Dixon v. O'Brien

[Cite as Dixon v. O'Brien, 2013-Ohio-1429.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

CLARK DIXON, et al., )
) CASE NO. 12 MA 19
PLAINTIFFS-APPELLANT, )
)
- VS - ) OPINION
)
THOMAS J. O'BRIEN, et al., )
)
DEFENDANTS-APPELLEES. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Case No. 08 CV 1551.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiffs-Appellant: Attorney Gregg Rossi
Rossi & Rossi
26 Market Street, 8th Floor
Huntington Bank Bldg.
P.O. Box 6045
Youngstown, OH 44501

For Defendants-Appellees: Attorney Adam Carr
The Carr Law Office, LLC
5824 Akron-Cleveland Rd., Suite A
Hudson, OH 44236

JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich

Dated: March 25, 2013
[Cite as Dixon v. O'Brien, 2013-Ohio-1429.]
DeGenaro, P.J.
{¶1} Plaintiff-Appellant Clark Dixon appeals the judgment of the Mahoning
County Court of Common Pleas denying his motions for judgment notwithstanding the
verdict and for a new trial, following a jury verdict in favor of Defendant-Appellee, Thomas
J. O'Brien, in a negligence action stemming from an automobile accident. On appeal,
Dixon takes issue with two evidentiary rulings during trial and claims the court erred by
giving a defense verdict form to the jury. Further, he argues that the trial court erred in
denying his motion for a new trial and for JNOV.
{¶2} All of Dixon's arguments are meritless. Neither the evidentiary rulings nor
providing a defense verdict form to the jury constitutes an abuse of discretion. The trial
court properly denied the motion for JNOV as there was sufficient evidence presented at
trial so as to create jury questions regarding proximate cause and damages. Finally the
trial court did not abuse its discretion in denying the new trial motion as it does not appear
the jury lost its way or that the verdict was manifestly unjust. Accordingly, the judgment of
the trial court is affirmed.
Facts and Procedural History
{¶3} On August 20, 2006, a vehicle driven by O'Brien rear-ended a vehicle driven
by Dixon, while exiting a gas station parking lot in Columbus. Dixon's daughter Andrea
and her friend were back-seat passengers in Dixon's vehicle. Neither vehicle sustained
significant damage, the police were not called, and no one involved reported any injuries
at the scene. The parties exchanged information and drove to their respective homes,
Dixon to Canfield, and O'Brien to a Dayton suburb.
{¶4} On April 15, 2008, Dixon filed suit against O'Brien. The parties stipulated
that O'Brien's negligence caused the accident. Damage to Dixon's vehicle was also not
an issue. The remaining issues of proximate cause and personal injury damages,
specifically involving Dixon's allegations of injury to his neck and right wrist, were tried
before a jury with a magistrate presiding. Prior to trial, the parties entered into a
stipulation to waive all objections to the decisions of the magistrate. The following
evidence was adduced at trial.
{¶5} According to Dixon, his vehicle, a Nissan Xterra, was stopped and preparing
 -2-

to turn onto a road, when it was struck from behind by O'Brien's vehicle without warning.
He stated the impact was "pretty hard," and that his daughter's beverages flew to the front
of the truck as a result. His truck moved forward slightly, but was not pushed into the
intersection and did not strike any cars in front of it. Other than the mess from the drinks
there was no damage to the interior of the vehicle. Dixon had his seatbelt on and the
airbags did not deploy. He said his hands were on the steering wheel when his vehicle
was struck. Initially, Dixon testified that his body did not hit anything inside the car as a
result of the crash. Later, he stated that he jammed both wrists on the steering wheel,
which was apparently consistent with what he stated during his deposition. O'Brien
testified he was only going about five miles per hour at the time of the crash.
{¶6} The police were not called to the scene. There was some minor damage to
the trailer hitch on Dixon's truck. O'Brien's bumper and front fender were damaged. The
bumper was bent so that it was up against the front tire, preventing the car from moving
forward. A tow motor came from the gas station to pull the bumper from the front tire.
However, O'Brien testified that the front bumper was already bent downward before the
accident. Both O'Brien and Dixon drove their vehicles home. It is undisputed that neither
Dixon, nor his passengers, reported any injuries at the scene. Over objections, O'Brien
testified that he was not injured by the accident.
{¶7} During the three-hour drive home to Canfield, Dixon did not feel any pain or
discomfort. Later that evening, he said his wrist and neck began to feel sore, but that he
did not go to the emergency room. Instead, Dixon presented to his treating chiropractor,
Dr. John Esarco, the next day (August 21, 2006). Dixon had treated with Dr. Esarco
since 2002 for neck, lower back and other complaints. In fact, Dr. Esarco treated Dixon
for low back pain just five days before the accident. Dr. Esarco testified that Dixon's neck
problems before the accident were nowhere near the magnitude of those after the
accident. However, Dr. Esarco admitted on cross-examination (when confronted with his
treatment notes) that Dixon had nine prior visits for neck-related issues between 2003-
2006, including an examination in February 2006 for neck pain with severe headaches.
He also admitted that the results of range of motion and flexion testing for the cervical
 -3-

spine (neck) done approximately five months before the accident were similar to test
results the day after the accident.
{¶8} The day after the accident, August 21, 2006, Dixon complained to Dr.
Esarco of neck pain, headache and wrist pain. Dr. Esarco had x-rays taken of Dixon's
cervical spine, and diagnosed several conditions that he believed to be caused by the
accident: acute traumatic cervical strain/sprain; inflammation of the muscle tissue of the
neck; and cervicocranial syndrome (headaches due to the neck injury). Dr. Esarco began
treatments for the neck injury including electro muscle stimulation, ultrasound, a cervical
pillow, and chiropractic adjustment, and continued that regimen until February 12, 2007.
Dr. Esarco opined, with reasonable chiropractic certainty, that Dixon's neck injury and the
resulting treatment were directly related to the motor vehicle accident.
{¶9} With regard to the right wrist, Dr. Esarco diagnosed Dixon with acute
traumatic wrist strain/sprain. Dr. Esarco stated he had not treated Dixon for any wrist
problems in the past, however his treatment note from August 21, 2006 (the day after the
accident), states "wrist not feeling any improvement." Dr. Esarco testified he provided
some light treatments for Dixon's wrist. Dr. Albani, Dixon's primary care physician
prescribed an anti-inflammatory medication. When the wrist did not improve, Dr. Esarco
referred Dixon to Boniface Orthopaedics for further evaluation. Dixon was already
treating with that office for ongoing knee problems. In fact, on August 28, 2006, just eight
days after the accident, Dixon had an appointment with Dr. James Boniface regarding his
knee, yet did not tell Dr. Boniface about the wrist and neck injuries.
{¶10} On September 26, 2006, Dr. Boniface evaluated Dixon's right wrist. He
noted that x-rays of the wrist revealed mild degenerative changes, but no fracture. He
recommended the use of a wrist brace and four weeks of physical therapy. When Dixon
did not respond favorably to the physical therapy, Dr. Boniface ordered an MRI, which
was performed on October 28, 2006 and revealed a triangular fibrocartilage complex
(TFFC) tear. Dr. Boniface referred Dixon to Dr. Leslie Schwendeman, a hand surgeon.
{¶11} Dr. Schwendeman evaluated Dixon for the first time on November 28, 2006
and recommended casting of the wrist for four weeks, along with anti-inflammatory
 -4-

medications. After the cast was removed, Dixon reported some continued discomfort and
Dr. Schwendeman prescribed more physical therapy. At a follow-up appointment in
January 2007, Dr. Schwendeman stated that Dixon's wrist discomfort had decreased, but
that he had some crepitus (clicking) in the wrist. When Dr. Schwendeman saw Dixon for
the last time on March 20, 2007, Dixon's symptoms were reduced and Dr. Schwendeman
did not recommend further treatment at that time. Dr. Schwendeman testified that to a
reasonable degree of medical certainty the TFFC tear was caused by the motor vehicle
accident.
{¶12} Entered into evidence were billing statements for Drs. Esarco,
Schwendeman and Boniface. There was testimony that treatment rendered for the wrist
and neck conditions was reasonable and necessary.
{¶13} Dixon testified that the injuries affected his ability to perform daily life
activities. However, he did not have to stop working as an electrician since he mainly had
a supervisory role. Dixon testified that his wrist still makes a clicking sound. He admitted
that he had received no treatment for the wrist injury since March 2007. Dixon also
admitted that in January 2007 he presented to Dr. Boniface due to problems with his left
knee along with complaints of pain in multiple joints. Dr. Boniface referred Dixon to a
rheumatologist for the joint pain, and Dixon admitted he did eventually follow-up with a
rheumatologist.
{¶14} After all evidence was presented, a defense verdict form was provided to
the jury in addition to the plaintiff verdict form. Dixon objected to the use of a defense
verdict form. The jury rendered a verdict in favor of O'Brien. Judgment was entered on
the verdict by the magistrate and signed by the magistrate and the trial court. Dixon filed
a motion for JNOV or alternatively a motion for a new trial, which was ultimately overruled
by the trial court on June 20, 2009.
{¶15} Dixon appealed to this court on July 22, 2009 and in a decision styled Dixon
v. O'Brien, 7th Dist. No. 09MA123, 2011-Ohio-3399 (Dixon I), this court declined to reach
the merits of Dixon's assigned errors, holding that the pretrial stipulation the parties made
to waive objections to the magistrate's decisions violated Civ.R. 53, which prejudiced
 -5-

Dixon and required us to reverse and remand the trial court's judgment:

The trial court's conduct of the proceedings, beginning with its
approval of a stipulation that contravened the civil rules, prevented the filing
of objections, both following trial and during the new trial/JNOV
proceedings. The trial court failed to conduct an independent analysis of
the magistrate's decisions since none were filed. Thus, prejudice exists in
this case.
***
Accordingly, we hold that paragraphs two and three of the
"Stipulation, Waiver and Consent" are unenforceable. We reverse and
remand the judgment of the trial court for the magistrate to prepare and file
a magistrate's decision regarding the trial, thereby giving Dixon the
opportunity to raise objections with regard to the magistrate's conduct of
trial, and for the case to thereafter proceed in accordance with all
applicable civil rules.

Dixon I at ¶33, 35.
{¶16} On remand the magistrate issued a decision recommending that the trial
court adopt the jury verdict as the court's final judgment. Dixon filed timely objections to
the magistrate's decision. Therein Dixon first asserted that the magistrate erred in giving
a defense verdict form to the jury, and that the magistrate erred by permitting O'Brien to
testify that he was not injured by the collision, but precluding Dixon from testifying that a
passenger in his vehicle was injured. O'Brien filed a brief in opposition to the objections.
{¶17} On September 22, 2011, the trial court issued a judgment entry overruling
the objections and adopting the magistrate's decision and entering judgment on the
verdict of the jury. That judgment provided, in pertinent part:

The Court has reviewed the Magistrate's Decision, together with
Plaintiff's Objections and Defendants' response thereto. The Court has
 -6-

reviewed the entire record and the applicable law, and finds that the
Plaintiff's Objections to the Magistrate's Decision should be and hereby are
overruled as (1) the Magistrate was correct in submitting a Defense Verdict
Form to the jury, since the issues of proximate cause and damages were
disputed and (2) the Magistrate's rulings on the trial were proper regarding
the testimony of both Plaintiff and Defendant. Accordingly, the Court
hereby adopts the Magistrate's Decision and the Verdict of the Jury as the
Judgment of the Court as follows: * * *"

{¶18} On September 28, 2011, Dixon filed a motion for judgment notwithstanding
the verdict or in the alternative for a new trial which O'Brien opposed. On October 18,
2011, the magistrate issued a decision which included findings of fact and conclusions of
law overruling the motion. Dixon filed objections, which O'Brien opposed. On January
23, 2012, following an oral hearing on the objections, the trial court adopted the
magistrate's decision overruling the JNOV/new trial motion.
Motion for JNOV and New Trial
{¶19} In his first assignment of error Dixon asserts:
{¶20} "The trial court erred in denying Appellant's motion for new trial and motion
for judgment notwithstanding the verdict as the verdict was against the manifest weight of
the evidence."
JNOV
{¶21} Dixon argues he is entitled to a judgment notwithstanding the verdict
because the jury verdict was against the manifest weight of the evidence. This is not a
proper basis for a JNOV motion, which is governed by Civ.R. 50(B):

Whether or not a motion to direct a verdict has been made or
overruled and not later than fourteen days after entry of judgment, a party
may move to have the verdict and any judgment entered thereon set aside
and to have judgment entered in accordance with his motion; or if a verdict
was not returned such party, within fourteen days after the jury has been
 -7-

discharged, may move for judgment in accordance with his motion. A
motion for a new trial may be joined with this motion, or a new trial may be
prayed for in the alternative. If a verdict was returned, the court may allow
the judgment to stand or may reopen the judgment. If the judgment is
reopened, the court shall either order a new trial or direct the entry of
judgment, but no judgment shall be rendered by the court on the ground
that the verdict is against the weight of the evidence. If no verdict was
returned the court may direct the entry of judgment or may order a new trial.

{¶22} A trial court must grant a motion JNOV if, upon construing the evidence
most strongly in favor of the party against whom the motion is directed, it finds that upon
any determinative issue reasonable minds could come to but one conclusion based upon
the evidence, and that conclusion is adverse to such party. Nickell v. Gonzalez, 17 Ohio
St.3d 136, 137, 447 N.E.2d 1145 (1985). When performing this analysis a court shall
neither weigh the evidence nor evaluate the credibility of witnesses. Malone v. Courtyard
by Marriott L.P., 74 Ohio St.3d 440, 445, 659 N.E.2d 1242 (1996). "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. A trial court's
ruling on a motion for JNOV is reviewed de novo. Goodyear Tire & Rubber Co. v. Aetna
Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶4.
{¶23} Construing the evidence most strongly in favor of O'Brien, there was
sufficient evidence presented at trial so as to create jury questions regarding proximate
cause and damages. At the time of the incident, Dixon's vehicle was stopped and O'Brien
estimated he was only driving about five miles per hour. There were no reported injuries
at the scene, the police were not called, Dixon was wearing his seatbelt and the airbags
in neither vehicle deployed. Neither vehicle sustained significant damage. Dixon had a
long history of chiropractic treatment for neck problems prior to the accident. Dr. Esarco's
treatment note on the day after the accident could be interpreted to indicate Dixon
suffered from wrist problems prior to the accident. There was evidence that pre-accident
 -8-

range of motion and flexion test results for Dixon's neck were comparable to the results of
post-accident testing. Based on the foregoing, the trial court correctly denied the motion
for JNOV.
Motion for New Trial
{¶24} Motions for new trial are governed by Civ.R. 59(A) which lists several
grounds for ordering a new trial. At issue here is subsection (6) which involves manifest
weight; specifically that the judgment is not sustained by the weight of the evidence. A
new trial may also be granted in the sound discretion of the court for good cause shown.
Civ.R. 59(A). A trial court's decision to overrule a motion for a new trial is reviewed for
abuse of discretion. Mannion v. Sandel, 91 Ohio St.3d 318, 321, 744 N.E.2d 759 (2001).
{¶25} Several procedural matters raised by O'Brien must be discussed before
turning to the merits of Dixon’s assigned error. First, O'Brien asserts that reversal of the
trial court's decision would require a unanimous and not majority vote by this panel since
the motion was based upon a manifest weight argument; and the Ohio Constitution
provides that "[n]o judgment resulting from a trial by jury shall be reversed on the weight
of the evidence except by the concurrence of all three judges hearing the cause." Ohio
Constitution, Article IV, Section 3(B)(3).
{¶26} O'Brien cites no law in support of his position. In fact, “[t]he review of a trial
court's decision as to whether or not to set aside a jury verdict as being against the weight
of the evidence is subject to the same abuse-of-discretion standard as for other grounds
for a new trial; an appellate court does not directly view whether the decision was against
the weight of the evidence." (Emphasis added.) Striff v. Luke Md. Practitioners, Inc., 3d
Dist. No. 1-10-15, 2010-Ohio-6261, ¶72, citing Mannion, supra at 322; and Walker v.
Summa Health Sys., 9th Dist. No. 23727, 2008-Ohio-1465, ¶11. Thus, a unanimous vote
by the panel is not required to resolve whether the JNOV should have been denied.
{¶27} Second, O'Brien asserts that Dixon has waived review of his Civ.R. 59(A)(6)
manifest weight argument by failing to raise it in his objections to the magistrate's decision
overruling the new trial motion. Dixon counters that he did raise this issue in his
objections. Dixon is correct. Although he did not specifically cite to section (A)(6), the
 -9-

argument following his second objection, which cites to Civ.R. 59(A)(7), asserts: "it is
clear the jury lost its way and disregarded the evidence in reaching a result not justified by
the evidence in the record. Certainly a new trial is an adequate remedy." This sufficiently
raised the manifest weight argument pursuant to Civ.R. 59(A)(6) to preserve appellate
review.
{¶28} When reviewing a trial court's decision regarding a motion for new trial, "[an
appellate court] must defer to the trial court, or in this case the magistrate, who witnessed
the testimony first-hand. [Mannion at 321]. Thus, in reviewing the trial court's denial of a
motion for a new trial based upon a factual question, we construe the evidence in a light
most favorable to the trial court's action rather than to the original jury's verdict." Williams,
supra, 2009-Ohio-6162, at ¶25, citing Jenkins v. Krieger, 67 Ohio St.2d 314, 320, 423
N.E.2d 856 (1981); Rohde v. Farmer, 23 Ohio St.2d 82, 94, 262 N.E.2d 685 (1970).
{¶29} Dixon cites to Hoschar v. Welton, 7th Dist. No. 06 CO 20, 2007-Ohio-7196
where this court reversed the denial of a motion for a new trial filed after a defense verdict
on damages; however, the case is distinguishable. Hoschar involved a high-speed
impact where the plaintiff was transported to the emergency room from the accident
scene. Significantly, the remand was only for a new trial on the limited issue of the
damages arising from the plaintiff's emergency transportation and care on the date of the
accident. Id. at ¶43.
{¶30} O'Brien cites several cases in which this court affirmed the trial court's
denial of an appellant's new trial motion which appear to be much more on point, namely,
Sims v. Dibler, 172 Ohio App.3d 486, 2007-Ohio-3035, 875 N.E.2d 965 (7th Dist.); and
Wright v. Kurth, 7th Dist. No. 97-BA-39, 2000 WL 310411 (Mar. 22, 2000).
{¶31} Sims also involved a low-speed crash where the plaintiff reported no injuries
at the scene and drove himself home. The plaintiff later complained of back injuries from
the incident yet had an extensive prior history of back problems. The defendant admitted
negligence and the case proceeded to trial on proximate cause and damages. The
plaintiff had several experts testify and the defendant did not produce experts of his own.
This court noted that the jury was free to disbelieve the testimony of the medical experts.
 - 10 -

Id. at ¶44 (citing cases). Further, in Sims, defense counsel established numerous
credibility problems with plaintiff's testimony.
{¶32} Wright involved an accident at 35 mph where the jury only awarded
damages for the plaintiff's emergency room visit. The plaintiff was treated and released
from the emergency room with no broken bones and told to follow up with his family
physician. Over a year later, the plaintiff began treating with a chiropractor for alleged
residual injuries from the accident. The jury declined to award damages for the
subsequent treatment. Evidence was presented that the plaintiff had a history of prior
neck, back and other injuries similar to the ones he allegedly sustained in the accident.
This court noted that "[a]lthough appellant did offer medical testimony in an attempt to
establish a direct causal connection between the accident and his alleged injuries, it is still
an issue for the jury. * * * It is the duty of the jury to determine whether or not the facts
upon which an expert opinion is based have been proven by the greater weight of the
evidence." (Citations omitted.) Id. at *4.
{¶33} This case is similar to Wright and Sims. This was a low-speed collision;
Dixon was stationary and O’Brien’s estimated speed was 5 mph. No injuries were
reported at the scene and both Dixon and O'Brien were able to drive themselves home.
Neither vehicle sustained substantial damage; although O'Brien did have to use the
services of a tow motor to pull his front bumper from his front tire, this was because the
bumper was already bent before the incident. Dixon had been seeing Dr. Esarco for his
neck problems for years prior to the accident; specifically at least eight times for neck
complaints from 2005 to 2006 before the incident. And although Dr. Esarco claimed that
the prior neck problems were not as severe as the post-collision problems, he admitted
that range of motion and flexion test results for Dixon's neck in April 2006 were
comparable to results the day after the accident in August 2006.
{¶34} Further, although Dixon and Dr. Esarco testified Dixon was not previously
treated for wrist problems, Dr. Esarco's treatment note from the day after the accident
stating that the "wrist [was] not feeling any improvement" could be interpreted to indicate
an on-going wrist issue. In addition, Dixon's testimony about the specific cause of the
 - 11 -

wrist injury was inconsistent. Initially, he testified at trial that he did not strike any part of
his body on the inside of the vehicle. Later he stated after some prodding from his
attorney that he had jammed both wrists on the steering wheel, consistent with his
deposition testimony. Further, Dixon did not undergo an MRI of his right wrist until two
months after the accident. In addition, about one and a half weeks after the accident,
Dixon presented to an orthopedist for treatment of knee problems unrelated to the
accident, yet he did not even mention the wrist or neck problems at that time. Finally,
Dixon admitted the orthopedist ultimately referred him to a rheumatologist for his multiple
joint complaints.
{¶35} Although Dixon presented two experts who opined that the accident
proximately caused Dixon's wrist and neck injuries, the jury could have reasonably
discounted or disregarded that testimony based upon the totality of the evidence
presented at trial, including their testimony. Therefore, the trial court did not abuse its
discretion by denying Dixon's motion for new trial. There is no manifest injustice in the
jury verdict. Accordingly, Dixon's first assignment of error is meritless.
Defense Verdict Form
{¶36} In his second assignment of error, Dixon asserts:
{¶37} "The trial court erred in giving a defense verdict form to the jury."
{¶38} At trial, the magistrate gave the jury the usual verdict forms, including
separate forms for a plaintiff's verdict and a defense verdict. Dixon argues this was
improper because O'Brien admitted negligence, and the proximate cause testimony of
Dixon's treating physicians was not rebutted by any defense expert. Dixon cites no law in
support of his position, and we could decline to address this error altogether pursuant to
App. R. 16(A)(7). See also Garrett v. Chirchiglia, 7th Dist. No. 05 MA 41, 2006-Ohio-755,
¶4-6. In the interest of justice we will exercise our discretion to do so.
{¶39} This alleged error is subject to an abuse of discretion standard of review.
McCabe v. Sitar, 7th Dist. No. 06 BE 39, 2008-Ohio-3242, ¶45-46. An abuse of
discretion means more than an error of judgment, but rather that the judgment of the trial
court is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
 - 12 -

St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶40} Providing the jury with a defense verdict form does not constitute an abuse
of discretion; rather, it was proper. Despite the admission of negligence by O'Brien, Dixon
still bore the burden of proof as to proximate cause and damages at trial. See Chambers
v. St. Mary's School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998).
{¶41} Further, O'Brien was not required to present expert testimony to rebut the
proximate cause opinions of Dixon's experts. Instead O’Brien’s trial strategy was to
attack the credibility of Dixon and correspondingly, the expert witnesses who relied in part
on Dixon's complaints to form their opinions. See generally Williams, supra, 2009-Ohio-
6162, at ¶34. Accordingly, Dixon's second assignment of error is meritless.
Evidentiary Rulings
{¶42} In his third and final assignment of error, Dixon asserts:
{¶43} "The trial court erred in allowing Appellee to testify that he was not injured in
the motor vehicle collision as his testimony is irrelevant and the trial court erred in
precluding Appellant from testifying that his daughter, Andrea Dixon, a passenger in the
vehicle, was injured."
{¶44} Evidentiary rulings are reviewed for abuse of discretion. Scatamacchio v.
W. Res. Care Sys., 161 Ohio App.3d 230, 2005-Ohio-2690, 829 N.E.2d 1247, ¶74 (7th
Dist.). A reviewing court should not disturb evidentiary rulings absent an abuse of
discretion that has materially prejudiced a party. Beard v. Meridia Huron Hosp., 106 Ohio
St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, ¶20. Dixon takes issue with the fact that the
trial court permitted O'Brien to testify about his lack of injury, but precluded Dixon from
testifying about whether his daughter, Andrea who was a passenger in Dixon's vehicle,
sustained any injuries.
{¶45} First, Dixon contends O'Brien's testimony about his lack of injury was
irrelevant. "'Relevant evidence' means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." Evid.R. 401. At issue
here was whether the accident proximately caused Dixon any injury. The jury had heard
 - 13 -

earlier testimony that the collision involved a minor impact that did not affect the operation
of Dixon's vehicle, and that neither Dixon nor his passengers reported any injuries at the
scene. O'Brien's testimony that he was not injured tended to make it more probable that
the accident was minor, which also made it more probable that Dixon suffered no injury.
This argument is meritless.
{¶46} Second, Dixon contends the trial court improperly precluded him from
testifying about whether his daughter Andrea was injured. O'Brien counters that the trial
court properly excluded Andrea's testimony as it was inadmissible hearsay and because
its probative value was substantially outweighed by the danger of unfair prejudice, of
confusion of the issues and of misleading the jury.
{¶47} The specific question posed to Dixon was: "At any point thereafter, did
Andrea ever complain of any pain?" At the end of trial, on the record but outside of the
presence of the jury, Dixon's counsel proffered that Dixon would have testified that
Andrea did complain of pain after the accident and sought treatment. This testimony
constitutes hearsay because it is an out of court statement offered in evidence to prove
the truth of the matter asserted, specifically that Andrea was injured. Evid.R. 801(C).
Hearsay is inadmissible unless it falls under one of the established exceptions. Evid.R
802, and the proffered statement falls under the Evid.R. 803(3) exception which involves,
inter alia, a statement of a then-existing physical condition. See also State v. Peeples,
7th Dist. No. 07 MA 212, 2009-Ohio-1198, ¶33.
{¶48} The trial court could have reasonably concluded that permitting Dixon to
testify about his daughter's later complaints of pain was substantially more prejudicial
than probative. See Evid.R. 403(A). Dixon had already testified that his daughter
reported no symptoms at the scene of the accident. The probative value of testimony
regarding his daughter's subsequent complaints of minor pain could confuse the jury in
light of the fact that there was no evidence presented that her later pain was proximately
caused by the accident. Accordingly, Dixon's third assignment of error is meritless.
{¶49} In conclusion, all of Dixon's arguments of error are meritless. Neither the
evidentiary rulings nor providing the jury with a defense verdict form constitute an abuse
 - 14 -

of discretion. The trial court properly denied the motion for JNOV as there was sufficient
evidence presented at trial so as to create jury questions regarding proximate cause and
damages. Further, the trial court did not abuse its discretion by denying the motion for a
new trial as the jury did not lose its way nor was the verdict manifestly unjust.
Accordingly, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.