COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73037 KATHLEEN MALONEY, ET AL. : : JOURNAL ENTRY Plaintiff-appellants: : AND vs. : : OPINION JAMES W. DAY, JR. : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : AUGUST 6, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-318554 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee: PATRICIA M. CORWIN, ESQ. DAVID M. CUPPAGE, ESQ. 9th Floor Halle Building 1228 Euclid Avenue Cleveland, OH 44115-1891 MARGARET M. GARDNER, ESQ. Suite 525 113 St. Clair Building Cleveland, OH 44114 -2- JOHN T. PATTON, J.: Plaintiff Kathleen Maloney brought this negligence action against defendant James Day, Jr., alleging defendant's automobile rear-ended her, causing her to injure her knee. Defendant admitted liability, so the matter proceeded to trial solely on the issue of damages. The undisputed evidence showed that plaintiff required surgery to repair a torn medial meniscus. During that surgery, plaintiff's surgeon found evidence of advanced chondrosis, a degenerative condition that causes knee cartilage to soften and degrade. Plaintiff denied having any prior knee problems and claimed the accident caused her to suffer the torn medial meniscus. Defendant, citing to the evidence of degenerative tissue loss that had to be repaired during surgery, claimed plaintiff's torn medial meniscus either preexisted the accident or had only been aggravated by the accident. A jury awarded plaintiff $10,685, an amount slightly less than her total medical bills. Dissatisfied with the amount of the award, plaintiff appeals, raising issues relating to the admission of defendant's expert testimony and the jury instructions. I The first assignment of error complains the court erred by permitting the defense expert to testify to an opinion on something less than the legal standard of a reasonable medical certainty. At trial, defendant tried to show plaintiff had preexisting tissue degeneration that required surgery as opposed to a traumatic tear caused by the accident. When asked if the accident caused the -3- meniscus tear, the defense expert stated he thought it was more likely than not that the tear was a preexisting degenerative problem as opposed to a traumatic event. Plaintiff complains this opinion was not stated to the requisite degree of medical certainty. Expert opinion testimony is only competent if it is held to a reasonable degree of medical certainty. State v. Benner (1988), 40 Ohio St. 3d 301, 313, citing State v. Holt (1969), 17 Ohio St. 2d 81, syllabus. This degree of reasonable certainty, however, simply means that, at a minimum, the trier of fact must be provided with evidence that the injury was more likely than not caused by defendant's negligence. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St. 3d 367. An event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue. Stinson v. England (1994), 69 Ohio St. 3d 451, citing Cooper v. Sisters of Charity of Cincinnati (1971), 27 Ohio St.2d 242, 243. During his testimony, the defense expert stated: My opinion is that it is more likely than not, not only by the description of the MR scan, and the description from the operative notes, that this was probably a preexisting degenerative problem. There may have been some additional tearing, there is no way to prove or disprove that, but the general feeling of the doctor at that time was that this was purely degenerative. Trauma wasn't used at all as a descriptive term, and the appropriate treatment for this particular anatomic abnormality was done during the time of surgery. I don't know when the tear occurred. How long it has been there. Nobody knows that, but the -4- general description appears to be less likely than not trauma in origin simply because of the description that was used and the general appearance of a complex type of tear and the lack of the doctor's description saying the word trauma. By saying that the tear more likely than not preexisted the accident and that trauma was less likely than not the cause of the tear, the defense expert expressed his opinion in terms that made the cause of the tear probable, if not certain. This statement sufficed under the standard set forth in Stinson. Plaintiff goes on to argue the court erred by permitting the defense expert to testify even when he admitted on cross- examination he could not state to a degree of reasonable medical certainty whether the actual tear suffered by plaintiff arose from the accident or as a result of a preexisting tear. The challenged testimony came when the defense expert told the jury I'm not really sure what the etiology of the tear is and, in response to a specific question to state an opinion to a reasonable degree of medical certainty that the tear had not been caused by the accident, his response was: I couldn't tell if it was. The admission of expert testimony is committed to the sound discretion of the court, reviewable only for an abuse of that discretion. Scott v. Yates (1994), 71 Ohio St.3d 219, 221. The court could reasonably find the defense expert's testimony, viewed as a whole, expressed the opinion that plaintiff's torn meniscus arose from a preexisting degenerative condition rather than from trauma associated solely with the accident. Curiously, while plaintiff claims her own expert expressed an opinion in certain -5- terms, the transcript suggests otherwise. When asked if plaintiff's chondrosis had been caused by the accident, plaintiff's expert said it's possible, although he admitted he could not say it had been caused to a reasonable degree of medical certainty. He later stated, I'm explaining that the patient's chondrosis could have been there as a result of her injury. And it's ultimately the chondrosis which may have caused or aggravated at the time of her injury, which leads to posttraumatic arthritis, which leads to a guarded prognosis. (emphasis added). Both experts appeared somewhat stymied by the cause of the meniscus tear, but did testify to a reasonable certainty on what they believed caused the tear. Under the circumstances, the court did not act in an arbitrary manner by permitting the defense expert to render an opinion on the cause of the tear. The first assignment of error is overruled. II In her second assignment of error, plaintiff complains the court erred by denying her motion in limine and permitting defendant to present expert testimony that failed to comply with Loc.R. 21.1 of the Cuyahoga County Court of Common Pleas. Plaintiff claims the defense expert's trial testimony included opinions that were not contained in his report. Loc.R. 21.1(B), states in pertinent part, * * * An expert will not be permitted to testify or provide opinions on issues not raised in his report. The purpose of the rule is to eliminate surprise, with the existence and effect of prejudice resulting from -6- noncompliance being the primary concern. See David v. Schwarzwald, Robiner, Wolf & Rock, Co., L.P.A. (1992), 79 Ohio App.3d 786, 795. The court has broad discretion to determine whether parties are in compliance with Loc.R. 21.1 on discovery regarding expert witnesses, and its rulings will not be reversed absent affirmative showing of an abuse of discretion. Krantz v. Schwartz (1992), 78 Ohio App.3d 759, 764, see, also, Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, syllabus. Unfortunately, we have no way to determine whether the court abused its discretion by denying the motion in limine since the defense expert's report is not in the record. The party claiming error has the duty to demonstrate that error in the record. App.R. 9(B); Hartt v. Munobe (1993), 67 Ohio St. 3d 3,7; Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. Without a copy of the defense expert's report, we cannot accurately verify the substance of plaintiff's claimed error. As an aside,we note both sides filed motions in limine that challenged the same points the inability of the opposing expert to render an opinion to the requisite degree of medical certainty and the possibility that the opposing expert would testify to issues not addressed in their respective reports. Given Loc.R. 21.1's purpose of eliminating prejudice resulting from surprise, the court's decision to deny both motions in limine placed the parties on equal footing at trial. Under the circumstances, we cannot find the court acted arbitrarily or unreasonably. The second assignment of error is overruled. -7- III In the third assignment of error, plaintiff complains the court erred by instructing the jury on the issue of aggravation of a preexisting injury but refusing to instruct on a defendant taking the victim as he finds her. She claims the court's refusal to do so may have given the jury the impression that she was not entitled to damages despite evidence that she had no prior knee problems. The court is required to give jury instructions if they are correct statements of the law as applied to the facts in a given case and where reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrolton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. The instruction should be a plain, distinct and unambiguous statement of the law as applicable to the case based on the facts presented at trial. Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12. A jury charge must be considered as a whole and the reviewing court must determine whether the charge probably misled the jury in a matter materially affecting a complaining party's substantial right. Becker v. Lake County Mem. Hosp. (1990), 53 Ohio St.3d 202, 208. We find the court did not err by refusing to give the requested instruction. When objecting to the court's refusal to use her requested instruction, plaintiff stated she offered the instruction because it is not a defense to plaintiff's claims for damages that another person other than plaintiffs might have suffered less injury. This was not a fact borne out by the proof. -8- Defendant conceded liability and also conceded plaintiff suffered some injury resulting from the accident his main line of defense was that plaintiff had preexisting degenerative tissue loss that more than likely caused the tear to begin prior to the accident, and that the accident merely accelerated the tear, rather than directly caused the tear. The defense of preexisting injury was quite different from plaintiff's assertion that defendant had argued another person other than plaintiff might have suffered less injury. The facts brought out to the jury were limited only to plaintiff, not to other persons. An instruction concerning defendant's obligation to take plaintiff as he found her would have confused the issue. Consequently, the court did not err by refusing to give that charge. The third 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 direct ing 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. PATRICIA A. BLACKMON, A.J. JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN T. PATTON 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 .