Bryan-Wollmann v. Domonko ( 2006 )

{¶ 1} Plaintiffs-appellants, Kathleen Bryan-Wollmann and Michael Wollmann, appeal from the defense verdict and judgment entered on their negligence claim against defendant-appellee, Corrine Domonko. The Wollmanns believe that the verdict was not supported by the evidence and that the trial court erred by denying their posttrial motions for judgment notwithstanding the verdict or for a new trial. For the reasons that follow, we reverse and remand for a new trial.

{¶ 2} The plaintiffs assert that Mrs. Wollmann suffered extensive injuries as a result of a car accident caused by Ms. Domonko's negligence on September 30, 1999. Ms. Domonko admitted her negligence caused the accident. She, however, disputed the extent of injury to Mrs. Wollmann as a result of the collision.

{¶ 3} At trial, the witnesses included Ms. Domonko, the Wollmanns, plaintiffs' expert witnesses, defendant's expert witnesses, and some of Mrs. Wollmann's former coworkers.

{¶ 4} It was undisputed that Mrs. Wollmann was transported from the accident to the hospital emergency room by ambulance. The medical records reflect that she was complaining of neck pain and a burning sensation. Mrs. Wollmann was x-rayed and received medications and injections. Plaintiffs allege that she subsequently developed additional symptoms, including lower back pain, related to the accident.

{¶ 5} The Wollmans experts opined that the September 1999 car accident caused a myriad of injuries and damages to Mrs. Wollmann. In particular, plaintiffs presented the testimony of Dr. Vernon Patterson and Dr. Oas. Dr. Patterson's practice is a combination of medical orthopedics and primary-care sports medicine. Dr. Oas is a neurologist. Both related Mrs. Wollmann's persistent and extensive symptoms and medical problems to the September 1999 accident.

{¶ 6} In response, Ms. Domonko offered the testimony of several expert witnesses to dispute the extent of injury suffered by Mrs. Wollmann as a result of the accident. First to testify was Dr. Donald C. Mann, who specializes in neurology. Ultimately, he concluded that the September 1999 automobile accident had no contribution to Mrs. Wollmann's present state, which included complaints of dizziness, head pain, neck pain radiating down her arms, sleep difficulty, vision trouble, difficulty with recall, and depression.

{¶ 7} Defendant then offered the testimony of Dr. Balraj, a neuropsychologist who treats patients for psychological illnesses and neuropsychological problems. Dr. Balraj explained that he had been asked to determine whether Mrs. Wollmann suffered a brain injury as a result of the accident. He concluded that she had not but stated that his opinion derived largely from subjective observations. He also relied on the medical records, which indicated that Mrs. Wollmann did not lose consciousness following the accident.

{¶ 8} Last, Dr. Kim Stearns, an orthopedic surgeon, testified on behalf of the defense. Dr. Stearns concluded that Mrs. Wollmann had sustained cervical and lumbar sprains as a result of the car accident. He opined that those injuries should have resolved within a two-to-three-month period following the accident. Based on that theory, he further concluded that any of Mrs. Wollmanns' complaints that persisted beyond that period were unrelated to the accident.

{¶ 9} In addition to the experts, Ms. Domonko also presented evidence of Mrs. Wollmanns' significant medical history.

{¶ 10} Although Ms. Domonko's admitted negligence and disputed only the extent of injury proximately caused by the accident, the jury returned a defense verdict. The trial court denied plaintiffs' motion for a judgment notwithstanding the verdict or for a new trial.

{¶ 11} The Wollmann's raise two assignments of error as set forth below:

{¶ 12} "I. The trial court abused its discretion in denying appellants' motion for judgment notwithstanding the verdict where there was insufficient evidence to support the jury's verdict.

{¶ 13} "II. The trial court abused its discretion in denying appellants' motion for new trial as it failed to independently weigh the evidence and assess the credibility of witnesses."

{¶ 14} When a motion for judgment notwithstanding the verdict is considered, "[t]he evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied." Altmann v. SouthwyckAMC-Jeep Renault (1991), 76 Ohio App.3d 92, 95, 601 N.E.2d 122.

{¶ 15} Civ.R. 59 provides for the granting of a motion for a new trial where the judgment is not supported by the weight of the evidence. Civ.R. 59(A)(6). The trial court's decision not to grant a new trial will not be reversed absent an abuse of discretion. Isquick v. Classic Autoworks, Inc. (1993),89 Ohio App.3d 767, 774, 627 N.E.2d 624. Where a motion for new trial is denied, there must be competent, credible evidence in the record to support the jury's verdict. C.E. Morris Co. v. Foley Constr.Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578.

{¶ 16} "``A motion for a new trial with reference to the weight or sufficiency of the evidence * * * imposes upon that court a duty to review the evidence and pass upon the credibility of witnesses.'" Rohde v. Farmer (1970), 23 Ohio St.2d 82, 90,52 O.O.2d 376, 262 N.E.2d 685, quoting Berry v. Roy (1961), 172 Ohio St. 422, 17 O.O.2d 356, 178 N.E.2d 37.

{¶ 18} As set forth above, Ms. Domonko had conceded liability, leaving as the sole question for the jury the amount of damages proximately caused by her negligence. Golias v.Goetz (July 22, 1999), Cuyahoga App. No. 73924, 1999 WL 528613. Yet the jury returned a verdict in Domonko's favor.

{¶ 18} No one disputed that Mrs. Wollmann left the scene of the accident by ambulance or that she required a certain amount of medical attention as a result of the accident. No one claimed that the emergency room visit or treatment was unreasonable or unnecessary. On at least two occasions the trial court observed on the record that the manifest weight of the evidence established that plaintiffs were entitled at a minimum to the medical bills from the emergency room visit.

{¶ 19} Defendant failed to refute that Mrs. Wollmann suffered some injury as a direct and proximate result of the September 1999 accident. Plaintiffs and their experts opined that Mrs. Wollmann suffered extensive and ongoing injuries as a result of the accident. While defense expert Dr. Mann felt that none of Mrs. Wollmann's present conditions were related to the 1999 accident, he never claimed that she suffered no injury as a result of it. Dr. Balraj opined that Mrs. Wollmann had not suffered a brain injury but did not necessarily disagree with plaintiffs' neurology expert, Dr. Oas, who opined that the dizziness she experiences stems from a neck injury related to the car accident. Rather, Balraj distinguished that he was looking at a different question than Dr. Oas when he examined Mrs. Wollmann. The final defense expert, Dr. Stearns, actually concluded that Mrs. Wollmann suffered injuries as a result of the 1999 accident.

{¶ 20} While the record contains a significant amount of disagreement over the extent of plaintiff's damages, there was a certain amount of uncontroverted evidence that plaintiff did suffer some damages as a proximate result of Ms. Domonko's negligence. In such cases, a defense verdict is against the manifest weight of the evidence because it is not supported by competent, credible evidence. See Salem v.Trivisonno (Jan. 29, 1998), Cuyahoga App. No. 71147,1998 WL 32778, citing Vescuso v. Lauria (1989), 63 Ohio App.3d 336,578 N.E.2d 862, and Hallman v. Skender (Jan. 28, 1988), Cuyahoga App. No. 53027, 1988 WL 8393.

{¶ 21} The trial court should have granted plaintiffs' motion for judgment notwithstanding the verdict or a new trial. The assignments of error are sustained, and this cause is reversed and remanded for a new trial.

Judgment affirmed and cause remanded.

DYKE, J., concurs.

COONEY, J., dissents.