Roberts v. Erie Ins. Group ( 2013 )

[Cite as Roberts v. Erie Ins. Group, 2013-Ohio-718.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
MICHELLE ROBERTS, et al. :
Plaintiffs-Appellants : C.A. CASE NO. 2012 CA 46
v. : T.C. NO. 10CV38
ERIE INSURANCE GROUP, et al. : (Civil appeal from
Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 1st day of March , 2013.
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JOHN A. SMALLEY, Atty. Reg. No. 0029540, 131 N. Ludlow Street, Suite 1400, Dayton,
Ohio 45402
Attorney for Plaintiffs-Appellants Michelle and James Roberts
STEVEN O. DEAN, Atty. Reg. No. 0009095, 130 W. Second Street, Suite 1500, Dayton,
Ohio 45402
Attorney for Defendant-Appellee Zachary R. Gillespie
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FROELICH, J.
{¶ 1} Michelle and James Roberts appeal from a judgment of the Greene
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County Court of Common Pleas, which entered judgment in favor of Defendant Zachary
Gillespie on their personal injury claims. 1 Because Mrs. Roberts suffered the alleged
physical injuries, and the complaint referred to Mr. Roberts’s claim as a “derivative claim,”
we will hereafter only refer to Mrs. Roberts’s (“Roberts”), for simplicity.
{¶ 2} After a trial on Roberts’s personal injury claim, in which the parties agreed
that Gillespie was negligent and at fault, a jury stated in interrogatories that 1) Gillespie had
“directly or proximately caused any injuries” to Roberts as a result of a car accident, but 2) it
awarded no damages related to any injuries. Similarly, the verdict form stated that the jury
found in favor of the plaintiff, but awarded “$0” in damages. The trial court entered
judgment in favor of Gillespie.
{¶ 3} For the following reasons, the judgment of the trial court will be reversed.
{¶ 4} At trial, Mr. and Mrs. Roberts and one doctor testified on Roberts’s behalf,
and Gillespie testified for the defense. The facts surrounding the accident itself were not
disputed. On January 27, 2008, Gillespie stopped behind the Robertses’ car at a red light on
New Germany-Trebein Road. When Gillespie believed that the light had changed, he took
his foot off the brake and his car began to roll, striking the Robertses’ car, which was
approximately one car length in front of his car. According to Gillespie, he never pressed
the accelerator before hitting the Robertses’ car, and he was moving at a speed of less than
ten miles per hour at the time of impact. The Robertses did not contradict this testimony.
{¶ 5} Roberts testified that her neck hurt “pretty much all the time” after the
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Erie Insurance was named in the complaint as Gillespie’s insurer, but the claim against Erie was later dismissed
without prejudice.
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accident. After experiencing a little stiffness and discomfort at the scene of the accident,
she went to an urgent care center that evening. She followed up with Dr. Ringle, her family
doctor, the next day (January 28), and again on February 23. She stated that her activities
during this time were “minimal to none.” She testified that she had exercised daily prior to
the accident, but that her exercise routine changed “drastically” as a result of the accident;
she had gradually returned to a “modified” exercise routine, such as using a recumbent bike
instead of her outdoor bike and walking instead of “power walking.” She engaged in
physical therapy, had “pain injections” in her neck muscles for several months, and had
trouble sleeping. She also testified that, since the accident, she takes 800 mg of ibuprofen
for pain every day and had aggravated her neck with activities such as pulling luggage
through an airport and moving furniture. James Roberts’s testimony corroborated some of
his wife’s testimony about how her activities had been restricted and how she had been
treated for her pain after the accident.
{¶ 6} On cross-examination, Roberts was questioned about various medical
records from the months after the accident which indicated that she had not reported neck
pain during a doctor visit, reported minimal neck pain, or seemed to have affirmatively
reported that she had been exercising. For example, Roberts had a cosmetic procedure three
days after the accident, and the medical records from the doctor who performed that
procedure contained no indication that she had suffered a recent injury or was in pain. She
was also questioned about three visits to her podiatrist within one month of the accident, at
which Roberts did not report that she was suffering from neck pain, and at which she seemed
to have indicated that she had been able to ride her stationary bike for 50 minutes. Dr.
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Ringle’s records from the day after the accident stated that Roberts reported “minor neck
pain only.” Roberts was also questioned about physical therapy records from May and June
of 2008 which suggested that she had returned to exercising by that time. And she was
questioned about an intake form at a chiropractor’s office after the accident on which she
indicated that her “present injuries” were not due to a car accident.
{¶ 7} Roberts was also cross-examined about prior car accidents and preexisting
neck pain. Roberts claimed not to recall her medical histories or treating physicians related
to multiple car accidents in the 1990s. However, Mr. Roberts testified on
cross-examination that his wife had experienced some neck pain in the 1990s, including at
least one instance in which she “slept wrong” and went to the emergency room and another
period of neck pain, perhaps “a couple of months,” following a car accident.
{¶ 8} Dr. Townsend Smith, Director of the Miami Valley Hospital Acute and
Chronic Pain Management Center, who treated Roberts for neck and left shoulder pain from
April 2008 through May 2009, also testified for Roberts at trial. He administered “trigger
point injections” to the muscles of Roberts’s neck and upper back, which produced
significant improvement in her symptoms.
{¶ 9} According to the medical history provided to Dr. Smith by Roberts, she had
no neck pain prior to the 2008 car accident, so he attributed her neck pain to the accident.
Dr. Smith stated that an MRI performed after the January 2008 accident showed “significant
structural changes in [Roberts’s] neck,” but Dr. Smith did not state when he believed these
changes had occurred. Dr. Smith noted some “congenital” problems at every level of
Roberts’s spine. Specifically, he stated that she had symptoms of osteoarthritis, including a
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bone spur at cervical spine C3-4, narrowing of openings in the vertebrae through which
nerves pass, and some herniation and degeneration of disks, all of which predated the
accident and continued after the accident. When confronted with the possibility that
Roberts had been involved in prior car accidents and had suffered past periods of neck pain
(contrary to the history provided by Roberts), Dr. Smith nonetheless expressed the opinion
that the pain for which he had treated Roberts was triggered by the car accident, because the
pain had begun after the accident.
{¶ 10} Gillespie testified to the circumstances surrounding the accident, including
that he had been rolling, but not accelerating, at the time of impact, after having been at a
complete stop, and that his car had been moving less than ten miles per hour.
{¶ 11} After hearing the evidence, the jury was instructed that the parties did not
dispute that Gillespie had been negligent and that Roberts had not been at fault in the
accident. The jury was presented with the following interrogatories for its consideration
and gave the following answers to those interrogatories:
1. “Did the Defendant, Zachary Gillespie, directly or proximately cause any
injuries to the Plaintiff, Michelle Roberts as a result of the automobile
collision of January 27, 2008?” The jury answered: “Yes”
2. “What amount of compensation, if any, will fairly and reasonably
compensate Plaintiff, Michelle Roberts as to damages?
“1) Medical expenses (Economic Loss)” The jury answered $0.
“2) Pain and Suffering (Non-Economic Loss)” The jury answered $0.
“3) Future Pain and Suffering (Non-Economic Loss)” The jury answered $0.
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“4) Inability to Perform Usual Activities (Non-Economic Loss)” The jury
answered $0.
On the verdict form, the jury stated that it found in favor of the Plaintiff and awarded
damages in the amount of $0. Roberts did not raise any inconsistency between the jury
verdict and/or the interrogatories before the jury was discharged, and the trial court entered
judgment in favor of Gillespie.
{¶ 12} Roberts raises three assignments of error on appeal. The first assignment
of error states:
The Jury Verdict of Zero Damages was Against the Manifest
Weight of the Evidence.
{¶ 13} Roberts contends that the jury verdict was against the manifest weight of
the evidence because, at the very least, Roberts’s medical care the night of the accident and
soon thereafter should have been compensable. She also contends that the jury may have
improperly considered evidence of Roberts’s plastic surgeries and payments from collateral
sources in reaching its damage award.
{¶ 14} In the civil context, a judgment will not be reversed by a reviewing court as
being against the manifest weight of the evidence if there is some 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, 376 N.E.2d 578 (1978), syllabus; State v. Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. This standard rests on the strong
presumption that the trial court, as the trier of fact, is in the best position to weigh the
evidence presented, assess the credibility of the witnesses, and make an informed factual
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determination therefrom. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
1273 (1984).
{¶ 15} As discussed above, the evidence at trial included Roberts’s assertion that
she had suffered neck pain beginning immediately after the accident and for several months
thereafter, her husband’s corroboration of these claims, and a doctor’s opinion, based on the
timing of the alleged onset of the neck pain, that it was caused by the accident. Through
cross-examination, Gillespie attempted to refute Roberts’s assertion that there was a direct
correlation between the accident and her neck pain with evidence that she had previously
suffered from neck pain, that she had congenital and degenerative conditions that could have
caused the neck pain, and that her testimony may have exaggerated the extent of her pain
and her physical limitations as compared with past reports of her pain and activity levels.
{¶ 16} Gillespie presented evidence that the accident occurred at very low speed,
that there was minimal damage to the cars, and that all of Roberts’s pain may not have been
attributable to the 2008 accident. This evidence included Roberts’s own expert witness’s
recognition that Roberts suffered from osteoarthritis and other preexisting conditions
capable of causing neck and shoulder pain. But, despite Gillespie’s attempts to challenge
the assumptions underlying Dr. Smith’s opinion – namely, the lack of prior history of neck
pain or injury – Dr. Smith nonetheless expressed his medical opinion that Roberts had been
injured in the accident. Roberts and her husband also testified that she had suffered
discomfort which she attributed to the car accident immediately after it occurred.
{¶ 17} In our view, based on the evidence presented in this case, the jury’s decision
on the issue of proximate causation could have gone either way. Both parties presented
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competent, credible evidence which might have supported a favorable judgment. The jury’s
affirmative answer to the interrogatory asking whether Gillespie “directly or proximately
caused any injuries” to Roberts reflects its conclusion, which favored Roberts. This
conclusion was not against the manifest weight of the evidence.
{¶ 18} Roberts argues that, in light of the jury’s finding in her favor on the issue of
proximate causation, the jury’s award of zero damages was against the manifest weight of the
evidence. She analogizes her case to Minney v. Guthrie, 2d Dist. Greene No. 88-CA-37,
1989 WL 2182 (Jan. 12, 1989) and Walker v. Holland, 117 Ohio App.3d 775, 691 N.E.2d
719 (2d Dist. 1997) in support of her argument that she “should be compensated for (at least)
her treatment at the Urgent Care and follow up care.”
{¶ 19} Minney involved a rear-end collision resulting in neck pain and a plaintiff
with a history of neck injuries. At trial, despite having been informed of “other possible
causative factors,” the medical expert for the defense agreed with the plaintiff’s expert that
the plaintiff had sustained a neck injury in the accident, and both experts agreed that the
plaintiff’s trip to the emergency room and her follow-up care were reasonable following such
an injury. Notwithstanding this testimony, the jury concluded that the defendant had not
proximately caused the injuries sustained by the plaintiff. The trial court granted the
plaintiff’s motion for a new trial, and the defendants appealed. We affirmed, stating that,
“[a]t a minimum, the manifest weight of the evidence support[ed] an award of damages for
Minney’s emergency room care immediately following the collision.” Id. at *4.
{¶ 20} Walker involved a low-speed, head-on collision. The plaintiff, who was
two months pregnant at the time, testified that the impact “pressed her forward against the
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seat belt and ‘slammed’ her against the seat.” She was transported to a hospital and
complained of pelvic cramping and neck soreness; she suffered cramping and some bleeding
for the next few weeks, and she miscarried about six weeks after the accident. The trial
court directed a verdict on the issue of negligence, but submitted the issues of causation and
damages related to both the neck injury and the miscarriage to a jury. The jury returned a
verdict for the defendant, and the trial court entered judgment accordingly. On appeal, the
plaintiff argued that the jury’s verdict was against the manifest weight of the evidence and
that she was entitled to damages “at least equal to Walker’s emergency room bills.” Id. at
791. In considering these arguments, we stated:
After reviewing the record, we find competent, credible evidence supporting a
finding that Holland did not cause Mrs. Walker’s physical ailments or her
miscarriage. * * * [T]he record contains testimony that Mrs. Walker had
experienced, and received treatment for, neck and back problems since 1983.
Mrs. Walker also testified that those problems “flared up” following a 1991
automobile accident and troubled her intermittently thereafter. In fact, the
record reveals that Mrs. Walker received treatment from Richard Teeters, a
Dayton chiropractor, just ten days before her * * * automobile accident with
Holland.
We agreed, however, with the plaintiff’s argument that, even if the defendant’s negligence
proximately caused no objective injuries, the plaintiff was entitled to compensation for the
medical expenses she incurred immediately after the accident. “[I]t cannot be disputed that
Holland’s negligence caused Mrs. Walker to undergo an emergency room examination and an
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ultrasound test. In light of Mrs. Walker’s pregnancy and the substantial damage done to her
vehicle in the head-on accident, we agree that she received appropriate medical treatment.
Common sense would dictate, at a minimum, that a pregnant woman should undergo such
testing.” Id. at 793.
{¶ 21} Minney and Walker support Roberts’s argument that, in light of the jury
conclusion that she had suffered an injury as a proximate result of the accident, she was
entitled to some amount of damages for the treatment she sought and care she received that
was related to that injury.
{¶ 22} Gillespie argues that Roberts’s case is more analogous to McBride v. Quebe,
2d Dist. Montgomery No. 21310, 2006-Ohio-5128, than to Minney or Walker. McBride
also involved a traffic accident in which the plaintiff’s negligence was not disputed; however,
evidence was presented that the defendant had pre-existing injuries similar to those she
claimed had been caused in the accident. The jury returned a verdict for the defense. On
appeal, we noted that the plaintiff’s trial testimony about her medical history had differed
dramatically from the history reflected in her medical records, and that, notwithstanding the
plaintiff’s medical history, her experts testified that “all” of her medical problems were
attributable to the accident. We concluded that the jury verdict for the defense had been
supported by competent, credible evidence, that the judgment was not against the manifest
weight of the evidence, and that the trial court had not abused its discretion in overruling the
plaintiff’s motion for a new trial. Id. at ¶ 45.
{¶ 23} Only the general verdict is discussed in McBride, but it appears that the
jury’s verdict was based on a finding that the plaintiff’s injuries were not proximately caused
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by the accident. The jury in McBride never reached the issue of damages. In Roberts’s
case, on the other hand, we are confronted with a jury interrogatory and a verdict form that
expressly state a finding of proximate causation. We do not find McBride to be analogous.
{¶ 24} Gillespie argues that Roberts’s argument essentially challenges the
inconsistencies between the jury’s interrogatories, and that such an argument is waived unless
the party raises it before the jury is discharged. See O’Connell v. Chesapeake & Ohio RR.
Co., 58 Ohio St.3d 226, 229, 569 N.E.2d 889 (1991). This rule recognizes that a court can
only exercise the full range of available remedies while the jury is still impaneled.
Shoemaker v. Crawford, 78 Ohio App.3d 53, 61, 603 N.E.2d 1114 (10th Dist. 1991).
Although we acknowledge and abide by this rule, the inconsistency in Roberts’s case was
also contained in the verdict form itself, which stated that the jury found in favor of the
plaintiff but awarded no damages. While normally the failure to object prior to the discharge
of a jury results in the waiver of any alleged error, this is not the case in the event the error in
question amounts to plain error. O’Connell at 229; Garaux v. Ott, 5th Dist. Stark No. 2009
CA 00183, 2010-Ohio- 2044, ¶ 26. Verdict forms that appear to be internally inconsistent can
reflect such plain error. Garaux (holding that, in light of jury’s finding of negligence and
proximate causation and its damage award for medical expenses and lost wages or income,
its refusal to award any money for pain and suffering and/or inability to perform usual
activities and for future damages was against the manifest weight of the evidence.)
{¶ 25} The jury found that the accident had directly or proximately caused Roberts
some injury. Therefore, its failure to award some amount of damages was against the
manifest weight of the evidence.
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{¶ 26} The first assignment of error is sustained.
{¶ 27} The second and third assignments of error state:
The Trial Court Erred in Allowing Inadmissible Hearsay and
Unauthenticated Documents into Evidence.
The Trial Court Erred in Allowing Defendants’s Exhibit P into
Evidence without Expert Witness Testimony.
{¶ 28} In her second assignment of error, Roberts argues that the trial court erred in
permitting the defense to introduce a summary of medical bills (Exhibit P); she claims it was
based on inadmissible hearsay. In her third assignment, she claims that Exhibit P should
have been excluded because no expert testified that the “amount accepted by the medical
providers was the reasonable value of the medical expenses incurred.”
{¶ 29} Given our disposition of the first assignment, any error in admitting exhibits
related to the amount of damages is moot. Thus, we will not address these arguments.
App.R. 12(A)(1)(c).
{¶ 30} The judgment of the trial court will be reversed, and the matter will be
remanded to the trial court for further proceedings.
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FAIN, P.J., concurs.
DONOVAN, J., dissenting:
{¶ 31} I disagree. In my view, any error was waived by a lack of objection to the
verdict. The instant case does not present one of those rare situations in which the plain
error doctrine must be invoked in order to prevent a manifest miscarriage of justice. Also, I
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believe that the majority’s reliance on O’Connell is misplaced. The O’Connell case
involved an issue of constitutional infirmity. O’Connell was a comparative negligence case,
which distinguished the “same juror” rule vs. “any majority” rule. In O’Connell, a verdict of
not less than three-fourths of the jury had not been rendered, thus constituting a violation of
Ohio Constitution, Section 5, Article I and Civ.R. 48. No such infirmity is established
herein.
{¶ 32} Furthermore, there was competent, credible evidence indicating that this was
only a very minor accident with minimal damage to plaintiff’s vehicle upon which the jury
could have questioned the authenticity of plaintiff’s claimed injuries and the necessity and
reasonableness of any treatment. Given the lack of objective findings of the injuries
claimed, the doubt cast on plaintiff’s credibility and evidence that she was exaggerating her
injuries, we should presume the jury findings are correct and not against the manifest weight
of the evidence. I would affirm.
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Copies mailed to:
John A. Smalley
Steven O. Dean
Hon. Stephen A. Wolaver