affecting credibility. Relevance, in the context of cross-examination, includes not only all facts in issue but also a witness's credibility. See Fields v. Daily (1990), 68 Ohio App.3d 33, 42, citing Evid.R. 611(B); McCormick on Evidence (3 Ed.1984) 63, Section 29. The scope of cross-examination lies within the sound discretion of the trial court. Renfro v. Black (1990), 52 Ohio St.3d 27, 33. The standard of review on such evidentiary rulings is whether the trial court abused its discretion, and the reviewing -13- court will not reverse the ruling unless the trial court's attitude was unreasonable, arbitrary or unconscionable. Id. We find that the trial court did not abuse its discretion when it allowed appellee's attorney to cross-examine appellant concerning the amount of the default judgment she had been awarded in a previous lawsuit. Contrary to appellant's contention, the amount of the default judgment was relevant to appellant's credibility and appropriate under Evid.R. 611(B). Evidence of the amount of the default judgment, which was over Fifty Thousand Dollars ($50,000.00), was properly utilized by appellee's attorney to bolster the position that appellant was untruthful and did not merely forget about the previous lawsuit. Accordingly, appellant's fifth assignment of error is overruled. Judgment affirmed. -14- It is ordered that appellees recover of appellant their 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. JAMES M. PORTER, P.J. and KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .