[Cite as Smith v. Simkanin, 2011-Ohio-6123.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BRIAN SMITH,                                      JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant,                      Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
v.
                                                  Case No. 2011 CA 00045
RACHEL SIMKANIN,

        Defendant-Appellee.                       OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pelas, Case No. 2010 CV 00413


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        November 28, 2011



APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee

PAUL R. GARLOCK                                ANNE M. MARKOWSKI
STANLEY R. RUBIN                               WILLIAMS, MOLITERNO & SCULLY
437 Market Avenue North                        2241 Pinnacle Parkway
Canton, Ohio 44702                             Twinsburg, Ohio 44087
                                                                                          2

Wise, J.

       {¶ 1} Plaintiff-Appellant Brian Smith appeals the decision of the Court of

Common Pleas, Stark County, which denied his motion for judgment notwithstanding

the verdict and/or motion for a new trial following a jury trial in a personal injury action

against Defendant-Appellee Rachel Simkanin. The relevant facts leading to this appeal

are as follows.

       {¶ 2} On October 21, 2009, appellant and appellee were involved in a motor

vehicle collision on Cleveland Avenue in Lake Township, Stark County, Ohio, during

which appellant’s vehicle was struck from the rear by appellee’s vehicle. Uniontown law

enforcement officers investigated the accident, following which appellant drove his car

home. However, later in the day, appellant began experiencing neck and back pain and

thereupon drove himself to the Aultman Hospital Emergency Room. He was examined

by Geneiso Serri, M.D., who found spasms in the paraspinous musculature of the

cervical spine.   After his emergency room examination, appellant was given two

prescriptions for medication, which he subsequently took as directed. Appellant was

also treated thereafter by Prasanna Soni, M.D., an orthopedic specialist, and John

Pinghero, D.C., a chiropractor.

       {¶ 3} On February 2, 2010, appellant filed a personal injury lawsuit against

appellee in the Stark County Court of Common Pleas. The matter proceeded to a one-

day trial on February 1, 2011.     Appellee admitted negligence in causing the motor

vehicle collision, but contested proximate cause and appellant’s injury claim. Appellant
Stark County, Case No. 2011 CA 00045                                                    3


testified on his own behalf.   Appellant also provided the testimony of Dr. Soni via

videodisk.1 The defense did not call any witnesses.

      {¶ 4} The jury received the case to begin deliberations at about 3:30 PM on the

day of trial. The jury informed the court it had reached a verdict about thirty minutes

later. The jury found that appellee’s negligence was the proximate cause of injury to

appellant. The jury also awarded appellant the emergency department bill of $380.00,

but it awarded no compensation for the other medical bills2 and nothing for pain and

suffering or any other noneconomic loss.

      {¶ 5} Appellant thereafter filed a motion for a new trial and/or judgment

notwithstanding the verdict (“JNOV”). Appellee filed a response opposing said motion.

On March 2, 2011, the trial court issued a judgment entry denying appellant’s motion.

      {¶ 6} On March 4, 2011, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

      {¶ 7} “I. THE TRIAL COURT ERRED AND ABUSED IT'S (SIC) DISCRETION

TO THE PREJUDICE OF THE PLAINTIFF IN DENYING THE PLAINTIFF'S MOTION

FOR A JUDGMENT NOTWITHSTANDING THE VERDICT PURSUANT TO CIV.R.

50(B) OR IN THE ALTERNATIVE A NEW TRIAL PURSUANT TO CIV. R. 59(A) OF

THE OHIO RULES OF CIVIL PROCEDURE.”




1
     Although the briefs make reference to a written transcript of Dr. Soni’s video
testimony, we have not located a copy thereof in the record. However, the Court has
been able to view the video disk itself.
2
  Appellant had presented, inter alia, orthopedic and chiropractic bills of $3,960.00 and
$4,025.00, respectively. See Plaintiff’s Exhibit I.
Stark County, Case No. 2011 CA 00045                                                    4


                                            I.

       {¶ 8} In his sole Assignment of Error, appellant argues the trial court erred in

denying his motion for judgment notwithstanding the verdict (“JNOV”) and/or a new trial.

We disagree.

       {¶ 9} Civ.R. 50(B) addresses motions for judgment notwithstanding the verdict

as follows:

       {¶ 10} “Whether or not a motion to direct a verdict has been made or overruled

and not later than fourteen days after entry of judgment, a party may move to have the

verdict and any judgment entered thereon set aside and to have judgment entered in

accordance with his motion; or if a verdict was not returned such party, within fourteen

days after the jury has been discharged, may move for judgment in accordance with his

motion. A motion for a new trial may be joined with this motion, or a new trial may be

prayed for in the alternative. ***.”

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

verdict or in the alternative for a new trial pursuant to Civ.R. 50(B) is the same as that

for granting a motion for a directed verdict pursuant to Civ.R. 50(A). Texler v. D.O.

Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271,

1998-Ohio-602. Thus, JNOV is proper if upon viewing the evidence in a light most

favorable to the nonmoving party and presuming any doubt to favor the nonmoving

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

moving party. Wagoner v. Obert, 180 Ohio App.3d 387, 401-402, 905 N.E.2d 694,

2008-Ohio-7041, citing Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio

St.3d 512, 2002-Ohio-2842, ¶ 3. “Neither the weight of the evidence nor the credibility
Stark County, Case No. 2011 CA 00045                                                       5

of the witnesses is for the [trial] court's determination in ruling upon [a JNOV].” Osler v.

Lorain (1986), 28 Ohio St.3d 345, 347, 504 N.E.2d 19, quoting Posin v. A.B.C. Motor

Court Hotel (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 344 N.E.2d 334. When a

trial court rules on a JNOV motion, all of the evidence introduced at trial is available for

the trial court's consideration. Beaston v. Slingwine, Seneca App.No. 13-03-04, 2004-

Ohio-924, ¶ 13, citing Osler, supra, at 347.

        {¶ 12} The decision to grant or deny a Civ.R. 50(B) motion for JNOV is reviewed

de novo by an appellate court. Wagoner, supra, at 401, citing Osler, supra, at 347.

        {¶ 13} In addition, Civ.R. 59(A) states in pertinent part as follows:

        {¶ 14} “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:

        {¶ 15} “ ***

        {¶ 16} “(4) Excessive or inadequate damages, appearing to have been given

under the influence of passion or prejudice;

        {¶ 17} “ ***

        {¶ 18} “(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;

        {¶ 19} “ ***

        {¶ 20} “In addition to the above grounds, a new trial may also be granted in the

sound discretion of the court for good cause shown. *** ”

        {¶ 21} Our standard of appellate review on a motion for new trial is abuse of

discretion. Anthony v. Hunt (Feb. 9, 1998), Stark App. No.1997CA00170. In order to find
Stark County, Case No. 2011 CA 00045                                                    6


an abuse of discretion, we must find the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Furthermore, in reviewing

a decision on a motion for new trial, an appellate court must view the evidence in a light

most favorable to the trial court's decision, rather than in favor of the nonmoving party.

See Jenkins v. Krieger (1981), 67 Ohio St.2d 314, 320, 423 N.E.2d 856. In regard to

the language of Civ.R. 59(A)(4), the mere size of the verdict is insufficient to establish

proof of passion or prejudice. See Chambers v. Jenkins, Stark App.No. 2007CA00131,

2008-Ohio-638, ¶ 44.

       {¶ 22} In essence, appellant in the case sub judice maintains that the jury’s

$380.00 verdict cannot be reconciled with what he claims is undisputed medical

evidence at trial, and therefore Civ.R. 50(B) or Civ.R. 59(A) relief should have been

granted to him. Appellant maintains the evidence presented to the jury was that his

medical complaints were consistent with the type of motor vehicle collision described

and that he obtained reasonable and appropriate treatment with health care providers

therefore, all of which concluded less than six months after the collision.

       {¶ 23} The record reveals that at his first visit, Dr. Soni gave appellant trigger-

point injections in his neck, mid-back and low back.        Additional prescriptions were

prescribed which appellant subsequently took as directed. Tr. at 138-139. Dr. Soni

referred appellant to John Pinghero, D.C. for physical therapy. Soni Tr. at 15. As

directed, appellant began treatment with Dr. Pinghero on November 11, 2009. Tr. at

139. During the first visit, Dr. Pinghero also found muscle spasms. Appellant received
Stark County, Case No. 2011 CA 00045                                                      7


various types of treatment from the chiropractor, including electric stimulation, heat pads

and traction. Tr. at 139-140.

          {¶ 24} On December 14, 2009, appellant returned to Dr. Soni for a second office

visit. Tr. at 140. At that time, Dr. Soni gave appellant a second set of trigger point

injections in the same areas as before. Id. Dr. Soni gave appellant exercises to do at

home, which he did as directed. Tr. at 141-142. He directed appellant to continue with

his therapy with Dr. Pinghero, which he did.

          {¶ 25} On January 8, 2010, appellant made a third office visit to Dr. Soni. Tr. at

142-143. At this time, appellant reported he had made improvement, but still had some

pain. Dr. Soni released the patient from his care, but instructed him to continue with

therapy until released by Dr. Pinghero. Soni Tr. at 17. Appellant continued the therapy

as instructed until he was released by Dr. Pinghero on April 9, 2010. At that time,

appellant had returned to “feeling normal.” Tr. at 146.

          {¶ 26} Appellant reiterates that Drs. Serri, Soni and Pinghero all found muscle

spasms upon examining appellant. Dr. Soni testified that spasms are objective signs of

injury:

          {¶ 27} “Q. Doctor, would you explain to the jury what spasms are?

          {¶ 28} “Okay. A spasm is like when a muscle contracts without the owner of the

muscle or the person trying to contract it. In other words, if I go like this, I am doing it

voluntarily. So this is not a spasm. But if I don't want to do that and my hand goes like

this, that means I'm having spasm of these muscles over here. (Indicating)

          {¶ 29} “Q. Okay. Is there any way a person can fake that?

          {¶ 30} “A. No.” Soni Tr. at 10.
Stark County, Case No. 2011 CA 00045                                                      8


       {¶ 31} The defense did not have any medical testimony to contest this statement

and did not significantly cross-examine Dr. Soni on the issue. Appellant thus proposes

that the evidence does not indicate the spasms were caused by any other incident than

the automobile collision.

       {¶ 32} However, triers of fact are not required to accept evidence simply because

it is uncontroverted, unimpeached, or unchallenged.        See Ace Steel Baling, Inc. v.

Porterfield (1969), 19 Ohio St.2d 137, 138, 249 N.E.2d 892. As the Ninth District Court

of Appeals has aptly recognized: “Expert medical testimony is admissible only to assist

the jury in determining the ultimate facts of the case. *** The plaintiff still bears the

burden of persuasion. As long as there are objectively discernable reasons why the jury

may have rejected the expert medical testimony, an award less than what the

‘uncontroverted’ medical evidence implies may withstand challenge on appeal. ***.”

Dottavio v. Shepherd (Dec. 1, 1999), Summit App.No. 98CA0042, 1999 WL 1140873

(emphasis in original). Likewise, a jury has the responsibility to determine the credibility

of witnesses, including experts, and may accept all or any part of their testimony. State

v. Lovsey, Fairfield App.No. 03-CA-1, 2004-Ohio-2112, ¶ 53, citing State v. Jamison

(1990), 49 Ohio St.3d 182.

       {¶ 33} In the case sub judice, Dr. Soni conceded that he had not reviewed the

police reports of the accident and thus did not articulate the full mechanism of the

resultant injuries to appellant. Dr. Soni also questioned the emergency room record

provided by appellant that stated appellant was not in acute distress when he reported

to Aultman Hospital. Dr. Soni also admitted he had not reviewed the records and notes

of appellant’s chiropractic treatment by Dr. Pinghero as the treatment progressed,
Stark County, Case No. 2011 CA 00045                                                      9


stating: “You know, you’d never have any work done if you were just reviewing

everybody’s notes all day long.” Soni Tr. at 45. Upon review, we find the jury may

simply have reasonably questioned the severity of the impact and the bases for Dr.

Soni’s opinions as to the reasonableness and necessity of appellant’s follow-up

orthopedic and chiropractic treatment. In light of these discernable reasons supporting

the apparent rejection of Dr. Soni’s expert conclusions by the jury, we are unable to

disturb the trial court’s denial of appellant’s JNOV/New Trial motion.

       {¶ 34} Appellant additionally points out that the trial took place in the midst of a

severe winter storm in Stark County, apparently suggesting that the worsening

conditions hurried or disrupted the jury’s decision-making process. He notes the trial

judge made three separate references concerning the severe weather to the jury (Tr. at

86, 87-88) and at time of the lunch break instructed the jurors: “Ladies and gentlemen,

in light of the weather conditions I'm going to instruct you not to get in your cars, not to

leave the downtown area for your lunch.”          Tr. at 120.    Appellant also contends

appellee’s trial defense counsel, even though arguing that appellee did not proximately

cause the injuries, made an admission of compensable pain and suffering during her

closing argument, when she told the jury: “The total of those bills is approximately--is

$380. Adding in another nominal amount for pain and suffering, and I submit to you that

a reasonable amount to award the Plaintiff is approximately a thousand dollars.” Tr. at

196.

       {¶ 35} Nonetheless, we remain unpersuaded by these additional arguments that

the denial of appellant’s JNOV/New Trial motion constituted reversible error.
Stark County, Case No. 2011 CA 00045                                                10


      {¶ 36} Finally, appellant makes a generalized “manifest weight” argument

concerning the jury’s verdict. “A civil judgment which is supported by competent and

credible evidence may not be reversed as against the manifest weight of the evidence.”

State v. McGill, Fairfield App.No. 2004-CA-72, 2005-Ohio-2278, ¶ 18. Based on our

previous analysis herein, we are unpersuaded that the jury’s verdict was against the

manifest weight of the evidence.

      {¶ 37} Appellant’s sole Assignment of Error is overruled.

      {¶ 38} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.


By: Wise, J.

Farmer, J., and Hoffman, P. J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                                  JUDGES
                                                                             11


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




BRIAN SMITH,                              :
                                          :
      Plaintiff-Appellant,                :
                                          :
v.                                        :         JUDGMENT ENTRY
                                          :
RACHEL SIMKANIN,                          :
                                          :
      Defendant-Appellee.                 :         Case No. 2011 CA 00045




      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Stark County, Ohio, is affirmed.

      Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
