Lawyer argues to get pay for live testimony

The case behind the appeal originated in Trumbull County.
By MICHELE C. HLADIK
VINDICATOR CORRESPONDENT
COLUMBUS -- Those who sue the Ohio Bureau of Workers' Compensation for benefits and win should be reimbursed for expert witnesses who testify live, lawyers for a Trumbull County man told the Ohio Supreme Court.
The court recently took the matter under advisement.
"What we're talking about is reasonable litigation expenses connected with the preparation and presentation of an appeal," Thomas Wilson, a Cleveland attorney, said Wednesday.
Wilson represents Trumbull County resident John Schuller, who was diagnosed with asbestosis in 1998 by Dr. Paul Venizelos. He says he got the illness from his employment with several employers, including LTV Steel Co.
In 2002, Schuller sued for benefits from the Ohio Workers' Compensation Fund. A jury found in his favor and ordered the costs he incurred for the trial be reimbursed by LTV.
According to court documents, the state became responsible for LTV's workers' compensation claims after the company's bankruptcy filing.
Not reimbursed for testimony
Schuller was awarded reimbursement for all costs except the $3,000 for Dr. Venizelos' live testimony in court.
According to Wilson, state statutes allow the reimbursement of court costs and past Supreme Court rulings found video depositions were reimbursable costs.
"We already have half of the answer that this court is looking at," he told the high court.
"What I don't want to be caught up with is being precluded on how I want to present evidence to a jury based upon a statutory construction argument of what a cost of a legal proceeding is," Wilson told the court.
Chief Justice Thomas Moyer pointed out Wilson could still present the evidence; it was really a matter of whether he would be reimbursed for presenting the evidence a certain way.
"Pragmatically speaking, if I can't get costs reimbursed for a particular way of doing things, I can't do it," Wilson responded.
"If I have to make the decision as to how I present evidence on a purely economic sense, I won't take the case," Wilson said. "There will be a chilling effect on workers' compensation claimants."
Issue of video
Justice Terrence O'Donnell questioned whether Dr. Venizelos' testimony could have been presented on video.
"What can be done live in the courtroom, could be done and prerecorded on a video which is an already approved reimbursable cost," Justice O'Donnell said.
Wilson disagreed.
"It cannot be done as well as [live testimony] and as well as makes a difference when we are talking about looking at an X-ray on a shadowbox," he said. "You can't get the same effect."
Diane Richards Brey, a deputy state solicitor for the Ohio attorney general's office, represented the bureau's side of the case. According to Richards Brey, the testimony could have been presented on video.
"The substance of the expert's testimony is going to be the same whether he testifies live or by deposition," she said.
According to Richards Brey, the video deposition is a cost savings for the system, but also makes the trial go smoother. She said that with the video depositions, doctors aren't waiting around or don't have to be taken out of order. She said it would also get the doctor back to seeing patients faster.
Richards Brey said most people bring video depositions for medical experts to court cases. "The reason for that, I imagine, is to save costs and to save court time," she said.
Justice Paul Pfeifer said it is hard to get medical experts to testify in person and that when they do, it's usually out of empathy for the patient.