COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73329 WILLIAM L. BLAKE : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION GEORGE Z. FLIGIEL : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-327876 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ------------------------ APPEARANCES: For Plaintiff-Appellant: WILLIAM L. BLAKE (#0034171) 840 Rockefeller Building 614 Superior Ave., NW Cleveland, Ohio 44113-1306 For Defendant-Appellee: JENNIFER V. SAMMON (#0064213) 323 Lakeside Ave., SW Lakeside Place - Suite 410 Cleveland, Ohio 44113 SPELLACY, J.: Plaintiff-appellant William L. Blake ( appellant ) appeals from the jury verdict in his favor in the amount of Five Thousand -2- Dollars ($5,000.00) for injuries he sustained in a motor vehicle accident. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN PERMITTING DEFENSE COUNSEL TO DELIBERATELY FALSIFY FACTS AND MISLEAD THE JURY II. THE COURT ERRED IN PERMITTING DEFENSE COUNSEL TO USE THE DEPOSITIONS OF PLAINTIFF'S DOCTORS TO IMPEACH THE PLAINTIFF. III. THE COURT ERRED IN FAILING TO AWARD PLAINTIFF THE FEES WHICH HE PAID DEFENDANT'S MEDICAL EXPERT IV. THE COURT ERRED IN PERMITTING COUNSEL FOR DEFENDANT IN CLOSING ARGUMENT TO DISPLAY TO THE JURY OBJECTS OR ITEMS NOT INTRODUCED IN EVIDENCE. Finding appellant's assignments of error to lack merit, the judgment of the trial court is affirmed. I. The underlying action arose from a motor vehicle accident between appellant and defendant-appellee George Z. Fligiel on April 18, 1995. On June 30, 1995, appellant filed a lawsuit against Mr. Fligiel based on injuries appellant allegedly sustained in the subject accident, including a torn left anterior meniscus. Appellant has asserted that he incurred medical expenses in excess of Six Thousand Five Hundred Dollars ($6,500.00) as a result of this accident. In addition, appellant claims that his condition of a torn left anterior meniscus will necessitate a total knee replace. Appellant voluntarily dismissed his first complaint without prejudice and, on January 24, 1997, appellant refiled the -3- underlying lawsuit against Mr. Fligiel. Mr. Fligiel died on March 26, 1997 and, on April 11, 1997, a suggestion of death was filed. Subsequently,Mr. Fligiel's estate was substituted in place of Mr. Fligiel as the defendant in this lawsuit. On September 5, 1997, the case proceeded to trial. The testimony of fact witnesses Kathleen Hulek and Officer Charles Slykerman of the Parma Police Department, as well as appellant's own testimony, established that Mr. Fligiel negligently caused the subject accident. Appellant then presented the live trial testimony of his expert witnesses, Brian Miller, M.D. and Lawrence McNamee, M.D. Dr. Miller treated appellant from the date of the accident, April 18, 1995, to May 16, 1995, for complaints of neck, right shoulder and left knee pain. Dr. Miller diagnosed appellant's injuries as a cervical strain, right shoulder strain and sprain of the left knee. However, according to Dr. Miller, appellant's left knee pain continued. An MRI of appellant's left knee was ordered on September 5, 1996, well over a year after the subject accident; the MRI results indicated severe degenerative joint disease with advanced degeneration and a possible tear of the left knee. At trial, Dr. Miller opined that appellant suffered a torn left anterior meniscus as a result of the automobile accident. Dr. McNamee, who reviewed the MRI of appellant's left knee but did not treat appellant, also testified that appellant's left knee was torn in the accident. Appellant rested and appellee then had the trial deposition of -4- Nabil Angley, M.D. read into the record. According to Dr. Angley, an orthopedic specialist, he examined appellant on October 9, 1996. At the time, appellant had continuing complaints of left knee pain. Dr. Angley testified that appellant had severe/advanced degenerative arthritis in his left knee. Dr. Angley testified that he was not absolutely sure whether appellant even had a torn left anterior meniscus, and if he did, Dr. Angley stated that he could not opine whether appellant's left knee was torn during the accident. On September 11, 1997, the jury returned a verdict in favor of appellant in the amount of Five Thousand Dollars ($5,000.00). On September 15, 1997, appellant filed a post-trial motion for reimbursement of expenses, including probate expenses appellant incurred relative to the administration of Mr. Fligiel's estate, Dr. Angley's expert fees, and certain deposition expenses. On October 9, 1997, the trial court granted appellant's request for reimbursement for the One Hundred Fifty Dollar ($150.00) probate application filing fee and the One Hundred Dollar ($100.00) bond premium appellant had paid for the administration of Mr. Fligiel's estate. The trial court denied appellant's request for all other requested expenses. II. In his first assignment of error, appellant claims that appellee's attorney deliberately falsified facts and misled the jury. This argument is without merit. Appellant first argues appellee's attorney misled the jury by -5- implying that Mr. Fligiel's estate would have to pay the jury award; appellant claims this was misleading because Mr. Fligiel had liability insurance. Generally, evidence of liability insurance is excluded because it may influence juries to decide cases on whether money is available from an insurance company. See Piontkowski v. Scott (1989), 65 Ohio App.3d 4, 7; Evid.R. 411. Based upon the foregoing, we find that there was no misconduct on the part of appellee's attorney in this regard. Accord Mustafa v. Heneghan (Sept. 4, 1997), Cuyahoga App. No. 71607, unreported. Appellant also claims the jury was misled by a hypothetical question posed by appellee's attorney to Dr. McNamee. A hypothetical question is improper where it assumes facts not in evidence. State v. Minor (1988), 47 Ohio App.3d 22, 26. However, whether a hypothetical question is proper lies largely within the discretion of the trial court. Reese v. City of Cleveland (Nov. 1, 1990), Cuyahoga App. No. 57697, unreported. Moreover, on cross-examination, the opposing party is entitled to posit questions to the other party's expert where such hypotheticals are consistent with the opposing party's case. Brennan v. Young (1966), 6 Ohio App.2d 175, 181. "It is then for the trier of the facts to resolve the factual dispute and, depending upon its findings, to determine what weight it will give to the opinion-answer." Mayhorn v. Pavey (1982), 8 Ohio App.3d 189, 192. In the instant case, appellee's attorney asked Dr. McNamee if his opinion on the causation of appellant's torn left anterior -6- meniscus would have been the same if appellant had told him that he had also injured his knee playing racquetball two weeks prior to the subject automobile accident. Although there was no evidence of such a racquetball injury, there was evidence that appellant used to play racquetball before the automobile accident. In addition, the hypothetical question was consistent with appellee's theory that appellant did not tear his left anterior meniscus in the automobile accident. Therefore, we find that the trial court did not abuse its discretion in permitting this hypothetical question. Appellant also claims, without legal argument, that appellee's attorney misled the jury and prejudiced appellant with the following comments and conduct: (1) appellee's attorney chastised Dr. Miller for looking at blackboard evidence left by a previous witness; (2) appellee's attorney accused Dr. Miller of lying for attorneys who refer patients to him; (3) appellee's attorney blamed appellant for the length of the trial; and (4) appellee's attorney accused appellant of sneaking in improper evidence of Mr. Fligiel's driving record. Upon review of the record, we find no merit in appellant's complaints concerning the foregoing comments and conduct on the part of appellee's attorney. According, appellant's first assignment of error is overruled. III. In his second assignment of error, appellant argues that the trial court erred in permitting appellee's attorney to use the deposition testimony of appellant's doctors to impeach and -7- contradict appellant during cross-examination. Appellant asserts this form of cross-examination constituted inadmissible hearsay. Pursuant to Evid.R. 611(B), a party has a right to a full and fair cross-examination of a witness on all relevant matters and matters affecting credibility. The scope of cross-examination and the admissibility of evidence during cross-examination are matters which rest in the sound discretion of the trial judge. Thus, when the trial court determines that certain evidence will be admitted or excluded from trial, it is well established that the order or ruling of the court will not be reversed unless there has been a clear and prejudicial abuse of discretion." O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163. Evid.R. 801(c) defines "hearsay" as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 802 states that, unless otherwise provided, hearsay is not admissible. However, a decision whether to admit a hearsay statement is one within the discretion of the trial court. State v. Sumlin (1994), 69 Ohio St.3d 105, 108. Over appellant's objections, appellee's attorney was permitted to ask appellant if his doctors made certain statements during their depositions, and whether those statements were accurate. This clearly constituted hearsay. However, we note that Dr. Miller and Dr. McNamee testified at trial and were subject to examination concerning the statements at issue. During Dr. Angley's trial deposition, appellant was also afforded a full opportunity to -8- question Dr. Angley. Therefore, we find that the statement by appellant's doctors in their respective depositions had sufficient indicia of reliability and trustworthiness that there was no material departure from the general reason of the hearsay rule. Under these circumstances, we find that the trial court did not abuse its discretion in permitting this form of cross- examination. Accordingly,appellant's second assignment of error is overruled. IV. As for his third assignment of error, appellant contends that the trial court erred in denying his motion for reimbursement of the expenses he incurred relative to Dr. Angley's expert fees and deposition expenses. Civ.R. 54(D) governs the court's assessment of costs to the parties: Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs. (Emphasis added.) Pursuant to Civ. R. 54(D), the trial court has discretion as to how the costs of an action shall be assessed. State, ex. rel. Fant v. Regional Transit Auth. (1990), 48 Ohio St.3d 39, syllabus. The term "abuse of discretion" connotes more than an error of law; it implies that the court acted unreasonably, arbitrarily or unconscionably. State v. Adams (1981), 62 Ohio St.2d 151, 157. The Ohio Supreme Court has interpreted Civ.R. 54(D) to allow costs only when the costs are allowed by statutory authority. -9- Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 555. This court has consistently held that no statutory authority exists for the allowance as costs of deposition expenses such as court reporter and transcript fees. See Carr v. Lunney (1995), 104 Ohio App.3d 139, 142; Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, 388. Likewise, expert witness fees are not taxable as a cost. See Moore v. Gen. Motors Corp. (1985), 18 Ohio St.3d 259, 260-261. Although appellant arranged and paid for Dr. Angley's deposition, Dr. Angley's testimony was more favorable for appellee. At trial, Dr. Angley's testimony was introduced by appellee and read into the record, in effect, making Dr. Angley appellee's expert witness. Civ.R. 32(C). Appellant argues that fairness dictates that appellee reimburse him for the expense of procuring Dr. Angley's testimony. We find this argument to be specious and contrary to the above-cited law. Based upon the foregoing, we find that the trial court properly denied appellant's request for reimbursement of the expenses related to Dr. Angley's expert fees and deposition expenses. Accordingly, appellant's third assignment of error is overruled. V. In his fourth assignment of error, appellant claims that the trial court erred in permitting appellee's attorney to use excerpts of the deposition testimony of Dr. Miller and Dr. McNamee during closing argument because these depositions were not used at trial. -10- We agree with appellant's basic proposition of law. It is error to permit counsel, in closing argument to the jury, to use excepts from a deposition taken in the case, but not put in evidence. See Dew v. Reid (1895), 52 Ohio St. 519, paragraph four of the syllabus; Ede v. Atrium South OB/GYN, Inc. (May 10, 1993), Stark App. No. CA-9041, unreported (use of the deposition for the first time in closing argument violates fundamental fairness). Fundamental fairness requires that there must be an opportunity for the opposing side to rebut evidence presented to the jury. Ede, supra. However, contrary to appellant's factual misrepresentations, the record clearly indicates that appellee's attorney used the depositions of Dr. Miller and Dr. McNamee to impeach and contradict the doctors during their live testimony at trial. Accordingly, appellant's fourth assignment of error is not well taken. Judgment affirmed. It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. -11- 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. ANN DYKE, P.J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .