[Cite as Braxton v. Kilbane, 2017-Ohio-185.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104166
JULIUS BRAXTON, ET AL.
PLAINTIFFS-APPELLANTS
vs.
ASHLEY KILBANE
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED IN PART; VACATED IN PART;
REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-847631
BEFORE: S. Gallagher, J., Jones, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: January 19, 2017
ATTORNEY FOR APPELLANTS
Daniel J. Ryan
Ryan L.L.P., Inc.
55 Public Square, 21st Floor
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Terrence J. Kenneally
River Terrace Building
19111 Detroit Road, Suite 200
Rocky River, Ohio 44116
SEAN C. GALLAGHER, J.:
{¶1} Plaintiff-appellant, Julius Braxton, appeals certain evidentiary rulings made
by the trial court during the trial of this case. Upon review, we find reversible error
occurred that only affected the damages award. Accordingly, we affirm the verdict in
appellant’s favor, but we vacate the damages award and remand for a new trial only on
the issue of damages.
{¶2} This case arose from a motor vehicle accident that occurred on July 10, 2013,
between Braxton and defendant-appellee Ashley Kilbane. Braxton filed a complaint on
June 29, 2015, raising negligence claims against Kilbane. The case was tried to a jury.
{¶3} During trial, the court limited the testimony of plaintiff’s expert Dr. Mark
Shoag regarding the nature and extent of injuries to Braxton’s left wrist. Dr. Shoag
stated in his January 27, 2015 expert report that he had reviewed Braxton’s medical
records and that it was his opinion to a high degree of medical certainty that Braxton’s
wrist injury was a direct result of the motor vehicle accident. Subsequent to the expert
report, in April 2015, an MRI was taken of Braxton’s wrist. The MRI further detailed
the extent of Braxton’s wrist injury.
{¶4} Plaintiff’s counsel intended to have Dr. Shoag testify to the MRI.
Defendant-appellee, Ashley Kilbane, raised an objection to allowing such testimony and
argued that Loc.R. 21.1 limited Dr. Shoag’s testimony to what was in his January 27,
2015 report. The trial court agreed and limited Dr. Shoag’s testimony about the injuries
to the materials Dr. Shoag reviewed for his expert report. The court further determined
that appellant was “alleging a new wrist injury” that was not in Dr. Shoag’s expert report.
The court also would not permit Dr. Shoag to explain the injuries with the use of
Braxton’s wrist as demonstrative evidence.
{¶5} Dr. Shoag testified that he reviewed Braxton’s medical records related to his
evaluation for injuries arising from the motor vehicle accident. He also reviewed X-rays
that showed a fracture of the ulnar styloid in Braxton’s left wrist. Dr. Shoag’s opinion,
to a reasonable medical probability, was that the injuries to Braxton’s left wrist were
caused by the automobile accident.
{¶6} At the conclusion of Dr. Shoag’s testimony, appellant proffered Dr. Shoag’s
testimony about the MRI outside of the presence of the jury. Dr. Shoag testified that the
MRI showed more damage than was available on the X-rays, including a radial fracture
and tears and disruptions to the ligaments and the cartilage.
{¶7} As a result of the trial court’s ruling, the jury only heard testimony about an
ulnar fracture, and not the radial fracture and tears to Braxton’s left wrist. The jury
returned a verdict in Braxton’s favor and awarded him $12,600.
{¶8} Braxton timely filed this appeal. He raises two assignments of error for our
review. Braxton claims that the trial court committed reversible error by (1) limiting Dr.
Shoag’s testimony and excluding testimony regarding the MRI report, and (2) excluding
appellant’s demonstrative evidence of his wrist.
{¶9} A trial court’s decision to admit or exclude evidence, including expert
testimony, will not be disturbed absent an abuse of discretion that causes material
prejudice. Krischbaum v. Dillon, 58 Ohio St.3d 58, 66, 567 N.E.2d 1291 (1991). A
trial court’s ruling on the admission of demonstrative evidence also is reviewed for an
abuse of discretion. State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d
948, ¶ 82. In this case, we find it was an abuse of discretion to exclude the proffered
expert testimony and the demonstrative evidence, and that this was prejudicial to the
determination of damages.
{¶10} Loc.R. 21.1 requires expert opinions to be set forth in a report and provided
to opposing counsel. The rule provides that the report must reflect the expert’s opinions
“as to each issue on which the expert will testify” and that no testimony or opinions will
be permitted “on issues not raised in [the] report.” Loc.R. 21.1.
{¶11} Similarly, Civ.R. 26(E) requires parties to supplement their discovery
responses with respect to the subject matter on which an expert witness is expected to
testify. Although an opposing party must be adequately informed as to the subject
matter about which the expert intends to testify, Civ.R. 26(E) does not require a party to
provide detailed information with regard to the basis for an expert’s opinion. Rush v.
Univ. of Cincinnati Physicians, Inc., 1st Dist. Hamilton No. C-150309, 2016-Ohio-947, ¶
15; Metro. Life Ins. Co. v. Tomchik, 134 Ohio App.3d 765, 783, 732 N.E.2d 430 (7th
Dist.2000).
{¶12} In this case, Dr. Shoag’s expert report discussed his opinion that the injuries
to Braxton’s left wrist were caused by the July 2013 accident. The causal connection
between the accident and the injuries to Braxton’s wrist was the subject matter or issue
that was raised in Dr. Shoag’s report and which formed the basis of his testimony. The
MRI report did not alter Dr. Shoag’s opinion. Rather, it was offered to provide a more
detailed account of the injuries caused by the car accident.
{¶13} This is not a case where the plaintiff sought to offer expert testimony on a
completely new or previously undisclosed theory of causation.1 Further, the MRI report
did not relate to a “new wrist injury,” but rather was offered to detail the extent of the
injuries caused to Braxton’s left wrist. The opposing party was adequately informed as
to the subject matter about which the expert intended to testify, and any testimony
regarding the MRI report would have been consistent with the matters disclosed in
discovery. Under such circumstances, the testimony should have been allowed. See
Rush at ¶ 18-19 (testimony about posterior rib fractures not previously identified did not
constitute a new subject matter of expert testimony). Neither Loc.R. 21.1 nor Civ.R.
26(E) were violated.
{¶14} Furthermore, as this court has previously recognized, the primary purpose of
Loc.R. 21 is to avoid prejudicial surprise, and a court is not required to exclude testimony
where there is no evidence of prejudice. Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet
Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 48 (8th Dist.);
see also Estate of Preston v. Kaiser Permanente, 8th Dist. Cuyahoga No. 78972, 2001
1
The Ohio Supreme Court has found that it is an abuse of discretion to permit a medical
expert to testify about a previously undisclosed causal connection between an injury and a medical
problem. Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367, 371, 504 N.E.2d 44
(1986).
Ohio App. LEXIS 4988, 12 (Nov. 8, 2001). Here, the MRI report had been provided to
the opposing party prior to trial, and the expert’s identity and the general nature of his
testimony were known. “‘[W]hen a complaining party knows the identity of the other
party’s expert, the subject of his expertise and the general nature of his testimony, a party
cannot complain that they are ambushed.’” Miller v. GMC, 8th Dist. Cuyahoga No.
87484, 2006-Ohio-5733, ¶ 11, quoting Yaeger v. Fairview Gen. Hosp., 8th Dist.
Cuyahoga No. 72361, 1999 Ohio App. LEXIS 904 (Mar. 11, 1999).
{¶15} Under the circumstances presented, the trial court abused its discretion when
it excluded Dr. Shoag’s testimony regarding the MRI report.
{¶16} We also find the trial court abused its discretion by precluding the use of
Braxton’s wrist during Dr. Shoag’s testimony as demonstrative evidence of Braxton’s
injuries. “Demonstrative evidence is admissible if it satisfies the general standard of
relevance set forth in Evid.R. 401 and if it is substantially similar to the object or
occurrence that it is intended to represent.” (Footnote omitted.) Jones, 135 Ohio St.3d
10, 2012-Ohio-5677, 984 N.E.2d 948, at ¶ 82. These requirements were satisfied in this
matter.
{¶17} Furthermore, the trial court’s rulings resulted in prejudice to appellant.
The exclusion of the expert testimony regarding the MRI report and the demonstrative
evidence of Braxton’s wrist prevented appellant from offering evidence of the full extent
of the injuries resulting from the car accident. The trial court’s rulings undermined the
damages award and quite possibly prevented appellant from being made whole.
Accordingly, we sustain the assignments of error.
{¶18} Because the trial court’s rulings only impacted the determination of damages
in this matter, we affirm the verdict in appellant’s favor, vacate the damages award, and
remand for a new trial only on the issue of damages.
{¶19} Judgment affirmed in part, vacated in part, and case remanded.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION
EILEEN T. GALLAGHER, J., DISSENTING:
{¶20} I respectfully dissent from the majority’s resolution of Braxton’s first and
second assignments of error and would affirm the trial court’s judgment.
{¶21} In its opinion, the majority concluded that the trial court abused its
discretion when it excluded Dr. Shoag’s testimony regarding Braxton’s MRI report. I
disagree.
{¶22} Loc.R. 21.1(B), which governs the use of expert witnesses and expert
reports in Cuyahoga County provides, in pertinent part:
A party may not call an expert witness to testify unless a written report has
been procured from the witness and provided to opposing counsel. It is
counsel’s responsibility to take reasonable measures, including the
procurement of supplemental reports, to insure that each report adequately
sets forth the expert’s opinion. However, unless good cause is shown, all
supplemental reports must be supplied no later than thirty (30) days prior to
trial. The report of an expert must reflect his opinions as to each issue on
which the expert will testify. An expert will not be permitted to testify or
provide opinions on issues not raised in his report.
(Emphasis added.)
{¶23} “The primary purpose of Loc.R. 21 is to avoid prejudicial surprise resulting
from noncompliance with the report requirement.” Id., citing Reese v. Euclid Cleaning
Contrs., Inc., 103 Ohio App.3d 141, 147, 658 N.E.2d 1096 (8th Dist.1995).
{¶24} As stated by the majority, our standard of review concerning the trial court’s
ruling on a Loc.R. 21.1 question is abuse of discretion. Preston v. Kaiser, 8th Dist.
Cuyahoga No. 78972, 2001 Ohio App. LEXIS 4988, at 11 (Nov. 8, 2001), citing Nakoff v.
Fairview Gen. Hosp., 75 Ohio St.3d 254, 662 N.E.2d 1 (1996). Thus, the standard is
deferential to the trial court’s judgment.
{¶25} In this case, Braxton filed a timely expert report in compliance with Local
R. 21.1(B). The report, however, did not include Dr. Shoag’s opinions regarding the
MRI of Braxton’s wrist taken in April 2015. The record reflects that trial counsel had
ample time prior to the February 2016 trial to file a supplemental expert report in order to
include the results of the MRI and its impact on Dr. Shoag’s expert opinion. However,
no supplemental report was filed. Under these circumstances, I am unable to conclude
that the trial court abused its discretion in limiting Dr. Shoag’s testimony to the
information contained in his report. As stated, Loc.R. 21.1(B) expressly states that an
expert “will not be permitted to testify on issues not raised in his report.” In this
instance, issues relating to the results of Braxton’s April 2015 MRI were not included in
Dr. Shoag’s expert report.
{¶26} In avoiding the implications of Loc.R. 21.1(B) the majority holds that the
“issue” discussed in Dr. Shoag’s expert report related to causation and that the additional
information contained in the MRI report did not alter Dr. Shoag’s opinion on that issue.
I agree with the majority’s conclusion that the MRI results would not have impacted Dr.
Shoag’s opinion regarding causation. However, I disagree with the majority’s narrow
interpretation of Dr. Shoag’s testimony. Had Dr. Shoag been permitted to testify about
the MRI results, his testimony unquestionably would have expanded beyond his opinions
on the issue of causation that were contained in his expert report. In my view, any
expert opinions rendered by Dr. Shoag regarding the MRI report would have related
solely to establishing the extent of Braxton’s injuries and the issue of damages. As
stated, such an issue was not raised in Dr. Shoag’s expert report. Pursuant to the express
terms of the local rule, I believe that a medical report establishing additional injuries that
may significantly impact the scope of damages is precisely the type of “issue” that must
be disclosed to the opposing party and included in an expert report before an expert
witness may offer an opinion on the information gathered from the new evidence.
{¶27} For these reasons, I disagree with the majority’s position that opposing
counsel would not have been prejudicially surprised by the challenged testimony. As
noted by the majority, opposing counsel certainly anticipated the substance of Dr. Shoag’s
testimony relating to causation and was aware of his opinion that Braxton’s wrist injury
was caused by the car accident. However, I do not believe this record supports the
proposition that opposing counsel knew the general nature of Dr. Shoag’s testimony
concerning the MRI report until the information was disclosed to counsel just five days
before trial. In my view, these circumstances do not comply with the notice obligations
and purposes of Loc.R. 21.1. Holding otherwise sets an ambiguous precedent that may
promote last minute disclosures of evidence, such as in this case, that may substantially
impact the amount of damages awarded.
{¶28} Accordingly, I believe that opposing counsel’s defense would have been
substantially prejudiced had the court permitted Dr. Shoag to offer an expert opinion
regarding the nature and extent of the injuries observed from the MRI. Significantly,
defense counsel would have had no recourse to dispute Dr. Shoag’s testimony, as the late
disclosure inequitably precluded counsel from having the opportunity to obtain its own
expert witness to review and analyze Braxton’s MRI.
{¶29} Accordingly, I believe the trial court acted within its discretion in limiting
Dr. Shoag’s testimony in accordance with the intent and purpose of the local rules.
{¶30} I further dissent from the majority’s holding that the trial court abused its
discretion by precluding the use of Braxton’s wrist during Dr. Shoag’s testimony
regarding the MRI report. As stated, I do not believe Dr. Shoag was entitled to offer an
expert opinion on the subject of the MRI report. Thus, I believe the jury was adequately
presented with all relevant testimony relating to the opinions rendered in Dr. Shoag’s
expert report.
{¶31} Based on the foregoing, I would affirm the trial court’s judgment.