King v. Niswonger

2014 Ohio 859

MARTY R. KING, et al., Plaintiffs-Appellees v. SYLVIA G. NISWONGER Defendant-Appellant

Appellate Case No. 2013-CA-1 Trial Court Case No. 11-CV-421

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY

Rendered: March 7, 2014

(Civil Appeal from

Common Pleas Court)

OPINION

KEITH FABER, Atty. Reg. #0055354, and GEORGE MOORE, Atty. Reg. #0082391, Faber & Associates, 7706 State Route 703, Celina, Ohio 45822

Attorney for Plaintiffs-Appellees

STEVEN O. DEAN, Atty. Reg. #0009095, Young & Alexander Co., L.P.A., 130 West Second Street, Suite 1500, Dayton, Ohio 45402

Attorney for Defendant-Appellant

HALL, J.,

{¶ 1} Sylvia Niswonger appeals the final judgment entered against her in plaintiff-appellee Marty King's action to recover damages he suffered when Niswonger's carcollided with his truck. Finding no error, we affirm.

I. FACTS

{¶ 2} On July 25, 2009, King had stopped his Ford Ranger pickup truck on Ohio State Route 49 to make a turn when a car driven by Niswonger rear-ended him. She had been talking on her cell phone. Paramedics from Greenville Township Rescue treated King at the scene and transported him to the Wayne Hospital Emergency Room where he was examined by an emergency-room physician and his cervical, thoracic, and lumbar spine (in lay terms, neck, mid back, and low back) were x-rayed. Based on his examination and the x-rays, the physician concluded that all three areas of King's spine were strained. King was released from the hospital the same day. Two days later, he sought treatment from his long-time chiropractor, Dr. Alex Warner. King received regular treatments from Dr. Warner and later from Dr. Warner's associate, Dr. Kyle Lehman, until February 2010. Six months later, in August 2010, King again began regular treatments.

{¶ 3} In July 2011, King sued Niswonger for damages—medical expenses, pain and suffering, the detrimental effect of his injuries on his daily activities, and loss of income. Niswonger admitted that she was negligent, and issues of causation and damages were tried to a jury. King presented the testimony of six witnesses. The paramedic who treated King testified about King's complaints at the scene of the accident. Drs. Warner and Lehman gave expert medical testimony about the injuries to King's spine. King's business accountant, Robert Lewis, gave expert testimony about the decline in profits that King's company, King Motors, experienced after the accident. King himself testified about King Motors too. King explained that the company consists mostly of just him. He goes to car auctions where he buys cars and then resells them. King testified that at each auction he must physically inspect numerous cars to decide which ones hewants to bid on. This requires lots of kneeling, bending, and crawling under cars. King talked about how his neck and back injuries have affected these activities as well as his personal activities. Jared King, King's son, testified also about how his father's injuries have affected his life. King submitted around 45 exhibits supporting his claim for damages. Niswonger did not call any witnesses and submitted two exhibits.

{¶ 4} On King's motion, at the close of all evidence, the trial court directed a verdict for King on three causation issues—whether he incurred past medical expenses, whether he incurred past pain and suffering, and whether the injuries from the accident negatively affected his past daily activities. The court gave the jury an interrogatory that listed eight types of losses and injuries and instructed the jury that it must award something for the three losses on which a verdict had been directed and that it may award an amount for any other loss or injury that it finds King incurred or will incur. The jury awarded King something for each loss and injury listed on the interrogatory. The completed interrogatory looks like this:

a. Past Medical Expenses $5,147.00

b. Past Pain and Suffering $2,625.00

c. [E]ffect on Past Daily Activities $1,000.00

d. Past Lost Income, if any $60,502.00

e. Future Medical Expenses, if any $21,600.00

f. Future Pain and Suffering, if any $20,250.00

g. [Effect on Future Daily Activities, if any $5,000.00

h. Future Lost Income, if any $70,000.00

Total (a + b + c + d + e + f + g + h) $186,124.00

(to be written on General Verdict Form)¹

{¶ 5} Niswonger appealed.

II. ANALYSIS

{¶ 6} Niswonger presents five assignments of error for our review. The first challenges the admission of some of Robert Lewis's opinions, which Niswonger says were not disclosed to her before trial. The second challenges a limitation that the trial court imposed on Lewis's cross-examination testimony. The third challenges the manifest weight of the evidence supporting the damage award. The fourth challenges the directed verdicts. And the fifth assignment of error challenges the jury interrogatory.

A. Lewis's "Undisclosed" Opinions

{¶ 7} Niswonger argues in the first assignment of error that certain of Lewis's expert opinions should have been excluded either because he failed to disclose them during his discovery deposition or because King failed to supplement Lewis's deposition testimony with them. Although the deposition transcript is physically in the record before us, it was not formally made a part of the trial court's proceedings. So we must first determine whether the transcript is part of the appellate record.

1. The deposition transcript

{¶ 8} After the trial court entered the final judgment, Niswonger filed a motion, with the deposition transcript attached, asking the court to enter the transcript as a trial exhibit. The court did not rule on the motion, saying that although it may have reviewed the transcript it did not remember doing so. The trial court instead deferred the decision to us to decide in light of the trial transcript.

{¶ 9} King contends that the deposition transcript is not properly part of the appellate record. For her part, Niswonger says that she "has not requested th[is] Court to review a deposition that is not part of the record."² She says that the relevant deposition testimony is quoted in the trial transcript. Because we think that the deposition transcript "will assist the Court of Appeals in reviewing the error, if any, in its entirety versus having only snippets of the referenced transcript during conversation of the Court and counsel,"³ we consider the issue.

{¶ 10} "App.R. 9(E) grants an appellate court the power to conform the record so that material inadvertently omitted is included. The rule is to be construed liberally." In re Estate of Reeck, 21 Ohio St.3d 126, 127, 488 N.E.2d 195 (1986). An appellate court may exercise this power sua sponte. In re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109, 821 N.E.2d 568, ¶ 19. Only material that was part of the trial court's proceedings may be added to the record. Cincinnati Ins. Co. v. Jacob, 2d Dist. Montgomery No. 25407, 2013-Ohio-2573, ¶ 13. Here, after reviewing the trial transcript, we find that the deposition transcript was a part of the trial court's proceedings. Statements made by the trial court indicate that the court read the transcript at least in part.⁴ Also, we believe that the transcript was inadvertently omitted. At oral arguments, Niswonger's attorney indicated that he mistakenly failed to file it during the trial.

{¶ 11} Because we find that the deposition transcript was before the trial court when it decided whether to admit the objected-to opinions and because we believe that the transcript's omission was inadvertent, we consider the transcript part of the appellate record. Compare Reeck at 127 (finding that an insurance policy was before the trial court when it decided the case andfinding that the policy's omission was inadvertent, where the trial court had found that the proceeds were paid under the policy and had referred to the policy by number in its judgment entry).

2. The disputed opinions

{¶ 12} Niswonger contends that either Lewis failed to disclose certain expert opinions during his deposition or King failed to supplement the deposition testimony with them. "[T]he admission or exclusion of evidence is within the sound discretion of the trial court[,] and * * * unless the trial court clearly abused its discretion and a party was materially prejudiced as a result, reviewing courts should be slow to interfere." (Citation omitted.) Waste Mgt. of Ohio, Inc. v. Mid-America Tire, Inc., 113 Ohio App.3d 529, 533, 681 N.E.2d 492 (2d Dist.1996).

{¶ 13} "The testimony of a party's expert is typically excluded for failure to disclose the subject matter of the expert's testimony where that subject matter is revealed for the first time at trial and the opposing party had no reason to anticipate it." Fetters v. St. Francis/St. George Hosp., Inc., 1st Dist. Hamilton No. C-990410, 2000 WL 282372, *3 (Mar. 17, 2000), citing Walker v. Holland, 117 Ohio App.3d 775, 788, 691 N.E.2d 719 (2d Dist.1997). Civ.R. 26(E)(1)(b) provides in part that "[a] party who has responded to a request for discovery * * * is under a duty seasonably to supplement his response with respect to any question directly addressed to * * * the identity of each person expected to be called as an expert witness at trial and the subject matter on which he is expected to testify." "The purpose of this rule is to prevent trial by ambush. If discovery is to serve its purpose, the parties must be entitled, upon the unveiling of a contention, to a reasonable opportunity to prepare to defend against it." Waste Mgt. at 533, citing Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367, 371, 540 N.E.2d 44 (1986). "Civ.R. 26(E)(1)(b) does not require a party to give an opposing party notice of every nuance of an expert's opinion." Id. Rather,it "require[s] supplementation of the subject matter on which an expert is expected to testify." (Citation omitted.) Id.

{¶ 14} Niswonger challenges the admission of Lewis's opinions on the gross profits of King Motors, his opinions based on...