[Cite as Sanders v. Gabbard, 2012-Ohio-176.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 96693



                       LAURA A. SANDERS, ET AL.
                                                     PLAINTIFFS-APPELLANTS

                                               vs.

                              VIRGINIA GABBARD
                                                     DEFENDANT-APPELLEE




                                         JUDGMENT:
                                          AFFIRMED


                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CV-728206


        BEFORE: Celebrezze, J., Stewart, P.J., and Keough, J.

    RELEASED AND JOURNALIZED:                           January 19, 2012
ATTORNEY FOR APPELLANTS
Jerome T. Linnen
789 West Market Street
Akron, Ohio 44303-1010


ATTORNEY FOR APPELLEE

Michael A. Paglia
Ritzler, Coughlin & Paglia, Ltd.
1360 East Ninth Street
1000 IMG Center
Cleveland, Ohio 44114
FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellants, Laura and Scott Sanders, appeal the denial of their

motion for a new trial based on the failure of the jury to award monetary

damages for pain and suffering when the jury found Virginia Gabbard, the

appellee, liable for some economic damages resulting from an auto accident.

After a thorough review of the record and law, we affirm.

      {¶ 2} The Sanders filed suit against Gabbard on June 2, 2010, seeking

compensation for medical bills, lost wages, loss of consortium on behalf of

Scott, and pain, suffering, and emotional distress.     Trial commenced on

January 19, 2011, where the following was adduced.

      {¶ 3} On May 9, 2007, Laura was traveling down Interstate 77 near

Rockside Road.    Due to heavy congestion, traffic came to a stop.    After

Laura’s car stopped, she glanced in her rear-view mirror in time to see

Gabbard’s car approaching at what she described as a high rate of speed.
Gabbard’s car crashed into Laura’s, pushing it into the car in front. After

the accident, Laura indicated she had no serious injury, refused medical

treatment, and was picked up from the scene of the accident by her daughter

and driven home.

        {¶ 4} The next day, Laura felt stiff and sore.    She sought medical

treatment at Cuyahoga Falls General Hospital. Her medical records from

that visit indicate that she presented with neck, upper back, and shoulder

pain.    She complained of cervical spine pain and a stiff neck, which the

records indicate is characteristic of whiplash injury. She testified that she

was unable to move her head from side-to-side.           However, the records

indicate that Laura had a normal cervical spine examination with a full range

of motion, with only soft tissue tenderness of the neck and mild muscle

spasms. She was ultimately diagnosed with a cervical strain and cervical

muscle spasm, given prescriptions for three medications, and advised to

follow up with her primary care physician.

        {¶ 5} Laura’s primary care physician, Dr. Charles Coven, examined her

five days later and noted in the medical records generated from her visit that

she complained of back and neck pain. Dr. Coven did not testify at trial.

        {¶ 6} After some unsuccessful physical therapy and consultations with

other physicians, Laura was referred to a doctor specializing in pain

management, Dr. Dhruv Shah.        He first saw Laura on June 2, 2008 and
diagnosed her with radiculopathy, a radiating pain or numbness with tingling

in her right arm and hand. Dr. Shah treated Laura with pain medication

and eventually recommended injections into an area of the cervical spine.

      {¶ 7} Fearful of the side effects from these injections, Laura sought

alternate routes of treatment and consulted with Dr. Michael Smith, an

orthopedic surgeon, who eventually performed a surgical procedure to

alleviate Laura’s pain and numbness. This procedure was performed on

March 8, 2010 with what Laura characterized as only minimal success.

      {¶ 8} Laura testified that she still experiences significant loss of feeling

in her right hand, as well as tingling. She has a restricted range of motion in

her neck and requires daily pain medication in order to function.             She

further alleged that she incurred $53,597.42 in medical expenses and $9,460

in lost wages as a result of the automobile accident.

      {¶ 9} Although Gabbard did not present any witnesses, she argued

throughout trial that the medical records demonstrated that Laura had

suffered from chronic neck pain at least three years prior to the accident and

that she suffered only minimal injury from the accident and was substantially

better after only a few weeks.

      {¶ 10} On January 21, 2011, the jury returned a verdict in favor of

Laura, finding she was injured in the accident, but only awarded her

$2,894.86 in damages for medical expenses and nothing for pain and
suffering. The jury found in favor of Gabbard on Scott’s loss of consortium

claim. On February 11, 2011, Laura and Scott moved for a new trial or, in

the alternative, for additur. They argued that the damages awarded were

inadequate and against the manifest weight of the evidence. The trial court

denied their motion on March 22, 2011.

      {¶ 11} Laura and Scott then perfected the instant appeal raising two

assignments of error.

                              Law and Analysis

                            Adequacy of Damages

      {¶ 12} Laura and Scott first argue that “[t]he trial court abused its

discretion by not granting [their] motion for a new trial on the basis that the

jury verdict was inadequate in that it failed to consider pain and suffering as

a necessary element of damages.” They argue that the award of economic

damages for the treatment of pain and suffering necessarily requires an

award of damages for pain and suffering.

      {¶ 13} Laura and Scott moved for a new trial based on Civ.R. 59(A).

Under this rule, a trial court may order a new trial in certain enumerated

situations. Their motion was based on Civ.R. 59(A)(4), (6), and (7). These

provisions provide for a new trial, at the trial court’s discretion, on any of the

following grounds:
      {¶ 14} “(4) Excessive or inadequate damages, appearing to have been

given under the influence of passion or prejudice; * * * (6) The judgment is

not sustained by the weight of the evidence * * *; [or] (7) The judgment is

contrary to law * * *.”

      {¶ 15} The Ohio Supreme Court, in overturning a decision of this court

involving a motion for new trial, set forth the appropriate standard:

      {¶ 16} “‘Where a trial court is authorized to grant a new trial for a

reason which requires the exercise of a sound discretion, the order granting a

new trial may be reversed only upon a showing of abuse of discretion by the

trial court.’”    Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139,

2007-Ohio-5587, 876 N.E.2d 1201, ¶ 35, quoting Rohde v. Farmer, 23 Ohio

St.2d 82, 262 N.E.2d 685 (1970), paragraph one of the syllabus.               To

constitute an abuse of discretion, the ruling must be unreasonable, arbitrary,

or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).     On the direction of the Harris court, we do not look to the

sufficiency of the evidence sustaining the verdict, but analyze the trial court’s

decision to deny the motion. Harris at ¶ 36.

      A reviewing court must view the evidence in a light most
      favorable to the trial court’s decision, rather than in favor of the
      nonmoving party. Jenkins v. Krieger (1981), 67 Ohio St.2d 314,
      423 N.E.2d 856. This court does not weigh the evidence in
      reviewing a decision on a motion for a new trial. Mannion v.
      Sandel (2001), 91 Ohio St.3d 318, 744 N.E.2d 759. Perry v.
      Carter, 5th Dist. No. 10CA117, 2011-Ohio-4214, 2011 WL
      3672072, ¶ 15.

      {¶ 17} A long-standing ruling in Ohio provides that “a new trial may be

granted on the ground of the inadequacy of the damages found by the jury,

when it appears upon the facts proved that the jury must have omitted to

take into consideration some of the elements of damage properly involved in

the plaintiff’s claim.” Toledo Rys. & Light Co. v. Mason, 81 Ohio St. 463, 91

N.E. 292 (1910), syllabus. Modern Ohio cases still cite to Toledo Rys. for that

proposition.   E.g., Ohio Natl. Life Assur. Corp. v. Satterfield, 194 Ohio

App.3d 405, 2011-Ohio-2116, 956 N.E.2d 866.          However, this proposition

does not benefit Laura based on the facts of this case.

      {¶ 18} In overruling appellants’ motion, the trial court found that

      [it] cannot say that the jury lost its way, or that the jury acted
      with passion or prejudice. Nor can it be said that the verdict is
      against the manifest weight of the evidence, considering the
      totality of the circumstances, some of which, as argued by
      [Gabbard], may tend to offer an explanation for the amount of the
      verdict.

      {¶ 19} The jury did not ignore an element of Laura’s claim in arriving at

a figure for damages.     The jury instructions were correct in describing

damages for pain and suffering, and the jury forms set forth past and future

economic and non-economic damages, including “pain and suffering,” and

“mental anguish.”     The jury did not forget or ignore these elements of

damages, as appellants argue. The jury clearly wished to award Laura only
a small amount of the medical expenses she claimed because they did not

believe that she was significantly injured in the accident. The jury verdict

forms submitted by her provided for a detailed breakdown of past and future

economic and noneconomic damages. Six members of the jury found that

Laura was entitled to $2,894.86 in past economic damages for medical bills

incurred, but left the other spaces blank, one of which was specifically labeled

“pain and suffering.” These members of the jury then placed on the line just

below that labeled “[t]otal damages to the plaintiff Laura L. Sanders” the

figure $2,894.86. The judge specifically asked these individual jurors if it

was their intention to award Laura $2,894.86.       Each replied that it was.

The other two jurors found in favor of Gabbard on all of Laura’s claims.

      {¶ 20} There is a hesitancy by reviewing courts “to disturb as inadequate

any verdict where * * * the extent of the injury is a much controverted issue.”

 Wilson v. Johnson, 118 Ohio App. 101, 103, 193 N.E.2d 527 (7th Dist.1962),

citing Dadiskos v. Shorey, 229 F.2d 163 (2d Cir.1956).

      {¶ 21} The jury apparently chose not to believe Laura’s testimony and

that of her experts based on the seeming contradictions to that testimony

contained in her medical records. While Laura attempted to explain away

these items, it was the jury’s prerogative whether to believe this testimony.

An award for pain and suffering may have been appropriate in this case, but

was not required.     See Seymour v. Pierson, 5th Dist. No. 2005A00218,
2006-Ohio-961, 2006 WL 509842. The jury could discount Laura’s testimony

in favor of the apparent contradictions in her medical records.         Further,

Laura and Scott have presented no plausible evidence that the jury’s verdict

was motivated by passion or prejudice, as required by Civ.R. 59(A)(4).

      To determine whether a verdict was influenced by passion or
      prejudice, the court should consider the amount of damages
      returned and whether the record discloses that the verdict was
      induced by: “(a) admission of incompetent evidence, (b)
      misconduct on the part of the court or counsel, or (c) by any other
      action occurring during the course of the trial which can
      reasonably be said to have swayed the jury in their determination
      of the amount of damages that should be awarded.” Banas v.
      Shively, 8th Dist. No. 96226, 2011-Ohio-5257, 2011 WL 4839085,
      ¶ 44, quoting Fromson & Davis Co. v. Reider, 127 Ohio St. 564,
      569, 189 N.E. 851 (1934).

      {¶ 22} In support of their assigned error on this point, Laura and Scott

argue that the verdict was reached late on Friday and the jury wanted to go

home. They conclude the jury did not do its duty to consider all elements of

their claim, but instead, cut corners so they would not have to come back on

Monday. This theory, if believed, does not show any passion or prejudice.

The record does not demonstrate that the jury rushed to a verdict and failed

to consider an aspect of damages specifically listed in the verdict form.

      {¶ 23} Laura and Scott also cite to statements made by Gabbard’s

attorney during closing arguments and assert counsel made improper appeals

to the passions or prejudices of the jury.        However, a reading of the

transcript discloses no improper statements necessitating a new trial.
      {¶ 24} It appears that the trial court based its decision to deny the

motion on the belief that the jury awarded only a small amount of economic

damages because they did not believe Laura was seriously injured.         The

medical records in this case, contradicted by Laura’s testimony, provided the

basis for that belief.   Therefore, the trial court’s decision is supported by

some competent, credible evidence in the record.

                               Manifest Weight

      {¶ 25} Laura and Scott next argue that the trial court abused its

discretion by not granting their motion for a new trial on the basis that the

jury verdict was against the manifest weight of the evidence. They argue

that they presented substantial, competent and credible evidence that Laura

experienced pain and suffering as a result of Gabbard’s negligence, but the

jury failed to award any amount for pain and suffering.

      {¶ 26} It is well established that when some competent, credible

evidence exists to support the judgement rendered by the trial court, an

appellate court may not overturn that decision unless it is against the

manifest weight of the evidence. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984).     The knowledge a trial court gains

through observing the witnesses and the parties in any proceeding (i.e.,

observing their demeanor, gestures, and voice inflections and using these

observations in weighing the credibility of the proffered testimony) cannot be
conveyed to a reviewing court by a printed record. In re Satterwhite, 8th Dist.

No. 77071, 2001-Ohio-4137, 2001 WL 1001017, citing Trickey v. Trickey, 158

Ohio St. 9, 13, 106 N.E.2d 772 (1952). In this regard, the reviewing court in

such proceedings should be guided by the presumption that the trial court’s

findings were indeed correct.      Seasons Coal Co., supra.       As the Ohio

Supreme Court has stated, “it is for the trial court to resolve disputes of fact

and weigh the testimony and credibility of the witnesses.” Bechtol v. Bechtol,

49 Ohio St.3d 21, 550 N.E.2d 178 (1990).

      {¶ 27} In a similar case with a different procedural posture, the Seventh

District determined that, where a jury awarded the entire amount of economic

damages sought by an injured motorist,

      [t]he trial court did not abuse its discretion in granting a new
      trial. * * * [T]here is no substantial, credible evidence upon
      which the jury could have awarded [the injured motorist’s]
      medical bills, but not award any damages for at least the
      non-economic damages she incurred in the time period after the
      [first of two car accidents]. Yock v. Kovalyk, 7th Dist. No.
      06-BE-2, 2007-Ohio-6259, 2007 WL 4166241, ¶ 51.

      {¶ 28} In a case where a cyclist was injured in a collision with a bus, the

Tenth District, found that

      [t]he evidence of pain and suffering was not disputed, and thus
      the inadequacy of the award cannot be reconciled with the
      evidence. We find that the jury lost its way in deliberating on
      the issue of damages, and that the verdict regarding the issue of
      noneconomic damages was against the manifest weight of the
      evidence. Siders v. Reynoldsburg School Dist., 99 Ohio App.3d
      173, 192-193, 650 N.E.2d 150 (10th Dist.1994).
      {¶ 29} Here, we do not have an analogous situation.    The jury did not

award Laura her full medical bills.      Further, the deferential standard of

review also distinguishes the outcomes.     As the Yock court recognized in

differentiating its case from others, “this Court is inclined to leave both

decisions (whether granted or denied) undisturbed absent an abuse of

discretion.” Id. at ¶ 15-16.

      {¶ 30} Gabbard’s   arguments     throughout   trial   were   based   on

inconsistencies in the medical records and provide some competent, credible

evidence supporting the trial court’s decision. One notation in the medical

records provided during discovery noted that Laura had suffered from

“chronic neck/thoracic pain” at least three years prior to the accident. Laura

explained that she had back pain and had breast reduction surgery to cure

the problem. There was a six-month gap in treatment that Laura explained

was a result of a doctor telling her she could expect to have lasting pain and

soreness for six months.       She testified she was on pain medication and

waited to seek further treatment until this time period elapsed. There were

also two emergency room visits after the accident during which Laura did not

mention pain ascribed to the accident. She explained that she was under the

care of other physicians for the conditions related to the accident and was at
the emergency room to address other concerns, such as a hip injury and

abdominal pain.

      {¶ 31} Laura offered plausible explanations for each of the apparent

inconsistencies highlighted by Gabbard, but the seeming contradictions offer

some competent, credible evidence supporting the trial court’s decision to

deny appellants’ motion for a new trial.       This case presents a difficult

situation where the jury’s verdict may be harsh, but is not reversible.

      {¶ 32} Therefore, the judge’s decision denying appellants’ motion was not

against the manifest weight of the evidence.

                                                           Judgment affirmed.

      It is ordered that appellee recover from appellants 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.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
