COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66747 TONIA LASTER, et al : : Plaintiff-appellees : : JOURNAL ENTRY vs. : and : OPINION JEFFREY LIGHT : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 16, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 230,594 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellees: JACK N. TUROFF Attorney at Law 629 Euclid Avenue Cleveland, Ohio 44114 For defendant-appellant: JAMES L. GLOWACKI Attorney at Law 510 Leader Building Cleveland, Ohio 44114 - 2 - DONALD C. NUGENT, J.: Defendant-appellant, Jeffrey Light, appeals from a judgment of the Court of Common Pleas of Cuyahoga County rendered in favor of plaintiff-appellees, Tonia Laster and Jan Rasoul-Bey, on appellees' claims for personal injuries resulting from an automobile accident. Appellant seeks a review of the trial court's denial of appellant's motion in limine as well as the propriety of the jury verdict. For the reasons that follow, we affirm the judgment of the trial court and the verdict of the jury. I. On September 28, 1990, appellee Tonia Laster was the passenger in an automobile driven by Jan Rasoul-Bey. While driving eastbound on Superior Avenue, appellees were involved in an automobile accident with appellant Jeffrey Light. As a result of the impact with appellant's automobile, appellee Tonia Laster (who was not wearing a seat belt) was thrown against the interior of the vehicle, striking her face. Damage to both vehicles was minimal. After the accident, neither party required immediate medical attention, and the parties followed each other to the nearby police station to fill out an accident report. Later that evening, complaining of pain in her jaw and back, Tonia Laster checked into - 3 - the emergency room of Mt. Sinai Medical Center, where she was treated and released. Appellee claims that as a result of the trauma to her face and jaw, she developed temporal mandibular joint disorder (hereinafter "TMJ"). On April 15, 1992, appellees Tonia Laster and Jan Rasoul-Bey filed a complaint against appellant Jeffrey Light claiming that appellant negligently operated his automobile, causing physical 1 injuries to appellees. Defendant-appellant filed a general denial to plaintiff-appellees' complaint. Shortly thereafter, the parties began normal discovery proceedings including, but not limited to, the filing of interrogatories and the taking of depositions of expert medical witnesses. Pursuant to these discovery proceedings, plaintiff- appellees produced, inter alia, a medical expert report of Dr. James W. Moodt, D.D.S. dated March 9, 1993. It is uncontested that Dr. Moodt's report did not state his expert opinion as to the issues of causation, permanency or prognosis of Ms. Laster's injuries. Dr. Moodt's report stated that he did not have enough information at the time of writing to make opinions as to these issues. Dr. Moodt's report of March 9, 1993 was never supplemented by appellees as to these before the commencement of trial. 1 Specifically, Tonia Laster claimed injury to her face, mouth, jaw, back and hip and pain and suffering. Jan Rasoul-Bey claimed injury to his neck and back and pain and suffering. - 4 - In continuance of discovery, defendant-appellant had Ms. Laster examined by his medical expert, Dr. Ronald H. Bell, D.D.S., on June 7, 1993. Prior to trial, the parties took the videotape trial depositions of the respective expert medical witnesses. The videotape deposition of defendant-appellant's medical expert, Dr. Bell was taken on November 16, 1993. The videotape deposition of plaintiff-appellees' medical expert, Dr. Moodt, was taken on November 17, 1993. Pursuant to Civ.R. 40, these videotape depositions were to be introduced during trial, in lieu of the actual presence of the respective doctors. During the course of his November 16, 1993 videotape deposition, Dr. Bell expressed his opinion relative to the causation, prognosis and permanency of Ms. Laster's injuries. He stated, in pertinent part, as follows: Q: Doctor, based on your experience as an oral surgeon, your review of the medical records, and your examination of the plaintiff, do you have an opinion, based on a reasonable degree of dental certainty and probability, as to the proximate cause of the plaintiff's injuries? DR. BELL: My feeling is that in fact she does have a problem which does need treatment, but that this problem is caused by two things: Number one, by the overwhelming grinding of her teeth, the many years of bruxism of the teeth, and by missing posterior teeth *** that had not been replaced at this time. * * * DR. BELL: I think the prognosis is very good, if in fact she has restoration of her - 5 - bite, replacement of her teeth, restoration of the dimension of her teeth that has been lost by the constant grinding of the teeth, I think if this is restored, which she needs even if she didn't have a problem, that she would be in good condition. During the course of his November 17, 1993, videotape deposition, Dr. Moodt also expressed his opinion relative to the causation, prognosis and permanency of Ms. Laster's injuries. He stated, in pertinent part, as follows: Q: Now, Doctor, with regard to Tonia Laster, after taking a history from her, reviewing the records and also examining her; do you have an opinion, with reasonable degree of profession (sic) dental certainty, as to the causal relationship, if any, between the motor vehicle accident which she described that she had on September 28th, 1990, and your result in finding of TMJ problems? DR. MOODT: I believe that there's no question that her TMJ disorder is a direct result of the motor vehicle accident and the blow to the jaw on the right side that was suffered in that accident. * * * *** I also would consider her prognosis guarded from the aspect that we know that these types of injuries never really heal a hundred percent. * * * *** Long term, what the ends up meaning is that most patients will continue to hear clicking and cracking sounds. Most patients will continue to have - 6 - to wear an appliance at night while they sleep. They might also have occasional pain while eating, and most of our patients have to be careful with what they eat. They have to avoid hard, tough, chewy foods on a long-term basis, because normally those kinds of foods will aggravate the TMJ condition. On November 22, 1993, a jury trial commenced in the Court of Common Pleas of Cuyahoga County. On the morning of trial, defendant-appellant filed a motion in limine with the trial court seeking an order to preclude plaintiff-appellees' counsel from: Presenting any testimony and/or other evidence relative to any and all physical examinations, treatments, and/or consultations performed upon Plaintiff, Tonia Laster, on March 19, 1993. The scope of the requested Motion in Limine includes, but is not limited to, precluding plaintiff from presenting any testimony through proposed medical expert, Dr. Moodt, or any other physician that may have treated Tonia Laster during this period and further precluding plaintiffs from offering into evidence any medical opinion relative to causation, prognosis and/or permanency of TMJ complaints based on treatment during this period, medical records, and/or reports of physicians, hospitals, and/or medical providers that have treated Plaintiff, Tonia Laster from March 19, 1993 to present. Appellant's motion alleged that the appellees failed to produce any subsequent or supplemental medical expert reports from Dr. Moodt relative to the case. On this basis, appellant sought, pursuant to Cuyahoga County Local Rule 21.1, to preclude Dr. Moodt from testifying and/or providing opinions not raised in his (March 13, 1993) evaluation report. Using its discretion, the trial court - 7 - denied appellant's motion in limine and allowed Dr. Moodt's expert medical opinion, in toto, including the issues of causation, prognosis and/or permanency. At the end of the trial, the jury found the defendant- appellant negligent in operating his automobile and returned verdicts in favor of the plaintiff-appellees. Specifically, the jury returned a verdict against defendant in the amount of $10,000 for the injuries suffered by plaintiff-appellee Jan Rasoul-Bey and a verdict against defendant in the amount of $75,000 for the injuries suffered by plaintiff-appellee Tonia Laster. Following the verdict, appellant filed post-judgment motions for a new trial and for remittitur. The trial court denied both of these post-judgment motions. The defendant-appellant appeals the judgment of the trial court, assigning as error the following: I. THE FAILURE TO ENFORCE CUYAHOGA COUNTY LOCAL RULE 21.1 AND OHIO RULE OF CIVIL PROCEDURE 26 CONSTITUTED AN ABUSE OF DISCRETION BY THE TRIAL COURT WHICH PRE- VENTED THE DEFENDANT/APPELLANT, JEFFREY LIGHT FROM RECEIVING A FAIR TRIAL. II. THE VERDICT OF THE JURY ON WHICH THE JUDGMENT WAS RENDERED WAS EXCESSIVE AND GIVEN UNDER THE INFLUENCE OF PASSION AND/OR PREJUDICE. II. - 8 - In his first assignment of error, appellant contends that the trial court abused its discretion in failing to enforce Cuyahoga County Local Rule 21.1 and Civ.R. 26 by denying appellant's motion in limine. Loc.R. 21.1 provides, in pertinent part, as follows: 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. Civ.R. 26(E), provides, in pertinent part, as follows: A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows: (1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (a) the identity and location of persons having knowledge of discoverable matters, and (b) 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. (2) A party who knows or later learns that his response is incorrect is under a duty seasonably to correct the response. (3) A duty to supplement responses may be imposed by order of the court, agreement - 9 - of the parties, or at any time prior to trial through requests for supplementation of prior responses. Both Loc.R. 21.1 and Civ.R. 26 permit the trial court to exercise its discretion in deciding whether or not to enforce a rule of discovery. Further, the trial court has discretion in selecting the sanctions to be used because of noncompliance with Civ.R. 26(E). Cucciolillo v. East Ohio Gas Co. (1980), 4 Ohio App.3d 36. Similarly, Loc.R. 21.1 grants a trial judge discretion to determine whether a party has complied with Loc.R. 21.1 and, in the absence of compliance, to exclude expert testimony. Pang v. Minch, (1990), 53 Ohio St.3d 186; Weyls v. University Hosp. (July 28, 1994), Cuyahoga App. No. 65803, unreported. The trial court should weigh the conduct of the party offering the expert witness along with the level of prejudice suffered by the opposing party attributable to the discovery violation in order to determine the appropriate sanction. Savage v. Correlated Health Serv. (1992), 64 Ohio St.3d 42, 55 (Holmes, J. - dissenting). Such determination and exclusion by the trial court will not be reversed on appeal absent an abuse of discretion. Pang, supra; Weyls, supra; Frank v. Vulcan Materials Co. (1988), 55 Ohio App.3d 153. An abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Tracy v. Merrell Dow Pharmaceuticals (1991), 58 Ohio St.3d 147, 152; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. - 10 - Appellant herein contends that the trial judge's decision to deny his motion in limine and allow the testimony of Dr. Moodt amounted to an abuse of discretion. In the present case, despite the appellees' failure to supplement Dr. Moodt's March 13, 1993 report, the trial court allowed the videotape deposition of Dr. Moodt to be admitted into evidence for the consideration of the jury. In ruling on the admissibility of evidence, a trial court must consider the parties' compliance with Loc.R. 21.1 and Civ.R. 26(E), supra. After such consideration, if the trial court finds that a party did not properly comply with Loc.R. 21.1 or Civ.R. 26(E), it can determine the appropriate sanctions for the party's transgressions. Pang, supra; Cucciolillo, supra. The sanctions ultimately imposed by the trial court will not be reversed by this court absent an abuse of discretion. Id.; see also, David v. Schwarzwald, Robiner, Wolf & Rock (1992), 79 Ohio App.3d 786. Accordingly, this court will affirm the trial court's denial of a motion in limine to bar expert testimony where there is no evidence in the record that the complaining party was actually prejudiced and will reverse the trial court's denial of a motion in limine when prejudice to the complaining party is clearly shown. Schwarzwald, supra; Christopher v. Cleveland Builders Supply Co. (Mar. 2, 1989), Cuyahoga App. No. 55069, unreported. In the present case, we cannot conclude that the trial court abused its discretion. There is no dispute that the appellees - 11 - herein failed to provide a supplementary report to Dr. Moodt's original report. In addition, the record herein does not show any reason for such failure by the appellee. Because of the appellees' failure to properly follow pre- trial procedure, with the filing of appellant's motion in limine, the trial court was faced with three options. One, the trial court could exclude Dr. Moodt's testimony as it pertained to causation, permanency or prognosis. Two, the trial court could grant a continuance to allow the defendant-appellant a chance to re-depose the witnesses. Three, the trial court could allow Dr. Moodt's opinion on causation, permanency and prognosis to be admitted into evidence and shown to the jury. As stated in Schwarzwald, supra, it was within the purview of the trial court, in its discretion, to determine the amount of prejudice presented by this evidence. In reviewing the trial court's decision on this issue, this court must view it in light of the standards set forth in Pang, Tracy, Schwarzwald, and Blakemore, supra. In light of these decisions, and from a thorough review of the record, we cannot find that the decision of the trial court was an abuse of discretion. First, it is clear from the record that appellant knew well in advance of trial that appellees would call Dr. Moodt as an expert witness. Dr. Moodt's name was supplied by the appellees as an expert witness. In addition, the March 13, 1993 report of Dr. Moodt clearly stated that he did not have enough evidence at that - 12 - time upon which to properly give an opinion as to the causation and permanency of Ms. Laster's injuries. Therefore, appellant could not claim that Dr. Moodt's presence as an expert witness was not known to him. Second, appellant could not claim that he was unfairly surprised by Dr. Moodt's deposition testimony. Dr. Moodt was listed as one of appellees' expert witnesses. Appellant had Dr. Moodt's report of March 13, 1993, and knew of appellees' claim relating to the onset of TMJ. Appellant's own expert witness testified to these very same issues the day before. It is a reasonable assumption to conclude that the appellees' expert witness (a well-known TMJ specialist) would discuss the issues of causation, permanency and prognosis relating to appellee-Laster's TMJ disorder -- the issues that are at the very gist of appellees' basis for damages, especially since Dr. Moodt's report indicated that he needed more information before rendering an opinion as to causation and permanency. In addition, the appellant took part in the deposition of Dr. Moodt just a few days before the beginning of trial. Appellant had a complete opportunity to cross-examine Dr. Moodt as to his opinions and testimony on all issues, including the issues of causation, permanency and prognosis of the TMJ disorder. Moreover, the deposition of Dr. Moodt was taken the day after that of appellant's expert witness, Dr. Ronald Bell. In this deposition, Dr. Bell emphatically stated his opinion as to the - 13 - causation, permanency and prognosis of Ms. Laster's injuries, supra. If the appellant truly believed he was prejudiced by the trial court's denial of his motion in limine, he had a right to request a continuance of the trial to re-depose Dr. Moodt. This request was not made. The purpose of the discovery rules is to avoid the element of surprise. However, these rules are not designed to be enforced in a manner that causes undue prejudice due to their noncompliance. See, Huffman v. Hair Surgeons, Inc. (1985), 19 Ohio St.3d 83; Long v. Isakov (1989), 58 Ohio App.3d 46, 51; Kalinoski v. Ford Motor Co., (May 16, 1991), Cuyahoga App. No. 58512, unreported. Appellant may have been surprised by Dr. Moodt's deposition testimony, notwithstanding Dr. Bell's testimony as to causation and permanency the previous day, but the trial court was in the best position to evaluate the potential prejudice of permitting Dr. Moodt's testimony. Third, and most important, the granting of the appellant's motion in limine would have effectively precluded the plaintiffs from presenting evidence regarding the ultimate issues of their case, viz.: (1) the extent of Ms. Laster's injuries; (2) the likelihood that she would experience residuary pain from those injuries; and (3) the probability that these injuries would last for the rest of her lifetime. These are the very issues which the plaintiffs would have to prove at trial in order to have any hopes of collecting any amount of damages for Ms. Laster's injuries. - 14 - Therefore, the trial court's exclusion of Dr. Moodt's testimony as to these issues would have greatly prejudiced the plaintiffs, virtually eliminating the entire heart of their case. Huffman, Kalinoski, supra. In comparison, admitting Dr. Moodt's testimony into evidence had a minor impact on the position of the defendant. The trial court was well aware that the defendant had the chance to more than adequately cross-examine Dr. Moodt. In addition, the trial court was aware that the defendant possessed the testimony of his own expert to refute the opinions of Dr. Moodt. From a thorough review of the record and the totality of the circumstances presented to the trial court, it cannot be said that the trial court abused its discretion pursuant to Loc.R. 21.1 and Civ.R. 26 in denying appellant's motion in limine and allowing the expert testimony of Dr. Moodt to be admitted to the jury. Accordingly, appellant's first assignment of error is overruled. III. In his second assignment of error, appellant questions the jury's verdict awarding $75,000 to appellee Tonia Laster. It is appellant's contention that the trial court erred in not reducing the verdict. Appellant contends the verdict was excessive and given under the influence of passion and prejudice. - 15 - In determining whether passion or prejudice influenced the jury's award, this court must consider the amount of the award and whether damages were induced by (1) incompetent evidence, (2) misconduct by court or counsel at trial, or (3) any other action at trial that may be reasonably said to have swayed the jury. Shelton v. Greater Cleveland Reg. Transit Auth. (1989), 65 Ohio App.3d 665, 682. See, also, Stelma v. Juquilon (1992), 73 Ohio App.3d 377. In Ohio, it has long been held that the assessment of damages is so thoroughly within the province of the jury that a reviewing court is not at liberty to disturb that assessment absent an affirmative finding of passion and prejudice or unless the amount is so manifestly against the weight of the evidence as to show a misconception by the jury of its duties. Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 655; Wilburn v. Cleveland Elec. Illum. Co. (1991), 74 Ohio App.3d 401, 413; see, also, Toledo, Columbus & Ohio River RR. Co. v. Miller (1923), 108 Ohio St. 388, 402-403. Ms. Laster testified that she had intermittent pain and that this pain increased when she talked a great deal or after she had a large meal; two common occurrences in everyday life. Appellee also has a cracking sound in her jaw and a persistent dull pain that she did not experience until the accident. Neither the appellant's medical expert nor appellees' medical expert denies that Ms. Laster suffers from TMJ disorder. Rather, the experts disagree as to the causation of Ms. Laster's TMJ disorder. - 16 - Thus, there is some competent, credible evidence supporting the jury's finding that there was past and future pain and suffering and loss of enjoyment of life. Appellant argues that the small medical bills (under $2,000) and intermittent medical treatment by appellee indicate that the pain and suffering are not severe enough to warrant a verdict of $75,000. Although the amount of medical bills often is a good determinative factor in approximating damages, it is not the only factor. A jury can consider any and all evidence properly presented at trial as to a plaintiff's pain and suffering, loss of enjoyment of life, etc. The amount of the plaintiff's medical bills is only one of many factors to be considered in awarding damages. In the present case, the jury was presented with evidence stating that Ms. Laster would have problems caused by TMJ disorder for the rest of her life. Also, the jury was presented with conflicting expert testimony as to the prognosis of Ms. Laster's TMJ disorder. Appellant's expert, Dr. Ronald Bell, an oral surgeon, stated that it was his opinion that her prognosis was "very good." It was Dr. Bell's opinion that Ms. Laster needed only a few minor oral surgical procedures to correct her problems. (See Dr. Bell's testimony, supra). In contrast, appellees' expert, Dr. James Moodt, a TMJ specialist, testified that Ms. Laster's prognosis was "guarded." It was Dr. Moodt's opinion that Ms. Laster might have to watch the type of food she ate as well as wear - 17 - an appliance at night to control her TMJ disorder. (See Dr. Moodt's testimony, supra). The testimony of these two expert doctors was only part of the overall evidence presented to the jury at trial. After full consideration of all the evidence presented, the jury awarded Ms. Laster $75,000 for her injuries relating to the accident with appellant. The weight to be given the evidence, the credibility of the witnesses and any resolution of conflicts in the evidence are primarily for the trier of fact. State v. DeHass (1967), 19 Ohio St.2d 230; Felden v. Ashland Chem. Co. (1993), 91 Ohio App.3d 48, 63. Upon a thorough review of the record, this court can see no evidence that the jury was wrongfully influenced in such a manner as to warrant our interference with the province of the jury as the trier of fact. Although the jury award seems large in light of the relatively minor medical expenses, it cannot be said that the award was excessive. Evidence was presented to the jury that Ms. Laster will suffer from the trauma of TMJ disorder for the rest of her life. In light of this fact and all other evidence in the record, the jury's $75,000 award is not so manifestly excessive that a conclusion must be drawn therefrom that the award was the product of passion and prejudice. Therefore, this court finds that the verdict herein was supported by the manifest weight of the evidence and was not the result of passion or prejudice. - 18 - Accordingly, appellant's second assignment of error is overruled. IV. On June 28, 1994, appellee Jan Rasoul-Bey filed an App.R. 23 motion for sanctions seeking a determination that the appeal in this matter, as it pertains to his verdict, is frivolous. On July 28, 1994, appellant filed his opposition to appellee's motion. App.R. 23 states as follows: If a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs. App.R. 23 allows a court of appeals to require an appellant to pay reasonable expenses of an appellee, including attorney fees and costs, upon a finding that an appeal is frivolous. Chiropractic Clinic of Solon v. Kutsko (1994), 92 Ohio App.3d 608, 612; In re Estate of Hollingsworth (1989), 58 Ohio App.3d 14, 15. In determining whether an appellant has filed a frivolous appeal, this court must determine whether the appeal presents no reasonable question for review. Talbott v. Fountas (1984), 16 Ohio App.3d 226. We do not find that the instant appeal was frivolous. Thus, we deny appellee Jan Rasoul-Bey's request for attorney fees and costs pursuant to App. R. 23. V. - 19 - In addition, appellee Rasoul-Bey's motion asks this court to grant pre-judgment interest in regards to the verdict of Mr. Rasoul-Bey. The granting of pre-judgment interest is a matter solely within the discretion of the trial court. Furthermore, the Ohio Supreme Court in Cotterman v. Cleveland Elec. Illum. Co. (1987), 34 Ohio St.3d 48, held: *** A motion for prejudgment interest, pursuant to R.C. 1343.03(C), must be made to the trial court following the verdict or decision in the case and in no event later than fourteen days beyond the date of entry. Therefore, a granting of prejudgment interest is not a proper action to be undertaken by an appellate court. Prejudgment interest can only be granted through the sound discretion of the trial court upon a motion made by the party seeking interest filed within fourteen days of the entry of judgment. Accordingly, appellee's request for prejudgment interest is not properly before this court and is therefore denied. - 20 - It is ordered that appellees recover of appellant their 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. SARA J. HARPER, P.J. JAMES M. PORTER, J. CONCUR JUDGE DONALD C. NUGENT N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .