[Cite as Shadle v. Morris, 2013-Ohio-906.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


THOMAS J. SHADLE, ET AL.                      :     JUDGES:
                                              :
                                              :     Hon. Patricia A. Delaney, P.J.
       Plaintiffs-Appellants                  :     Hon. W. Scott Gwin, J.
                                              :     Hon. John W. Wise, J.
-vs-                                          :
                                              :     Case No. 2012CA00073
ANTHONY M. MORRIS                             :
                                              :
                                              :
       Defendant-Appellee                     :     OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Stark County Court of
                                                  Common Pleas, Case No. 2011CV01826



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           February 25, 2013




APPEARANCES:

For Appellants:                                     For Appellee:

MEGAN J. FRANTZ OLDHAM                              MATTHEW P. MULLEN
220 Market Ave. S.                                  158 North Broadway
Eighth Floor                                        New Philadelphia, OH 44663
Canton, OH 44702



Delaney, P.J.
      {¶1} Plaintiffs-Appellants Thomas and Kathleen Shadle appeal the trial court’s

decision to deny their motion for directed verdict and post-dispositive motion for a new

trial or judgment notwithstanding the verdict in this personal injury action. Defendant-

Appellee is Anthony M. Morris.

                       FACTS AND PROCEDURAL HISTORY

      {¶2} On June 13, 2011, the Shadles filed a complaint against Morris in the

Stark County Court of Common Pleas.         The complaint alleged Morris negligently

caused an automobile collision in which they were involved, proximately caused

Thomas Shadle to suffer a herniated disc, and caused Kathleen Shadle loss of

consortium.

      {¶3} The matter went to a jury trial. At trial, the parties stipulated to Morris’s

negligence in causing the automobile accident. The matter in dispute was whether

Morris’s negligence was the proximate cause of Thomas Shadle’s injury and resulting

surgery. The following evidence was adduced at trial.

      {¶4} On Friday, January 8, 2010, at approximately 2:40 p.m., the Shadles

were exiting the parking lot of Belden Village Mall in their 2002 Honda Accord. It was

a cold, snowy afternoon. Kathleen Shadle was driving and Thomas Shadle, then 54

years old, was in the passenger seat. He was wearing his seat belt.

      {¶5} The Shadles were stopped at the red light at the intersection, waiting to

turn right onto Everhard Road. Anthony Morris was driving his 2001 Hyundai Tiburon

and stopped directly behind the Shadles’ vehicle. When their vehicle pulled forward,

Morris proceeded forward and then applied the brakes to stop, but slid in the snow

and rear-ended the Shadles’ vehicle. The Shadles described the impact as a hard jolt.
Morris estimated he was driving at a speed of less than five miles per hour at the time

of the accident and described the impact as a “bump”.

      {¶6} The parties exited their vehicles to observe the damage. Upon exiting

the vehicles, Morris asked the Shadles if they were injured based on Morris’s training

as an emergency medical technician.        The Shadles denied any injuries and they

looked at the damage to the cars. There was not any observable damage to the cars.

Morris asked if they would not call the police because he was late for work. The

Shadles chose to call the police to make a report. The police arrived, a report was

made, and the parties went on their way.

      {¶7} While at the time of the accident Thomas Shadle did not feel he suffered

any injury, he woke up on Saturday, January 9, 2010 with pain in his neck that

radiated down his left arm causing numbness and tingling. Thomas Shadle decided

not to visit the emergency room over the weekend but waited to make an appointment

with OMNI Orthopedics on Monday.

      {¶8} Thomas Shadle saw Dr. Daniel Dorfman of OMNI Orthopedics on

Tuesday, January 12, 2010. Thomas Shadle described his pain as pain in his neck

and upper back with some radiation into his left arm with a sense of tingling in the left

arm. Dr. Dorfman prescribed pain medication and physical therapy. When the pain

medication and physical therapy did not abate Thomas Shadle’s discomfort, Dr.

Dorfman ordered an MRI and an EMG nerve conduction test.

      {¶9} Thomas Shadle worked as a self-employed IT consultant. At the time of

the accident, he did not have any active contracts but was obtaining professional

certifications, attending college to upgrade his computer skills and looking for work
opportunities. Due to the tingling and numbness in his left arm, he did not feel he

could comfortably work on the computer. He felt the electricity from the computer and

other large appliances exacerbated the tingling in his arm. He was not able to assist

his wife at home or participate in his regular activities.

       {¶10} Thomas Shadle had the MRI done on February 8, 2010.                The MRI

showed he had a C7-T1 herniated disc with impingement of the left C8 nerve root, the

nerve between the C7 and T1 vertebrae.            The EMG nerve conduction test was

performed on February 11, 2010 and showed left C8 radiculopathy, inflammation of

the nerve. Based on the test results, Dr. Dorfman referred Thomas Shadle to Dr.

Mark Cecil, an orthopedic surgeon with OMNI Orthopedics. Dr. Cecil recommended a

a cervical discectomy and fusion of C7-T1 to relieve Thomas Shadle’s symptoms.

       {¶11} Dr. Cecil performed the surgery on March 5, 2010. After the surgery,

Thomas Shadle felt relief from the pain, numbness, and tingling he felt prior to the

surgery.   Thomas Shadle incurred medical bills approximately in the amount of

$38,000.00.

       {¶12} About five months after the surgery, Thomas Shadle found employment

as an IT consultant in Minnesota and at the time of trial, he had moved to California to

become a data base administrator for Kaiser Permanente.

       {¶13} Dr. Cecil testified at trial by videotape deposition as plaintiff’s medical

expert. Dr. Cecil is board certified in orthopedic surgery and is a clinical instructor at

the Northeastern Ohio University College of Medicine. Dr. Cecil testified that pain,

numbness, and tingling in the arm were classic symptoms of a herniated disc putting

pressure on a nerve. Dr. Cecil testified to a reasonable degree of medical probability
the collision proximately caused Thomas Shadle’s herniated disc and resulting

surgery. In order to make that determination, Dr. Cecil considered four factors. First, it

did not appear to Dr. Cecil from his records that Thomas Shadle complained of arm

pain, numbness, tingling, and neck pain symptoms before the injury.          Second, he

believed the 5 mph or less impact of Morris’s vehicle was enough to cause the injury.

Third, Dr. Cecil was of the opinion the disc herniation was an acute injury in that it

likely occurred six weeks before the EMG nerve conduction test.            Fourth, while

Thomas Shadle had degenerative conditions within his neck, Dr. Cecil believed the

disc herniation was relatively new. This disc degeneration was worn at levels typical

for Thomas Shadle’s age. The disc herniation was a soft disc herniation that indicated

to Dr. Cecil it was a new injury.

       {¶14} On cross-examination, Dr. Cecil testified to the degenerative disc

disease. Dr. Cecil described degenerative disc disease as a normal consequence of

aging and was extensive because Shadle had multiple levels involved, but was

consistent with his age. In cross-examining Dr. Cecil, defense counsel referred to

Shadle’s medical chart. The cervical films of Shadle showed extensive spondylosis,

meaning degenerative change within the spine.            Shadle also had “osteophytic

spurring,” which are bony projections that occur around the discs as the discs wear

out. Dr. Cecil testified those things could be independent pain generators. Dr. Cecil

stated that Thomas Shadle told him he never had neck pain before the accident.

Later, Dr. Cecil testified Shadle indicated he never had a tremendous component of

neck pain in the past. Dr. Cecil’s records did not show that Shadle had previous arm

tingling or numbness before the accident.
      {¶15} Thomas Shadle’s MRI showed “spondylitic protrusions” at C3-4, which

Dr. Cecil interpreted as disc protrusions or degeneration:

      Q. It means the disk is flattening out and bulging, right?

      A. That would be a good description.

      Q. And this jelly doughnut concept that you brought up on direct, disks

      flatten out, and eventually a lot of times, that can lead to a disk herniation

      with or without trauma. Would you agree with that?

      A. It can.

(Videotaped Deposition of Mark Cecil, M.D., p. 30.)

      {¶16} Defense counsel questioned Dr. Cecil as to his conclusion of the time the

injury occurred:

      Q. And with an MRI film, you can’t look at that and tell how long a disk

      herniation has been there. Is that true?

      A. You can generally tell. In other words, you can separate acute from

      chronic. You can do that. Can you tell specifically in terms of days? No,

      you can’t tell that.

      Q. How about months?

      A. I think you can get a general idea. Again, as I said, you know, you

      can say, you know, three months generally.          But, again, you got to

      correlate this as well with symptoms.

      Q. I assume –

      A. Because there are a lot of herniated disks that don’t – aren’t

      symptomatic.
Q. That’s true. And I assume then that – that you certainly could tell on

an – an MRI if it’s been years?

A. You could have a good – a pretty good idea, yes.

Q. I – you may not remember this, but I had deposed you back in 2004 in

a case where you were testifying for the plaintiff. And I asked you that

very same question. I – I just want to show you this. (Indicating.)

MS. FRANTZ OLDHAM: Objection

***

Q. And I want to show you a question that I ask you: “And would it be fair

to say that when you’re looking at an MRI you can’t really tell how long

the herniated disk has been there, whether or not it hurts for the most

part, or what caused it. Would that be a fair statement?” And could you

look at your response?

A. I got to read it a little bit in context here, but I’ll – my response is, and

then I’ll – let’s see: “Yeah, I don’t think – I don’t think you can specifically.

You can tell generally. In other words, if something has been there long

term, chronically, versus something that’s relative new, but in terms of

pinning it down to months or years I would say that’s a fair statement.”

That’s pretty much what I just told you.

Q. You had just told me that you can tell months, like three months or so,

but here you said months or years you can’t; is that right?

***
         A. Three months. I think that’s very consistent to what I was – I – I think

         that there’s absolutely nothing in what I said there that’s different than

         what I just told you.

(Videotaped Deposition, p. 35-37.)

         {¶17} On cross-examination, Dr. Cecil also admitted he did not read the police

report about the accident or view photographs of the accident, showing the lack of

damage to the vehicles. Dr. Cecil was not aware that no one reported an injury at the

accident scene.

         {¶18} On re-direct examination, Dr. Cecil opined degenerative disk disease

and bone spurs did not cause Mr. Shadles’ pain, but instead was caused by the

herniated disk, which was undisputedly resolved by the surgery performed by Dr.

Cecil.

         {¶19} In the defense’s case, only Morris testified. No medical expert testified in

the defendant’s case. At the close of Morris’s case in chief, the Shadles moved for a

directed verdict on the issue of causation. The trial court denied the motion.

         {¶20} On December 28, 2011, the jury returned a verdict in favor of the

Shadles as to negligence. The jury, however, determined by jury interrogatory that

Morris’s negligence was not the proximate cause of Thomas Shadle’s injuries. The

jury awarded the Shadles zero damages.

         {¶21} The Shadles filed a Motion for Judgment Nothwithstanding the Verdict

and a Motion for New Trial. The trial court denied the motions on March 20, 2011. It

is from these decisions the Shadles now appeal.

                                 ASSIGNMENTS OF ERROR
       {¶22} The Shadles raise two Assignments of Error:

       {¶23} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW DENYING

APPELLANTS’ MOTION FOR DIRECTED VERDICT AND MOTION FOR JUDGMENT

NOTWITHSTANDING THE VERDICT WHEN THERE WERE NO OBJECTIVE

REASONS TO         DISCOUNT THE         ONLY EXPERT TESTIMONY THAT THE

COLLISION PROXIMATELY CAUSED MR. SHADLE’S HERNIATED DISC.

       {¶24} “II. THE TRIAL COURT ABUSED ITS DISCRETION DENYING

APPELLANTS’ MOTION FOR NEW TRIAL WHEN THE JURY AWARDED $0 AND

THERE WERE NO OBJECTIVE REASONS TO DISCOUNT THE ONLY EXPERT

TESTIMONY THAT THE COLLISION PROXIMATELY CAUSED MR. SHADLE’S

HERNIATED DISC.”

                                      ANALYSIS

                                           I.


       {¶25} The Shadles argue in their first Assignment of Error the trial court erred

in denying their motion for directed verdict and motion for judgment notwithstanding

the verdict.

       {¶26} Civ.R. 50(B) governs motions for judgment nothwithstanding the verdict:

               Whether or not a motion to direct a verdict has been made or

       overruled and not later than fourteen days after entry of judgment, a

       party may move to have the verdict and any judgment entered thereon

       set aside and to have judgment entered in accordance with his motion;

       or if a verdict was not returned such party, within fourteen days after the

       jury has been discharged, may move for judgment in accordance with his
       motion. A motion for a new trial may be joined with this motion, or a new

       trial may be prayed for in the alternative. If a verdict was returned, the

       court may allow the judgment to stand or may reopen the judgment. If

       the judgment is reopened, the court shall either order a new trial or direct

       the entry of judgment, but no judgment shall be rendered by the court on

       the ground that the verdict is against the weight of the evidence. If no

       verdict was returned the court may direct the entry of judgment or may

       order a new trial.

       {¶27} The standard for granting a motion for judgment notwithstanding the

verdict pursuant to Civ.R. 50(B) is the same as that for granting a motion for a directed

verdict pursuant to Civ.R. 50(A). Texler v. D.O. Summers Cleaners & Shirt Laundry

Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271 (1998). Judgment notwithstanding the

verdict is proper if upon viewing the evidence in a light most favorable to the

nonmoving party and presuming any doubt to favor the nonmoving party, reasonable

minds could come to but one conclusion, that being in favor of the moving party.

Wagoner v. Obert, 180 Ohio App.3d 387, 401–402, 2008–Ohio–704,1905 N.E.2d 694

(5th Dist.), citing Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d

512, 2002–Ohio–2842, 769 N.E.2d 835, ¶ 3. “Neither the weight of the evidence nor

the credibility of the witnesses is for the [trial] court's determination in ruling upon [a

JNOV].” Osler v. Lorain, 28 Ohio St.3d 345, 347, 504 N.E.2d 19 (1986), quoting Posin

v. A.B.C. Motor Court Hotel, 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976).
      {¶28} The decision to grant or deny a Civ.R. 50(B) motion for judgment

notwithstanding the verdict is reviewed de novo by an appellate court.        Wagoner,

supra, at 401, 905 N.E.2d 694, citing Osler, supra, at 347, 504 N.E.2d 19.

      {¶29} In regard to the Shadles’ argument regarding a directed verdict, our

standard of review for the grant or denial of a motion for a directed verdict is whether

there is probative evidence which, if believed, would permit reasonable minds to come

to different conclusions as to the essential elements of the case, construing the

evidence most strongly in favor of the non-movant.        Brown v. Guarantee Title &

Trust/Arta, 5th Dist.No. 94–41, 1996 WL 488004 (Aug. 28, 1996), citing Sanek v.

Duracote Corp., 43 Ohio St.3d 169, 172, 539 N.E.2d 1114 (1989). A motion for a

directed verdict therefore presents a question of law, and an appellate court conducts

a de novo review of the lower court's judgment. Howell v. Dayton Power & Light Co.,

102 Ohio App.3d 6, 13, 656 N.E.2d 957, 961 (4th Dist.1995).

      {¶30} The Shadles argue Dr. Cecil presented uncontroverted evidence the car

accident negligently caused by Morris was the proximate cause of Thomas Shadle’s

injury and resulting surgery. Therefore, the jury could only have concluded that the

Shadles established the element of proximate cause. This Court has held:

             A jury is free to accept or reject any or all of the testimony of any

      witness, including testimony of an expert witness. Weidner v. Blazic

      (1994), 98 Ohio App.3d 321, 335. Further, even when the evidence is

      undisputed, the jury possesses the inherent right to reject the evidence

      presented. Krauss v. Kilgore (July 27, 1998), Butler App. No. CA-97-05-
       099, unreported, at 15, citing Lantham v. Wilson (Aug. 12, 1991),

       Madison App. No. CA90-11-024, unreported.

Gerrick v. Anheuser Busch Co., 5th Dist. No. 2000CA00140, 2000 WL 1838903 (Dec.

11, 2000), *2.

       {¶31} The Shadles agree with that statement of law, but refer this Court to the

proposition that states, “where expert testimony is not directly controverted by the

opposing party's evidence, the jury is not required to accept the testimony so long as

the record contains objectively discernible reasons upon which the jury could rely to

reject the expert's opinion testimony.” Croft v. State Farm Mut. Auto. Ins. Co., 3rd

Dist. No. 1-01-72, 2002 WL 18665 (Jan. 8, 2002) *3. In further support, the Shadles

argue that, “* * *while a finder of fact is vested with the power to decide the credibility

of witnesses, a finder of fact must accept unrefuted testimony as true unless there are

objective reasons that appear in the record to show that a reasonable basis existed to

support the fact finder's determination that the testimony was not credible. Wamer v.

Pfaff (Mar. 31, 1998), Lucas App. No. L-97-1234, unreported (citing State v. Brown

(1983), 5 Ohio St.3d 133, 449 N.E.2d 449; Bailey v. Emilio C. Chu, M.D., Inc. (1992),

80 Ohio App.3d 627, 610 N.E.2d 531, State v. Nivert (Oct. 18, 1995), Summit App.

Nos. 16806, 16843, unreported; and Muncy v. Jones, (Jan. 19, 1984), Franklin App.

No. 83AP-562, unreported.)” Steusloff v. Steusloff, 6th Dist. No. WM-98-021, 1999

WL 576041 (Aug. 6, 1999), *8.

       {¶32} The Shadles argue Dr. Cecil’s testimony that the collision proximately

caused Thomas Shadle’s herniated disc was unrefuted.             Further, there were no

objective reasons in the record as to why Dr. Cecil’s testimony was not credible. They
state the uncontroverted evidence shows the EMG nerve conduction test revealed an

acute injury; the MRI revealed a soft disc herniation which showed it was an acute

injury; Thomas Shadle did not complain of tingling and numbness down his left arm

prior to collision; and the impact of the collision could have caused the disc herniation.

       {¶33} Morris contends the evidence presented by the Shadles was not

uncontroverted. Through cross-examination, Morris caused the jury to question the

conclusion that the injuries were the result of the accident.      “[A] defendant is not

obligated to put on testimony about the cause of an injury or to provide an alternative

theory about causation. Defendants can avoid a directed verdict on this subject

through cross-examination, presentation of contrary evidence that the negligence was

not the probable cause of the injury, or presenting evidence of alternative causes of

the injury. Stinson v. England (1994), 69 Ohio St.3d 451, 456-457, 633 N.E.2d 532,

538. Id. at 569.” Gerrick, supra at *2 citing Werth v. Davies, 120 Ohio App.3d 563,

569, 698 N.E.2d 507 (1st Dist.1997).

       {¶34} The Eleventh District Court of Appeals analyzed the meaning of

“uncontroverted” in McWreath v. Ross, 179 Ohio App.3d 227, 2008-Ohio-5855, 901

N.E.2d 289. In that case, the issue was whether the trial court erred in granting a

motion for a new trial where the jury awarded zero damages in a personal injury case.

The court stated:

             We recognize that the term of art “uncontroverted” is not limited to

       refer to a failure of the defending party to provide a rebuttal expert

       witness. As the court stated in McCabe v. Sitar, 7th Dist. No. 06 BE 39,

       2008-Ohio-3242, 2008 WL 2583737, ¶ 23:
              “When the evidence is ‘uncontroverted,’ the record reflects that

       there is no rebuttal evidence at all, looking at the entire range of

       evidence presented at trial. ‘Rebuttal evidence’ is evidence that explains,

       repels, counteracts, or disproves facts given in evidence by the adverse

       party. Nickey v. Brown (1982), 7 Ohio App.3d 32, 35 [7 OBR 34], 454

       N.E.2d 177. If only one expert testifies, cross-examination of that expert

       may very well reveal contradictions and even repudiations of earlier

       statements made by the expert. Inconsistencies and errors in an expert's

       testimony may qualify as rebuttal evidence. State v. Thompson (1987),

       33 Ohio St.3d 1, 11, 514 N.E.2d 407.”

Id. at ¶ 82-83.

       {¶35} Morris argues that through cross-examination, he provided rebuttal

evidence to Dr. Cecil’s conclusion that the injury was caused by the accident. First,

Dr. Cecil testified that Thomas Shadle had pain in his neck prior to the accident.

Second, Dr. Cecil could not say the impact from the low speed, rear-end accident

could cause the injury because Dr. Cecil was not an expert in biomechanics, he did

not review the accident report, or view photographs of the accident scene. Third, Dr.

Cecil’s opinion that he could determine the injury was acute was called into question

by Dr. Cecil’s prior testimony as to a similar question.

       {¶36} The Shaldes argue there were no objective reasons in the record to

support the jury’s decision to find Dr. Cecil’s testimony as to causation was not

credible. The evidence, they state, was “uncontroverted.” The standard of review on

a motion for directed verdict and a motion for judgment notwithstanding the verdict is,
when reviewing the evidence in a light most favorably to the non-moving party,

reasonable minds can reach only one conclusion, and that is in favor of the moving

party. “A motion for judgment notwithstanding the verdict is used to determine only

one issue i.e., whether the evidence is totally insufficient to support the verdict.”

Chambers v. Jenkins, 5th Dist. No. 2007 CA 00131, 2008-Ohio-638, ¶ 29 citing

Krauss v. Streamo, 5th Dist. No.2001CA00341, 2002-Ohio-4715, ¶ 14. In making that

decision, however, the court is unable to consider credibility of the witnesses or the

weight of the evidence. We consider the issue only as to questions of law. It is on this

basis that the evidence presented must be “uncontroverted” in order to grant a

directed verdict or judgment notwithstanding the verdict.

      {¶37} The Shadles state there was no conflict in the evidence as to the

causation of Thomas Shadle’s herniated disc. Upon our de novo review, we find the

trial court did not err in denying the motion for directed verdict or for judgment

notwithstanding the verdict. When reviewing the evidence without considering the

credibility of the witnesses or the weight of the evidence, we cannot say, as the trial

court held in its judgment entry, there was uncontroverted evidence as to causation.

Through cross-examination, Morris raised issues that could cause reasonable minds

to reach differing conclusions as to causation. Shadle suffered from degenerative disc

disease and had neck pain before the accident. Through cross-examination, Morris

called into question Dr. Cecil’s ability to determine when the soft disc herniation

occurred. The accident was a low-speed impact with no property damage and Dr.

Cecil was not an expert in biomechanics. Dr. Cecil also testified that a disk herniation

can occur with or without trauma or maybe asymptomatic for a period of time
(although these opinions were expressed, without objection, in terms of possibility and

not probability).

       {¶38} It is for these reasons we affirm the trial court’s decision to deny the

directed verdict as to causation and to deny the motion for judgment notwithstanding

the verdict. Reasonable minds could come to differing conclusions as to causation.

       {¶39} The Shadles’ first Assignment of Error is denied.

                                            II.

       {¶40} The Shadles argue in their second Assignment of Error the trial court

erred in denying their motion for new trial. We disagree.

       {¶41} Civ.R. 59 provides in pertinent part:

       (A) Grounds

       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, jury, magistrate, or

       prevailing party, or any order of the court or magistrate, or abuse of

       discretion, by which an aggrieved party was prevented from having a fair

       trial;

       (2) Misconduct of the jury or prevailing party;

       (3) Accident or surprise which ordinary prudence could not have guarded

       against;

       (4) Excessive or inadequate damages, appearing to have been given

       under the influence of passion or prejudice;
       (5) Error in the amount of recovery, whether too large or too small, when

       the action is upon a contract or for the injury or detention of property;

       (6) The judgment is not sustained by the weight of the evidence;

       however, only one new trial may be granted on the weight of the

       evidence in the same case;

       (7) The judgment is contrary to law;

       (8) Newly discovered evidence, material for the party applying, which

       with reasonable diligence he could not have discovered and produced at

       trial;

       (9) Error of law occurring at the trial and brought to the attention of the

       trial court by the party making the application.

       In addition to the above grounds, a new trial may also be granted in the

       sound discretion of the court for good cause shown.

       {¶42} The question of whether to grant a new trial upon the basis of the weight

of the evidence is within the sound discretion of the trial court. Yungwirth v. McAvoy,

32 Ohio St.2d 285, 286, 291 N.E.2d 739 (1972); see, also, Rhode v. Farmer, 23 Ohio

St.2d 82, 262 N.E.2d 685 (1970). The Ohio Supreme Court has consistently held the

term “abuse of discretion” implies that the court's attitude is unreasonable, arbitrary or

unconscionable.    See, e.g. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶43} In order to set aside a damage award as inadequate and against the

manifest weight of the evidence, a reviewing court must determine that the verdict is

so gross as to shock the sense of justice and fairness, cannot be reconciled with the
undisputed evidence in the case, or is the result of an apparent failure by the jury to

include all the items of damage making up the plaintiff's claim. Bailey v. Allberry, 88

Ohio App.3d 432, 435, 624 N.E.2d 279 (2nd Dist.1993) (emphasis in original).

      {¶44} Thus, in reviewing a motion for a new trial, we do so with deference to

the trial court's decision, recognizing that “the trial judge is better situated than a

reviewing court to pass on questions of witness credibility and the surrounding

circumstances and atmosphere of the trial.” Malone v. Courtyard by Marriott L.P., 74

Ohio St.3d 440, 448, 659 N.E.2d 1242 (1994).

      {¶45} The Shadles argue that a new trial should be ordered because the jury

erred in its finding on causation. Again they argue the evidence was uncontroverted

as to causation. In examining this Assignment of Error, witness credibility and weight

of the evidence come into play. 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. Suggs v. Looby

5th Dist. No. 2011 CA 00023, 2011-Ohio-4533, ¶ 21 citing Barnett v. Hills (App.1947),

79 N.E.2d 691, 50 Ohio Law Abs. 208, 212. As the trier of fact in this case, the jury

was “free to accept or reject any or all of appellant's evidence relating to * * *

damages.” Peck v. Ryan 12th Dist. No. CA87-09-120, 1998 WL 71614 (June 30,

1988) at 4. Moreover, even assuming that appellant presented undisputed evidence,

the jury possessed the inherent power to reject the evidence presented. Lanham v.

Wilson 12th Dist. No. CA90-11-024, 1991 WL 153193 (Aug. 12, 1991). A jury is free

to reject any evidence and is not required to accept evidence simply because it is

uncontroverted, unimpeached or unchallenged. Ace Steel Baling, Inc. v. Portefield, 19

Ohio St.2d 137, 138, 249 N.E.2d 892 (1969).
       {¶46} A jury's award is supported by some competent, credible evidence going

to the essential elements of the case, that award will not be reversed by a reviewing

court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley

Construction Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978). In the area of

damages in a personal injury case, neither a reviewing court nor a trial court can

substitute its judgment for that of the jury. Litchfield v. Morris, 25 Ohio App.3d 42, 44,

495 N.E.2d 462 (10th Dist. 1985).

       {¶47} Dr. Cecil testified that Thomas Shadle suffered degenerative disc

disease in his neck consistent with his age. On cross-examination, Morris was able to

establish that Thomas Shadle suffered neck pain before the accident. Dr. Cecil also

stated on cross-examination that with disc degeneration, a disc herniation could occur

without or without trauma. There were no medical records presented or testimony on

cross-examination to show that Thomas Shadle felt tingling, numbness, and pain in

his left arm before the accident. The evidence presented by Dr. Cecil’s testimony was

that tingling, numbness and pain in the arm are symptomatic of radiculopathy, or

impingement of the nerve, caused by a soft disc herniation. Dr. Cecil testified that

Shadle did not complain of tingling, numbness, and pain of his left arm before the

accident. As to the date of the soft disc herniation, Dr. Cecil opined it was a recent

injury but whether a date of the injury could be determined in months was called into

question by cross-examination.

       {¶48} In denying the motion for new trial, the trial court found that Dr. Cecil’s

and Thomas Shadle’s testimony were impeached by defense counsel to a sufficient

degree to have the jury disregard the doctor, plaintiff, or both. The trial court also
found that the jury could have found the testimony of Thomas Shadle to be deficient in

that the information provided to Dr. Cecil was through Thomas Shadle. In addition, Dr.

Cecil did not review the accident report or pictures of the scene.

       {¶49} Having reviewed the record and constrained by deference to the trial

court which observed the trial testimony, we decline to substitute our judgment for that

of the trial court. In this case, the jury likely disbelieved the testimony of expert or the

patient, given it was a low speed collision with no damage to the vehicles. In

assessing the probative value of the doctor’s testimony, the jury was free to evaluate

the patient’s credibility to determine whether his disclosure of the level, severity and

source of his neck and arm discomfort was accurate.

       {¶50} We cannot say that the jury verdict was against the manifest weight of

the evidence. Moreover, we find that some competent and credible evidence supports

the jury's verdict. Therefore, the trial court did not abuse its discretion in denying the

Shadles' motion for a new trial.

       {¶51} The second Assignment of Error of the Shadles is overruled.
                                  CONCLUSION

       {¶52} The first and second Assignment of Errors of Plaintiffs-Appellants

Thomas and Kathleen Shadle are overruled.

       {¶53} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Gwin, J. and

Wise, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. W. SCOTT GWIN



                                     HON. JOHN W. WISE




PAD:kgb
                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


                                     :
THOMAS J. SHADLE, et al.             :
                                     :
   Plaintiffs-Appellants             :       JUDGMENT ENTRY
                                     :
                                     :
-vs-                                 :
                                     :       Case No.   2012CA00073
ANTHONY M. MORRIS                    :
                                     :
  Defendant - Appellee               :
                                     :


   For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellants.




                                     HON. PATRICIA A. DELANEY



                                     HON. W. SCOTT GWIN



                                     HON. JOHN W. WISE
