[Cite as Marzullo v. J.D. Pavement Maintenance, 2011-Ohio-6261.]




         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 96221




                      RUTHIE MARZULLO, ET AL.
                                                         PLAINTIFFS-APPELLEES/
                                                         CROSS-APPELLANTS

                                                   vs.

                 J.D. PAVEMENT MAINTENANCE
                      D.B.A. UNITED PAVING
                                                         DEFENDANT-APPELLANT/
                                                         CROSS-APPELLEE




                         JUDGMENT:
                     AFFIRMED IN PART,
               REVERSED IN PART AND REMANDED


                                      Civil Appeal from the
                Cuyahoga County Court of Common Pleas
                        Case No. CV-695025

     BEFORE:     Keough, J., Kilbane, A.J., and Jones, J.

     RELEASED AND JOURNALIZED: December 8, 2011

ATTORNEY FOR APPELLANT/CROSS-APPELLEE

John F. Gannon
55 Public Square
Suite 930
Cleveland, OH 44113

ATTORNEYS FOR APPELLEES/CROSS-APPELLANTS

Todd Petersen
Susan E. Petersen
Petersen & Petersen
428 South Street
Chardon, OH 44024




KATHLEEN ANN KEOUGH, J.:

     {¶ 1} Defendant-appellant/cross-appellee, J.D. Pavement Maintenance

d.b.a. United Paving (“appellant”), appeals the common pleas court’s
judgment        rendered    after    a     jury      verdict      in   favor     of

plaintiffs-appellees/cross-appellants,   Ruthie     and   Frank    Marzullo    (the

“Marzullos”).     The Marzullos also appeal the jury’s verdict.          For the

following reasons, we affirm in part, reverse in part, and remand for a

hearing on the issue of future economic damages.

      {¶ 2} In 2007, the Marzullos filed a lawsuit alleging that appellant

improperly applied seal coating on the parking lot of Ruthie’s employer

causing her to fall on October 24, 2005.          After extensive and exhaustive

discovery, the case was tried before a jury in November 2010.            The jury

returned a general verdict of $300,000 in favor of the Marzullos and answered

interrogatories apportioning $120,000 for past damages, $180,000 for future

economic damages, $0 for future non-economic damages, and $0 for Frank’s

loss of consortium claim.

      {¶ 3} Both parties appeal the jury’s verdict; appellant challenges the

$180,000 award for future economic damages and the Marzullos challenge the

zero verdicts for future non-economic damages and loss of consortium.

                            APPELLANT’S APPEAL

      {¶ 4} In its appeal, appellant raises three assignments of error in which

it argues that the trial court abused its discretion regarding the testimony of

two of the Marzullos’ experts, thus affecting their substantive rights, and that

the award of future economic damages was based on speculation.
                           I. Economist Testimony

        {¶ 5} Appellant argues in its first assignment of error that the trial

court committed prejudicial error in permitting Dr. John Burke, the

Marzullos’ economist expert, to testify regarding future loss of earnings and

the value of in-kind services when such testimony was not based upon facts

perceived by him or facts admitted into evidence during trial, thus violating

Evid.R. 703.

        {¶ 6} It is within the discretion of the trial court to determine the

admissibility of opinion testimony of experts. Evid.R. 104(A); Valentine v.

Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶9. Absent a

finding of an abuse of such discretion, i.e., that the trial court’s decision was

unreasonable, arbitrary, or unconscionable, a reviewing court may not disturb

a trial court’s determination as to the admissibility of expert opinion

testimony. See Columbus v. Taylor (1988), 39 Ohio St.3d 162, 165, 529 N.E.2d

1382.     Further, a trial court’s discretion in admitting expert opinion

testimony concerning future damages requires that the court “keep such

extrapolations within reasonable bounds and insure that they conform to the

evidence.” Guhn v. Bd. of Edn., Clyde-Green Springs School Dist. (Sept. 20,

1991), Sandusky App. No. S-90-5, quoting Bach v. Penn Cent. Transp. Co.

(1974), 502 F.2d 1117, 1122; see, also, Drayton v. Jiffee Chem. Corp. (1978),

591 F.2d 352, 362.
      {¶ 7} Expert testimony is admissible if it will assist the trier of fact to

understand the evidence or determine an issue of fact. Evid.R. 702; Lee v.

Baldwin (1987), 35 Ohio App.3d 47, 49, 519 N.E.2d 662. The facts or data

upon which an expert bases an opinion may be those perceived by the expert

or admitted into evidence at the hearing. Evid.R. 703; State v. Solomon

(1991), 59 Ohio St.3d 124, 126, 570 N.E.2d 1118.           Moreover, the Ohio

Supreme Court has held that the hypothesis upon which an expert witness is

asked to state his opinion must be based upon facts within the personal

knowledge of the witness or upon facts shown by other evidence. Burens v.

Indus. Comm. (1955), 162 Ohio St. 549, 124 N.E.2d 724; Kraner v. Coastal

Tank Lines (1971), 26 Ohio St.2d 59, 269 N.E.2d 43.             Expert opinion

testimony based upon hypothetical situations not introduced into evidence

may be properly excluded. State v. Schell (1984), 13 Ohio App.3d 313, 318,

469 N.E.2d 999.

      {¶ 8} In this case, appellant contends that Dr. Burke’s expert opinion

and report was based solely upon the assumed fact that Ruthie was disabled

and unable to work, which was neither a fact testified to, evidenced at trial,

or within his personal knowledge. Appellant objected in its motion in limine

and prior to Dr. Burke testifying at trial, arguing that Dr. Burke’s opinion as

to future economic loss, i.e. loss of wages and in-kind services, lacked

foundation because whether Ruthie was able to work or disabled was outside
the expertise of Dr. Burke. Appellant argues further that Ruthie’s medical

experts did not testify at deposition or at trial that her alleged injuries

prevented her from working, performing daily household activities, or that

she was disabled.

      {¶ 9} At trial, Dr. Burke admitted (1) he is not a medical doctor; thus,

he formed no opinion as to whether Ruthie is disabled; (2) his expert report

and opinion were based on the assumption that Ruthie was disabled and

would remain unemployed for the duration of her life expectancy; and (3) he

did not review any of Ruthie’s medical records in forming his opinion and

report.

      {¶ 10} In overruling appellant’s motion and objection, the trial court

stated that:

      {¶ 11} “I am going to allow Dr. Burke to testify.      I think both, Mr.

Gannon, your objections are noted for the record, as it relates to Dr. Burke’s

conclusion concerning Mrs. Marzullo’s potential employment, his own

analyses that he’s created, and certainly we’re going to hear about it.

      {¶ 12} “Nonetheless, these really are questions of fact to be decided by

the Jury. And I think that there is enough evidence that suggests that Mrs.

Marzullo perhaps will not be employed in the future, because of her alleged

injuries at this time.
      {¶ 13} “So, at this point, I think that’s a question for the Jury to make a

determination on. So, I’m going to allow Dr. Burke to testify to aid them in

making that conclusion. If that’s what they so choose to make.”

      {¶ 14} When the trial court made its ruling, the jury had heard only

laywitness testimony from Ruthie and her co-workers and expert testimony

from Ruthie’s psychologist, Dr. Shapiro, concerning the impact of Ruthie’s

alleged physical injuries on her mental health.      The trial court based its

ruling on the presumption that the jury should determine whether Ruthie

would be able to be employed in the future due to her alleged injuries.

      {¶ 15} Ruthie argues on appeal that competent and credible medical

evidence was presented because her physicians testified that she would need

further treatment and possibly a hip replacement.           Dr. Wael Barsoum

testified that Ruthie had two options regarding future medical treatment: (1)

joint preservation or (2) total hip replacement. However, that was the extent

of Dr. Barsoum’s testimony regarding future treatment. He did not testify

that these future procedures or any recuperation period would prevent Ruthie

from working or performing daily household activities. Ruthie contends that

a jury “can infer from common knowledge that a period of recuperation and

disability will be necessary after [a] surgical procedure.” This argument is

contrary to law.
      {¶ 16} Rather, we find that the trial court’s decision allowing Dr.

Burke’s testimony was unreasonable because it left the jury to make an

expert conclusion regarding whether Ruthie’s condition impaired her ability

to work.    See Ratliff v. Colasurd (Apr. 27, 1999), Franklin App. No.

98AP-504 (plaintiff’s testimony alone was insufficient to demonstrate the

extent of his inability to work); Williams v. Noden (Feb. 15, 1995), Summit

App. No. 16857 (common knowledge and experience does not dictate if, when,

and to what extent a subjective injury will diminish a person’s ability to work

in the future; “when a physician cannot reach a conclusion without the aid of

scientific tests, a jury certainly cannot do the same without an expert.”).

Typically, it is the duty of the jury to assess the credibility and evaluate facts

upon which the expert based his opinion.          See McKay Machine Co. v.

Rodman (1967), 11 Ohio St.2d 77, 82, 228 N.E.2d 304. However, in this case,

Dr. Burke did not base his opinion on any facts testified to, admitted into

evidence, or perceived, but only on an assumption.

      {¶ 17} “An award of future damages for future wage loss raises two

independent evidentiary concerns: (1) whether a plaintiff offered sufficient

proof of future impairment; and (2) whether a plaintiff offered sufficient

evidence of the extent of prospective damages flowing from the impairment.”

Power v. Kirkpatrick (July 20, 2000), Franklin App. No. 99AP-1026.             To

recover future earnings, a plaintiff must prove by sufficient evidence that she
is reasonably certain to incur such damages in the future.           Id., citing

Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d 421, 644 N.E.2d 298.

“Therefore, the showing of future loss of earnings in a personal injury case

involves demonstrating with reasonable certainty that an individual’s injury

or condition prevents that individual from attaining his or her pre-injury

wage.”     Power, supra.   The general rule is that impairment of earning

capacity may only be considered as an element of damages where there is

evidence of the extent of such loss. Hanna v. Stoll (1925), 112 Ohio St. 344,

354, 147 N.E. 339.

      {¶ 18} In this case, neither of Ruthie’s medical experts or her

psychological expert testified with any reasonable degree of certainty that

Ruthie’s injury prevented her from obtaining her pre-injury wage or from

performing daily activities.

      {¶ 19} In Jordan v. Elex, Inc. (1992), 82 Ohio App.3d 222, 611 N.E.2d

852, the First District upheld the trial court’s exclusion of testimony from two

of the plaintiff’s experts, one an economist. The court held that the trial

court properly excluded the economist’s testimony regarding loss of household

services and future earnings because the plaintiff failed to produce any

competent medical testimony supporting the economist’s opinions.         Id. at

230-231.
      {¶ 20} In Jordan, the plaintiff lost two of her toes.   The court held that

although the injury was objective for purposes of construing pain and

suffering damages, the injury was subjective as it related to future earnings

and lost household services.         “There is nothing within the common

knowledge and experience of jurors to enable them to conclude that because

[the plaintiff] lost two toes she is, for example, fifty percent disabled as far as

being able to perform household chores. Nor can the jury say whether such an

injury will require a worker to engage solely in sedentary work in the future.

Without competent medical testimony, the necessary causal relationship

between [plaintiff’s] injury and her damages cannot be shown and any award

would be speculative.” Id. at 231.

      {¶ 21} Much like in Jordan, Dr. Burke’s testimony was not based on any

medical testimony supporting his assumption that Ruthie’s injuries rendered

her disabled or that she would be unemployed for the duration of her life

expectancy and thereby prevented her from attaining her pre-injury wage.

No medical testimony was offered to support Dr. Burke’s expert report and

conclusions. There is nothing within the common knowledge and experience

of the jurors to enable them to conclude that because Ruthie suffered injury to

her hip, the injury would prevent her from attaining her pre-injury wage.

      {¶ 22} Accordingly, we find that the trial court abused its discretion in

allowing Dr. Burke to testify regarding future loss of earnings and in-kind
services because his expert report and opinion was not based on competent

and credible medical testimony, but rather on an assumption. Appellant’s

first assignment of error is sustained.

                   II. Award of Future Economic Damages

      {¶ 23} In its second assignment of error, appellant contends that trial

court erred in submitting the issue of future economic damages to the jury.

Appellant raises two issues relating to this assignment of error.

      {¶ 24} In its first issue, appellant claims that the trial court erred in

submitting the issue of future economic damages to the jury when no expert

testimony was presented to provide a foundation for future loss of earnings,

loss of in-kind services, or future damages of any kind.       The majority of

appellant’s argument is that Dr. Burke’s testimony was in error and without

that testimony, no evidence existed supporting the trial court’s decision to

submit the issue of future economic damages to the jury.

      {¶ 25} The jury’s verdict form and interrogatories for “future economic

damages” included lost wages, salaries, or other compensation, and also

included “all expenditures for medical care or treatment, rehabilitation

services, or other care, treatment, services, products or accommodations” or

“any other expenditures incurred” as a result of Ruthie’s claim. Therefore,

the jury could award “future economic damages” based on one or all three

categories provided.
      {¶ 26} Accordingly, even without Dr. Burke’s testimony, the trial court

did not abuse its discretion in submitting the issue of future economic

damages to the jury because the verdict form did not require the jury to

delineate, apportion, or indicate to which category of “future economic

damages” the award would be in reference.

      {¶ 27} Contrary to appellant’s statement that the award of future

damages could not have been for future medical expenses because no

physician testified as to future medical expense, we find that Ruthie’s

treating psychologist, Dr. Shapiro, testified as to further treatment. The

jury heard evidence from Dr. Shapiro that Ruthie would be under his care for

a minium of one to two more years, if she was physically better and employed.

 Dr. Shapiro testified that he sees Ruthie weekly at $125 per session.

Accordingly, some competent and credible evidence of further medical

expenses were presented; therefore, the trial court did not abuse its discretion

in submitting the issue of future economic damages to the jury.

      {¶ 28} Appellant raises as its second issue that the jury award of

$180,000 for future economic damages was based on speculation. We agree.

      {¶ 29} “Judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed by a

reviewing court as being against the manifest weight of the evidence.” C.E.
Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578,

syllabus.

      {¶ 30} In order to recover future damages, a plaintiff must prove by

sufficient evidence that she is reasonably certain to incur such damages in

the future. Power, citing Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio

St.3d 421, 425, 644 N.E.2d 298.

      {¶ 31} A jury is not permitted to speculate as to damages for future

medical expenses. In Powell v. Montgomery (1971), 27 Ohio App.2d 112, 272

N.E.2d 906, the Fourth District recognized: “‘The mere fact alone that there

may be some permanency to the injury is not enough.             This court is

committed to the proposition that the jury cannot be allowed to speculate or

guess in making allowance for future medical expenses; there must be some

data furnished the jury upon which it might reasonably estimate the amount

to be allowed for this item. Of course, at best it is a mere estimate and

cannot be determined with accuracy, but there must be some evidence to

authorize the estimate. The jury cannot be left to guess the probable nature of

future treatment or the probable expense thereof.’” Id. at 120-121 (internal

citations omitted), adopting and quoting Henderson v. Breesman, 77 Ariz.

256, 259, 269 P.2d 1059.

      {¶ 32} “The members of this court cannot determine from the evidence

without speculation, and neither could the jury, whether plaintiff’s injury
would require medical or hospital treatment in the future, and, if so, at what

cost, nor can it be determined from the evidence whether plaintiff will

continue to suffer pain, as he has from the date of the accident to trial, in the

future and, if so, for what period of time it will continue.” Powell at 121.

      {¶ 33} Thus, in awarding prospective damages, juries are confined to

those damages reasonably certain to follow from the claimed injury. In Tully

v. Mahoning Express Co. (1954), 161 Ohio St. 457, 119 N.E.2d 831, the Ohio

Supreme Court held that evidence as to the extent of further medical

treatment, future hospitalization, and estimated expenses, and the estimated

time of a plaintiff’s future unemployment as a result of such treatment and

hospitalization can only be given by an expert witness. This rule was later

expanded by the Ohio Supreme Court in Day v. Gulley (1963), 175 Ohio St.

83, 191 N.E.2d 737, wherein the Court held that expert evidence as to future

pain and suffering, permanency of injuries, or lasting impairment of health is

required where the injury is subjective in character.

      {¶ 34} An injury is subjective when the injury alone is insufficient to

allow the jury to conclude with reasonable certainty that a plaintiff will suffer

future damages. See, e.g., Day. Accordingly, expert testimony on the extent

of a plaintiff’s subjective injury is necessary for an award of prospective

damages. Day at 86, and Powell at 119. If the injury is an objective injury,

i.e., loss of an arm or leg, the injury itself provides the “evidentiary basis for
the jury to conclude with reasonable certainty that future damages, such as

medical expenses will probably result.” Powell at 119.

      {¶ 35} We find the alleged conditions, i.e. hip injury, piriformis

syndrome, torn labrum, watershed lesion, and psychological conditions

suffered by Ruthie are subjective in nature; therefore, she was required to

present expert testimony that she would suffer future damages.              Power,

supra citing Williams, supra (holding that the jury could not conclude, based

on common knowledge and experience, that a herniated disc would cause the

disability and prospective damages claimed by the plaintiff; therefore, the

plaintiff was required to submit expert testimony evidencing such disability

and prospective claims).

      {¶ 36} Ruthie argues that the testimony from her, her husband,

coworkers, and medical experts showed that she “suffered significant pain as

a result of her hip injury, and common sense that hip replacement surgery

would necessitate a period of rehabilitation and recuperation was sufficient to

allow the jury to infer that [she] would incur lost wages in the future.”

      {¶ 37} In support of her argument, Ruthie cites Union v. Clevenger (July

7, 1988), Cuyahoga App. No. 54030.           In Union, one of the plaintiff’s

physicians testified regarding the extent and permanency of plaintiff’s

injuries, future medical procedures, and their associated costs, and that

during the period of recuperation she would be disabled. This court found
that this testimony was “competent credible evidence of the [plaintiff’s] future

damages reasonably certain to follow the injury complained of by the

[plaintiff].”

       {¶ 38} However, and unlike the testimony in Union, none of Ruthie’s

medical experts except Dr. Shapiro testified regarding the permanency of her

injuries, the costs associated with any future medical procedures Ruthie may

undergo, or whether during the period of recuperation she would be disabled.

No evidence was elicited or given to validate or even hint at the costs

associated with any future medical procedures or treatment; thus any amount

apportioned or determined by the jury would be based purely on conjecture or

speculation, which is contrary to law.

       {¶ 39} Moreover, even construing the evidence in favor of Ruthie, we

cannot say that the $180,000 jury verdict was based on competent and

credible evidence. Having previously found that the trial court abused its

discretion in allowing Dr. Burke to testify regarding future earnings and

in-kind services, the only competent evidence the jury had before it was

limited testimony that Dr. Shapiro treats Ruthie for psychological issues once

a week at approximately $125 a visit. When questioned as to how long he

would have to see Ruthie, his answer was also based on speculation of one to

two years if she was medically better and employed, but longer if not.

Considering this testimony alone, we cannot say that competent and credible
evidence was presented to support the jury verdict for future economic

damages of     $180,000, when each visit to Dr. Shapiro is only $125.

Accordingly, the jury’s award of $180,000 was based on speculation.

      {¶ 40} “As a general rule, once a plaintiff establishes a right to damages,

that right will not be denied because damages cannot be calculated with

mathematical certainty. * * * However, damages will not be awarded based

on mere speculation and conjecture.* * * The plaintiff must show entitlement

to damages in an amount ascertainable with reasonable certainty. * * * In

assessing prospective damages, the trier of fact can only consider damages

which are reasonably certain to follow the injury complained of.” (Citations

omitted.) Barker v. Sundberg (Oct. 25, 1993), Ashtabula App. No. 92-A-1756.

 Without expert testimony on the future course of medical treatment, a jury

is not permitted to simply infer from the expense of past treatment an

amount of damages for future treatment. Scott v. Condo, Hamilton App. No.

C-010123, 2002-Ohio-2148.      Restricting jury considerations as to future

damages to that which the evidence discloses are reasonably certain to result

is to prevent conjecture and speculative with respect to such items. Powell

at 116.

      {¶ 41} While we do not discount Ruthie’s injury, the evidence in the

record before us does not support a jury verdict of $180,000 for future

economic damages. However, because some competent and credible evidence
existed allowing the jury to consider the issue of future economic damages, it

was not error to submit the issue to the jury. Accordingly, we remand the

matter to the trial court to conduct a hearing on future economic damages.

      {¶ 42} Appellant’s second assignment of error is overruled in part and

sustained in part.

                        III. Expert Report Disclosure

      {¶ 43} In its final assignment of error, appellant contends that the trial

court committed prejudicial error in permitting Dr. Shapiro to testify to

opinions not disclosed in his report in violation of Civ.R. 26(B)(5)(b) and

Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County, General

Division.

      {¶ 44} Appellant asserts that Dr. Shapiro’s testimony should have been

limited to opinions contained in his report dated December 11, 2009.

Instead, the trial court allowed Dr. Shapiro to testify regarding treatment he

provided to Ruthie from May 2010 until October 2010.

      {¶ 45} As discussed above, the introduction of evidence at trial falls

within the sound discretion of the trial court. Generally, expert opinions must

be disclosed in an expert report prior to trial and elicited from the expert at

trial. Loc.R. 21.1. This is to prevent surprise at trial and to give the opposing

party an opportunity to properly cross-examine the expert. Loc.R. 21.1

provides for the exchange of expert reports prior to trial, and Civ.R. 26(E)
imposes a continuing duty to update those reports should the expected scope

or opinion of the expert testimony change. Vaught v. Cleveland Clinic Found.,

98 Ohio St.3d 485, 2003-Ohio-2181, 787 N.E.2d 631, ¶14-21.

      {¶ 46} The record before this court shows that Dr. Shapiro’s expert

report was properly exchanged between the parties prior to trial. This fact is

not disputed. However, we also find that the Marzullos properly complied

with their duty to update the report under Civ.R. 26(E). The updates appear

to be additional medical records regarding treatment that occurred between

the time of the initial exchange of reports and the date of trial. Appellant

has failed to demonstrate how the supplemental medical records prejudiced

its case, when it appears that Dr. Shapiro at all times was going to testify

regarding the psychological injuries Ruthie allegedly sustained as a result of

the fall.

      {¶ 47} Accordingly, we find that the trial court’s decision to allow Dr.

Shapiro to testify regarding those updated reports was not an abuse of

discretion.

      {¶ 48} Accordingly, appellant’s third assignment of error is overruled.

                       MARZULLOS’ CROSS-APPEAL

                      I. Future Non-economic Damages

      {¶ 49} The Marzullos contend in their first assignment of error that the

jury’s failure to award future damages for pain and suffering is contrary to
law and against the manifest weight of the evidence. Specifically, they argue

that pain and suffering are presumed in the law and do not need to be

specifically plead or proven to be recoverable; and therefore, because they

proved that Ruthie’s injury was caused by appellant’s negligence, the jury’s

failure to award pain and suffering damages was contrary to law.

      {¶ 50} “Judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed by a

reviewing court as being against the manifest weight of the evidence.” C.E.

Morris, supra.

      {¶ 51} The Marzullos direct this court to consider the testimony of

Ruthie’s treating physicians, who testified that additional surgery and

rehabilitation is needed in an effort to reduce or eliminate her pain. The

Marzullos argue that “in either event, whether she chooses to have surgery

and a period of recuperation or whether Ruthie does nothing, she will

inevitably endure pain and suffering as a result.”

      {¶ 52} The Marzullos cite Hughes v. Koop (Feb. 18, 1997), Clermont App.

No. CA96-10-081, and Ortman v. Lumbert (Apr. 14, 1997), Madison App. No.

CA96-06-023, for the proposition that a new trial should be ordered where a

jury fails to award any damages for a plaintiff’s uncontroverted pain and

suffering. However, in both cases cited, the jury did not award any damages

for pain and suffering, past or future, when the evidence showed that
substantial injury was sustained.     In this case, the jury awarded the

Marzullos past damages, which included damages for past pain and suffering.

Accordingly, the Marzullos’ reliance on Hughes and Ortman are misplaced.

     {¶ 53} The Ohio Supreme Court in Day held that just as expert medical

testimony is necessary to sustain a verdict for future medical expense and

future loss of wages when the injury is subjective, the same expert testimony

rule applies with regard to the permanency of an injury and the assessment

of damages for pain, suffering, and disability as a result of such permanency

of the injury. Day at 87, citing Brush v. E. Motor Dispatch, Inc. (App.1950),

61 Ohio Law Abs. 219, 104 N.E.2d 700; see, also, McCoy v. Gilbert, 110 Ohio

App. 453, 169 N.E.2d 624. Therefore in a case involving a subjective injury,

expert medical testimony is needed to prove future pain and suffering or

permanency. Roberts v. Mut. Mfg. & Supply Co. (1984), 16 Ohio App.3d 324,

475 N.E.2d 797. The probability of future pain and suffering must be

demonstrated by expert testimony when the nature of the injury is not

obvious. Corwin v. St. Anthony Med. Ctr. (1992), 80 Ohio App.3d 836, 841,

610 N.E.2d 1155, citing Hollobaugh v. D & V Trucking, Mahoning App. No.

99 CA 303, 2001-Ohio-3265.

     {¶ 54} Accordingly, an award for future damages for pain and suffering

must be supported by expert testimony and evidence. In this case, although

there was some testimony that Ruthie was still in pain due to the fall and
would remain in pain until some additional medical procedures were

performed, no evidence was presented as to the severity or duration of any of

the alleged future pain.     Moreover, the jury also heard testimony from

competing medical experts regarding Ruthie’s injuries and the alleged need

for further treatment and could choose to believe or disbelieve some or all of

this testimony. In fact, Dr. Kim Stearns, appellant’s expert, testified that

the injuries Ruthie suffered as a result of the fall in 2005 have healed.

      {¶ 55} It is well established that when there is a conflict in the

testimony on any subject, the question is one for the trier of fact. Ayers v.

Ishler, Delaware App. No. 11 CAE 01 0001, 2011-Ohio-4272, ¶60, citing

Barnett v. Hills (1947), 79 N.E.2d 691, 50 Ohio Law Abs. 208. As the trier of

fact, the jury was free to accept or reject any or all of appellant’s evidence

relating to damages. Id., citing Peck v. Ryan (June 30, 1988), Butler App.

No. CA87-09-120.     Morever, even assuming that the Marzullos presented

undisputed evidence, the jury had the inherent power to reject the evidence

presented. Id., citing Lanham v. Wilson (Aug. 12, 1991), Madison App. No.

CA90-11-024. A jury is free to reject any evidence and is not required to

accept evidence simply because it is uncontroverted, unimpeached, or

unchallenged. Id., citing Ace Steel Baling, Inc. v. Porterfield (1969), 19 Ohio

St.2d 137, 138, 249 N.E.2d 892.
      {¶ 56} Finally, there was testimony upon which the jury could have

inferred that some of the injuries complained of were either caused by a

subsequent fall or were pre-existing. The jury heard testimony that Ruthie

continued to work in her same capacity for approximately four years after her

fall in 2005; thus, the jury could have determined that the pain and suffering

was not as extensive as Ruthie claimed.

      {¶ 57} Accordingly, we find there was some competent and credible

evidence supporting the jury’s verdict for non-economic damages.           The

Marzullos’ first assignment of error is overruled.

                            II. Loss of Consortium

      {¶ 58} In their second assignment of error, the Marzullos contend that

the jury’s failure to award damages to Frank Marzullo for loss of consortium

is contrary to law and against the manifest weight of the evidence.

      {¶ 59} In order to prove a loss of consortium claim, the plaintiffs first

must establish the underlying action. Although a separate cause of action, a

consortium claim is a derivative claim in the sense that it can only be

maintained if the primary negligence action is proven. Bowen v. Kil-Kare,

Inc. (1992), 63 Ohio St.3d 84, 92-93, 585 N.E.2d 384. Once that is shown, the

complaining spouse must show damages proximately caused by the negligent

act, much as the primary plaintiff must prove damages.          Id.   “‘Loss of

spousal consortium is generally defined as a deprivation of society, services,
sexual relations, and conjugal affection, which includes companionship,

comfort, love and solace.’” Id. at 92, quoting Clouston v. Remlinger Oldsmobile

Cadillac, Inc. (1970), 22 Ohio St.2d 65, 72, 258 N.E.2d 230.

      {¶ 60} As previously addressed in the Marzullos’ first assignment of

error, the jury in this case was free to believe all or none of the Marzullos’

evidence on this claim, even if uncontroverted.       See Ayers, supra.   Frank

and Ruthie both testified that her injuries prevented her from doing daily

activities. However, the jury heard evidence from competing medical experts

regarding the nature of Ruthie’s injuries, and Dr. Stearns opined that the

injuries she sustained as a result of her fall in October 2005 did not render

her disabled.

      {¶ 61} Accordingly, we find there was some competent and credible

evidence supporting the jury’s verdict regarding loss of consortium.       The

Marzullos’ second assignment of error is overruled.

      {¶ 62} Judgment affirmed in part, reversed in part, and case remanded

for a damages hearing on the issue of future economic damages.

      It is ordered that parties share equally the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.
     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, J., CONCUR
