COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60047 ELLEN S. MANDELL : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : WILLIAM S. MARKOVIC : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 146417. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Thomas L. Dettelbach, Esq. Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A. The Tower at Erieview, #2600 Cleveland, Ohio 44114-1824 For Defendant-appellee: William R. Fanos, Esq. Karen Feibel Aronoff, Esq. Johnson, Hoffman, Fanos & Campbell 1490 Illuminating Building Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., J.: Plaintiff-appellant Ellen Mandell filed suit against defendant-appellee William Markovic to recover damages for injuries suffered as a result of an automobile accident which occurred on May 15, 1986. Appellant was struck from the rear in a chain reaction accident which involved four cars. Mr. Markovic was responsible for the accident, and liability was stipulated. Neither of the drivers of the two middle vehicles sustained any physical injury requiring treatment. Appellant apparently injured her back, neck, shoulder and jaw. The property damage to her automobile was limited to the bumper. Appellant had been involved in three prior accidents, one in 1975, one in 1978 and one in 1985. Appellant litigated and was compensated for each accident. In addition, in May, 1988, appellant had cosmetic plastic surgery on her face, chin and jaw. There was testimony that this accident aggravated a preexisting temporomandibular joint condition (TMJ) and in January, 1989, appellant underwent surgery to repair the abnormal position of the discs in her jaw. Appellant called Dr. Jennifer Kriegler, the director of the Pain Center University Hospitals of Cleveland to testify. Dr. Kriegler stated that before a patient is taken on by the Pain Clinic, they are evaluated both medically and psychologically. Dr. Kriegler referred appellant to Dr. Ashenberg for - 3 - psychological evaluation. The Pain Clinic has a policy of not treating patients whose difficulties are purely psychological. On cross-examination, Dr. Kriegler was asked to define compensation neurosis. She testified: It's when somebody has an injury or an accident and they fake or complain of pain so that they can get money from a lawsuit, and then they're better afterwards. (T. 76.) Dr. Kriegler testified that Dr. Ashenberg evaluated appellant for this condition, but also stated: If she had a compensation neurosis, she would not have been allowed to go forward with treatment in our center. (T. 78.) Dr. Ashenberg's report mentions appellant's various accidents and resulting litigation, but does not specifically mention compensation neurosis. In closing argument, appellee attacked the credibility of Dr. Kriegler by arguing the issue of compensation neurosis. Appellee's counsel argued: The last thing that I want to bring up about Dr. Kriegler's testimony here is that the one thing that we got into a little bit with this diagnosis of compensation neurosis. It's a recognized medical problem. I guess it's really more of a psychological problem. But I mean I think you may recall her definition of it was that basically somebody is pretending that they are sick or feigning that they are sick and this is all done in an attempt to get money. And I think -- (T. 40.) Appellant's counsel then objected, but was overruled by the judge. Appellee's counsel then continued: - 4 - I had asked Dr. Kriegler about this problem of compensation neurosis and whether it had anything to do with the plaintiff's case here, and, of course, she said, "No, no, it did not." But when I questioned her about the psychologist's evaluation, you know, he went on at length talking about, you know, making comments -- and you'll have his records and you can take a look at it. But he goes into this questioning about litigation pending as a result of each of these accidents that she was involved in, and she indicated that even though his notes didn't say that, you know, that that was not something that he was concerned with. You can see his notes and they don't say anything about that at all, you know, whether it's related or not. But I think the fact that he questioned her about it and that that's something here that is a recognized problem, a psychological type of a problem, I think that that's something that you all can consider. (T. 41-42.) Also in closing arguments, appellee's counsel made reference to the fact that appellant was an attorney; that she knew the court system well; that she knew how to make an accident look more serious than it was; that she was trying to take advantage of appellee; and that the jury should not be fooled by the appellant who does not have a legitimate case. Specifically, appellee argued: I think one of the other things that you really need to consider right at the outset, and, of course, you knew about this really right from the beginning. We don't have a typical plaintiff in this case, and I say that for a couple of reasons that I'll get into. But what I mean by that is I mean we are dealing with somebody, with a plaintiff here who is a lawyer. Somebody who knows the - 5 - court system very well. Has worked with, as I believe she indicated, hundreds of personal injury cases during the time that she was here with the Court. She knows what she needs to do to make a case here and to make it look like there was really something really a lot more serious than it really was, a fender bender. (T. 11-12.) * * * * Now, I think that, you know, this goes back to what I was saying about the plaintiff knowing the court system here and knowing what she had to do. She knows that one of the first things that somebody's going to question on something like this is, well, gee, if you were really injured, you know, why didn't you go to the emergency room, or, you know, how did you get to the emergency room? You know, she knew what she was doing at that point. She knew that she had to, you know, make a request for that. Now, I have no problem with somebody legitimately saying, "Look, I've been involved in an accident," you know, "I think I should go get checked out." I have no problem with that at all, if it's done legitimately. I don't think it was in this particular case. (T. 17.) * * * * We talked a little bit -- Mr. Dettelbach talked a little bit to you about taking the person as you find them and not, you know, not hitting somebody that -- or hitting somebody that's in a delicate state. I think maybe the one thing that we've got to think about here is maybe not so much that you're colliding with someone who is in a delicate state, but maybe what you need to do is make sure you don't run into the back of a lawyer with an automobile. (T. 24.) * * * * She can come in and can present whatever kind of a case, ladies and gentlemen, as - 6 - outlandish as she wants to. That doesn't mean that everybody's got to believe her. The old expression is you can fool some of the people some of the time but you can't fool all the people all the time. Well, I think that's pretty appropriate here. I don't think for one minute that anybody is going to believe that the impact that has been described here and the impact that is depicted in those photos, you know, caused all of the problems and all the damages that she's claiming here. I said this before and I think this is the case; that she's really trying to take advantage of my client's, you know, being -- talk about somebody who's been in the wrong place at the wrong time. You know, she's trying to take advantage, you know, of the situation here. (T. 46.) The jury awarded appellant the sum of $1,063.25. Appellant sets forth the following two assignments of error. I THE TRIAL COURT'S FAILURE TO SUSTAIN PLAINTIFF'S OBJECTION TO DEFENSE COUNSEL'S REFERENCE IN CLOSING ARGUMENT TO AN IMPORTANT MEDICAL ISSUE UNSUPPORTED BY ANY EVIDENCE CREATED A SUBSTANTIAL LIKELIHOOD THAT THE JURY WOULD BE MISLED, CONSTITUTES PREJUDICIAL ERROR AND REQUIRES REVERSAL OF THE DECISION BELOW. II THE TRIAL COURT'S PERMITTING DEFENSE COUNSEL TO INTENTIONALLY, CONTINUOUSLY AND DEROGATORILY REFER TO PLAINTIFF'S PROFESSION AS AN ATTORNEY IN CLOSING ARGUMENT IN A MANNER CALCULATED TO AROUSE PASSION OR PREJUDICE SO THAT THERE IS A SUBSTANTIAL LIKELIHOOD THE JURY WOULD BE MISLED IS PREJUDICIAL ERROR REQUIRING THE REVERSAL OF THE DECISION BELOW. - 7 - Both assignments argue essentially that the remarks made during closing argument by appellee's counsel improperly aroused the passion and prejudice of the jury and prevented a fair and impartial verdict. In Lang v. Minch (1990), 53 Ohio St. 3d 186, the Supreme Court recently held: It is axiomatic that great latitude is afforded counsel in the presentation of closing argument to the jury. State v. Champion (1924), 109 Ohio St. 281, 289, 142 N.E. 141, 143. See, also, State v. Woodards (1966), 6 Ohio St. 2d 14, 26, 35 O.O. 2d 8, 14, 215 N.E. 2d 568, 578. Included within the bounds of permissible argument are references to the uncontradicted nature of the evidence presented by the advocate. State v. Ferguson (1983), 5 Ohio St. 3d 160, 5 OBR 380, 450 N.E. 2d 265, paragraph one of the syllabus; State v. Champion, supra. The assessment of whether these bounds have been exceeded is, in the first instance, a discretionary function to be performed by the trial court. Ohio & Western Pennsylvania Dock Co. v. Trapnell (1913), 88 Ohio St. 516, 521, 103 N.E. 761, 763; Legg v. Drake (1853), 1 Ohio St. 286, 288. Such determination will not be reversed on appeal absent an abuse of discretion. See Braeuning v. Russell (1960), 170 Ohio St. 444, 446, 11 O.O. 2d 200, 201, 166 N.E. 2d 240, 242. As to the first assignment of error, appellant correctly notes that there was no evidence presented that appellant suffered from compensation neurosis. Any inference made by appellee's counsel in closing argument, however inappropriate, was not so fraught with passion and prejudice as to constitute an abuse of discretion on behalf of the trial judge in overruling appellant's objection. See also, Hitson v. City of Cleveland - 8 - (December 13, 1990), Cuyahoga App. No. 57741, unreported; Kubiszak v. Rinis Supermarket (October 3, 1991), Cuyahoga App. No. 59108, unreported; Brooks v. Brost Foundry Company, (May 2, 1991), Cuyahoga App. No. 58065, unreported. Appellant's first assignment of error is overruled. In appellant's second assignment of error, she urges the reversal of the jury's verdict due to opposing counsel's derogatory references to her occupation and to her credibility. Appellant contends that although no objections were timely raised at trial, appellee's transgressions were so inflammatory that the judge should have intervened. Jackson v. Booth Memorial Hosp. (1988), 47 Ohio App. 3d 176. However, in Jackson, supra, this court also recognized: The determination of whether alleged misconduct of counsel was sufficient to taint the verdict with passion or prejudice ordinarily lies within the sound discretion of the trial court. Lance v. Leohr (1983), 9 Ohio App. 3d 297, 298. 'Before a reviewing court will disturb the exercise of the trial court's discretion, the record must clearly demonstrate highly improper argument by counsel which tends to inflame the jury.' Id., at 298." See, also, Pang. supra. In the case sub judice, the remarks of appellee's counsel were not so inflamatory as to require the intervention by the trial judge. There was no abuse of discretion. Appellant's second assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant 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. Exceptions. JOHN T. PATTON, P.J., and AUGUST PRYATEL, J.*, CONCUR. JAMES D. SWEENEY JUDGE (*SITTING BY ASSIGNMENT: August Pryatel, Retired Judge of the Court of Appeals, Eighth Appellate District.) 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. .