[Cite as Ford v. Sunbridge Care Ents., 2016-Ohio-1122.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103031 

CAROL FORD

PLAINTIFF-APPELLANT 

vs. 

SUNBRIDGE CARE ENTERPRISES, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-825240 

BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: March 17, 2016 
ATTORNEYS FOR APPELLANT

Jerald A. Schneiberg 

Daniel A. Kirschner 

Jennifer L. Lawther 

Nager, Romaine & Schneiberg Co., L.P.A. 

27730 Euclid Avenue 

Euclid, Ohio 44132 

ATTORNEYS FOR APPELLEES

For Sunbridge Care Enterprises

Michael J. Reidy 

Nicholas W. Lanphear 

Meredith L. Ullman 

Ross Brittain & Schonberg Co., L.P.A. 

6480 Rockside Woods Blvd. South 

Suite 350 

Cleveland, Ohio 44131 

For Bureau of Workers’ Compensation

Mike DeWine 

Ohio Attorney General 

BY: Nancy Q. Walker 

Assistant Attorney General 

615 Superior Avenue, 11th Floor 

Cleveland, Ohio 44113 
EILEEN T. GALLAGHER, J.: 

{¶1} Plaintiff-appellant, Carol Ford (“Ford”), appeals the denial of two motions to 

exclude evidence at trial. She assigns the following two assignments of error: 

1. The trial court erred in denying appellant’s motion to exclude Dr. Fortgang’s 

Age of Injury Analysis Report. 

2. The trial court erred in denying appellant’s motion in limine to exclude any 

evidence relating to plaintiff’s separate workers’ compensation claims. 

{¶2} We find no merit to the appeal, and affirm the trial court’s judgment. 

I. Facts and Procedural History

{¶3} Ford was working as a state trained nursing assistant (“STNA”) on July 18, 2011, 

when she suffered an injury to her lower back while moving a heavy patient. The injury 

occurred while Ford was acting within the course and scope of her employment with 

defendants-appellees, Sunbridge Care Enterprises (“Sunbridge”), and Ford submitted a workers’ 

compensation claim. The Industrial Commission allowed a claim for lumbar sprain, but 

disallowed Ford’s additional claims for two herniated discs located at L3-4 and L4-5. 

Consequently, Ford filed this administrative appeal of the Industrial Commission’s final order to 

the Cuyahoga County Court of Common Pleas. 

{¶4} Prior to trial, Ford filed two motions in limine to exclude (1) evidence of her 

previous workers’ compensation claims, and (2) a medical report completed by Dr. Kenneth 

Fortgang (“Dr. Fortgang”). Ford sought to exclude evidence of her prior workers’ compensation 

claims pursuant to Evid.R. 401, 402, and 403. She argued that because the sole issue for trial 

was whether her two herniated discs were related to her July 18, 2011 work injury, her prior 

workers’ compensation claims were irrelevant. 
{¶5} With respect to the second motion in limine, Ford sought to exclude an “Age of 

Injury Analysis Report” authored by one of Sunbridge’s experts, Dr. Fortgang. Dr. Fortgang 

based the Age of Injury Analysis Report on a Magnetic Resonance Image (“MRI”) of Ford’s 

spine. He concluded in the report that the herniated discs at L3-4 and L4-5 existed before the 

July 18, 2011 injury and were either congenital or developmental abnormalities “exacerbated by 

degenerative changes.” Ford argued that Dr. Fortgang’s Age of Injury Analysis Report was 

hearsay and did not fall within any exceptions to the hearsay rule. Ford also argued that Dr. 

Fortgang’s report contained an expert opinion. Dr. Fortgang did not testify at trial. 

{¶6} The trial court denied both motions without opinion. After hearing all the evidence, 

the jury returned a verdict in favor of Sunbridge. Ford now appeals the denial of her motions in 

limine. 

II. Law and Analysis 

A. Standard of Review

 {¶7} A trial court is vested with broad discretion in determining the admissibility of 

evidence so long as such discretion is exercised in compliance with the rules of procedure and 

evidence. Rigby v. Lake Cty., 58 Ohio St.3d 269, 569 N.E.2d 1056 (1991). We therefore 

review the trial court’s judgments on Ford’s motions in limine for an abuse of discretion. 

B. Age of Injury Analysis Report

{¶8} In her first assignment of error, Ford argues the trial court erred in denying her 

motion to exclude evidence of Dr. Fortgang’s Age of Injury Analysis Report. She contends the 

report is inadmissible hearsay because it was not created “for the purposes of medical diagnosis 

and treatment” and does not fall within any exceptions to the hearsay rule. 
{¶9} “‘Hearsay’ is 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. 

801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls within one of the 

exceptions listed in Evid.R. 803.1 

{¶10} Dr. Fortgang did not testify at trial and was not subject to cross-examination. Yet, 

Sunbridge offered his Age of Injury Analysis Report to prove the matter asserted therein, i.e., that 

Ford’s herniated discs existed prior to the work-related injury she sustained on July 18, 2011. 

Thus, Dr. Fortgang’s report is a classic example of hearsay. 

{¶11} Ford argued at trial that not even Evid.R. 803(4), which makes exceptions for 

certain medical records, was applicable to Dr. Fortgang’s report. Evid.R. 803(4) provides a 

hearsay exception for statements made for the “purposes of medical diagnosis or treatment.” 

Ford argued that Dr. Fortgang did not make his report for purposes of diagnosis or treatment. 

Indeed, Dr. Fortgang states in the first paragraph that he created his “consultative report” 

pursuant to “an aging request,” and that “[i]t was not meant to be utilized or interpreted for 

treatment purposes.” 

{¶12} Sunbridge argues that because Ford did not object to the report on grounds that the 

report was not authenticated or that there was no foundation laid for the evidence, Ford waived 

any error in the admission of the report on those grounds. Sunbridge cites Smith v. Dillard’s 

Dept. Stores, 8th Dist. Cuyahoga No. 75787, 2000 Ohio App. LEXIS 5820 (Dec. 14, 2000), in 

support of this argument. 

 

1

 Evid.R. 802 also provides that hearsay may be admissible pursuant to an applicable statutory or constitutional 

provision, but none were raised in this case. 
{¶13} In Smith, we held that a claimant’s expert could testify about other doctors’ 

opinions contained in medical reports because the reports fell within the hearsay exception 

provided in Evid.R. 803(6). Evid.R. 803(6) provides the “business records exception” to the 

hearsay rule and states that the following records are not excluded by the hearsay rule: 

memorandum, report, record, or data compilation, in any form, of acts, events, or 

conditions, made at or near the time by, or from information transmitted by, a 

person with knowledge, if kept in the course of a regularly conducted business 

activity, and if it was the regular practice of that business activity to make the 

memorandum, report, record, or data compilation, all as shown by the testimony 

of the custodian or other qualified witness or as provided by Rule 901(B)(10), 

unless the source of information or the method or circumstances of preparation 

indicate lack of trustworthiness. 

{¶14} Although Dr. Fortgang’s Age of Injury Analysis Report does not identify who 

requested it, the report, which consists of three short paragraphs, is limited to Dr. Fortgang’s 

opinion that Ford’s herniated discs existed prior to her July 18, 2011 work injury. As previously 

stated, the report clearly states that it is not meant to be used for purposes of medical treatment 

and that it was made pursuant to an “aging request.” Therefore, the report was not created in the 

regularly conducted business of diagnosing or treating a patient, and a reasonable inference may 

be made that Dr. Fortgang made the Age of Injury Analysis Report solely for purposes of this 

litigation. And since Dr. Fortgang was not available for cross-examination, the report was 

inadmissible. 

{¶15} Further, there is no evidence in the record demonstrating that Dr. Fortgang was 

qualified to offer an expert opinion before his opinion was admitted into evidence. That is, 

Sunbridge did not lay a proper foundation for the admission of Dr. Fortgang’s expert opinion as 

required by Evid.R. 702. 
{¶16} Sunbridge nevertheless argues that Ford is estopped from claiming error in the 

admission of the report into evidence because she failed to specifically object to its lack of 

authentication or foundation. Evid.R. 103(A)(1) provides, in part, that an error may not be 

predicated on the admission or exclusion of evidence unless (1) a substantial right of the party is 

affected, and (2) “timely objection or motion to strike appeal of record stating the specific ground 

of objection, if the specific ground was not apparent from the context.” 

{¶17} Ford filed a motion in limine to exclude Dr. Fortgang’s Age of Injury Analysis 

Report, arguing that the report was hearsay and did not fall within any exceptions to the hearsay 

rule. At trial, Ford’s counsel renewed her objection and argued: 

Dr. Fortgang’s MRI, Age of Injury Analysis [r]eport that was brought up on 

opening. I believe that it’s hearsay under Evidence Rule 801, with no hearsay 

exception applying. And I also believe that it’s expert witness testimony. It 

offers an opinion that was not made just for the purpose of treatment or diagnosis. 

 Dr. Fortgang opines the cause of the disc herniations and I would like to note my 

objection about that report and do not believe its’ admissible, because it’s hearsay. 

{¶18} Although counsel did not expressly use the terms “foundation” or “authentication,” 

both of these concepts are apparent from the context of her argument. Counsel’s objection on 

grounds that the report contained an expert opinion implicitly includes an analysis of the criteria 

necessary for the admission of expert testimony, including the foundational requirements listed in 

Evid.R. 702 and 705. As previously stated, counsel’s argument that the report was not made for 

purposes of diagnosis and treatment suggests it was not made in the regular course of the 

business of a treating physician and constitutes inadmissible hearsay. Therefore, the trial court 

erred in admitting Dr. Fortgang’s Age of Injury Analysis Report into evidence. 

{¶19} We nevertheless find the trial court’s error harmless. A court’s error may be 

considered harmless if it does not affect the substantial rights of the parties. Cappara v. 
Schibley, 85 Ohio St.3d 403, 709 N.E.2d 117 (1999). In this case, the admission of Dr. 

Fortgang’s report into evidence was harmless because it was cumulative to other admissible 

evidence. 

{¶20} Dr. Erickson discussed Dr. Fortgang’s report, but did not rely on it to form his own 

expert opinion. Before mentioning Dr. Fortgang’s Age of Injury Analysis Report, Dr. Erickson 

described the picture presented by the MRI as “a picture of preexisting degenerative disc disease 

and degenerative arthritis in the lumbar spine involving those levels that are [in] question, L3-4 

and L4-5.” 

{¶21} During direct examination, defense counsel commented that the MRI was 

conducted less than three months after Ford’s work-related injury, and asked if the conditions 

seen in the MRI could develop in three months’ time. Dr. Erickson replied, “No, no, no, no. 

These conditions are longstanding. These conditions take years to develop.” (Tr. 30.) After 

providing his own professional expert opinion, Dr. Erickson discussed Dr. Fortgang’s report and 

indicated that Dr. Fortgang’s aging study was “consistent” with his own opinion. (Tr. 37.) 

There is no evidence that Dr. Erickson relied on Dr. Fortgang’s report in rendering his own 

expert opinion. Therefore, Dr. Fortgang’s opinion that Ford’s herniated discs existed prior to 

her July 18, 2011 injury was cumulative and did not change the outcome of the trial. 

{¶22} Accordingly, the first assignment of error is overruled. 

C. Prior Workers’ Compensation Claims

{¶23} In the second assignment of error, Ford argues the trial court erred in allowing 

Sunbridge to introduce evidence of her prior workers’ compensation claims. She contends the 

admission of this evidence was not relevant to the issues in the case and was unfairly prejudicial. 
{¶24} Ford filed a motion in limine, pursuant to Evid.R. 403(A), to exclude evidence of 

her prior workers’ compensation claims, arguing that any probative value in the evidence was 

substantially outweighed by unfair prejudice. Evid.R. 403(A) provides that “[a]lthough relevant, 

evidence is not admissible if its probative value is substantially outweighed by the danger of 

unfair prejudice, of confusion of the issues, or of misleading the jury.” 

{¶25} However, perhaps for strategic reasons, Ford’s counsel did not renew her objection 

to Ford’s prior claims at trial. A party’s failure to renew a pretrial objection to the presentation 

of evidence during trial waives all but plain error. State v. Diar, 120 Ohio St.3d 460, 

2008-Ohio-6266, 900 N.E.2d 565, ¶ 70 (Defendant waived all but plain error by failing to renew 

objections to the introduction of “other acts” testimony at trial following a ruling on a motion in 

limine.). The plain error doctrine is applicable in civil cases only where the error “seriously 

affects the basic fairness, integrity, or public reputation of the judicial process.” Goldfuss v. 

Davidson, 79 Ohio St.3d 116, 121-123, 679 N.E.2d 1099 (1997), syllabus. 

{¶26} In response to Ford’s motion in limine, Sunbridge argued that evidence of Ford’s 

prior workers’ compensation claims was admissible because Ford denied having any prior low 

back injuries when she sought treatment from Dr. Stern. Indeed, Dr. Stern based his opinion 

that Ford’s herniated discs were acute injuries sustained during the July 18, 2011 work-related 

incident, in part, on his belief that Ford had no prior low back problems. Dr. Stern might have 

reached a different conclusion had he known that Ford had prior back injuries. Ford also reported 

to Sunbridge’s independent medical examiner that she had no prior back injuries. 

{¶27} The probative value of Ford’s misrepresentations regarding her prior history of 

back injuries outweighed the danger of unfair prejudice because this evidence was necessary to 

show that Ford’s expert’s opinion was not based on all the relevant facts. Although the evidence 
was prejudicial to her claims, Ford caused the defendant’s need to introduce the evidence by 

failing to provide an accurate medical history to her treating and evaluating physicians. Without 

evidence of Ford’s misrepresentations, the jury would not have known that Ford’s own medical 

expert lacked relevant information in determining whether Ford’s herniated discs pre-existed her 

July 18, 2011 injury. Under these circumstances, we cannot say that the admission of Ford’s 

workers’ compensation claims constituted plain error. 

{¶28} The second assignment of error is overruled. 

III. Conclusion

{¶29} Although the trial court erred in allowing Sunbridge to introduce Dr. Fortgang’s 

Age of Injury Analysis Report into evidence, the error was harmless because the report was 

cumulative to other evidence and did not affect the outcome of the trial. Evidence of Ford’s 

prior workers’ compensation claims was admissible because it was necessary to show that Ford’s 

expert opinion was not based on all the relevant facts. 

{¶30} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to 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. 

EILEEN T. GALLAGHER, JUDGE 
ANITA LASTER MAYS, J., CONCURS; 

MARY EILEEN KILBANE, P.J., DISSENTS WITH SEPARATE OPINION 

MARY EILEEN KILBANE, P.J., DISSENTING: 

{¶31} I respectfully dissent. I would conclude that the trial court committed prejudicial 

error in denying Ford’s motion in limine to exclude Dr. Fortgang’s Age of Injury Analysis 

Report, and in denying Ford’s motion in limine to exclude evidence of her prior workers’ 

compensation claims. I would reverse and remand for a new trial. 

{¶32} With regard to admission of Dr. Fortgang’s Age of Injury Analysis Report, 

Sunbridge offered the report to prove the truth of the matter asserted therein, because he 

indicated that her L3-4 and L4-5 discs “have been abnormal for an extended period of time, 

greatly exceeding the time frame of three months.” He did not testify and was not subject to 

cross-examination. The report is hearsay. 

{¶33} I would also conclude that the report is not admissible pursuant to Evid.R. 803(4) 

because Dr. Fortgang indicated that the report was a “consultative report,” “based upon initial 

interpretation provided,” and “is not meant to be utilized or interpreted for treatment purposes.” 

Therefore, the report was not “reasonably pertinent to diagnosis or treatment” as required under 

Evid.R. 803(4). I would also conclude that it was not admissible under Evid.R. 803(6) because 

it was prepared at the request of Sunbridge’s attorneys for purposes of litigation only and was not 

as a business record. 

{¶34} The majority acknowledges that the report was not admissible but concludes that 

its admission was harmless. I do not agree, as it was repeatedly mentioned during trial and was 

discussed by Sunbridge’s expert, Dr. Erikson, who stated that Dr. Fortgang’s report was 

consistent with his own opinion. 
{¶35} With regard to the admission of Ford’s prior workers’ compensation claims, 

evidence is considered relevant if it has “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.” Evid.R. 401. Nevertheless, even relevant evidence “is not admissible 

if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion 

of the issues, or of misleading the jury.” Evid.R. 403(A). Further, relevant evidence “may be 

excluded if its probative value is substantially outweighed by considerations of undue delay, or 

needless presentation of cumulative evidence.” Evid.R. 403(B). 

{¶36} Here, Sunbridge was permitted to advise the jury in opening argument that Ford 

had made prior injury claims from 1988 through 2001. Sunbridge then introduced evidence 

concerning Ford’s 1988 claim for a lumbar sprain; a 1994 claim for a muscle spasm; a 1997 

claim for a thoracic sprain, with a disallowed component for lumbar sprain; a 1998 claim for a 

leg contusion; a 1999 claim for a dislocated shoulder, shoulder sprain and lumbrosacral sprain; 

2000 claim for a thoracic sprain; and 2001 claim for lumbar sprain. I would conclude that the 

minimal probative value of this evidence was outweighed by its extremely prejudicial and 

inflammatory effect. 

{¶37} I would conclude that this evidence did not have the tendency to make the crucial 

disputed fact of Ford’s right to workers’ compensation benefits more probable or less probable 

than it would be without this evidence under Evid.R. 401. Approximately half of these claims 

do not even pertain to the lumbar region, and there is no indication that they address the disc 

herniations at the core of Ford’s case, or the degenerative changes at the core of Sunbridge’s 

case. Though a substantial amount of other acts evidence was presented, it was, at best, 

minimally probative. 
{¶38} I would additionally conclude that under Evid.R. 403, the intended probative value 

of this evidence was substantially outweighed by the danger of unfair prejudice, of confusion of 

the issues, and its tendency to mislead the jury. It is important to bear in mind that Ford was 

required to prove her claim in this matter by a mere preponderance of the evidence, not beyond 

all doubt. In addition, the testimony plainly indicated that an individual with a low-back sprain 

can have a new unrelated injury years later. Further, the record indicates that the latest claim, 

the 2001 claim for a low-back sprain, was resolved without ongoing treatment. Indeed, Ford 

testified that she did not have ongoing problems and did not receive ongoing treatment from the 

earlier claims. Moreover, the quantity of this evidence, especially in light of its marginal 

probative value, created the possibility of inflaming the jury and prejudicing Ford’s case. This 

evidence had the danger of creating the impression that Ford is a chronic complainer, despite the 

fact that she has a very physically demanding job, and the claims extend over a 25-year period. 

{¶39} The majority concludes that Ford “caused the defendant’s need to introduce this 

evidence by failing to provide an accurate medical history.” Neither witness retained by 

Sunbridge opined that the prior claims caused the present lumbar 3-4 disc herniations or lumbar 

4-5 disc herniations at issue herein, however. To the contrary, Sunbridge’s expert, Dr. 

Erickson, stated that “it doesn’t matter” that Ford had prior workers’ compensation claims 

regarding her lower back because this fact would not change his opinion that the injury was 

simply degenerative. In addition, in his initial assessment, Dr. Stern opined that the disc 

herniations were related to the 2011 injury. 

{¶40} I would conclude that the challenged evidence was inadmissible and prejudiced 

Ford’s trial on the issue of her right to participate in the workers’ compensation fund for 

herniated discs L3-4 and L4-5. I would reverse and remand for a new trial.