Meyer v. Pullum

[Cite as Meyer v. Pullum, 2022-Ohio-1205.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
BRIANNA MARIE MEYER, A MINOR :
CHILD, BY AND THROUGH HER
PARENTS, JOHN MEYER AND : CASE NO. CA2021-09-054
MICHELLE MEYER,
: OPINION
Appellant, 4/11/2022
:
- vs - :
:
RANDY PULLUM, et al.,
Appellees.
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2020 CVC 00216
Law Offices of Blake R. Maislin, LLC, and Thomas J. Dall, Jr., for appellant.
Cetrulo, Mowery & Hicks, and Lindsay A. Rump, for appellee.
PIPER, P.J.
{¶1} Brianna Meyer ("Brianna") and her parents appeal the order of the Clermont
County Court of Common Pleas denying their motion for a new trial.
{¶2} On December 19, 2018, appellee, Randy Pullum, rear-ended a stopped
vehicle driven by Brianna's mother, Michelle Meyer ("Michelle"). Brianna was in the
backseat of her mother's 2016 Jeep Compass when Pullum struck it with his 2003 Ford
Clermont CA2021-09-054
Focus. Brianna was eleven years old at the time and enrolled in sixth grade. She testified
that at the impact, she felt a "little bump" and she thought her leg "hit something." It is
unclear whether her knee struck her backpack or a part of the car. Brianna did not
experience any pain until the following day, and told her mother about it when she returned
home from school. Brianna attended school on both the 20th and 21st, and was able to
play dodgeball on the 21st.
{¶3} Following complaints of pain, Michelle took Brianna to Mercy Health –
Clermont Hospital on December 21, 2018, two days after the accident. Brianna was placed
in a knee immobilizer and given crutches and discharged. Brianna followed up at Cincinnati
Children's Hospital the next day and again on January 4, January 25, and March 8, 2019.
She was diagnosed with a contusion of the right knee and a hamstring strain. Brianna also
attended two physical therapy sessions at Cincinnati Children's Hospital on January 8 and
February 19, 2019 before ceasing treatment. Records from her final appointment state that
her right knee pain was "resolved."
{¶4} Brianna and her parents ("the Meyers") filed a complaint on February 25,
2020. The Meyers prayed for $5,522.36 in past medical expenses and $4,000.00 for future
anticipated medical expenses. On December 9, 2020, approximately two years after the
accident, the Meyers' expert witness Dr. Jonathan Paley, M.D., examined Brianna. He
concluded that she had suffered a contusion of her right patella tendon and atrophy of her
right knee quadriceps muscles and recommended physical therapy. During the time
between the accident and Dr. Paley's examination, Brianna was actively involved in
athletics, including soccer.
{¶5} The matter proceeded to jury trial on April 5, 2021. At trial, Brianna, Michelle,
Pullum, and Dr. Paley each testified. The following day, the jury returned a verdict in favor
of Pullum. The jury answered "No" to the interrogatory, "Did the negligence of the
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Defendant Randy Pullum on December 19, 2018, directly and proximately cause any
injuries to the plaintiff, Brianna Marie Meyer?" It then awarded $0 in damages.
{¶6} On April 8, 2021, the Meyers filed a motion for a new trial pursuant to Civ.R.
59(A)(4) and (A)(6). The trial court scheduled a hearing on the matter and both parties filed
briefs. On August 19, 2021, following the hearing, the trial court issued an order denying
the Meyers' motion for a new trial. The Meyers now appeal, raising the following assignment
of error:
{¶7} THE TRIAL COURT ERRED, TO THE SUBSTANTIAL PREJUDICE OF THE
PLAINTIFF, BY DENYING THE PLAINTIFF'S MOTION FOR A NEW TRIAL.
{¶8} The Meyers argue that the award of $0 was against the manifest weight of the
evidence and the trial court erred by denying the motion for a new trial.
{¶9} A motion for a new trial is governed by Civ.R. 59(A), and pursuant to that rule,
a new trial may be granted upon several enumerated grounds. Nationwide Agribusiness
Ins. Co. v. Heidler, 12th Dist. Clinton Nos. CA2018-06-003, CA2018-07-004, CA2018-09-
012, and CA2018-09-015, 2019-Ohio-4311, ¶ 72. "When presented with a Civ.R. 59(A)(6)
motion for a new trial, a trial court weighs the evidence and considers the credibility of the
witnesses to determine whether the manifest weight of the evidence supports the
judgment." Nwankwo v. Uzodinma, 12th Dist. Butler No. CA2021-08-098, 2022-Ohio-565,
¶ 39. "A new trial may also be granted because of '[e]xcessive or inadequate damages,
appearing to have been given under the influence of passion or prejudice.'" Stephens v.
Vick Express, Inc., 12th Dist. Butler Nos. CA2002-03-066 and CA2002-03-074, 2003-Ohio-
1611, ¶ 31, quoting Civ.R. 59(A)(4). The Meyers' motion was brought pursuant to both
Civ.R. 59(A)(4) and (A)(6).
Civ.R. 59(A)(6)
{¶10} We review the denial of a Civ.R. 59(A)(6) motion for a new trial for abuse of
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discretion. Nwankwo at ¶ 39. "An abuse of discretion implies that the court's decision was
unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment."
Nationwide at ¶ 46.
{¶11} Upon reviewing the record, we find that the trial court did not err in denying
the Meyers' motion for a new trial under Civ.R. 59(A)(6). The Meyers essentially argue that
because the hospital records assert that the accident was the source of Brianna's injuries,
this forecloses all other possible causes of her injuries, including sporting activities
undertaken during the two school days between the accident and her first hospital visit. The
Meyers presented a robust case, with testimony from two eyewitnesses and an expert
witness as well as voluminous medical records. However, it is within the province of the
jury to assign weight to the evidence and decide what is credible. Silver v. Jewish Home of
Cincinnati, 12th Dist. Warren No. CA2010-02-015, 2010-Ohio-5314, ¶ 34. The jury was not
required to believe any particular testimony or give weight to any particular evidence. Martin
v. Am. Natl. Property & Cas. Co., 12th Dist. Butler No. CA2009-11-282, 2010-Ohio-3370,
at ¶ 24 ("A jury is free to accept or reject any or all of the testimony of any witness, including
testimony of an expert witness").
{¶12} The Meyers also argue that a new trial should have been granted because
their evidence is undisputed. However, "even when the evidence is undisputed, the jury
possesses the inherent right to reject the evidence presented." Id. In fact, "[a] jury is free
to reject any evidence and is not required to accept evidence simply because it is
uncontroverted, unimpeached, or unchallenged." Stephens, 2003-Ohio-1611 at ¶ 27.
"'[T]he jury is the sole judge of the weight of the evidence and the credibility of witnesses.'"
Silver at ¶ 34, quoting McKay Machine Co. v. Rodman, 11 Ohio St.2d 77, 82 (1967). We
find that the jury's verdict was not against the manifest weight of the evidence. The trial
court therefore did not abuse its discretion in upholding the jury's verdict and denying the
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Meyers' motion for a new trial on the basis of Civ.R. 59(A)(6).
Civ.R. 59(A)(4)
{¶13} Next, we address the Meyers' argument that the trial court erred by denying
their Civ.R. 59(A)(4) motion for a new trial on the grounds of inadequate damages. We
review a trial court's denial of a Civ.R. 59(A)(4) motion for a new trial for abuse of discretion.
Hicks v. Freeman, 12th Dist. Warren No. CA99-12-140, 2000 WL 1336854, *2 (Sept. 18,
2000). "Damage awards in personal injury actions are particularly within the province of
the jury and neither a reviewing court nor a trial court can substitute its judgment for that of
the jury." Martin at ¶ 24. "[I]n order to set aside a damage award as inadequate and against
the manifest weight of the evidence, a reviewing court must determine that the verdict is the
result of jury passion and prejudice and is so gross as to shock the sense of justice and
fairness." (Citation omitted.) Henson v. K. Collins Plumbing, Inc., 12th Dist. Clermont No.
CA2005-07-069, 2006-Ohio-3090, ¶ 48.
{¶14} We have consistently granted new trials where causation was proved but
damages were not awarded, or where damages were awarded for medical expenses but
not for uncontroverted pain and suffering. Kubilis v. Owens, 12th Dist. Butler No. CA2007-
03-065, 2008-Ohio-3728, ¶ 12–17, 23. The cases to which the Meyers direct us are
inapposite. In the case sub judice, no causation was proven or stipulated. Instead, the jury
was clear in its answer to the interrogatory that Pullum did not "directly and proximately
cause any injuries to the plaintiff Brianna Marie Meyer." "As the trier of fact, the jury was
free to accept or reject any or all of appellants' evidence of damages." Henson at ¶ 49.
Given that the jury here rejected the Meyers' evidence and failed to find causation, it would
have been improper for the it to award damages. The trial court thus did not abuse its
discretion in denying the Meyers' Civ.R. 59(A)(4) motion for a new trial.
Conclusion
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{¶15} We understand the Meyers' conviction to their perspective and
disappointment with their day in court. However, neither we, nor the trial court may simply
substitute our judgment for that of the jury. Bargo v. R & L Transfer, Inc., 12th Dist. Clermont
No. CA99-11-108, 2000 WL 1221892, *1 (Aug. 28, 2000). We therefore overrule the
Meyers' assignment of error and affirm the trial court's judgment denying the motion for new
trial.
{¶16} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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