IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

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1 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO ELAINE WILLIAMS and GEORGE W. REYNOLDS, vs. Plaintiffs-Appellants, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee, and AALIYAH R. ABDULLAH and MICHELLE HOWARD, Defendants. APPEAL NO. C TRIAL NO. A JUDGMENT ENTRY. We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court. 1 Plaintiffs-appellants Elaine Williams and George Reynolds ( plaintiffs ) appeal from the trial court s entry denying their motion in limine and granting the motion in limine and motion to dismiss of defendant-appellee State Farm Mutual Automobile 1 See S.Ct.R.Rep.Op. 3(A), App.R. 11.1(E), and Loc.R. 12.

2 Insurance Co. ( State Farm ). In 1999, plaintiffs had been injured in an automobile accident after being struck by a vehicle driven by defendant Aaliyah Abdullah. Abdullah was an uninsured motorist. Plaintiffs were insured by State Farm, and they sought uninsured-motorist coverage under their State Farm policy. Prior to trial, State Farm filed a motion in limine seeking to exclude particular testimony from plaintiffs expert witnesses. The trial court granted the motion in limine, and, recognizing that its ruling had narrowly limited plaintiffs case, additionally granted State Farm s motion to dismiss all claims for the plaintiffs aggravation of fibromyalgia and degenerative disc disease. On appeal, plaintiffs have raised four assignments of error concerning the trial court s ruling. Each assignment concerns the admission or exclusion of expert testimony and is subject to an abuse-of-discretion standard of review. 2 In their first assignment of error, plaintiffs argue that the trial court erred in granting the portion of State Farm s motion in limine that prohibited testimony concerning the cause and the aggravation of fibromyalgia and degenerative disc disease. And in their second assignment of error, plaintiffs argue that the trial court erred in prohibiting Williams treating physician and chiropractor from giving opinions on the aggravation of fibromyalgia and degenerative disc disease. Because these assignments are related, we address them together. But before we address the merits of these arguments, we note that the tenor of plaintiffs appellate brief is not necessary to convey their arguments to this court. The arguments could have been properly raised absent the unprofessional insinuations made by plaintiffs. In determining whether to exclude testimony on the aggravation of fibromyalgia and degenerative disc disease, the trial court applied the analysis set forth in Daubert v. 2 Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, 9. 2

3 Merrell Dow Pharmaceuticals 3 and in Evid.R In Daubert, the Supreme Court outlined pertinent considerations on whether to admit or exclude proffered expert testimony. Evid.R. 702 has a similar purpose, and it provides that [a] witness may testify as an expert if all of the following apply (A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; [and] (C) The witness testimony is based on reliable scientific, technical, or other specialized information. Following our review of the record, we conclude that the trial court did not abuse its discretion in excluding testimony concerning the aggravation of fibromyalgia and degenerative disc disease. Williams treating physiatrist, Janalee Rissover, and her treating chiropractor, Gregory Pitman, had testified that fibromyalgia and degenerative disc disease can be aggravated by a traumatic injury. But neither Rissover nor Pitman was able to identify any study or publication supporting this theory. Nor could they explain the biological process that would cause the aggravation of fibromyalgia or degenerative disc disease following a traumatic injury. The opinions of Rissover and Pitman were based on their own experiences and not on any data or scientific research. 4 Moreover, neither Rissover nor Pitman had reviewed Williams medical records from before her car accident. Consequently, their opinions that Williams had suffered an aggravation of fibromyalgia and degenerative disc disease were somewhat incomplete, as they had no knowledge of Williams prior condition other than the information provided by Williams. 3 (1993), 509 U.S. 579, 113 S.Ct See Valentine v. Conrad, supra, 110 Ohio St.3d 42, at 18. 3

4 The trial court conducted a detailed analysis on this issue and did not abuse its discretion by excluding testimony on the aggravation of fibromyalgia and degenerative disc disease. The first and second assignments of error are overruled. In their third assignment of error, plaintiffs argue that the trial court erred in granting the portion of State Farm s motion in limine that prevented their treating physical therapist from providing medical opinions. Both Williams and Reynolds had received treatment from physical therapist Daniel Lilly. The trial court s entry granting the motion in limine stated that [t]he testimony of plaintiff s witness, Daniel Lilly, physical therapist, concerning or relating to any medical opinions, including opinions on causation and permanency, are excluded from evidence at trial. R.C defines physical therapy, stating that [p]hysical therapy does not include the medical diagnosis of a patient s disability. Applying this statute, we conclude that the trial court did not err in excluding Lilly s testimony on these issues. 5 Lilly could have testified about his individual treatment of plaintiffs. But testimony concerning causation and permanency of injuries would have essentially amounted to a medical diagnosis, which is statutorily prohibited. The trial court did not abuse its discretion in granting the portion of the motion in limine excluding Lilly s testimony, and the third assignment of error is overruled. In their fourth assignment of error, plaintiffs argue that the trial court erred in denying their motion in limine. They specifically argue that the trial court erred in failing to prohibit defense expert Dr. Steven Wunder from criticizing other physicians and the care that they had rendered by opining that plaintiffs only needed accidentrelated treatment and care for approximately six weeks following the accident. 5 See Zinn v. Leach (Nov. 29, 1990), 2 nd Dist. Nos. 90-CA-03 and 90-CA-08. 4

5 Dr. Wunder had reviewed Williams medical records from both before and after the car accident. After reviewing these records, Dr. Wunder noted that Williams had experienced fluctuating fibromyalgia-related pain before the accident. He opined that Williams would have continued to experience this type of pain and would have needed future treatment even had the car accident not occurred. Consequently, Dr. Wunder testified that Williams only needed accident-related treatment for approximately six to eight weeks following the accident. Dr. Wunder also reviewed Reynolds medical records from before and after the car accident. He noted that Reynolds pain immediately after the accident had been less severe than the pain he experienced several months after the accident. He further noted that, in the months following the accident, Reynolds had received whiplash from an incident that had occurred during his employment and had suffered a subsequent injury to his back. Consequently, Dr. Wunder opined that Reynolds only needed accident-related treatment for approximately four to six weeks following the accident. Following our review of the record, we conclude that the trial court did not abuse its discretion in denying plaintiffs motion in limine and in permitting Dr. Wunder to testify concerning the appropriate length of treatment. Dr. Wunder had reviewed all relevant medical records and had cited documented evidence in these records to support his opinions. But plaintiffs further argue that Dr. Wunder s opinions should have been limited to his own examination, and that he was not entitled to rely on their medical records in forming his opinions criticizing their treatment. Plaintiffs argument is clearly contrary to law. Evid.R. 705 provides that [an] expert may testify in terms of opinion or inference and give the expert s reasons therefore after disclosure of the underlying facts or data. In this case, Dr. Wunder testified as to his opinion on the necessary length of treatment, and he disclosed the underlying data that he had relied on. This was proper. A defense expert is entitled to 5

6 review a plaintiff s medical records and comment on the quality and necessity of care received. 6 The fourth assignment of error is overruled. Therefore, the judgment of the trial court is affirmed. A certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. PAINTER, P.J., HENDON and DINKELACKER, JJ. To the Clerk Enter upon the Journal of the Court on March 19, 2008 per order of the Court. Presiding Judge 6 See Moore v. Jock (Sept. 5, 1991), 10 th Dist. No. 91AP

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