When is the ‘abuse of discretion’ standard of review actually ‘de novo’?

An Ohio appellate practitioner has two primary questions to answer. First, “Do I have a final appealable order?” Assuming the answer to that question is yes, the second question is, “What’s the applicable standard of review?” On Sept. 22, 2021, the Ohio Supreme Court issued  Johnson v. Abdullah, which reemphasizes the importance of understanding the applicable standard.

Supreme Court rejects argument

In Johnson, the Supreme Court was determining the contours of Evid.R. 601(B)(5)(b), which requires an expert in a medical malpractice claim to devote “one-half of his or her professional time to [] active clinical practice.” Although deeply experienced in the field, the expert in the case had shifted his role to the chief operating officer at a hospital system at the time of trial. The trial court permitted the testimony and the defendant ultimately prevailed at trial. The First District reversed the trial court’s ruling because the expert, as a hospital administrator, did not meet the rule’s requirement.

On appeal to the Supreme Court, the defendant physician argued that the First District’s ruling infringed on the traditional standard of admission of expert evidence, abuse of discretion. Under this standard, a trial court’s decision will not be reversed unless it is arbitrary, unreasonable or unconscionable.

The Supreme Court rejected this argument, noting that the applicability of Evid.R. 601(B)(5)(b) requires an application of law to facts. At paragraph 39, the court took the “opportunity to make it clear that courts lack discretion to make errors of law, particularly when the trial court’s decision goes against the plain language of a statute or rule.”

Which standard of review applies?

In sum, practitioners should be mindful of which standard of review an appellate court will apply on appeal. The Supreme Court’s reasoning is not limited to the facts of this case. Quite the opposite—its reasoning could be applied to a whole host of rules of evidence or procedure where abuse of discretion has been traditionally viewed to be the appropriate standard of review, such as Civ. R. 60(B) (addressing motion for relief from judgment or order), or Civ. R. 59 (motion for new trial).

Johnson provides a clear pathway to argue that the standard of review is not abuse of discretion if it involved an incorrect application of the law. Pointing the reviewing court to the most beneficial standard of review goes a long way toward improving the likelihood of success.