{¶ 44} I respectfully dissent.
{¶ 45} Following trial on the limited issue of whether statements made by Dr. Susan Carter, the former Medical Director of the Cancer Care Center at MetroHealth Medical Center, defamed Brigitte Kanjuka, a former practice coordinator who worked there, the jury returned a verdict for Kanjuka, answered interrogatories indicating the defamatory statements were "depression" and "tardiness" and awarded her compensatory damages in the amount of $122,000 for those statements. MetroHealth moved for judgment notwithstanding the verdict, or, in the alternative, new trial or remittitur, contending, inter alia, that Kanjuka failed to present evidence that the alleged defamatory statements lowered the community's estimation of her or deterred others from associating with her, and arguing that Kanjuka did not establish a causal connection between Carter's statements and comments made to her by staff, and that no inference could be made that the hearsay staff comments established injury to her reputation.
{¶ 46} The trial court conducted a hearing on the motion and prepared a 10-page journal entry and opinion in which it stated:
*Page 199{¶ 47} "Plaintiff is [sic] this case failed to produce any witness who believed that she was depressed or had been tardy. * * *
{¶ 48} "* * *
{¶ 49} "To justify any monetary verdict in this case, Plaintiff must have proven a compensable injury. There was no evidence as to monetary damages, and all the evidence produced by Plaintiff supported her claim that she was a wonderful worker, well liked by her peers in the Cancer Center, and highly regarded by everyone who attended either of the two meetings held by Dr. Carter. * * *"
{¶ 50} The trial court concluded therefore that even if Dr. Carter's statements did defame Kanjuka, no one allowed them to influence their relationship with her or acted differently toward her because of them. For that reason, the court granted the judgment notwithstanding the verdict.
{¶ 51} Civ.R. 50 provides for the granting of a motion for judgment notwithstanding the verdict. Specifically, subsection (C)(1) provides:
{¶ 52} "(1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (B) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court."
{¶ 53} Thus, the procedure followed by the sage trial judge parallels the rule.
{¶ 54} The trial court then made the following statement in its opinion:
{¶ 55} "If the reviewing Court does not affirm the JNOV granted by this court, then Defendant is in the alternative clearly entitled to a new trial."
{¶ 56} Civ.R. 59(A) provides that:
{¶ 57} "A new trial may be granted * * * upon any of the following grounds:
{¶ 58} "* * *
{¶ 59} "(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;
{¶ 60} "* * *
{¶ 61} "(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; *Page 200
{¶ 62} "(7) The judgment is contrary to law;
{¶ 63} "* * *."
{¶ 64} Here, the trial court exercised discretion in considering its ruling on the post-trial motion.
{¶ 65} Citing Civ.R. 59(A)(4), (6) and (7), the court concluded the $122,000 judgment is not sustained by the weight of the evidence:
{¶ 66} "* * * the Plaintiff was not defamed, no one believed the statements allegedly made, and no damages were sustained as required by law."
{¶ 67} The court granted the new trial in part because it determined the judgment to be contrary to law. (Civ.R. 59(A)(7)). In this regard, the court stated:
{¶ 68} "This court received the case as a `spin off' and under orders from our Presiding Judge is not permitted to change a ruling by the original judge (unless such ruling was interlocutory). It was this court's belief that the defense of qualified privilege raised a jury question, but was without authority to permit defendant to raise the issue in trial.
{¶ 69} "As a result, a substantial error of law was made preventing Defendant from receiving a fair trial. This error alone is sufficient to fully justify a new trial."
{¶ 70} In addition, the trial court premised its new trial order on its finding that:
{¶ 71} "* * * the verdict was excessive and given under the influence of passion and prejudice. In view of the failure of Plaintiff to prove actual damages, monetary or otherwise, a verdict of $122,000 can be attributed only to passion, prejudice, and a total failure to understand the facts of the case. * * *" (Civ.R. 59(A)(4)).
{¶ 72} While the majority suggests the jury may have made inferences to support its verdict, it is immediately obvious that no evidence exists as a basis from which to make an inference. The trial court reiterated that Kanjuka did not present evidence as to monetary damages.
{¶ 73} Independent of that argument, however, in my view is the overriding factor of a lack of fundamental fairness in denying MetroHealth the opportunity to present evidence of its defense of qualified privilege. Without question, as articulated in the trial court opinion as cited here, MetroHealth may have prevailed on its defense if allowed the opportunity to present evidence at trial.
{¶ 74} Further, the trial court found the verdict excessive and "given under the influence of passion and prejudice." During final argument, the trial court noted in its opinion, counsel referred to Kanjuka's "job loss," valued gross injury *Page 201 at $491,000, and subtracted $368,250 from that amount to arrive at defamation damages of $122,750. As the trial court noted, Kanjuka is still employed as a registered nurse at MetroHealth, and therefore, this is not a wrongful discharge case.
{¶ 75} Finally, the court found the damages award "was manifestly against the weight of the evidence."
{¶ 76} The decision of whether or not to grant a motion for judgment notwithstanding the verdict or a new trial is one vested in the sound discretion of the trial court. See Highfield v. Liberty ChristianAcademy (1987), 34 Ohio App.3d 311.
{¶ 77} Here, the careful trial judge articulated reasons for the court's decision as required by Winson v. Fauth (1989), 63 Ohio App.3d 738.
{¶ 78} Our duty, as set forth in Dillon v. Bundy (1991),72 Ohio App.3d 767, in assessing whether the trial court abused its discretion in granting a new trial on the basis of excessive damages is to consider whether the jury heard improper argument of counsel or whether other conduct could have influenced the jury. In this case, not only did counsel use an improper measure of damages in final argument as outlined by the trial court, but also, MetroHealth had no opportunity to present one of its defenses at trial. This is not a basis to conclude the court abused its discretion.
{¶ 79} Regarding Metrohealth's contention that the verdict is not sustained by the weight of the evidence, the court found no proper evidence of defamatory damages established by Kanjuka and it exercised its discretion to grant a new trial in part on that basis.
{¶ 80} After a careful review of the record, the court's opinion, and the bases of its ruling in connection with the evidence presented at trial, I do not agree that the trial court abused its discretion in granting judgment notwithstanding the verdict, nor in the alternative exercise of its discretion pursuant to Civ.R. 50(C) to alternatively conditionally grant the motion for new trial. Accordingly, I would affirm the judgment of the court, and for that reason, I dissent. *Page 202