[Cite as Davie v. Nationwide Mut. Ins. Co., 2015-Ohio-104.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 101285



                                           MICHAEL DAVIE


                                                              PLAINTIFF-APPELLANT

                                                     vs.

                              NATIONWIDE MUTUAL INSURANCE
                                       CO., ET AL.

                                                              DEFENDANT-APPELLEE




                                              JUDGMENT:
                                               AFFIRMED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-12-793284

        BEFORE: Stewart, J., Celebrezze, A.J., and Keough, J.

        RELEASED AND JOURNALIZED:                      January 15, 2015
FOR APPELLANT

Michael Davie, pro se
11811 Shaker Blvd., Suite 314
Cleveland, OH 44120


ATTORNEY FOR APPELLEE

Gregory E. O’Brien
Cavitch, Familo & Durkin Co., L.P.A.
1300 East Ninth Street, 20th Floor
Cleveland, OH 44114


ATTORNEY FOR ERICA DAVIE

Donald R. Murphy
12800 Shaker Blvd., Suite 200
Cleveland, OH 44120




MELODY J. STEWART, J.:
       {¶1}    Plaintiff-appellant Michael Davie was injured through the fault of an uninsured

motorist. He made a claim for the compensation of injuries he suffered in the accident under an

uninsured motorists policy issued by his insurer, defendant-appellee Nationwide Insurance

Company of America (incorrectly identified in the case caption as “Nationwide Mutual Insurance

Company”). Acting pro se at trial, Davie presented a case with no expert medical testimony to

prove that his injuries were proximately caused by the accident. The court directed a verdict for

Nationwide on that basis, noting that Davie offered testimony that he was receiving treatment for

“soft tissue” injuries some two years after the accident without offering expert opinion to show

how the treatment was related to the accident. Although Davie assigns seven errors for review,

the directed verdict and a ruling in limine tentatively barring him from offering expert testimony

for witnesses for whom no expert report had been provided are the issues upon which all else

depends in this appeal.

       {¶2}    Prior to trial, Nationwide filed a motion in limine seeking, among other things, to

prohibit Davie from introducing testimony from certain medical doctors for whom no expert

report had been filed. The court granted that aspect of the motion in limine, stating “no expert

witness may testify without satisfying Loc.R. 21.1 as to expert report.” Davie presented his case

without expert testimony. When Nationwide asked the court to direct a verdict in its favor,

Davie objected on grounds that the court would not allow him to offer expert testimony. The

court disagreed, stating that it did not foreclose the possibility that Davie might offer a treating

physician’s testimony as a fact witness, including any expert opinions that may be found in the

treating physician’s records. The court told Davie that if he had an expert witness for whom an

expert report was not required, he did not disclose that witness to the court prior to trial. Davie

argues that the court erred by refusing to allow his expert witnesses to testify.
       {¶3}       Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County, General

Division, governs witnesses who are expected to be called to testify at trial. Part I of the rule

applies to expert witnesses and states that counsel are instructed to exchange, “in advance of the

trial,” the reports of medical and expert witnesses expected to be called at trial. If a party fails to

exchange the report of an expert, that witness may be excluded from testifying. Loc.R. 21.1(A)

and (B). In some circumstances, an expert report is unnecessary. Loc.R. 21.1(C) provides: “In

the event the non-party expert witness is a treating physician, the Court shall have the discretion

to determine whether the hospital and or office records of that physician’s treatment which have

been produced satisfy the requirements of a written report.”

       {¶4}       Davie did not provide any expert reports prior to trial, but he did disclose as

witnesses his treating physicians and his intent to introduce his medical records as evidence.

Nationwide filed a motion in limine to bar him from offering any expert testimony at trial;

specifically including the treating physicians as being encompassed by the motion, but only

insofar as a physician testifying “as an expert.” Davie opposed the motion in limine by noting

that Loc.R. 21.1(C) gave the court discretion to consider whether the office or hospital records of

treating physicians that have been produced to the opposing party satisfy the requirements of a

written report.

       {¶5}       When the court granted the motion in limine, it ruled that “no expert witness may

testify without satisfying Loc.R. 21.1 as to expert report.” Although supportable under Loc.R.

21.1, the court’s ruling did not clearly address Davie’s argument in opposition to the motion —

whether he could use conclusions contained in his treating physicians’ records as expert opinion.

 That failure to address this argument loomed when the court considered Nationwide’s motion

for a directed verdict on grounds that Davie failed to offer expert testimony on proximate cause.
The court told Davie that its ruling granting the motion in limine did not “exclude any expert

witnesses.” The court went on to state, “I ruled that you had to follow Local Rule 21.1 as

providing an expert’s report on expert testimony. That rule does provide for treating physicians.

If the expert testimony is found inside the treating physician’s records, that may suffice.”

       {¶6}    Davie pointed out to the court that its order appeared to clearly prohibit him from

offering any expert opinion in his case for failure to file expert reports, in spite of his reliance on

Loc.R. 21.1(C) that he did not need to provide a separate report because he was using his medical

records. The court seemed to believe that Davie sought only to offer testimony from experts for

whom a written report was required, indeed, the court appeared to chastize him for not

appreciating the difference.

       {¶7}    There was no failure on Davie’s part to appreciate the difference between

providing an expert report or finding that medical records satisfy the requirements of an expert

report. Davie told the court that he did raise Loc.R. 21.1(C) as a basis for having his medical

records considered in lieu of a separate report: a claim that the court disputed. The court stated,

“If you had expert opinion for which you claimed you didn’t have to produce a separate report,

you did not make that assertion to the Court.” The record, however, amply supports Davie. His

brief in opposition to Nationwide’s motion in limine specifically mentioned Loc.R. 21.1(C) as a

basis for the expert opinion. Although Davie could not immediately locate that brief in his file

when asked by the court, the court told him, “[y]ou made it sound like the Court ruled that you

couldn’t produce any expert witnesses. That’s not what my ruling was.” The court went on to

say, “[t]o the extent that you have a basis under 21.1 that you don’t need a report, then you can

come in that way.”
       {¶8}    The court’s reasoning was, in the narrowest sense, correct.        As worded, the

court’s ruling on the motion in limine was legally correct: no expert witness could testify without

an expert report. While it is true that the order did not specifically bar Davie from offering the

testimony of a treating physician for whom medical records could satisfy the requirement of an

expert report, the wording of the court’s ruling would have appeared all-encompassing to a party

who had raised the issue of Loc.R. 21.1(C). When Davie told the court that he understood the

ruling as all-encompassing, the court told him that “it sounds like you did not correctly

understand motions in limine.” This was not the case. Davie fully understood the motion in

limine and his response reflected that — it was the court’s failure to address the substance of

Davie’s opposition to the motion in limine that led to his confusion.

       {¶9}    The lack of clarity in the court’s order granting the motion in limine does not

require reversal, however, because it is harmless. Davie told the court that “I was not able to

find a medical record that would reach the conclusion that the injury * * * stem[med] from the

accident.” From this statement we have no choice but to conclude that even if Davie offered any

of his treating physicians as a witness at trial, the medical records contained nothing that would

constitute an expert opinion that his injuries were proximately caused by the accident.

Statements in those records saying that Davie complained of injury after the accident were not

sufficient to constitute an expert medical opinion on proximate causation. Expert opinions must

be expressed to a degree of medical certainty, State v. Benner, 40 Ohio St.3d 301, 313, 533

N.E.2d 701 (1988).     None of the medical records Davie offered into evidence meet that

standard. So the lack of clarity in the court’s ruling in limine was inconsequential because

Davie’s medical records were not of a sufficient quality to satisfy the requirements of a report on

causation.
        {¶10} With the absence of any expert testimony, we next consider whether the court erred

by directing a verdict in Nationwide’s favor on grounds that Davie failed to establish that his

injuries were proximately caused by the tortfeasor.

        {¶11} Davie made his claim under the uninsured motorists coverage provided by

Nationwide.     R.C. 3937.18(D) states that an insured seeking to recover under uninsured

motorists coverage must “prove all elements of the insured’s claim that are necessary to recover

from the owner or operator of the uninsured or under insured motor vehicle.”                  Davie’s

negligence claims thus required him to prove the existence of a duty, a breach of that duty, and

that the breach proximately caused the injury or damage. Menifee v. Ohio Welding Prods., Inc.,

15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).

        {¶12} The injuries that Davie allegedly suffered were “soft tissue” injuries to his neck,

back, and shoulders. Because the tortfeasor’s negligence was established, proximate causation

was the contested element of Davie’s negligence claim. In Argie v. Three Little Pigs, Ltd., 10th

Dist. Franklin No. 11AP-437, 2012-Ohio-667, the court found:

        “[W]here subjective, soft-tissue injuries are alleged, the causal connection
        between such injuries and the automobile accident alleged to have caused them is
        beyond the scope of common knowledge, and that such causal connection must be
        established by expert testimony.” Rogers v. Armstrong, 1st Dist. No. C-010287,
        2002-Ohio-1131 (Mar. 15, 2002). “Soft-tissue injuries like neck and back strains
        and sprains require expert testimony to establish a causal connection, because they
        are injuries that are ‘internal and elusive, and are not sufficiently observable,
        understandable, and comprehensible by the trier of fact.’” Lane v. Bur. of
        Workers’ Comp., 2d Dist. No. 24618, 2012-Ohio-209, ¶ 60, citing, inter alia,
        Wright v. Columbus, 10th Dist. No. 05AP-432, 2006-Ohio-759, ¶ 19; see also
        Maney v. Jernejcic, 10th Dist. No. 00AP-483, 2000 Ohio App. LEXIS 5296 (Nov.
        16, 2000) (soft-tissue injuries sustained in a rear-end collision are internal injuries
        that are usually unaccompanied by observable external injuries and, therefore,
        require expert medical testimony of causation).

Id. at ¶ 15.
       {¶13} With Davie failing to offer expert testimony at trial on whether his soft tissue

injuries were proximately caused by the tortfeasor’s negligence, the court had no choice but to

direct a verdict. Civ.R. 50(A)(4) states:

       When a motion for a directed verdict has been properly made, and the trial court,
       after construing the evidence most strongly in favor of the party against whom the
       motion is directed, finds that upon any determinative issue reasonable minds
       could come to but one conclusion upon the evidence submitted and that
       conclusion is adverse to such party, the court shall sustain the motion * * *.

       {¶14} Davie admittedly did not offer expert testimony to show that his soft tissue injuries

were proximately caused by the tortfeasor’s negligence. This constituted a failure of proof on

the issue of the uninsured motorist’s claim and warranted the court directing a verdict in

Nationwide’s favor. This failure of proof renders all other claimed trial errors moot because

they would not warrant a new trial when Davie failed to make a prima facie case of negligence.

       {¶15} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga County

Court of Common Pleas 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.



_______________________________________
MELODY J. STEWART, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
