COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72671 RAYMOND J. HOCEVAR, ET AL. : : : Plaintiffs-Appellants : : JOURNAL ENTRY v. : AND : OPINION RAMANATH S. RAO : : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-301093 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: JAMES J. McDONNELL ROMNEY B. CULLERS 936 Terminal Tower MARGARET E. AMER Cleveland, Ohio 44113 HERMANN CAHN & SCHNEIDER 1301 East Ninth Street Suite 500 Cleveland, Ohio 44114 -2- KARPINSKI, J.: Plaintiffs-appellants Raymond and Denise Hocevar appeal from a jury verdict awarding them $2,625 in damages against defendant- appellee Ramanath Rao, M.D. Plaintiffs filed this personal injury and loss of consortium action against defendant approximately two years after a January 11, 1994, motor vehicle collision. Immediately prior to the collision, Raymond Hocevar had been driving a Cleveland Heights Sewer Department dump truck with two other employees, Alex Mannerino and Gary McCrone, riding as passengers. The dump truck was struck from behind by Dr. Rao's 1984 Toyota Camry after Hocevar parked it and before the three occupants exited. The dump truck sustained a broken weld to a tailgate support strap, which cost $50 to repair. Dr. Rao stipulated to his negligence and the matter proceeded to a jury trial. The trial court granted Dr. Rao's pretrial motion in limine to exclude evidence from plaintiffs' case concerning injuries allegedly sustained by the two other occupants. Raymond Hocevar, who sought $100,000 in damages, testified that he injured his right knee in the collision. Cross-examination of Hocevar and his physician, Dr. Mark Froimson, ultimately revealed, however, that Hocevar had previously injured the same knee on at least three occasions, had undergone at least one prior operation, and had obtained other treatment for chronic knee problems. The defense theory of the case was that the cause of Raymond Hocevar's right -3- knee problems was degeneration following prior injuries and not the minor impact collision. The record also revealed that Hocevar had filed seven prior workers' compensation claims for injuries to various parts of his body, including some to his knee. Denise Hocevar presented no evidence to support her loss of consortium claim. The jury found in favor of plaintiffs, but awarded only a fraction of Raymond Hocevar's claimed lost wages and current and future medical bills. Plaintiffs timely appeal, raising two assignments of error. Plaintiffs' first assignment of error follows: THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT'S MOTION IN LIMINE EXCLUDING THE PASSENGERS, MANNERINO AND McCRONE, FROM TESTIFYING AS TO THE EXTENT OF THEIR INJURIES. This assignment lacks merit. Plaintiffs argue that the trial court improperly excluded relevant testimony from two passengers concerning their alleged injuries. Their brief on appeal states that one passenger suffered a torn rotator cuff and the other suffered a herniated disk in his neck as a result of the accident. From our review of the record, we conclude that plaintiffs failed to properly preserve this claim of error. The record shows that defense counsel filed a written motion in limine to exclude evidence of other injuries. The trial court conducted a hearing on the motion prior to trial. At the hearing, counsel for plaintiffs referred to one passenger of the dump truck who allegedly suffered a torn rotator cuff, but made no mention of any other passenger or -4- injuries. (Tr. 12.) Granting the motion in limine to exclude evidence of other injuries, the trial court stated as follows: I will the [sic] grant his [defendant's] motion now and we'll see what develops. (Tr. 16.) The record shows that plaintiffs thereafter produced testimony at trial from only one of the two allegedly injured passengers, Mannerino. His testimony was remarkably brief and comprised only three transcript pages. (Tr. 158-160.) Mannerino testified that the collision was a major impact, but he did not mention any injuries to any of the occupants. Counsel for plaintiffs did not present testimony from the other passenger or proffer outside the hearing of the jury any testimony concerning the alleged injuries of the two occupants of the dump truck other than Raymond Hocevar. The Ohio Supreme Court has specifically held that to preserve a claim of error concerning the grant of a motion in limine, the aggrieved party must seek to introduce the evidence at trial by proffer or otherwise. State v. Grubb (1986), 28 Ohio St.3d 199: At trial it is incumbent upon a defendant, who has been temporarily restricted from introducing evidence by virtue of a motion in limine, to seek the introduction of the evidence by proffer or otherwise in order to enable the trial court to make a final determination as to its admissibility and to preserve any objection on the record for purposes of appeal. Id.at syllabus paragraph two. This requirement enables the court, with concrete knowledge of all the circumstances of the case, to correct any error in its prior preliminary pretrial ruling and thus to make a final determination concerning admissibility of the evidence at trial. -5- The record in this case expressly reveals that the trial court's pretrial ruling was preliminary and subject to reexamination upon more complete development of the record at trial. (Tr. 16.) The record unambiguously shows, however, that plaintiffs failed to seek a more informed final ruling concerning admissibility of the disputed evidence by introducing the challenged evidence or proffering the proposed testimony at trial. As in Grubb, plaintiff's failure to do so precludes any claim of error on appeal. Even if plaintiffs had preserved this claim, however, it is well established that a trial court's determination whether to admit or exclude evidence will not be reversed on appeal absent a clear and prejudicial abuse of discretion. O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163. As a result of our review, we conclude that plaintiffs have failed to demonstrate either an abuse of discretion or any resulting prejudice. Evidence Rule 403(A) specifically mandates that evidence be excluded when its probative value is outweighed by its tendency to confuse the issues or mislead the jury. We agree with plaintiffs that the injuries allegedly suffered by the two passengers were indirectly relevant in this case. However, we cannot find that the trial court abused its discretion by excluding evidence concerning these alleged injuries. To constitute an abuse of discretion, the trial court's ruling must be arbitrary, unreasonable and so palpably and grossly violative of fact and logic as to indicate perversity, passion, or -6- prejudice. Nakoff v. Fairview General Hosp. (1996), 75 Ohio St.3d 254, 256. The trial court's determination to exclude evidence relating to two other alleged collateral injuries does not satisfy this stringent standard. The trial court could properly conclude that permitting testimony concerning the injuries the two other passengers claimed to have would open up a sink hole the case could easily fall into, for defense counsel would probably challenge these injuries and thus this line of questioning would open up collateral issues. The court could properly refuse to be led down two more garden paths. Such evidence tends to distract the jury from the central issue in this case the extent of Raymond Hocevar's injury. Under the circumstances, the trial court could properly find that the excluded evidence would unduly confuse the issues or mislead the jury. The fact that another judge or the appellate court might have reached a different conclusion than that of the trial court does not establish that the trial court abused its discretion. Kitchens v. McKay (1987), 38 Ohio App.3d 165, 169. Accordingly, plaintiffs' first assignment of error is overruled. Plaintiffs' second assignment of error follows: THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment lacks merit. Plaintiffs argue that the jury's verdict was against the manifest weight of the evidence. He argues the verdict was -7- insufficient to compensate him for medical bills, lost wages, future medical care, and past and future pain and suffering. This case boiled down to a textbook credibility contest concerning the extent of Hocevar's injuries. Raymond Hocevar testified that he seriously injured his right knee in this accident. However, a jury could reasonably conclude the impact was minimal because a heavy dump truck was hit by a light compact car and the total cost to repair the physical damage to the dump truck was only $50. The damage to defendant's vehicle depicted by the photographs also appears minimal. Moreover, Hocevar initially failed to mention a long series of prior injuries and treatments to the same knee. Hocevar apparently injured the same knee in 1983, 1987, and 1991. His knee was first operated on in 1983, and three physicians other than Dr. Froimson, the one who testified by deposition at trial, treated various knee problems prior to the 1994 compact car-dump truck incident. At oral argument on appeal, plaintiff maintained that because he provided workers' compensation claim numbers he did not omit his prior history. This argument is unpersuasive because of Hocevar's statement during his deposition that he had never injured his right knee before, his denial during the deposition of prior surgery to his right knee, and his denial at trial that he had received any treatment. The record shows otherwise. (Tr. 128-139.) Dr. Froimson, moreover, was completely unaware of prior surgery to the same knee when he took Hocevar's medical history, treated him, and wrote an expert report. As a result, it would not -8- have been unreasonable for a jury to place little faith in his expert opinion. Dr. Froimson attempted to rehabilitate his testimony later by distinguishing between a current medical meniscus tear and a previous anterior tear. It was not unreasonable, however, for a jury to conclude such a late distinction was a rationalization of the cause rather than an objective explanation. The jury had a superior opportunity to observe the witnesses and evaluate their demeanor when making its determination concerning the extent of Raymond Hocevar's injuries in this case. The record indicates the existence of a long-standing chronic pre- existing knee condition. From our review of that record, we conclude plaintiffs have failed to show that the jury lost its way or that its verdict was against the manifest weight of the evidence. See Sauto v. Nacht (Apr. 16, 1998), Cuyahoga App. No. 73118, unreported; Reder v. Antenucci (1989), 62 Ohio App.3d 139. Accordingly, plaintiffs' second assignment of error is overruled. Judgment affirmed. -9- It is ordered that appellee recover of appellants his 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. O'DONNELL, P.J., and LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .