Argie v. Three Little Pigs, Ltd.

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-667

Case Date: 02/16/2012

Plaintiff: Argie

Defendant: Three Little Pigs, Ltd.

Preview:[Cite as Argie v. Three Little Pigs, Ltd., 2012-Ohio-667.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
George J. Argie, III,                                                                         :
Plaintiff-Appellant,                                                                          :
                                                                                                                                 No. 11AP-437
v.                                                                                            :                                  (C.P.C. No. 09CVC10-16167)
Three Little Pigs, Limited et al.,                                                            :                                  (REGULAR CALENDAR)
Defendants-Appellees.                                                                         :
D    E    C    I    S    I    O    N
Rendered on February 16, 2012
Spangenberg Shibley & Liber LLP, Dennis R. Lansdowne,
and Melissa Z. Kelly, for appellant.
Robert P. Lynch Jr., for appellees.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1}  Plaintiff-appellant,  George  J.  Argie,  III                                          ("appellant"),  appeals  from  a
judgment of the Franklin County Court of Common Pleas denying his motion for a new
trial following a jury verdict entered in favor of defendants-appellees, Three Little Pigs,
Limited and Hoggy's Restaurant and Catering ("appellees").   For the following reasons,
we affirm.
{¶ 2}  It  is  undisputed  that,  on  July  7,  2007,  appellant  was  involved  in  an
automobile collision caused by the negligence of Jennifer Cheesman while Cheesman
was driving within the scope of her employment for appellees.  Appellant was stopped in
traffic on I-270 when his son, who was following him in another car, came to a stop
behind him.  Cheesman was following behind appellant's son, but she failed to come to a

No. 11AP-437                                                                                       2
stop and, as a result, crashed her car into the rear of appellant's son's car.   The collision
pushed appellant's son's car into appellant's car, which then forced appellant's car into a
guardrail.
{¶ 3}  Appellant filed a personal-injury action against appellees in the Cuyahoga
County  Court  of  Common  Pleas.    After  the  Cuyahoga  County  trial  court  granted
appellees' request for a change of venue, the matter was transferred to the Franklin
County Court of Common Pleas where a jury trial began on March 7, 2011.
{¶ 4}  The issue contested at trial was whether the collision was the proximate
cause of appellant's claimed injuries.  More specifically, the parties disputed whether the
collision resulted in a herniated disc that appellant claimed to have suffered several
months after the collision.
{¶ 5}  Appellant testified that, two days after the July 7, 2007 collision, he sought
treatment from his chiropractor, Dr. John Bondra, for neck and back pain.   Although he
had seen Dr. Bondra before the collision for "low back complaints" caused by golf and
exercise, appellant denied having any neck pain prior to the date of the collision.                (Tr.
70.)   Appellant did not meet with Dr. Bondra again until January 2008, when he began
to notice that a "pinching sensation" in his neck was progressively worsening.                     (Tr. 72.)
In late April, early May 2008, appellant began to notice pain radiating from his neck
down  to  his  left  arm  along  with  numbness  in  several  fingers.    During  his  cross-
examination, appellant testified that he did not complain of any numbness or pain
radiating down his left arm when he met with Dr. Bondra two days after the collision.
Appellant also testified that he experienced the pinching pain in his neck while playing
golf,  but  still  continued  golfing  and  exercising  with  his  personal  trainer  after  the
collision.
{¶ 6}  Throughout trial, appellees argued for the admission of a letter addressed
to appellant from Dr. Bondra dated March  4,  2008.    The letter was unsigned and
contained a narrative of appellant's July 9, 2007 meeting with Dr. Bondra, including a
summary of appellant's chief complaints.   Appellees argued for the introduction of the
letter because, although it stated appellant suffered a cervical sprain-strain, thoracic
sprain-strain, and lumbo-sacral sprain strain, it did not reference any complaints from

No. 11AP-437                                                                                    3
appellant about numbness or pain radiating from his neck to his arm.   In response,
appellant argued that the letter was inadmissible because "there is no evidence in the
record that Dr. Bondra is qualified to give those expert opinions."                             (Tr. 131.)   The trial
court, however, found the letter to be admissible as an exception to the hearsay rule.
{¶ 7}  Appellant  presented  videotaped  deposition  testimony  from  Dr.  Louis
Keppler and Dr. Deborah Blades.   Dr. Keppler, an orthopedic surgeon, testified that he
met with appellant in June 2008 and that an MRI examination revealed a herniated disc
at "C-6/7," the sixth and seventh cervical levels of appellant's cervical spine.  Dr. Keppler
did not testify as to whether the collision caused the herniated disc or any of appellant's
other claimed injuries.   Because Dr. Keppler thought appellant might require cervical-
spine surgery, he referred appellant to Dr. Blades, a neurosurgeon specializing in such
procedures.
{¶ 8}  Dr. Blades testified that she met with appellant in June 2008 and reviewed
his  MRI.    After  describing  the  nature  of  appellant's  herniated  disc,  Dr.  Blades
acknowledged that there are a number of "daily activities" that could cause a herniated
disc, and that she has treated patients who suffered from herniated discs in their neck
while playing sports.    In a letter addressed to Dr. Keppler, Dr. Blades wrote that
appellant suffered significant soft tissue injuries that "subsequently manifested a few
months following the accident."   (Dr. Blades Deposition, 38.)  During her testimony, Dr.
Blades  explained  that  the  soft-tissue  injuries  did  not  manifest  themselves  until
approximately two to three months after the collision.
{¶ 9}  After the presentation of the evidence, the trial court instructed the jury to
determine  whether  appellees'  negligence  proximately  caused  appellant  to  suffer
noneconomic losses.   Following deliberations, the jury returned a verdict in favor of
appellees.
{¶ 10} Appellant moved for a new trial under Civ.R. 59, arguing that the jury's
verdict was against the manifest weight of the evidence.   Appellant claimed that, while
the jury was free to believe that the collision did not cause his herniated disc, there was
uncontroverted evidence that he suffered "some injury" as a result of the collision.
Appellant pointed to his testimony describing the neck and back pain for which he

No. 11AP-437                                                                                    4
sought treatment from Dr. Bondra two days after the collision.   Appellant also relied on
Dr. Bondra's March 4, 2008 letter, which diagnosed him with various "sprain-strain"
injuries.   In response, appellees argued that the verdict was not against the manifest
weight of the evidence because appellees did not concede that the collision caused
appellant to suffer any injury.  According to appellees, the issue disputed at trial was the
cause of appellant's herniated disc, and there was conflicting evidence of causation.
{¶ 11} The trial court denied appellant's motion for a new trial, finding that
appellant only presented evidence of subjective pain and suffering and that there was
conflicting evidence regarding the cause of appellant's claimed injuries.
{¶ 12} Appellant now appeals, advancing the following assignment of error for
our consideration:
The  Trial  Court  Abused  Its  Discretion  When  It  Denied
Plaintiff's Motion For A New Trial, Where The Jury Returned
A Defense Verdict Despite Uncontroverted Evidence That
Plaintiff  Suffered  Some  Injury  As  A  Result  Of  The
Defendants' Negligence.
{¶ 13} In his sole assignment of error, appellant argues the trial court erred in
denying his motion for a new trial under Civ.R. 59(A)(6).  Civ.R. 59(A)(6) permits a trial
court to order a new trial where "[t]he judgment is not sustained by the weight of the
evidence."   A judgment is not against the manifest weight of the evidence if there is
competent, credible evidence going to all the essential elements of the case.  C.E. Morris
Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus.   When presented with a
Civ.R. 59 motion, the trial court is afforded wide discretion in determining whether the
jury's verdict is against the manifest weight of the evidence.   Osler v. Lorain, 28 Ohio
St.3d 345, 351 (1986).   " '[A]buse of discretion' connotes more than an error of law or
judgment;  it  implies  that  the  court's  attitude  is  unreasonable,  arbitrary  or
unconscionable."  Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 14} Appellant asserts that the jury's verdict was against the manifest weight of
the evidence because the parties did not dispute that Cheesman's negligence caused the
collision  and  because,  according  to  appellant,  there  was  uncontroverted  evidence
establishing that he suffered "some injury" as a result of the collision.   Conceding that it
was in the province of the jury to reject his claim that the collision caused his herniated

No. 11AP-437                                                                                      5
disc, appellant maintains it was undisputed he sought treatment for soft-tissue injuries
two days after the collision.
{¶ 15} "[W]here subjective, soft-tissue injuries are alleged, the causal connection
between such injuries and the automobile accident alleged to have caused them is
beyond the scope of common knowledge, and that such causal connection must be
established by expert testimony."   Rogers v. Armstrong, 1st Dist. No. C-010287, 2002-
Ohio-1131 (Mar. 15, 2002).   "Soft-tissue injuries like neck and back strains and sprains
require expert testimony to establish a causal connection, because they are injuries that
are  'internal  and  elusive,  and  are  not  sufficiently  observable,  understandable,  and
comprehensible by the trier of fact.' "   Lane v. Bur. of Workers' Comp., 2d Dist. No.
24618,  2012-Ohio-209,  ¶  60, citing, inter alia, Wright v. Columbus,  10th Dist. No.
05AP-432, 2006-Ohio-759, ¶ 19; see also Maney v. Jernejcic, 10th Dist. No. 00AP-483
(Nov.  16,  2000)  (soft-tissue  injuries  sustained  in  a  rear-end  collision  are  internal
injuries that are usually unaccompanied by observable external injuries and, therefore,
require expert medical testimony of causation).
{¶ 16} Although appellant testified that he sought treatment from Dr. Bondra for
neck and back pain two days after the collision, he did not present any expert testimony
to establish a causal link between the collision and his alleged soft-tissue injuries within
a reasonable degree of medical probability.  Because appellant's trial strategy focused on
his  claimed herniated  disc  injury, neither  Dr. Keppler  nor Dr.  Blades  offered  any
testimony about whether the collision caused appellant to sustain the neck and back
pain that  he  claimed  to  have  suffered within two  days  after  the collision.    While
appellant now points to Dr. Bondra's March 4, 2008 letter stating appellant sustained
various "sprain-strain" injuries, Dr. Bondra never testified at trial, and the letter was
contradicted by the testimony of Dr. Blades, who stated that any significant soft-tissue
injuries did not manifest themselves until approximately two or three months after the
collision.                                                                                        (Dr. Blades Deposition,  38.)    Interestingly, appellant argued against the
admission of this letter at trial, stating "there is no evidence in the record that Dr.
Bondra is qualified to give those expert opinions."   (Tr. 131.)   Nevertheless, the jury was
free  to  accept  Dr.  Blades'  testimony  over  Dr.  Bondra's  unsigned,  unsworn  letter,

No. 11AP-437                                                                                      6
especially given the evidence that appellant continued golfing and working out with a
physical trainer after the collision.
{¶ 17} Notwithstanding  the  above,  appellant  relies  on  three  cases  for  the
proposition  that  a  defense  verdict  is  against  the  manifest  weight  of  the  evidence
whenever "uncontroverted" evidence proves that the defendant's negligence caused
"some injury."   See Vescuso v. Lauria, 63 Ohio App.3d 336 (8th Dist.1989); Starcher v.
Adams, 10th Dist. No. 96APE07-884 (Mar. 25, 1997); Bryan-Wollman v. Domonko, 167
Ohio App.3d 261,  2006-Ohio-2318  (rev'd by Bryan-Wollman v. Domonko, 115 Ohio
St.3d 291, 2007-Ohio-4918).   In each of these cases, however, both parties presented
expert  testimony  establishing  that  the  defendant's  negligence  caused  some  injury.
Vescuso at syllabus; Starcher; Bryan-Wollman at  ¶  19.    Here, in contrast, neither
appellant nor appellees presented expert testimony establishing that the collision was
the proximate cause of appellant's claimed soft-tissue injuries.   Thus, we find the cases
relied on by appellant to be unpersuasive.
{¶ 18} Regardless, even if Dr. Bondra's letter constituted "uncontroverted" expert
testimony that the collision caused "some injury," it is well-settled that "triers of fact are
not required to accept evidence simply because it is uncontroverted, unimpeached, or
unchallenged."  Smith v. Simkanin, 5th Dist. No. 2011 CA 00045, 2011-Ohio-6123, ¶ 32,
citing Ace Steel Baling, Inc. v. Porterfield, 19 Ohio St.2d 137, 138 (1969).  A plaintiff still
bears the burden of persuasion on all dispositive issues, and " '[a]s long as there are
objectively discernable reasons why the jury may have rejected the expert medical
testimony, an award less than what the "uncontroverted" medical evidence implies may
withstand challenge on appeal.' "    Welch v. Ameritech Credit Corp.,  10th Dist. No.
04AP-1123,                                                                                        2006-Ohio-2528,            ¶   13,  quoting  Dottavio  v.  Shepherd,                      9th  Dist.  No.
98CA0042  (Dec.                                                                                   1,                1999).       As  explained  above,  there  were  several  objectively
discernable reasons for the jury's verdict, and the jury was not required to accept Dr.
Bondra's letter as definitive evidence of causation.
{¶ 19} Based on the above, we find that the trial court did not act in an arbitrary,
unreasonable or unconscionable manner when it denied appellant's motion for a new
trial under Civ.R. 59.  Accordingly, appellant's assignment of error is overruled.

No. 11AP-437                                                                           7
{¶ 20} Having  overruled  appellant's  sole  assignment  of  error,  we  affirm  the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRYANT and CONNOR, JJ., concur.

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