Cincinnati Insurance Co. v. Allen, 2007-Ca-134 (7-25-2008)

Citation: 2008 Ohio 3720Docket: No. 2007-CA-134.

Court: Ohio Court of Appeals; July 25, 2008; Ohio; State Appellate Court

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Cincinnati Insurance Company (CIC) and the Greek Orthodox Church appeal a Clark County Municipal Court order that partially denied their motion to strike and granted summary judgment in favor of James Allen. CIC contends that the court erred by not striking parts of Allen's and Dr. Thomas Ericksen's affidavits related to Allen's "sudden medical emergency" defense, arguing that a genuine issue of material fact exists that should preclude summary judgment. 

On September 11, 2004, Allen experienced lightheadedness while driving home, lost consciousness, and subsequently crashed into the Church's property. CIC filed a negligence claim against Allen in 2006 for property damage, which Allen denied, citing an unexpected medical emergency. In 2007, Allen moved for summary judgment, supported by his own deposition, an affidavit, and Dr. Ericksen's affidavit. CIC sought to strike certain portions of these affidavits but the court only partially granted this motion by striking one paragraph from Allen's affidavit due to hearsay.

CIC's first assignment of error claims the trial court abused its discretion by not striking additional parts of the affidavits. The court's decision to sustain or overrule a motion to strike is discretionary and will only be overturned if it reflects an unreasonable, arbitrary, or unconscionable attitude. Allen's affidavit included details of the incident and his medical diagnosis of syncopal episodes related to sick sinus syndrome, which CIC argues should have been excluded. The appellate court disagrees with CIC's position regarding the admissibility of Allen's medical diagnosis and his characterization of the incident as a "sudden medical emergency." 

The trial court's judgment is affirmed.

Allen's testimony regarding a "sudden medical emergency" is not recognized as a legal term but can be interpreted as a sudden medical issue, making it admissible. The trial court did not err in denying the motion to strike paragraph five of Allen's affidavit, as his statement about not having been previously diagnosed with sick sinus syndrome is not hearsay. The focus is not on Allen's awareness of a diagnosis but rather on his knowledge of a medical condition that could lead to loss of consciousness. The absence of a prior diagnosis does not indicate whether his unconsciousness was foreseeable. The trial court's decision not to strike this paragraph is deemed within its discretion.

Dr. Ericksen's affidavit includes his qualifications, his familiarity with Allen's medical history, and his opinions regarding Allen's medical conditions. Specifically, he opines with reasonable medical certainty that Allen suffered a transient ischemic attack (TIA) in 1993 and that his loss of consciousness on September 11, 2004, was due to vasodepressor syncope, unrelated to the TIA. Dr. Ericksen asserts that Allen had no reason to anticipate the loss of consciousness. CIC challenges the admissibility of Dr. Ericksen's opinion in paragraph seven, arguing that he did not specify the facts or data underlying his opinion. However, under Evid. R. 705 and Evid. R. 703, an expert can express opinions based on perceived facts or data, and such opinions may address ultimate issues for the trier of fact.

Dr. Ericksen, who treated Allen for over a decade, provided an affidavit indicating that Allen's loss of consciousness was due to vasodepressor syncope and unrelated to his 1993 TIA. Dr. Ericksen based his opinion on Allen's medical history and examination, which satisfies the evidentiary requirements under Evid. R. 705. The trial court ruled in favor of Allen, granting summary judgment, concluding that Allen's incident was a sudden medical emergency that he could not have foreseen. The "sudden medical emergency" defense, which absolves a driver of negligence when incapacitated unexpectedly, was discussed, with the court acknowledging that cases involving this defense often require trial for credibility determinations. However, the Supreme Court did not mandate that all such cases must go to trial. CIC contended that genuine issues of material fact existed regarding whether Allen should have foreseen his blackout, citing that Allen had experienced lightheadedness on multiple occasions since his stroke. Despite this, he stated he did not experience the same degree of discomfort during the incident as he had previously.

Allen experienced lightheadedness for approximately eleven years, managing it by stopping activities and relaxing, with symptoms typically resolving quickly. Instances of lightheadedness while driving led him to pull over until the sensation passed. He never blacked out while driving before the accident on September 11, 2004, and had informed his doctors about his condition, including Dr. Ericksen, who did not impose activity restrictions. On the day of the accident, Allen felt lightheaded and nauseous while waiting at a traffic light, and described the nausea as severe. After the light turned green, he lost consciousness, later refusing hospital transport as his symptoms subsided. Post-accident, he experienced dizziness but not the same severe nausea. Dr. Ericksen opined that Allen's loss of consciousness was unforeseeable. CIC argued that Allen's history of lightheadedness raised questions about foreseeability; however, the court found no genuine issue of fact regarding his ability to anticipate the blackout. The court referenced the Supreme Court's broader interpretation of the sudden medical emergency defense, rejecting the notion that only drivers unaware of any medical conditions could claim this defense. The foreseeability inquiry, therefore, hinges on whether a driver should have been operating a vehicle given their medical history.

The foreseeability inquiry in cases involving sudden medical emergencies would be redefined under the appellants' proposal, which seeks to eliminate consideration of a driver's reasonableness in choosing to drive despite health issues. This change would imply that drivers with any medical history could not succeed in a sudden-medical-emergency defense. The court finds no compelling reason to alter the established balance from Lehman v. Haynam, which places the burden of proof for the defense on the defendant, specifically requiring them to demonstrate that the loss of consciousness was not foreseeable. Adopting the appellants' argument would undermine a fundamental aspect of the Lehman ruling. Additionally, CIC raises concerns about Allen's credibility due to inconsistencies between his deposition and affidavit regarding his hospital visit and diagnosis. However, the court deems these contradictions immaterial to the question of foreseeability concerning Allen's loss of consciousness prior to the accident. Consequently, the second assignment of error is overruled, and the trial court's judgment is affirmed, with Judges Brogan and Fain concurring.