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Hocevar v. Rao12/3/1998
DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1998
JUDGMENT: Affirmed.
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 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 injuries. (Tr. 12.) Granting the motion in limine to exclude evidence of other injuries, the trial court stated as follows:
I will the 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 occupan
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