Bzdafka v. Bretz

[Cite as Bzdafka v. Bretz, 2011-Ohio-3982.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95840
JENNIFER BZDAFKA, ET AL.
PLAINTIFFS-APPELLEES
vs.
ROBERT BRETZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-700346
BEFORE: S. Gallagher, J., Sweeney, P.J., and Jones, J.
RELEASED AND JOURNALIZED: August 11, 2011
ATTORNEY FOR APPELLANT
Thomas M. Coughlin, Jr.,
Ritzler, Coughlin & Paglia, Ltd.
1360 East Ninth Street
1000 IMG Center
Cleveland, OH 44114
ATTORNEY FOR APPELLEES
James L. Burns
24441 Detroit Road
Suite 300
Westlake, OH 44145
SEAN C. GALLAGHER, J.:
{¶ 1} Defendant-appellant Robert Bretz appeals the judgment of the Cuyahoga
County Court of Common Pleas that granted the motion for new trial of
plaintiffs-appellees Jennifer and Jim Bzdafka. For the reasons stated herein, we affirm
the judgment of the trial court.
{¶ 2} On November 30, 2005, Jennifer Bzdafka (“Bzdafka”) was in a rear-end
automobile accident caused by Bretz. Bretz estimated to the responding officer that the
speed he was traveling was about five miles per hour. He did not suffer any injuries, and
the damage to his truck was to the front-end bumper and grill. No injuries were reported
at the scene.
{¶ 3} On July 31, 2009, Bzdafka and her husband Jim filed a complaint against
Bretz. Bzdafka sought to recover for injuries and damages caused by the accident. The
complaint included a loss of consortium claim.
{¶ 4} The case proceeded to a jury trial. Bretz accepted responsibility for the
accident, but he disputed the extent of injury.
{¶ 5} At trial, Bzdafka presented expert medical and dental testimony. She
claimed she suffered an aggravation of preexisting cervical and lumbar degenerative
injuries, an aggravation of an asymptomatic carpel tunnel syndrome injury, and dental
injuries resulting in five root canal procedures. She alleged that she sustained personal
injuries in the amount of $51,000. She also received an estimate for a little over $6,500
to repair her vehicle.
{¶ 6} As stated by the trial court, “Plaintiffs presented by videotape the expert
testimony of treating pain management physician, Dr. Phillip Berenger. His testimony
attributed the plaintiff’s post accident physical problems and 3 1/2 years of medical
expenses because of aggravation of preexisting degenerative back condition. He found
that $51,000 was reasonable and necessary to treat these continuing medical problems as
a result of the accident. Her treating dentist, Dr. Douglas Voiers, also testified that the
repeated dental treatments (including 5 root canal procedures) were reasonable and
necessary to fix the dental damage caused by the collision in the amount of $7,402. He
testified this was caused by the clenched teeth of Jennifer anticipating the crash.”
{¶ 7} During her direct examination, Bzdafka testified to the medical and dental
treatment she received for her alleged injuries. This included testimony about
chiropractic treatments she received from Dr. Geoffrey Poyle before and after the
accident and about how the pain and treatments were different. Medical records from the
date of the accident to the time of trial were included in her exhibits.
{¶ 8} During Bzdafka’s cross-examination, defense counsel handed her
defendant’s Exhibit A, which was represented to be Dr. Poyle’s office notes from
February 28, 2002 to November 22, 2005, predating the accident. Bzdafka indicated that
the exhibit appeared to be Dr. Poyle’s office notes for her visits. Defense counsel
questioned Bzdafka from these records. Bzdafka proceeded to testify to her independent
recollection of the symptoms she presented with to Dr. Poyle and her treatment with him.
{¶ 9} No objection was raised with regard to the authenticity of the exhibit, the
use of the exhibit to refresh Bzdafka’s recollection or to impeach her testimony, or
otherwise concerning the admissibility of her testimony. Also, the transcript does not
reflect that Bzdafka testified from the exhibit. Instead, there were times when Bzdafka
indicated she did not remember and “would have to look at the records.” Defense
counsel proceeded to ask for her recollection “independently of the records.”
{¶ 10} However, when defense counsel moved to admit the pre-accident
chiropractic records, plaintiffs’ counsel objected to the admission of the exhibit.
Plaintiffs’ counsel indicated he had not been given a copy of the records and disputed
their authenticity. The trial court overruled the objection and admitted the exhibit.
{¶ 11} During closing argument, defense counsel argued that there had been no
evidence of any structural damage caused to Bzdafka by the accident, that she had
preexisting degenerative conditions, that the accident caused a flare-up of her conditions,
and that the accident was unrelated to her dental problems. In the course of closing
argument, defense counsel heavily referenced defendant’s Exhibit A and the numerous
visits Bzdafka made to Dr. Poyle’s office and the symptoms she presented preceding the
accident.
{¶ 12} The jury returned a verdict in favor of Jennifer Bzdafka in the amount of
$8,000. It awarded zero dollars on the loss of consortium claim.
{¶ 13} Plaintiffs filed a motion for judgment notwithstanding the verdict, or in the
alternative, motion for new trial. They asserted the award was inadequate, against the
weight of the evidence, and otherwise contrary to law, and they claimed the award arose
out of the improper and prejudicial admission of the pre-accident medical records of Dr.
Poyle without authentication. The trial court granted the motion for new trial.
{¶ 14} Bretz timely filed this appeal.1 His sole assignment of error challenges the
trial court’s decision to grant plaintiffs a new trial.
{¶ 15} Civ.R. 59(A) provides in pertinent part that “[a] new trial may be granted to
all or any of the parties and on all or part of the issues upon any of the following grounds:
(1) Irregularity in the proceedings of the court; * * * (4) Excessive or inadequate
damages, appearing to have been given under the influence of passion or prejudice; * * *
1
An order that grants a new trial is a final appealable order. R.C. 2505.02(B)(3).
(6) The judgment is not sustained by the weight of the evidence; (7) The judgment is
contrary to law; * * * (9) Error of law occurring at the trial and brought to the attention of
the trial court by the party making the application.” A motion for new trial is within the
sound discretion of the trial court, and the court’s ruling on the motion will not be
disturbed on appeal absent an abuse of discretion. State v. Matthews, 81 Ohio St. 3d 375,
378, 1998-Ohio-433, 691 N.E.2d 1041.
{¶ 16} In this case, Bretz used the pre-accident medical records to impeach
Bzdafka. No objection was raised during Bzdafka’s testimony in relation to the defense
exhibit. Therefore, any objection in regard to her testimony was waived.
{¶ 17} However, at the time the defense exhibit was offered into evidence,
plaintiffs’ counsel objected to the authenticity of the exhibit and argued it had not been
disclosed. While Bzdafka, who was the patient, testified that the exhibit appeared to be
Dr. Poyle’s office notes from her visits predating the accident, she was not a proper
person to authenticate these records. See Laporte v. J.P. Food Serv., Inc., Lake App. No.
2000-P-0103, 2001-Ohio-4314. Neither Dr. Poyle nor a custodian of these records
testified at court, and there was no written certification attesting to the records.
Therefore, the records did not meet the authenticity requirements of Evid.R. 901 and were
not admissible into evidence. Without proper authentication, the trial court erred in
ordering the admission of defendant’s Exhibit A at trial.
{¶ 18} Furthermore, we cannot say that the admission was harmless, as Bzdafka
did not testify to the contents of the records. Instead, she did not recall much of the
information contained therein. Also, defense counsel heavily referenced these records in
closing argument. It is readily apparent that the submission of this exhibit to the jury was
prejudicial to plaintiffs’ case. Therefore, the trial court did not abuse its discretion in
ordering a new trial due to an irregularity in proceedings and an error of law occurring at
trial.
{¶ 19} The trial court also found that the jury award of $8,000 was not sustained by
the manifest weight of the evidence “since no award could possibly have been made for
any dental injury ($7,402) which was supported by undisputed evidence of Dr. Voiers”
and no award was made on the loss of consortium claim, reflecting passion or prejudice
of the jury. The court further recognized as follows: “Although defense counsel
cross-examined the plaintiffs’ experts it is fair to say that he did not impeach their
opinions that the collision proximately caused or accelerated preexisting degenerative
conditions, which necessitated the problems and medical expenses incurred.”
{¶ 20} We recognize that Bretz was not required to present expert evidence of his
own and could rely on cross-examination of plaintiffs’ experts to refute plaintiffs’ claims.
See McWreath v. Ross, 179 Ohio St. 3d 227, 2008-Ohio-5855, 901 N.E.2d 289, ¶ 79-88.
However, the trial court found that not only was there no expert testimony to contradict
plaintiffs’ experts, but also, on cross-examination, the experts did not contradict their
opinions. While Bretz argues that he questioned Dr. Voiers about preexisting dental
conditions on Bzdafka’s injured teeth and that Jim Bzdafka did not establish any
monetary loss on his loss of consortium claim, the trial court also recognized the
prejudicial effect caused by the pre-accident medical records used to discredit Bzdafka’s
claims.
{¶ 21} “When in the exercise of discretion a trial court decides to grant a new trial
and that decision is supported by competent, credible evidence, a reviewing court must
defer to the trial court. In such a case, the reviewing court may not independently assess
whether the verdict was supported by the evidence, because the issue is not whether the
verdict is supported by competent, credible evidence, but rather whether the court’s
decision to grant the new trial is supported by competent, credible evidence.” Harris v.
Mt. Sinai Med. Ctr., 116 Ohio St. 3d 139, 2007-Ohio-5587, 876 N.E.2d 1201, ¶ 46.
According deference to the trial court’s decision in this matter, we conclude the trial court
did not abuse its discretion in granting plaintiffs’ motion for a new trial. Bretz’s sole
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
SEAN C. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and
LARRY A. JONES, J., CONCUR