Buchman v. Wayne Trace Local School Dist. Bd. of Edn. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

Buchman, Appellant and Cross-Appellee, v. Board of Education of
the Wayne Trace Local School District, Appellee and
Cross-Appellant.
[Cite as Buchman v. Wayne Trace Local School Dist. Bd. of Edn.
(1995), Ohio St.3d .]
Political subdivisions -- Torts -- Limitations on damages --
Social Security and Medicare benefits are collateral
source benefits contemplated by R.C. 2744.05(B) -- Future
collateral benefits deductible from jury's verdict against
a political subdivision, when -- R.C. 2744.05(B) is
constitutional -- Burden is on political subdivision to
prove extent to which it is entitled to an effset under
R.C. 2744.05(B) -- Political subdivision has right to
discover collateral benefits at any time during pendency
of an action against it, irrespective of admissibility
issue -- Political subdivision not denied all rights of
setoff pursuant to R.C. 2744.05(B) for future Medicare
Part A benefits on basis it failed to quantify exact
amount of damages allocated by jury to future
hospitalizations expenses, when.
---
1. R.C. 2744.05(B) is constitutional.
2. Social Security and Medicare benefits are the type of
collateral source benefits contemplated by R.C. 2744.05(B).
3. Pursuant to R.C. 2744.05(B), future collateral benefits, to
the extent they can be determined with a reasonable degree of
certainty, are deductible from the jury's verdict against a
political subdivision.
4. Under R.C. 2744.05(B), a collateral benefit is deductible
only to the extent that the loss for which it compensates is
actually included in the jury's award.
5. It is the political subdivision's burden to prove the
extent to which it is entitled to an offset under R.C.
2744.05(B).
6. A political subdivision has a legal right to discover
collateral benefits at any time during the pendency of an
action against it, irrespective of the issue of admissibility.
(No. 94-412--Submitted April 4, 1995--Decided August 23,

1995.)
Appeal and Cross-Appeal from the Court of Appeals for
Paulding County, No. 11-92-11.
On September 1, 1989, appellant and cross-appellee, Donald
A. Buchman, was driving his automobile south on State Route 127
in Paulding County. His wife Johanna and his two sons, Adam
and Paul, were passengers in the car. At the same time, a
school bus, empty of passengers, owned by appellee and
cross-appellant, Board of Education of the Wayne Trace Local
School District ("Wayne Trace"), was stopped at a stop sign
controlling westbound traffic on County Road 60 where it
intersects with State Route 127. As the Buchmans' vehicle
approached the intersection, the school bus proceeded across
State Route 127 and into the path of their vehicle. As a
result of the collision, Donald suffered a C5-6 fracture,
dislocation and a complete transection of his spinal cord, and
was rendered a permanent level C4 quadriplegic.
On November 20, 1989, the Buchmans filed a complaint
against Wayne Trace in the Paulding County Court of Common
Pleas. Prior to trial, the claims for the personal injuries of
Johanna, Adam and Paul were settled, leaving for trial only a
claim for personal injuries to Donald and Johanna's claim for
loss of consortium.1
The case proceeded to a two-and-one-half week jury trial
on July 20, 1992. The Buchmans proposed twenty-three jury
interrogatories, fifteen of which itemized damages suffered by
Donald. The latter fifteen interrogatories would have required
the jury to apportion Donald's damages between past and future
losses in various categories, including medical bills, home
care expenses, home supplies and medication expenses, lost
wages/lost earning capacity, loss of household services, and
equipment costs. Included in these interrogatories were three
proposed interrogatories which sought a single sum for Donald's
past and future pain and suffering, home modifications and
college expenses, respectively.
The interrogatories proposed by Wayne Trace concerning
Donald's damages sought a total monetary figure representing
the amount of damages which would fully and fairly compensate
Donald, categorized only according to economic and noneconomic
damages. It was Wayne Trace's position that "[t]here should be
no further breakdown other than that from a total amount."
The trial court rejected Buchmans' proposed
interrogatories with respect to Donald's damages, on the basis
that "[t]o break those down into individual elements *** as the
Plaintiffs are requesting *** is not necessary *** [and] is
really [not] a determinative issue as [Civ.R.] 49 envisions."
Instead, the trial court submitted its own interrogatories
categorizing Donald's damages according to past economic
losses, future economic losses, and noneconomic damages, which
the court believed provided the breakdown necessary for the
post-verdict hearing to reduce the verdict by the amount of
benefits received from collateral sources pursuant to R.C.
2744.05(B).
The jury found Wayne Trace to be one-hundred percent
negligent, awarded $5,082,482 to Donald, and provided the
following relevant answers to the interrogatories submitted:
"INTERROGATORY NO. 5

"WHAT IS THE TOTAL AMOUNT OF MONEY DAMAGES THAT WILL FULLY
AND FAIRLY COMPENSATE DONALD BUCHMAN FOR HIS PAST MEDICAL
BILLS, HOME AIDE CARE EXPENSES, EXPENSES FOR MEDICATION AND
SUPPLIES USED AT HOME, LOST WAGES, LOST HOUSEHOLD SERVICES, AND
EQUIPMENT COSTS?
"(In answering this question you will totally disregard
whether or not Donald Buchman had any fault.)
"$ 947,684.00 "
"INTERROGATORY NO. 6
"WHAT IS THE TOTAL AMOUNT OF MONEY DAMAGES THAT WILL FULLY
AND FAIRLY COMPENSATE DONALD BUCHMAN FOR HIS FUTURE MEDICAL
BILLS, HOME AIDE CARE EXPENSES, EXPENSES FOR MEDICATIONS AND
SUPPLIES USED AT HOME, EQUIPMENT NEEDS, LOST EARNINGS AND LOST
EARNING CAPACITY, LOST HOUSEHOLD SERVICES, HOME MODIFICATIONS
AND REMODELING EXPENSES, AND COLLEGE TUITION, BOOKS AND
SUPPLIES[?]
"(In answering this question you will totally disregard
whether or not Donald Buchman had any fault.)
"$ 3,884,798.00 "
"INTERROGATORY NO. 7
"WHAT IS THE TOTAL AMOUNT OF MONEY DAMAGES THAT WILL FULLY
AND FAIRLY COMPENSATE DONALD BUCHMAN FOR HIS PAST AND FUTURE
PAIN AND SUFFERING (PHYSICAL PAIN, PHYSICAL IMPAIRMENT, LOSS OF
ENJOYMENT OF LIFE, PERMANENT INJURIES, INABILITY TO PERFORM
USUAL ACTIVITIES, INCREASED RISK OF FUTURE COMPLICATIONS AND
ILLNESS, ANXIETY, MENTAL ANGUISH, EMOTIONAL STRESS, ETC.)?
"(In answering this question you will totally disregard
whether or not Donald Buchman had any fault.)
"$ 250,000.00 "
On August 21, 1992, the trial court held a post-verdict
hearing to determine the appropriate collateral source
deductions to be made under R.C. 2744.05(B). Despite repeated
expressions of trepidation over its ability to apply the
statute to offset future collateral benefits, the trial court
nevertheless settled on the following deductions from Donald's
award:

"Undisputed collateral benefits 62,887.82

"Medicare payment of future medical

(non-hospital) expenses 18,077.93

"Medicare payment of future hospitalization

expenses 1,296,945.42

"Social Security disability benefits 281,324.00

Total $1,659,235.17"
Accordingly, the trial court entered judgment in favor of
Donald in the amount of $3,423,246.83.
The court of appeals reversed, finding many of the trial
court's calculations speculative. In addition, the court of
appeals found that "the interrogatories submitted to the jury
were inadequate to permit determination of the specific losses

for which the jury awarded compensation, thus compelling the
trial court to speculate when calculating collateral benefit
deductions." The court of appeals also held that Social
Security payments to Donald's children were not in any event
deductible benefits pursuant to R.C. 2744.05(B). The court of
appeals, however, did not perform any calculations of its own
or order that speculative deductions be added back into the
verdict. Instead, it remanded the cause "for retrial to
determine damages of each category [of loss]."
This cause is now before the court upon the allowance of a
motion and cross-motion to certify the record.

Gretick, Bish, Lowe & Roth and Craig L. Roth, for
appellant and cross-appellee.
Clemens, Korhn & Liming, John M. Liming and Stephen F.
Korhn, for appellee and cross-appellant.
Mark W. Ruf, urging reversal for amicus curiae, Ohio
Academy of Trial Lawyers.
Means, Bichimer, Burkholder & Baker Co., L.P.A., and
Kimball H. Carey, urging affirmance for amicus curiae, Ohio
School Boards Association.
Malcolm C. Douglas and John E. Gotherman, urging
affirmance for amici curiae, Ohio Municipal League, Ohio
Municipal League Joint Self-Insurance Pool and County
Commissioners Association of Ohio.

Alice Robie Resnick, J. Except for a single proposition
of law raised by the cross-appeal concerning the use of a
party-opponent's videotaped deposition, these appeals relate
solely to the validity, construction, and application of R.C.
2744.05(B). The issues raised thereby can be grouped under two
broad categories: one involving the constitutionality of R.C.
2744.05(B), and the other involving its operability. Although
the constitutionality of R.C. 2744.05(B) is challenged under
several provisions of the Ohio Constitution, particularly
Sections 2, 5 and 16, Article I, the common basis for the
challenge is that the statute unconstitutionally provides for
the deduction of collateral benefits irrespective of whether
such benefits are actually duplicated in the jury's verdict.
The issues concerning the operability of R.C. 2744.05(B)
are: (1) whether Social Security and/or Medicare benefits are
deductible; (2) whether and under what circumstances future
benefits are deductible; (3) whether collateral benefits may be
deducted irrespective of whether such benefits are actually
duplicated in the jury's verdict; and (4) several related
procedural issues.
I
Collateral Benefit Deductions under R.C. 2744.05(B)
A
Social Security and Medicare
R.C. 2744.05(B) provides in pertinent part that:
"If a claimant receives or is entitled to receive benefits
for injuries or loss allegedly incurred from a policy or
policies of insurance or any other source, the benefits shall
be disclosed to the court, and the amount of the benefits shall
be deducted from any award against a political subdivision
recovered by that claimant. No insurer or other person is

entitled to bring an action under a subrogation provision in an
insurance or other contract against a political subdivision
with respect to such benefits."
In Vogel v. Wells (1991), 57 Ohio St.3d 91, 566 N.E.2d
154, we defined a "benefit" as "'[f]inancial assistance
received in time of sickness, disability, unemployment, etc.
either from insurance or public programs such as social
security.'" Id. at 98, 566 N.E.2d at 161, quoting from Black's
Law Dictionary (6 Ed.1990) 158.
Recently, in Galanos v. Cleveland (1994), 70 Ohio St.3d
220, 222, 638 N.E.2d 530, 532, we were "persuaded that Medicaid
benefits are the type of collateral source benefits
contemplated by R.C. 2744.05(B)" because Medicaid "is a benefit
received as part of a public program." Previously, however, in
Hodge v. Middletown Hosp. Assn. (1991), 62 Ohio St.3d 236,
239-240, 581 N.E.2d 529, 532, we drew a distinction between
Medicaid and Medicare Part A benefits under R.C. 2305.27, for
the purpose of reducing medical malpractice damage awards. The
distinction was drawn because R.C. 2305.27, unlike R.C.
2744.05(B), draws a distinction between collateral benefits on
the basis of who pays the premiums or underwrites the cost of
the program. Such a distinction is, therefore, irrelevant
under R.C. 2744.05(B). See Lamb v. Quincy (1993), 92 Ohio
App.3d 592, 636 N.E.2d 412 (Medicare payments deductible under
R.C. 2744.05[B]).
Accordingly, we hold that Social Security and Medicare
benefits are the type of collateral source benefits
contemplated by R.C. 2744.05(B).
The Social Security benefits which Donald's children have
received or are entitled to receive, however, are not
deductible from the jury's verdict. No part of the $5,082,482
verdict against which Wayne Trace seeks to offset these
benefits was awarded to Donald's children. Moreover, these
benefits, as explained by John Stevenson, Northwest Ohio
District Manager for the Social Security Administration, during
the post-verdict hearing, "are for the care and welfare and use
of the children." R.C. 2744.05(B) expressly provides that
"[i]f a claimant receives or is entitled to receive
[collateral] benefits ***, the amount of the benefits shall be
deducted from any award *** recovered by that claimant."
(Emphasis added.) Thus, any Social Security payments to
Donald's children are not deductible in this case pursuant to
R.C. 2744.05(B).
Accordingly, the judgment of the court of appeals is
affirmed as to these issues.
B
Future Benefits
The collateral benefits to be deducted under R.C.
2744.05(B) are those benefits that a claimant receives "or is
entitled to receive." Buchman argues that "[c]areful statutory
examination reveals that the legislature did not intend R.C.
2744.05(B) to apply to future collateral benefits." Buchman
points to several other provisions in the Revised Code in which
the General Assembly has employed language expressive of a time
distinction when describing losses, damages, or benefits. R.C.
2744.05(C)(2)(a) and (c), 2744.06(B)(1)(a)(i) and (b)(i) and
(ii), and 2317.45(A)(1)(a). Buchman concludes that the General

Assembly's failure to employ express future-tense language in
R.C. 2744.05(B) means that "the legislature intentionally
excluded future collateral benefits from R.C. {2744.05(B)."
A review of the various provisions on which Buchman relies
reveals only that legislative intent cannot necessarily be
determined from the General Assembly's failure to use
time-distinctive language in R.C. 2744.05(B). The legislative
history of R.C. 2744.05(B) does not suggest that language was
formerly included which expressly provided for deductions for
future collateral benefits and thereafter removed. The General
Assembly's use of time-distinctive language in other provisions
is not limited to designating the inclusion of future damages,
losses, or benefits. On occasion, the General Assembly has
utilized time-distinctive language to expressly limit damages
to those losses incurred as of the date of judgment, and to
expressly exclude future losses. See R.C. 2744.06(B)(1)(a)(i)
and (b)(i) and (ii). Applying Buchman's logic to these
provisions, it could be argued that since R.C. 2744.05(B) fails
to expressly limit collateral benefits to those already
received, the General Assembly must have intentionally included
future collateral benefits within the contemplation of R.C.
2744.05(B).
Instead, legislative intent regarding the inclusion or
exclusion of future collateral benefits under R.C. 2744.05(B)
must be deciphered in light of the purpose and design of R.C.
2744.05. "The statute serves two purposes. It conserves
fiscal resources of political subdivisions by limiting their
tort liability. Secondly, it permits injured persons, who have
no source of reimbursement for their damages, to recover for a
tort committed by the political subdivisions." Menefee v.
Queen City Metro (1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181,
182. In particular, R.C. 2744.05 allows recovery for certain
relevant future losses while reducing the net liability of the
political subdivision to that exceeding the claimant's
collateral sources. R.C. 2744.05(B) and (C).
It would clearly contravene the design of the statute to
permit recovery of future losses from a political subdivision
without allowing an offset for corresponding future collateral
benefits.
In Morris v. Savoy (1991), 61 Ohio St.3d 684, 693, 576
N.E.2d 765, 773, we held R.C. 2305.27 applicable to future
collateral payments. In so doing, we stated that future
collateral payments are deductible "to the extent they can be
determined with a reasonable degree of certainty."
Accordingly, we hold that pursuant to R.C. 2744.05(B),
future collateral benefits, to the extent they can be
determined with a reasonable degree of certainty, are
deductible from the jury's verdict against a political
subdivision, and the judgment of the court of appeals is
affirmed as to this issue.
C
Matching
The issue here is whether R.C. 2744.05(B) authorizes the
trial court to deduct the total of all collateral benefits from
the general verdict, irrespective of whether the collateral
benefits were actually duplicated in the jury's verdict, or
whether collateral benefits can only be deducted to the extent

that they can be matched to a corresponding component of the
jury's verdict. This is a question of statutory construction.
The question of the statute's constitutional viability,
however, comes into play depending on how we resolve this issue
of construction. In turn, we must construe R.C. 2744.05(B), to
the extent reasonably possible, to require the aforementioned
matching in order to permit the statute to operate lawfully and
constitutionally. In this regard, the issues of R.C.
2744.05(B)'s constitutionality and operability are inextricably
intertwined and must be considered together.
In Menefee, supra, at the syllabus, we held that "R.C.
2744.05(B) is a constitutional exercise of legislative
authority under the Equal Protection Clauses of the United
States and Ohio Constitutions." In so holding, we identified
the state's "valid interest in preserving the financial
soundness of its political subdivisions," and found that "a
rational basis can be conceived to justify a classification in
which subrogation claims are treated differently from other
claims against a political subdivision." Id., 49 Ohio St.3d at
29, 550 N.E.2d at 183.
Our analysis in Menefee reflected a two-step process,
whereby the court is first required to identify a valid state
interest and then required to determine whether the method or
means by which the state has chosen to advance that interest is
rational. See Schweiker v. Wilson (1981), 450 U.S. 221, 226,
101 S.Ct. 1074, 1079, 67 L.Ed.2d 186, 193; United States RR.
Retirement Bd. v. Fritz (1980), 449 U.S. 166, 177, 101 S.Ct.
453, 460, 66 L.Ed.2d 368, 377-378. No determination was made
in Menefee as to whether the state may rationally advance its
interest in preserving the financial soundness of its political
subdivisions by allowing a trial court to deduct collateral
benefits from the jury's verdict, irrespective of whether such
benefits are duplicated in the jury's verdict. In other words,
we determined in Menefee that the second sentence of R.C.
2744.05(B) is not irrational or arbitrary, but made no such
determination regarding the first sentence of R.C. 2744.05(B).
Moreover, the holding in Menefee is limited to Section 2,
Article I of the Ohio Constitution. In this case additional
challenges are made to the constitutional viability of R.C.
2744.05(B) under Sections 5 and 16, Article I of the Ohio
Constitution.
In Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633
N.E.2d 504, we considered the constitutionality of R.C. 2317.45
(Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661, 1694) under
Sections 2, 5 and 16, Article I of the Ohio Constitution. We
held R.C. 2317.45, which was enacted as part of the Tort Reform
Act of 1987 and provided for collateral benefit deductions in
tort actions, to be violative of each of the aforementioned
constitutional provisions. In so holding, we found two
constitutional infirmities, one concerning the validity of the
state's interest, and the other concerning the means employed
in the statute to attain its goal.
We noted that the purpose of the Act, as stated in its
title, was premised on "'reducing the causes of the current
insurance crisis.'" Id. at 420, 633 N.E.2d at 509. We doubted
the validity of this goal "given the paucity of credible
empirical evidence that a crisis existed." Id. at 423, 633

N.E.2d at 511.
In addition, we found that even if the goals of R.C.
2317.45 were valid, "the means employed in the statute to
attain the goal are both irrational and arbitrary. Of primary
significance is that the statute requires deductions from jury
verdicts irrespective of whether a collateral benefit defined
in R.C. 2317.45(A)(1) is actually included in the verdict. ***
R.C. 2317.45 fails to take into account whether the collateral
benefits to be deducted are within the damages actually found
by the jury ***. Thus, the statute can arbitrarily reduce
damages that a jury awards a plaintiff, since under the statute
it is irrelevant whether any collateral benefit actually
represents any portion of the jury's award." Id. at 423-424,
633 N.E.2d at 511. This rationale formed the essential basis
upon which we held R.C. 2317.45 to be unconstitutional under
each of the aforementioned constitutional provisions.
In between the time of the decisions in Menefee, supra,
and Sorrell, supra, we decided Morris, supra. In Morris, the
majority held that R.C. 2305.27, the collateral source setoff
provision in medical malpractice cases, is constitutional. In
so holding, the majority reasoned that "[w]hile it is not
clearly apparent that there is a substantial relationship
between the setoff and malpractice insurance rates, it does not
appear to be unreasonable or arbitrary to deny a double
recovery." (Emphasis sic.) Id. at 693, 576 N.E.2d at 772.
The majority was careful, however, to construe the statute to
require that future workers' compensation benefits "be deducted
from the jury's verdict for future lost wages." (Emphasis
added.) Id. at 693, 576 N.E.2d at 773. Although the
viability of the holding in Morris is questionable on other
grounds,2 it is significant that the majority in Morris was
compelled to require matching in order to achieve rationality
under R.C. 2305.27.
Unlike the perceived insurance "crisis" advanced in
support of R.C. 2317.45, and the perceived medical care
"crisis" advanced in Morris, the state's interest in preserving
the financial soundness of its political subdivisions advanced
in support of R.C 2744.05(B) is clearly valid. Menefee, supra,
at 29, 550 N.E.2d at 183. Nevertheless, the means by which the
state advances its interest must be rational. Although Morris
and Sorrell evince a certain amount of tension on the court
over the viability of collateral benefit offset statutes, the
one inexorable source of agreement seems to be that there shall
be no constitutionality without a requirement that deductible
benefits be matched to those losses actually awarded by the
jury.
R.C. 2744.05(B), unlike R.C. 2317.45, does not foreclose a
construction requiring that a collateral benefit be matched to
a component of the jury's verdict before it can be deducted.
Thus, we are required to adopt such a construction in order to
permit the statute to operate lawfully and constitutionally.
It is a well-established rule that a court must, to the extent
reasonably possible, construe a statute so as to permit it to
operate lawfully and constitutionally. Schneider v. Laffoon
(1965), 4 Ohio St.2d 89, 97, 33 O.O.2d 468, 472, 212 N.E.2d
801, 806. A court is bound to give a constitutional rather
than an unconstitutional construction to a statute. United Air

Lines v. Porterfield (1971), 28 Ohio St.2d 97, 100, 57 O.O.2d
288, 290, 276 N.E.2d 629, 632. Thus, where a statute
reasonably allows for more than a single construction or
interpretation, it is the duty of the court to choose that
construction or interpretation which will avoid rather than
raise serious questions as to its constitutionality.
Cincinnati v. De Golyer (1971), 25 Ohio St.2d 101, 106, 54
O.O.2d 232, 234, 267 N.E.2d 282, 285; Co-operative Legislative
Commt. v. Pub. Util. Comm. (1964), 177 Ohio St. 101, 29 O.O.2d
266, 202 N.E.2d 699, paragraph two of the syllabus. Only where
the posture of a cause leaves no logical alternative will
courts declare legislation unconstitutional. Bedford Hts. v.
Tallarico (1971), 25 Ohio St.2d 211, 212, 54 O.O.2d 321, 267
N.E.2d 802, 803.
Accordingly, we hold that under R.C. 2744.05(B), a
collateral benefit is deductible only to the extent that the
loss for which it compensates is actually included in the
jury's award. Thus, R.C. 2744.05(B) is constitutional, and the
judgment of the court of appeals is affirmed as to these issues.
D
Procedural Issues
The primary issue here is whether the court of appeals
erred in remanding the cause for a new trial on the issue of
damages in order that more detailed interrogatories may be
submitted to the jury.
R.C. 2744.05(B) "abrogates the collateral source rule as
to municipalities." Vogel, supra, 57 Ohio St.3d at 97, 566
N.E.2d at 160. It does not, however, abrogate that aspect of
the collateral source rule which provides that the "receipt of
[collateral] benefits is not to be admitted in evidence, or
otherwise disclosed to the jury." Pryor v. Webber (1970), 23
Ohio St.2d 104, 109, 52 O.O.2d 395, 397, 263 N.E.2d 235, 239.
Instead, R.C. 2744.05(B) provides for a post-verdict proceeding
in which collateral "benefits shall be disclosed to the court,
and the amount of the benefits shall be deducted from any award
***."
Properly construed, R.C. 2744.05(B) places the burden of
disclosure upon the plaintiff. The issue of disclosure,
however, is separate and distinct from the issue of the
defendant's entitlement to an offset under R.C. 2744.05(B). As
we held supra, a political subdivision is entitled to an offset
for collateral benefits only to the extent that such benefits
are actually included in the jury's award, and is entitled to
an offset for future collateral benefits only to the extent
that they can be determined with a reasonable degree of
certainty. Thus, it is the defendant's burden to prove the
extent to which it is entitled to an offset under R.C.
2744.05(B). Cf. Reilly v. United States (C.A.1, 1988), 863
F.2d 149, 163; Rudolf v. Iowa Methodist Med. Ctr. (Iowa 1980),
293 N.W.2d 550, 559-560. Otherwise, the statute could operate
to arbitrarily reduce the damages that a jury awards a
plaintiff by allowing deductions for collateral benefits that
are not included in the jury's award, or that are not
reasonably certain to be received.
Although R.C. 2744.05(B) does not require the submission
of jury interrogatories to quantify the categories of damages
that make up the general verdict, as a practical matter, such

interrogatories are the most efficient and effective method, if
not the only method, by which to determine whether the
collateral benefits to be deducted are within the damages
actually found by the jury. See Sorrell, supra, 69 Ohio St.3d
at 424, 633 N.E.2d at 511. To the extent that the failure to
propose such interrogatories caused the trial court to
speculate as to the amount of benefits to be deducted from the
jury's verdict, Wayne Trace simply failed in its burden of
proof.
Moreover, in the case sub judice, it was Buchman who
actually proposed the interrogatories that would have
quantified the categories of damages that made up the jury's
verdict. Those interrogatories sought an allocation between,
among other things, past and future lost wages as well as
between past and future hospital expenses; the very categories
against which Social Security and Medicare benefits must be
offset. Wayne Trace, however, proposed interrogatories which
would have categorized the jury's verdict only according to
economic and noneconomic damages, asserting that "[t]here
should be no further breakdown other than that from a total
amount." As this court explained in State v. Kollar (1915), 93
Ohio St. 89, 91, 112 N.E. 196, 197:
"The law imposes upon every litigant the duty of vigilance
in the trial of a case, and even where the trial court commits
an error to his prejudice, he is required then and there to
challenge the attention of the court to that error, by
excepting thereto, and upon failure of the court to correct the
same to cause his exceptions to be noted.
"It follows, therefore, that, for much graver reasons, a
litigant cannot be permitted, either intentionally or
unintentionally, to induce or mislead a court into the
commission of an error and then procure a reversal of the
judgment for an error for which he was actively responsible."
Wayne Trace argues, however, that even if it did have a
burden to prove its entitlement to an offset under R.C.
2744.05(B), it was Buchman who made it impossible for the trial
court or Wayne Trace to submit sufficient jury interrogatories
by failing to disclose the possible existence of Medicare
benefits prior to the submission of the case to the jury.
Further, Wayne Trace postulates that it has no right to
discover the existence of collateral benefits prior to trial
and, therefore, lacks the means to acquire the knowledge to
enable it to draft the necessary interrogatories.
Wayne Trace's argument rests upon the unstated assertion
that had it known, or had the means to know, that Buchman would
be eligible for Medicare benefits, it would have proposed (or
at least not opposed) an interrogatory quantifying the amount
of damages allocated to future hospitalization expenses. This
assertion, however, is belied by Wayne Trace's position at
trial, that there should be no further breakdown of damages
from a total amount other than that between economic and
noneconomic damages. This position is underscored by the fact
that Wayne Trace, who admits in its merit brief that it was
fully aware of Buchman's entitlement to Social Security
benefits, nevertheless opposed a breakdown of jury damages
between past and future lost wages and between lost wages and
other economic damages.

Moreover, we reject Wayne Trace's explanation of why it
failed to seek discovery regarding collateral benefits. Wayne
Trace explains that "[a] motion for discovery of collateral
benefits would, undoubtedly, have been met with an objection,
since there is no legal basis for discovery by a defendant of
collateral benefits and such evidence would have been
inadmissible at trial. Hence, such a motion would have been a
'vain thing.'"
The fact that R.C. 2744.05(B) fails to create an
independent and separate legal basis for discovery regarding
matters of collateral source benefits, does not preclude Wayne
Trace from resorting to the general discovery provisions of the
Civil Rules to obtain such information. See Corter v. Luck
(1978), 410 N.Y.S.2d 249, 96 Misc.2d 960. Wayne Trace could
have obtained discovery pursuant to Civ.R. 26(B)(1).3 The
issue of collateral benefits is particularly relevant to the
pending action in light of the commands of R.C. 2744.05(B).
Also, collateral benefits clearly relate to the defense of a
party, given that Wayne Trace alleged, as its third defense in
its answer to the Buchmans' second amended complaint, that it
is entitled "to all Ohio Revised Code Chapter 2744 limits on
damages, setoff rights, and other relief." Nor would it be
grounds for objection under Civ.R. 26(B)(1) that collateral
benefits will be inadmissible at trial. See Hughes v. Groves
(W.D.Mo.1969), 47 F.R.D. 52, 56. See, also, 4 Moore's Federal
Practice (1994) 26-147, fn. 79, Section 26.07[1]; Annotation
(1989), 74 A.L.R.4th 32, 76-77, Section 24. Pursuant to R.C.
2744.05(B), a political subdivision becomes the ultimate
beneficiary of a claimant's collateral source benefits.
Further, it would seem that the discovery of collateral
benefits is indispensable in any serious pretrial settlement
negotiations between a political subdivision and the
plaintiff. Accordingly, a political subdivision has a legal
right to discover such benefits at any time during the pendency
of an action against it, irrespective of the issue of
admissibility.
Thus, we hold that the court of appeals erred in ordering
a new trial on the issue of damages in order that more detailed
interrogatories may be submitted to the jury, and the judgment
of the court of appeals is reversed as to this issue.
E
Application
We now turn our attention to determining the extent to
which the record, as it stands, supports future collateral
source deductions for Social Security and/or Medicare benefits
under R.C. 2744.05(B).
1
Social Security Deductions
The trial court's Social Security benefit deductions were
calculated on the basis that the payments to Donald's children
are deductible pursuant to R.C. 2744.05(B). Since we have
determined, supra, that the payments to Donald's children are
not deductible pursuant to R.C. 2744.05(B), we need only
concern ourselves with the Social Security benefits to which
Donald is entitled.
Stevenson testified that Donald's eligibility for Social
Security benefits began in February 1990 in the amount of

$914.80 a month. In December 1991, the amount was raised to
$967 a month. However, any additional increases are "anybody's
guess." Thus, the deductible amount of Social Security
benefits between February 1990 and December 1991 is $20,125.60
($914.80 per month times twenty-two months).
Beginning December 1991, Donald was entitled to $967 per
month. The question remaining is the length of time it is
reasonably certain for Donald to receive such benefits.
Donald's eligibility for Social Security benefits is a
result of a determination that his condition is "of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy ***." Section 423(d)(2)(A),
Title 42, U.S.Code. See, also, Sections 423(a)(1)(D) and
(d)(1)(A), Title 42, U.S.Code.
Donald's benefits will be terminated, however, regardless
of his medical condition, age, education and work experience,
if and when he becomes engaged in substantial gainful
activity. Section 423(f), Title 42, U.S.Code; Section
404.1520(b), Title 20, C.F.R. See, also, Katz v. Secy. of
Health & Human Serv. (C.A.9, 1992), 972 F.2d 290, 293; Fowler
v. Bowen (C.A.10, 1989), 876 F.2d 1451, 1453. "Substantial
gainful activity is work activity that is both substantial and
gainful." Section 404.1572, Title 20, C.F.R. Work activity is
substantial if it "involves doing significant physical or
mental activities *** even if it is done on a part-time basis
***." Section 404.1572(a), Title 20, C.F.R. Work activity is
gainful if it is done "for pay or profit *** [or] is the kind
of work usually done for pay or profit, whether or not a profit
is realized." Section 404.1572(b), Title 20, C.F.R.
Several factors are considered in determining whether an
individual has the skills and ability to work at a substantial
gainful activity level, including the nature of the work, the
performance level, the existence of special conditions, and the
time spent at work. Section 404.1573, Title 20, C.F.R. In
addition, the Social Security Administration uses certain
guides when the applicant is an employee. "Generally, if you
worked for substantial earnings, this will show you that you
are able to do substantial gainful activity. On the other
hand, the fact that your earnings are not substantial will not
necessarily show that you are not able to do substantial
gainful activity." Section 404.1574(a)(1), Title 20, C.F.R.
Specifically, the regulations provide that certain levels
of earnings will ordinarily show that an applicant has or has
not engaged in substantial gainful activity. If an
individual's earnings from work averaged more than $500 a month
in calendar years after 1989, such work will ordinarily be
considered substantial gainful activity. Section
404.1574(b)(2)(vii), Title 20, C.F.R. If an individual's
earnings averaged less than $300 a month in calendar years
after 1989, such work will ordinarily not be considered
substantial gainful activity. Section 404.1574(b)(3)(vii),
Title 20, C.F.R. These earnings guidelines operate in the
nature of a presumption. See Katz, supra, at 293; Keyes v.
Sullivan (C.A.9, 1990), 894 F.2d 1053, 1056; Mullis v. Bowen
(C.A.6, 1988), 861 F.2d 991, 993; Hedge v. Richardson (C.A.10,

1972), 458 F.2d 1065, 1067-1068; Musebeck v. Heckler
(D.C.Pa.1985), 614 F.Supp. 1086, 1090; Crites v. Weinberger
(D.C.Tex.1973), 364 F.Supp. 956, 959-960.
The evidence in this case suggests that Donald will be
capable of engaging in substantial gainful employment beginning
in 1998. Prior to his injury, Donald had attended Ohio
Northern University for approximately two years. Subsequent to
his injury, in the summer of 1991, Donald enrolled as a student
at Defiance College. Between that time and the time of trial,
Donald completed four courses and had "gotten straight A's."
He is presently a junior in college.
Donald has definite plans of completing college, becoming
a social worker and working at a hospital or physical
rehabilitation facility. At the time of trial, he was already
vice-president of a spinal cord injury group which was
attempting to become associated with the National Spinal Cord
Association.
The medical and vocational experts overwhelmingly agreed
that Donald is very motivated, extremely intelligent, and has
the capability of completing his education sometime between
1996 and 1998 and becoming a social worker which, in 1996,
would carry a starting salary of $25,000 per year.
The trial court, however, declined to limit collateral
benefit setoffs to the period of time prior to Donald's
anticipated return to work, on the basis of former Section
423(d)(4), Title 42, U.S.Code, which provided, in relevant
part, as follows:
"In determining whether an individual is able to engage in
substantial gainful activity by reason of his earnings, where
his disability is sufficiently severe to result in a functional
limitation requiring assistance in order for him to work, there
shall be excluded from such earnings an amount equal to the
cost (to such individual) of any attendant care services,
medical devices, equipment, prostheses, and similar items and
services (not including routine drugs or routine medical
services unless such drugs or services are necessary for the
control of the disabling condition) which are necessary (as
determined by the Secretary in regulations) for that purpose,
whether or not such assistance is also needed to enable him to
carry out his normal daily functions; except that the amounts
to be excluded shall be subject to such reasonable limits as
the Secretary may prescribe."
The trial court opined that "if Donald Buchman does return
to employment (which certainly should be encouraged) the cost
of attendant care services, medical devices, equipment,
prostheses, and similar items and services necessary to enable
him to return to employment will certainly exceed his potential
earnings and not disqualify him from any future Social Security
disability benefits or Medicare benefits."
The record, however, affords an insufficient basis for
drawing such a conclusion. The evidence presented both at
trial and during the post-verdict collateral benefits hearing
is insufficient to permit a determination as to the amount of
impairment-related work expenses that would be subtracted from
Donald's earnings under the conditions and limitations set
forth in Section 404.1576, Title 20, C.F.R. In fact, Stevenson
testified that if Donald reaches a point where he can perform

the job of a social worker on a substantial basis, then his
Social Security disability benefits would cease, following a
nine-month trial work period (plus two additional months); and
that he is not aware of people who are making $20,000 a year on
a regular basis who are drawing Social Security disability
benefits.
Thus, it cannot be found, to a reasonable degree of
certainty, that Donald will receive Social Security benefits
beyond 1998. Accordingly, Wayne Trace is entitled to a setoff
for Social Security benefits from December 1991 in the amount
of $81,228 ($967 per month times eighty-four months), for a
total Social Security setoff of $101,353.60.4
2
Future Medicare Deductions
In order to make a determination as to the amount of
Medicare Part A benefits to be deducted from the jury's verdict
pursuant to R.C. 2744.05(B), the trial court needed to know the
amount that the jury awarded Donald for future hospitalizations
and the amount that would be paid by Medicare. The
interrogatories submitted to the jury, however, failed to
separately quantify the amount of damages allocated for future
hospitalizations. Thus, the trial court was forced to make an
attempt at determining the extent to which the jury awarded
damages for Donald's future hospital costs.
The trial court made two sets of findings. First, it
found that the jury awarded future hospital damages to Donald
on the basis that Donald would be hospitalized an average of
thirty days per year at an average cost of $2,751 per day over
a fifteen-year life expectancy period.
Second, the trial court attempted mathematically to
isolate that portion of the jury's verdict attributable to
future hospital costs. The court purportedly accomplished this
by subtracting various amounts of nonhospital future damages
from the $3,884,798 awarded by the jury under Interrogatory No.
6. Initially, the court segregated the various damage
components comprising Interrogatory No. 6 into future losses
that are independent of life expectancy and those that are
dependent upon life expectancy. The court identified the
former as "future lost earnings, future lost household services
that would have been performed by Donald Buchman, and future
college expenses."
The trial court observed that "[i]n closing argument,
counsel for plaintiffs argued that these future losses that
were independent of life expectancy totaled $1,175,270.00."
Subtracting this amount from the $3,884,798 awarded under
Interrogatory No. 6, the trial court concluded that the
remaining $2,709,528 is the amount the jury awarded Donald for
his future damages that are dependent upon life expectancy.
Next, the trial court subtracted three categories of
future nonhospitalization damages that are dependent upon
Donald's life expectancy. In computing these amounts, the
court essentially multiplied by sixty percent the projections
made for each respective category by the Buchmans' economist,
Dr. Harvey Rosen, over a twenty-five-year life expectancy.
Thus, the trial court subtracted $86,448 for future nonhospital
medical expenses, $1,170,790.80 for future home health care
(apparently computed on the basis of $8.50 per hour,

twenty-four hours a day), and $134,516.40 for future equipment
expenses.
The trial court opined that the amount that remained after
subtracting these nonhospitalization damages, i.e.,
$1,317,772.80, must represent the amount awarded by the jury
"for the cost of future hospitalizations over the next 15
years." The court reasoned that "the similarity between these
figures and the result obtained when you calculate the cost of
30 days hospitalization at $2,751.00 per day for 15 years (30
days x $2,751.00/day x 15 yrs. = $1,237,950.00) is more than
coincidental."
The trial court then found that Medicare will pay all
future hospitalization expenses over the next fifteen years,
after Donald satisfies a $652 deductible per period of
hospitalization. The court assumed, per the suggestion of
Wayne Trace, that the thirty days of hospitalization per year
would fall into two deductible periods, thus requiring Donald
to pay $20,827.38 in Medicare Part A deductibles over the next
fifteen years. The trial court then deducted the $20,827.38
from the $1,317,772.80 figure, concluding thereby that Donald
will receive Medicare Part A benefits of $1,296,945.42, which
should be offset against the verdict pursuant to R.C.
2744.05(B).
The trial court's formula assumes one of many possible
combinations of jury findings concerning Donald's future
damages. It assumes, e.g., that the jury chose to award a
total of $1,175,270 to Donald in damages unrelated to life
expectancy. Yet, Dr. Harvey Rosen, plaintiff's economic
expert, actually performed four separate calculations
concerning Donald's lost wages alone, ranging between $901,040
and $1,659,708, depending upon Donald's projected age of
retirement and expected promotions. The jury could have chosen
any one of these figures, especially since there was sufficient
testimony upon which the jury could have found that Donald
would have received several promotions.
The same is true as to the trial court's finding that the
jury awarded $1,170,790.80 for future home health care. This
figure was obviously arrived at by taking sixty percent of Dr.
Rosen's calculations based on $8.50 per hour, for twenty-four
hours per day, over a twenty-five-year life expectancy period.
However, Dr. Rosen also performed calculations for future home
health care based on $8 and $12 per hour, and for eight and
sixteen hours per day, for a range in future home health care
costs between $612,178 and $2,754,802. Moreover, the testimony
at trial was sufficient to allow the jury to choose any of
these calculations or a hybrid thereof.
In addition, it is not a foregone conclusion that the jury
opted to accept Dr. Rosen's figures coupled with a fifteen-year
life expectancy. The record reflects a range of expert
opinions regarding future hospitalizations between ten and
thirty days per year at a cost of at least $1,300 per day; a
range of differing opinions as to Donald's life expectancy
between one year following trial and approximately twenty-four
years; evidence regarding Donald's capability of returning to
employment as a social worker between 1996 and 1998, after
completing his education, at a starting salary of between
$22,000 and $25,000; and widely divergent views on the amounts

and methods used to calculate future damages. Nor was the jury
bound to accept any particular argument or expert calculation.
The jury could have chosen to opt for various hybrid
calculations by accepting parts of each expert's testimony or
other testimony.
Given the vastly divergent expert opinions on the issues
that underlie the trial court's calculations, as well as the
multitude of possible combinations thereof, there is simply no
way to determine, with any reasonable degree of certainty, how
the jury actually allocated Donald's future damages amongst the
various damage components of Interrogatory No. 6. The
methodology employed by the trial court, based as it is on so
many unverifiable assumptions, places its calculations beyond
the boundaries of the "reasonable degree of certainty" standard.
Nevertheless, we cannot simply ignore that the verdict
obviously comprises an award for future hospitalizations. It
would be patently unjust, and contrary to R.C. 2744.05, to deny
a political subdivision all rights of setoff for future
Medicare Part A benefits, on the basis that it failed to
quantify the exact amount of damages allocated by the jury to
future hospitalizations, where it is clear that the verdict
comprises an award for future hospitalizations.
We hold, therefore, that Wayne Trace is entitled to a
setoff against the verdict for future Medicare Part A benefits
up to an amount that corresponds to the minimum amount that the
jury could have awarded for future hospitalizations based on
the evidence in the record. If we were to assume that the jury
awarded more for future hospital costs than the minimum amount
reflected in the record, we would be engaging in speculation.
The minimum amount that the jury could have awarded Donald
for future hospitalizations, based on the evidence in the
record, is an amount equal to ten days per year at a cost of
$1,300 per day over a ten-year life expectancy.5 Thus, the
maximum amount of Medicare Part A benefits that may be deducted
from the verdict pursuant to R.C. 2744.05(B) is $123,480 (ten
days per year multiplied by $1,300 per day, minus $652 yearly
Medicare Part A deductible, over a period of ten years).
We find that Donald will be eligible for Medicare over the
ten-year period beginning February 1992. Stevenson testified
that Donald became entitled to Medicare Part A benefits in
February 1992 and that if such benefits were to be terminated
on the basis of his return to substantial gainful activity,
such termination would become effective thirty-nine months
after Social Security disability benefits ceased (sometime in
late 1998).
The same considerations apply to Medicare Part B
payments. Thus, Wayne Trace is entitled to a deduction for
Medicare Part B payments in the amount of $10,928 ($1,466 per
year in covered medical expenses minus $100 yearly Medicare
Part B deductible, multiplied by ten years, and then multiplied
by eighty percent).
3
Judgment Modified
Accordingly, we modify the judgments of the courts below
as they relate to R.C. 2744.05(B) collateral source deductions
from the jury's verdict in favor of Donald, as follows:
Verdict $5,082,482.00

Collateral benefit setoffs

1. undisputed 62,887.82

2. future Medicare benefits

a - Part A 123,480.00

b - Part B 10,928.00

3. Social Security benefits 101,353.60

TOTAL $4,783,832.58
II
Cross-Appeal; Videotaped Deposition
On June 3, 1992, Wayne Trace took the videotaped
deposition of Dr. Michael J. DeVivo at the Spain Rehabilitation
Center, University of Alabama-Birmingham. At the time, Dr.
DeVivo was an epidemiologist, an assistant professor at the
University of Alabama-Birmingham and the manager of analytic
services for the National Spinal Cord Injury Statistical
Center. Also, at the time, it was Wayne Trace's intention to
call Dr. DeVivo as a witness on its behalf.
Prior to trial, however, Wayne Trace decided not to
present Dr. DeVivo's deposition to the jury. Instead, the
Buchmans played Dr. DeVivo's videotaped deposition to the jury
as part of their case-in-chief.
Wayne Trace claims that it was error to permit the
Buchmans to use the videotaped deposition of Dr. DeVivo. It is
Wayne Trace's position that although Civ.R. 32(A)(3) authorizes
the use of a deposition of a witness taken by a party opponent,
"[n]owhere in Civ.R. 32 is the use of the videotape of a
deposition specifically addressed." Wayne Trace argues that
the use of "the videotape of the deposition of Dr. DeVivo, in
effect, makes Dr. DeVivo the Board's witness, in violation of
the express intent of Civ.R. 32(C), because the jury can
plainly hear that the direct examination of Dr. DeVivo was
conducted by the Board's trial counsel." (Emphasis sic.)
Accordingly, Wayne Trace concludes that where "one party has
taken a deposition which has been videotaped and also
transcribed, and the opposing party chooses to use that
deposition as his own, then that deposition must be presented
to the jury by reading it from the written transcript."
Wayne Trace's entire argument is undercut by the Staff
Notes (1972) to Civ.R. 32(A), which explain that:
"Rule 32(A) Use of Depositions
"The first sentence of Rule 32(A) has been amended to
provide that a deposition may be 'presented as evidence' at
trial. The quoted language replaces that language of the first
sentence of the rule which had provided that a deposition may
be 'read in evidence' at trial.
"Rule 30(B)(3) provides that a deposition may be 'recorded
by other than stenographic means.' The language 'by other than
stenographic means' obviously includes all forms of electronic
recording of depositions including videotape. An
electronically recorded deposition, under the appropriate

circumstances for use of depositions at trial as provided by
the subdivisions of Rule 32, would be 'presented as evidence'
and not 'read into evidence.' Of course, a stenographically
recorded deposition would be 'presented as evidence' at trial
by 'reading' the deposition in evidence."
Accordingly, Wayne Trace's argument lacks merit, see,
also, DiMarco v. Bernstein (Oct. 13, 1988), Cuyahoga App. No.
54406, unreported, and the judgment of the court of appeals is
affirmed as to this issue.6
III
Summary
The judgment of the court of appeals is affirmed in part
and reversed in part. The jury verdict against Wayne Trace in
favor of Donald Buchman is reinstated, but shall be reduced as
set forth in Part I (E)(3), of this opinion.

Judgment affirmed in part
and reversed in part.
Douglas and F.E. Sweeney, JJ., concur.
Moyer, C.J., Wright and Cook, JJ., concur in part and
dissent in part.
Pfeifer, J., concurs in paragraph four of the syllabus and
in judgment only.

FOOTNOTES
1 During the course of the proceedings in the Paulding
County Court of Common Pleas, a number of parties were added
who were responsible for the administration of an employee
benefit plan under which Donald was potentially covered. The
plan defendants caused the action to be removed to the United
States District Court, Northern District of Ohio, Western
Division (case No. 3:90CV7170). The district court granted
summary judgment in favor of the plan defendants and against
Buchman, and remanded the case to the Paulding County Common
Pleas Court. Wayne Trace, a third-party plaintiff in the
federal proceedings, filed an appeal to the Sixth Circuit Court
of Appeals (case No. 91-3931) but subsequently moved for, and
was granted, a voluntary dismissal of that appeal. Thereafter,
the cause proceeded in the common pleas court on Donald's
personal-injury claim and Johanna's loss-of-consortium claim
against Wayne Trace.
2 The holding in Morris is questionable for two reasons,
both articulated by Justice A. William Sweeney, in his dissent
in Morris, and both of which were later adopted by the majority
of the court. First, Justice Sweeney pointed out that
"limiting double recovery in medical malpractice cases *** is
not necessary to promote a compelling governmental interest
particularly where, as here, the statutory classification is
established in response to a 'crisis' which is yet to be shown
to exist." (Emphasis sic). Id. at 711, 576 N.E.2d at 784
(Sweeney, J., dissenting). This reasoning was adopted in
Sorrell, supra, at 425, 633 N.E.2d at 512, where a majority of
the court further explained that "[i]n Morris, supra, the
majority upheld the constitutionality of R.C. 2305.27 in
setting off medical malpractice collateral benefits. However,
the validity of that holding is questionable at best given our

resolution of the causes sub judice."
Second, Justice Sweeney pointed out in his dissent in
Morris that under the particular language of R.C. 2305.27,
workers' compensation benefits should not have been set off
against the medical malpractice award. Id. at 713, 576 N.E.2d
at 786. R.C. 2305.27 contains specific language precluding a
setoff for collateral payments made pursuant to an insurance
policy or contract for which the beneficiary or his employer
pays premiums or underwrites the cost. In Savage v. Correlated
Health Serv., Ltd. (1992), 64 Ohio St.3d 42, 591 N.E.2d 1216, a
majority of the court adopted Justice Sweeney's assessment in
Morris and held that "workers' compensation and Social Security
benefits fall under the definition of 'insurance' in R.C.
2305.27, and therefore do not reduce medical malpractice damage
awards." Id. at 48-49, 591 N.E.2d at 1220-1221.
3 Civ.R. 26(B)(1) provides:
"In General. Parties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to the claim
or defense of the party seeking discovery or to the claim or
defense of any other party, including the existence,
description, nature, custody, condition and location of any
books, documents, or other tangible things and the identity and
location of persons having knowledge of any discoverable
matter. It is not ground for objection that the information
sought will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the discovery
of admissible evidence."
4 It is clear from the record that regardless of what
evidence the jury relied upon, the minimum amount that was
awarded for Donald's total lost wages exceeds $101,353.60.
5 The parties do not contend that the jury accepted the
testimony of Wayne Trace's medical expert, Dr. Gary M. Yarkony,
that Donald's life expectancy would not exceed one or two
years. Also, the $1,300 figure was used instead of the $1,000
testified to by Dr. Yarkony because Dr. Yarkony admitted that
his figure did not include the attending physicians' charges,
and Wayne Trace conceded in closing argument that the $1,300
figure should be used.
6 Wayne Trace also alleges that the videotape was played
at a point during which the witness is identified as a witness
for Wayne Trace. We find such error not to be prejudicial in
light of the extensive supporting testimony by other medical
experts in the case regarding Donald's life expectancy.
Moreover, it would be anomalous to find prejudicial error in
this case where it is unclear what the jury actually found as
to Donald's life expectancy. Wayne Trace does not contend that
Dr. DeVivo's opinions concerning Donald's life expectancy were
accepted by the jury.
Wright, J., concurring in part and dissenting in part. I
concur in paragraphs one, two, three, five and six of the
syllabus in this case. However, for the reasons stated in
Chief Justice Moyer's dissenting opinion in Sorrell v. Thevenir
(1994), 69 Ohio St.3d 415, 633 N.E.2d 504, which I joined, I
believe that R.C. 2744.05(B) is constitutional as literally
read. The constitutionality of R.C. 2744.05(B) is further
buttressed by the state's important interest in preserving the

financial soundness of its political subdivisions. Under the
unambiguous language of R.C. 2744.05(B), all collateral
benefits received by a claimant should be "deducted from any
award against a political subdivision," not merely those
benefits that are actually included in a jury's award.
Accordingly, I dissent to paragraph four of the syllabus.
Moyer, C.J., and Cook, J., concur in the foregoing opinion.
Pfeifer, J. I concur in paragraph four of the syllabus
and in judgment only. I would apply this court's analysis in
Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504,
to this case and hold that R.C. 2744.05(B) is unconstitutional.