FOR PUBLICATION

ATTORNEY FOR APPELLANT :    ATTORNEY FOR APPELLEE:

PATRICK J. DIETRICK    LISA DELEY
Collignon & Dietrick, P.C.    Howard DeLey & Dudley
Indianapolis, Indiana    Anderson, Indiana

     IN THE COURT OF APPEALS OF INDIANA

JOSEPH MROZ,                    )
                                     )
Appellant-Defendant,                 )
                                     )
vs.                                  )    No. 48A05-0402-CV-68   
                                     )
ROBERT HARRISON,                     )
                                     )
Appellee-Plaintiff.                  )

     September 30, 2004

     OPINION - FOR PUBLICATION

BAILEY, Judge

Thompson, 728 N.E.2d at 160 (quoting Miller § 612.101 at 226). The Thompson court also recognized that Indiana Evidence Rule 612 does not suggest, much less require, that the writing used to refresh a witness’s memory must have been prepared by the witness. Id. at 160-61.
    Further, before the adoption of the Indiana Rules of Evidence, the Indiana Supreme Court had long held that a writing used to refresh a witness’s memory could be prepared by the witness or another person. See Gaunt v. State, 457 N.E.2d 211, 216 (Ind. 1983) (quoting Clark v. State, 4 Ind. 156, 157 (1853)), overruled on other grounds by, Modesitt v. State, 578 N.E.2d 649, 652 (Ind. 1991). Accordingly, the trial court erred by refusing to permit Mroz to use the document in question to refresh Harrison’s recollection on the basis that Harrison did not prepare such document. See, e.g., Thompson, 728 N.E.2d at 161.
Nevertheless, an error will be found harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties. Id.; see also Ind. Trial Rule 61. Here, despite the trial court’s erroneous ruling regarding the document, it permitted Mroz to use the document to impeach Harrison’s testimony that he had not fallen down stairs subsequent to the accident. Mroz did not impeach Harrison with the document, but rather asked the following question:
Q:    So it’s your testimony here today that you don’t recall falling on February 3, 2000?
A:    It’s . . . I just don’t recall.

Tr. at 256. Mroz points to nothing in the document that was not covered in this colloquy or that could not have been covered through impeachment. Accordingly, there is no showing that the trial court’s erroneous ruling affected Mroz’s substantial rights.

The question of whether “exceptional circumstances” exist so as to justify admitting a deposition into evidence, pursuant to Indiana Trial Rule 32(A)(3)(e), is properly left to the sound discretion of the trial court and reversible error can only be predicated upon a showing that the trial court has abused its discretion. Wells v. Gibson Coal Co., 173 Ind. App. 47, 49, 352 N.E.2d 838, 841 (1976); see also Gates v. Rosenogle, 452 N.E.2d 467, 472-73 (Ind. Ct. App. 1983). An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before it. Mann v. Russell’s Trailer Repair, Inc., 787 N.E.2d 922, 926 (Ind. Ct. App. 2003), reh’g denied, trans. denied.
Here, the record reveals that, during his deposition, Doctor Wolfe informed the parties that he “could be available” to testify at trial, which was originally scheduled for March of 2002. Tr. at 144. The record further demonstrates, however, that, on the date of trial, i.e., November 18, 2003, Harrison notified the trial court and Mroz that Doctor Wolfe would be unavailable for trial—as evidenced by his affidavit wherein he stated that “due his extensive patient load and necessity to carry on his medical practice, he’d be unavailable to appear and testify”—and requested to read Doctor Wolfe’s deposition into evidence. Id. at 14. Based upon Doctor Wolfe’s affidavit, which was discussed at length prior to jury selection but was apparently not admitted into evidence, the trial court found the existence of exceptional circumstances and, thus, allowed Harrison to read Doctor Wolfe’s testimony into evidence, over Mroz’s objection. Under these circumstances, and pursuant to Indiana Trial Rule 32(A)(3)(e), we find no abuse of discretion in the ruling of the trial court, especially in light of the fact that Mroz had ample opportunity to and indeed did cross-examine Doctor Wolfe during such deposition. Accordingly, we find no error in admitting the deposition in question.

Tr. at 157. The second refused instruction provides as follows:

Id. at 158.

At the outset, we observe that, at trial, Mroz admitted that he was at fault for the accident in question, and asserted as an affirmative defense that Harrison had failed to mitigate his damages. Thus, these two proffered instructions relate to the doctrine of comparative fault only inasmuch as Mroz claimed that Harrison failed to mitigate his damages. See footnote As such, the instructional error alleged by Mroz is that the trial court improperly failed to instruct the jury on the affirmative defense of failure to mitigate damages because Doctor Wolfe provided sufficient expert testimony regarding this defense. We have previously held that “questions of medical causation of a particular injury are questions of science necessarily dependent on the testimony of physicians and surgeons learned in such matters.” Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), reh’g denied, trans. denied. We have noted, however, that testimony of an expert witness is necessary only when the issue of cause is not within the understanding of a lay person. Daub v. Daub, 629 N.E.2d 873, 878 (Ind. Ct. App. 1994), trans. denied.
    In the present case, Mroz’s failure to mitigate defense was based upon Harrison’s failure to follow Doctor Wolfe’s treatment orders. Specifically, Mroz theorized that Harrison increased his pain and suffering and prolonged his recovery, for which he was seeking compensation in the lawsuit, when he refused to follow through with Doctor Wolfe’s course of treatment, including physical therapy. At trial, however, the only evidence that Mroz presented to support his defense was the deposition of Doctor Wolfe, i.e., Harrison’s treating physician. See footnote In his deposition, Doctor Wolfe testified that, on some office visits, he found Harrison’s movements to be “self-limited because [Harrison] expected a movement to be painful.” Tr. at 171. Doctor Wolfe also testified that, during one visit, Harrison was uncooperative as “[h]e was unwilling to raise his arms above mid-chest level.” Id. at 172. In addition, Doctor Wolfe testified that Harrison exaggerated his symptoms for possibly “secondary gain sorts of issues.” Id. at 174. Doctor Wolfe further noted that Harrison only completed approximately fifteen minutes of physical therapy and, later, requested to return to his employment without restrictions.
This testimony from Doctor Wolfe, which was the only expert medical testimony offered, does not support Mroz’s assertion that Harrison’s failure to cooperate with prescribed treatment, exaggeration of symptoms, and failure to complete physical therapy aggravated or increased his injuries. To the contrary, Doctor Wolfe testified that ninety percent of people with Harrison’s soft tissue injuries “get well within three (3) months, ninety (90) days” and that Harrison recovered in approximately seven weeks. Tr. at 185. Accordingly, we cannot say that the trial court abused its discretion when it determined that the evidence did not support the giving of the mitigation of damages instruction. See, e.g., Kristoff v. Glasson, 778 N.E.2d 465, 474 (Ind. Ct. App. 2002) (holding that evidence that plaintiff did not regularly perform her prescribed exercises was insufficient to support a mitigation of damages claim in the absence of physician testimony that she failed to mitigate her damages).
    For the foregoing reasons, we affirm the trial court’s judgment in favor of Harrison.
    Affirmed.
SHARPNACK, J., and MAY, J., concur.