COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67850 JESSIE LEMASTERS, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION TRACI ZULLI : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 248303 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: ARTHUR E. DOMBEK, ESQ. SEAN P. ALLAN, ESQ. LEVEY & GRUHIN MEYERS, HENTEMANN, SCHNEIDER 1468 W. 9th Street, #750 & REA CO., L.P.A. Cleveland, Ohio 44113--1200 815 Superior Ave., N.E. Suite 2100 Cleveland, Ohio 44114 - 2 - DYKE, J.: A car accident with resulting injuries to appellant, Jessie Lemasters, gave rise to the action instituted below. Appellant was seen by Dr. Conomy, appellee's expert, on January 11, 1994. A report was prepared and delivered to appellants on January 19th. Dr. Conomy was deposed on June 3rd. On July 25th, appellants filed a motion in limine to exclude portions of Dr. Conomy's testimony as to matters not included in his report, but communicated to appellants in his deposition testimony. These matters related to the permanency of appellant's injuries, the necessity and duration of treatment, the extent of the injury and diagnosis. Dr. Conomy reviewed additional medical records and appellant's deposition testimony during the period of time following the physical exam, and prior to his deposition. Appellants' motion in limine was denied by the trial court. The trial began on August 1st. The jury returned a verdict in appellants' favor, awarding $1,439.00 for the emergency room care and immediate follow up as well as pain and suffering. Appellants appeal from the ruling denying their motion in limine and assert one assignment of error. I THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS IN ALLOWING THE DEFENSE EXPERT TO GIVE TESTIMONY WHICH WAS NOT REFLECTED IN HIS REPORT AS REQUIRED BY CUYAHOGA COUNTY LOCAL RULE 21.1, PART I(B). Appellants argue that the expert was improperly allowed to testify as to matters which were not included in his January 19th - 3 - report. Appellants claim that they were prejudiced by this testimony as it went directly to the nature and extent of appellant's injuries, the principal issue in the trial. Appellants assert that they were surprised by such testimony and did not have time for their expert to review the new opinions in time to prepare for trial. Appellants arguments are not well taken. Appellant relies upon Loc.R. 21.1(B) pertaining to expert witness testimony which reads 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. After a thorough review of the record, including Dr. Conomy's report and transcribed deposition from June 3rd, we find that no opinion was given during the deposition which differs substantially from the opinions given in his report. The findings contained in the report were that: appellant's nervous system worked normally; that she showed no sign of nerve injury; and, more specifically, that she suffered from, "1. Musculo-skeletal strain, secondary to vehicular trauma; 2. There is no clinical evidence of injury to peripheral nerves, brain or spinal cord." (Dr. Conomy's Report, January 19, 1994). The deposition testimony stated that appellant - 4 - "claimed tenderness along the inside border of her right scapula," (Depo. p.18); showed no nerve injury (Depo. p.27); and that she "had a soft tissue injury, a bump on her shoulder and perhaps on the side of her neck" (Depo. p.29). This is all perfectly consistent with the findings in the prepared report. Appellant complains that the further comments relating to medical reports of subsequent injuries to her wrist and hand were opinions which should have been recorded in a supplemental report. Dr. Conomy's opinion did not change as to the nature and extent of appellant's injury caused by the accident. He stated during the deposition that he found it inconsistent that a woman would give him an oral history of her injury, indicating that she had trouble putting on her coat and playing darts, without telling him that she had cut her hand lifting a sofa several months after the accident and broken her wrist a year after the accident. This comment does not constitute a significant medical opinion. This information should also not come as a surprise to appellant at trial, assuming that she recalls seeking medical attention for her hand and wrist. Dr. Conomy also responded to the question regarding the need for prolonged therapy that it should not be necessary considering the minor nature of her injury. He testified that it should have caused her discomfort for a few days and was not a permanent injury. Appellant can not claim that these are opinions which necessitate a supplemental report, either. It is not inconsistent - 5 - with his prepared report to state that a musculo-skeletal strain should cause discomfort for a few days. We do not find that the trial court committed error in denying appellant's motion in limine. The deposition testimony was not inconsistent with the report, nor did it contain different or new opinions by Dr. Conomy which would cause appellant to be surprised at trial. Appellant was not prejudiced by the expert testimony and may not rely upon Loc.R. 21.1(B) to exclude Dr. Conomy's statements. The court's ruling denying the motion in limine is affirmed. - 6 - It is ordered that appellee recover of appellants her 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 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. SPELLACY, P.J., AND NAHRA, J. CONCUR ANN DYKE JUDGE 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, .