COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67426 DANIEL J. FLESHIN : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION DEBORAH R. ARNOLD, ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court case No. CV-243242 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: RONALD A. RISPO CECIL MARLOWE Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower Cleveland, Ohio 44113-2241 MURRAY D. BILFIELD Bilfield & Sandel 1717 Bond Court Building Cleveland, Ohio 44114 For Defendant-Appellee: JAY S. HANSON 924 Terminal Tower 50 Public Square Cleveland, Ohio 44114 ROBERT S. LEIKIN Leiken & Weberman Co., L.P.A. 23611 Chagrin Boulevard Suite 225 Beachwood, Ohio 44122 - 3 - O'DONNELL, J.: This appeal arises from an automobile accident which occurred on July 9, 1992 on State Rt. 212 near Atwood Lake, Ohio, when Deborah Arnold's 1990 Toyota Tercel, occupied by Arnold and Daniel Fleshin, struck a 1988 Pontiac Grand Am operated by Alzavie Levengood. Neither Arnold nor Fleshin remember who was driving the Toyota at the time of the collision. Fleshin filed this personal injury suit against Arnold and Levengood on November 30, 1992, alleging that Arnold was driving and that Arnold and Levengood caused his injuries. Arnold counterclaimed for property damage and personal injuries against Fleshin, alleging that Fleshin had been driving. Levengood likewise cross and counterclaimed for her injury and damages against both Arnold and Fleshin. Prior to trial all claims of all parties had been resolved except for the Arnold counterclaim which proceeded to jury trial on February 7, 1994. On the morning of trial, Fleshin filed a motion in limine seeking to preclude Arnold's experts, Robert Kelley and Robert Senkar, from testifying on the grounds that neither was qualified as an expert or would testify to a reasonable degree of scientific certainty as to which party was driving, because both had expressed an opinion that "no determination" as to which party was driving could be made with any degree of scientific certainty. The trial court denied the motion in limine as - 4 - untimely, and ruled that both Senkar and Kelley could testify, but only to their previously expressed opinions. At trial, Senkar testified, contrary to both his own earlier opinion and the court's order, that Fleshin had been the driver. The trial judge denied Fleshin's motion for mistrial, but did determine this testimony was not expected and, therefore, ordered it stricken and instructed the jury to disregard it. Arnold's other expert, Robert Kelley, then testified that no determination could be made to any degree of scientific certainty as to whether Arnold or Fleshin operated the vehicle. In his case in chief, Fleshin presented Richard Stanford, an expert, who testified to a reasonable degree of scientific certainty, due to the movement of objects and bodies in the car, the point of impact, the angles of rotation and other indicia, that Arnold was the operator of the vehicle at the time of impact. The jury returned a verdict in favor of Arnold. Fleshin then again moved, unsuccessfully, for a mistrial based on the testimony of Senkar and Kelley. Fleshin now appeals and raises three assignments of error which we will consider individually. I. THE TRIAL COURT ERRED PREJUDICIALLY TO PLAINTIFF WHEN IT FAILED TO EXCLUDE THE TESTIMONY AND OPINIONS OF DEFENDANTS' PROPOSED EXPERTS, ROBERT SENKAR AND ROBERT J. KELLEY, ON THE SUBJECT OF ACCIDENT RECONSTRUCTION FROM THE HEARING OF THE JURY BECAUSE SENKAR ATTEMPTED AND WAS PERMITTED TO OFFER AN OPINION CONTRARY TO HIS PREVIOUSLY STATED OPINION, AND NEITHER WAS QUALIFIED TO TESTIFY. - 5 - Fleshin complains that Senkar and Kelley should have been excluded as expert witnesses on two bases: neither was qualified as an expert, and neither reached a conclusion to a reasonable degree of scientific certainty as to which party was driving the Toyota. Arnold contends that both were qualified to testify, and that their opinion was of some value to the trier of fact. The issue for this court is whether the trial court erred in allowing the testimony of Senkar and Kelley. We begin by analyzing the rule governing expert testimony, Evid. R. 702, which provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. In its recent decision in Scott v. Yates (1994), 71 Ohio St.3d 219, the Ohio Supreme Court offered the following interpretation of that rule at page 221: To qualify as an expert, the witness need not be the best witness on the subject. Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 159. The expert must demonstrate some knowledge on the particular subject superior to that possessed by an ordinary juror. State Auto Mut. Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151, 160. A ruling concerning the admission of expert testimony is within the broad discretion of the trial court and will not be disturbed absent an abuse of discretion. Alexander, supra, at 157. - 6 - Regarding Senkar we find those arguments to be moot since the trial judge struck his testimony and instructed the jury to disregard it. Concerning Kelley, we find on the basis of his curriculum vitae, analysis of the accident scene and previous experience in court as an expert witness, that he is qualified to offer an expert opinion. Furthermore, defendant agrees that the question of passenger position is proper for expert opinion because defendant retained his own expert on the subject. It becomes the task of the jury then, to consider the testimony not only from Kelly but also from all the other experts and to weigh and value those opinions based on their knowledge, skill and experience and the totality of the circumstances presented at trial. Clearly, therefore, to the trier of fact there is utility in Kelley's opinion. On the basis of the foregoing, we find that the trial court did not err in allowing the testimony and this assignment of error is overruled. II. THE TRIAL COURT ERRED PREJUDICIALLY TO THE PLAINTIFF WHEN IT DENIED PLAINTIFF'S MOTION FOR MISTRIAL AFTER THE DEFENDANTS' EXPERT SENKAR WAS PERMITTED TO TESTIFY IN A FASHION CONTRARY TO HIS DEPOSITION TESTIMONY IN VIOLATION OF LOCAL RULE 21.1 AS SET FORTH IN ASSIGNMENT I.E. - 7 - In the second assignment of error Fleshin argues that the court should have granted a mistrial when Senkar testified contrary to his expert report. Arnold believes the court's order striking the testimony and instructing the jury to disregard it was sufficient to negate any prejudice. The issue then becomes whether the court properly denied Fleshin's motion for mistrial. The decision of whether or not to grant a mistrial is within the sound discretion of the trial court. Tracy v. Merrell DOW (1991), 58 Ohio St.3d 147. The possibility of undue prejudice must be examined in light of the entirety of the trial. Hanna v. Redlin Rubbish Removal, Inc. (September 23, 1992), Summit App. No. 15280, unreported. In opening statements, Arnold's attorney informed the jury that her expert would testify that it could not be scientifically determined who was driving the Toyota. Prior to Senkar's testimony the court ruled that Senkar could only testify that the issue of driver identity could not be scientifically proven. During testimony, however, Senkar opined that Fleshin was the driver. The court then gave the following instruction to the jury: At this time I will advise you that the testimony of this last witness, Mr. Senkar, has been stricken. You are hereby ordered and directed not to consider that testimony, to ignore and treat it as though you never heard any of that testimony, including but not limited to the conclusions that he had reached. - 8 - A jury is ordinarily presumed to follow instructions of the court. Lakeside v. Oregon (1978), 435 U.S. 333; Prong v. Minch (1990), 53 Ohio St.3d 186. In this case, the instruction given to the jury, while not model language, was adequate. The trial judge told the jury to disregard the testimony of Senkar, including his conclusions. We therefore find that the trial court did not abuse its discretion in denying Fleshin's motion. Fleshin's second assignment of error is not well taken. III. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT PLAINTIFF'S MOTION FOR NEW TRIAL FOR THE SAME REASONS ARTICULATED ABOVE IN ASSIGNMENTS I THROUGH III. In the third assignment of error Fleshin contends that the trial court should have granted a new trial. This motion is based on the denial of the motion in limine to exclude testimony from Senkar and Kelly resulting in the court striking all of Senkar's testimony. Fleshin moved for a new trial under the following grounds set forth in Civ. R. 59(A): (1) Irregularity in the proceedings of the court *** or abuse of discretion, by which an aggrieved party was prevented from having a fair trial; (2) Misconduct of the *** prevailing party; (6) The judgment is not sustained by the manifest weight of the evidence ***. - 9 - Fleshin recounts the fact that the trial judge denied the motion in limine which permitted both Senkar and Kelly to testify in the case, and believes misconduct occurred when Senkar changed his opinion during testimony before the jury. Having previously found no error on the part of the trial court regarding its action on these matters, we find that the motion for a new trial was not well founded. Appellant's final assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellee(s) recover of appellant(s) 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 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. JAMES D. SWEENEY, P.J., and PORTER, J., CONCUR JUDGE TERRENCE O'DONNELL 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 journaliza- .