McWreath v. Ross

In McWreath v. Ross, 11th Dist. No. 2008-T-0035, 179 Ohio App. 3d 227, 2008 Ohio 5855, 901 N.E.2d 289, the plaintiff experienced neck pain after a 2005 automobile accident. He had experienced two prior automobile accidents in 1990 and 1992. The case went to trial with liability established and the remaining issues of proximate cause and damages were tried to a jury. In a videotaped deposition, the plaintiff's neck surgeon testified that the automobile accident was the proximate cause of the plaintiff's herniated disc that he surgically repaired. The surgeon had also removed two adjoining discs that had degenerated due to the "wear and tear of life." The surgeon testified that the whiplash injury from plaintiff's automobile accident aggravated the preexisting processes in the neck. On cross-examination, the defense asked if it were possible that the herniated disc was in the plaintiff's neck before the accident. Over objection, the surgeon testified that it was possible. In its case-in-chief, the defense presented no expert medical testimony. The jury returned a zero verdict, and the trial court granted a new trial. The court of appeals stated: Once a prima facie case has been demonstrated, and adverse party may attempt to negate its effect in various ways. She may cross-examine the expert of the other party; she may adduce testimony from another expert that contradicts the testimony of the expert for her adversary; further, she may adduce expert testimony that sets forth an alternative explanation for the circumstances at issue. Id. at P79.