COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59138 JUDITH B. STURMAN, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION EDWARD ZYWIEC, : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 3, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 127,291 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Thomas A. Kelly John H. West FOTH, KELLY, URBAN & WEST CO., L.P.A. 7123 Pearl Road - Suite 303 Middleburg Heights, Ohio 44130-4944 For defendant-appellee: Reginald P. Trubey, Jr. MEYERS, HENTEMANN, SCHNEIDER & REA CO., L.P.A. 2121 The Superior Building Cleveland, Ohio 44114 -2- NAHRA, P.J.: Judith and William Sturman, plaintiffs-appellants, are appealing the jury's award of $10,000.00 to Mrs. Sturman and $2,500.00 to Mr. Sturman on their action in tort against Edward Zywiec, defendant-appellee. On May 10, 1985, Judith Sturman was involved in an accident in which her automobile was struck by the automobile being driven by Edward Zywiec. Following the accident, Judith went to the hospital and had x-rays taken. For the three years following the accident, she suffered pain in her neck, shoulders, and right arm. During such time, Judith underwent a variety of tests, therapies, and treatments: traction, physical therapy, exercise, anti-inflammatory medications, a CAT scan, a myelogram, and magnetic resonance imaging. On May 9, 1989, Mrs. Sturman underwent surgery and had a portion of the disc removed between the C-6 and C-7 vertebrae. Such surgery is known as an anterior cervical discectomy. Thereafter, she recovered strength in her arm and was relieved of pain in her hand and neck. Evidence at trial showed that Mrs. Sturman's medical bills were in excess of $18,000.00. Mrs. Sturman's treating physician, Dr. Matt Likavec, testified that her injuries were the result of the motor vehicle accident of May 10, 1985. At trial, Zywiec stipulated to liability for the accident. However, Zywiec presented evidence to the effect that the injuries complained of and medical expenses incurred by Sturman were not related to the automobile accident. Dr. Dennis Brooks -3- testified initially by videotape on September 3, 1988, that he had examined Judith on December 9, 1987, as a result of the accident. After reviewing her medical history and records, as well as performing a physical examination, Dr. Brooks testified that he believed that she had suffered a cervical strain. He further testified that as of December, 1987, she had recovery from the cervical strain which she sustained in the automobile accident. He further believed that Sturman's recovery from such injury took place within five months of the accident. Based on his diagnostic testing in which he utilized a CAT scan and a myelogram, Dr. Brooks testified that Sturman suffered no nerve root impingement as a result of the accident. Dr. Brooks indicated that Sturman's complaints of weakness in her right hand and right arm were not caused by the accident. Dr. Brooks further indicated that he had some question about whether Sturman was attempting to deceive him as to the extent of the symptoms. On October 6, 1988, Dr. Brooks testified again after receiving more information concerning testing procedures undertaken by Mrs. Sturman. Dr. Brooks indicated that such new information did not change his opinion in any way with respect to the injuries Sturman sustained as a result of the accident. Dr. Brooks revealed that Sturman's protruding disc was a result of a degenerative disc disease commensurate with the aging process and not related to a traumatic event such as the automobile accident. -4- Finally, on September 26, 1989, Dr. Brooks' testimony was taken again by way of videotape, subsequent to the surgery that was performed on Sturman. He indicated that there was nothing in the records related to the surgery to change his previous opinion that Sturman's injuries were a result of a degenerative disc disease and unrelated to the accident. Dr. Carolyn Way Van Dyke, a radiologist, also testified that she could not find any evidence supporting a herniated or ruptured disc after her review of Sturman's myelogram, taken in February, 1987. A jury awarded Mrs. Sturman $10,000.00 and Mr. Sturman $2,500.00. Subsequent to the jury verdict, the Sturman's filed a motion for a new trial which was overruled by the trial court. This timely appeal follows. I. Appellants' first assignment of error states: THE JURY'S VERDICT WAS GROSSLY INADEQUATE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Judgments supported by some competent, credible evidence going to all the essential elements of a case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, 376 N.E.2d 578, syllabus; see also Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 461 N.E.2d 1273; Schill -5- v. General Motors Corp. (1988), 42 Ohio App. 3d 192, 195, 537 N.E.2d 713. The Sturmans contend that the jury verdict was inadequate and against the manifest weight of the evidence. The Sturmans point out that Judith Sturman's medical bills exceeded $18,000.00 and that Dr. Likavec's testimony indicated that her injuries resulted from the motor vehicle accident with Zywiec. However, there is competent, credible evidence indicating that not all of Mrs. Sturman's injuries resulted from the automobile accident with Zywiec. Dr. Brooks' testimony indicated that the treatment received by Mrs. Sturman and the surgery undertaken were unrelated to the automobile accident. Instead, Dr. Brooks testified that in his opinion Mrs. Sturman's injuries were the result of a degenerative disc disease and not caused by the accident. Dr. Way Van Dyke, who also reviewed Mrs. Sturman's injuries, concurred and supported Dr. Brooks' opinion. The jury was free to believe this testimony. II. Appellants' second assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO GRANT PLAINTIFFS' MOTION FOR A NEW TRIAL. Civ. R. 59(A), provides in pertinent part: (A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: * * * -6- (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; * * * * The Sturmans contend that the trial court abused its discretion by failing to grant their motion for a new trial insofar as the jury verdict was inadequate and was under the influence of passion or prejudice. They also contend that since the verdict was against the manifest weight of the evidence, the trial court should have granted their motion for a new trial. The granting of a motion for a new trial rests in the sound discretion of the trial court, and the trial court's ruling will not be disturbed on appeal unless there has been an abuse of discretion. See Poske v. Mergl (1959), 169 Ohio St. 70, 157 N.E.2d 344; Verbon v. Pennese (1982), 7 Ohio App. 3d 182, 454 N.E.2d 976. In an action for damages for personal injury, a jury's verdict should not be set aside unless the damages are so inadequate as to have been awarded as a result of passion or prejudice. Toledo, Columbus & Ohio River R.R. Co. v. Miller (1923), 108 Ohio St. 388, 140 N.E. 617; Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 495 N.E.2d 462. There is nothing in the record that leads us to believe that the damages awarded to the Sturmans were inadequate or given under influence of passion or prejudice. See Johnson v. Knebusch (June 7, 1984), Cuyahoga App. No. 47543, unreported. In accord with our finding above, -7- the judgment is not against the manifest weight of the evidence. As a result, we believe that the trial court's denial of the Sturmans' motion for a new trial was proper. Appellants' second assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. -8- It is ordered that appellee recover of appellants his 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. PATTON, J., and BLACKMON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .