[Cite as Fields v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-3207.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Gerald D. Fields,                                      :

                 Plaintiff-Appellant,                  :
                                                                         No. 13AP-1079
v.                                                     :             (Ct. of Cl. No. 2010-12281)

Ohio Department of Rehabilitation                      :            (REGULAR CALENDAR)
and Correction,
                                                       :
                 Defendant-Appellee.
                                                       :



                                            D E C I S I O N

                                       Rendered on July 22, 2014


                 Swope and Swope, and Richard F. Swope, for appellant.

                 Michael DeWine, Attorney General, and Amber Wootton
                 Hertlein, for appellee.

                             APPEAL from the Court of Claims of Ohio

KLATT, J.
        {¶ 1} Plaintiff-appellant, Gerald D. Fields, appeals a judgment of the Court of
Claims of Ohio. For the following reasons, we affirm.
        {¶ 2} Fields is an inmate in the custody of defendant-appellee, the Ohio
Department of Rehabilitation and Correction ("DRC"). Fields suffers from cerebral palsy,
which has weakened the right side of his body and impairs his ability to walk. Fields is
also a diabetic.
        {¶ 3} On February 6, 2010, Fields left his dormitory at the Noble Correctional
Institution to visit the infirmary. Fields needed to visit the infirmary to receive his
morning insulin injection. Due to a recent snowfall, eight inches of snow covered the path
No. 13AP-1079                                                                           2

to the infirmary designated for prisoner use. Another walkway, however, was clear.
Fields sought permission from two correctional officers to use the cleared walkway. Both
officers denied Fields' request, even though Fields used a cane and explained his fear of
falling. Having no choice, Fields attempted to traverse the snow-covered path, but he fell.
        {¶ 4} According to Fields, he initially felt numb after the fall and then began
experiencing persistent pain in his left hip and knee. Once back in his dormitory, Fields
wrote a kite, a form of communication between prisoners and institutional staff, to the
warden. In the kite, Fields explained the circumstances that precipitated his fall and
stated that, "I hurt my back and my leg and knees." On February 9, 2010—three days
after the fall—Fields submitted a health services request, wherein he represented that,
"when I fell in snow[,] I hurt my back * * * and my arms and neck." Fields attended the
February 11, 2010 nurse's sick call, but his medical records contain no details regarding
the visit.
        {¶ 5} On or about April 22, 2010, DRC transferred Fields to the Marion
Correctional Institution ("Marion").    Fields saw a nurse at the Marion infirmary on
April 26, 2010. That nurse documented that Fields complained of "hip and back pain[;]
more in [his] r[ight] hip[;] upon standing[,] pain is in back and [in] r[ight] [lower] calf
upon sitting."
        {¶ 6} According to Fields' medical records, he first complained of pain in his left
hip during a May 4, 2010 doctor's sick call. A physician assistant recorded in a progress
note that Fields complained of a "fall in Feb. at Noble" and "since [the] fall, pain
const[ant] [and] sharp" had been radiating down his left leg. Fields also complained of
"intermittent [and] dull" pain in his left hip. The physician assistant ordered an x-ray of
Fields' left hip, but the x-ray showed no abnormalities.
        {¶ 7} The first complaint recorded of pain in the left knee appears in progress
notes dated March 9, 2012. During a doctor visit on that date, Fields complained of "pain
radiat[ing] from [his] left hip to knee." A physician examined Fields' knee and found it to
be normal.
        {¶ 8} Fields' medical records show that, after May 4, 2010, Fields complained
periodically about pain in his left hip to Marion medical professionals. Fields complained
No. 13AP-1079                                                                            3

less often of pain in his left knee.         Over the years, Fields received ibuprofen,
acetaminophen, naproxen, and other medications to lessen the pain.
       {¶ 9} At least two medical professionals assessed Fields as having arthritis in his
left hip and/or knee.     One physician, Dr. Piefer, recorded in a progress note dated
November 14, 2012 that he felt that Fields' "r[ight-]sided problems ha[d] contributed to
l[eft] knee and l[eft] hip symptoms." Fields had "r[ight-]sided problems" as a result of his
cerebral palsy.
       {¶ 10} On December 1, 2010, Fields filed a complaint against DRC alleging that
DRC's negligence caused his fall. The trial court bifurcated the issues of liability and
damages. After a trial on liability, a magistrate recommended judgment in Fields' favor.
The trial court adopted the magistrate's decision and entered judgment for Fields.
       {¶ 11} At a trial on damages, Fields testified regarding his fall and the subsequent
pain he felt. Fields stated that he still experiences pain in his left hip and knee, although
not at the level he felt immediately after the fall. Fields stands often because sitting
causes his left hip and leg to feel numb. He sometimes has difficulty sleeping because he
cannot get comfortable.
       {¶ 12} Fields also introduced the testimony of Ralph Lyon, who serves as both the
medical director and a staff physician at Marion. Dr. Lyon explicated Fields' medical
records. During direct examination, Fields' attorney asked Dr. Lyon whether he had an
opinion, based on a reasonable degree of medical certainty, as to whether Fields' chronic
pain in his left hip and knee were proximately caused by the trauma he experienced when
he fell. Dr. Lyon answered, "I don't have enough information to make that assumption.
It's possible, but I can't say more than that." (Tr. 78-79.)
       {¶ 13} On cross-examination, DRC's attorney asked Dr. Lyon if he agreed with the
opinion Dr. Piefer expressed in a progress note that Fields' right-sided problems
contributed to the left knee and hip pain. The following then occurred:
              A: If I understand correctly, what he's thinking, it would be
              that - -

              MR. SWOPE: I'm going to object, if he has to speculate - -

              THE WITNESS: Yes, I have to speculate.

              THE COURT: I will sustain that one.
No. 13AP-1079                                                                             4

                BY MS. VOLP:

                Q: Is it possible that Mr. Fields' right-sided limp due to his
                cerebral palsy has caused pain in his left hip?

                A: It's possible.

                MR. SWOPE: Object; move to strike. Everything is possible.

                MS. VOLP: You had him testify to possibilities, as well.

                THE COURT: I'll overrule. I mean, it is what it is.            It's
                possible. I don't think that's calling for him to speculate.

(Tr. 100-01.)
       {¶ 14} After Dr. Lyon concluded his testimony, Fields introduced the testimony of
Troy Lumpkin, a fellow inmate of Fields when Fields was assigned to Noble. Lumpkin
testified that Fields "really couldn't move" after his fall. (Tr. 8.) Lumpkin also stated that
Fields complained that the fall caused pain along the whole right side of his body.
       {¶ 15} On June 25, 2013, the magistrate issued a decision in which he
recommended that the trial court award Fields $2,500 for his pain and suffering. The
magistrate concluded that, while Fields' fall on the snow-covered walkway "caused him to
sustain some temporary pain or soreness throughout his body for several days," Fields
failed to prove "a causal relationship between the fall and the persistent pain he complains
of in his left hip and knee."       (R. 111, at 5.)   Thus, the amount of the award only
compensated Fields for the transitory pain he experienced immediately after the fall, not
the chronic pain in his left hip and knee.
       {¶ 16} Fields objected to the magistrate's decision, but the trial court overruled the
objections and adopted the decision. On December 4, 2013, the trial court issued a
judgment rendering judgment for Fields in the amount of $2,500.
       {¶ 17} Fields now appeals the December 4, 2013 judgment, and he assigns the
following errors:
                ASSIGNMENT OF ERROR NO. 1.)    THE TRIAL
                COURT AND MAGISTRATE ERRED WHEN THEY
                RULED PLAINTIFF-APPELLANT FAILED TO PROVE
                HIS PERSISTENT PAIN, SUFFERED SINCE THE
                FALL ON FEBRUARY 6, 2010, AT THE NOBLE
No. 13AP-1079                                                                            5

              CORRECTIONAL INSTITITUTION, WAS CAUSED BY
              THE FALL.

              ASSIGNMENT OF ERROR NO. 2.)      THE TRIAL
              COURT AND MAGISTRATE ERRED WHEN THEY
              RELIED ON A MEDICAL REQUEST FORM DATED
              FEBRUARY 6, 2010 AND A KITE TO THE WARDEN,
              WHEN THE REQUEST STATES HE FELL TWICE
              WHEN NO MEDICAL RECORD OR TESTIMONY
              DESCRIBES THE FALL, ITS NATURE OR FACTS
              RELATED TO THE FALL, AS WELL AS A
              DESCRIPTION OF INJURIES.

              ASSIGNMENT OF ERROR NO. 3.)    THE TRIAL
              COURT AND MAGISTRATE ERRED AND FAILED TO
              CONSIDER    PLAINTIFF-APPELLANT'S  PRIOR
              MEDICAL HISTORY OF LACK OF PAIN AND THE
              FACT THAT PLAINTIFF-APPELLANT WAS MORE
              SUSCEPTIBLE TO BACK, KNEE AND HIP PAIN
              BECAUSE OF HIS FRAGILE CONDITION CAUSED
              BY CEREBRAL PALSY.

              ASSIGNMENT OF ERROR NO. 4.)      THE TRIAL
              COURT   AND    MAGISTRATE      ERRONOUSLY
              ALLOWED THE DEFENSE TO ELICIT AN OPINION
              ABOUT POSSIBILITIES AND TO RELY ON THE
              HEARSAY OPINION OF DR. PIEFER.

              ASSIGNMENT OF ERROR NO. 5.)     THE TRIAL
              COURT'S AND MAGISTRATE'[S] DECISIONS ARE
              AGAINST THE MANIFEST WEIGHT OF THE
              EVIDENCE, NOT SUPPORTED BY SUFFICIENT
              EVIDENCE AND [ARE] CONTRARY TO LAW.

       {¶ 18} Because they are interrelated, we will address Fields' first, second, third,
and fifth assignments of error together. Essentially, by these assignments of error, Fields
argues that the trial court should have awarded him damages for the chronic pain in his
left hip and knee. Fields contends that that the manifest weight of the evidence does not
sustain the finding that the fall did not proximately cause his chronic pain. We disagree.
       {¶ 19} Appellate courts will not reverse judgments supported by some competent,
credible evidence as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279, 280 (1978). " 'Weight of the evidence concerns "the
inclination of the greater amount of credible evidence, offered in a trial, to support one
No. 13AP-1079                                                                                6

side of the issue rather than the other. * * * Weight is not a question of mathematics, but
depends on its effect in inducing belief." ' " (Emphasis omitted.) Eastley v. Volkman, 132
Ohio St.3d 328, 2012-Ohio-2179, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380,
387 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990). Thus, in reviewing a
judgment under the manifest-weight standard, a court of appeals weighs the evidence and
all reasonable inferences, considers the credibility of witnesses, and determines whether,
in resolving conflicts in the evidence, the finder of fact clearly lost its way. Eastley at ¶ 20.
In so applying the standard, the court of appeals "must always be mindful of the
presumption in favor of the finder of fact." Id. at ¶ 21.
       {¶ 20} Compensatory damages are intended to make the plaintiff whole for the
wrong done to him or her by the defendant. Fantozzi v. Sandusky Cement Prods. Co., 64
Ohio St.3d 601, 612 (1992). Compensatory damages in a personal injury case include
compensation for direct pecuniary loss, such as medical expenses; loss of time or money
from the injury; loss due to the permanency of the injuries; disabilities or disfigurement;
and physical and mental pain and suffering. Id.; Stephenson v. Upper Valley Family
Care, Inc., 2d Dist. No. 07CA12, 2008-Ohio-2899, ¶ 79. Before a plaintiff can recover any
such damage, he or she must prove that the act complained of was the direct and
proximate cause of the injury for which the plaintiff seeks compensation. Strother v.
Hutchinson, 67 Ohio St.2d 282, 286 (1981).
       {¶ 21} Here, the trial court did not believe Fields' assertion that the fall directly and
proximately caused the chronic pain in his left hip and knee. To support its finding, the
trial court pointed out that the injuries Fields complained of immediately after the
accident did not correspond with his later complaints. After the fall, Fields complained to
Lumpkin about pain on his right—not left—side. When seeking medical attention for his
injuries, Fields claimed that he had hurt his back, arm, and neck—not his hip or knee.
Thereafter, during an April 26, 2010 nursing assessment, Fields stated that his pain was
primarily in his right—not left—hip. The first documented complaint of left hip pain
occurred approximately three months after the fall. Fields' medical records include no
specific complaint of left knee pain until March 9, 2012—over two years after the fall.
       {¶ 22} Second, the trial court found telling the absence of any expert testimony
that the fall proximately caused Fields' chronic left hip and knee pain. The best Fields
No. 13AP-1079                                                                                                7

could muster was Dr. Lyon's testimony that the fall possibly caused the pain. Dr. Lyon
later identified a second possible cause; namely, that the pain could be due to
overcompensation for the neuropathy on Fields' right side.1
          {¶ 23} On appeal, Fields attacks the trial court's finding of a lack of proximate
cause by referring to evidence that, according to Fields, demonstrates that he did not have
any left hip or knee pain until after the fall. Fields also points to his own testimony that
the fall caused his left hip and knee pain. Ultimately, the trial court did not find Fields'
evidence as persuasive as DRC's evidence. We concur with the trial court's assessment of
the evidence.
          {¶ 24} After reviewing the record, we conclude that competent, credible evidence
supports the trial court's conclusion that Fields failed to show the fall proximately caused
his chronic left hip and knee pain. The trial court, therefore, did not err in refusing to
award him damages to compensate him for that pain. Accordingly, we overrule Fields'
first, second, third, and fifth assignments of error.
          {¶ 25} By Fields' fourth assignment of error, he argues that the trial court erred in
allowing into evidence Dr. Piefer's progress note and Dr. Lyon's testimony that Fields'
right-sided limp possibly caused the pain in his left hip. We disagree.
          {¶ 26} The admission of evidence is within the discretion of the trial court.
Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, ¶ 38. Thus, a court
of appeals will only reverse a decision admitting or excluding evidence upon a showing of
an abuse of discretion. Id.; Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440,
2013-Ohio-1507, ¶ 22. A trial court abuses its discretion if its decision is unreasonable,
arbitrary, or unconscionable. Johnson at ¶ 22; Banford at ¶ 38.
          {¶ 27} To preserve error for appellate review, a party must make a timely objection
to the admission of evidence and state the specific ground of the objection if not otherwise
apparent from the context of the testimony. Evid.R. 103(A)(1); Brooks-Lee v. Lee, 10th
Dist. No. 03AP-1149, 2005-Ohio-2288, ¶ 43. Failure to object waives any error, other
than plain error, on appeal. Id. Here, Fields did not object to the admission of the
progress note containing Dr. Piefer's opinion. Therefore, we review the admission only
for plain error.

1   As discussed below, we reject Fields' argument that the trial court erred in admitting this testimony.
No. 13AP-1079                                                                             8

         {¶ 28} "In appeals of civil cases, the plain error doctrine is not favored and may be
applied only in the extremely rare case involving exceptional circumstances where error,
to which no objection was made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy of
the underlying judicial process itself." Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997),
syllabus. Applying this standard, we cannot conclude that the admission of Dr. Piefer's
progress note rises to the level of plain error.
         {¶ 29} Unlike Dr. Piefer's progress note, Dr. Lyon's testimony was the subject of an
objection. Fields argues that the trial court abused its discretion in admitting Dr. Lyon's
testimony because he stated that Fields' right-sided limp was a possible—not probable—
cause of the pain in his left hip. We are not persuaded.
         {¶ 30} When identifying a proximate cause of an injury, an expert witness, whether
testifying for the plaintiff or defendant, must express his opinion in terms of probability.
Stinson v. England, 69 Ohio St.3d 451 (1994), paragraph one of the syllabus. This rule,
however, does not apply to the case at bar. Dr. Lyon expressly declined to offer any
opinion regarding the proximate cause of Fields' chronic pain.           In response to the
questioning of Fields' attorney on direct examination, Dr. Lyon would only state that
Fields' fall was a possible cause of his chronic pain. We conclude that DRC could counter
this testimony by cross-examining Dr. Lyon about other possible causes.
         {¶ 31} In sum, Fields has failed to demonstrate any reversible error in the
challenged evidentiary rulings. Accordingly, we overrule Fields' fourth assignment of
error.
         {¶ 32} For the foregoing reasons, we overrule all of Fields' assignments of error,
and affirm the judgment of the Court of Claims of Ohio.
                                                                         Judgment affirmed.

                       CONNOR and LUPER SCHUSTER, JJ., concur.
