[Cite as Reed v. Ohio Dept. of Transp., 2013-Ohio-1515.]




                                                           Court of Claims of Ohio
                                                                             The Ohio Judicial Center
                                                                     65 South Front Street, Third Floor
                                                                                Columbus, OH 43215
                                                                      614.387.9800 or 1.800.824.8263
                                                                                 www.cco.state.oh.us

MICHAEL REED, Exec., etc.

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2010-02065

Judge Alan C. Travis
Magistrate Anderson M. Renick

DECISION

        {¶ 1} Plaintiff, Michael Reed, brings this action for wrongful death against
defendant, Ohio Department of Transportation (ODOT), on behalf of himself and the
heirs of decedent, Traci Reed. Plaintiff also brings an action for negligence on behalf of
his minor son, Conner Reed, for injuries he sustained.             The issues of liability and
damages were bifurcated. Following trial on the issue of liability, the court found that
Conner was injured and Traci was killed when a tree fell and struck her motor vehicle as
she was driving on State Route 83 (SR 83). The court found that defendant had actual
notice of a hazardous condition and that its negligence was the sole proximate cause of
Traci’s death and Conner’s injuries. The case then proceeded to trial on the issue of
damages.1
        {¶ 2} Michael, who lives in New Concord, Ohio, married Traci on March 26, 1994.
Michael and Traci had two children, Samantha, born on November 5, 1997, and Conner
who was born on August 25, 2003.
Case No. 2010-02065                           -2-                       JUDGMENT ENTRY

       {¶ 3} On December 26, 2008, the Reeds celebrated Christmas with Michael’s
parents and siblings. In the evening, they planned to return to their home in New
Concord, Ohio, where Traci’s sister, Kristen Fuller, and her family would be waiting for
them to celebrate Christmas the following day. Michael and Samantha traveled home in
his pickup truck and Traci and Conner followed in her vehicle. Michael and Samantha
arrived at their home, and when Traci and Conner did not return, Michael and
Samantha drove to SR 83, where they arrived at the scene of the accident.
       {¶ 4} According to Michael, he saw Traci’s body in the vehicle and also saw her
body being covered with a white sheet. The first responders told Michael that Traci was
dead and that Conner had been taken to the local hospital. At that time, Samantha and
Michael were transported to the hospital via ambulance. Conner was later transferred
to Nationwide Children’s Hospital (Nationwide) in Columbus, Ohio.
       {¶ 5} Thomas Galbraith testified that he is very familiar with SR 83 and that he
was traveling on SR 83 when he saw the headlights of an automobile shining in a field.
According to Galbraith, he was the first one to arrive at the scene of Traci’s accident
and he went to a nearby house to call 911.            Galbraith testified that he recognized
Michael when he arrived at the scene of the accident and that Michael arrived before
Traci’s body was covered with a sheet.


WRONGFUL DEATH
       {¶ 6} R.C. 2125.02 provides, in part:
       {¶ 7} “(A)(2) The jury, or the court if the civil action for wrongful death is not tried
to a jury, may award damages authorized by division (B) of this section, as it determines
are proportioned to the injury and loss resulting to the beneficiaries in division (A)(1) of


       1
          During the course of the damages trial, the court APPROVED the parties’ August 27, 2012
stipulation as to the authenticity of certain medical records and employment records.
Case No. 2010-02065                              -2-                           JUDGMENT ENTRY

this section by reason of the wrongful death and may award reasonable funeral and
burial expenses incurred as a result of the wrongful death. * * *
       {¶ 8} “* * *
       {¶ 9} “(B) Compensatory damages may be awarded in a civil action for wrongful
death and may include damages for the following:
       {¶ 10} “(1) Loss of support from the reasonably expected earning capacity of the
decedent;
       {¶ 11} “(2) Loss of services of the decedent;
       {¶ 12} “(3) Loss of the society of the decedent, including loss of companionship,
consortium, care, assistance, attention, protection, advice, guidance, counsel,
instruction, training, and education, suffered by the surviving spouse, dependent
children, parents, or next of kin of the decedent;
       {¶ 13} “(4) Loss of prospective inheritance to the decedent’s heirs at law at the
time of the decedent’s death;2
       {¶ 14} “(5) The mental anguish incurred by the surviving spouse, dependent
children, parents, or next of kin of the decedent.”
       {¶ 15} Pursuant to R.C. 2125.02(A)(3)(b)(i), the “court may consider all factors
existing at the time of the decedent’s death that are relevant to a determination of the
damages suffered by reason of the wrongful death.”


A. Funeral and Burial Expenses
       {¶ 16} Pursuant to R.C. 2125.02(A)(2), the court “may award the reasonable
funeral and burial expenses incurred as a result of the wrongful death. * * * [T]he court
shall set forth separately the amount, if any, awarded for the reasonable funeral and
burial expenses incurred as a result of the wrongful death.”                    Upon review of the


       2
       Plaintiff has not presented any evidence as to loss of prospective inheritance.
Case No. 2010-02065                          -2-                    JUDGMENT ENTRY

evidence, the court finds that plaintiff incurred reasonable funeral and burial expenses in
the amount of $20,133.36 which shall be awarded.


B. Economic Damages
         {¶ 17} Michael testified that Traci worked for Scioto One in Worthington, Ohio,
when they met. When he became the Muskingum County wildlife officer for the Ohio
Department of Natural Resources (ODNR), Traci worked for Fabri-Form Company for
approximately 10 years before taking a different job in New Philadelphia, Ohio. In April
2006, she began working for the Ohio Department of Taxation (ODT).                Michael
explained that Traci accepted a reduction in her rate of pay when she began working for
ODT, but that she was able to work fewer hours and worked closer to their home.
Michael testified that Traci hoped to continue working for ODT and become a
supervisor. He stated that she enjoyed her job with ODT more than her previous jobs.
         {¶ 18} According to Michael, Traci intended to work for the state government for
30 years so that she could draw a full pension upon retirement. Michael explained that
while Traci was working for the state, they received family health care insurance
through his employer, ODNR, but that he planned to retire from law enforcement at age
52 and at that point, they intended to receive family health care insurance through
Traci’s employer.
         {¶ 19} Plaintiff presented the expert testimony of John Burke, Ph.D., regarding
Traci’s expected earning capacity.        Dr. Burke taught at the college level until his
retirement in 1994 and is currently an adjunct professor at John Carroll University. Dr.
Burke calculated the earning capacity for Traci, who was 40 years old at the time of her
death.     He explained that four determinations are necessary to calculate earning
capacity: (1) how long the person is going to work; (2) rate of pay, including fringe
benefits; (3) future rate of pay; and (4) the interest rate.
Case No. 2010-02065                                -2-                           JUDGMENT ENTRY

        {¶ 20} Dr. Burke explained that he used three different ages to determine Traci’s
end working life. First, he made computations using the statistical work-life expectancy
of 55.7 years as computed by the United States Department of Labor. Second, he used
the year 2030, which is when Traci would have earned 30 years of service with the
state, including purchasing service credit from her time in the Ohio National Guard.
Third, he used the retirement age of 65.
        {¶ 21} Dr. Burke also calculated Traci’s future pay rate. When Traci began to
work for ODT, her pay was reduced significantly from her former employment.
However, Dr. Burke testified that during her time with ODT, her wages were rising at a
rapid rate. Dr. Burke explained that he calculated Traci’s pay increases from 2008
through 2012 based on a pay grid for ODT. However, Dr. Burke admitted that he did
not know if such step increases applied to Traci’s position. Defendant argues that this
grid was not admitted into evidence at trial and therefore, Dr. Burke’s testimony must be
excluded. Because the pay grid upon which Dr. Burke relied to calculate Traci’s earning
capacity was not admitted into evidence, the court cannot rely on Dr. Burke’s opinion
regarding Traci’s prospective pay increases which were based thereon.                          See Ohio
Evid.R. 703.3
        {¶ 22} Although the court cannot consider Dr. Burke’s opinions regarding future
pay increases or promotions, nevertheless, the court finds that plaintiff is entitled to
some amount of damages for the loss of Traci’s earning capacity. Dr. Burke testified
that in calculating Traci’s pay rate from 2013 until the date of her anticipated retirement,
he took the previous year’s wages and added a growth rate of .88 percent. Dr. Burke
stated that this rate of growth was taken from the Bureau of Labor Statistics


        3
         During the damages phase of the trial, defendant objected to Dr. Burke’s opinion on future pay
increases being based upon the pay grid that was not in evidence. The court ruled at the time that if the
grid was not offered by plaintiff, the court could not consider Dr. Burke’s opinion testimony based thereon.
Case No. 2010-02065                         -2-                       JUDGMENT ENTRY

employment cost index and that it is based on the average increase in pay for all state
and local government workers from 2001 until 2011. Therefore, computation of Traci’s
lost wages must be based upon her last annual salary plus the .88 percent growth rate
for each year.
       {¶ 23} In 2008, Traci worked until her death on December 26, and earned
$37,899.84. (Plaintiff’s Exhibit 19.) According to Michael, Traci intended to work for the
state until she reached 30 years of service and could retire with full benefits. Dr. Burke
testified that this would require Traci to work for the state for an additional 21 years.
       {¶ 24} Based upon the evidence, the court finds that a reasonable amount to be
awarded for the loss of Traci’s earning capacity is an additional 21 years of wages, plus
fringe benefits, following her death. The computation will be based on the amount that
Traci earned in 2008 plus the .88 percent rate of growth for each additional year of
wages. Dr. Burke testified credibly that Traci’s fringe benefits included 14 percent of her
wages for pension benefits and 26 percent of her wages for medical benefits. While Dr.
Burke acknowledged that the Reeds were covered by Michael’s health insurance, he
opined credibly that Traci’s medical insurance was properly included as a fringe benefit
because he calculated her earning “capacity.” The court finds Dr. Burke’s testimony on
this subject was credible. Accordingly, the court will compute each time period of lost
wages or lost future earning capacity by using Traci’s income from 2008 plus a yearly
.88 percent rate of growth together with fringe benefits valued at 14 percent of her
wages for pension benefits and 26 percent for medical benefits.             Based upon Dr.
Burke’s testimony, the court finds that plaintiff is entitled to the loss of salary and fringe
benefits from 2009 through 2012 in the amount of $216,950.
       {¶ 25} Although the court cannot consider Dr. Burke’s opinion regarding
increases in Traci’s future wages or expected or possible promotions from 2009 through
2012, Dr. Burke offered credible, admissible testimony on the loss of Traci’s future
earnings and benefits. Under Ohio law, a defendant is entitled to have future damages
Case No. 2010-02065                                 -2-                           JUDGMENT ENTRY

converted to present value. Galayda v. Lake Hosp. Systems, Inc., 71 Ohio St.3d 421
(1994). It is the function of the trier of fact to convert future damages to present value
and although sometimes helpful, expert testimony is not required.                          Sahrbacker v.
Lucerne Prods., Inc., 52 Ohio St.3d 179 (1990).
        {¶ 26} Because the court has disallowed Dr. Burke’s testimony about Traci’s
future pay increases and projected job promotions, the court will calculate Traci’s future
wages and fringe benefits based on her 2008 earnings plus a yearly .88 percent rate of
growth. Dr. Burke testified that he used a discount rate of zero to determine the present
value from the years 2013 to 2023 based on the short-term interest rate.4 Accordingly
based upon her salary from the year 2008 and the yearly .88 percent growth, the lost
earning capacity from 2013 until 2023 is $576,834.
        {¶ 27} The last portion of Traci’s future earnings and benefits is for the period
from 2023 to 2030, the year Dr. Burke testified that Traci would be able to retire from
state employment with full benefits.              Dr. Burke offered credible testimony that the
amount of future wages and benefits for this period must be reduced to present value by
using a discount rate of .63. Therefore, based upon her 2008 wages plus a yearly .88
percent rate of growth and fringe benefits, Traci’s loss of future wages and benefits for
the period 2023 to 2030, reduced to present value, is $416,555.
        {¶ 28} As set out above, the loss of wages and benefits from 2009 through 2012,
together with the loss of future earning capacity and benefits from 2013 until her
anticipated retirement in 2030 totals $1,210,339. However, earning capacity must be
reduced for personal consumption. Dr. Burke testified that if Traci worked until she had


        4
          While defendant argues that the interest rate used by Dr. Burke is not reliable because he chose
the interest rate for United States treasuries on a single date nearly one year before he prepared his
expert report, Dr. Burke explained that he retrieved the interest rate in March 2012, and that the date in
his report is a typographical error. The court finds that Dr. Burke’s testimony regarding the interest rate is
credible.
Case No. 2010-02065                               -2-                         JUDGMENT ENTRY

a total of 30 years of service with the state, her earning capacity would be reduced by
$370,000 for her personal consumption. Accordingly, the total of lost wages, benefits
and future earning capacity is reduced to the sum of $840,339, which is awarded
pursuant to R.C. 2125.02(B)(1).
        {¶ 29} Plaintiff also seeks compensation for the loss of Traci’s services. Michael
testified that Traci performed a great deal of the work around their home. She did the
grocery shopping, cooked all of the meals, cleaned the inside of the home, did the
laundry, planned various parties, fixed things around the house, balanced the
checkbook, and paid all of the bills.
        {¶ 30} Dr. Burke also testified about the loss of services.                 Based upon his
experience and the American Time Use Study, Dr. Burke calculated that Traci would
have spent an average of 3.89 hours of her time on household services per day while a
child remained in the home.5 Dr. Burke calculated that Traci would have spent an
average of 2.55 hours of household services per day after the children left the home but
while Traci was still employed; and he calculated an average of 3.74 hours of household
services per day from her retirement until she would have stopped providing household
services to another person, which is Michael’s life expectancy.
        {¶ 31} Based on these rates, Dr. Burke provided three calculations, each reduced
to present value, for the cost of the loss of household services for the amount of time
that Traci would have provided services to another person. In his calculations, Dr.
Burke included costs and taxes the Reeds would be required to pay, such as Social




        5
         Dr. Burke calculated children remaining in the household until age 21, despite the fact that the
American Time Use Survey by the United States Department of Labor is based upon children remaining
in the household until age 17. Dr. Burke, based on his own studies and observations, calculated the
amount of time spent on household services until the children left the home at age 21. The court finds
that such determination is credible.
Case No. 2010-02065                              -2-                         JUDGMENT ENTRY

Security, for employing outside help for household services.6 In the first scenario, Dr.
Burke calculated an amount that represented paying someone $15 per hour, including
legally required benefits that Michael would have to provide as the employer, which
equals $762,748. In the second scenario, he calculated paying someone the minimum
wage to perform household services, plus legally required benefits, which equals
$389,793. In the third scenario, Dr. Burke calculated an amount for hiring live-in help at
$100 per day for 365 days a year, which equals $1,344,000.
       {¶ 32} Defendant argues that Dr. Burke’s calculations for household services are
“totally arbitrary” because Dr. Burke did not conduct a market survey of the area where
plaintiff lives to determine the cost of hiring someone to perform household services.
However, the court finds that a calculation based on the minimum wage, plus the
expenses for legally employing such household assistance, is a reasonable amount
under the circumstances of this case.
       {¶ 33} Upon review of Dr. Burke’s testimony, the court finds that $389,793 is a
reasonable amount for loss of services and that amount is awarded pursuant to R.C.
2125.02(B)(2).


C. Non-Economic Damages
       {¶ 34} The two remaining elements of wrongful death damages are non-
economic losses: loss of society and mental anguish. See R.C. 2125.02(B). R.C.
2125.01(A)(1) provides that “a civil action for wrongful death shall be brought in the
name of the personal representative of the decedent for the exclusive benefit of the
surviving spouse, the children, and the parents of the decedent, all of whom are
rebuttably presumed to have suffered damages by reason of the wrongful death, and for

       6
        He admitted that it would be “easier” for the Reeds to hire help through a service, but that it
would cost more per hour. Dr. Burke testified that hiring household help through a business would cost
about $34 per hour.
Case No. 2010-02065                        -2-                       JUDGMENT ENTRY

the exclusive benefit of the other next of kin of the decedent.”         Pursuant to R.C.
2125.02, other next of kin, such as siblings, while not presumed to have sustained
damages, may recover damages for mental anguish and loss of society upon proper
proof thereof, even though there is a surviving parent, spouse, or children. Senig v.
Nationwide Mutual Insurance Co., 76 Ohio App.3d 565, 574 (10th Dist.1992).
      {¶ 35} Michael testified that Samantha, who is currently in the ninth grade, was
11 years old at the time of her mother’s death. According to Michael, Samantha went to
counseling for a short time. Michael testified that Conner was five years old when the
motor vehicle accident occurred and was a “mama’s boy.” Michael explained that both
of his children have had to grow up fast because of their mother’s death.
      {¶ 36} Michael testified that he fell in love with Traci for her spirit, her character,
her values, and her intelligence and that she was his best friend. He explained that she
was a wonderful mother who was always there for her kids. After Conner was released
from Nationwide, Michael began to see a counselor in Zanesville, Ohio.              He also
attended group grief counseling and was treated by a psychiatrist. He explained that
during this period of time, he had no appetite and his moods changed frequently.
      {¶ 37} Sandy Untied is a 1966 graduate of the Bethesda Hospital Nursing
program and in 1975 she began to work for Six County Mental Health Center (Six
County), which is a community mental health facility.          In 1995, she became an
outpatient clinician for Six County, and she is also a licensed independent social worker.
      {¶ 38} Untied testified that she first treated Michael on January 12, 2009 and
continued to see him on a weekly basis until June 9, 2009. As of June 2009, her
impression was that Michael was suffering from bereavement as a result of a traumatic
event and that he also showed signs of depression. Untied noted additional stressors
that Michael experienced including personal and family illness. (Defendant’s Exhibit F).
      {¶ 39} In the summer of 2010, Michael sought additional counseling sessions with
Untied and he also returned on August 7, 2012. On August 7, 2012, Untied noted that
Case No. 2010-02065                          -2-                     JUDGMENT ENTRY

Michael was being treated for Post Traumatic Stress Disorder (PTSD) and that he was
still experiencing insomnia and vivid nightmares.          Untied testified that she had
scheduled additional sessions with Michael for the fall of 2012.
       {¶ 40} Michael took short-term disability leave from his job as the Muskingum
County wildlife officer following the accident. He returned to work in June 2009. In April
2012, Michael’s employer, ODNR, asked him to be evaluated by a psychologist to
determine if he was fit to perform his duties as a wildlife officer. Michael testified that a
wildlife officer carries a weapon, supports law enforcement, makes arrests, and may
use physical or deadly force. Michael was evaluated by Dr. J. Nick Marzella in April
2012, and since that time he has been “involuntarily separated” from his job as the
wildlife officer for Muskingum County. He has been using his remaining short-term
disability leave since April 2012.
       {¶ 41} J. Nick Marzella, Ph.D., a licensed psychologist in the state of Ohio,
testified that he evaluated Michael on April 5, 2012, at the request of ODNR to
determine if Michael was fit for duty as a wildlife officer. According to Dr. Marzella, he
diagnosed Michael with both major depressive disorder that was recurrent and severe,
and PTSD. Dr. Marzella opined that the sole cause of these conditions was Traci’s
death and the manner of her death. Finally, Dr. Marzella determined that Michael was
unfit for his job as a wildlife officer.
       {¶ 42} In his post-trial brief, plaintiff states that the purpose of Dr. Marzella’s
testimony was to appreciate “the extent of the emotionally debilitating condition with
which Mike Reed suffers” but plaintiff does not seek a separate damage award for this
lost income. (Plaintiff’s Post-Trial Brief, pgs. 7-8.)
       {¶ 43} Michael testified that approximately one year before Traci’s death he was
treated by his family doctor for “stress” on his job. Michael explained that he was tense
and that his physician put him on a mild depression pill, but that after a few months, he
felt better. Michael testified that he has no long-standing bouts with depression. Dr.
Case No. 2010-02065                        -2-                       JUDGMENT ENTRY

Marzella testified that Michael’s previous treatment for a “stressful” condition at work did
not change his opinions.
       {¶ 44} Susan Reed, the mother of Michael Reed, testified that Traci was a very
good wife and mother. Susan testified that after Conner was released from the hospital,
she stayed with Michael and the children at their home for nearly one month during
which time Michael cried a lot, went to the cemetery, and talked to his pastor. She
explained that over the last three years, Michael has had an “awful bad time” as he tries
to be both a father and a mother to his children.
       {¶ 45} Traci’s parents, Carol and Wilbur Huff, live in Springfield, Ohio and had
two daughters: Kristen Fuller and Traci. According to Carol, Traci loved being with her
family. Carol testified that both she and her husband miss Traci.
       {¶ 46} Traci’s older sister and only sibling, Kristen Fuller, lives in Falls Church,
Virginia. Kristen testified that as adults, she and Traci went on family vacations together
and that she misses Traci very much.
       {¶ 47} Based upon evidence and testimony presented at trial the court is
convinced that Traci was a very loving daughter, sister, wife, and mother and that her
death caused much mental suffering. However, the court also finds that approximately
one year prior to Traci’s death Michael had been treated for mild depression due to
“stress,” and that Michael was prone to depression.        Pursuant to R.C. 2125.02(B),
Traci’s spouse, dependent children, parents, and sister are entitled to non-economic
damages.     Upon consideration of the testimony presented, Michael is awarded
$1,000,000; Samantha and Conner are each awarded $500,000; Traci’s parents, Carol
and Wilbur Huff, are each awarded $250,000.00; and Traci’s sister, Kristen Fuller, is
awarded $100,000. The court awards non-economic damages for loss of society and
mental anguish in the total amount of $2,600,000.
Case No. 2010-02065                        -2-                      JUDGMENT ENTRY

NEGLIGENCE
        {¶ 48} At the time of the accident, Conner was five years old. From the scene of
the accident, he was taken to Genesis Hospital in Zanesville, Ohio and then transported
to Nationwide for further treatment of his injuries where he remained until January 8,
2009.
        {¶ 49} Yolanda Holler, M.D., is board-certified in pediatrics and neurology and is
employed by Akron Children’s Hospital. Dr. Holler reviewed Conner’s hospital records,
including the images and reports generated from the CT scans and MRI.
        {¶ 50} Dr. Holler opined that Conner sustained a right frontal skull fracture and
swelling of the brain. He also sustained two types of traumatic brain injury: contusions
and diffuse axonal injury. The contusions were located on the right frontal lobe and the
left temporal lobe. She explained that the diffused axonal injury, which is a tearing of
the axons, was located on the left frontal lobe, left temporal lobe and the corpus
callosum. Dr. Holler explained that the right frontal lobe functions as the “gatekeeper” of
the brain and controls areas such as attention span, ability to focus, and impulsivity.
She testified that the left temporal lobe controls mood, memory, and language skills.
        {¶ 51} Steven Bodin, Ph.D., is a pediatric neuropsychologist currently employed
by Nationwide. He is a licensed psychologist in Ohio and is board-certified in clinical
neuropsychology.
        {¶ 52} Dr. Bodin evaluated Conner in January 2009 shortly before Conner was
discharged from Nationwide. Dr. Bodin testified that his post-doctoral fellow
administrated the evaluation, which included conducting tests on Conner and
questioning Michael. Conner’s pre-injury condition revealed that he had no history of
developmental or learning disorders. The 2009 evaluation concluded that Conner had
an average IQ and language skills but that he had a low-average processing speed. Dr.
Bodin admitted that his 2009 evaluation states that Conner did not demonstrate any
cognitive impairments. However, Dr. Bodin explained that because of Conner’s age,
Case No. 2010-02065                         -2-                       JUDGMENT ENTRY

there were limitations to the testing available and that high-level cognitive skills, such as
executive functioning and problem solving, could not be tested at such a young age.
       {¶ 53} In September 2011, Dr. Bodin conducted a second evaluation of Conner at
the request of Dr. Klamar, a physical medicine and rehabilitation physician at
Nationwide, who was concerned about Conner’s reading abilities and memory. The
results of the evaluation revealed that Conner had average intelligence but that he had
deficits in the areas of word retrieval, comprehension in multi-step instructions, and
focused and sustained attention.       However, Dr. Bodin admitted that in his 2011
evaluation, he noted that the majority of Conner’s neuropsychological functions were
intact. Dr. Bodin opined that the weaknesses exhibited in the 2011 evaluation were
consistent with Conner’s brain injuries. He explained that most of Conner’s injuries
were located in the frontal lobe and axons, and that those parts of the brain control
attention, word retrieval, and executive function.       Dr. Bodin opined that Conner’s
cognitive defects are related to his traumatic brain injury. Further, he opined that the
cognitive deficits are permanent.
       {¶ 54} Andrew Colvin, Ph.D., a neuropsychologist, testified by deposition. Dr.
Colvin was contacted by defendant to perform an independent neuropsychological
evaluation of Conner, which he conducted on May 30-31, 2012. Dr. Colvin testified that
both he and Dr. Bodin determined that Conner has cognitive deficits that are the result
of his traumatic brain injury and that such deficits are permanent.
       {¶ 55} Conner underwent speech rehabilitation to improve his memory and
comprehension skills following the accident. Carrie Stant is a licensed speech language
pathologist and she currently works part-time for Genesis Outpatient Rehabilitation
Services. According to Stant, she treated Conner at Genesis’ New Concord facility.
Stant testified that she did not conduct Conner’s initial assessment but that she had her
first session with Conner on June 2, 2010, and usually met with him for a half hour, one
time per week.
Case No. 2010-02065                         -2-                       JUDGMENT ENTRY

       {¶ 56} Stant administered the Ross Information Processing Accessing-Pediatrics
(RIPA-P) on Conner, which is a test for patients with traumatic brain injury. The results
of the RIPA-P showed that Conner scored in the fifth percentile for immediate memory
and the third percentile for recent memory. As a result of the RIPA-P, Stant added new
goals for Conner to improve his immediate and recent memory. According to Stant, she
conducted exercises during her rehabilitation sessions with Conner to help improve his
memory.        Stant testified that Conner’s final two treatment sessions showed
improvement and he scored 100 percent on activities relating to his immediate memory.
Conner was discharged as a patient on October 20, 2010. The discharge summary
states that Conner showed overall improvement.              Conner has not returned for
subsequent treatments. Stant believed that her treatment of Conner was successful in
a short period of time.
       {¶ 57} Conner is currently in the third grade, and he is in an individualized
education program at school.       In the second grade, Conner received a variety of
notations by teachers on his report card, ranging from “less than satisfactory” to
“outstanding.” Michael testified that he works with Conner at home to improve his
memory and comprehension.         According to Michael, Conner cannot focus for long
periods of time and that he often gets frustrated.        Michael stated that prior to the
accident, Conner did not have any attention problems.
       {¶ 58} A May 11, 2009 progress note from Michael’s sessions with Untied states
that Michael had to take Conner to the emergency room after Conner had fallen on the
pavement and hit his head in the same location as his previous injury.             However,
plaintiff testified that this injury was not in the same location as his brain injury from the
December 26, 2008 accident. Further, Michael explained that when he took Conner to
the emergency room, the doctors performed an X-ray, and that there was nothing wrong
with Conner.
Case No. 2010-02065                          -2-                       JUDGMENT ENTRY

       {¶ 59} The court finds that the testimony presented by Drs. Holler, Bodin, and
Colvin was credible. The court finds that Conner suffered a traumatic brain injury as a
proximate result of the accident. Michael testified that Conner cannot focus for long
periods of time and Dr. Bodin explained that Conner’s injuries occurred in the parts of
the brain that control attention span. Further, Dr. Colvin also testified that Conner has
cognitive defects.   The court finds that there is credible evidence that Conner has
suffered some degree of cognitive defect as a result of his injuries and such injury is
permanent.    However, the court also notes that Stant testified that Conner quickly
improved during his therapy. The court concludes that while Conner has suffered some
permanent injury in his cognitive abilities, it is not as significant as plaintiff asserts. The
court awards $500,000.00 for Conner’s pain and suffering and permanent injury.
       {¶ 60} Expenses were incurred for Conner’s hospitalization and medical care.
Plaintiff submitted evidence that Conner’s medical bills totaled $54,146.45 (Plaintiff’s
Exhibit 22), and the parties stipulated that $39,701.81 of that sum was paid by plaintiff’s
health insurance carrier, Medical Mutual. Pursuant to R.C. 2743.02(D), “[r]ecoveries
against the state shall be reduced by the aggregate of insurance proceeds, disability
award, or other collateral recovery received by the claimant.” Accordingly, the court
finds that plaintiff is entitled to $14,444.64 for Conner’s medical expenses.
       {¶ 61} In summary, $3,850,265.36 shall be awarded for plaintiff’s wrongful death
claim and $514,444.64 for plaintiff’s negligence claim on behalf of Conner Reed.
$4,364,735 shall be awarded in total damages, which includes the $25 filing fee.
       {¶ 62} R.C. 2743.02(D) provides that:
       {¶ 63} “Recoveries against the state shall be reduced by the aggregate of
insurance proceeds, disability award, or other collateral recovery received by the
claimant.”
Case No. 2010-02065                             -2-                        JUDGMENT ENTRY

       {¶ 64} Based on the parties’ stipulation7, the court finds that plaintiff has received
collateral benefits as follows:
       {¶ 65} Life Insurance: Lincoln National Life Insurance Co. $100,000; Prudential
Life $40,000;
       {¶ 66} OPERS       Survivor     Death    Benefits:    Michael    $32,788.48;      Samantha
$18,392.64; Conner $18,392.64;
       {¶ 67} Nationwide Insurance Company: $10,000 death benefit; $5,000 Med Pay
Policy limit;
       {¶ 68} Social Security Death Benefits: Samantha $56,663; Conner $56,663;
Michael Funeral Benefit of $255 and temporary disability benefit of $4,108;
       {¶ 69} Medical Mutual: $39,701.81 for Conner’s medical expenses.8
       {¶ 70} Pursuant to McMullen v. Ohio State Univ. Hosps., 88 Ohio St.3d 332, 342
(2000), this court has the duty to deduct collateral benefits received by each beneficiary
from that beneficiary’s share of the award as adjusted by the probate court. This court
makes the collateral-source deductions only after the probate court has adjusted the
share of each beneficiary pursuant to R.C. 2125.03(A)(1). Id.; see also Buchman v.
Wayne Trace Local School Dist. Bd. of Edn., 73 Ohio St.3d 260 (1995); Robertson v.
Dept. of Public Safety, Ct. of Cl. No. 2001-09214, 2005-Ohio-5069.
       {¶ 71} The court will conduct periodic conferences to discuss the status of the
probate court proceedings. The first of such conferences shall be held on April 25,
2013, at 9:30 a.m. The court shall initiate the conference via telephone.




       7
          The court hereby APPROVES the parties’ August 27, 2012 stipulation regarding the collateral
benefits that have been received.
       8
        The court has already deducted from its award the collateral benefits received for Conner’s
medical expenses.
Case No. 2010-02065    -2-                JUDGMENT ENTRY


                      _____________________________________
                      ALAN C. TRAVIS
                      Judge
Case No. 2010-02065                        -2-                     JUDGMENT ENTRY




                                              Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us

MICHAEL REED, Exec., etc.

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2010-02065

Judge Alan C. Travis
Magistrate Anderson M. Renick

JUDGMENT ENTRY

       {¶ 72} This case was tried to the court on the issue of plaintiff’s damages. The
court has considered the evidence and, for the reasons set forth in the decision filed
concurrently herewith, judgment is rendered in favor of plaintiff in the amount of
$4,364,735, which includes funeral expense, loss of earning capacity, loss of services,
loss of society and mental anguish, plus the $25 filing fee paid by plaintiff. It also
includes $514,444.64 for plaintiff’s negligence claim.
       {¶ 73} This court shall conduct a hearing on the issue of collateral source setoff
and enter final judgment after the probate court completes its apportionment. This case
has been scheduled for a status conference for April 25, 2013, at 9:30 a.m., to discuss
Case No. 2010-02065                      -2-                      JUDGMENT ENTRY

the status of the probate court proceedings. The court shall initiate the conference via
telephone.




                                        _____________________________________
                                        ALAN C. TRAVIS
                                        Judge

cc:


Blair L. Magaziner                          Craig S. Rapp
R. David McGlade                            William C. Becker
W. Andrew Joseph                            Assistant Attorneys General
44 South 6th Street                         150 East Gay Street, 18th Floor
P.O. Box 970                                Columbus, Ohio 43215-3130
Zanesville, Ohio 43702-0970

Patrick J. Hart
50 South Main Street, Suite 504
Akron, Ohio 44308

007
Filed February 4, 2013
To S.C. Reporter April 16, 2013
