[Cite as Torres v. Concrete Designs, Inc. , 2019-Ohio-1342.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                      Nos. 105833 and 106493



                                      KIARA E. TORRES, ET AL.

                                                               PLAINTIFFS-APPELLEES

                                                      vs.

                                CONCRETE DESIGNS INC., ET AL.

                                                               DEFENDANTS-APPELLANTS




                                        JUDGMENT:
                             AFFIRMED IN PART; VACATED IN PART



                                        Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                             Case Nos. CV-12-795422 and CV-12-795474


        BEFORE: Celebrezze, J., S. Gallagher, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: April 11, 2019
ATTORNEYS FOR APPELLANTS

For Concrete Designs, Inc. and Brian M. English

Clifford C. Masch
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, Ohio 44115

Jan L. Roller
Giffen & Kaminski, L.L.C.
1300 East Ninth Street, Suite 1600
Cleveland, Ohio 44114

For Westfield Insurance Co.

John J. Haggerty
Fox Rothchild, L.L.P.
2700 Kelly Road, Suite 300
Warrington, Pennsylvania 18976


ATTORNEYS FOR APPELLEES

For Kiara E. Torres

Gregg D. Garfinkel
John M. Gundy
Gundy Law Firm, L.L.C.
6105 Parkland Boulevard, Suite 140
Mayfield Heights, Ohio 44124

For Jovanny Martinez

Deborah W. Yue
1991 Crocker Road, Suite 600
Westlake, Ohio 44145

Richard C.O. Rezie
Gallagher Sharp
Sixth Floor - Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115

For Joshua Rojas
Ellen M. McCarthy
Andrew R. Young
Don J. Young
Young & McCarthy, L.L.P.
31387 Lorain Road
North Olmsted, Ohio 44070

Patrick Merrick
14701 Detroit Avenue, Suite 415
Lakewood, Ohio 44107

ON RECONSIDERATION1




FRANK D. CELEBREZZE, JR., J.:

        {¶1}      Defendants-appellants, Brian English (“English”), Concrete Designs, Inc.

(“Concrete Designs”), and Westfield Insurance (“Westfield”) (collectively “appellants”) bring

this appeal challenging the trial court’s denial of appellants’ motion for a new trial, the trial

court’s denial of their motion for judgment notwithstanding the verdict, the stipulation regarding

the “permanent and substantial physical deformity” interrogatory, the award of noneconomic

damages greater than $350,000, and the trial court’s award of prejudgment interest. After a

thorough review of the record and law, this court affirms in part, and vacates in part.

                                   I. Factual and Procedural History

        {¶2} In the early morning hours of November 15, 2010, plaintiffs-appellees, Kiara Torres

(“Torres”) and Joshua Rojas (“Rojas”) were passengers in a car driven by Jovanny Martinez

(“Martinez”) (collectively “appellees”). Rojas was seated in the front passenger seat, Torres was


        1
             The original announcement of decision, Torres v. Concrete Designs, Inc., 8th Dist. Cuyahoga Nos.
105833 and 106493, 2018-Ohio-5345, released December 27, 2018, is hereby vacated. This opinion, issued upon
reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
seated in the rear passenger seat, and a third passenger, Yareline Santiago, was seated in the rear

driver’s seat. Martinez’s car was involved in an accident with a dump truck driven by English.

As a result of the accident, Rojas and Torres suffered severe injuries.

        {¶3} Torres and Rojas filed an action against Martinez, English, and Concrete Designs.

The separate complaints2 alleged negligence against English and negligent entrustment against

Concrete Designs. Rojas and Torres alleged that English cut off Martinez’s car as English was

changing lanes, ultimately causing the accident. Martinez also alleged that English caused the

accident. English alleged that Martinez’s car rear-ended his dump truck, failing to keep the

assured clear distance.3

        {¶4} The case proceeded to a jury trial on September 18, 2014. The jury, on October 14,

2014, returned verdicts in favor of Rojas and Torres. The jury found that appellants were solely

at fault in the collision — Martinez was found to have no liability. The jury awarded Rojas $8.2

million in economic damages and $26.4 million in noneconomic damages for a total of $34.6

million in compensatory damages. The jury awarded Torres $1.8 million in economic damages

and $6 million in noneconomic damages for a total of $7.8 million in compensatory damages.

        {¶5} On October 21, 2014, Rojas and Torres filed a joint motion for prejudgment interest.

 Thereafter, on November 11, 2014, appellants filed a motion for a new trial. A hearing on

appellants’ motion was held on April 20, 2015. On May 1, 2015, Westfield filed a motion to

intervene pursuant to Civ.R. 24, which was granted on May 14, 2015. On May 27, 2015, the



        2
         Torres filed an action in Cuyahoga C.P. No. CV-12-795422, and Rojas filed an action in Cuyahoga C.P.
No. CV-12-795472. These separate complaints were consolidated at the trial court level.

        3
            Martinez was charged in Cuyahoga C.P. No. CR-10-545271-A with two counts of aggravated vehicular
assault, third-degree felonies in violation of R.C. 2903.08(A)(2)(b). Martinez ultimately pled guilty to one count of
negligent assault, a third-degree misdemeanor in violation of R.C. 2903.01(A).
court denied appellants’ motion for a new trial. On August 20, 2015, appellants appealed from

the trial court’s denial of their motion for a new trial to this court.

         {¶6} In Rojas v. Concrete Designs, Inc., 8th Dist. Cuyahoga Nos. 103418 and 103420,

2017-Ohio-379, this court found that the trial court failed to dispose of the negligent entrustment

cause of action. As a result, this court dismissed the appeal for lack of a final appealable order.

Rojas at ¶ 14.

         {¶7} Upon remand, on April 4, 2017, the trial court held a hearing on the negligent

entrustment claims. The trial court found that all parties were in agreement that the negligent

entrustment claims were not pursued by Rojas and Torres. On April 25, 2017, the trial court

issued a judgment entry dismissing the negligent entrustment claims without prejudice.

         {¶8} On April 4, 2017, the trial court also heard arguments relative to Rojas’s and

Torres’s joint motion for prejudgment interest. The trial court granted Rojas’s and Torres’s

motion for prejudgment interest, and awarded prejudgment interest to Rojas in the amount of

$2,592,744 and to Torres in the amount of $954,603. The trial court further found that Torres’s

prejudgment interest award accrued on January 11, 2011, and Rojas’s accrued on September 1,

2011.

         {¶9} On May 23, 2017, appellants filed a second motion for a new trial and a motion for

judgment notwithstanding the verdict as to the finding that Torres had sustained a “permanent

and substantial physical deformity.”4 The trial court held a hearing on appellants’ motions on

October 16, 2017. On November 1, 2017, the trial court issued a judgment entry denying

appellants’ motions. It is from this November 1, 2017 judgment entry denying appellants’


         4
           In addition, appellants filed a motion for recusal of the trial court judge regarding a purported conflict that
existed with the trial court judge and an employee who provided therapy to Rojas. The trial court denied this
motion and it is not the subject of this appeal.
motions and the trial court’s April 4, 2017 order awarding prejudgment interest to Rojas and

Torres that appellants bring this instant appeal, assigning the following nine assignments of error

for our review:

       I.       The trial court erred by failing to grant a new trial on the verdicts against
       [appellants] and in favor of Martinez based on excessive noneconomic damages
       that appear to be given under the influence of passion or prejudice, and the
       presumed prejudice on the liability verdicts.

       II.       The trial court erred in failing to grant a new trial on the verdicts against
       [appellants] and in favor of Martinez for the misconduct that resulted in those
       verdicts.

       III.     The trial court erred by failing to grant [appellants] new trial against
       Torres based on her excessive and unsupported economic damages.

       IV.      The trial court erred by failing to grant [appellants] notwithstanding the
       verdict on the issue of whether Torres sustained a “permanent and substantial
       physical deformity.”

       V.      The trial court erred by finding a stipulation to Rojas having a
       “permanent and substantial physical deformity.”

       VI.     The trial court erred by failing to mold Rojas’[s] and Torres’[s]
       noneconomic damages to $350,000 each.

       VII.      The trial court erred finding that prejudgment interest accrued for Rojas
       on the date he gave Westfield written notice by facsimile and for Torres on the
       date she gave Westfield written notice by non-certified mail.

       VIII.    In awarding prejudgment interest, the trial court erred by finding that
       Rojas and Torres did not fail to make a good-faith effort to settle the case.

       IX.       In awarding prejudgment interest, the trial court erroneously found that
       Westfield failed to make a good-faith effort to settle the case in not performing a
       rational evaluation of English and Concrete Designs’ risks and liability.

                                     II.   Law and Analysis

                                  A. Motion for a New Trial

       {¶10} In their first, second, and third assignments of error, appellants argue that the trial

court erred in denying their second motion for a new trial pursuant to Civ.R. 59(A).
       This court reviews a trial court’s decision on motions for a new trial for an abuse
       of discretion where the argument addresses an issue that is within the trial court’s
       discretion. Robinson v. Turoczy Bonding Co., 8th Dist. Cuyahoga No. 103787,
       2016-Ohio-7397, ¶ 23. An abuse of the trial court’s discretion is connoted by a
       decision that is arbitrary, unconscionable, or unreasonable. Blakemore v.
       Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Where the
       argument addresses an issue of law, such as whether the judgment is contrary to
       law or the court made an error of law, this court reviews that decision de novo, or
       without deference to the trial court’s decision. Robinson at ¶ 23.

Gateway Consultants Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist. Cuyahoga No.

104014, 2017-Ohio-1443, ¶ 12.

                             1. Excessive Noneconomic Damages

       {¶11} In their first assignment of error, appellants argue that the trial court should have

granted their motion for a new trial pursuant to Civ.R. 59(A)(4) because Rojas’s and Torres’s

awards of noneconomic damages was excessive.

       {¶12} Civ.R. 59(A) allows a litigant to challenge a verdict on any one of ten grounds.

Appellants contend that they are entitled to a new trial under Civ.R. 59(A)(4), which provides a

new trial due to “[e]xcessive or inadequate damages, appearing to have been given under the

influence of passion or prejudice.”

       {¶13} Civ.R. 59(A)(4) has two elements, (1) an excessive or inadequate award, and (2)

evidence of passion or prejudice.     “Size, per se, will not suffice for proof of passion or

prejudice.” Pearson v. Cleveland Acceptance Corp., 17 Ohio App.2d 239, 245, 246 N.E.2d 602

(8th Dist.1969). “‘[A] judgment will not be reversed on the grounds of misconduct in closing

arguments unless the circumstances are of such reprehensible and heinous nature as to constitute

prejudice.’” Hinkle v. Cleveland Clinic Found., 159 Ohio App.3d 351, 2004-Ohio-6853, 823

N.E.2d 945, ¶ 67 (8th Dist.), quoting Hitson v. Cleveland, 8th Dist. Cuyahoga No. 57741, 1990

Ohio App. LEXIS 5466 (Dec. 13, 1990).
                                    a. Passion or Prejudice

        {¶14} Appellants argue that improper remarks made by Torres’s and Rojas’s counsel

inflamed the jury’s passion and prejudice. Here, appellants take issue with (1) remarks that

characterized appellants’ counsel as a liar, (2) remarks that English’s retention of counsel was

evidence of liability, (3) remarks that exploited English’s criminal history, (4) remarks by Rojas’s

counsel that broke the “golden rule,” and (5) Rojas’s counsel personally vouched for the

credibility of witnesses. Appellants further argue that the cumulative effect of these remarks had

a prejudicial effect.

        {¶15} We first note that as a general rule, “[c]ounsel is allowed wide latitude in

presenting oral argument although at all times counsel is subject to the supervision of the trial

judge.” Di v. Cleveland Clinic Found., 2016-Ohio-686, 60 N.E.3d 582, ¶ 104 (8th Dist.), citing

Yerrick v. E. Ohio Gas Co., 119 Ohio App. 220, 223, 198 N.E.2d 472 (9th Dist.1964).

        “[T]he determination of whether the bounds of permissible argument have been
        exceeded is, in the first instance, a discretionary function to be performed by the
        trial court. Therefore, the trial court’s determination will not be reversed absent
        an abuse of discretion.” (Citations omitted.) Pesek v. Univ. Neurologists Assn.,
        87 Ohio St.3d 495, 501, 721 N.E.2d 1011 (2000). An abuse of discretion is
        indicated by a court’s “failure to exercise sound, reasonable, and legal
        decision-making.”       State v. Beechler, 2d Dist. Clark No. 09-CA-54,
        2010-Ohio-1900, ¶ 62. However, that discretion is not absolute. Where “gross
        and abusive conduct occurs, the trial court is bound, sua sponte, to correct the
        prejudicial effect of counsel’s misconduct.” (Emphasis sic.) Snyder v.
        Stanford, 15 Ohio St.2d 31, 37, 238 N.E.2d 563 (1968).

Caruso v. Leneghan, 8th Dist. Cuyahoga No. 99582, 2014-Ohio-1824, ¶ 57.

        {¶16} Furthermore,

        “Except where counsel, in his opening statement and closing argument to the jury,

        grossly and persistently abuses his privilege, the trial court is not required to

        intervene sua sponte to admonish counsel and take curative action to nullify the
         prejudicial effect of counsel’s conduct. Ordinarily, in order to support a reversal

         of a judgment on the ground of misconduct of counsel in his opening statement

         and closing argument to the jury, it is necessary that a proper and timely objection

         be made to the claimed improper remarks so that the court may take proper action

         thereon.”      (Emphasis sic.)         Snyder [at paragraph one of the syllabus],

         superseded by rule on other grounds as stated in King v. Branch Motor Express

         Co., 70 Ohio App.2d 190, 197, 435 N.E.2d 1124 [2d Dist.1980].

Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 40.

         {¶17} In our review of the extensive trial transcript, we note that appellants failed to

object to the large majority of remarks made in opening statements and closing arguments with

which they now take issue. Indeed, trial counsel objected to only one noteworthy remark. A

party must generally raise a timely objection to preserve a claim of error. Villella v. Waikem

Motors, Inc., 45 Ohio St.3d 36, 39-40, 543 N.E.2d 464 (1989). Failure to do so prevents

reversal absent gross and persistent abuse of counsel’s privilege in closing argument.5 Snyder at

37-38.

         {¶18} In reviewing the entirety of these proceedings, we note that opening and closing

statements are not evidence. Peffer v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 94356,

2011-Ohio-450, ¶ 27, citing State v. Spaqi, 8th Dist. Cuyahoga No. 69851, 1997 Ohio App.

LEXIS 713 (Feb. 27, 1997). The trial judge in this instance instructed the jury as such, and the

jury is presumed to follow the proper instructions of the trial court.             State v. Ahmed, 103 Ohio



         5
            We also note that appellants take issue with various other remarks made by Rojas’s trial counsel during
cross-examination of English. These remarks by Rojas’s counsel were objected to by appellants’ counsel and the
trial court sustained the objection. Therefore, we do not include these remarks in our analysis because it is
presumed the jury followed the trial court’s instruction to disregard such remarks.
St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637; State v. Hancock, 108 Ohio St.3d 57,

2006-Ohio-160, 840 N.E.2d 1032. Indeed, the “presumption always exists that the jury has

followed the instructions given to it by the trial court.” Pang v. Minch, 53 Ohio St.3d 186, 187,

559 N.E.2d 1313 (1990), paragraph four of the syllabus. Here, we note the following charge to

the jury with regard to this issue:

       [C]ertain statements that were made during the trial that were ordered stricken
       when I sustained an objection and then you were instructed to disregard the
       answer, and you are not to construe the evidence in the case as if any of the
       stricken comments or statements were never made, okay? You’re to ignore them
       basically.
(Tr. 1453-1454.)

        {¶19} The large majority of the remarks with which appellants take issue were made

during closing arguments.       “Closing argument allows counsel to summarize the evidence

presented and assist the jury in analyzing, evaluating, and applying the evidence.” Kassay v.

Niederst Mgt., 8th Dist. Cuyahoga No. 106016, 2018-Ohio-2057, ¶ 43, citing State v. Hinton, 8th

Dist. Cuyahoga No. 99581, 2014-Ohio-490, ¶ 29; State v. Merrill, 22 Ohio App.3d 119, 124,

489 N.E.2d 1057 (8th Dist.1984). “‘A [party] may freely comment in closing argument on what

the evidence has shown and what reasonable inferences the [party] believes may be drawn

therefrom.’” Peffer at ¶ 27, quoting State v. Clay, 181 Ohio App.3d 563, 2009-Ohio-1235, 910

N.E.2d 14, ¶ 47 (8th Dist.). However, “[a]n attorney should not express his [or her] personal

belief or opinion as to the credibility of a witness or as to the guilt of the accused or allude to

matters which are not supported by admissible evidence.”     State v. Royce, 8th Dist.   Cuyahoga

No. 61897, 1993 Ohio App. LEXIS 2788, 7 (June 3, 1993), citing State v. Smith, 14 Ohio St.3d

13, 470 N.E.2d 883 (1984). To this end, we note the trial court’s following charge to the jury

on this issue:
       Evidence does not include statements of counsel during the trial. The opening
       statements, nor the closing arguments of counsel are to be construed as evidence
       either. They are made to assist you in arriving at a just verdict, but they are not
       evidence.

(Tr. 1453.)

       {¶20} Appellants contend that Rojas’s and Torres’s counsel made specific remarks in

closing arguments that portrayed appellants’ counsel as a liar.      Here, we note the following

remarks from both Rojas’s and Torres’s counsel’s closing arguments:

       [Rojas’s counsel]: If you play a movie in your mind of [English’s]            version
       of the accident versus [Martinez’s] version of the accident, [Martinez’s] version
       starts and finishes completely. [English’s] version has holes in it, a lot of holes in
       it, to make it very difficult to determine where [English is] at.

(Tr. 1499.)

       [Rojas’s counsel]: I think [the evidence] is pretty clear and the evidence is
       overwhelming that [English] is, if not 100 percent at fault, substantially at fault
       for this accident. Defense counsel is going to say 100 percent, 0 percent for
       either one and that’s the only way you do it.

       It’s within your province to determine and apportion the fault.

(Tr. 1496.)

       {¶21} Furthermore, we note Rojas’s counsel’s remarks in his closing argument rebuttal:

       [Rojas’s counsel]: [Appellants’ counsel] is not telling you the truth about the law.
        In fact, I think she’s very plainly not telling the truth about the law. You’re
       going to receive the interrogatories, which is nothing more than a fancy word for
       questions. They are jury questions, and it asks you specifically if both [Martinez
       and English] are negligent?

       If they are both negligent and you agree, then you can apportion the fault. It isn’t
       100 percent or nothing.

(Tr. 1589.)
       [Torres’s counsel]: I want to agree with one thing [Rojas’s counsel] said.
       There’s only one party here trying to deceive you, to do wordsmithing, to distort
       the facts in this case and that is [appellants’ counsel] and [English].

(Tr. 1594.)
       {¶22} We also note these remarks made by appellants’ counsel, which preceded Rojas’s

counsel’s rebuttal remarks:

       [Appellants’ counsel]:    There’s only one cause, and it can’t be both ways. It

       cannot be that * * * [Rojas] was injured by both [Martinez] and [English] * * *[.]

          It’s either a rear-end accident or it is a cutoff (indicating). Either way.   It has

       got to be one or the other. It cannot be both. * * * It’s all or nothing.

(Tr. 1528-1529.)    First, we note the following charge to the jury on this topic:               “what

percentage of fault should be assigned to each defendant.” (Tr. 1460.) Considering these

particular remarks in context with appellants’ counsel’s remarks, we do not agree that these

remarks cast appellants’ counsel as a liar especially when taken in context of the entirety of the

parties’ closing arguments. These remarks illustrate an attempt by Rojas’s counsel to clarify the

law as to the parties’ theories regarding liability for the accident. Thus, these remarks did not

prejudice appellants.

       {¶23} Appellants also contend that Rojas’s and Torres’s counsel made improper remarks

that were offered as evidence of appellants’ liability.      Here, appellants contend that these

remarks suggested that English’s cooperation with the police on the night of the accident and his

retention of counsel demonstrated his liability. Specifically, we note the following comments

made during opening statements:

       [Rojas’s counsel]: [Martinez] does not have an attorney that’s involved at this
       time. [Martinez is] going to testify during that time he didn’t have an attorney
       involved, he did not have a law firm helping, he did not have an accident
       reconstructionist talking to the police or really explaining what happened in the
       accident so that the police have both sides of the story without jumping to
       conclusions.
(Tr. 409.)
       [Rojas’s counsel]: [Martinez] comes up with a plea because he’s worried about
       two things. You’re going to hear his testimony. He’s worried about going to
       jail, so he pleads guilty to a negligent assault on this. And you’re going to hear
       about that. He’s defended by a public defender. He didn’t have the resources
       that we’re all going to have here today, all the accident reconstructionists to
       evaluate everything. So he comes up with a plea. And he was also — he was
       told that he can’t see his friends while the prosecution was pending. So he just
       wanted to be able to convalesce and be with this friends; so that when [Rojas]
       came out of the coma, he could be there to comfort his friends and be part of that.


(Tr. 411-412.)

       {¶24} In addition, we note the following remarks during closing arguments:

       [Rojas’s counsel]: While [Torres] and [Rojas] were in the hospital, * * *
       [English] got a jump strategically maneuvering in this case and what happened
       here in this courtroom. * * * [W]ithin three weeks of this particular accident,
       [English] had formulated his troops and started working towards strategically
       defending this case. If this is truly just an automobile rear-end accident or an
       assured clear distance case, why do you need to hire an attorney? Why do you
       need to hire an accident reconstructionist? Why do you need to defend just a
       simple auto rear-ender? Why do you have to go to the great expense that they
       have gone to in order to defend this case by hiring a firm and an accident
       reconstructionist? * * * If this is a simple rear-end accident case, then you don’t
       need to create this defense and create this group of folks to come in and defend
       this particular case. * * * [English] didn’t understand what he saw [when he
       changed lanes]. He didn’t move when it was safe and he became the hazard, and
       he knows that he became the hazard. That’s why the attorneys and everybody
       were involved so early in this case.

(Tr. 1480-1483.)

       [Rojas’s counsel]: We had to file a lawsuit in order to find out what was truly
       behind all of the issues and statements that were raised in the police report,
       because some statements didn’t make sense, some statements made sense, so we
       filed a lawsuit against both [English] and [Martinez] in order to understand truly
       what happened, and the only way we can understand truly what happened in this
       case is by filing that lawsuit and then talking with the various parties.

(Tr. 1484.)

       {¶25} In support of appellants’ arguments here, appellants direct our attention to

Sizemore v. Fletcher, 921 F.2d 667 (6th Cir.1990), where a writ of habeus corpus was granted on
prosecutorial misconduct grounds.      In Sizemore, the Sixth District noted in particular the

“frequency and deliberateness” of the prosecutor’s comments regarding the defendant consulting

with counsel. The prosecutor made statements that suggested to the jury that the defendant

hired an attorney to create an alibi, or to “take[] care of everything” or “get . . . [his] story

straight.” Sizemore at 671. The court went on to note that “[s]uch statements strike at the core

of the right to counsel, and must not be permitted.” Id., citing United States v. McDonald, 620

F.2d 559, 564 (5th Cir.1980).       The court further noted that “the trial transcript reveals

intentional and repeated attempts by the prosecutor to question Sizemore’s motives for

consulting with counsel, and she clearly invited the jurors to view Sizemore’s ability to hire

several attorneys with suspicion.” Id.

       {¶26} To the extent that appellants rely upon Sizemore, we note that it concerned a writ of

habeas corpus based upon prosecutorial misconduct. The prosecutor’s remarks in Sizemore

amounted to misconduct because the prosecutor commented on the right of the accused to retain

counsel pursuant to the Sixth Amendment to the United States Constitution. However, the

instant matter is not a criminal matter and there exists no constitutional protections in civil

matters akin to the constitutional protections that so prejudiced Sizemore.   Indeed, the remarks

in   Sizemore amounted to prosecutorial misconduct because the remarks struck at the core of

constitutional protections afforded to defendants in criminal matters.   Thus, even if we were to

agree with appellants that these remarks prejudiced them, it would not require us to reverse the

trial court’s denial of appellants’ motion for a new trial.   Lastly, these remarks were made in

opening statements and closing arguments, and therefore, were not evidence.
       {¶27} Appellants also contend that Rojas’s and Torres’s counsel vouched for the

“justness” of Rojas’s and Torres’s cause and vouched for the credibility of their witnesses.

Appellants take issue with the following remarks:

       [Rojas’s counsel]: If you play a movie in your mind of [English’s] version of the
       accident versus [Martinez’s] version of the accident, [Martinez’s] version starts
       and finishes completely. [English’s] version has holes in it, a lot of holes in it, to
       make it very difficult to determine where [English is] at.

(Tr. 1499.)

       [Rojas’s counsel]: You have to look at the credibility of the witnesses too.
       Who was [English] staying with? * * * Where was [English] going? He couldn’t
       tell us even the last name of the gentleman he was staying with on the morning —
       on that Sunday morning. His route from Brecksville to the supposed job
       estimate on East 55th Street is unusual, and then he doesn’t even know what the
       job is and can’t articulated [sic] what that job is that he wants to go to.

       All these things go his credibility and his believability at the end of the day.
       Who was he staying with? What route was he taking? Who was he meeting up
       with thereafter?

(Tr. 1497-1498.)

       [Torres’s counsel]: It really comes down to credibility. That’s what it comes
       down to, credibility. Who do you believe? What expert do you believe? * *
       * I think the evidence shows that the version by Martinez is just more credible
       and more believable.

(Tr. 1522.)

       {¶28} We do not find these comments to be improperly vouching for the credibility of a

witness. Indeed, these comments relate to what counsel argued the evidence showed and what

reasonable inferences they argued should be drawn therefrom. The accident occurred in the

early morning hours at approximately 5:00 a.m. At trial, English stated that he was in route to

do an estimate on a concrete job. Therefore, Rojas’s and Torres’s counsel’s above statement

references evidence that was adduced at trial and what reasonable inferences the jury could have

drawn from that evidence. We find no prejudice in these remarks; these remarks represent
legitimate arguments regarding the credibility of various witnesses based on evidence introduced

at trial.

            {¶29} Appellants take issue with the following remarks:

            [Rojas’s counsel]: [Rojas is] a sweetheart of a guy. I think you’re going to
            really like him. I hope that he’s in good spirits and in a good mood because
            that’s how I’ve come to know him, and I hope you come to know him in the same
            way.

(Tr. 387.)

            [Torres’s counsel]: I can tell you, when I first heard the circumstances of this
            accident, and again, it’s been four years, my first assumption was that it was
            probably the kids’ fault,6 because there’s four kids, and [English] is a guy that
            looks just like me, he’s my age. I assumed the kids must have done something
            wrong. But I have had the benefit now of four years of my life involved in this
            case, four years of learning the facts, taking depositions. And I no longer think
            that. I think that [English] is responsible for this accident.

            [Appellants’ counsel]:          Objection to his personal —

            THE COURT: Keep going.

            [Torres’s counsel]:         I believe that because you’re going to hear testimony[.]

(Tr. 418-419.)

            {¶30} The remark from Rojas’s counsel is not a comment on Rojas’s credibility as a

witness.         Indeed, Rojas did not testify at trial.          Additionally, with regards to Rojas’s counsel’s

remark that he thought the evidence was going to show English was liable was simply his

obvious theory on the case. It certainly is not impermissible for a plaintiff’s counsel to remark

in opening statements that a defendant is responsible or liable for an accident. In the instant

matter, this was a permissible topic during opening statements, although it could have been stated

in a more proper way, i.e., “the evidence will show that English is responsible for the accident.”


            6
                Referring to the individuals traveling in Martinez’s vehicle.
        {¶31} However, the remarks by Torres’s counsel stating that he thought “English [was]

responsible for this accident” and that he “believe[d] that because [the jury is] going to hear the

testimony” are impermissibly vouching for the culpability of a litigant.   See State v. Alfieri, 132

Ohio App.3d 69, 84-85, 724 N.E.2d 477 (1st Dist.1998) (where a prosecuting attorney’s

statement in rebuttal closing arguments that “I’ve been practicing law and doing these [sic] for a

long time. David Bahler is one of the best witnesses I’ve ever seen or had in a courtroom”

amounted to “personally vouching for the credibility of the state’s witness” and “was an invasion

on the province of the jury[.]”). Although we find this remark to be impermissibly vouching,

when we assess “the effect of the misconduct within the context of the entire case, and more

particularly the entire closing argument, we are unable to conclude that it had the effect of

depriving” appellants of a fair trial.   Alfieri at 85.

        {¶32} Lastly, to the extent that appellants’ counsel argue that these remarks also violated

the Ohio Rules of Professional Conduct, this court does not have jurisdiction over appellants’

assertion. Buck v. Maloney, 102 Ohio St.3d 250, 2004-Ohio-2590, 809 N.E.2d 20, ¶ 7-8 (the

Supreme Court of Ohio has exclusive and absolute jurisdiction over the discipline of attorneys);

State v. Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, ¶ 36 (8th Dist.) (appellate courts “have

no authority to address claimed violations of the Rules of Professional Conduct — that authority

rests solely with the Ohio Supreme Court.”).

        {¶33} Appellants further argue that the remarks regarding English’s criminal history

prejudiced appellants.     The remarks appellants’ take issue with here were objected to by

appellants’ counsel. Moreover, this objection was sustained by the trial court. As stated above,

the trial court instructed the jury to disregard such a remark and the jury is presumed to follow

the proper instructions of the trial court. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813
N.E.2d 637; Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032. Thus, we cannot

agree with appellants that the remarks regarding English’s criminal history prejudiced appellants.

         {¶34} Appellants also argue that Rojas’s counsel violated the “golden rule.” A “golden

rule” argument exists when counsel appeals to the jurors to abandon their position of impartiality

by placing themselves in the place of one of the parties. Cooley v. Leaseway Transp. Co. USA,

8th Dist. Cuyahoga Nos. 62198 and 62732, 1993 Ohio App. LEXIS 2631, 6 (May 20, 1993).

“Generally, a ‘golden rule’ argument is improper. However, a ‘golden rule’ comment during

closing argument is not per se prejudicial so as to warrant a new trial.” Schroeder v. Parker,

8th Dist. Cuyahoga No. 73907, 1998 Ohio App. LEXIS 5919, 8 (Dec. 10, 1998), citing Dillon v.

Bundy, 72 Ohio App.3d 767, 775, 596 N.E.2d 500 (10th Dist.1991).

         {¶35} Appellants contend that Rojas’s counsel’s following remarks violated the “golden

rule”:

         [Rojas’s counsel]: If you use $150 an hour figure for 16 waking hours to be like
         [Rojas] and there was a classified ad taken out that you were looking at to respond
         to, would you take that job for $150 an hour to be like Joshua Rojas? The
         answer is probably not.

         [Y]ou are supposed to take 10,000 steps a day to stay healthy; so if you put a
         dollar figure to the 10,000 steps, if it is 10 cents a day — or 10 cents per step for
         10,000 steps, that’s like a $1,000 a day.

         It is not $150 an hour for 16 hours, but it is $1,000 a day. Would you take the
         job of being [Rojas] for an annual salary of $365,000? The answer is probably
         not. These are the things we need to value.

(Tr. 1515-1516.)

         {¶36} In Hunt v. Crossroads Psych. & Psychological Ctr., 8th Dist. Cuyahoga No. 79120,

2001 Ohio App. LEXIS 5388, 8 (Dec. 6, 2001), this court reviewed statements made by defense

counsel at trial on claims of medical negligence and wrongful death. The remarks at issue in

Hunt were as follows:
        Ms. Ried: As you listen to the evidence in this case, particularly when you listen
        to the evidence presented on March 3, 1999, I want to ask you to do something for
        me, I want you to try to walk in Dr. Schulz’s shoes knowing what he knew on that
        day. Don’t look back at this case in hindsight, knowing what happened —

        Mr. Perantinides: Excuse me, your honor, I have to object to that argument.

        The Court: Overruled.

        Ms. Reid: I ask you to walk in Dr. Schulz’s shoes, sit in his chair as he sat with
        Matthew Hunt and looked at him face to face for over an hour * * *.

Id. at 7. Mindful that trial counsel is afforded great latitude during arguments before the

court, this court stated that

        we are not persuaded that those statements resulted in any prejudice to the
        appellant. The record does not demonstrate that the comments were so heinous
        or reprehensible that the jury would abandon their position of impartiality or that
        the appellant would have been prejudiced by the statements.

Id. at 8.

        {¶37} In this case, appellants’ counsel failed to object to the remarks they now challenge

as golden rule violations. “A party’s failure at trial to object to a ‘golden rule’ argument or to

request from the trial court curative action by way of admonishment to jury waives any such

error.” Schroeder, 8th Dist. Cuyahoga No. 73907, 1998 Ohio App. LEXIS 5919, at 8, citing

Yerrick, 119 Ohio App. at 224, 198 N.E.2d 472. Thus, appellants have waived these particular

arguments.

        {¶38} However, even if appellants had objected, reviewing these remarks, we do not find

them to be appealing to the jurors to abandon their impartiality. These remarks were an attempt

to assist the jurors in quantifying the damages amount or providing a means of quantifying the

damages amount. As in Hunt, we are similarly persuaded here that the remarks made by

Rojas’s counsel were not so heinous or reprehensible that the jury would have abandoned their

position of impartiality.   Moreover, appellants were not prejudiced by these remarks.
       {¶39} Finally, in considering the entirety of appellants’ arguments, we do not find that the

cumulative effect of these remarks prejudiced appellants. The trial court concluded that these

remarks “amount to nothing more than trial tactics and strategy” and we do not find that the trial

court abused its discretion in that regard.

       {¶40} After reviewing the record, this court cannot agree with appellants that Rojas’s and

Torres’s counsel engaged in prejudicial misconduct or improperly influenced the jury through

passion or prejudice.     Moreover, we do not find the award of damages was “so grossly

disproportionate as to shock the sensibilities.”      Berry v. Lupica, 196 Ohio App.3d 687,

2011-Ohio-5381, 965 N.E.2d 318, ¶ 39 (8th Dist.), citing Airborne Express, Inc. v. Sys. Research

Laboratories, Inc., 106 Ohio App.3d 498, 510, 666 N.E.2d 584 (12th Dist.1995). Furthermore,

although we find the remarks concerning appellants retention of counsel impermissible, we find

that these remarks were not so reprehensible or heinous that they compelled the jury’s verdict.

In denying appellants’ new trial motion, the trial court noted that these remarks amounted to

“trial strategy.” In this regard, we defer to the trial court because the judge was in a better

position to determine if the remarks prejudiced appellants as to require a new trial. See Lupica

at ¶ 55. Accordingly, we do not find that the trial court abused its discretion in denying

appellants’ motion for a new trial.

                                         b.   R.C. 2315.19

       {¶41} Appellants also argue within their first assignment of error that the trial court erred

in denying their new trial motion pursuant to R.C. 2315.19. More specifically, appellants

contend that the damages award was the result of the improper consideration of English’s wealth

and the damages award was excessive compared to similar cases. R.C. 2315.19(A) provides

that a defendant may file a post-judgment motion requesting “a trial court in a tort action shall
review the evidence supporting an award of compensatory damages for noneconomic loss that

the defendant has challenged as excessive.” “An appellate court shall use a de novo standard of

review when considering an appeal of an award of compensatory damages for noneconomic loss

on the grounds that the award is inadequate or excessive.”      R.C. 2315.19(C).

        {¶42} First, we note that appellants argue here, as they did in the trial court, that a new

trial should have been granted pursuant to Civ.R. 59(A) and R.C. 2315.19. However, R.C.

2315.19 is not a mechanism for a motion for a new trial, contrary to what appellants contend.

R.C. 2315.19 provides a statutory mechanism for a party to file a post-judgment motion

challenging an excessive award of compensatory damages.                 Nevertheless, we address

appellants’ arguments below.

        {¶43} Appellants argue that these particular remarks “disingenuously cast English as a

businessman who deployed great resources — at ‘great expense’ — to influence

liability-determining events.” Appellants’ brief at 27. The particular remarks that appellants

take issue with here have been previously highlighted above. Appellants take issue with similar

statements that either portrayed English and his defense team as having expended vast financial

resources or portrayed Martinez as having little to no financial resources.   Appellants argue that

these statements were offered to establish liability on the part of English and reduce Martinez’s

liability.

        {¶44} Having reviewed these remarks, and having considered the entirety of the

proceedings, we find no basis to reverse the trial court’s judgment. Further, appellants did not

object to any of these particular remarks at the trial court level.

        {¶45} Appellants also argue that pursuant to R.C. 2315.19(A)(2), the verdict was

excessive compared to similar cases. R.C. 2315.19(A)(2) affords a defendant the ability to
challenge a jury’s award based upon “[w]hether the verdict is in excess of verdicts involving

comparable injuries to similarly situated plaintiffs.”

       {¶46} Appellants specifically argue here that the jury’s award of noneconomic damages

to both Rojas and Torres “dwarfs” national and Ohio noneconomic damages awards for such

brain injuries. We disagree.

       {¶47} We note, as the trial court did, the following recent Cuyahoga County verdicts:

(1) $27,500,000 in compensatory damages in a mesothelioma case, (2) $23,018,790 in

compensatory damages to a plaintiff, in his early forties, who was a passenger on a Greyhound

bus and sustained a severed lower limb extremity, a severed urethra, and had a lower limb

amputated, and (3) $19,000,000        in compensatory damages in a wrongful death suit of a

41-year-old construction worker struck and killed by a motorist in a construction zone.

       {¶48} This court’s standard of review under R.C. 2315.19 is de novo. “De novo review

encompasses an independent examination of the record and law without deference to the

underlying decision.”    Gateway Consultants Group, Inc., 8th Dist. Cuyahoga No. 104014,

2017-Ohio-1443, at ¶ 22, citing Demeraski v. Bailey, 2015-Ohio-2162, 35 N.E.3d 913 (8th

Dist.). In our independent review of these damages awards, we do not find that the verdicts

were in excess of verdicts involving comparable injuries to similarly situated plaintiffs.

       {¶49} Therefore, the trial court did not err in denying appellants post-judgment motion

pursuant to R.C. 2315.19.

       {¶50} As to their first assignment of error, we find that these remarks were not so

reprehensible or heinous that they compelled the jury’s verdict. In denying appellants’ new trial

motion, the trial court noted that these remarks amounted to “trial strategy.” In this regard, we

defer to the trial court because the judge was in a better position to determine if the remarks
prejudiced appellants as to require a new trial.           See Lupica, 196 Ohio App.3d 687,

2011-Ohio-5381, 965 N.E.2d 318, at ¶ 55.

       {¶51} Accordingly, appellants’ first assignment of error is overruled.

                           2.   Misconduct By The Prevailing Parties

       {¶52} In their second assignment of error, appellants contend that the same remarks we

highlighted above constitute misconduct by the prevailing parties pursuant to Civ.R. 59(A)(2).

More specifically, appellants contend that Rojas’s and Torres’s counsel’s remarks were so gross

and abusive that the trial court should have intervened, sua sponte, to correct the misconduct.

       {¶53} In support of their argument, appellants direct our attention to Pesek, 87 Ohio St.3d

495, 721 N.E.2d 1011. In Pesek, the Ohio Supreme Court granted a new trial on an error in the

jury instructions that disposed of the appeal. The court nevertheless addressed defendant’s trial

counsel’s improper remarks in closing arguments and noted that such remarks could be grounds

for a new trial.   Id. at 500. Plaintiff’s counsel did not object to most of the remarks made by

defendant’s counsel, however, the court noted that ‘“where gross and abusive conduct occurs, the

trial court is bound, sua sponte, to correct the prejudicial effect of counsel’s misconduct.”’

(Emphasis sic.) Id. at 501, quoting Snyder, 15 Ohio St.2d 31, 238 N.E.2d 563.

       {¶54} In Pesek, the court noted that defendant’s counsel “made various assertions and

drew many inferences that were simply not warranted by the evidence.” Id. Some of the

remarks that plaintiff’s counsel took issue with were insults directed at plaintiff’s counsel:

       This is a misrepresentation. A deliberate — and there are a lot of deliberate
       misrepresentations in this case and we’re going to go through any number of
       them.

       ***
       What [plaintiff’s counsel] did following that settlement should raise feelings of
       disgust in you. Disgust that the legal system would allow this to happen and
       disgust at [plaintiff’s counsel] as an attorney.

       ***

       I find that very sad that [plaintiff’s counsel] would be in this courtroom in this
       case asking for 18 million dollars in damages and he would stand behind your
       back over here and laugh, folks. Actually I’m not too surprised because it fits in
       with everything that’s been going on with this case. The half-truths, the untruths,
       the threatening of witnesses, the suppression of evidence. It fits [plaintiff’s
       counsel’s] personality.

Id. at 500. The Ohio Supreme Court further noted that

       [t]o attack counsel for appellant and appellant’s expert witness was inexcusable,
       unprincipled, and clearly outside the scope of final argument. Appellees’
       counsel could have zealously represented his clients without resorting to these
       abusive tactics. Instead, counsel for appellees transcended the bounds of
       acceptable closing argument, creating an atmosphere “surcharged with passion or
       prejudice.” [Jones v. Macedonia-Northfield Banking Co.,] 132 Ohio St. 341,
       351, 7 N.E.2d [(1937)].

Id. at 501-502.

       {¶55} As we noted above, trial counsel is afforded great latitude in presenting their

arguments to the jury.   Considering the standard set forth in Pesek, we do not find the remarks

made by Rojas’s counsel or Torres’s counsel to be so gross and abusive that required the court to

intervene sua sponte. Therefore, we cannot say that the remarks appellants’ counsel takes issue

with “transcended the bounds of acceptable closing argument, creating an atmosphere surcharged

with passion or prejudice.” Id. at 500-501.

       {¶56} Accordingly, appellants’ second assignment of error is overruled.

                               3. Torres’s Economic Damages

       {¶57} In appellants’ third assignment of error, appellants argue that their motion for a

new trial should have been granted because the award of economic damages to Torres was not

supported by the evidence and was the result of jurors’ passion and prejudice.
       {¶58} Appellants contend that pursuant to Civ.R. 59(A)(4) and (6), they are entitled to a

new trial. Civ.R. 59(A) provides, in relevant part,

       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:

       ***

       (4) Excessive or inadequate damages, appearing to have been given under the
       influence of passion or prejudice;

       ***

       (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[.]

       {¶59} Regarding these arguments, this court reviews a trial court’s decision on motions

for a new trial for an abuse of discretion where the argument addresses an issue that is within the

trial court’s discretion. Robinson, 8th Dist. Cuyahoga No. 103787, 2016-Ohio-7397, at ¶ 23.

An abuse of the trial court’s discretion is connoted by a decision that is arbitrary, unconscionable,

or unreasonable. Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140.

       {¶60} Appellants argue the award of $1.8 million in economic damages to Torres was

given under the influence of jurors’ passion and prejudice. For the same reasons set forth in our

analysis above, we reject appellants’ arguments here as we did with appellants’ first and second

assignments of error.

       {¶61} Appellants also argue that the award of $1.8 million in economic damages to

Torres was excessive and not supported by the evidence. In particular, appellants take issue

with the damages award amount constituting Torres’s “lost earning capacity” and medical

expenses. Appellants contend that there is no evidence within the record of Torres’s “work-life

expectancy” or Torres’s medical expenses.
        {¶62} First, we note that the jury’s award of economic damages to Torres constituted all

economic loss suffered as a result of her injuries.         Indeed, no itemized list of the specific

amounts of Torres’s economic damages award exists within the record before this court.

        {¶63} Therefore, to the extent that appellants argue that there is no evidence within the

record of an amount of medical expenses, this is simply untrue. In our review of the record, in

particular “Plaintiff’s exhibit No. 20,” we note that this exhibit clearly lists Torres’s total medical

expenses as $168,460.64. Thus, there was sufficient evidence within the record for the jury to

make a determination as to Torres’s medical expenses.

        {¶64} If one were to conclude that the jury in fact awarded $168,460.64 in medical

expenses to Torres, then the amount of $1,631,539.36 would remain for all other economic

losses, including damages for work-life expectancy.

        {¶65} “‘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.’” Marzullo v. J.D. Pavement Maintenance, 2011-Ohio-6261, 975 N.E.2d
1, ¶ 17 (8th Dist.), quoting Power v. Kirkpatrick, 10th Dist. Franklin No. 99AP-1026, 2000 Ohio
App. LEXIS 3231 (July 20, 2000). “In order to recover lost earnings, a plaintiff must establish
the lost earnings with reasonable certainty.” Austin v. Chukwuani, 2017-Ohio-106, 80 N.E.3d
1199, ¶ 21 (8th Dist.), citing AGF, Inc. v. Great Lakes Heat Treating Co., 51 Ohio St.3d 177,
555 N.E.2d 634 (1990).

        {¶66} In the instant matter, a clinical neuropsychologist, Dr. Jody Pickle,      testified that

Torres has an IQ of 67. Torres suffers from cognitive and behavioral functioning limitations

that greatly affect her daily life.   Dr. Pickle opined that Torres will never be able to work or live

independently, and she does not possess the cognitive capacity to appreciate the severity of her

brain injury. Dr. Pickle opined that “[Torres is] very impulsive. Her what we call executive

function, which is goal-directed behavior, is diminished. [Torres] has lost the ability to kind of

look into the future and see what the consequences of her behavior are going to be.” (Tr. 945.)
Dr. Pickle further opined that “[y]ou get big changes in executive function, and that’s

goal-directed behavior, self-awareness, self-monitoring, impulsive inhibition and all those kinds

of behaviors that make adults successful in managing everything for their own lives.” (Tr. 952.)

       {¶67} Therefore, to the extent that appellants argue that there is no evidence of Torres’s

work-life expectancy, we disagree. In Marzullo, this court was faced with a similar issue.

This court expressed concern with the lack of medical testimony supporting a doctor’s

assumption that a plaintiff’s injury rendered her unemployed for the duration of her life

expectancy. Marzullo at ¶ 21. This court noted that the plaintiff’s medical experts and her

psychological expert did not testify with any reasonable degree of certainty that plaintiff’s injury

prevented her from obtaining her preinjury wage or from performing daily activities.     Id. at ¶ 18.



       {¶68} In the instant matter, Dr. Pickle testified to a reasonable degree of

neuropsychological certainty. (Tr. 947, 949.) Therefore, there existed competent and credible

medical testimony that enabled the jury to conclude that because Torres suffered injuries, her

injuries prevented her from attaining any sort of work-life expectancy whatsoever.

       {¶69} We also note the trial court’s jury instructions on the matter:

       Economic loss means financial harm to the plaintiff resulting from his or her
       injury, including all expenditures for medical care or treatment, rehabilitation
       services or other care, treatment, services, products or accommodations incurred
       as a result of [their] injury and any other expenditures incurred as a result of their
       injury other than attorney fees incurred by the plaintiff.

       You will also consider what loss, if any, of earnings each plaintiff will reasonably
       — will with reasonable certainty sustain in the future as a proximate cause of the
       injury. The measure of such damage is what the evidence shows with reasonable
       certainty to be the difference between the amount he was capable of earning
       before he was injured and the amount he is capable of earning in the future in his
       injured condition.
(Tr. 1467-1468.) The jury could therefore award future economic damages based on any of

these categories provided. See Marzullo, 2011-Ohio-6261, 975 N.E.2d 1, at ¶ 25.

       {¶70} Considering the fact that Torres was 16 years old when she suffered her injuries,

the economic loss criteria provided to the jury by the trial court, and the medical testimony

provided by Dr. Pickle, we do not find the jury’s award of economic damages to be excessive.

“As the trier of fact, the jury was free to accept or reject any or all of appellants evidence relating

to damages.” Id. at ¶ 55, citing Ayers v. Ishler, 5th Dist. Delaware No. 11 CAE 01 0001,

2011-Ohio-4272, ¶ 60.

       {¶71} Accordingly, appellants’ third assignment of error is overruled.

                          B.   Judgment Notwithstanding the Verdict

       {¶72} In their fourth assignment of error, appellants argue that the trial court erred by

denying their motion for judgment notwithstanding the verdict (“JNOV”) on the issue of whether

Torres sustained a “permanent and substantial physical deformity.”

       {¶73} This court reviews de novo a ruling on a JNOV because it presents a question of

law.   Seese v. Admr., Bur. of Workers’ Comp., 11th Dist. Trumbull No. 2009-T-0018,

2009-Ohio-6521, ¶ 11.

       The test to be applied by a trial court in ruling on a motion for judgment
       notwithstanding the verdict is the same test to be applied on a motion for a
       directed verdict. The evidence adduced at trial and the facts established by
       admissions in the pleadings and in the record must be construed most strongly in
       favor of the party against whom the motion is made, and, where there is
       substantial evidence to support his side of the case, upon which reasonable minds
       may reach different conclusions, the motion must be denied. Neither the weight
       of the evidence nor the credibility of the witnesses is for the court’s determination
       in ruling upon either of the above motions.

(Citations omitted.) Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344

N.E.2d 334 (1976); see also Civ.R. 50(A)(4).
       {¶74} In reviewing a decision on a JNOV, this court does not weigh the evidence or

evaluate the credibility of witnesses, but must determine whether there is “sufficient material

evidence presented at trial on this issue to create a factual question for the jury.”     Malone v.

Courtyard by Marriott Ltd. Partnership, 74 Ohio St.3d 440, 445, 659 N.E.2d 1242 (1996).

Further, “[a]bsent a reason to do otherwise, we presume regularity in the jury’s verdict.”

Frederick D. Harris, M.D., Inc. v. Univ. Hosps., 8th Dist. Cuyahoga Nos. 76724 and 76785,

2002 Ohio App. LEXIS 1032, 1042 (Mar. 7, 2002).

       {¶75} Appellants contend that the jury’s findings that Torres’s injury amounted to a

“permanent and substantial physical deformity” is not supported by substantial evidence. In

support of their argument, appellants note that Torres’s head injuries resulted in a scar across her

forehead and face, and down over the bridge of her nose. Appellants argue that the scar had

healed sufficiently, and thus, there was no actual evidence of a “permanent and substantial

physical deformity.”

       {¶76} Pursuant to R.C. 2315.18, Torres would be precluded from recovering more than

$350,000 in noneconomic damages, unless Torres could have proven that the injuries she

sustained were a “permanent and substantial physical deformity.”                 Specifically, R.C.

2315.18(B)(3) states:

       (3) There shall not be any limitation on the amount of compensatory damages that
       represents damages for noneconomic loss that is recoverable in a tort action to
       recover damages for injury or loss to person or property if the noneconomic losses
       of the plaintiff are for either of the following:

       (a) [p]ermanent and substantial physical deformity, loss of use of a limb, or loss of
       a bodily organ system[.]7

           We note that subsection (b) states “[p]hysical functional injury that permanently prevents
       7


the injured person from being able to independently care for self and perform life-sustaining
activities.” However, this subsection does not apply to Torres’s injuries.
       {¶77} As an initial matter, we note that the phrase “permanent and substantial physical

deformity” is not defined within R.C. 2315.18. However, the federal courts have elaborated on

this issue noting that, “when viewed in the context of the other language in [R.C.]

2315.18(B)(3)(a), any ‘permanent and substantial physical deformity’ must be ‘severe and

objective.’” Sheffer v. Novartis Pharmaceuticals Corp., S.D.Ohio No. 3:12-cv-238, 2014 U.S.

Dist. LEXIS 184614, 5 (July 15, 2014), quoting Weldon v. Presley, N.D.Ohio No. 1:10 CV 1077,

2011 U.S. Dist. LEXIS 95248 (Aug. 9, 2011). Indeed, the “statutory cap is lifted only for

‘catastrophic’ injuries.”   Sheffer at 3, citing Arbino v. Johnson & Johnson, 116 Ohio St.3d 468,

2007-Ohio-6948, 880 N.E.2d 420.

       {¶78} In support of their argument, appellants direct this court’s attention to Weldon.      In

Weldon, the trial court granted summary judgment in favor of the defendants because a “small

single scar, merely 4 centimeters long,” did not amount “to a severe disfigurement.” Id. at 21.

The trial court concluded that “[s]uch incidental scars did not rise to the level of ‘substantial

physical deformities’ as required by [R.C.] 2315.18.” Id. Thus, the plaintiff’s scar was not a

“substantial physical deformity” that would remove the statutory cap on damages.

       {¶79} In our further review of applicable case law, we note that there are inconsistencies

amongst the federal cases in applying the “permanent and substantial physical deformity”

standard. For instance, in Bransteter v. Moore, N.D.Ohio No. 3:09 CV 2, 2009 U.S. Dist.

LEXIS 6692 (Jan. 21, 2009), the plaintiff sustained a perforated bowel. The injury necessitated

several surgeries and the plaintiff ultimately had a scar as a result.   Noting the lack of legislative

history or Ohio case law to assist in answering the question, the federal district court determined

that “scarring may be so severe as to qualify as a serious disfigurement.”       Id. at 6. The court

determined that the better course would be to “resolve the issue following trial testimony.” Id.
at 7. Therefore, the district court granted plaintiff’s request for a jury interrogatory for the

“permanent and substantial physical deformity” issue.

       {¶80} We also note Ross v. Home Depot USA Inc., S.D.Ohio No. 2:12-cv-743, 2014 U.S.

Dist. LEXIS 133507 (Sept. 23, 2014).     In Ross, the plaintiff suffered injuries to her shoulder and

knee that resulted in “multiple ‘misshapened,’ ‘unnatural’ and ‘distorted’ conditions in both her

left knee and shoulder.”   Ross at 16. The defendant moved for summary judgment and argued

that the plaintiff’s injuries did not amount to “permanent and substantial physical deformities”

pursuant to R.C. 2315.18. The plaintiff argued that whether she suffered a “permanent and

substantial physical deformity” was a question to be determined by the jury.      The district court

ruled that the evidence presented by the plaintiff was sufficient to create an issue of fact as to

whether her knee or shoulder injury amounted to a “permanent and substantial physical

deformity.” Id.

       {¶81} Taking into consideration our above analysis, we note that the issue of whether

Torres sustained a “permanent and substantial physical deformity” was an issue for the jury to

decide. Ross at 17-18 (noting that “[i]f the plaintiff sets forth sufficient evidence to cross that

evidentiary threshold, whether the injury indeed constitutes a ‘permanent and substantial physical

deformity’ is an issue for the jury to decide.”).   Thus, there existed sufficient evidence for the

jury to determine that Torres sustained “permanent and substantial physical deformities.”

       {¶82} In the instant matter, Torres was very seriously injured. Torres suffered an open

skull fracture with intracranial hemorrhaging and a frontal sinus fracture. As a result, her

injuries necessitated several operations. She is blind in her right eye and has a diminished sense

of taste and smell. Because of the brain injuries, Torres suffers from cognitive and behavioral

functioning limitations that affect her everyday. As noted above in our analysis of Torres’s
economic damages, a clinical neuropsychologist testified to Torres’s diminished cognitive

capabilities and the affect it has on her daily life.

        {¶83} Moreover, we note the following details of Torres’s testimony:

        [Torres’s counsel]: Now, I can tell you I think you look fairly fine. Can you tell
        the jury what bothers you about your face? Can you show what’s different?

        [Torres]: My face, my front right here (indicating).

        [Torres’s counsel]: Can you step forward and let them see a little closer?
        [Torres]: Like my scar on the front (indicating) and the whole side (indicating).

        [Torres’s counsel]: What is that little indentation right there?

        [Torres]: It’s a dent from when they had surgery and they put everything back in.

        [Torres’s counsel]: And is there any other scars on your forehead?

        [Torres]: None besides this (indicating) one.

        [Torres’s counsel]: What about the side?

        [Torres]: This all here (indicating) is all dented.

        {¶84} Thus, in our review of the record, we find that there existed sufficient evidence for

the jury to determine that Torres sustained “permanent and substantial physical deformities.”

Accordingly, appellants’ fourth assignment of error is overruled.

                                           C.   Stipulations

        {¶85} In appellants’ fifth assignment of error, appellants argue that they did not stipulate

that Rojas had a “permanent and substantial physical deformity.” Appellants contend that

although Rojas’s counsel presented an offer to stipulate that Rojas’s injuries amounted to a

“permanent and substantial physical deformity,” the offer to stipulate was never accepted by

appellants’ counsel.
          {¶86} A stipulation is “a voluntary agreement entered into between opposing parties

concerning the disposition of some relevant point in order to avoid the necessity for proof on an

issue.”    Wilson v. Harvey, 164 Ohio App.3d 278, 2005-Ohio-5722, 842 N.E.2d 83, ¶ 12 (8th

Dist.).    Stipulations can further be utilized to “narrow the range of issues to be litigated.” Id.

A stipulation as to a fact effectively “renders proof [of that fact] unnecessary.” Rice v. Rice, 8th

Dist. Cuyahoga No. 78682, 2001 Ohio App. LEXIS 4983, 11 (Nov. 8, 2001). “Once entered

into by the parties and accepted by the court, a stipulation is binding upon the parties as ‘a fact

deemed adjudicated for purposes of determining the remaining issues in the case.’” Bodrock v.

Bodrock, 8th Dist. Cuyahoga No. 104177, 2016-Ohio-5852, ¶ 19, quoting Dejoseph v. Dejoseph,

7th Dist. Mahoning No. 10 MA 156, 2011-Ohio-3173, ¶ 35.

          {¶87} Furthermore, where parties choose to stipulate to facts, they “‘waive any error that

may have occurred with respect to the fact that the trial court decided [the] case without hearing

evidence presented by the parties’ on the issue to which the parties stipulated.” Bodrock at id.,

quoting Rice at id. Thus, “it is ‘fundamentally unfair’ for a party to enter into a stipulation, fail

to object to an alleged inaccuracy, and then argue that a stipulation is against the weight of the

evidence on appeal.” Tisci v. Smith, 2016-Ohio-635, 60 N.E.3d 525, ¶ 25 (3d Dist.), citing

Havens v. Havens, 10th Dist. Franklin No. 11AP-708, 2012-Ohio-2867, ¶ 22.

          {¶88} To the extent that appellants contend that they did not accept the stipulation that

Rojas’s injuries amounted to “permanent and substantial physical deformities,” we note the

following exchange:

          THE COURT: I wanted to know if there’s an issue as to whether the injuries to
          either involve an amount — do they amount to a permanent and substantial
          physical deformity?

          [Rojas’s counsel]:   Yes.
THE COURT: I’m asking the defendants.

[Appellants’ counsel]: They certainly do for [Rojas]. Well, say the language
again from the caps statute. Can you just read it again?

THE COURT: “Do the injuries and losses involved amount to a permanent and
substantial physical deformity?”

[Appellants’ counsel]:    They don’t for [Torres].

THE COURT:       You want me to submit an interrogatory to the jury as to that
issue?

[Appellants’ counsel]:    Well —

THE COURT: It’s okay.           If you do, you do.

[Appellants’ counsel]:    I mean, permanent — is it permanent and physical?     It’s
not or?

THE COURT: Amount to a permanent and substantial physical deformity.

[Appellants’ counsel]:    [Torres] does not have a physical deformity and it’s and.

THE COURT: So we want an interrogatory about this?

[Appellants’ counsel]:    [Rojas] has a physical deformity.

[Torres’s counsel]:   What is he reading?

[Rojas’s counsel]:    First of all, [Torres’s counsel] is not here.

THE COURT:       It is a caps issue.

[Rojas’s counsel]: Yes, it is. For [Rojas], I think [appellants counsel] is
stipulating that [Rojas] has a substantial physical deformity. I don’t think there’s
an issue with regard to [Rojas].

THE COURT: You’re not getting more copies. I’m not wasting anymore
paper, but I will submit the others to the jury. Do you agree?

[Martinez’s counsel]:    Yes.

[Rojas’s counsel]:    [Appellants’ counsel] is saying that [Torres] does not have a
substantial.
[Appellants’ counsel]:   A substantial permanent physical deformity.

[Torres’s counsel]: Physical deformity would be the scars to her head when she
had the surgery performed, and I’m suggesting those are, in fact, substantial
physical deformities.

[Appellants’ counsel]: I would agree it is a physical deformity, but I would
disagree that it is substantial.

[Rojas’s counsel]:   So we do not confuse the jury, should we pose the question
for [Rojas]?

THE COURT: No.

[Rojas’s counsel]:   We are just stipulating to it.

[Appellants’ counsel]: I mean, I’m not on the record stipulating that
[Rojas] has a substantial and permanent physical deformity. I’m just saying it
is a question for the jury and that I agree that —

THE COURT: Wait a minute. You want this for [Rojas] as well?

[Appellants’ counsel]: No, no, I’m saying — I can just anticipate —
THE COURT: Just as to [Torres]?

[Appellants’ counsel]:     Yes.    I’m anticipating [Rojas’s counsel] closing
argument, [appellants’ counsel] has already stipulated a substantial —

THE COURT: It’s not an issue. Don’t even mention it. It is not necessary for
you to mention it.

[Rojas’s counsel]: Based on the Court, after this is all over with, there is no
question that [Rojas] has a substantial physical deformity.

THE COURT: That is correct.

[Rojas’s counsel]:   I won’t mention it.

[Appellants’ counsel]:   And I’m not objecting that it is not referenced regarding
[Rojas].

[Rojas’s counsel]:   I mean, I do talk about [Rojas’s] physical     deformity.

[Appellants’ counsel]: Sure. Thank you, Your Honor. I agree. The jury can
consider it certainly for [Torres], but I disagree that it is a substantial physical
deformity.
(Tr. 1403-1407.)

       {¶89} First, we note that appellants’ counsel did not object to the stipulation as to Rojas’s

injuries amounting to “permanent and substantial physical deformities.” Therefore, appellants

have forfeited all but plain error. The Ohio Supreme Court has recently discussed plain error in

the civil context in State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 40.

       [I]n order for a court to find plain error in a civil case, an appellant must establish
       (1) a deviation from a legal rule, (2) that the error was obvious, and (3) that the
       error affected the basic fairness, integrity, or public reputation of the judicial
       process, and therefore challenged the legitimacy of the underlying judicial
       process. [Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997)].
       As when they apply criminal plain-error review, reviewing courts applying civil
       plain-error review “must proceed with the utmost caution, limiting the doctrine
       strictly to those extremely rare cases where exceptional circumstances require its
       application to prevent a manifest miscarriage of justice.” Id. at 121.

       {¶90} Second, the result of the above exchange is painfully clear: appellants’ counsel

stipulated to Rojas’s injuries amounting to “permanent and substantial physical deformities.”

Therefore, to the extent that appellants argue that the stipulation was never “accepted” by

appellants’ counsel, we disagree.

       {¶91} In particular, when asked by the trial court whether Rojas’s injuries amounted to

“permanent and substantial physical deformities,” appellants’ counsel stated that the injuries

“certainly do for [Rojas].” And thereafter appellants’ counsel stated that the injuries “don’t

[amount to a “permanent and substantial physical deformity”] for [Torres].”              (Tr. 1403.)

Further, with regards to Torres’s injuries, appellants’ counsel further stated that “I would agree it

is a physical deformity, but I would disagree that it is substantial.” (Tr. 1405.)

       {¶92} Moreover, to the extent that appellants argue that the trial court disrupted their

statements, we note that the trial court gave all parties ample opportunity to express their

concerns regarding the stipulations. Indeed, the trial court gave all parties, especially appellants’
counsel, an opportunity to withdraw from the stipulation. Therefore, in our review of the record,

we can only conclude that appellants’ counsel chose to stipulate to Rojas’s injuries.

        {¶93} Accordingly, appellants’ fifth assignment of error is overruled.

                                D.    Damages Capped at $350,000

        {¶94} In their sixth assignment of error, appellants argue that the trial court lacked

jurisdiction to award Rojas and Torres noneconomic damages greater than $350,000.

        {¶95} Appellants urge us to “mold” the verdict to award both Rojas and Torres $350,000

in damages. Pursuant to R.C. 2315.18(B)(2), if a plaintiff fails to prove a “permanent and

substantial physical deformity,” damages are capped at $350,000.          Appellants contend that

because Rojas and Torres did not each prove a “permanent and substantial physical deformity,”

the trial court lacked jurisdiction to enter judgment on an award above the statutory limit.

        {¶96} We note that the trial court did not include an interrogatory requiring the jury to

make a specific finding as to whether Rojas’s injuries were a “permanent and substantial physical

deformity.” However, as we noted in our above analysis, the parties stipulated that Rojas had a

“permanent and substantial physical deformity.” Therefore, appellants have waived any error as

it relates to not including the interrogatory as to Rojas’s injuries.

        {¶97} To the extent that appellants argue that Torres’s award should have been limited to

$350,000, we note the following interrogatory: “do the injuries and losses of Kiara Torres

amount to a permanent and substantial physical deformity?” to which all members of the jury

panel responded “yes.” Thus, appellants’ argument to the contrary is wholly without merit.

        {¶98} Accordingly, appellants’ sixth assignment of error is overruled.

                                     E.   Prejudgment Interest
        {¶99} In its seventh, eighth, and ninth assignments of error, Westfield argues that the trial

court erred in its award of prejudgment interest to Rojas and Torres.

                                      1.   Good Faith Efforts

        {¶100} In its ninth assignment of error, Westfield specifically argues that the trial court

erred in finding Westfield had not made good faith efforts to settle the case.

        {¶101} R.C. 1343.03(C) controls awards of prejudgment interest and provides, in relevant

part:

        (1) If, upon motion of any party to a civil action that is based on tortious conduct,
        that has not been settled by agreement of the parties, and in which the court has
        rendered a judgment, decree, or order for the payment of money, the court
        determines at a hearing held subsequent to the verdict or decision in the action
        that the party required to pay the money failed to make a good faith effort to settle
        the case and that the party to whom the money is to be paid did not fail to make a
        good faith effort to settle the case, interest on the judgment, decree, or order shall
        be computed as follows[.]

        {¶102} Furthermore, R.C. 1343.03(C) “requires that the trial court determine the issue of

prejudgment interest ‘at a hearing held subsequent to the verdict or decision in the action.’”

Galmish v. Cicchini, 90 Ohio St.3d 22, 33, 734 N.E.2d 782 (2000), quoting Moskovitz v. Mt.

Sinai Med. Ctr., 69 Ohio St.3d 638, 658, 635 N.E.2d 331 (1994). The trial court must find that

the party required to pay the judgment failed to make a good faith effort to settle and that the

party to whom the judgment is to be paid did not fail to make a good faith effort to settle the

case. Moskovitz at id.

        {¶103} The party seeking an award of prejudgment interest bears the burden of proof.

Damario v. Shimmel, 8th Dist. Cuyahoga Nos. 90760 and 90875, 2008-Ohio-5582, ¶ 54.

        In determining whether to award a motion for prejudgment interest, the trial court
        must consider whether the nonmoving party: “(1) fully cooperated in discovery
        proceedings, (2) rationally evaluated its risks and potential liability, (3) did not
         unnecessarily delay the proceedings, and (4) made a good faith settlement offer or
         responded in good faith to an offer from the other party.”

Link v. FirstEnergy Corp., 2014-Ohio-5432, 25 N.E.3d 1095, ¶ 60 (8th Dist.), quoting Damario

at ¶ 53, citing Kalain v. Smith, 25 Ohio St.3d 157, 159, 495 N.E.2d 572 (1986).

         {¶104} Furthermore, if a party has a good faith, objectively reasonable belief that they

have no liability, they need not make a monetary settlement offer. Kalain at 159. Whether a

party’s settlement efforts are made in good faith is a determination within the sound discretion of

the trial court. Id., citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248

(1985). As such, we review the trial court’s determination for an abuse of discretion.

         {¶105} Westfield argues that it had a good faith, objectively reasonable belief that they

had no liability in the instant matter, and, as such, it was not required to make a monetary

settlement offer. Westfield’s belief was predicated upon its own independent investigation and

evaluation.

         {¶106} On the day of the accident, Westfield assigned an investigator to examine the

claims arising from the accident. In particular, Westfield found that the police report generated

by the Cleveland Police Department as a result of the accident was favorable. In the police

report, investigating officers noted that Martinez was traveling well in excess of the posted 35

mph speed limit. Investigating officers also noted that the result of the accident was Martinez’s

“inattention” and noted that English was a noncontributing factor in the accident. Martinez was

ultimately charged with two counts of aggravated vehicular assault, and pled guilty to an

amended count of negligent assault.

         {¶107} Westfield also relied upon an accident reconstructionist’s report. This report

concluded that Martinez was driving 62 mph and caused the accident by rear-ending English’s

truck.
       {¶108} In addition, Westfield obtained a favorable arbitration decision that found

Martinez to be 100 percent liable. English’s truck had sustained damage as a result of the

accident and English submitted a collision claim to Westfield for the damage. Thereafter,

Westfield sent Martinez’s insurance company a subrogation demand. Martinez’s insurance

company denied liability and Westfield filed for arbitration. As a result, the arbitration decision

found Martinez to be 100 percent liable, and found in favor of Westfield.

       {¶109}     Once their evaluation was completed, Westfield then met with its defense

counsel.     Westfield’s investigative team and defense counsel jointly assessed the accident.

These parties subsequently agreed that Westfield had no liability in the accident.

       {¶110} In our review of the record, we find that Westfield had a good faith, objectively

reasonable belief that it had no liability.   To this end, Westfield was not required to make a

monetary settlement offer. Link, 2014-Ohio-5432, 25 N.E.3d 1095, at ¶ 62.            See also Baker

v. Cleveland, 8th Dist. Cuyahoga No. 93952, 2010-Ohio-5588, ¶ 59.

       {¶111} Although we find that Westfield was not required to make a monetary settlement

offer, we note that Westfield did in fact make such an offer. On March 25, 2014, the parties

conducted a settlement conference where Westfield had offered Rojas a settlement of $100,000

and offered Torres a settlement of $25,000. This offer was rejected by both Rojas and Torres.

Further, Westfield made a “high-low” settlement offer of $125,000 to $2,000,000, which was

rejected by Rojas and Torres.

       {¶112} In addition, Rojas and Torres made settlement offers that were rejected by

Westfield.     One week before trial, Rojas and Torres made an offer for policy limits.        The

policy limit totaled $2,000,000.    This offer was rejected by Westfield. Also, throughout the

proceedings, Rojas and Torres made demands “within” policy limits that were rejected by
Westfield.     Furthermore, during trial, Rojas and Torres made a joint offer of a combined

$1,900,000 which was also rejected by Westfield.

        {¶113} Based on these facts, we find that the trial court abused its discretion in finding

that Westfield did not make good faith efforts to settle the case. In making this finding, we are

cognizant that the trial court was actively involved throughout the entirety of these proceedings,

including settlement negotiations and pretrial hearings, and, therefore, “was in the best position

to evaluate whether good faith was exercised by both parties in settling this case.” Jontony v.

Colegrove, 2012-Ohio-5846, 984 N.E.2d 368, ¶ 67 (8th Dist.). Nevertheless, we find that

Westfield’s belief that it had no liability is supported by competent, credible evidence. As such,

we vacate the trial court’s award of prejudgment interest to Rojas and Torres.

        {¶114} Accordingly, Westfield’s ninth assignment of error is sustained.

        {¶115} Pursuant to R.C. 1343.03(C)(1), once it has been established that “the party

required to pay” the award of prejudgment interest did not fail to make a good faith effort to

settle the case, we conclude that the trial court abused its discretion in its award of prejudgment

interest.    Moskovitz, 69 Ohio St.3d at 658, 635 N.E.2d 331. As such, Westfield’s seventh and

eighth assignments of error are moot.

                                        III.   Conclusion

        {¶116} Based on the foregoing analysis, we cannot say that the trial court abused its

discretion in denying appellants’ motion for a new trial.   Nor can we say the trial court erred in

denying appellants’ post-judgment motion pursuant to R.C. 2315.19. The awards of damages

were not excessive given the severity of the injuries to both Rojas and Torres.    Moreover, there

existed sufficient evidence for the jury to determine that Torres’s injuries amounted to a

“permanent and substantial physical deformity,” the parties clearly stipulated that Rojas’s injuries
amounted to a “permanent and substantial physical deformity,” and Torres’s and Rojas’s

damages awards were not capped at $350,000. Lastly, the trial court abused its discretion in

finding that Westfield did not make good faith efforts to settle the case, and erred in awarding

prejudgment interest.

       {¶117} Judgment affirmed in part, and vacated in part.

       It is ordered that appellants and appellees share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

ANITA LASTER MAYS, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN PART, CONCURS IN JUDGMENT ONLY IN
PART AND DISSENTS IN PART WITH SEPARATE OPINION


SEAN C. GALLAGHER, P.J., CONCURRING IN PART, CONCURRING IN JUDGMENT
ONLY IN PART AND DISSENTING IN PART:

       {¶118} I respectfully concur in judgment only with the majority opinion in paragraphs

1-60. I do not believe it was proper for plaintiffs’ counsel to argue that defense counsel was

misstating the law on liability. Defense counsel had every right to present a theory of the case,

and the defense’s theory — that liability is an either/or proposition based on the facts of the case,

in that either Martinez or English was responsible for the accident — is not a misstatement of the

law. In fact, the jury agreed that it was an all-or-nothing proposition. The defense had a firm
basis for advancing such a theory. Martinez was indicted on two counts of aggravated vehicular

assault and pled guilty to a reduced charge of negligent assault for his conduct in causing the

collision. English was not cited or charged by police. Nevertheless, because the trial court

gave a cautionary instruction on counsel’s comments that the jury is presumed to have followed,

I concur in judgment only with the majority’s outcome on the first two assigned errors.

        {¶119} On the third assigned error, I respectfully dissent. Torres was awarded $1.8

million for economic damages stemming from her lost earning capacity and past medical

expenses. Torres provided no other basis to support the economic damages sought. Although

the majority concludes that other economic damages could have been considered by the jury, the

jury was not provided any other measure of damages or any other method of calculating

economic damages. Tort recovery may not be had for damages that are speculative, and thus we

must limit the review to the damages actually sought.

        {¶120} Torres asked the jury to consider her $168,000 of past medical expenses as

economic damages (Tr. 1523:9-16) but failed to present evidence of lost earning capacity

sufficient to justify the remaining portion of the damages award.   Torres also argued in closing

that the jury could assume a minimum wage income in the absence of expert evidence

demonstrating her vocational opportunities and lost earning capacity. Tr. 1524:1-7. Even if

that was an appropriate method of seeking lost earnings or wages, the jury was not provided any

means to calculate the present value of the lost earnings over Torres’s lifetime.         The only

economic damages demonstrated through the record were her medical expenses.                  I am

constrained by my prior position from MADFAN, Inc. v. Makris, 2017-Ohio-979, 86 N.E.3d 707,

¶ 8 (8th Dist.), which I believe is controlling on this issue.
         {¶121} I also cannot conclude from the record that the parties stipulated that Rojas

incurred a substantial and permanent physical deformity for the purposes of the noneconomic

damages cap under R.C. 2315.18(B)(3)(a). Neither Torres nor Rojas filed a responsive briefing

to address this issue. App.R. 16(A)(7).8       As the majority notes, defense counsel specifically

stated that she was not on record to a stipulation, but she conceded there was sufficient evidence

to put the issue to the jury for consideration.9   After that discussion, Rojas asked the trial court

to include a jury interrogatory as it related to Rojas.      The trial court denied Rojas’s request

without explanation. Rojas’s counsel attempted to clarify by stating that there is no question

that Rojas has a “substantial physical deformity,” to which the court stated “that is correct.”

That is not a stipulation, but instead is the court taking judicial notice of what is actually a triable

issue of fact. Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d

420, ¶ 40 (courts must apply the statutory law to the facts as found by the jury; they cannot alter

the finding of facts themselves).        The issue should have been presented to the jury for

consideration as it was for Torres.

         {¶122} Importantly, the defense has no burden to object to the failure to submit a jury

interrogatory that determines whether the limitation to noneconomic damages applies. It is the

plaintiffs’ burden to demonstrate that the limitations set forth under R.C. 2315.18(B) do not

apply.       If anything, Rojas should have renewed his objection to the trial court’s failure to

provide the requested interrogatory as it pertained to his case.



          Neither Rojas or Torres included a responsive argument to the third, fourth, or fifth
         8


assignments of error. App.R. 16(A)(7). Their joint brief appears to address issues and assigned
errors not raised in this appeal.

        Tr. 1406:3-7. “I’m not on the record stipulating that he [Rojas] has a substantial and
         9


permanent physical deformity. I’m just saying it is a question for the jury * * *.”
       {¶123} I fully concur with the majority’s resolution of the seventh, eighth, and ninth

assignments of error.

       {¶124} For the foregoing reasons, I cannot fully join the majority’s decision and

respectfully dissent in part. I would remand for a new trial on damages.
