Banas v. Shively

[Cite as Banas v. Shively, 2011-Ohio-5257.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 96226

GALINA BANAS

PLAINTIFF-APPELLANT

vs.

GLEN M. SHIVELY
DEFENDANT-APPELLEE

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-696774

BEFORE: E. Gallagher, J., Jones, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: October 13, 2011
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ATTORNEY FOR APPELLANT

Michael P. Maly
5001 Mayfield Road
Suite 319
Lyndhurst, Ohio 44124

ATTORNEYS FOR APPELLEE

Michael A. Paglia
Ritzler, Coughlin & Paglia, Ltd.
1360 East Ninth Street
1000 IMG Center
Cleveland, Ohio 44114

Joyce V. Kimbler
50 South Main Street
Suite 502
Akron, Ohio 44308

EILEEN A. GALLAGHER, J.:

{¶ 1} Plaintiff-appellant, Galina Banas (“Banas”) appeals the judgment of the

Cuyahoga County Common Pleas Court and the trial court’s denial of her motion for a

new trial. Finding no merit to the appeal, we affirm.

{¶ 2} Banas was involved in a motor vehicle accident with appellee, Glen

Shively, on July 3, 2007. Appellee’s vehicle collided with appellant’s vehicle and

pushed appellant off the road, causing her to strike a large rock. Banas filed suit in the

Cuyahoga County Common Pleas Court. Although negligence was admitted by
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appellee, the parties disputed the issues of causation and damages.

{¶ 3} Banas testified that her speed at the time of the collision was between 30

and 35 miles per hour. Appellant testified that immediately after the collision, she

experienced pain in her head, neck, shoulder, back, and ears. Appellant stated that she

did not leave her vehicle after the collision until an ambulance arrived on scene and she

was removed from her vehicle by responders.

{¶ 4} Banas was taken to Huron Road Hospital where she was treated and

released. Contrary to her testimony, the emergency room records reflect that the accident

was a low speed accident with a “glancing” blow-type collision. The emergency room

records further indicate that appellant was walking at the scene, a fact that appellant

denied at trial. Though the emergency room record reveals that appellant reported pain

in her head, neck, and back, it states that appellant’s neck and back were “non-tender.”

Finally, the emergency room record reflects that appellant was discharged in “good”

condition and that her condition had improved by the time of discharge.

{¶ 5} Appellant testified that she sought further treatment from a primary care

physician three days after the accident because she was in “horrible pain.” Beyond her

primary care physician, appellant obtained treatment from a number of doctors including

a chiropractor, Dr. Michael Jakubowski. Appellant testified that she saw Dr.

Jakubowski seven to eight times, twice a week. A report from Dr. Jakubowski

indicated that, “[a]s of August 15th, 2007, [Mrs. Banas’s] complaints are of mild neck
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pain on the left that is increased with daily activity. However she also stated that there

was no mid to lower back complaints and that her signs and symptoms in her cervical

spine have been reduced by 90%.”

{¶ 6} Appellant testified that on July 19, 2007, she was a rear-seat passenger in a

car driven by her husband when the car was involved in a rear-end collision. Appellant

testified that she was not injured in this second accident. Appellant described the July

19th collision as a “small hit on [the] bumper,” and testified that she did not seek any

medical treatment for the accident.

{¶ 7} Contrary to appellant’s assertion that she was not injured in the second

accident, a record from appellant’s primary care doctor, dated July 20, 2007, indicates

that appellant complained of a “whiplash” injury. Records reveal that appellant again

treated with her primary care physician on July 25, 2007 to re-assess injuries from the

July 19, 2007 accident.

{¶ 8} Though appellant denied sustaining any injury in her second motor vehicle

accident, appellee impeached her testimony at trial by introducing a copy of a Lake

County lawsuit stemming from the July 19, 2007 accident wherein appellant alleged that

she sustained injuries in excess of $125,000.1

1Paragraph 11 of appellant’s Lake County complaint states: “As a direct and
proximate result of [Defendant’s] breach of duty Plaintiffs sustained injuries and
damages, and will continue to incur future damages that exceed the limit of
[Defendant’s] liability insurance coverage under of a policy of insurance with
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{¶ 9} Appellant testified at trial that she lost her job and did not work much after

the accident because she is unable to do any lifting. Appellee impeached this testimony

with evidence that appellant earned more money through her employment in the year

following the accident than she did in several years prior to the accident.

{¶ 10} Appellant’s medical treatment culminated with spinal surgery in Februrary

of 2010. Appellant’s surgery was performed by Dr. Timothy Moore, who opined at

trial, to a reasonable degree of medical certainty, that appellant’s surgery was causally

related to her July 3, 2007 accident. Appellee contested the basis of Dr. Moore’s

causation opinion, eliciting testimony that Dr. Moore’s opinion was, in large part, based

upon subjective reports of symptoms and when they initially occurred, as provided to

him by appellant. Notably, appellant failed to disclose her second car accident to Dr.

Moore. Furthermore, Dr. Moore did not review appellant’s emergency room records,

or her records from her primary care physician or chiropractor, nor any records prior to

appellant’s July 3, 2007 accident. Dr. Moore was also unaware of records from

appellant’s chiropractor indicating that appellant’s symptoms were 90% better as of

August 15, 2007.

{¶ 11} Lastly, Dr. Moore testified that appellant’s medical records revealed that

Progressive Insurance Company, such limit being $25,000 per person. Accordingly,
[Defendant] is underinsured * * *” Paragraph 13 states: “Under Plaintiffs’
insurance policy with Esurance they are is entitled to Uninsured / Underinsured
Motorists Coverage in the amount of $100,000 per person.”
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she had bone spurs indicative of arthritis in the neck that pre-existed the July 3, 2007

accident. The pre-existing arthritis was at the same location on appellant’s spine that

Dr. Moore performed the surgery.

{¶ 12} At trial, appellant sought $82,494 in medical bills including $69,373.66

from the surgery. The jury returned a verdict in favor of appellant in the amount of

$7,338.21 of which $3,695.35 was attributed to past economic damages and the

remainder to non-economic damages.

{¶ 13} Appellant filed a motion for a new trial on September 16, 2010, which the

trial court denied on November 29, 2010. Appellant appealed from the judgment of the

trial court asserting the four assignments of error contained in the appendix to this

opinion.

{¶ 14} Appellant argues in her first assignment of error that the jury’s award of

$7,338.21, including $3,695.35 for past economic damages, was against the manifest

weight of the evidence.

{¶ 15} It is a basic principle of appellate review that judgments supported by

competent, credible evidence going to all the material elements of a case must not be

reversed as against the manifest weight of the evidence. Berry v. Lupica, Cuyahoga

App. No. 95393, 2011-Ohio-3464, at ¶21, citing C.E. Morris Co. v. Foley Constr. Co.

(1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus; Gerijo, Inc. v. Fairfield, 70 Ohio

St.3d 223, 226, 1994-Ohio-432, 638 N.E.2d 533. “We therefore indulge every reasonable
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presumption in favor of the trial court’s judgment, and to the extent that the evidence is

susceptible to more than one interpretation, we construe it consistently with the jury’s

verdict.” Id. (Internal citations omitted.)

{¶ 16} “[I]t is for the trial court to resolve disputes of fact and weigh the

testimony and credibility of the witnesses.” Bechtol v. Bechtol (1990), 49 Ohio St.3d

21, 23, 550 N.E.2d 178. That is, an appellate court should not substitute its judgment

for that of the trial court when there exists competent and credible evidence supporting

the findings of fact and conclusions of law rendered by the trial judge. Seasons Coal

Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.

{¶ 17} Appellant argues that the jury’s award of $3,695.35 in economic damages,

representing the amount of medical bills from July 3, 2007 until July 18, 2007, the date

prior to appellant’s second motor vehicle accident, is against the manifest weight of the

evidence.2 Appellant argues that she established by uncontroverted evidence that the

entire $82,494.63 in medical bills sought by her were caused by the July 3, 2007

accident. We disagree.

{¶ 18} While appellee admitted his negligence in the subject accident, he disputed

at trial the issues of causation and damages. As set forth above, appellee repeatedly

2 Appellant cites her trial exhibit B and states in her brief that $3,695.35
represents the amount of medical bills accumulated by appellant from the date of
the accident (July 3, 2007) until the day prior to her second accident (July 18, 2007).
A review of appellant’s medical bills in exhibit B, some of which lack discernable
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challenged appellant’s credibility, the extent of her injuries, and whether or not

appellant’s injuries were proximately caused by the subject accident.

{¶ 19} Appellant argues that the expert testimony of Dr. Moore was

uncontroverted and, thus, the jury was bound to accept his opinion that her largest

claimed item of damages, the expenses from her surgery, were proximately caused by the

subject accident. Appellant’s position is flawed. Initially, though appellee did not

offer his own expert witness at trial, he did extensively challenge the basis of Dr.

Moore’s opinion. Appellee pointed out that Dr. Moore possessed no knowledge of

appellant’s condition prior to the accident, that he did not review appellant’s entire

medical record stemming from the accident, that he based his opinion, in significant part,

upon the subjective reports of pain provided by appellant, and that he was unaware of

appellant’s second motor vehicle. Most importantly, Dr. Moore acknowledged that

appellant’s records indicated that she had bone spurs in the same location where he

performed surgery that were indicative of arthritis that pre-existed the subject motor

vehicle accident.

{¶ 20} Beyond appellee’s challenge to the basis of Dr. Moore’s opinion,

appellant’s argument that the jury was bound to accept Dr. Moore’s proximate cause

conclusion is misplaced. “It is well established that the jury, as the trier of fact, is

chronological order, reveals a total of $3,215.35 in medical bills during this period.
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vested with the power to judge the credibility of witnesses and to determine the weight to

be afforded to the evidence presented.” DeCapua v. Rychlik, Cuyahoga App. No. 91189,

2009-Ohio-2029, at ¶23, quoting Croft v. State Farm Mutual Auto. Ins. Co., 3d Dist. No.

1-01-72, 2002-Ohio-113, citing Swan v. Skeen (1974), 40 Ohio App.2d 307, 308-309,

319 N.E.2d 221. A jury is free to accept or reject any or all the testimony of any witness,

including testimony of an expert witness. Id., citing Weidner v. Blazic (1994), 98 Ohio

App.3d 321, 335, 648 N.E.2d 565.

{¶ 21} “[T]he jury is not required to give any additional weight to the opinion of

an expert, if any weight at all. Rather, an expert’s opinion is admissible, as is any other

testimony, to aid the trier of fact in arriving at a correct determination of the issues being

litigated. Expert testimony is permitted to supplement the decision-making process of

the fact finder, not to supplant it.” Sawyer v. Duncan (Dec. 14, 2000), Cuyahoga App.

No. 78056. “[T]he mere fact that testimony is uncontradicted, unimpeached, and

unchallenged does not require the trier of fact to accept the evidence if the trier of fact

found that the testimony was not credible.” DeCapua, at ¶25, citing Bradley v. Cage,

9th Dist. No. 20713, 2002-Ohio-816. “The trier of facts always has the duty, in the first

instance, to weigh the evidence presented, and has the right to accept or reject it.” Id.,

quoting Ace Steel Baling v. Porterfield (1969), 19 Ohio St.2d 137, 138, 249 N.E.2d 892.

{¶ 22} “[S]imply because plaintiff’s expert testified that the billings were
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necessitated by the accident, they are not automatically entitled to prevail on the question

of necessity, even where their expert’s testimony on that point is not directly

controverted by defendant’s evidence, so long as there appear in the record objectively

discernible reasons upon which the jury could rely to reject the expert’s opinion

testimony.” Id., citing Walker v. Holland (1997), 117 Ohio App.3d 775, 794, 691

N.E.2d 719, quoting Muncy v. Jones (Jan. 19, 1984), 10th Dist. No. 83AP-562; see, also,

McBride v. Quebe, 2d Dist. No. 21310, 2006-Ohio-5128.

{¶ 23} Here, as in DeCapua, the jury obviously found that appellant’s damages

were not all proximately caused by the accident. As in DeCapua, although appellant

submitted $82,494.63 in medical bills supported by her own testimony and the expert

opinion of Dr. Moore, the jury was free to disbelieve their testimony based on other

evidence in the record.

{¶ 24} Upon review of the entire record we cannot say that the jury’s verdict was

against the manifest weight of the evidence.

{¶ 25} Appellant’s first assignment of error is overruled.

{¶ 26} Appellant argues in her second assignment of error that the jury’s award

was contrary to law in that appellee failed to apportion liability for appellant’s injuries

between himself and the non-party tortfeasor involved in appellant’s July 19, 2007 motor

vehicle accident. Appellant argues that pursuant to R.C. 2307.23(C) and the Ohio

Supreme Court’s decision in Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d
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1313, appellee had a burden, at trial, of apportioning responsibility for appellant’s

claimed medical bills between himself and the non-party tortfeasor.

{¶ 27} Pang involved a plaintiff who was involved in three successive motor

vehicle accidents over a five-month period. All three accidents contributed to an injury

to Pang’s back and an eventual diagnosis of chronic lumbosacral myofascitis. Pang’s

doctor concluded that the condition was the result of the three motor vehicle accidents.

The Ohio Supreme Court held that, “where a plaintiff suffers a single injury as a result of

the tortious acts of multiple defendants, the burden of proof is upon the plaintiff to

demonstrate that the conduct of each defendant was a substantial factor in producing the

harm.” Pang at 197. Once the plaintiff has established that his single, indivisible injury

was proximately caused by the successive tortious acts of multiple defendants, the

burden of persuasion shifts to the defendants to demonstrate that the harm produced by

their separate tortious acts is capable of apportionment. Id. at 197-198.

{¶ 28} In the case sub judice, we find appellant’s reliance on Pang to be

misplaced. In Pang, the Court noted that proximate cause was clearly established as to

each defendant. Such is not the case here. As discussed above, in the present case,

appellee challenged the extent of appellant’s injuries and whether or not appellant’s

claimed medical expenses were proximately caused by the subject accident. As

addressed in appellant’s first assignment of error, competent and credible evidence was

adduced at trial from which the jury could reasonably conclude that not all of the
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damages sought by appellant were proximately caused by the subject accident.

{¶ 29} Futhermore, unlike Pang, appellant offered absolutely no evidence to

establish that she suffered a single injury as a result of the tortious acts of multiple

defendants. In fact, appellant expressly denied being injured in the July 19, 2007

accident. Appellant’s theory was that all her injuries were proximately caused by

appellee. Pang is inapplicable to the present case.

{¶ 30} Appellant’s reliance on R.C. 2307.23(C) is similarly misplaced. R.C.

2307.23(C) provides:

“(C) For purposes of division (A)(2) of this section, it is an affirmative defense
for each party to the tort action from whom the plaintiff seeks recovery in this
action that a specific percentage of the tortious conduct that proximately caused
the injury or loss to person or property or the wrongful death is attributable to one
or more persons from whom the plaintiff does not seek recovery in this action.
Any party to the tort action from whom the plaintiff seeks recovery in this action
may raise an affirmative defense under this division at any time before the trial of
the action.” (Emphasis added.)

{¶ 31} Appellant seeks to wield the affirmative defense provided in R.C.

2307.23(C) against appellee, arguing that appellee admitted that he was at least partially

liable for plaintiff’s injuries and the jury’s verdict of $7,338 supports this conclusion.

Appellant argues that appellee had the burden of proving the apportionment of

appellant’s damages between the subject accident and the July 19, 2007 accident by clear

and convincing evidence and that he failed to do so.

{¶ 32} Appellant’s argument is not supported by the record. Appellee did not
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raise R.C. 2307.23(C) as an affirmative defense. Furthermore, contrary to appellant’s

characterization, appellee did not admit that he was “at least partially responsible” for all

of appellant’s medical bills. Appellee challenged whether certain portions of

appellant’s claimed medical expenses were proximately caused by the subject accident.

Appellee specifically argued in closing argument, “My client admits that he’s at fault but

does not admit any of this medical treatment was from this car wreck. The only thing

possibly that is from the car wreck is the emergency room and a follow-up visit.”

Appellee took the position that he was responsible for certain medical bills directly

related to the subject accident but strongly disputed proximate cause for the vast majority

of the medical bills that accumulated later in time. The jury’s verdict is consistent with

appellee’s argument that certain bills were related to the accident and others were

unrelated. R.C. 2307.23(C) is inapplicable to the present case.

{¶ 33} Appellant’s second assignment of error is overruled.

{¶ 34} Appellant argues in her third assignment of error that the trial court erred

in allowing appellee to introduce a complaint from a Lake County lawsuit stemming

from appellant’s July 19, 2007 motor vehicle accident.

{¶ 35} The Lake County complaint alleges that appellant was a passenger in her

husband’s car on July 19, 2007 when it was involved in a rear-end collision. The

complaint specifically states that appellant, “sustained damages and injuries, costs of

medical treatment, pain and suffering and other damages” as a result of the accident.
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The complaint seeks recovery from the named defendant in excess of the defendant’s

insurance policy, “such limit being $25,000 per person.” (Emphasis added.) The

complaint further seeks recovery against her husband’s motor vehicle insurer based

pursuant to uninsured/underinsured motorists coverage, “in the amount of $100,000 per

person.” (Emphasis added.)

{¶ 36} Generally, evidentiary rulings made at trial rest within the sound discretion

of the trial court. State v. Lundy (1987), 41 Ohio App.3d 163, 169, 535 N.E.2d 664; State

v. Graham (1979), 58 Ohio St.2d 350, 390 N.E.2d 805. “The term ‘abuse of discretion’

connotes more than error of law or judgment. It implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140.

{¶ 37} Pursuant to Evid.R. 611(B), the scope of cross-examination extends to “all

relevant matters and [to] matters affecting credibility.” Under Evid.R. 613(B) and

801(D)(2), the admissions of a party-opponent may be introduced into evidence for

purposes of impeachment. See Pesic v. Pezo, Cuyahoga App. No. 90855,

2008-Ohio-5738, at ¶28. (Opposing party can use motor vehicle accident complaint to

impeach credibility.)

{¶ 38} In the present case, appellant’s Lake County complaint was admissible for

impeachment purposes after appellant expressly denied suffering any injury in her July

19, 2007 accident. Appellant’s position at trial was that the subject accident
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proximately caused all of her medical bills and that she suffered no harm in the July 19,

2007 accident. Appellant’s Lake County complaint refutes this position and her

testimony. As in Pesic, appellant’s expert was unaware of the other accident despite

providing testimony that appellant’s medical treatment was proximately caused by the

subject accident. The complaint undermined appellant’s position that she was

uninjured in the July 19, 2007 accident and called into question the basis of her expert’s

opinion. The trial court did not abuse its discretion in allowing the introduction of this

evidence.

{¶ 39} Appellant argues in her fourth assignment of error that the trial court erred

in denying her motion for a new trial. Appellant argues that the trial court should have

granted her motion for a new trial because the jury’s verdict was inadequate, was made

under the influence of passion or prejudice, and was against the manifest weight of the

evidence.

{¶ 40} Though not explicitly argued by appellant, we note that Civ.R. 59(A)(6)

authorizes the trial court to vacate a judgment and order a new trial on a finding that the

verdict on which the judgment was entered “is not sustained by the weight of the

evidence.” As we addressed in appellant’s first assignment of error, the contention that

the jury’s verdict was against the manifest weight of the evidence is not supported by the

record.

{¶ 41} Appellant bases her arguments on Civ.R. 59(A)(4), which allows a new
 16

trial to be granted based upon, “[e]xcessive or inadequate damages, appearing to have

been given under the influence of passion or prejudice.”

{¶ 42} “[T]he assessment of damages lies ‘so thoroughly within the province of

the [trier of fact] that a reviewing court is not at liberty to disturb the [trier of fact’s]

assessment’ absent an affirmative finding of passion and prejudice or a finding that the

award is manifestly excessive or inadequate.” Pesic, at ¶21, quoting Moskovitz v. Mt.

Sinai Med. Ctr., 69 Ohio St.3d 638, 655, 1994-Ohio-324, 635 N.E.2d 331.

{¶ 43} A reviewing court should not find that a verdict is inadequate unless “the

inadequacy of the verdict is so gross as to shock the sense of justice and fairness, or the

amount of the verdict cannot be reconciled with the undisputed evidence in the case, or it

is apparent that the jury failed to include all the items of damages comprising a

plaintiff’s claim.” Pearson v. Wasell (1998), 131 Ohio App.3d 700, 709-710, 723

N.E.2d 609, citing Iames v. Murphy (1995), 106 Ohio App.3d 627, 666 N.E.2d 1147.

{¶ 44} To determine whether a verdict was influenced by passion or prejudice, the

court should consider the amount of damages returned and whether the record discloses

that the verdict was induced by: “(a) admission of incompetent evidence, (b) misconduct

on the part of the court or counsel, or (c) by any other action occurring during the course

of the trial which can reasonably be said to have swayed the jury in their determination

of the amount of damages that should be awarded.” Fromson & Davis Co. v. Reider

(1934), 127 Ohio St. 564, 569, 189 N.E. 851; see, also, Rinehart v. Brown, 4th Dist. No.
 17

05CA2854, 2006-Ohio-1912, ¶16.

{¶ 45} The size of the verdict alone is insufficient to demonstrate passion or

prejudice. Rinehart, supra, citing Airborne Express, Inc. v. Sys. Research Laboratories,

Inc. (1995), 106 Ohio App.3d 498, 510, 666 N.E.2d 584. “‘[T]here must be something

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

inflamed the sensibilities of the [factfinder].’” Pesic, at ¶23, citing Shoemaker v.

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

{¶ 46} A trial court’s judgment on a Civ.R. 59 motion for a new trial is reviewed

under the abuse of discretion standard. May v. Marc Glassman, Inc., Cuyahoga App.

No. 93966, 2011-Ohio-1581, at ¶12, citing Eddingham v. XP3 Corp., Portage App. No.

2006-P-0083, 2007-Ohio-7135. The decision to grant a motion for a new trial rests

within the sound discretion of the trial court and will not be disturbed upon appeal unless

there has been an abuse of that discretion. Id., citing Pena v. N.E. Ohio Emergency

Affiliates, Inc. (1995), 108 Ohio App.3d 96, 104, 670 N.E.2d 268.

{¶ 47} Appellant argues that the jury awarded her inadequate damages due to the

arguments of appellee’s counsel, which, appellant asserts, wrongfully inflamed the

sensibilities of the jury such that the verdict was given under the influence of passion or

prejudice.

{¶ 48} As an initial matter, appellant’s argument presumes that the jury’s verdict

was the result of opposing counsel’s remarks as opposed to the more likely explanation
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that the jury found that appellant failed to establish that the bulk of her medical bills

were proximately caused by the subject accident.

{¶ 49} As each of appellant’s complaints stem from closing remarks of opposing

counsel, we note that ““‘inferences drawn from the evidence in the cases are a legitimate

source of argument.’”” Roscoe-Herbert v. Fabian, Cuyahoga App. No. 88558,

2007-Ohio-3263, at ¶41, quoting McBride at ¶79, quoting Jackson v. Booth Mem. Hosp.

(1988), 47 Ohio App.3d 176, 180, 547 N.E.2d 1203. “‘[I]t is axiomatic that great

latitude is afforded counsel in the presentation of closing argument to the jury.

Included within the bounds of permissible argument are references to the uncontradicted

nature of the evidence presented by the advocate. The assessment of whether these

bounds have been exceeded is, in the first instance, a discretionary function to be

performed by the trial court. Such determination will not be reversed on appeal absent

an abuse of discretion.’” Id.

{¶ 50} Appellant cites three separate instances where she argues opposing counsel

inflamed the sensibilities of the jury. First, appellant complains that opposing counsel

improperly argued that appellant deliberately mislead Dr. Moore by not revealing her

July 19, 2007 motor vehicle accident to him. However, at trial it was established that

appellant in fact did not disclose her second accident to Dr. Moore. Dr. Moore had

expressed his opinion that the appellant’s extensive medical bills were proximately

related to the subject accident and that the information had been provided to him by
 19

appellant. Appellant’s credibility on this precise issue was called into question and

impeached at trial when she denied being injured in the later accident despite later

alleging the opposite in her Lake County lawsuit. Appellee was free to argue an

inference drawn from this evidence.

{¶ 51} Appellant secondly takes issue with the following portion of appellee’s

closing argument:

“Again, there’s different theories that you have on the case. To me, there’s
glaring things that shoot at me, like this other wreck and Dr. Moore not knowing.
There’s issues that you’ll see early on. When she first started going to Dr. Kim,
she never heard of Kim, Attorney Maly suggested Kim. It says right in the
record, her first visit with that doctor, July 6th, she already had the attorney dialed
in. Is it something directed all through counsel or is this a combination of
both?”

{¶ 52} Appellee’s argument in this above excerpt is based upon appellant’s

credibility that was repeatedly called into question at trial. Appellee challenged

appellant’s contention that all of the medical expenses incurred were proximately related

to the subject accident and appellant’s credibility was a central part of this argument.

Appellant further admitted at trial that after her visit to the emergency room, the first

professional she consulted was her attorney who in turn directed her to Dr. Kim.

{¶ 53} Finally, appellant takes issue with opposing counsel’s remark that

appellant, “asked for $125,000” based upon her injuries in the July 19, 2007 accident.

Appellant argues that there is no support in the record for this number. Appellant’s

argument is refuted by the Lake County complaint that alleges that appellant and her
 20

husband were injured in the accident and seek recovery in excess of the defendant’s

insurance policy, “such limit being $25,000 per person” and recovery from

uninsured/underinsured motorists coverage, “in the amount of $100,000 per person.”

(Emphasis added.)

{¶ 54} After reviewing the record, we do not find the trial court abused its

discretion in denying a new trial on the ground that the jury awarded “excessive or

inadequate damages, appearing to have been given under the influence of passion or

prejudice.” Appellant’s fourth assignment of error is overruled.

{¶ 55} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
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Appendix

Assignment of Error No. 1:
“The Jury’s award of $7,338.21 ($3,695.35 for past economic damages and
$3,642.86 for past non-economic damages) was against the manifest weight of the
evidence.”

Assignment of Error No. 2:
“Where the defendant-appellee acknowledged that he was responsible for some of
plaintiff-appellant’s damages but argued that the balance of the damages were
attributable to a subsequent car accident involving another tortfeasor, and the
appellee failed to present evidence in support of the apportionment of the
damages among the appellee and the other tortfeasor, the jury’s award of
$7,338.21 was contrary to Ohio law.”

Assignment of Error No. 3:
“The trial court erred in allowing evidence of a lawsuit relating to another
automobile accident that plaintiff-appellant was involved in after the accident
giving rise to the present litigation.”

Assignment of Error No. 4:
“The trial court judge abused his discretion in denying plaintiff-appellant’s
motion for a new trial where the jury’s award of damages to appellant was
inadequate, and was made under the influence of passion or prejudice.”
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