Marzullo v. J.D. Pavement Maintenance ( 2011 )

[Cite as Marzullo v. J.D. Pavement Maintenance, 2011-Ohio-6261.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96221
RUTHIE MARZULLO, ET AL.
PLAINTIFFS-APPELLEES/
CROSS-APPELLANTS
vs.
J.D. PAVEMENT MAINTENANCE
D.B.A. UNITED PAVING
DEFENDANT-APPELLANT/
CROSS-APPELLEE
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-695025
BEFORE: Keough, J., Kilbane, A.J., and Jones, J.
RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEY FOR APPELLANT/CROSS-APPELLEE
John F. Gannon
55 Public Square
Suite 930
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS
Todd Petersen
Susan E. Petersen
Petersen & Petersen
428 South Street
Chardon, OH 44024
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant/cross-appellee, J.D. Pavement Maintenance
d.b.a. United Paving (“appellant”), appeals the common pleas court’s
judgment rendered after a jury verdict in favor of
plaintiffs-appellees/cross-appellants, Ruthie and Frank Marzullo (the
“Marzullos”). The Marzullos also appeal the jury’s verdict. For the
following reasons, we affirm in part, reverse in part, and remand for a
hearing on the issue of future economic damages.
{¶ 2} In 2007, the Marzullos filed a lawsuit alleging that appellant
improperly applied seal coating on the parking lot of Ruthie’s employer
causing her to fall on October 24, 2005. After extensive and exhaustive
discovery, the case was tried before a jury in November 2010. The jury
returned a general verdict of $300,000 in favor of the Marzullos and answered
interrogatories apportioning $120,000 for past damages, $180,000 for future
economic damages, $0 for future non-economic damages, and $0 for Frank’s
loss of consortium claim.
{¶ 3} Both parties appeal the jury’s verdict; appellant challenges the
$180,000 award for future economic damages and the Marzullos challenge the
zero verdicts for future non-economic damages and loss of consortium.
APPELLANT’S APPEAL
{¶ 4} In its appeal, appellant raises three assignments of error in which
it argues that the trial court abused its discretion regarding the testimony of
two of the Marzullos’ experts, thus affecting their substantive rights, and that
the award of future economic damages was based on speculation.
I. Economist Testimony
{¶ 5} Appellant argues in its first assignment of error that the trial
court committed prejudicial error in permitting Dr. John Burke, the
Marzullos’ economist expert, to testify regarding future loss of earnings and
the value of in-kind services when such testimony was not based upon facts
perceived by him or facts admitted into evidence during trial, thus violating
Evid.R. 703.
{¶ 6} It is within the discretion of the trial court to determine the
admissibility of opinion testimony of experts. Evid.R. 104(A); Valentine v.
Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶9. Absent a
finding of an abuse of such discretion, i.e., that the trial court’s decision was
unreasonable, arbitrary, or unconscionable, a reviewing court may not disturb
a trial court’s determination as to the admissibility of expert opinion
testimony. See Columbus v. Taylor (1988), 39 Ohio St.3d 162, 165, 529 N.E.2d
1382. Further, a trial court’s discretion in admitting expert opinion
testimony concerning future damages requires that the court “keep such
extrapolations within reasonable bounds and insure that they conform to the
evidence.” Guhn v. Bd. of Edn., Clyde-Green Springs School Dist. (Sept. 20,
1991), Sandusky App. No. S-90-5, quoting Bach v. Penn Cent. Transp. Co.
(1974), 502 F.2d 1117, 1122; see, also, Drayton v. Jiffee Chem. Corp. (1978),
591 F.2d 352, 362.
{¶ 7} Expert testimony is admissible if it will assist the trier of fact to
understand the evidence or determine an issue of fact. Evid.R. 702; Lee v.
Baldwin (1987), 35 Ohio App.3d 47, 49, 519 N.E.2d 662. The facts or data
upon which an expert bases an opinion may be those perceived by the expert
or admitted into evidence at the hearing. Evid.R. 703; State v. Solomon
(1991), 59 Ohio St.3d 124, 126, 570 N.E.2d 1118. Moreover, the Ohio
Supreme Court has held that the hypothesis upon which an expert witness is
asked to state his opinion must be based upon facts within the personal
knowledge of the witness or upon facts shown by other evidence. Burens v.
Indus. Comm. (1955), 162 Ohio St. 549, 124 N.E.2d 724; Kraner v. Coastal
Tank Lines (1971), 26 Ohio St.2d 59, 269 N.E.2d 43. Expert opinion
testimony based upon hypothetical situations not introduced into evidence
may be properly excluded. State v. Schell (1984), 13 Ohio App.3d 313, 318,
469 N.E.2d 999.
{¶ 8} In this case, appellant contends that Dr. Burke’s expert opinion
and report was based solely upon the assumed fact that Ruthie was disabled
and unable to work, which was neither a fact testified to, evidenced at trial,
or within his personal knowledge. Appellant objected in its motion in limine
and prior to Dr. Burke testifying at trial, arguing that Dr. Burke’s opinion as
to future economic loss, i.e. loss of wages and in-kind services, lacked
foundation because whether Ruthie was able to work or disabled was outside
the expertise of Dr. Burke. Appellant argues further that Ruthie’s medical
experts did not testify at deposition or at trial that her alleged injuries
prevented her from working, performing daily household activities, or that
she was disabled.
{¶ 9} At trial, Dr. Burke admitted (1) he is not a medical doctor; thus,
he formed no opinion as to whether Ruthie is disabled; (2) his expert report
and opinion were based on the assumption that Ruthie was disabled and
would remain unemployed for the duration of her life expectancy; and (3) he
did not review any of Ruthie’s medical records in forming his opinion and
report.
{¶ 10} In overruling appellant’s motion and objection, the trial court
stated that:
{¶ 11} “I am going to allow Dr. Burke to testify. I think both, Mr.
Gannon, your objections are noted for the record, as it relates to Dr. Burke’s
conclusion concerning Mrs. Marzullo’s potential employment, his own
analyses that he’s created, and certainly we’re going to hear about it.
{¶ 12} “Nonetheless, these really are questions of fact to be decided by
the Jury. And I think that there is enough evidence that suggests that Mrs.
Marzullo perhaps will not be employed in the future, because of her alleged
injuries at this time.
{¶ 13} “So, at this point, I think that’s a question for the Jury to make a
determination on. So, I’m going to allow Dr. Burke to testify to aid them in
making that conclusion. If that’s what they so choose to make.”
{¶ 14} When the trial court made its ruling, the jury had heard only
laywitness testimony from Ruthie and her co-workers and expert testimony
from Ruthie’s psychologist, Dr. Shapiro, concerning the impact of Ruthie’s
alleged physical injuries on her mental health. The trial court based its
ruling on the presumption that the jury should determine whether Ruthie
would be able to be employed in the future due to her alleged injuries.
{¶ 15} Ruthie argues on appeal that competent and credible medical
evidence was presented because her physicians testified that she would need
further treatment and possibly a hip replacement. Dr. Wael Barsoum
testified that Ruthie had two options regarding future medical treatment: (1)
joint preservation or (2) total hip replacement. However, that was the extent
of Dr. Barsoum’s testimony regarding future treatment. He did not testify
that these future procedures or any recuperation period would prevent Ruthie
from working or performing daily household activities. Ruthie contends that
a jury “can infer from common knowledge that a period of recuperation and
disability will be necessary after [a] surgical procedure.” This argument is
contrary to law.
{¶ 16} Rather, we find that the trial court’s decision allowing Dr.
Burke’s testimony was unreasonable because it left the jury to make an
expert conclusion regarding whether Ruthie’s condition impaired her ability
to work. See Ratliff v. Colasurd (Apr. 27, 1999), Franklin App. No.
98AP-504 (plaintiff’s testimony alone was insufficient to demonstrate the
extent of his inability to work); Williams v. Noden (Feb. 15, 1995), Summit
App. No. 16857 (common knowledge and experience does not dictate if, when,
and to what extent a subjective injury will diminish a person’s ability to work
in the future; “when a physician cannot reach a conclusion without the aid of
scientific tests, a jury certainly cannot do the same without an expert.”).
Typically, it is the duty of the jury to assess the credibility and evaluate facts
upon which the expert based his opinion. See McKay Machine Co. v.
Rodman (1967), 11 Ohio St.2d 77, 82, 228 N.E.2d 304. However, in this case,
Dr. Burke did not base his opinion on any facts testified to, admitted into
evidence, or perceived, but only on an assumption.
{¶ 17} “An award of future damages for future wage loss raises two
independent evidentiary concerns: (1) whether a plaintiff offered sufficient
proof of future impairment; and (2) whether a plaintiff offered sufficient
evidence of the extent of prospective damages flowing from the impairment.”
Power v. Kirkpatrick (July 20, 2000), Franklin App. No. 99AP-1026. To
recover future earnings, a plaintiff must prove by sufficient evidence that she
is reasonably certain to incur such damages in the future. Id., citing
Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d 421, 644 N.E.2d 298.
“Therefore, the showing of future loss of earnings in a personal injury case
involves demonstrating with reasonable certainty that an individual’s injury
or condition prevents that individual from attaining his or her pre-injury
wage.” Power, supra. The general rule is that impairment of earning
capacity may only be considered as an element of damages where there is
evidence of the extent of such loss. Hanna v. Stoll (1925), 112 Ohio St. 344,
354, 147 N.E. 339.
{¶ 18} In this case, neither of Ruthie’s medical experts or her
psychological expert testified with any reasonable degree of certainty that
Ruthie’s injury prevented her from obtaining her pre-injury wage or from
performing daily activities.
{¶ 19} In Jordan v. Elex, Inc. (1992), 82 Ohio App.3d 222, 611 N.E.2d
852, the First District upheld the trial court’s exclusion of testimony from two
of the plaintiff’s experts, one an economist. The court held that the trial
court properly excluded the economist’s testimony regarding loss of household
services and future earnings because the plaintiff failed to produce any
competent medical testimony supporting the economist’s opinions. Id. at
230-231.
{¶ 20} In Jordan, the plaintiff lost two of her toes. The court held that
although the injury was objective for purposes of construing pain and
suffering damages, the injury was subjective as it related to future earnings
and lost household services. “There is nothing within the common
knowledge and experience of jurors to enable them to conclude that because
[the plaintiff] lost two toes she is, for example, fifty percent disabled as far as
being able to perform household chores. Nor can the jury say whether such an
injury will require a worker to engage solely in sedentary work in the future.
Without competent medical testimony, the necessary causal relationship
between [plaintiff’s] injury and her damages cannot be shown and any award
would be speculative.” Id. at 231.
{¶ 21} Much like in Jordan, Dr. Burke’s testimony was not based on any
medical testimony supporting his assumption that Ruthie’s injuries rendered
her disabled or that she would be unemployed for the duration of her life
expectancy and thereby prevented her from attaining her pre-injury wage.
No medical testimony was offered to support Dr. Burke’s expert report and
conclusions. There is nothing within the common knowledge and experience
of the jurors to enable them to conclude that because Ruthie suffered injury to
her hip, the injury would prevent her from attaining her pre-injury wage.
{¶ 22} Accordingly, we find that the trial court abused its discretion in
allowing Dr. Burke to testify regarding future loss of earnings and in-kind
services because his expert report and opinion was not based on competent
and credible medical testimony, but rather on an assumption. Appellant’s
first assignment of error is sustained.
II. Award of Future Economic Damages
{¶ 23} In its second assignment of error, appellant contends that trial
court erred in submitting the issue of future economic damages to the jury.
Appellant raises two issues relating to this assignment of error.
{¶ 24} In its first issue, appellant claims that the trial court erred in
submitting the issue of future economic damages to the jury when no expert
testimony was presented to provide a foundation for future loss of earnings,
loss of in-kind services, or future damages of any kind. The majority of
appellant’s argument is that Dr. Burke’s testimony was in error and without
that testimony, no evidence existed supporting the trial court’s decision to
submit the issue of future economic damages to the jury.
{¶ 25} The jury’s verdict form and interrogatories for “future economic
damages” included lost wages, salaries, or other compensation, and also
included “all expenditures for medical care or treatment, rehabilitation
services, or other care, treatment, services, products or accommodations” or
“any other expenditures incurred” as a result of Ruthie’s claim. Therefore,
the jury could award “future economic damages” based on one or all three
categories provided.
{¶ 26} Accordingly, even without Dr. Burke’s testimony, the trial court
did not abuse its discretion in submitting the issue of future economic
damages to the jury because the verdict form did not require the jury to
delineate, apportion, or indicate to which category of “future economic
damages” the award would be in reference.
{¶ 27} Contrary to appellant’s statement that the award of future
damages could not have been for future medical expenses because no
physician testified as to future medical expense, we find that Ruthie’s
treating psychologist, Dr. Shapiro, testified as to further treatment. The
jury heard evidence from Dr. Shapiro that Ruthie would be under his care for
a minium of one to two more years, if she was physically better and employed.
Dr. Shapiro testified that he sees Ruthie weekly at $125 per session.
Accordingly, some competent and credible evidence of further medical
expenses were presented; therefore, the trial court did not abuse its discretion
in submitting the issue of future economic damages to the jury.
{¶ 28} Appellant raises as its second issue that the jury award of
$180,000 for future economic damages was based on speculation. We agree.
{¶ 29} “Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a
reviewing court as being against the manifest weight of the evidence.” C.E.
Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578,
syllabus.
{¶ 30} In order to recover future damages, a plaintiff must prove by
sufficient evidence that she is reasonably certain to incur such damages in
the future. Power, citing Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio
St.3d 421, 425, 644 N.E.2d 298.
{¶ 31} A jury is not permitted to speculate as to damages for future
medical expenses. In Powell v. Montgomery (1971), 27 Ohio App.2d 112, 272
N.E.2d 906, the Fourth District recognized: “‘The mere fact alone that there
may be some permanency to the injury is not enough. This court is
committed to the proposition that the jury cannot be allowed to speculate or
guess in making allowance for future medical expenses; there must be some
data furnished the jury upon which it might reasonably estimate the amount
to be allowed for this item. Of course, at best it is a mere estimate and
cannot be determined with accuracy, but there must be some evidence to
authorize the estimate. The jury cannot be left to guess the probable nature of
future treatment or the probable expense thereof.’” Id. at 120-121 (internal
citations omitted), adopting and quoting Henderson v. Breesman, 77 Ariz.
256, 259, 269 P.2d 1059.
{¶ 32} “The members of this court cannot determine from the evidence
without speculation, and neither could the jury, whether plaintiff’s injury
would require medical or hospital treatment in the future, and, if so, at what
cost, nor can it be determined from the evidence whether plaintiff will
continue to suffer pain, as he has from the date of the accident to trial, in the
future and, if so, for what period of time it will continue.” Powell at 121.
{¶ 33} Thus, in awarding prospective damages, juries are confined to
those damages reasonably certain to follow from the claimed injury. In Tully
v. Mahoning Express Co. (1954), 161 Ohio St. 457, 119 N.E.2d 831, the Ohio
Supreme Court held that evidence as to the extent of further medical
treatment, future hospitalization, and estimated expenses, and the estimated
time of a plaintiff’s future unemployment as a result of such treatment and
hospitalization can only be given by an expert witness. This rule was later
expanded by the Ohio Supreme Court in Day v. Gulley (1963), 175 Ohio St.
83, 191 N.E.2d 737, wherein the Court held that expert evidence as to future
pain and suffering, permanency of injuries, or lasting impairment of health is
required where the injury is subjective in character.
{¶ 34} An injury is subjective when the injury alone is insufficient to
allow the jury to conclude with reasonable certainty that a plaintiff will suffer
future damages. See, e.g., Day. Accordingly, expert testimony on the extent
of a plaintiff’s subjective injury is necessary for an award of prospective
damages. Day at 86, and Powell at 119. If the injury is an objective injury,
i.e., loss of an arm or leg, the injury itself provides the “evidentiary basis for
the jury to conclude with reasonable certainty that future damages, such as
medical expenses will probably result.” Powell at 119.
{¶ 35} We find the alleged conditions, i.e. hip injury, piriformis
syndrome, torn labrum, watershed lesion, and psychological conditions
suffered by Ruthie are subjective in nature; therefore, she was required to
present expert testimony that she would suffer future damages. Power,
supra citing Williams, supra (holding that the jury could not conclude, based
on common knowledge and experience, that a herniated disc would cause the
disability and prospective damages claimed by the plaintiff; therefore, the
plaintiff was required to submit expert testimony evidencing such disability
and prospective claims).
{¶ 36} Ruthie argues that the testimony from her, her husband,
coworkers, and medical experts showed that she “suffered significant pain as
a result of her hip injury, and common sense that hip replacement surgery
would necessitate a period of rehabilitation and recuperation was sufficient to
allow the jury to infer that [she] would incur lost wages in the future.”
{¶ 37} In support of her argument, Ruthie cites Union v. Clevenger (July
7, 1988), Cuyahoga App. No. 54030. In Union, one of the plaintiff’s
physicians testified regarding the extent and permanency of plaintiff’s
injuries, future medical procedures, and their associated costs, and that
during the period of recuperation she would be disabled. This court found
that this testimony was “competent credible evidence of the [plaintiff’s] future
damages reasonably certain to follow the injury complained of by the
[plaintiff].”
{¶ 38} However, and unlike the testimony in Union, none of Ruthie’s
medical experts except Dr. Shapiro testified regarding the permanency of her
injuries, the costs associated with any future medical procedures Ruthie may
undergo, or whether during the period of recuperation she would be disabled.
No evidence was elicited or given to validate or even hint at the costs
associated with any future medical procedures or treatment; thus any amount
apportioned or determined by the jury would be based purely on conjecture or
speculation, which is contrary to law.
{¶ 39} Moreover, even construing the evidence in favor of Ruthie, we
cannot say that the $180,000 jury verdict was based on competent and
credible evidence. Having previously found that the trial court abused its
discretion in allowing Dr. Burke to testify regarding future earnings and
in-kind services, the only competent evidence the jury had before it was
limited testimony that Dr. Shapiro treats Ruthie for psychological issues once
a week at approximately $125 a visit. When questioned as to how long he
would have to see Ruthie, his answer was also based on speculation of one to
two years if she was medically better and employed, but longer if not.
Considering this testimony alone, we cannot say that competent and credible
evidence was presented to support the jury verdict for future economic
damages of $180,000, when each visit to Dr. Shapiro is only $125.
Accordingly, the jury’s award of $180,000 was based on speculation.
{¶ 40} “As a general rule, once a plaintiff establishes a right to damages,
that right will not be denied because damages cannot be calculated with
mathematical certainty. * * * However, damages will not be awarded based
on mere speculation and conjecture.* * * The plaintiff must show entitlement
to damages in an amount ascertainable with reasonable certainty. * * * In
assessing prospective damages, the trier of fact can only consider damages
which are reasonably certain to follow the injury complained of.” (Citations
omitted.) Barker v. Sundberg (Oct. 25, 1993), Ashtabula App. No. 92-A-1756.
Without expert testimony on the future course of medical treatment, a jury
is not permitted to simply infer from the expense of past treatment an
amount of damages for future treatment. Scott v. Condo, Hamilton App. No.
C-010123, 2002-Ohio-2148. Restricting jury considerations as to future
damages to that which the evidence discloses are reasonably certain to result
is to prevent conjecture and speculative with respect to such items. Powell
at 116.
{¶ 41} While we do not discount Ruthie’s injury, the evidence in the
record before us does not support a jury verdict of $180,000 for future
economic damages. However, because some competent and credible evidence
existed allowing the jury to consider the issue of future economic damages, it
was not error to submit the issue to the jury. Accordingly, we remand the
matter to the trial court to conduct a hearing on future economic damages.
{¶ 42} Appellant’s second assignment of error is overruled in part and
sustained in part.
III. Expert Report Disclosure
{¶ 43} In its final assignment of error, appellant contends that the trial
court committed prejudicial error in permitting Dr. Shapiro to testify to
opinions not disclosed in his report in violation of Civ.R. 26(B)(5)(b) and
Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County, General
Division.
{¶ 44} Appellant asserts that Dr. Shapiro’s testimony should have been
limited to opinions contained in his report dated December 11, 2009.
Instead, the trial court allowed Dr. Shapiro to testify regarding treatment he
provided to Ruthie from May 2010 until October 2010.
{¶ 45} As discussed above, the introduction of evidence at trial falls
within the sound discretion of the trial court. Generally, expert opinions must
be disclosed in an expert report prior to trial and elicited from the expert at
trial. Loc.R. 21.1. This is to prevent surprise at trial and to give the opposing
party an opportunity to properly cross-examine the expert. Loc.R. 21.1
provides for the exchange of expert reports prior to trial, and Civ.R. 26(E)
imposes a continuing duty to update those reports should the expected scope
or opinion of the expert testimony change. Vaught v. Cleveland Clinic Found.,
98 Ohio St.3d 485, 2003-Ohio-2181, 787 N.E.2d 631, ¶14-21.
{¶ 46} The record before this court shows that Dr. Shapiro’s expert
report was properly exchanged between the parties prior to trial. This fact is
not disputed. However, we also find that the Marzullos properly complied
with their duty to update the report under Civ.R. 26(E). The updates appear
to be additional medical records regarding treatment that occurred between
the time of the initial exchange of reports and the date of trial. Appellant
has failed to demonstrate how the supplemental medical records prejudiced
its case, when it appears that Dr. Shapiro at all times was going to testify
regarding the psychological injuries Ruthie allegedly sustained as a result of
the fall.
{¶ 47} Accordingly, we find that the trial court’s decision to allow Dr.
Shapiro to testify regarding those updated reports was not an abuse of
discretion.
{¶ 48} Accordingly, appellant’s third assignment of error is overruled.
MARZULLOS’ CROSS-APPEAL
I. Future Non-economic Damages
{¶ 49} The Marzullos contend in their first assignment of error that the
jury’s failure to award future damages for pain and suffering is contrary to
law and against the manifest weight of the evidence. Specifically, they argue
that pain and suffering are presumed in the law and do not need to be
specifically plead or proven to be recoverable; and therefore, because they
proved that Ruthie’s injury was caused by appellant’s negligence, the jury’s
failure to award pain and suffering damages was contrary to law.
{¶ 50} “Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a
reviewing court as being against the manifest weight of the evidence.” C.E.
Morris, supra.
{¶ 51} The Marzullos direct this court to consider the testimony of
Ruthie’s treating physicians, who testified that additional surgery and
rehabilitation is needed in an effort to reduce or eliminate her pain. The
Marzullos argue that “in either event, whether she chooses to have surgery
and a period of recuperation or whether Ruthie does nothing, she will
inevitably endure pain and suffering as a result.”
{¶ 52} The Marzullos cite Hughes v. Koop (Feb. 18, 1997), Clermont App.
No. CA96-10-081, and Ortman v. Lumbert (Apr. 14, 1997), Madison App. No.
CA96-06-023, for the proposition that a new trial should be ordered where a
jury fails to award any damages for a plaintiff’s uncontroverted pain and
suffering. However, in both cases cited, the jury did not award any damages
for pain and suffering, past or future, when the evidence showed that
substantial injury was sustained. In this case, the jury awarded the
Marzullos past damages, which included damages for past pain and suffering.
Accordingly, the Marzullos’ reliance on Hughes and Ortman are misplaced.
{¶ 53} The Ohio Supreme Court in Day held that just as expert medical
testimony is necessary to sustain a verdict for future medical expense and
future loss of wages when the injury is subjective, the same expert testimony
rule applies with regard to the permanency of an injury and the assessment
of damages for pain, suffering, and disability as a result of such permanency
of the injury. Day at 87, citing Brush v. E. Motor Dispatch, Inc. (App.1950),
61 Ohio Law Abs. 219, 104 N.E.2d 700; see, also, McCoy v. Gilbert, 110 Ohio
App. 453, 169 N.E.2d 624. Therefore in a case involving a subjective injury,
expert medical testimony is needed to prove future pain and suffering or
permanency. Roberts v. Mut. Mfg. & Supply Co. (1984), 16 Ohio App.3d 324,
475 N.E.2d 797. The probability of future pain and suffering must be
demonstrated by expert testimony when the nature of the injury is not
obvious. Corwin v. St. Anthony Med. Ctr. (1992), 80 Ohio App.3d 836, 841,
610 N.E.2d 1155, citing Hollobaugh v. D & V Trucking, Mahoning App. No.
99 CA 303, 2001-Ohio-3265.
{¶ 54} Accordingly, an award for future damages for pain and suffering
must be supported by expert testimony and evidence. In this case, although
there was some testimony that Ruthie was still in pain due to the fall and
would remain in pain until some additional medical procedures were
performed, no evidence was presented as to the severity or duration of any of
the alleged future pain. Moreover, the jury also heard testimony from
competing medical experts regarding Ruthie’s injuries and the alleged need
for further treatment and could choose to believe or disbelieve some or all of
this testimony. In fact, Dr. Kim Stearns, appellant’s expert, testified that
the injuries Ruthie suffered as a result of the fall in 2005 have healed.
{¶ 55} It is well established that when there is a conflict in the
testimony on any subject, the question is one for the trier of fact. Ayers v.
Ishler, Delaware App. No. 11 CAE 01 0001, 2011-Ohio-4272, ¶60, citing
Barnett v. Hills (1947), 79 N.E.2d 691, 50 Ohio Law Abs. 208. As the trier of
fact, the jury was free to accept or reject any or all of appellant’s evidence
relating to damages. Id., citing Peck v. Ryan (June 30, 1988), Butler App.
No. CA87-09-120. Morever, even assuming that the Marzullos presented
undisputed evidence, the jury had the inherent power to reject the evidence
presented. Id., citing Lanham v. Wilson (Aug. 12, 1991), Madison App. No.
CA90-11-024. A jury is free to reject any evidence and is not required to
accept evidence simply because it is uncontroverted, unimpeached, or
unchallenged. Id., citing Ace Steel Baling, Inc. v. Porterfield (1969), 19 Ohio
St.2d 137, 138, 249 N.E.2d 892.
{¶ 56} Finally, there was testimony upon which the jury could have
inferred that some of the injuries complained of were either caused by a
subsequent fall or were pre-existing. The jury heard testimony that Ruthie
continued to work in her same capacity for approximately four years after her
fall in 2005; thus, the jury could have determined that the pain and suffering
was not as extensive as Ruthie claimed.
{¶ 57} Accordingly, we find there was some competent and credible
evidence supporting the jury’s verdict for non-economic damages. The
Marzullos’ first assignment of error is overruled.
II. Loss of Consortium
{¶ 58} In their second assignment of error, the Marzullos contend that
the jury’s failure to award damages to Frank Marzullo for loss of consortium
is contrary to law and against the manifest weight of the evidence.
{¶ 59} In order to prove a loss of consortium claim, the plaintiffs first
must establish the underlying action. Although a separate cause of action, a
consortium claim is a derivative claim in the sense that it can only be
maintained if the primary negligence action is proven. Bowen v. Kil-Kare,
Inc. (1992), 63 Ohio St.3d 84, 92-93, 585 N.E.2d 384. Once that is shown, the
complaining spouse must show damages proximately caused by the negligent
act, much as the primary plaintiff must prove damages. Id. “‘Loss of
spousal consortium is generally defined as a deprivation of society, services,
sexual relations, and conjugal affection, which includes companionship,
comfort, love and solace.’” Id. at 92, quoting Clouston v. Remlinger Oldsmobile
Cadillac, Inc. (1970), 22 Ohio St.2d 65, 72, 258 N.E.2d 230.
{¶ 60} As previously addressed in the Marzullos’ first assignment of
error, the jury in this case was free to believe all or none of the Marzullos’
evidence on this claim, even if uncontroverted. See Ayers, supra. Frank
and Ruthie both testified that her injuries prevented her from doing daily
activities. However, the jury heard evidence from competing medical experts
regarding the nature of Ruthie’s injuries, and Dr. Stearns opined that the
injuries she sustained as a result of her fall in October 2005 did not render
her disabled.
{¶ 61} Accordingly, we find there was some competent and credible
evidence supporting the jury’s verdict regarding loss of consortium. The
Marzullos’ second assignment of error is overruled.
{¶ 62} Judgment affirmed in part, reversed in part, and case remanded
for a damages hearing on the issue of future economic damages.
It is ordered that parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, J., CONCUR