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Jones v. Capco10/30/2003
JUDGMENT AFFIRMED
. This is an appeal and cross appeal of a jury verdict, following trial before Visiting Judge Robert Feighan, that awarded a total of $28,500 in damages to appellees/cross appellants Edward and Deborah Jones for injuries sustained by Edward Jones. Appellants John and Eleanor Capco contend that it was error to permit Jones' treating physician to testify to matters not contained in his report, while the Joneses submit it was error to deny them a prejudgment interest hearing. We affirm.
. From the record we glean the following: On July 28, 1999, Jones, a United States Postal Services employee, entered the fenced yard at the Capcos' home to deliver mail as he had done for about a year. Although he knew that the Capcos' two dogs could be outside, he did not see or hear them but, as he was placing the mail in the box on the porch, he claimed he felt either a tongue or nose against his bare leg and reacted by lowering his arm in a "sweeping gesture" at whatever had touched him. The dog or dogs then bit his left leg causing him to fall and, when he tried to escape them, he fell on the sidewalk twisting his ankle. Hearing the commotion, Mrs. Capco came out the front door to see Jones angrily walking away and a pile of mail scattered around her front yard.
. Jones continued his work, reported the incident and went to the hospital for treatment of the puncture wounds. He returned to the hospital the following day complaining of an inflamed right ankle and foot. He was treated by a number of physicians for his ongoing ankle problems. In a September 2000 report, Dr. Sheldon Kaffen, M.D., opined that the July 1999 incident caused Jones to suffer superficial bites to his left leg and a chronic sprain of the right ankle with tendonitis.
. Jones and his wife brought suit against the Capcos alleging personal injuries to him and loss of consortium for her. During the videotaping of Dr. Kaffen's testimony for trial, and over the objection of the Capcos' lawyer, he mentioned that Jones' ankle injury was permanent and that surgery "may be an option in the future."
. Claiming trial by ambush, the Capcos filed a motion in limine seeking to exclude those portions of Dr. Kaffen's testimony relating to the permanency of Jones' condition and the potential for future medical care or surgery. They claimed that they had relied on the doctor's report that had not mentioned permanency or additional medical care. Because his two-year-old report had never been supplemented to include such opinions, they contended that permitting such testimony violated Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County, General Division. Judge Feighan excluded only that portion of the deposition relating to permanency.
. During trial the judge granted the Joneses' motion for a directed verdict on liability on the basis that there was no evidence that Jones had teased, tormented, or abused the dogs. The jury awarded Jones $26,000 and Mrs. Jones $2,500. Thereafter, the Joneses moved for a prejudgment interest hearing, which Judge Daniel Gaul, who was originally assigned to the case, denied.
. The Capcos assert six assignments of error and the Joneses a single assignment of error, all fully set forth in Appendix A.
FUTURE MEDICAL TREATMENT
. The first three assignments of error challenge the propriety of denying that portion of the Capcos' motion in limine that permitted the jury to hear the doctor's opinion about Jones' need for future care and treatment as well as the possibility of surgery. The record reflects that prior to opening statements, the Capcos renewed their motion in limine but then failed
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