[Cite as Roberts v. Erie Ins. Group, 2013-Ohio-718.]




               IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

MICHELLE ROBERTS, et al.                                :

        Plaintiffs-Appellants                   :           C.A. CASE NO.    2012 CA 46

v.                                                      :        T.C. NO.    10CV38

ERIE INSURANCE GROUP, et al.                    :           (Civil appeal from
                                                                    Common Pleas Court)
        Defendant-Appellee                      :

                                                        :

                                              ..........

                                            OPINION

                         Rendered on the        1st    day of    March      , 2013.

                                              ..........

JOHN A. SMALLEY, Atty. Reg. No. 0029540, 131 N. Ludlow Street, Suite 1400, Dayton,
Ohio 45402
      Attorney for Plaintiffs-Appellants Michelle and James Roberts

STEVEN O. DEAN, Atty. Reg. No. 0009095, 130 W. Second Street, Suite 1500, Dayton,
Ohio 45402
      Attorney for Defendant-Appellee Zachary R. Gillespie

                                              ..........

FROELICH, J.

                 {¶ 1} Michelle and James Roberts appeal from a judgment of the Greene
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County Court of Common Pleas, which entered judgment in favor of Defendant Zachary

Gillespie on their personal injury claims. 1                    Because Mrs. Roberts suffered the alleged

physical injuries, and the complaint referred to Mr. Roberts’s claim as a “derivative claim,”

we will hereafter only refer to Mrs. Roberts’s (“Roberts”), for simplicity.

         {¶ 2}        After a trial on Roberts’s personal injury claim, in which the parties agreed

that Gillespie was negligent and at fault, a jury stated in interrogatories that 1) Gillespie had

“directly or proximately caused any injuries” to Roberts as a result of a car accident, but 2) it

awarded no damages related to any injuries. Similarly, the verdict form stated that the jury

found in favor of the plaintiff, but awarded “$0” in damages. The trial court entered

judgment in favor of Gillespie.

         {¶ 3}        For the following reasons, the judgment of the trial court will be reversed.

         {¶ 4}        At trial, Mr. and Mrs. Roberts and one doctor testified on Roberts’s behalf,

and Gillespie testified for the defense. The facts surrounding the accident itself were not

disputed. On January 27, 2008, Gillespie stopped behind the Robertses’ car at a red light on

New Germany-Trebein Road. When Gillespie believed that the light had changed, he took

his foot off the brake and his car began to roll, striking the Robertses’ car, which was

approximately one car length in front of his car. According to Gillespie, he never pressed

the accelerator before hitting the Robertses’ car, and he was moving at a speed of less than

ten miles per hour at the time of impact. The Robertses did not contradict this testimony.

         {¶ 5}        Roberts testified that her neck hurt “pretty much all the time” after the


             1
               Erie Insurance was named in the complaint as Gillespie’s insurer, but the claim against Erie was later dismissed
   without prejudice.
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accident. After experiencing a little stiffness and discomfort at the scene of the accident,

she went to an urgent care center that evening. She followed up with Dr. Ringle, her family

doctor, the next day (January 28), and again on February 23. She stated that her activities

during this time were “minimal to none.” She testified that she had exercised daily prior to

the accident, but that her exercise routine changed “drastically” as a result of the accident;

she had gradually returned to a “modified” exercise routine, such as using a recumbent bike

instead of her outdoor bike and walking instead of “power walking.” She engaged in

physical therapy, had “pain injections” in her neck muscles for several months, and had

trouble sleeping. She also testified that, since the accident, she takes 800 mg of ibuprofen

for pain every day and had aggravated her neck with activities such as pulling luggage

through an airport and moving furniture. James Roberts’s testimony corroborated some of

his wife’s testimony about how her activities had been restricted and how she had been

treated for her pain after the accident.

        {¶ 6}     On cross-examination, Roberts was questioned about various medical

records from the months after the accident which indicated that she had not reported neck

pain during a doctor visit, reported minimal neck pain, or seemed to have affirmatively

reported that she had been exercising. For example, Roberts had a cosmetic procedure three

days after the accident, and the medical records from the doctor who performed that

procedure contained no indication that she had suffered a recent injury or was in pain. She

was also questioned about three visits to her podiatrist within one month of the accident, at

which Roberts did not report that she was suffering from neck pain, and at which she seemed

to have indicated that she had been able to ride her stationary bike for 50 minutes. Dr.
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Ringle’s records from the day after the accident stated that Roberts reported “minor neck

pain only.” Roberts was also questioned about physical therapy records from May and June

of 2008 which suggested that she had returned to exercising by that time. And she was

questioned about an intake form at a chiropractor’s office after the accident on which she

indicated that her “present injuries” were not due to a car accident.

       {¶ 7}     Roberts was also cross-examined about prior car accidents and preexisting

neck pain. Roberts claimed not to recall her medical histories or treating physicians related

to multiple car accidents in the 1990s.               However, Mr. Roberts testified on

cross-examination that his wife had experienced some neck pain in the 1990s, including at

least one instance in which she “slept wrong” and went to the emergency room and another

period of neck pain, perhaps “a couple of months,” following a car accident.

       {¶ 8}     Dr. Townsend Smith, Director of the Miami Valley Hospital Acute and

Chronic Pain Management Center, who treated Roberts for neck and left shoulder pain from

April 2008 through May 2009, also testified for Roberts at trial. He administered “trigger

point injections” to the muscles of Roberts’s neck and upper back, which produced

significant improvement in her symptoms.

       {¶ 9}     According to the medical history provided to Dr. Smith by Roberts, she had

no neck pain prior to the 2008 car accident, so he attributed her neck pain to the accident.

Dr. Smith stated that an MRI performed after the January 2008 accident showed “significant

structural changes in [Roberts’s] neck,” but Dr. Smith did not state when he believed these

changes had occurred. Dr. Smith noted some “congenital” problems at every level of

Roberts’s spine. Specifically, he stated that she had symptoms of osteoarthritis, including a
                                                                                           5

bone spur at cervical spine C3-4, narrowing of openings in the vertebrae through which

nerves pass, and some herniation and degeneration of disks, all of which predated the

accident and continued after the accident.     When confronted with the possibility that

Roberts had been involved in prior car accidents and had suffered past periods of neck pain

(contrary to the history provided by Roberts), Dr. Smith nonetheless expressed the opinion

that the pain for which he had treated Roberts was triggered by the car accident, because the

pain had begun after the accident.

       {¶ 10}    Gillespie testified to the circumstances surrounding the accident, including

that he had been rolling, but not accelerating, at the time of impact, after having been at a

complete stop, and that his car had been moving less than ten miles per hour.

       {¶ 11}    After hearing the evidence, the jury was instructed that the parties did not

dispute that Gillespie had been negligent and that Roberts had not been at fault in the

accident. The jury was presented with the following interrogatories for its consideration

and gave the following answers to those interrogatories:

       1. “Did the Defendant, Zachary Gillespie, directly or proximately cause any

       injuries to the Plaintiff, Michelle Roberts as a result of the automobile

       collision of January 27, 2008?” The jury answered: “Yes”

       2. “What amount of compensation, if any, will fairly and reasonably

       compensate Plaintiff, Michelle Roberts as to damages?

         “1) Medical expenses (Economic Loss)” The jury answered $0.

         “2) Pain and Suffering (Non-Economic Loss)” The jury answered $0.

         “3) Future Pain and Suffering (Non-Economic Loss)” The jury answered $0.
                                                                                               6

            “4) Inability to Perform Usual Activities (Non-Economic Loss)”             The jury

        answered             $0.

On the verdict form, the jury stated that it found in favor of the Plaintiff and awarded

damages in the amount of $0. Roberts did not raise any inconsistency between the jury

verdict and/or the interrogatories before the jury was discharged, and the trial court entered

judgment in favor of Gillespie.

        {¶ 12}      Roberts raises three assignments of error on appeal.    The first assignment

of error states:

                   The Jury Verdict of Zero Damages was Against the Manifest

        Weight of the Evidence.

        {¶ 13}      Roberts contends that the jury verdict was against the manifest weight of

the evidence because, at the very least, Roberts’s medical care the night of the accident and

soon thereafter should have been compensable. She also contends that the jury may have

improperly considered evidence of Roberts’s plastic surgeries and payments from collateral

sources in reaching its damage award.

        {¶ 14}      In the civil context, a judgment will not be reversed by a reviewing court as

being against the manifest weight of the evidence if there is some competent, credible

evidence going to all the essential elements of the case. C.E. Morris Co. v. Foley Constr.

Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus; State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.                This standard rests on the strong

presumption that the trial court, as the trier of fact, is in the best position to weigh the

evidence presented, assess the credibility of the witnesses, and make an informed factual
                                                                                              7

determination therefrom. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273 (1984).

       {¶ 15}    As discussed above, the evidence at trial included Roberts’s assertion that

she had suffered neck pain beginning immediately after the accident and for several months

thereafter, her husband’s corroboration of these claims, and a doctor’s opinion, based on the

timing of the alleged onset of the neck pain, that it was caused by the accident. Through

cross-examination, Gillespie attempted to refute Roberts’s assertion that there was a direct

correlation between the accident and her neck pain with evidence that she had previously

suffered from neck pain, that she had congenital and degenerative conditions that could have

caused the neck pain, and that her testimony may have exaggerated the extent of her pain

and her physical limitations as compared with past reports of her pain and activity levels.

       {¶ 16}    Gillespie presented evidence that the accident occurred at very low speed,

that there was minimal damage to the cars, and that all of Roberts’s pain may not have been

attributable to the 2008 accident. This evidence included Roberts’s own expert witness’s

recognition that Roberts suffered from osteoarthritis and other preexisting conditions

capable of causing neck and shoulder pain. But, despite Gillespie’s attempts to challenge

the assumptions underlying Dr. Smith’s opinion – namely, the lack of prior history of neck

pain or injury – Dr. Smith nonetheless expressed his medical opinion that Roberts had been

injured in the accident.    Roberts and her husband also testified that she had suffered

discomfort which she attributed to the car accident immediately after it occurred.

      {¶ 17}    In our view, based on the evidence presented in this case, the jury’s decision

on the issue of proximate causation could have gone either way. Both parties presented
                                                                                              8

competent, credible evidence which might have supported a favorable judgment. The jury’s

affirmative answer to the interrogatory asking whether Gillespie “directly or proximately

caused any injuries” to Roberts reflects its conclusion, which favored Roberts.             This

conclusion was not against the manifest weight of the evidence.

       {¶ 18}    Roberts argues that, in light of the jury’s finding in her favor on the issue of

proximate causation, the jury’s award of zero damages was against the manifest weight of the

evidence. She analogizes her case to Minney v. Guthrie, 2d Dist. Greene No. 88-CA-37,

1989 WL 2182 (Jan. 12, 1989) and Walker v. Holland, 117 Ohio App.3d 775, 691 N.E.2d

719 (2d Dist. 1997) in support of her argument that she “should be compensated for (at least)

her treatment at the Urgent Care and follow up care.”

       {¶ 19}    Minney involved a rear-end collision resulting in neck pain and a plaintiff

with a history of neck injuries. At trial, despite having been informed of “other possible

causative factors,” the medical expert for the defense agreed with the plaintiff’s expert that

the plaintiff had sustained a neck injury in the accident, and both experts agreed that the

plaintiff’s trip to the emergency room and her follow-up care were reasonable following such

an injury. Notwithstanding this testimony, the jury concluded that the defendant had not

proximately caused the injuries sustained by the plaintiff.       The trial court granted the

plaintiff’s motion for a new trial, and the defendants appealed. We affirmed, stating that,

“[a]t a minimum, the manifest weight of the evidence support[ed] an award of damages for

Minney’s emergency room care immediately following the collision.” Id. at *4.

       {¶ 20}    Walker involved a low-speed, head-on collision. The plaintiff, who was

two months pregnant at the time, testified that the impact “pressed her forward against the
                                                                                           9

seat belt and ‘slammed’ her against the seat.”      She was transported to a hospital and

complained of pelvic cramping and neck soreness; she suffered cramping and some bleeding

for the next few weeks, and she miscarried about six weeks after the accident. The trial

court directed a verdict on the issue of negligence, but submitted the issues of causation and

damages related to both the neck injury and the miscarriage to a jury. The jury returned a

verdict for the defendant, and the trial court entered judgment accordingly. On appeal, the

plaintiff argued that the jury’s verdict was against the manifest weight of the evidence and

that she was entitled to damages “at least equal to Walker’s emergency room bills.” Id. at

791. In considering these arguments, we stated:

       After reviewing the record, we find competent, credible evidence supporting a

       finding that Holland did not cause Mrs. Walker’s physical ailments or her

       miscarriage. * * * [T]he record contains testimony that Mrs. Walker had

       experienced, and received treatment for, neck and back problems since 1983.

       Mrs. Walker also testified that those problems “flared up” following a 1991

       automobile accident and troubled her intermittently thereafter. In fact, the

       record reveals that Mrs. Walker received treatment from Richard Teeters, a

       Dayton chiropractor, just ten days before her * * * automobile accident with

       Holland.

We agreed, however, with the plaintiff’s argument that, even if the defendant’s negligence

proximately caused no objective injuries, the plaintiff was entitled to compensation for the

medical expenses she incurred immediately after the accident. “[I]t cannot be disputed that

Holland’s negligence caused Mrs. Walker to undergo an emergency room examination and an
                                                                                            10

ultrasound test. In light of Mrs. Walker’s pregnancy and the substantial damage done to her

vehicle in the head-on accident, we agree that she received appropriate medical treatment.

Common sense would dictate, at a minimum, that a pregnant woman should undergo such

testing.” Id. at 793.

       {¶ 21} Minney and Walker support Roberts’s argument that, in light of the jury

conclusion that she had suffered an injury as a proximate result of the accident, she was

entitled to some amount of damages for the treatment she sought and care she received that

was related to that injury.

       {¶ 22}     Gillespie argues that Roberts’s case is more analogous to McBride v. Quebe,

 2d Dist. Montgomery No. 21310, 2006-Ohio-5128, than to Minney or Walker. McBride

also involved a traffic accident in which the plaintiff’s negligence was not disputed; however,

evidence was presented that the defendant had pre-existing injuries similar to those she

claimed had been caused in the accident. The jury returned a verdict for the defense.       On

appeal, we noted that the plaintiff’s trial testimony about her medical history had differed

dramatically from the history reflected in her medical records, and that, notwithstanding the

plaintiff’s medical history, her experts testified that “all” of her medical problems were

attributable to the accident. We concluded that the jury verdict for the defense had been

supported by competent, credible evidence, that the judgment was not against the manifest

weight of the evidence, and that the trial court had not abused its discretion in overruling the

plaintiff’s motion for a new trial. Id. at ¶ 45.

       {¶ 23}     Only the general verdict is discussed in McBride, but it appears that the

jury’s verdict was based on a finding that the plaintiff’s injuries were not proximately caused
                                                                                                11

by the accident. The jury in McBride never reached the issue of damages. In Roberts’s

case, on the other hand, we are confronted with a jury interrogatory and a verdict form that

expressly state a finding of proximate causation. We do not find McBride to be analogous.

       {¶ 24}     Gillespie argues that Roberts’s argument essentially challenges the

inconsistencies between the jury’s interrogatories, and that such an argument is waived unless

the party raises it before the jury is discharged. See O’Connell v. Chesapeake & Ohio RR.

Co., 58 Ohio St.3d 226, 229, 569 N.E.2d 889 (1991). This rule recognizes that a court can

only exercise the full range of available remedies while the jury is still impaneled.

Shoemaker v. Crawford, 78 Ohio App.3d 53, 61, 603 N.E.2d 1114 (10th Dist. 1991).

Although we acknowledge and abide by this rule, the inconsistency in Roberts’s case was

also contained in the verdict form itself, which stated that the jury found in favor of the

plaintiff but awarded no damages. While normally the failure to object prior to the discharge

of a jury results in the waiver of any alleged error, this is not the case in the event the error in

question amounts to plain error. O’Connell at 229; Garaux v. Ott, 5th Dist. Stark No. 2009

CA 00183, 2010-Ohio- 2044, ¶ 26. Verdict forms that appear to be internally inconsistent can

reflect such plain error. Garaux (holding that, in light of jury’s finding of negligence and

proximate causation and its damage award for medical expenses and lost wages or income,

its refusal to award any money for pain and suffering and/or inability to perform usual

activities and for future damages was against the manifest weight of the evidence.)

        {¶ 25}    The jury found that the accident had directly or proximately caused Roberts

some injury. Therefore, its failure to award some amount of damages was against the

manifest weight of the evidence.
                                                                                            12

       {¶ 26}    The first assignment of error is sustained.

       {¶ 27}    The second and third assignments of error state:

                The Trial Court Erred in Allowing Inadmissible Hearsay and

       Unauthenticated Documents into Evidence.

                The Trial Court Erred in Allowing Defendants’s Exhibit P into

       Evidence without Expert Witness Testimony.

       {¶ 28}    In her second assignment of error, Roberts argues that the trial court erred in

permitting the defense to introduce a summary of medical bills (Exhibit P); she claims it was

based on inadmissible hearsay. In her third assignment, she claims that Exhibit P should

have been excluded because no expert testified that the “amount accepted by the medical

providers was the reasonable value of the medical expenses incurred.”

       {¶ 29}    Given our disposition of the first assignment, any error in admitting exhibits

related to the amount of damages is moot. Thus, we will not address these arguments.

App.R. 12(A)(1)(c).

       {¶ 30}    The judgment of the trial court will be reversed, and the matter will be

remanded to the trial court for further proceedings.

                                          ..........

FAIN, P.J., concurs.

DONOVAN, J., dissenting:

       {¶ 31}    I disagree. In my view, any error was waived by a lack of objection to the

verdict. The instant case does not present one of those rare situations in which the plain

error doctrine must be invoked in order to prevent a manifest miscarriage of justice. Also, I
                                                                                           13

believe that the majority’s reliance on O’Connell is misplaced.          The O’Connell case

involved an issue of constitutional infirmity. O’Connell was a comparative negligence case,

which distinguished the “same juror” rule vs. “any majority” rule. In O’Connell, a verdict of

not less than three-fourths of the jury had not been rendered, thus constituting a violation of

Ohio Constitution, Section 5, Article I and Civ.R. 48. No such infirmity is established

herein.

          {¶ 32}   Furthermore, there was competent, credible evidence indicating that this was

only a very minor accident with minimal damage to plaintiff’s vehicle upon which the jury

could have questioned the authenticity of plaintiff’s claimed injuries and the necessity and

reasonableness of any treatment.       Given the lack of objective findings of the injuries

claimed, the doubt cast on plaintiff’s credibility and evidence that she was exaggerating her

injuries, we should presume the jury findings are correct and not against the manifest weight

of the evidence. I would affirm.

                                          ..........

Copies mailed to:

John A. Smalley
Steven O. Dean
Hon. Stephen A. Wolaver
