Berardo v. Felderman-Swearingen

2020 Ohio 4271

Opinion

[Cite as Berardo v. Felderman-Swearingen, 2020-Ohio-4271.]

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

LUIGI BERARDO, : APPEAL NO. C-200227 TRIAL NO. A-1706896 and :

TINA BERARDO, : O P I N I O N.

Plaintiffs-Appellants, :

vs. :

DEVIN Q. FELDERMAN- : SWEARINGEN, : Defendant-Appellee.

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: August 31, 2020

Dennis C. Mahoney and Amanda L Patton, for Plaintiffs-Appellants,

Jamey T. Pregon, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Presiding Judge.

{¶1} Luigi and Tina Berardo appeal the judgment of the Hamilton County

Court of Common Pleas denying their motion for a new trial. Because the trial court

abused its discretion by denying the motion for a new trial with respect to Tina

Berardo’s past noneconomic damages, we reverse the trial court’s judgment in part

and remand for a new trial on that issue.

I. Procedural History

{¶2} The Berardos filed a complaint seeking damages for injuries they

sustained in an accident when a car driven by Devin Q. Felderman-Swearingen

collided with their car. Following a trial, the jury rendered verdicts in favor of both

of the Berardos against Felderman-Swearingen. The jury awarded Luigi Berardo

damages in the amount of $23,677: $19,677 for past economic damages (specifically

past medical expenses) and $4,000 for past noneconomic damages (pain and

suffering).1 The jury awarded $0 to Luigi Berardo for future noneconomic damages.

The jury awarded Tina Berardo damages in the amount of $9,853, all of which was

for past economic damages (specifically past medical expenses). The jury awarded

Tina Berardo $0 for past noneconomic damages and $0 for future noneconomic

damages.

{¶3} The Berardos filed a motion for a new trial pursuant to Civ.R.

59(A)(4), (6), and (7). They asserted that the jury’s awards of $4,000 to Luigi

Berardo and $0 to Tina Berardo for past noneconomic damages and the award of $0

to Luigi Berardo for future noneconomic damages were inadequate, were not

1“Noneconomic loss” means “nonpecuniary harm that results from an injury or loss to person or property that is a subject of a tort action, including, but not limited to, pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training or education, disfigurement, mental anguish, and any other intangible loss.” R.C. 2315.18. In this case, the only claimed noneconomic loss was for pain and suffering, so we use the terms “noneconomic” and “pain and suffering” interchangeably in this opinion.

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supported by the evidence, and were contrary to law. The trial court denied the

motion.

{¶4} We dismissed the Berardos’ first appeal from that judgment for lack of

jurisdiction. See Berardo v. Felderman-Swearingen, 1st Dist. Hamilton No. C-

190515, 2020-Ohio-3098, ¶ 18. Thereafter, the trial court placed of record an order

that entered judgment on the Berardos’ claims against Felderman-Swearingen and

certified that, pursuant to Civ.R. 54(B), there is no just reason for delay. This appeal

followed.

II. Motion for a New Trial

{¶5} In a single assignment of error, the Berardos argue that the trial court

erred by denying their motion for a new trial. They argue that their motion for a new

trial should have been granted on the grounds set forth in Civ.R.59(A)(4), (6), and

(7).

{¶6} Civ.R. 59(A) provides in relevant part:

A new trial may be granted to all or any of the parties and on all or part

of the issues upon any of the following grounds:

***

(4) Excessive or inadequate damages, appearing to have been given

under the influence of passion or prejudice;

(6) The judgment is not sustained by the weight of the evidence[;]

(7) The judgment is contrary to law[.]

{¶7} The standard of review of a trial court’s ruling on a Civ.R. 59(A)

motion for a new trial depends on the grounds for the motion. Harrison v. Horizon

Women’s Healthcare, LLC, 2d Dist. Montgomery No. 28154, 2019-Ohio-3528, ¶ 11.

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We review a trial court’s decision granting or denying a motion for a new trial under

Civ.R. 59(A)(4) and (6) for an abuse of discretion. See Weber v. Kinnen, 1st Dist.

Hamilton No. C-100801, 2011-Ohio-6718, ¶ 13. When reviewing the grant or denial

of a motion for a new trial based upon Civ.R. 59(A)(7), we must decide whether the

trial court erred as a matter of law. Riedel v. Akron Gen. Health Sys., 2018-Ohio-

840, 97 N.E.3d 508, ¶ 13 (8th Dist). We review a trial court’s ruling on a motion

brought under Civ.R. 59(A)(7) de novo. Hoke v. Miami Valley Hosp., 2d Dist.

Montgomery No. 28462, 2020-Ohio-3387, ¶ 29.

{¶8} The Berardos argue that the trial court erred by denying their motion

for a new trial because the evidence of their pain and suffering was undisputed at

trial, the defendant’s medical expert “agreed with [their] injuries,” and defense

counsel in closing argument “conceded specific pain and suffering numbers to the

jury.” They point to defense counsel’s suggestion to the jury of awards of $4,000 to

$9,000 for past pain and suffering for Tina Berardo, and awards for Luigi Berardo of

$15,000 to $20,000 for past pain and suffering, and $5,000 for future pain and

suffering for him. The Berardos assert that the jury’s award of $4,000 to Luigi

Berardo for past pain and suffering, without any award for his future pain and

suffering, and the award of zero dollars for Tina Berardo’s past pain and suffering

were inadequate, against the weight of the evidence, and contrary to law.

A. Closing Arguments

{¶9} We begin with the Berardos’ assertion that the suggestions of award

amounts by defense counsel in closing argument amounted to concessions by the

defense that the evidence of pain and suffering was undisputed. It is well established

that closing arguments are not evidence upon which a jury can rely. Harrod v. USAA

Ins. Co., 2019-Ohio-2748, 140 N.E.3d 184, ¶ 42 (2d Dist.). Although “[t]he

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arguments or statements of counsel may be considered judicial admissions in certain

instances,” Scatamacchio v. W. Res. Healthcare, 161 Ohio App.3d 230, 2005-Ohio-

2690, 829 N.E.2d 1247, ¶ 46 (7th Dist.), citing Hake v. George Wiedemann Brewing

Co., 23 Ohio St.2d 65, 262 N.E.2d 703 (1970), counsel’s statements will not rise to

the level of a judicial admission where “there is no indication that the statement was

intended to dispense with formal proof of material facts for which witnesses would

otherwise be called at trial.” Holeski v. Lawrence, 85 Ohio App.3d 824, 621 N.E.2d

802 (11th Dist.1993). To constitute a judicial admission, counsel’s statements must

be “distinct and unequivocal, and be, by intention, an act of waiver relating to the

opponent’s proof of the fact, and not merely a statement of assertion or concession,

made for some independent purpose.” Shepler v. Love, 6th Dist. Huron No. H-00-

022, 2001 WL 1104811, *3 (Sept. 14, 2001), quoting Carl & Gene Towing Serv., Inc.

v. Shortway Lines, 6th Dist. Lucas No. L-81-265, 1982 WL 6322, *2 (Mar. 26, 1982).

{¶10} Here, defense counsel told the jury that its job was to decide the value of the Berardos’ claims and asked the jury to be reasonable in its awards. Defense

counsel’s suggestion of potential amounts for pain-and-suffering awards did not

constitute judicial admissions because there was no indication that the remarks were

intended to waive the Berardos’ burden of proof with respect to damages. See

Padden v. Herron, 11th Dist. Lake No. 97-L-23, 1998 WL 964545, *5 (Dec. 24, 1998);

see also Phoenix Lighting Group LLC v. Genlyte Thomas Group LLC, 9th Dist.

Summit No. 28082, 2018-Ohio-2393, ¶ 64, rev’d on other grounds, Slip Opinion

No. 2020-Ohio-1056. We reject the Berardos’ assertion that the suggestions of

award amounts by defense counsel in closing argument amounted to concessions by

the defense that the evidence of pain and suffering was undisputed.

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B. Inadequate Damages Due to Passion or Prejudice

{¶11} A court may grant a new trial under Civ.R. 59(A)(4) when the damages awarded (1) are either excessive or inadequate and (2) appear to have been given

under the influence of passion or prejudice. Weber, 1st Dist. Hamilton No. C-

100801, 2011-Ohio-6718, at ¶ 14. Both criteria must be met. “The amount of the

verdict alone will not sustain a finding of passion or prejudice. There must be

something contained in the record which the complaining party can point to that

wrongfully inflamed the sensibilities of the jury.” Id. at ¶ 15, quoting Shoemaker v.

Crawford, 78 Ohio App.3d 53, 65, 603 N.E.2d 1114 (10th Dist.1991).

{¶12} Here, the Berardos argue only the first component of the test under Civ.R. 59(A)(4): they assert that the jury’s award was inadequate because the

“undisputed evidence” at trial showed that they experienced pain and suffering.

(They reiterate this argument in relation to Civ.R. 59(A)(6) and (A)(7), as addressed

below). However, they do not point to anything in the record, or even argue, that the

jury’s award was the product of either passion or prejudice. The trial court did not

abuse its discretion by denying the Berardos’ motion for a new trial under Civ.R.

59(A)(4).

C. Weight of the Evidence

{¶13} A trial court may grant a new trial pursuant to Civ.R 59(A)(6) when a judgment is not supported by the weight of the evidence. The trial court must weigh

the evidence and credibility of the witnesses, not “in the substantially unlimited

sense” that a jury does, but “in the more restricted sense of whether it appears to the

trial court that manifest injustice has been done and that the verdict is against the

manifest weight of the evidence.” Lally v. Mukkada, 1st Dist. Hamilton No. C-

100602, 2011-Ohio-3681, ¶ 6, quoting Rohde v. Farmer, 23 Ohio St.2d 82, 92, 262

6 OHIO FIRST DISTRICT COURT OF APPEALS

N.E.2d 685 (1970), paragraph three of the syllabus. “[T]he relief should be granted

only when the trial court is persuaded that there is insufficient credible evidence to

sustain the verdict in light of the other evidence presented.” Green v. Bailey, 1st

Dist. Hamilton No. C-070221, 2008-Ohio-3569, ¶ 13, citing Rohde at 92.

{¶14} “There is a split among Ohio courts whether damage awards for medical bills for injuries, without any award for pain and suffering, are against the

manifest weight of the evidence.” Dailey v. Masonbrink, 3d Dist. Auglaize No. 2-15-

02, 2015-Ohio-2207, ¶ 21, quoting Uhlir v. State Farm Ins. Co., 164 Ohio App.3d 71,

2005-Ohio-5545, 841 N.E.2d 344, ¶ 19 (8th Dist.). Some courts have found that

such awards are automatically against the manifest weight of the evidence. Id.;

Krauss v. Daniels, 6th Dist. Wood No. WD-98-076, 1999 WL 435114, *3 (June 30,

1999).

{¶15} This court has held that where evidence of pain and suffering is disputed, a jury is not required to award damages for pain and suffering even when it

awards damages for medical expenses. Weber, 1st Dist. Hamilton No. C-100801,

2011-Ohio-6718 (reversing the granting of a new-trial motion where jury awarded

medical expenses, but only $10 for pain and suffering); Ross, 1st Dist. Hamilton No.

C-030301, 2003-Ohio-7147 (affirming the denial of a Civ.R. 59(A)(6) new-trial

motion where the jury awarded $50 for medical expenses, but nothing for pain and

suffering). Other districts follow this approach. See Haller v. Daily, 2d Dist.

Montgomery No. 19420, 2003-Ohio-1941; Herceg v. Lifson, 4th Dist. Washington

No. 18CA17, 2019-Ohio-4072; Lytle v. Pukys, 5th Dist. Stark No. 2014 CA 00115,

2015-Ohio-1354; Burris v. Burnworth, 7th Dist. Jefferson No. 06 JE 52, 2007-Ohio-

4619; Uhlir; Mensch v. Fisher, 11th Dist. Portage No. 2002-P-0055, 2003-Ohio-5701.

{¶16} However, we have held that the trial court abused its discretion in denying a new trial under Civ.R. 59(A)(6) where the jury awarded damages for

medical expenses but not for pain and suffering despite undisputed evidence that the

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plaintiff experienced pain and suffering. See Whiteside v. Bennett, 1st Dist.

Hamilton No. C-050605, 2006-Ohio-3600; Scott v. Condo, 1st Dist. Hamilton No. C-

010123, 2002-Ohio-2148; Boldt v. Kramer, 1st Dist. Hamilton No. C-980235, 1999

WL 299888 (May 14, 1999). Where there is uncontroverted evidence of pain and

suffering, an award of medical expenses without an award for pain and suffering is

against the manifest weight of the evidence. See Johnson v. Burris, 5th Dist.

Guernsey No. 14 CA 12, 2015-Ohio-260; Farkas v. Detar, 126 Ohio App.3d 795, 711

N.E.2d 703 (9th Dist.1998); Cooper v. Moran, 11th Dist. Lake No. 2010-L-141, 2011-

Ohio-6847; Kubilis v. Owens, 12th Dist. Butler No. CA2007-03-065, 2008-Ohio-

3728.

{¶17} We therefore must determine in this case whether there was disputed or undisputed evidence of pain and suffering.

1. Luigi Berardo

{¶18} On appeal, the Berardos assert that the jury’s award of $4,000 to Luigi Berardo for past pain and suffering and $0 for future pain and suffering was against

the weight of the evidence.

{¶19} At trial, the Berardos presented evidence that as a result of the December 2015 accident with Felderman-Swearingen, Mr. Berardo suffered a torn

rotator cuff in his shoulder that required surgery and that he was treated by a

chiropractor for back and neck sprain/strain. Mr. Berardo testified that for at least

four months after the surgery, he was in such pain that he had to sleep in a recliner

and had to rely on his wife for the simplest of tasks. He said that his constant

shoulder pain went away over time and that within about six months, he was able to

return to work and play golf several times a week. He testified that he operated a

meat market and catering business where he worked 12-hour days and his duties

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included lifting beef and produce, and sometimes a grill. In addition, Mr. Berardo

testified that since the accident, he had traveled to Florida and to the Grand Canyon,

and had taken two trips to Italy.

{¶20} Mr. Berardo acknowledged that he neglected to tell his chiropractor, William Slater, D.C., that he had back problems prior to the accident. Mr. Berardo

testified that Dr. Slater had not told him he would need chiropractic treatment in the

future.

{¶21} Dr. Slater testified that Mr. Berardo’s back and neck sprain/strain had been caused by the accident. He testified that whether the accident had caused new

injuries or had aggravated preexisting degenerative conditions, his treatment of Mr.

Berardo would have been the same.

{¶22} Joseph Thomas, M.D., testified that he performed surgery to repair Mr. Berardo’s torn rotator cuff and that Mr. Berardo had recovered well by June

2016. Dr. Thomas testified that Mr. Berardo had not given him an accurate history

in that Mr. Berardo did not relay that he had a prior shoulder injury that he

sustained in a December 2013 fall, two years before the accident in this case. Dr.

Thomas noted that Mr. Berardo’s treatment for the prior shoulder injury had ended

in August 2014. He testified that while the 2013 incident may have caused some

injury to Mr. Berardo’s rotator cuff, the tear in the rotator cuff was causally related to

the accident in this case. Dr. Thomas testified that he would not say within a

reasonable degree of medical certainty that Mr. Berardo would suffer shoulder pain

in the future as a result of the injury.

{¶23} The defense medical expert, Thomas Bender, M.D., testified that he examined Mr. Berardo and reviewed his relevant medical records. In his opinion,

Mr. Berardo’s rotator-cuff tear was causally related to the accident. He opined that

Mr. Berardo had recovered well, such that he would need no further medical

treatment for his shoulder. When asked about Mr. Berardo’s neck and back

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strain/sprain, Dr. Bender testified that soft-tissue injuries typically resolve within

four months of injury.

{¶24} Having reviewed the record, we cannot say that the jury’s award of $4,000 for Mr. Berardo’s past pain and suffering and $0 for future pain and

suffering was against the manifest weight of the evidence. With respect to past pain

and suffering, the jury heard evidence that Mr. Berardo had recovered well from his

injuries in the accident and that he had previously been treated for back and

shoulder problems. With respect to future pain and suffering, the jury heard

evidence that Mr. Berardo was playing golf, traveling, and working, and his surgeon

could not give an opinion as to his future pain and suffering. The assessment of

damages was for the jury, see Weber, 1st Dist. Hamilton No. C-100801, 2011-Ohio-

6718, at ¶ 17, as was credibility of the witnesses.

{¶25} We hold that there was sufficient credible evidence supporting the jury’s verdict as to Mr. Berardo and that, therefore, the trial court did not abuse its

discretion in denying a new trial for inadequate damages under Civ.R. 59(A)(6) with

respect to Mr. Berardo.

2. Tina Berardo

{¶26} The Berardos also assert that the jury’s award of $0 to Tina Berardo for past pain and suffering was against the weight of the evidence.

{¶27} At trial, the Berardos presented evidence that the morning after the accident with Felderman-Swearingen, Mrs. Berardo had numbness in her neck,

shoulder, arm, and hand. Mrs. Berardo testified that she was limping because she

had bad bruising on one of her legs. She testified that she resisted getting medical

care for almost two weeks, explaining, “I hate hospitals and I hate doctors. * * * I

won’t go unless I can’t walk, can’t talk, can’t breathe.”

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶28} Mrs. Berardo went to Stephen Dailey, M.D., who diagnosed her with cervical sprain/strain and lumbosacral sprain/strain. An MRI of her left shoulder

revealed some mild arthritis and some rotator cuff tendinosis. An MRI of Mrs.

Berardo’s cervical spine revealed multilevel degenerative changing, including

changes at the C6/C7 disc bulge. Dr. Dailey testified that Mrs. Berardo responded

well to physical therapy and to injections in her shoulder. In his opinion, Mrs.

Berardo’s injuries were causally related to the accident. With respect to her pre-

existing degenerative conditions, Dr. Dailey said it was possible that the accident

accelerated the process, but he could not be sure.

{¶29} Dr. Bender, the defense medical expert, examined Mrs. Berardo and reviewed her medical records. He described the symptoms that Mrs. Berardo

presented to Dr. Dailey as “neck and radiating left arm pain, back and radiating left

leg pain.” According to Dr. Bender, the MRI imaging revealed substantial pre-

existing degenerative changes that were unassociated with the accident. Dr. Bender

testified that Mrs. Berardo sustained a spinal sprain/strain and a left shoulder

sprain/strain that was casually related to the accident, that she required the medical

treatment that she received, and that her pain symptoms went away. In Dr. Bender’s

opinion, Mrs. Berardo “experienced a temporary subjectively increased amount of

symptoms” that resolved. In other words, Mrs. Berardo experienced pain from

which she recovered.

{¶30} Because there was uncontroverted evidence that Mrs. Berardo experienced pain and suffering as a result of the injuries sustained in the accident,

the jury’s award of medical expenses without any award for past pain and suffering

was against the manifest weight of the evidence. See Whiteside, 1st Dist. Hamilton

No. C-050605, 2006-Ohio-3600; Scott, 1st Dist. Hamilton No. C-010123, 2002-

Ohio-2148; Boldt, 1st Dist. Hamilton No. C-980235, 1999 WL 299888. Therefore,

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we hold that the trial court abused its discretion by denying a new trial for

inadequate damages under Civ.R. 59(A)(6) with respect to Mrs. Berardo.

D. Contrary to Law

{¶31} A trial court may grant a new trial under Civ.R. 59(A)(7) if the judgment is contrary to law. The Berardos argue that the judgment awarding low

noneconomic damages to Mr. Berardo and zero noneconomic damages to Mrs.

Berardo is contrary to the law, “which states that where a plaintiff is injured by the

negligence of another then the plaintiff is to be compensated for said damages.”

They cite no authority for this proposition. As we stated in Weber, “it does not follow

that when evidence of pain and suffering is disputed, the jury must award some

damages for pain and suffering, even when it awards damages for medical expenses.”

Weber, 1st Dist. Hamilton No. C-100801, 2011-Ohio-6718, at ¶ 24.

{¶32} We have already determined that the judgment was against the manifest weight of the evidence with respect to the jury’s $0 award to Mrs. Berardo

for past pain and suffering, and that the judgment was not against the weight of the

evidence with respect to Mr. Berardo. Accordingly, the judgment was not contrary to

law under Civ.R. 59(A)(7). The sole assignment of error is sustained in part and

overruled in part.

III. Conclusion

{¶33} Accordingly, we hold that the trial court did not abuse its discretion by denying the motion for a new trial under Civ.R. 59(A)(4) because the Berardos

pointed to nothing in the record to show that the jury’s award was the product of

passion or prejudice. We further hold that the trial court did not err by denying the

motion for a new trial under Civ.R. 59(A)(7) because its judgment was not contrary

12 OHIO FIRST DISTRICT COURT OF APPEALS

to law. In addition, we hold that the trial court did not abuse its discretion by

denying a new trial under Civ.R. 59(A)(6) with respect to Mr. Berardo because

sufficient credible evidence supported the jury’s verdict. However, we hold that the

trial court abused its discretion by denying a new trial under Civ.R. 59(A)(6) with

respect to Mrs. Berardo because, where there was uncontroverted evidence that she

experienced pain and suffering as a result of the injuries sustained in the accident,

the jury’s award of medical expenses without an award for pain and suffering was

against the manifest weight of the evidence. Consequently, we reverse the trial

court’s judgment in part and remand this cause for a new trial on the issue of

damages with respect to Mrs. Berardo’s past pain and suffering. We affirm the

judgment in all other respects.

Judgment accordingly.

BERGERON and WINKLER, JJ., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.