[Cite as Evans v. Thobe, 195 Ohio App.3d 1, 2011-Ohio-3501.]




            IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

                                                  :
EVANS et al.,
     Appellant,                                   :      C.A. CASE NO. 24283

v.                                                :      T.C. CASE NO. 2008 CV 2468

THOBE et al.,                                     :      (Civil Appeal from
.                                                        Common Pleas Court)
     Appellees.                                   :


                                     . . . . . . . . .

                                         O P I N I O N

                    Rendered on the 15th day of July, 2011.

                                     . . . . . . . . .

Lee C. Falke and Susan M. Brasier, for appellant.

Michael W. Sandner, attorney for appellees.

                                     . . . . . . . . .


        GRADY, Presiding Judge.

        {¶ 1} This is an appeal from a final order granting a new trial

in      a     personal-injury              action         on     the      motion    of   the

defendants-appellees pursuant to Civ.R. 59.                        We find that the trial

court       abused        its      discretion          in      granting     their   motion.

Accordingly, the order from which the appeal is taken will be

reversed and vacated.

        {¶ 2} On August 4, 2006, plaintiff, 18-year-old Linzie Evans,
                                                                  2

suffered a detached retina in her right eye while participating

in a sports training program at the University of Dayton when a

stretch band on an exercise device broke and struck her right eye.

 Surgery was performed to repair the detachment, but Evans’s vision

remains permanently impaired.

     {¶ 3} Evans and her parents, plaintiffs-appellants, commenced

an action on claims for negligence and loss of consortium against

the University of Dayton and Mark Thobe, who had supervised Evans’s

training when her injury occurred.   Evans claimed losses arising

from past and future medical expenses, impaired vision, and the

value of a college volleyball scholarship for which she was in

training.

     {¶ 4} Shortly before trial, the plaintiffs filed a motion in

limine asking the court to exclude evidence of any health-insurance

benefits Evans received for her medical costs and/or contractual

write-offs or adjustments to their bills that her medical providers

accepted.     The plaintiffs argued that such evidence is subject

to exclusion pursuant to R.C. 2315.20 when the source of the

benefits maintains a right of subrogation.    Defendants filed no

response.     The parties agree that the court granted the motion

in limine.1


        1
          No written judgment appears in the docket and journal
   entries, and no transcript was filed.
                                                                   3

     {¶ 5} The matter proceeded to trial.    On August 7, 2009, the

jury returned a verdict for Evans in the amount of $96,477.      In

a jury interrogatory, the jury found that Evans’s compensatory

damages for her economic loss is $46,477 and that her compensatory

damages for her noneconomic loss is $50,000.          In that same

interrogatory, the jury found that Evans’s parents suffered no

losses on their consortium claims.    On October 26, 2009, the court

entered judgment for Evans in the amount of $96,477, plus statutory

interest and court costs.

     {¶ 6} On November 9, 2009, the defendants filed a combined

motion for new trial and/or motion for judgment notwithstanding

the verdict.   In support of their motion for a new trial, and with

respect to the issue presented in this appeal, the defendants argued

that the trial court should have given a jury instruction that

defendants had requested pursuant to Robinson v. Bates, 112 Ohio

St.3d 17, 2006-Ohio-6362, which construed R.C. 2315.20 to permit

introduction of evidence of both the amount of an original medical

bill and any lesser amount the provider accepted as full payment,

but not evidence of a write-off. Plaintiffs filed a memorandum

in opposition.

     {¶ 7} The trial court had not ruled on defendants’ motion when

on May 21, 2010, plaintiffs filed a supplemental memorandum in

opposition to defendants’ motion.    Anticipating a possible adverse
                                                                             4

ruling based on the Ohio Supreme Court’s May 4, 2010 decision in

Jaques v. Manton, 125 Ohio St.3d 342, 2010-Ohio-1838, plaintiffs

argued that defendants could not benefit from Jaques because the

jury had heard no evidence of any write-offs or lesser amounts

that Evans’s medical providers accepted for their services.

Plaintiffs argued that it would be speculative to find an amount

the   jury   awarded   for   Evans’s     medical    costs   absent   a   jury

interrogatory    finding     such   an   amount.     Defendants      filed   a

memorandum in opposition to plaintiffs’ supplemental memorandum.

      {¶ 8} On   September    28,    2010,    the   trial   court    granted

defendants’ motion for a new trial.          The court’s written decision

and judgment states:

      {¶ 9} “By recent decision, the Ohio Supreme Court has,

illogically, in this writer’s opinion, disregarded the plain

language of R.C. 2315.20, and ruled that a tortfeasor may introduce

evidence of any reduced amount payable as a benefit on behalf of

the plaintiff in spite of there being a contractual right of

subrogation by the insurer from the plaintiff.          Jaques v. Manton,

2010-Ohio-1838, 125 Ohio St.3d 342.           This decision was released

May 4, 2010, and the result of this decision mandates that the

motion for a new trial be granted, since this court disallowed

evidence of the write-offs by the medical providers, and that error

is prejudicial and casts doubt on the jury’s verdict.”
                                                                    5

     {¶ 10} Evans filed a notice of appeal from the order granting

defendants’ motion.

ASSIGNMENT OF ERROR

     {¶ 11} “Because   defendants    failed   to   request   a   jury

interrogatory to determine what, if anything, the jury awarded

to compensate plaintiff for her medical bills, defendants failed

to preserve the issue, and the trial court erred in granting a

new trial.”

     {¶ 12} R.C. 2315.20(A) states:

     {¶ 13} “In any tort action, the defendant may introduce

evidence of any amount payable as a benefit to the plaintiff as

a result of the damages that result from an injury, death, or loss

to person or property that is the subject of the claim upon which

the action is based, except if the source of collateral benefits

has a mandatory self-effectuating federal right of subrogation,

a contractual right of subrogation, or a statutory right of

subrogation or if the source pays the plaintiff a benefit that

is in the form of a life insurance payment or a disability payment.

However, evidence of the life insurance payment or disability

payment may be introduced if the plaintiff’s employer paid for

the life insurance or disability policy, and the employer is a

defendant in the tort action.”      (Emphasis added.)

     {¶ 14} The   common-law   collateral-source     rule    excludes
                                                                          6

evidence of payments in compensation for claimed losses that a

plaintiff received from other sources.         R.C. 2315.20(A) creates

an exception to the common-law collateral source rule.            However,

per that section, the exception does not apply when “the source

of collateral benefits has a * * * contractual right of subrogation

* * *.”

     {¶ 15} In Jaques v. Manton, the Supreme Court explained:

     {¶ 16} “The subrogation exception will generally prevent

defendants from offering evidence of insurance coverage for a

plaintiff’s injury, because insurance agreements generally include

a right of subrogation.       The defendant would then be liable for

the full cost of the plaintiff’s medical expenses, even though

those expenses have been paid by insurance.          The plaintiff does

not receive a windfall payment, however, because the insurer has

subrogation rights to recover any expenses it has already paid.

 This appropriately leaves the burden of medical expenses on the

tortfeasor.    If there is no right of subrogation, then any recovery

for expenses paid by a third party that have benefitted the

plaintiff    would   remain   with   the   plaintiff,    resulting   in   a

windfall.”    Jaques, 125 Ohio St.3d 342, 2010-Ohio-1838, ¶ 10.

     {¶ 17} It   happens,     not    infrequently,      that   health-care

providers agree to accept from insurers an amount substantially

less than the face amount of the providers’ bills as payment in
                                                                       7

full for the cost of services provided.    In Jaques, after observing

that R.C. 2315.20(A) concerns only “evidence of any amount payable

as a benefit to the plaintiff,” the Supreme Court held that R.C.

2315.20(A)   does   not   exclude   evidence   of   write-offs   because

“[w]rite-offs are amounts not paid by third parties, or anyone

else, so permitting introduction of evidence of them allows the

fact-finder to determine the actual amount of medical expenses

incurred as a result of the defendant’s conduct.           This result

supports the traditional goal of compensatory damages -- making

the plaintiff whole.”     Id. at ¶ 12.

     {¶ 18} Of course, for purposes of the simple mathematical

operation of subtraction, the amount written off is the subtrahend

which, when deducted from the minuend of the face amount of the

provider’s bill, reveals the lesser amount the collateral source

paid.    R.C. 2315.20(A) applies the collateral-source rule to

exclude evidence of that lesser amount when the source of the

payment is subrogated on the plaintiff’s claim.         Jaques permits

a defendant who would benefit from proof of any lesser amount that

was paid to introduce evidence demonstrating what that lesser

amount was, circumstantially, through direct evidence of the amount

written off, even when the insurer is subrogated on the plaintiff’s

claim.

     {¶ 19} But we digress.    Our concern is not the Supreme Court’s
                                                                  8

ardent embrace of textualism.     Our concern is whether, on the

record before it, the trial court abused its discretion when it

granted defendants’ Civ.R. 59 motion for a new trial.

     {¶ 20} Civ.R. 59(A) sets out nine grounds in which a new trial

may be ordered.    Paragraph nine allows the court to order a new

trial for an “[e]rror of law occurring at the trial and brought

to the attention of the trial court by the party making the

application.”     In their motion for new trial, as supplemented,

defendants argued that the trial court committed an error of law,

per Jaques, when the court excluded evidence of amounts Evans’s

medical providers had written off from their bills when they

accepted lesser amounts as payment in full.

     {¶ 21} The error that defendants’ motion alleged had its

origin in the motion in limine that the trial court granted prior

to trial.   Plaintiffs asked the court to exclude evidence of

collateral benefits that Evans received from her health-care

insurer, which was subrograted on Evans’s claim against defendants,

as well as any write-offs from the face amount of the provider’s

bills pursuant to R.C. 2315.20(A).    The record does not contain

a judgment entry by the court granting the motion.      Neither do

we have a transcript showing that the motion was granted.      The

parties nevertheless agree that the motion was granted, and we

will therefore proceed on a finding that it was.
                                                                      9

     {¶ 22} An order granting or denying a motion in limine is a

tentative, preliminary, or presumptive ruling about an evidentiary

issue that is anticipated but has not yet been presented in its

full context.      State v. White (1982), 6 Ohio App.3d 1.   “When the

court grants the motion in limine, the proponent must proffer the

rejected evidence when it would be admissible to preserve any

error.”       Markus, Trial Handbook for Ohio Lawyers (2005), Section

31:7.     That requirement is consistent with Evid.R. 103(A)(2),

which provides that error may not be predicated upon a ruling that

excludes evidence unless “the substance of the evidence was made

known to the court by offer or was apparent from the context within

which questions were asked.       Offer of proof is not necessary if

evidence is excluded during cross-examination.”

     {¶ 23} The parties agree that defendants proffered evidence

that they would have been able to introduce but for the court’s

liminal order.       However, we are not provided a transcript of the

evidentiary proceedings at trial that demonstrate what those

proffers concerned2 -- that is, any lesser amounts that were paid

to medical providers or the amounts the providers wrote off from

their bills.      Neither do we know the amount of any medical bills

offered by Evans as proof of that element of her economic losses.


          2
         We have a partial transcript           containing   the   jury
   instructions and related proceedings.
                                                                  10

     {¶ 24} Defendants argue that Evans opened the door to proof

of any write-offs or lesser amounts paid when Evans asked her expert

whether the amount of her medical bills was reasonable.   That could

have opened the door, but the door had been locked by the liminal

order.    Therefore, no evidence of any write-offs or lesser amounts

paid was put before the jury.   Defendants’ argument that the court

should have instructed the jury that it could consider such matters

is unavailing, because, absent evidence of those matters, there

was no evidence of lesser payments accepted or write-offs allowed

that the jury could consider.

     {¶ 25} Defendants might have filed a notice of appeal from

the judgment for $96,477 that the court entered in favor of Evans.

 Instead, defendants took a different tack and filed a Civ.R. 59(A)

motion for new trial, claiming that the ruling constituted an error

of law.    As we earlier pointed out, paragraph nine of Civ.R. 59

authorizes the trial court to order a new trial for an “[e]rror

of law occurring at the trial and brought to the attention of the

trial court by the party making the application.”   The trial court

presumably relied on that provision when it found that, per Jaques,

it misapplied R.C. 2315.20(A) to exclude evidence of contractual

write-offs by Evans’s medical providers.

     {¶ 26} Civ.R. 61 states:

     {¶ 27} “No error in either the admission or the exclusion of
                                                                   11

evidence and no error or defect in any ruling or order or in anything

done or omitted by the court or by any of the parties is ground

for granting a new trial or for setting aside a verdict or for

vacating, modifying or otherwise disturbing a judgment or order,

unless refusal to take such action appears to the court inconsistent

with substantial justice.      The court at every stage of the

proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.”

(Emphasis added.)

     {¶ 28} In commenting on Civ.R. 59(9), the authors of Baldwin’s

Ohio Civil Practice write:

     {¶ 29} “The only time that error is grounds for the granting

of a new trial is when the error is prejudicial to the moving party

in a substantial way.* * * ‘In order for a party to secure relief

from a judgment by way of new trial, he must not only show some

error but must also show that such error was prejudicial.’* * *.”

     {¶ 30} Baldwin’s Ohio Civil Practice, Section 59:6, quoting

Morgan v. Cole (1969), 22 Ohio App.2d 164, 166.

     {¶ 31} The authors of Baldwin’s also cite a decision of this

court, Fada v. Information Sys. & Networks Corp. (1994), 98 Ohio

App.3d 785, with respect to the degree of prejudice resulting from

such an error.   We wrote:

     {¶ 32} “The existence of error does not require a disturbance
                                                                             12

of the judgment unless the error is materially prejudicial to the

complaining party.        McQueen v. Goldey (1984), 20 Ohio App.3d 41,

20 OBR 44, 484 N.E.2d 712.        Pursuant to Civ.R. 61, the error must

affect    the   substantial    rights     of   the   complaining    party    or

substantial     justice    must   not   have   been   done.    It    is   well

established that errors ‘will not be deemed prejudicial where their

avoidance would not have changed the result of the proceedings.’

 Walters v. Homberg (1914), 3 Ohio App. 326, syllabus, Surovec

v. LaCouture (1992), 82 Ohio App.3d 416, 612 N.E.2d 501.”                   Id.

At 792.

     {¶ 33} The inquiry that Civ.R. 61 requires is retrospective

from the judgment that was entered and in relation to the error

of law that occurred.        It is the burden of the party who moves

for a new trial to demonstrate the degree of prejudice required.

 A defendant who urges that evidence of collateral-source payments

that could have diminished the amount of a verdict should have

been admitted has the burden to prove the amount of such payments,

and jury “interrogatories are the most efficient and effective

method, if not the only method, by which to determine whether the

collateral benefits to be deducted are within the damages actually

found by the jury.”        Buchman v. Wayne Trace Local School Dist.

(1995), 73 Ohio St.3d 260, 270.

     {¶ 34} Interrogatories        were    submitted    wherein     the   jury
                                                                13

divided its general verdict of $96,477 in favor of Evans, awarding

$46,477 for economic losses and $50,000 for noneconomic losses.

 No interrogatory was submitted, and none was requested, asking

the jury to identify what part of its award for economic losses

was for Evans’s past and/or future medical expenses.

     {¶ 35} The trial court instructed the jury that Evans’s

economic loss includes “[a]ll expenditures for medical care or

treatment or other care or treatment, services, products, or

accommodations incurred as a result of her injury.”   As the party

that would challenge the reasonableness of the medical expenses

Evans claimed, it was defendant’s obligation to request an

interrogatory showing what award, if any, the jury made on that

claim, in order to show that defendants were prejudiced by the

court’s liminal order.

     {¶ 36} Defendants argue that the interrogatories that were

submitted were in accordance with Ohio Jury Instructions Section

315.01, as amended following the passage of S.B. 80 in 2005, which

relieved the court of the duty imposed by Fantozzi v. Sandusky

Cement Prods. Co. (1992), 64 Ohio St.3d 601.   Fantozzi held that

when a plaintiff in a personal-injury action claims a resulting

inability to perform usual activities, the jury must be instructed

that “any amount of damages awarded to the plaintiff for pain and

suffering must not be awarded again as an element of damages for
                                                                   14

the plaintiff’s inability to perform usual activities.”    Id., 618.

 That rule and the particular prohibition against duplicative

awards it involves has nothing to do with Evans’s claims for medical

expenses.     Neither does Ohio Jury Instructions Section 315.01

refer to interrogatories.     Defendants’ contention is feckless.

     {¶ 37} On this record, we hold that the trial court abused

its discretion when it ordered a new trial by granting defendants’

motion.     Interrogatories were submitted to the jury, from which

it found that Evans’s compensatory damages for her economic losses

were $46,477.    The jury was not asked to find, and it did not find,

what part of the award of Evans’s economic losses represented

payments made to her medical providers.     Absent that finding, it

would be purely speculative to suppose what amount of Evans’s

economic losses, if any, the jury awarded for the cost of medical

services Evans was provided.     Absent that information, it cannot

be determined that defendants were materially prejudiced by not

being allowed to introduce evidence of any lesser amounts paid

and/or any write-offs by providers.      It was defendants’ burden

to preserve the record to show material prejudice necessary for

its motion for a new trial.    Civ.R. 61; Fada, 98 Ohio App.3d 785.

 Defendants failed to satisfy that duty.

     {¶ 38} The assignment of error is sustained.     The order from

which the appeal is taken will be reversed and vacated.
                                                            15



                                         Judgment accordingly.



FROELICH, J., concurs.

DONOVAN, J., concurs in judgment only.
