[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.
