[Cite as Ogolo v. Greater Cleveland Regional Transit Auth., 2013-Ohio-4921.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99675



                                       PETER OGOLO
                                                                   PLAINTIFF-APPELLANT

                                                     vs.

                  GREATER CLEVELAND REGIONAL
                      TRANSIT AUTHORITY
                                                                   DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-782057


        BEFORE: Celebrezze, J., Stewart, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: November 7, 2013
ATTORNEY FOR APPELLANT

Ronald A. Apelt
Apelt Law Firm, L.L.C.
20600 Chagrin Boulevard
Suite 400
Shaker Heights, Ohio 44122


ATTORNEY FOR APPELLEE

Kathleen M. Minahan
Greater Cleveland Regional Transit Authority
Root-McBride Building
6th Floor
1240 West 6th Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Plaintiff-appellant, Peter Ogolo, appeals from the judgment of the common

pleas court granting summary judgment in favor of defendant-appellee, Greater Cleveland

Regional Transit Authority (“GCRTA”).         After a careful review of the record and

relevant case law, we affirm the judgment of the trial court.

                           I. Factual and Procedural History

       {¶2} On September 17, 2008, appellant was a passenger on a bus owned and

operated by GCRTA that was traveling on Euclid Avenue in Cleveland, Ohio, when it

struck a cement barrier in the road. Appellant was seated in the rear bench seat on the

bus and alleges that when the bus impacted the barrier, the collision caused his head to

strike the back of the plastic seat, and he subsequently tumbled forward into the aisle of

the bus, landing on his left shoulder and again striking his head on the floor of the bus.

Cleveland emergency medical services (“EMS”) was called to the scene, and appellant

was transported to the emergency room at St. Vincent Charity Hospital, where he

complained of dizziness and headache.

       {¶3} Approximately four weeks after the incident, appellant consulted a

neurologist at MetroHealth Medical Center. Reading his symptoms from a computer

printout on head injuries that he brought with him to the appointment, appellant

complained he had been experiencing blurred vision, dizziness, and headaches since the

accident.   The neurologist noted that “significant psychogenic findings on exam”
rendered appellant’s exam unreliable.        The neurologist concluded that “many of

[appellant’s] symptoms are related to depression and anxiety.” An MRI of his head taken

that same day revealed “nonspecific periventricular white matter changes with age-related

microvascular changes considered most likely.”

       {¶4} In December 2009, appellant followed up with a second neurologist at

MetroHealth. That neurologist also found appellant’s exam “reflective of a psychogenic

cause for the patient’s complaints.” He advised appellant that his complaints were stress

induced.    Accordingly, the neurologist referred appellant to a psychiatrist, whom

appellant has seen monthly since the initial consultation.

       {¶5} On May 7, 2012, appellant filed a complaint for negligence against GCRTA,

alleging that he suffered injuries as a result of the GCRTA employee’s failure to safely

operate the bus. On December 14, 2012, GCRTA filed a motion for summary judgment

arguing that appellant could not prevail on his negligence claim as a matter of law based

on his failure to produce an expert medical report as required by Loc.R. 21.1 of the Court

of Common Pleas of Cuyahoga County, General Division. On February 25, 2013, the

trial court granted GCRTA’s motion for summary judgment, agreeing that appellant could

not prevail on his negligence claim without expert testimony to substantiate and

proximately relate his claimed injuries to the bus accident.

       {¶6} Appellant now brings this timely appeal, raising two assignments of error for

review.

                                  II. Law and Analysis
       {¶7} In his first assignment of error, appellant argues that

       the trial court erred in granting [GCRTA’s] motion for summary judgment
       since genuine issues of material fact existed demonstrating that [appellant]
       was not required to produce medical expert testimony to show that he
       sustained a head injury from this motor vehicle accident.

                                  A. Standard of Review

       {¶8} Appellate review       of summary judgment is de novo, governed by the

standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,

833 N.E.2d 712, ¶ 8. Accordingly, we afford no deference to the trial court’s decision

and independently review the record to determine whether summary judgment is

appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637,

¶ 12 (8th Dist.). Under Civ.R. 56(C), summary judgment is proper when the moving

party establishes that

       (1) no genuine issue of any material fact remains, (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 construing the

       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. Duncan v. Mentor City Council, 105 Ohio St.3d 372,

       2005-Ohio-2163, 826 N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc.,

       50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

Kirkwood v. FSD Dev. Corp., 8th Dist. Cuyahoga No. 95280, 2011-Ohio-1098, ¶ 8.

                            B. Appellant’s Negligence Claim
       {¶9} In a negligence action, the plaintiff must prove that the defendant owed a

duty to the plaintiff and that the defendant breached that duty, which proximately caused

the injury to the plaintiff. Strother v. Hutchinson, 67 Ohio St.2d 282, 287, 423 N.E.2d

467 (1981).

       {¶10} Proximate cause is defined as “an event that which in a natural and

continuous sequence, unbroken by any new, independent cause, produces that event and

without which the event would not have occurred.” Aiken v. Ohio Indus. Comm., 143

Ohio St. 113, 117, 53 N.E.2d 1018 (1944). “This definition encompasses a sense of ‘but

for’ in that an original wrongful or negligent act in a natural and continuous sequence

produces a result that would not have taken place without the act.” Sabolik v. HGG

Chestnut Lake L.P., 180 Ohio App.3d 576, 2009-Ohio-130, 906 N.E.2d 488, ¶ 21 (8th

Dist.). Accordingly, proximate cause is “that without which the accident would not have

happened, and from which the injury or a like injury might have been anticipated.”

Jeffers v. Olexo, 43 Ohio St.3d 140, 143, 539 N.E.2d 614 (1989), quoting Corrigan v.

E.W. Bohren Transport Co., 408 F.2d 301, 303 (6th Cir.1968).

       {¶11} In its motion for summary judgment, GCRTA argued that without

competent medical testimony, appellant was unable to establish that his alleged injuries

were the proximate result of the bus accident, and therefore his negligence claim must fail

as a matter of law.

       {¶12} On appeal, appellant contends that he was not required to provide medical

expert testimony to establish proximate cause in this matter because it is common
knowledge that if a person strikes his head during a vehicular accident, a closed head

injury could occur.

       {¶13} Whether the plaintiff is required to provide medical expert testimony

regarding an injury depends on the causal connection between the injury and disability.

In Darnell v. Eastman, 23 Ohio St.2d 13, 261 N.E.2d 114 (1970), the Ohio Supreme

Court held:

              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 for the jury.

Id. at syllabus.

              It is when the internal complexities of the body are at issue that we
       generally initiate the metamorphosis in the evidential progression where
       medical testimony moves from the pale of common knowledge matters and
       within layman competency where expert testimony is not required, to those
       areas where such testimony is more appropriate and indeed most necessary
       for the trier of fact to understand the nature and cause of the injuries
       alleged.

Wright v. Columbus, 10th Dist. Franklin No. 05AP-432, 2006-Ohio-759.

       {¶14} While we agree that in some instances the causal nexus between an accident

and the alleged injury is so clear as to obviate the need for expert testimony in a personal

injury claim, such is not the case here. In the case at hand, appellant alleges that as a

result of the bus accident, he suffered a closed head injury and continues to experience

reoccurring headaches, blurred vision, dizziness, memory loss, and depression. In our
view, few injuries could be more “internal and elusive” than a closed head injury

unaccompanied by any observable, external signs of trauma. This is particularly true in

this case, where appellant’s treating physicians opined that appellant’s symptoms had a

psychogenic, as opposed to physical, basis. Consequently, the question of the causal

connection between the bus accident and appellant’s alleged injuries are peculiarly within

the scope of expert scientific inquiry.

       {¶15} Since expert medical testimony was required to establish proximate cause of

the alleged injuries in this instance, and because appellant did not present any expert

medical testimony with respect to this issue, we conclude that the trial court did not err in

granting GCRTA’s motion for summary judgment.

       {¶16} Accordingly, we overrule the first assigned error.

                                      C. Civil Rule 56(C)

       {¶17} In his second assignment of error, appellant argues that “the trial court erred

in granting [GCRTA’s] motion for summary judgment since the trial court improperly

considered and utilized evidence not permitted under Civ.R. 56 in reaching its decision.”

Specifically, appellant argues that the various medical records attached to GCRTA’s

motion for summary judgment were impermissible under Civ.R. 56(C) and that it was

therefore error for the trial court to consider the same. These exhibits, according to

appellant, are purportedly unsworn, uncertified copies of medical records relating to

appellant and his alleged injuries.
       {¶18} Civ.R. 56(C) controls the materials that the court may consider when it

determines whether summary judgment is appropriate. The rule directs the court to

consider only “the pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if

any, timely filed in the action.” See Civ.R. 56(C).

       {¶19} In regard to medical records, it is well-established that where such material

submitted is not sworn, certified, or put in evidence by way of affidavit, it does not

qualify as documentary evidence under Rule 56(C) and should not be considered by the

trial court. See Citizens Ins. Co. v. Burkes, 56 Ohio App.2d 88, 95-96, 381 N.E.2d 963

(1978), citing Olverson v. Butler, 45 Ohio App.2d 9, 340 N.E.2d 436 (1975). In the

instant case, two of the three medical records referenced by the trial court in its opinion,

marked Exhibits B and D,1 were not supported by certification or affidavit.2             Therefore,

those medical records were not proper Civ.R. 56(C) evidence because they do not fall into

one of the categories of evidentiary materials listed in that section, nor were they

incorporated and referenced in a properly framed affidavit pursuant to Civ.R. 56(E).


           Exhibit B consisted of a medical report generated by Cleveland EMS on the date of the bus
       1


accident. Exhibit D consisted of a medical report generated by St. Vincent Charity Medical Center
that reflects the results of appellant’s CT scan performed at the hospital on October 20, 2008.

          Exhibit E was also considered by the trial court in its opinion granting summary judgment.
       2


Exhibit E was a medical report generated by MetroHealth Medical Center that reflects appellant’s
neurologic evaluation by Dr. Virginia Edwards on October 22, 2009, and his subsequent evaluation by
Dr. Michael F. Bahntge on December 8, 2009. Although not produced through the discovery
process, Exhibit E was sufficiently incorporated by reference in a properly-framed affidavit pursuant
to Civ.R. 56(E).
Accordingly, the trial court erred in considering Exhibits B and D.             See Widdig v.

Watkins, 4th Dist. Scioto No. 13-CA-3531, 2013-Ohio-3858; but see Parrot v. A.R.E.,

Inc., 5th Dist. Stark No. 2006CA00005, 2006-Ohio-4527, ¶ 37.

       {¶20} Nevertheless, we find the trial court’s consideration of Exhibits B and D to

be harmless because they were merely used to establish that appellant’s alleged head

injury did not include outward signs of trauma such as cuts or bruising, an issue of fact

that appellant did not dispute in his deposition testimony and does not dispute in this

appeal.   As discussed, without establishing the existence of a closed head injury

accompanied by observable, external signs of trauma, appellant was required to present

expert medical testimony.       Therefore, the trial court’s consideration of improper

documentary evidence in this matter did not impact the trial court’s determination that

appellant failed to present genuine issues of material fact on the issue of causation.

       {¶21} Appellant’s second assignment of error is overruled.

       {¶22} Based on the foregoing, we affirm the trial court’s judgment.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas 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.
FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, A.J., and
SEAN C. GALLAGHER, J., CONCUR
