COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69057 CINDY FAZIO, : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION UNIVERSITY CIRCLE, INC., : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 27, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-267848 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: KENNETH C. PODOR, Esq. JUDSON J. HAWKINS, Esq. DAVID W. REUVEN, Esq. Kuepper, Walker, Hawkins & Chulick Podor & Associates Skylight Office Tower Chagrin Plaza East 1660 West Second Street 23811 Chagrin Blvd. Suite 480 Suite 140 Cleveland, Ohio 44113 Beachwood, Ohio 44122 - 2 - O'DONNELL, P.J.: Cindy Fazio appeals from a judgment of the Common Pleas Court entered pursuant to a jury verdict in favor of University Circle, Inc. and from denial of her motion for judgment notwithstanding the verdict on personal injury claims arising out of injuries she allegedly sustained while riding as a passenger on a University Circle bus. In her complaint, she alleges that she fell when the bus ran over a curb while making a turn. University Circle maintained that its driver, Maarafu Ojo, swerved the bus to avoid a car which resulted in the bus driving over the curb. Following trial, the jury returned a defense verdict and Fazio filed a motion for judgment n.o.v. which the trial court denied. Fazio now appeals and raises four assignments of error for review. The first assignment of error states: I. THE DENIAL OF A MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT BY THE TRIAL COURT IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL AND IS AN ABUSE OF DISCRETION. Fazio contends that the jury verdict is against the manifest weight of the evidence and therefore the trial court erred in denying her motion for judgment notwithstanding the verdict. - 3 - University Circle maintains that the verdict was not against the manifest weight of the evidence because sufficient evidence exists to support the verdict and therefore the trial court properly denied Fazio's motion. Thus, the issue presented for our review is whether the trial court properly denied Fazio's request for judgment notwithstanding the verdict in this case. Civ. R. 50 (B) states in part: ***not later than fourteen days after entry of judgment, a party may move to have the verdict and any judgment entered thereon set aside ***. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment. If the judgment is reopened, the court shall either order a new trial or direct the entry of judgment, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence. (Emphasis added.) In Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App.3d 181, the court stated: The same test is used for a motion for judgment notwithstanding the verdict and a motion for a directed verdict. The trial judge must construe the evidence most strongly in favor of the non- movant and if upon all the evidence there is substantial evidence upon which reasonable minds may reach different conclusions, the motion must be denied. The trial judge does not determine the weight of the evidence or the credibility of the witnesses, and although he examines the materiality of the evidence, he does not look at the conclusions to be drawn. (Citations omitted.) In this instance, the bus driver, Maarafu Ojo, testified that as the bus approached the intersection of Abbington and Euclid, an automobile entered the intersection from the left - 4 - which caused him to swerve slightly to the right, apply the brakes and drive over the curb to avoid a collision with that vehicle. Further, Brent George, a bus driver-trainee on the bus that day, testified at the time the bus hit the curb, Fazio was seated but then stood up after the bus grazed the curb and thereafter fell backwards into George's arms. George also testified that immediately following the incident, Ojo told him that a car entering the intersection caused him to go over the curb. Fazio testified only that she felt the driver swerve the bus and run over the curb. In applying the test in Cardinal, supra, after construing the evidence most strongly in favor of University Circle, the non-movant, we conclude that substantial evidence existed from which reasonable minds could reach different conclusions. Furthermore, Civ. R. 50 states that a judgment notwithstanding the verdict shall not be rendered on the ground that a verdict is against the weight of the evidence. Here, Fazio alleges that the verdict should be in her favor based on the weight of the evidence because there is substantial evidence upon which reasonable minds could reach but one conclusion. This position is not well taken and therefore, the trial court properly denied Fazio's motion for judgment notwithstanding the verdict. Accordingly, this assignment of error is overruled. Fazio's second assignment of error states: - 5 - II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF-APPELLANT IN ADMITTING INTO EVIDENCE EXPERT TESTIMONY WHEN THE MEDICAL REPORT OF SAID EXPERT WAS NOT PROVIDED TO THE PLAINTIFF-APPELLANT AT LEAST THIRTY DAYS PRIOR TO TRIAL. Fazio contends that the trial court erred in permitting University Circle's expert, Dr. Donald Mann, to testify in this case because University Circle did not provide Fazio with a copy of Mann's expert report at least thirty days prior to trial. University Circle maintains that the court did not err in this regard because it provided Fazio a copy of Dr. Mann's initial report and supplemented that report prior to trial. The issue then for review is whether the trial court erred in permitting Dr. Mann to testify at trial. Civ. R. 26(E) states in relevant part: (1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to *** (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. *** (3) A duty to supplement responses may be imposed by order of the court ***. Further, Loc. R. 21.1 of the Court of Common Pleas of Cuyahoga County, General Division concerns the use of expert witnesses at trial and provides in pertinent part: (B) A party may not call an expert witness to testify unless a written report has been procured - 6 - 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 sanction imposed upon a party for non-compliance with Civ. R. 26(E)(1)(b) rests within the discretion of the trial court and the burden of justifying a reason for the exclusion of testimony due to the noncompliance rests with the party who seeks exclusion because it is an "'extreme' sanction." See Cucciolillo v. East Ohio Gas Co. (1980), 4 Ohio App.3d 36. In this instance, Fazio complains that she received the expert report of Dr. Mann on April 4, 1995, twenty-eight days prior to the scheduled May 2, 1995 trial date, not the full thirty days as required by Loc. R. 21.1. This prompted Fazio to file a Motion in Limine and to seek a protective order to exclude this testimony at trial. The record reflects that Dr. Mann had examined Fazio on two occasions: December 3, 1992 and March 20, 1995, and University Circle's counsel provided a supplemental report of Dr. Mann's testimony to Fazio's counsel on March 31, 1995, although it apparently was not received a full thirty days prior to the trial as specified in the rule. Here, however, the trial court in the exercise of its discretion, permitted Dr. Mann to testify at trial, finding no substantial prejudice inured to Fazio from this technical non- - 7 - compliance. Upon review, we do not find an abuse of discretion in this determination. Hence, this assignment of error is overruled. The third assignment of error states: III. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE THE TESTIMONY OF A WITNESS WHOSE NAME WAS NOT TIMELY PROVIDED TO OPPOSING COUNSEL. Fazio contends that University Circle did not supply the name of a witness, Brent George, until seventy-two hours prior to trial in violation of Local Rule 21.1 and therefore the trial court should have excluded his testimony at trial. University Circle counters that Fazio called Brent George as her witness and therefore she may not claim prejudice as a result of his testimony. The issue for review then is whether the court erred in permitting Brent George to testify as a witness. The record supports the appellee's contention that Fazio claims prejudice from a witness whom she herself called to testify. Fazio inaccurately argues Brent George is University Circle's witness. Since this assignment of error is factually incorrect and since Fazio has not identified in the record the error on which the assignment is based, this assignment of error is disregarded in accordance with App. R. 12(A) which provides in pertinent part: (2) The court may disregard an assignment of error presented for review if the party raising it - 8 - fails to identify in the record the error on which the assignment of error is based ***. We therefore disregard this assignment of error. Fazio's fourth assignment of error states: IV. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE THE TESTIMONY OF A WITNESS WHEN THE WITNESS READ HIS DEPOSITION AT TRIAL FOR A USE OTHER THAN IMPEACHMENT. Fazio maintains that the trial court erred in permitting a witness to read testimony from that witness's prior deposition. University Circle urges that a witness may be rehabilitated by reading portions of deposition testimony during redirect examination and therefore the court did not err in allowing this testimony. The issue before us for review is whether the trial court erred in allowing a witness to read Fazio's recorded deposition testimony. Evid. R. 801(D) states in relevant part: A statement is not hearsay if: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is *** (b) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, ***. Evid. R. 801(D)(1)(b) allows for the rehabilitation of a witness whose credibility has been attacked on cross-examination through the use of a prior consistent out of court statement made - 9 - by that witness. In Motorist Mut. Ins. Co. v. Vance 21 Ohio App.3d 205, the court stated in its headnote: 2. Because exclusion of prior consistent statements would permit a charge of fabrication without challenge, their admission should be favored to the extent that a generous view should be taken of the entire trial setting to determine if there was sufficient impeachment of the witness to amount to a charge of fabrication or improper influence or motivation. The record in this case reveals Fazio's counsel cross- examined the bus driver, Maarafu Ojo, about inconsistencies between statements he made which were contained in a University Circle police report and his in-court testimony, trying to demonstrate that Ojo had fabricated testimony about the car which Ojo claimed entered the intersection and caused him to swerve. Since Evid. R. 801(D) permits the rehabilitation of a witness whose credibility has been attacked on cross-examination to rebut allegations of recent fabrication, the trial court properly permitted Ojo to read portions of his deposition testimony which were consistent with his direct-examination. This assignment of error is not well taken. For the foregoing reasons, the judgment of the trial court is 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. KARPINSKI, J., and McMONAGLE, J., CONCUR PRESIDING 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- .