[Cite as Terrago-Snyder v. Mauro, 2010-Ohio-5524.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
CARIE TERRAGO-SNYDER, et al. ) CASE NO. 08 MA 237 ) PLAINTIFFS-APPELLEES ) ) VS. ) OPINION ) CAROL MAURO ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2005 CV 580
JUDGMENT: Affirmed in Part. Reversed in Part. Modified.
APPEARANCES: For Plaintiff-Appellee: Atty. Patrick C. Fire 721 Boardman-Poland Road Boardman, Ohio 44512
For Defendant-Appellant: Atty. Adam E. Carr The Carr Law Office, LLC 5824 Akron-Cleveland Road, Suite A Hudson, Ohio 44236
Atty. Curtis J. Ambrosy Ambrosy & Fredericka 144 North Park Avenue, #200 Warren, Ohio 44481-1124
JUDGES: Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: November 12, 2010 [Cite as Terrago-Snyder v. Mauro, 2010-Ohio-5524.] WAITE, J.
{¶1} This negligence action arose as a result of an automobile accident that
occurred on April 7, 2003, when a vehicle driven by Appellant, Carol J. Mauro, struck
a vehicle being driven by Appellee, Carie Terrago-Snyder. Catherine Terrago
(Carie’s mother), and Appellees, Ronald and Dylan Snyder (Carie’s then seven year
old fraternal twins) were passengers in Carie’s car when the accident occurred.
{¶2} At trial, Appellant admitted negligence and the only issue before the jury
was damages. According to the verdict form, the jury awarded damages in the
following amounts: $18,429 to Carie for her medical bills and the medical bills of her
children and $7,500 to Carie for pain and suffering; $24,000 to Ronald for pain and
suffering, and $182,000 to Ronald for permanent injuries; $9,000 to Dylan for pain
and suffering, and $4,000 to Dylan for permanent injuries; and $8,618.22 to
Catherine for medical bills and $2,500 to Catherine for pain and suffering. At a post-
trial hearing, the trial court granted a motion for prejudgment and post-judgment
interest filed on behalf of Carie, Ronald and Dylan.
{¶3} Appellant appeals two judgment entries of the Mahoning County Court
of Common Pleas: the judgment entry memorializing the $182,000 award for
Ronald’s permanent injuries and the subsequent judgment entry awarding
prejudgment interest to Carie, Ronald, and Dylan.
{¶4} Appellant contends that there was insufficient evidence to support
Ronald’s award for permanent injuries. This argument provides the basis for the first
three of Appellant’s four assignments of error: the trial court erred when it permitted
the jury to award future damages to Ronald; the trial court erred in not granting a -2-
judgment notwithstanding the verdict on the $182,000 award; and the trial court erred
when it denied a motion for new trial on the future damage award for Ronald. In her
fourth assignment of error, Appellant claims that the trial court erred in awarding
prejudgment interest in this case to Carie, Ronald and Dylan.
{¶5} Appellees filed a motion to dismiss the appeal based on App.R. 12, as
well as a motion for attorney fees pursuant to App.R. 23, arguing that Appellant’s
failure to object at trial to the permanent injury verdict form for Ronald waived any
challenge to the damages award for Ronald on appeal. Appellees further contend
that the appeal of the prejudgment interest award constitutes frivolous conduct on the
part of Appellant.
{¶6} Appellant filed a motion to strike the motion to dismiss, arguing that the
motion to dismiss constituted a surreply. Appellant argues that the motion to dismiss
was filed without leave of this Court, the fourteen page brief violates page limits set
forth in App.R. 16(C), and the content of a surreply is limited to new matters raised in
the answer brief.
{¶7} For the following reasons, Appellees’ motion to dismiss is denied, and
the judgment entries of the trial court are affirmed, however the prejudgment interest
award is modified to reflect the following amounts pursuant to the current version of
R.C. 1343.03: $6,200.73 for Carie; $5,739.43 for Ronald; and $2,152.28 for Dylan.
ASSIGNMENT OF ERROR NO. 1
{¶8} “THE TRIAL COURT ERRED IN PERMITTING THE JURY TO AWARD
FUTURE DAMAGES TO APPELLEE RONALD SNYDER, IV.” -3-
{¶9} At trial, Carie sought and was awarded future damages on Ronald’s
behalf in the amount of $182,000 for permanent injuries based upon chronic
headaches, which began approximately one month after the accident, and that
Ronald continued to suffer as of the date of trial. Thomas Yankush, DC, a
chiropractor board certified in orthopedics, provided medical testimony on behalf of
Appellees at trial. Appellant asserts that Dr. Yankush was not qualified to express an
opinion as to the alleged permanency of Ronald’s chronic headaches. In her first
assignment of error, she contends that the trial court erred in instructing the jury on
permanent or future damages based upon the lack of qualified medical testimony that
Ronald suffered permanent injuries as a result of the accident.
{¶10} In order to determine the propriety of the future damages instruction, we
must determine whether Dr. Yankush was qualified to provide expert testimony
regarding Ronald’s injuries. “Expert testimony is needed on complex issues outside
the area of common knowledge, such as an injury’s cause and effect.” Polen v.
Gilmore (Sept. 25, 2001), 7th Dist. No. 99 520 CA, *2. “Except as to questions of
cause and effect which are so apparent as to be matters of common knowledge, the
issue of the causal connection between an injury and a specific subsequent physical
disability involves a scientific inquiry and must be established by the opinion of
medical witnesses competent to express such opinion.” Id. citing Darnell v. Eastman
(1970), 23 Ohio St.2d 13, 17, 261 N.E.2d 114, syllabus.
{¶11} A trial court’s determination of the admissibility of expert testimony is
reviewed for abuse of discretion. Valentine v. Conrad, 110 Ohio St.3d 42, 2006-
Ohio-3561, 850 N.E.2d 683, at ¶9. An abuse of discretion suggests -4-
unreasonableness, arbitrariness, or unconscionability. Without those elements, it is
not the role of this Court to substitute its judgment for that of the trial court.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶12} “ ‘Courts should favor the admissibility of expert testimony whenever it
is relevant and the criteria of Evid.R. 702 are met.’ ” Terry v. Caputo, 115 Ohio St.3d
351, 2007-Ohio-5023, 875 N.E.2d 72, ¶23, quoting State v. Nemeth (1998), 82 Ohio
St.3d 202, 207, 694 N.E.2d 1332. Evid.R. 702 provides that a witness may testify as
an expert if all of the following apply:
{¶13} “(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;
{¶14} “(B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter of the testimony;
{¶15} “(C) The witness' testimony is based on reliable scientific, technical, or
other specialized information. * * *”
{¶16} Additionally, Evid.R. 703 provides: “The facts or data in the particular
case upon which an expert bases an opinion or inference may be those perceived by
him or admitted in evidence at the hearing.”
{¶17} Dr. Yankush stated that he typically treats “musculoskeletal-type
problems, and that’s like low back, neck injuries, shoulders, knees, things of that
nature, elbows,” and “orthopedic-type problems.” (Trial Tr., p. 190.) According to Dr.
Yankush’s notes, Ronald presented to him on April 25, 2003 with complaints of neck
and back pain. Dr. Yankush diagnosed “cervical and an upper back or a dorsal -5-
sprain/strain type of an injury.” (Trial Tr., p. 198.) He explained that a sprain is an
injury to a ligament, which is the soft tissue structure that holds the bones together.
Sudden force stretches the bones apart and causes damage to the ligament. (Trial
Tr., pp. 198-199.) Dr. Yankush diagnosed a moderate strain with “significant muscle
spasms, swelling, [and] restriction in motion in the joints.” (Trial Tr., pp. 199-200.)
{¶18} The medical records of a pediatric neurologist, Thomas Kalavsky, MD,
who did not testify at trial, were admitted as a part of a joint exhibit offered by the
parties. Dr. Kalavsky’s medical report, dated November 11, 2003, reads, in pertinent
part:
{¶19} “HISTORY OF PRESENT ILLNESS:
{¶20} “This 8-year-old was referred because of headaches.
{¶21} “On April 7, 2003. In [sic] back seat of car which hit another car. He hit
his face on the seat in front of him. He was knocked out briefly. He didn’t talk for 3
days. He didn’t vomit. Fracture of facial bones. A CT of head – brain normal. When
he started to talk he had pain in his left mandible. In May he started getting
headaches. They occur almost every day. He has no aura. The pain starts in the
left orbital region. The onset is gradual. His ‘black eye’ comes back out again. The
intensity is 5/5. He can’t describe the quality. He vomits about 2 / month [sic]. He
has no dizziness, rash, or fever. He has no change in vision, hearing, sensation,
strength, or speech. They last hours. Light, exertion, noise makes them worse;
Sleep, eating peanut butter makes them better. The onset is usually after lunch, in
the sun, if playing hard, or playing videogames. The onset is not related to day of
week, location, particular meals, meals, position, ambient temperature, or chewing. -6-
Tylenol will help if given early, Motrin makes him vomit, excedrin quick tabs [sic]
helps if given early. He hasn’t had any recent blood work.
{¶22} “Last year he missed a couple weeks of school. He’s in the nurse’s
office for 1-2 hours. He’s in regular class 2nd grade. He excels in everything except
reading. He hasn’t lost any skills. He has a concentration problem. He hasn’t had
seizures.
{¶23} “* * *
{¶24} “IMPRESSION:
{¶25} “The daily headaches sound like muscle traction headaches, which
won’t respond well to medication but respond to relaxation techniques, like massage,
etc.
{¶26} “Its not clear if the headaches with vomiting are from the motrin [sic]. If
not some of the headaches may be migraine.
{¶27} “He probably has a dyslexia which might be worsening his muscle
traction headaches.” (9/18/08 JNOV Motion, Exh. A.)
{¶28} Dr. Yankush treated Ronald over the course of a three week period,
and there was no reference to Ronald’s headaches in his notes. However, according
to Dr. Kalavsky’s medical records, Ronald’s headaches began approximately one
month after the accident, which roughly coincides with the end of Ronald’s treatment
by Dr. Yankush. Consequently, it is not inconsistent with the testimony provided at
trial that the onset of Ronald’s headaches occurred after he concluded his treatment
with Dr. Yankush. -7-
{¶29} Dr. Yankush conceded that he was not qualified to treat Ronald’s facial
injuries. (Trial Tr., p. 197.) His notes indicate that he was treating Ronald for neck
and upper back pain with heat, “inferential,” mobilization, and exercises. He also
recommended that Carie purchase arch supports for Ronald. The notes document
Ronald’s continuous improvement, and the final entry reads:
{¶30} “S: Ronnie is doing pretty good. He doesn’t have any real complaints.
{¶31} “O: We have full and pain free neck and trunk ROM. He may still have
some sinus things going on and he’ll discuss that with his other treating physician.
{¶32} “P: At this time, I’m basically going to effectively see him in one month
for a recheck. I want him to stay with his home exercises.”
{¶33} Dr. Yankush diagnosed Ronald as suffering from muscle strain as a
result of the accident. He testified that muscle traction headaches are a common
result of the type of muscle strain suffered as a result of the accident:
{¶34} “Oftentimes following a moderate or severe sprain/strain injury like
[Ronald] sustained here to his neck where have you [sic] a sudden force driving your
head backwards and forwards, it can create a strain to the muscles. And sometimes
these will be nagging or the wax and the wane; they’ll come and they’ll go. What
they’ll do is go into a hypertensive state. And particularly at the base of the neck we
have what we call suboccipital nerves that come up through these muscles. And
sometimes when these muscles get into this spastic or this tension state, it will
compress the nerves and you’ll get these tension headaches. And that’s not
uncommon.
{¶35} “* * * -8-
{¶36} “They can typically come up through the back of the head to the
forehead to the facial region.” (Trial Tr., p. 202.)
{¶37} Dr. Yankush testified that he commonly treats muscle traction
headaches, and that the treatment includes ice, heat, muscle stimulation, and
manipulation. (Trial Tr., pp. 204-205.) Based on Ronald’s age at the time of the
injury, and the fact that Ronald continued to suffer headaches up to the date of the
trial, Dr. Yankush further testified that there was a “certain degree of permanency” to
Ronald’s injuries. (Trial Tr., p. 204.) Dr. Yankush’s testimony was uncontroverted,
as Appellant provided no expert medical testimony.
{¶38} Carie testified that Ronald frequently vomited as a result of the
headaches. (Trial Tr., pp. 284, 288, 307.) She testified that the headaches “started
to ease up” when Ronald was in the fourth grade. (Trial Tr., p. 287.) Ronald testified
that the headaches lessened in severity and frequency over time, and that, at the
time of trial, he suffered a headache about three times a month. (Trial Tr., p. 326.)
He stated that when he can sense the onset of a headache he can treat it before it
strikes. However, on the occasions when the onset is unavoidable, he will typically
vomit and he is usually forced to go to bed. (Trial Tr., p. 328.)
{¶39} The permanent injury jury instruction read in pertinent part:
{¶40} “[E]xcept for the plaintiff Catherine Terrago, each of the plaintiffs claim
their injuries are permanent and that they will experience pain and disability in the
future. Now, as to such claim, damages may be found by you which are reasonably
certain to exist in the future as the proximate result of this accident and as proven by
the evidence. -9-
{¶41} “If you find from the greater weight of the evidence that as a proximate
cause of the injuries sustained the plaintiffs have suffered a permanent disability
which is evidenced by way of the inability to perform the usual activities of life such
as the basic mechanical body movements of walking, climbing stairs, feeding oneself,
driving a car and so forth, or by way of the inability to perform the particular plaintiff’s
usual specific activities which had given pleasure to these individual plaintiffs, you
may consider and make a separate award for such damages.” (Trial Tr., pp. 457-
458.)
{¶42} The jury was given a verdict form that included lines captioned “Pain
and suffering to date” and “Permanent injuries” for Ronald.
{¶43} Appellant’s argument in the first assignment of error is twofold: first, Dr.
Yankush did not treat Ronald for his headaches; second, Dr. Yankush is not qualified
to offer expert testimony on Ronald’s headaches. With respect to Appellant’s first
argument, a non-treating physician’s expert testimony is not entitled to any less
weight than that of a treating physician. Coulter v. Stutzman, 10th Dist. No. 07AP-
1081, 2008-Ohio-4184, ¶15. With respect to the second argument, a prospective
witness does not have to be the best witness on the topic to qualify as an expert.
Haney v. Barringer, 7th Dist. No. 06MA141, 2007-Ohio-7214, ¶37, citing Ishler v.
Miller (1978), 56 Ohio St.2d 447, 453, 384 N.E.2d 296.
{¶44} A potential expert must demonstrate knowledge greater than that
possessed by an average juror. Id., citing State Auto Mut. Ins. Co. v. Chrysler Corp.
(1973), 36 Ohio St.2d 151, 160, 304 N.E.2d 891. Dr. Yankush testified on direct
examination that he sees and treats patients with muscle traction headaches in the -10-
course of his practice. His testimony established that the muscle strain in the neck
suffered by Ronald as a result of the accident is a common cause of muscle traction
headaches. Dr. Yankush’s testimony further established that Ronald’s headaches
would be an ongoing problem. Accordingly, the trial court did not abuse its discretion
in admitting his testimony. Appellant provided no expert testimony to refute Dr.
Yankush’s testimony, and Dr. Yankush did not contradict his own testimony on cross
examination.
{¶45} Turning to Appellant’s argument that the trial court erred when it
instructed the jury on future damages, it is important to note that her trial counsel did
not object to the future damages instruction or the verdict form. “Absent plain error, a
party waives any challenge to jury instructions in a civil case unless that party
‘objects before the jury retires to consider its verdict, stating specifically the matter
objected to and the grounds of the objection .’ ” Sayavich v. Creatore, 7th Dist. No.
07-MA 217, 2009-Ohio-5270, ¶101, citing Civ.R. 51(A).
{¶46} “In appeals of civil cases, the plain error doctrine is not favored and
may be applied only in the extremely rare case involving exceptional circumstances
where error, to which no objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” Goldfuss v.
Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d 1099, at paragraph one of the
syllabus.
{¶47} In Goldfuss, the Court explained that the doctrine shall only be applied
in extremely unusual circumstances where the error complained of, if left -11-
uncorrected, would have a material adverse effect on the character of and public
confidence in judicial proceedings. Id. at 121, 679 N.E.2d 1099. The Court
concluded that the public’s confidence is rarely upset merely by forcing civil litigants
to live with the errors they themselves or the attorney chosen by them committed at
trial. Id. at 121-122, 679 N.E.2d 1099.
{¶48} Generally, requested jury instructions should be given if they are a
correct statement of the law as applied to the facts in a given case. Murphy v.
Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 575 N.E.2d 828. “[A] court’s
instructions to the jury should be addressed to the actual issues in the case as
posited by the evidence and the pleadings.” State v. Guster (1981), 66 Ohio St.2d
266, 271, 421 N.E.2d 157. Because Dr. Yankush provided uncontroverted evidence
that Ronald’s reoccurring headaches were a permanent condition, the trial court did
not commit plain error in instructing the jury on future damages. As a consequence,
Appellant’s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
{¶49} “THE TRIAL COURT ERRED IN FAILING TO ISSUE JUDGMENT
NOTWITHSTANDING THE VERDICT TO ELIMINATE THE $182,000 IN FUTURE
DAMAGES FROM THE AWARD TO APPELLEE RONALD SNYDER, IV.”
{¶50} In her second assignment of error, Appellant challenges the trial court’s
decision denying her motion for judgment notwithstanding the verdict, in which she
moved the trial court to eliminate the $182,000 future damages award. A trial court
must grant a motion for a judgment notwithstanding the verdict if, upon construing the
evidence most strongly in favor of the party against whom the motion is directed, -12-
finds that upon any determinative issue reasonable minds could come to but one
conclusion upon the evidence submitted and that conclusion is adverse to such
party. Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, 137, 447 N.E.2d 1145.
{¶51} When engaging in this analysis, a court must neither weigh the
evidence nor evaluate the credibility of witnesses. Malone v. Courtyard by Marriott
L.P. (1996), 74 Ohio St.3d 440, 445, 659 N.E.2d 1242. “Rather, the court is
confronted solely with a question of law: Was there sufficient material evidence
presented at trial on this issue to create a factual question for the jury?” Id. We
review a trial court’s ruling on a motion for JNOV de novo. Goodyear Tire & Rubber
Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 969 N.E.2d 835,
¶4.
{¶52} As stated in our analysis of the first assignment of error, Dr. Yankush’s
uncontroverted testimony established that Ronald suffered muscle strain in his neck
as a result of the accident, muscle strain is a common cause of muscle traction
headaches, and Ronald’s headaches would be an ongoing problem. Dr. Yankush’s
testimony was sufficient to create a factual question for the jury regarding the
permanency of Ronald’s injuries. Therefore, Appellant’s second assignment of error
is overruled.
ASSIGNMENT OF ERROR NO. 3
{¶53} “THE TRIAL COURT ERRED IN FAILING TO ORDER A NEW TRIAL
ON THE ISSUE OF FUTURE DAMAGES FOR APPELLEE RONALD SNYDER, IV.”
{¶54} In her third assignment of error, Appellant claims that the trial court
erred in denying her motion for a new trial. The purpose of Civ.R. 59(A), captioned: -13-
“New trials,” is to empower the trial court to prevent a miscarriage of justice. Malone
at 448. “Civ.R. 59 allows, rather than mandates, a trial court to grant a new trial * * *.”
Sims v. Dibler, 7th Dist. No. 05 JE 53, 172 Ohio App.3d 486, 2007-Ohio-3035, 875
N.E.2d 965, ¶31, citing Eagle Am. Ins. Co. v. Frencho (1996), 111 Ohio App.3d 213,
218, 675 N.E.2d 1312.
{¶55} Civ. R. 59(A) reads, in pertinent part:
{¶56} “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:
{¶57} “* * *
{¶58} “(4) Excessive or inadequate damages, appearing to have been given
under the influence of passion or prejudice;
{¶59} “* * *
{¶60} “(6) The judgment is not sustained by the weight of the evidence;
however, only one new trial may be granted on the weight of the evidence in the
same case;
{¶61} “(7) The judgment is contrary to law;
{¶62} “* * *
{¶63} “(9) Error of law occurring at the trial and brought to the attention of the
trial court by the party making the application * * *”
{¶64} A court of appeals must affirm the decision of a trial court to deny a new
trial unless there is an abuse of discretion. Jones v. Booker (1996), 114 Ohio App.3d
67, 682 N.E.2d 1023. An abuse of discretion implies a decision that is unreasonable,
arbitrary, or unconscionable. Blakemore at 219, 450 N.E.2d 1140. -14-
{¶65} When a trial court’s decision on a motion for a new trial involves a
question of fact, a reviewing court must view the evidence in a light favorable to the
trial court’s decision. Osler v. Lorain (1986), 28 Ohio St.3d 345, 351, 504 N.E.2d 19,
citing Jenkins v. Krieger (1981), 67 Ohio St.2d 314, 320, 423 N.E.2d 856. When a
trial court’s decision on a motion for new trial involves a question of law, no deference
is afforded. Wagner v. Roche Laboratories (1999), 85 Ohio St.3d 457, 460, 709
N.E.2d 162.
{¶66} In her motion for new trial, Appellant argued that the jury verdict was
against the manifest weight of the evidence. Pursuant to a civil manifest weight of
the evidence standard of review, a reviewing court should defer to the judgment of
the trial court in factual determinations, and “[j]udgments supported by some
competent, credible evidence going to all the essential elements of the case will not
be reversed by a reviewing court.” Creative Concrete v. D & G Pools, 7th Dist No. 07
MA 163, 2008-Ohio-3338, ¶17, quoting C.E. Morris v. Foley Construction Co. (1978)
54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578 St.3d 12, 19, 526 N.E.2d 1350.
{¶67} As stated earlier, Dr. Yankush’s testimony constituted competent,
credible evidence that Ronald’s headaches constituted a permanent injury resulting
from the accident. Appellant adduced no evidence to the contrary. Consequently,
Appellant’s manifest weight of the evidence argument lacks merit.
{¶68} Appellant’s contention that the verdict was contrary to law and the result
of an error of law is also predicated on Dr. Yankush’s qualifications to provide expert
testimony. As we have previously concluded that the trial court did not abuse its -15-
discretion in admitting Dr. Yankush’s testimony in this case, these arguments must
also fail.
{¶69} Finally, Appellant argued that the future damages awarded to Ronald
were excessive based upon a lack of competent medical testimony, the admission of
photographs of Ronald after the accident, and statements made by Appellees’ trial
counsel during closing argument. Once again, as we have concluded that the trial
court did not abuse its discretion in admitting Dr. Yankush’s testimony, there is no
basis for Appellant’s assertion that the damage award was excessive due to a lack of
competent medical testimony.
{¶70} However, Appellant also contends that Ronald’s permanent injury
award was based on inappropriate statements made by Appellees’ trial counsel
during closing argument and photographs of Ronald’s injuries, rather than properly
admitted expert medical testimony as required by Ohio law. Appellant relies upon
statements made during closing arguments that Ronald had a sinus injury, that he
would need surgery on a deviated septum in the future, and that he would not be
able to fly an airplane (Ronald had testified that he wanted to be an airline
mechanic). She also relies upon photographs admitted into evidence to argue that
the jury’s permanent injury award was predicated upon statements unsupported by
the evidence, and photos “depicting a sorrowful seven-year-old boy with his face
severely swollen after the accident,” rather than the evidence adduced at trial.
(Appellant’s Brf., p. 14.)
{¶71} Appellant did not object to the introduction of the photos or the
statements made in closing arguments at trial. As such, Appellant must once again -16-
demonstrate that the admission of the photographs and statements during closing
argument constitute plain error. As stated earlier, the plain error doctrine is
disfavored and may be applied only in the extremely rare case involving exceptional
circumstances where the error “seriously affects the basic fairness, integrity, or public
reputation of the judicial process, thereby challenging the legitimacy of the underlying
judicial process.” Goldfuss, supra.
{¶72} Appellant filed supplemental authority and second supplemental
authority in support of her excessive damages argument. In State ex. rel. Cambridge
Health Care Inc. v. Industrial Commission of Ohio, 124 Ohio St.3d 477, 2010-Ohio-
651, 923 N.E.2d 1141, the Ohio Supreme Court held that a physical therapist’s report
is insufficient, on its own, to support an award of loss-of-use workers’ compensation
benefits, and that such a report may be considered only in conjunction with a doctor’s
report to determine the severity of a disability. Id. at ¶7, 17. The evidence in the
case sub judice does not include a physical therapist’s report, therefore Cambridge
Health Care is inapposite. Appellant’s counsel conceded at oral argument that
chiropractors are not treated by the same standards as physical therapists in Ohio.
{¶73} In Maggio v. City of Cleveland (1949), 151 Ohio St. 136, 84 N.E.2d 912,
the Ohio Supreme Court held that remarks by plaintiff’s counsel in opening statement
regarding a personal-injury plaintiff’s children and her mentally ill husband, as well as
a description of the previous accident responsible for her husband’s illness were
improper. The Court relied on Ohio law that evidence of a plaintiff’s dependents is
incompetent for the reason that such evidence tends to enhance the damages award
beyond the legally recoverable sum. There was no evidence suggesting that Ronald -17-
had dependents that relied upon him for their case and support, so Maggio is also
inapposite.
{¶74} In Hayes v. Smith (1900), 62 Ohio St. 161, 56 N.E.2d 879, a dog owned
by Hayes attacked a horse pulling a buggy owned and occupied by Smith, which
caused the buggy to overturn and severely injure Smith. Smith argued that Hayes
was aware of the dog’s vicious nature and propensity for attacking horses attached to
wagons. The Hayes Court reversed the trial court’s denial of the motion for new trial
for several reasons, including the use of hypothethicals during cross-examination,
and accusations by Smith’s counsel before the jury that Hayes’ counsel was
attempting to suppress the truth. It appears that Appellant is relying upon Hayes for
the proposition that trial counsel’s attack on opposing counsel during argument was
grounds for a new trial. However, the closing argument in this case did not result in
the manifest prejudice found in Hayes.
{¶75} Simply stated, none of the cases cited by Appellant as supplemental
authority have convinced us that the admission of the photographs or the statements
of Appellant’s trial counsel during closing arguments constitute plain error under the
civil plain error standard. Accordingly, Appellant’s third assignment of error is
overruled.
ASSIGNMENT OF ERROR NO. 4
{¶76} “THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
PREJUDGMENT INTEREST.”
{¶77} The ultimate decision to award prejudgment interest is reposed in the
trial judge and the standard of review on appeal is abuse of discretion. Ziegler v. -18-
Wendel Poultry Serv., Inc. (1993), 67 Ohio St.3d 10, 20, 615 N.E.2d 1022, 1032.
Prejudgment interest awards are governed by R.C. 1343.03(C). The current version
of the statute, amended June 4, 2004, reads, in its entirety:
{¶78} “(C)(1) If, upon motion of any party to a civil action that is based on
tortious conduct, that has not been settled by agreement of the parties, and in which
the court has rendered a judgment, decree, or order for the payment of money, the
court determines at a hearing held subsequent to the verdict or decision in the action
that the party required to pay the money failed to make a good faith effort to settle the
case and that the party to whom the money is to be paid did not fail to make a good
faith effort to settle the case, interest on the judgment, decree, or order shall be
computed as follows:
{¶79} “(a) In an action in which the party required to pay the money has
admitted liability in a pleading, from the date the cause of action accrued to the date
on which the order, judgment, or decree was rendered;
{¶80} “(b) In an action in which the party required to pay the money engaged
in the conduct resulting in liability with the deliberate purpose of causing harm to the
party to whom the money is to be paid, from the date the cause of action accrued to
the date on which the order, judgment, or decree was rendered;
{¶81} “(c) In all other actions, for the longer of the following periods:
{¶82} “(i) From the date on which the party to whom the money is to be paid
gave the first notice described in division (C)(1)(c)(i) of this section to the date on
which the judgment, order, or decree was rendered. The period described in division
(C)(1)(c)(i) of this section shall apply only if the party to whom the money is to be paid -19-
made a reasonable attempt to determine if the party required to pay had insurance
coverage for liability for the tortious conduct and gave to the party required to pay
and to any identified insurer, as nearly simultaneously as practicable, written notice in
person or by certified mail that the cause of action had accrued.
{¶83} “(ii) From the date on which the party to whom the money is to be paid
filed the pleading on which the judgment, decree, or order was based to the date on
which the judgment, decree, or order was rendered.
{¶84} “(2) No court shall award interest under division (C)(1) of this section on
future damages, as defined in section 2323.56 of the Revised Code, that are found
by the trier of fact.”
{¶85} The 2004 amendments to the statute served to limit prejudgment
interest awards. The amended statute prohibits prejudgment interest awards
predicated on future damages, which were permissible under the previous law. The
current version of the statute mandates that prejudgment interest awards date back
to the day that the cause of action accrued only where liability was admitted in a
pleading or the injury was the result of intentional conduct, while the old statute
mandated that prejudgment interest awards date back to the day that the cause of
action accrued without limitation.
{¶86} Appellant argues that the amended statute should apply in this case,
citing our decision in Scibelli v. Pannunzio, 7th Dist. No. 05 MA 150, 2006-Ohio-5652.
In Scibelli, the plaintiff filed his complaint prior to the effective date of the 2004
amendment to the prejudgment interest statute. Applying the test articulated in Van
Fossen v. Babcock & Wilson Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, we -20-
concluded that the General Assembly did not intend that the amendment to
subsection (C) of the statute should be applied retroactively to pending cases.
Scibelli at ¶149.
{¶87} The Scibelli Court specifically rejected the argument raised by
Appellees in the case sub judice, that the legislature intended a retroactive
application of the entire statute based upon uncodified law that specifically addressed
the retroactive application of subsection (A) of the statute. This Court held that the
uncodified law addressing the interest rate provision was “a contraindicator of
legislative intent to make other divisions retroactive.” Id. at ¶147.
{¶88} Here, the accident occurred prior to the statutory amendments, but the
complaint was filed after the effective date of the amended statute. The trial court
awarded prejudgment interest on the entire award dating back to the date of the
accident. In this case, Appellant did not admit liability in a pleading, nor is there any
evidence that she deliberately caused Appellees’ injuries. Based upon our decision
in Scibelli, the trial court erred when it applied the previous version of the statute in
fashioning the prejudgment interest award.
{¶89} According to the current statute, Appellees’ prejudgment interest award
is limited to the damages award for medical bills and pain and suffering. Further, as
there is no evidence that Appellees gave “first notice,” as that term is defined by the
statute, prejudgment interest runs from the date that the complaint was filed.
{¶90} Turning to the substantive issues, the Ohio Supreme Court has held
that there are four requirements to an award of prejudgment interest: (1) a timely
motion within 14 days after judgment; (2) a hearing on the motion; (3) a finding by the -21-
court that the party required to pay failed to make a good faith effort to settle; and (4)
a finding by the court that the party to whom the judgment is to be paid made a good
faith effort to settle. Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 658,
635 N.E.2d 331.
{¶91} The trial court must exercise its discretion to determine whether a party
acted in good faith or failed to make a good faith effort to settle. Id. If the record
contains competent, credible evidence supporting the trial court's decision, there is
no abuse of discretion. Patterson v. Colla, 7th Dist. No. 03-MA-18, 2004-Ohio-3033,
at ¶44. The burden of proof is on the party seeking prejudgment interest. Moskovitz
at 659, 635 N.E.2d 331.
{¶92} Lack of good faith is not the same as bad faith. Id. The Ohio Supreme
Court has defined what constitutes lack of a good faith effort in the negative:
{¶93} “A party has not ‘failed to make a good faith effort to settle’ under R.C.
1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally
evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any
of the proceedings, and (4) made a good faith monetary settlement offer or
responded in good faith to an offer from the other party. If a party has a good faith,
objectively reasonable belief that he has no liability, he need not make a monetary
settlement offer.” Kalain v. Smith (1986), 25 Ohio St.3d 157, 495 N.E.2d 572, at the
{¶94} The Moskovitz Court added that the last sentence of the Kalain syllabus
should be strictly construed so as to carry out the purposes of R.C. 1343.03(C).
Moskovitz, 69 Ohio St.3d at 659, 635 N.E.2d 331. The purposes of R.C. 1343.03(C) -22-
are “ ‘to promote settlement efforts, to prevent parties who have engaged in tortious
conduct from frivolously delaying the ultimate resolution of cases, and to encourage
good faith efforts to settle controversies outside a trial setting.’ ” Id. at 658, 635
N.E.2d 331, quoting Kalain at 159, 495 N.E.2d 572.
{¶95} At the hearing on the motion for prejudgment interest, Appellees’ trial
counsel stated that a demand for $12,000 was made on behalf of Carie, a demand of
$25,000 for Dylan, and a demand of $45,000 for Ronald. (Hrg. Tr., p. 11.) An offer
of $8,000 was made to Carie, and an offer of $11,199 was made to Dylan, but no
offer was made to Ronald until the final pretrial conference. (Hrg. Tr., p. 11.)
{¶96} There was no movement from the original offers to Carie and Dylan at a
court-ordered mediation held in July of 2006, and no response was provided to a
letter that Appellees’ counsel sent to the adjuster in December of 2007. (Hrg. Tr., pp.
8-9.) The letter set forth a history of Appellees’ injuries and their respective medical
bills, as well as a reduced demand intended to evoke a settlement.
{¶97} According to Appellees’ counsel, he fulfilled his duty to document the
extent of Ronald’s injuries, and ongoing medical problems, because he assumed that
some offer would be made. He claims that he was never approached for additional
documentation regarding Ronald’s injuries. (Hrg. Tr., p. 10.)
{¶98} At the final pretrial conference, which was conducted four days before
the trial, the adjuster offered $1,152 for Ronald. (Hrg. Tr., p. 12.) According to
Appellees’ trial counsel, the adjuster stated that Ronald’s dental records had not
been made available to her. (Hrg. Tr., p. 12.) -23-
{¶99} According to Appellees’ trial counsel, Appellant’s trial counsel conceded
that, with $5,008 in medical bills, a larger settlement offer should have been made.
(Hrg. Tr., pp. 12-13.) On the day of trial, an offer of $11,592 was made to Ronald.
According to Appellees’ trial counsel, Appellant’s trial counsel conceded that, with
Ronald’s ongoing headaches, a larger settlement offer would have been expected.
(Hrg. Tr., p. 13.)
{¶100} Appellant’s trial counsel did not appear at the hearing on the motion
for prejudgment interest. The attorney who attended the hearing on behalf of
Appellant was an associate at her trial counsel’s law firm, and he explained that it
was the standard procedure of the firm to assign new counsel for post-trial motions
and appeals. (Hrg. Tr., p. 3.) Appellees’ trial counsel attempted to call the adjuster
as a witness at the hearing, but was told that she had a sick child who was
hospitalized and that she could not attend. (Hrg. Tr., pp. 11-12.)
{¶101} Appellant’s counsel sought to continue the hearing due to the
unavailability of the adjuster and Appellant’s trial counsel, and objected to the trial
court’s reliance on any statements allegedly made by them, which he argued
constituted hearsay. (Hrg. Tr., p. 40.)
{¶102} The claims file revealed that Appellant’s insurance company had
placed $25,000 in reserve for Ronald, $5,000 for Carie, and $5,000 for Dylan.
According to Appellees’ trial counsel, medical authorizations were provided to
Appellant’s trial counsel and the adjuster, as well as medical records for each of the
injured parties. (Hrg. Tr., p. 8.) Appellant’s counsel argued that the reserves were -24-
irrelevant, because Appellees’ counsel had failed to explain their relevance to the
claims, and, in fact, that they merely serve a bookkeeping function.
{¶103} Appellant’s counsel argued that Appellees never provided complete
information regarding their injuries. More specifically, he argued that there was no
evidence of the permanency of Ronald’s injuries prior to trial. (Hrg. Tr., p. 34.) He
further argued that Appellees’ trial counsel requested three continuances during the
course of the lawsuit.
{¶104} At the hearing on the motion for prejudgment interest, the trial court
concluded that the pretrial offer made by Appellant was “absolutely almost insulting.”
(Hrg. Tr., pp. 51-52.) The trial court recalled that, at numerous pretrial conferences,
there was no offer made to Ronald, despite photographs detailing his injuries. The
court expressed particular concern that the adjuster had not made an offer that would
cover the medical bills in this case. (Hrg. Tr., p. 51.) Ultimately, the trial court
characterized the settlement offer as an act of bad faith on the part of Appellant’s
insurer. (Hrg. Tr., p. 52.)
{¶105} Evidently, the trial court credited the rendition of the settlement
negotiations provided by Appellees’ trial counsel. The court did not accept
Appellant’s assertion that she was ambushed by Ronald’s claim for permanent
injuries at trial or that Appellant’s insurance company was not provided complete
medical records prior to trial. The trial court also rejected Appellant’s claim that
Appellees were responsible for pretrial delay due to their motions to continue the trial.
According to the docket, the trial was continued twice due to the unavailability of the
trial court. Appellees filed two motions to continue pretrials, but neither resulted in -25-
undue delay. Thus, competent, credible evidence exists supporting the trial court’s
decision, and there is no abuse of discretion. Patterson, supra.
{¶106} Therefore, Appellant’s fourth assignment of error is sustained in part,
and overruled in part. There is sufficient evidence to support the award of
prejudgment interest in this case, however, the amounts awarded are modified
pursuant to the current version of R.C. 1343.03 as follows:
{¶107} Carie: prejudgment interest in the amount of $6,200.73 for a total
award of $32,129.73;
{¶108} Ronald: prejudgment interest in the amount of $5,739.43 for a total
award of $211,739.43;
{¶109} Dylan: prejudgment interest in the amount of $2,152.28 for a total
award of $15,152.28.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.