[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
