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Cleveland v. Lancaster7/15/2005
{ } Melody Cleveland appeals from the trial court's entry of final judgment on a jury verdict in her favor for $3,492.75. The jury rendered the verdict on Cleveland's negligence claim against appellee Lindy Lancaster for personal injuries that she sustained as a result of a car accident.
{ } Cleveland advances four assignments of error on appeal. First, she contends the trial court erred in not introducing into evidence under Civ.R. 32(A)(4) the entire perpetuation deposition of a defense expert. Second, she claims the trial court erred in not allowing her to introduce the foregoing deposition in her rebuttal case. Third, she asserts that the trial court erred in failing to instruct the jury regarding aggravation of a pre-existing injury. Fourth, she argues that the jury's verdict was against the manifest weight of the evidence.
{ } Upon review, we conclude that the trial court did not err in failing to introduce the defense expert's deposition into evidence under Civ.R. 32(A)(4). We also find no error in the trial court's refusal to allow the defense exert's deposition to be introduced in Cleveland's rebuttal case. Although we do believe the trial court erred in failing to instruct the jury regarding aggravation of a pre-existing injury, we find the error to be harmless. Finally, we do not find the jury's verdict to be against the manifest weight of the evidence. Accordingly, the judgment of the Greene County Common Pleas Court will be affirmed.
I. Background
{ } The present appeal stems from a May 1997 car accident in which Lancaster struck the right rear of Cleveland's stopped vehicle at a speed of approximately forty-five miles per hour. After the accident, Cleveland complained of neck pain and was taken to an area hospital. She was given an x-ray, prescribed a pain killer, and released the same day. She missed one day of work due to the accident.
{ } Cleveland followed up with her family doctor about a week later and was directed to continue using a pain killer. Her next visit to the doctor was in mid-June 1997, when she received treatment for poison ivy. Thereafter, in mid-July 1997 Cleveland saw her family doctor again and complained about continued neck pain. The doctor opined that she had a cervical strain and told her to allow three months for the pain to dissipate. Cleveland returned to the doctor again in September 1997, complaining about sinus drainage, and in October 1997, complaining about chest pains apparently unrelated to the accident.
{ } In September and October 1997, Cleveland underwent physical therapy due to continued complaints of neck pain. Thereafter, she visited her family doctor again in March 1998 and reported "reinjuring" herself while picking up her four-year-old child from a car seat. According to Cleveland, she awoke the morning after the incident experiencing severe neck pain, tingling, and numbness in her arm. Her doctor responded by referring her for another round of physical therapy in April 1998. Cleveland's neck pain continued, and she ultimately underwent an MRI in November 1998. The test revealed a herniated disk in her neck. She initially pursued physical therapy and chiropractic care to treat the herniation. In October 2000, however, she consulted a neurosurgeon and subsequently underwent surgery in January 2001 to correct the problem. As a result of the surgery, Cleveland missed four complete weeks of work and then worked part-time for another two weeks before returning to her regular schedule.
{ } It was undisputed at trial that Lancaster's negligence had caused the car accident. The contested issues were (1) whether the car accident had caused Cleveland's neck pain or th
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