[Cite as Jacobs v. Shearer's Foods, L.L.C., 2018-Ohio-3863.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


TRICIA A. JACOBS                                   :           JUDGES:
                                                   :           Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                        :           Hon. William B. Hoffman, J.
                                                   :           Hon. Earle E. Wise, Jr., J.
-vs-                                               :
                                                   :
SHEARER'S FOODS, LLC, ET AL                        :           Case No. 2018CA00027
                                                   :
        Defendants-Appellees                       :           OPINION



CHARACTER OF PROCEEDING:                                       Appeal from the Court of Common
                                                               Pleas, Case No. 2017CV01049


JUDGMENT:                                                      Affirmed



DATE OF JUDGMENT:                                              September 24, 2018



APPEARANCES:

For Plaintiff-Appellant                                        For Defendants-Appellees

JENNIFER L. LAWTHER                                            JOSEPH N. GROSS
DANIEL A. KIRCHNER                                             JACLYN C. STAPLE
COREY J. KUZMA                                                 200 Public Square
2730 Euclid Avenue                                             Suite 2300
Cleveland, OH 44132                                            Cleveland, OH 44114

For Bureau of Workers' Compensation

LISA A. REID
Assistant Attorney General
State Office Building, 11th Floor
615 West Superior Aveue
Cleveland, OH 44113
Stark County, Case No. 2018CA00027                                                       2

Wise, Earle, J.

       {¶ 1} Plaintiff-Appellant Tricia A. Jacobs appeals the February 15, 2018 judgment

of the Court of Common Pleas of Stark County, Ohio granting Defendant-Appellee

Shearer's Foods motion for summary judgment.

                              FACTS AND PROCEDURAL HISTORY

       {¶ 2} In 2014, appellant was an employee of Shearer's Foods. On March 14,

2014, appellant fell from a loading dock and struck her head on the concrete two to three

feet below.

       {¶ 3} Appellant filed a worker's compensation claim. Conditions were permitted

which are not at issue here. Two years later, however, appellant sought to add three

conditions to her claim: traumatic brain injury, fusion with defective stereopsis, and

convergence insufficiency. These additional allowances were denied by the Industrial

Commission of Ohio. Appellant exhausted her administrative appeals and appealed to

the Stark County Court of Common Pleas pursuant to R.C. 4123.512.

       {¶ 4} Appellant disclosed two possible expert witnesses through discovery and

court-required notifications, optometrist Druscilla H. Grant, and Paul Scheatzle, M.D.

       {¶ 5} Optometrist Grant provided appellant with an eyeglasses prescription and

appellant purchased eyeglasses from Optometrist Grant. Appellant submitted a report

from Grant in which Grant opined appellant's "visual problems are more likely than not a

direct result of her traumatic brain injury."

       {¶ 6} Dr. Scheatzle provided appellant with massage treatments and depression

and anxiety medications. He submitted a report in which he opined "There is a direct
Stark County, Case No. 2018CA00027                                                         3


correlation between her allowed diagnosis of traumatic brain injury with her convergence,

(sic) insufficiency, and fusion with defective stereopsis."

         {¶ 7} Traumatic brain injury was not an allowed condition. Further, neither

medical professional provided a basis for their opinions, and appellant presented no

evidence to demonstrate these witnesses were qualified to testify as medical experts at

trial.

         {¶ 8} Based on these facts, on January 12, 2018 appellee filed a motion for

summary judgment. On January 31, 2018, appellant filed her brief in opposition, and

appellee filed a reply on February 7, 2018. On February 15, 2018, the trial court granted

appellee's motion for summary judgment.

         {¶ 9} Appellant filed an appeal, and the matter is now before this court for review.

She raises one assignment of error:

                                                  I

         {¶ 10} "THE TRIAL COURT ERRED BY GRANTING APPELLEE SHEARER'S

FOODS, LLC'S MOTION FOR SUMMARY JUDGMENT."

         {¶ 11} In her sole assignment of error, appellant argues the trial court erred in

granting appellee's motion for summary judgment. We disagree.

         {¶ 12} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):



         Civ.R. 56(C) provides that before summary judgment may be granted, it

         must be determined that (1) no genuine issue as to any material fact
Stark County, Case No. 2018CA00027                                                         4


      remains to be litigated, (2) the moving party is entitled to judgment as a

      matter of law, and (3) it appears from the evidence that reasonable minds

      can come to but one conclusion, and viewing such evidence most strongly

      in favor of the nonmoving party, that conclusion is adverse to the party

      against whom the motion for summary judgment is made. State ex. rel.

      Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

      citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

      466, 472, 364 N.E.2d 267, 274.



      {¶ 13} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

      {¶ 14} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:



      It is well established the party seeking summary judgment bears the burden

      of demonstrating that no issues of material fact exist for trial. Celotex Corp.

      v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).

      The standard for granting summary judgment is delineated in Dresher v.

      Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party seeking summary

      judgment, on the ground that the nonmoving party cannot prove its case,

      bears the initial burden of informing the trial court of the basis for the motion,
Stark County, Case No. 2018CA00027                                                      5


      and identifying those portions of the record that demonstrate the absence

      of a genuine issue of material fact on the essential element(s) of the

      nonmoving party's claims. The moving party cannot discharge its initial

      burden under Civ.R. 56 simply by making a conclusory assertion the

      nonmoving party has no evidence to prove its case. Rather, the moving

      party must be able to specifically point to some evidence of the type listed

      in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

      no evidence to support the nonmoving party's claims. If the moving party

      fails to satisfy its initial burden, the motion for summary judgment must be

      denied. However, if the moving party has satisfied its initial burden, the

      nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

      set forth specific facts showing there is a genuine issue for trial and, if the

      nonmovant does not so respond, summary judgment, if appropriate, shall

      be entered against the nonmoving party."          The record on summary

      judgment must be viewed in the light most favorable to the opposing party.

      Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.



      {¶ 15} Here, appellee moved for summary judgment based on causation, i.e, that

appellant failed to demonstrate that the three new conditions she sought to claim existed

and were proximately caused by her workplace injury.

      {¶ 16} “[I]n order to establish a right to workmen's compensation for harm or

disability claimed to have resulted from an accidental injury, it is necessary for the

claimant to show by a preponderance of the evidence not only that his injury arose out of
Stark County, Case No. 2018CA00027                                                        6


and in the course of his employment but that a direct or proximate causal relationship

existed between his accidental injury and his harm or disability; and where medical

evidence is necessary to establish such relationship, that evidence must show that his

accidental injury was or probably was a direct or proximate cause of the harm or disability.

* * * ” Fox v. Industrial Comm., 162 Ohio St. 569, 576, 125 N.E.2d 1 (1955).

       {¶ 17} “Except as to questions of cause and effect which are so apparent as to be

matters of common knowledge, the issue of causal connection between an injury and a

specific subsequent physical disability involves a scientific inquiry and must be

established by the opinion of medical witnesses competent to express such opinion. In

the absence of such medical opinion, it is error to refuse to withdraw that issue from the

consideration of the jury.” Darnell v. Eastman, 23 Ohio St.2d 13, 261 N.E.2d 114 (1970)

syllabus.

       {¶ 18} In order to be admissible, expert testimony must comply with the Ohio Rules

of Evidence. The admissibility of expert testimony is governed by Rule 702 of the Ohio

Rules of Evidence, which provides as follows:



       A witness may testify as an expert if all of the following apply:

       (A) The witness' testimony either relates to matters beyond the knowledge

       or experience possessed by lay persons or dispels a misconception

       common among lay persons;

       (B) The witness is qualified as an expert by specialized knowledge, skill,

       experience, training, or education regarding the subject matter of the

       testimony;
Stark County, Case No. 2018CA00027                                                         7


       (C) The witness' testimony is based on reliable scientific, technical, or other

       specialized information. To the extent that the testimony reports the result

       of a procedure, test, or experiment, the testimony is reliable only if all of the

       following apply:

       (1) The theory upon which the procedure, test, or experiment is based is

       objectively verifiable or is validly derived from widely accepted knowledge,

       facts, or principles;

       (2) The design of the procedure, test, or experiment reliably implements the

       theory;

       (3) The particular procedure, test, or experiment was conducted in a way

       that will yield an accurate result.



       {¶ 19} Trial courts utilize Evid. R. 702 to perform a gatekeeping function through

which they ensure that expert testimony is sufficiently relevant and reliable. Valentine v.

Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, reconsideration denied by

111 Ohio St.3d 1418, 2006-Ohio-5083, 854 N.E.2d 1095, at ¶ 17.

       {¶ 20} Appellee, in its motion for summary judgment argued appellant had not

established that her named experts were qualified to testify regarding the alleged

conditions, and had failed to set forth any competent medical evidence to establish the

conditions she claimed existed or were connected to her workplace accident. At issue are

Evid. R. 702(B) and Evid. R. 702(C); whether Dr. Scheatzle and optometrist Grant are

qualified to testify regarding traumatic brain injury, and whether their conclusions are

based upon reliable scientific, technical, or other specialized information.
Stark County, Case No. 2018CA00027                                                          8


       {¶ 21} While appellant complains appellee failed to produce any evidence to

support its assertion that appellant's experts were unqualified to testify pursuant to Evid.R.

702, this was not appellee's burden. "While a nonmoving party has no burden of proof in

opposing a motion for summary judgment, when presented with a motion for summary

judgment properly supported showing no issue of fact exists and that the moving party is

entitled to judgment as a matter of law, the nonmoving party does have a burden to supply

evidentiary materials to support his position that a genuine issue of fact exists." Beard v.

Mayfield, 73 Ohio App.3d 173, 176-177, 596 N.E.2d 1056 (10th Dist. 1991) citing Mathis

v. Cleveland Pub. Library, 9 Ohio St.3d 199, 459 N.E.2d 877 (1984).

       {¶ 22} We have reviewed the record and find it devoid of any information

demonstrating either professional is competent to testify to the claimed conditions, or their

connection to the workplace injury. Without competent expert testimony, appellant is

unable to prove proximate cause, and without proximate cause, the appellant is unable

to prove all the elements of her cause of action. The trial court thus properly granted

appellee's motion for summary judgment.
Stark County, Case No. 2018CA00027                                                   9


      {¶ 23} Appellant's sole assignment of error is overruled, and the judgment of the

Stark County Court of Common Pleas is hereby affirmed.



By Wise, Earle, J.

Gwin, P.J. concur and

Hoffman, J. concurs separately.




EEW/rw
Stark County, Case No. 2018CA00027                                                         10

Hoffman, J., concurring

         {¶24} I concur in the majority’s disposition of Appellant’s appeal.1          I write

separately to note Appellee’s reliance on the fact Dr. Scheatzle’s [conceded]

misstatement of Appellant’s claim had been allowed for “traumatic brain injury” renders

his opinion insufficient to support Appellant’s claim gives me pause.

         {¶25} The majority states the original allowed claims are not at issue here.

(Majority Opinion at ¶3). While technically correct, I think they do arguably bear on the

sufficiency of Dr. Scheatzle’s opinion. Appellant’s claim had already been allowed for

concussion with a brief loss of consciousness, contusion scalp, laceration scalp, occipital

neuralgia cervical syndrome, and large left parietal occipital hematoma posteriorly,

among others. It would be reasonable to generally characterize these allowed claims, as

a whole, resulted in “traumatic brain injury” even though the claim was never specifically

allowed as such. Had Dr. Scheatzle’s report indicated there was a direct correlation

between Appellant’s allowed conditions as set forth above and a diagnosis of “traumatic

brain injury with convergence, [sic] insufficiency, and fusion with defective stereopsis,” I

believe such would have been sufficient to withstand summary judgment. However, in

the absence of any evidence submitted by Appellant to so clarify Dr. Scheatzle’s report,

and because Appellant had failed to identify any other medical




1   I agree Optometrist Dr. Grant is not qualified to opine regarding traumatic brain injury.
Stark County, Case No. 2018CA00027                                                 11


expert(s) to support her claim for allowance of additional conditions, I concur in the

majority’s decision to affirm the trial court.




                                                 ________________________________
                                                 HON. WILLIAM B. HOFFMAN
