COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61002 GARY GILLESPIE, ET AL. : : : : JOURNAL ENTRY Plaintiffs-Appellants : : AND vs. : : OPINION DAVID F. SEVER : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 160256 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: WILLIAM S. HALBERG Halberg & Associates Co., L.P.A. 9425 Olde 8 Road Northfield, Ohio 44067 For Defendant-Appellee: RICHARD J. McGRAW Mansour, Gavin, Gerlack & Manos Co., L.P.A. 55 Public Square 2150 Illuminating Building Cleveland, Ohio 44113-1994 - 2 - KRUPANSKY, J.: Plaintiffs-appellants Gary and Karen Gillespie appeal from orders of the trial court entering judgment in their favor on a jury verdict in the amount of $50,500 and denying their subsequent Civ. R. 59 motion for a new trial in their personal injury and lack of consortium action. Plaintiffs contend the damages awarded by the jury are inadequate. Plaintiffs filed their complaint against defendant-appellee David F. Sever November 18, 1988. Plaintiffs alleged Gary injured his knee December 11, 1986 while helping a disabled motorist. Defendant admitted liability and the case proceeded to a jury trial to determine the amount of damages. Plaintiffs produced evidence of $18,995.01 in bills for medical treatments relating to Gary's knee in addition to $4,734.72 in lost wages for a total of $23,729.73 in special damages. The jury's verdict of $50,500 exceeded the total amount of these past medical bills and lost wages by $26,770.27. The central dispute at trial concerned the nature of Gary's knee injury and scope of necessary future medical treatment. The parties presented conflicting medical testimony at trial concerning these issues. Gary's treating physician, Dr. Anderson, testified for plaintiffs. Dr. Hoffman testified for defendant. Plaintiffs presented evidence of the estimated $20,251.35 cost of a future total knee replacement surgery. Plaintiffs also - 3 - presented testimony from Dr. Burke, an economics professor, regarding Gary's lost earning capacity which he estimated to be from $144,152 to $248,000, and the cost of obtaining services which Gary could no longer perform estimated at $95,759. The jury subsequently returned a unanimous general verdict for plaintiffs in the amount of $50,500. The trial court thereafter entered judgment in favor of plaintiffs on the jury verdict and denied their Civ. R. 59 motion for a new trial. Plaintiffs timely appeal raising the following four related assignments of error contending the verdict was inadequate and resulted from juror passion and prejudice: ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT ERRED IN OVERRULING PLAINTIFFS' MOTION FOR A NEW TRIAL WHERE THERE WAS IRREGULARITY IN THE PROCEEDINGS OF THE COURT AND THE DEFENSE COUNSEL, MISCONDUCT OF THE DEFENSE COUNSEL, INADEQUATE DAMAGES WHICH APPEAR TO HAVE BEEN GIVEN UNDER THE INFLUENCE OF PASSION OR PREJUDICE, JUDGMENT AS TO THE AMOUNT OF DAMAGES NOT SUSTAINED BY THE WEIGHT OF THE EVIDENCE, AND ERROR OF LAW OCCURRING AT THE TRIAL AND BROUGHT TO THE ATTENTION OF THE COURT DURING THE TRIAL. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT ERRED IN THAT THE AMOUNT OF DAMAGES ($50,500.00) WERE INADEQUATE, THAT THE AMOUNT OF DAMAGES APPEAR TO HAVE BEEN GIVEN UNDER THE INFLUENCE OF PASSION OR PREJUDICE AND THAT THE AMOUNT OF DAMAGES ARE NOT SUSTAINED BY THE WEIGHT OF THE EVIDENCE. ASSIGNMENT OF ERROR NO. 3 THE TRIAL COURT ERRED, OVER TIMELY OBJECTION, BY ALLOWING DEFENSE COUNSEL TO INFER IN - 4 - CLOSING ARGUMENT THAT HIS CLIENT WAS ECONOMICALLY DEPRIVED WHICH GAVE THE JURY THE FALSE IMPRESSION THAT DEFENDANT SEVER WAS THE REAL PARTY IN INTEREST AS OPPOSED TO DEFENDANT SEVER'S INSURANCE CARRIER WHO IS THE REAL PARTY IN INTEREST AND WHO IS NOT ECONOMICALLY DEPRIVED, AND SUCH STATEMENT ADVERSELY AFFECTED THE AMOUNT OF THE VERDICT DUE PLAINTIFFS. ASSIGNMENT OF ERROR NO. 4 THE TRIAL COURT ERRED IN REFUSING TO ALLOW PLAINTIFFS' COUNSEL TO ARGUE FUTURE MEDICAL COSTS (OTHER THAN THE COST OF THE FUTURE TOTAL KNEE REPLACEMENT WHICH WAS ALLOWED), AND SUCH REFUSAL ADVERSELY AFFECTED THE AMOUNT OF THE VERDICT DUE PLAINTIFFS. Plaintiffs' four assignments of error lack merit. Plaintiffs contend the trial court improperly entered judgment on the jury verdict and denied their Civ. R. 59 motion for a new trial since the verdict reflected inadequate damages "barely covering medical expenses" which was against the weight of the evidence and resulted from jury prejudice, improper argument by defense counsel and the trial court's erroneous exclusion of evidence concerning future medical costs. However, based upon our review of the record sub judice, we find those contentions lack merit and affirm the judgment of the trial court. It is well-settled that an order of the trial court denying a Civ. R. 59 motion for a new trial will not be reversed on appeal absent an abuse of discretion. Peters v. Peters (June 1, 1989), Cuyahoga App. No. 55453, unreported; Litchfield v. Morris (1985), 25 Ohio App. 3d 42. An "'abuse of discretion' connotes - 5 - more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. Jury verdicts are presumed to be based upon the evidence presented by the parties at trial and uninfluenced by juror passion or prejudice. See, Prudential Ins. Co. v. Hashman (1982), 7 Ohio App. 3d 55. As a result, a party challenging the verdict must affirmatively demonstrate the verdict resulted from substantial adverse passion or prejudice. See, id. None of the arguments made or materials submitted by plaintiffs with their motion for a new trial adequately rebutted this presumption or demonstrated the trial court abused its discretion in denying their motion for a new trial on the issue of damages. Appellate and trial courts are not free to invade the province of the jury and substitute their judgment for that of the jury concerning damages in a negligence action. Litchfield, supra at 44. The Litchfield Court rejected plaintiff's similar argument in that case that a jury verdict for damages in excess of $50,000 was inadequate despite the fact plaintiff presented some evidence supporting damages in excess of $150,000. The Court stated as follows: In cases of personal injury, where the amount of the verdict cannot be arrived at by mathematical computation, but is the result of the composite opinion of the jury, and where the facts do not justify a finding that the jury was actuated by passion or prejudice, and the verdict is not so small as to necessarily imply the influence of passion - 6 - or prejudice, [the] *** reviewing court *** can interfere only on the ground that the damages awarded are so inadequate as to justify the court in finding that the verdict in that regard is manifestly against the weight of the evidence. Id. at 43-44. In the case sub judice the record demonstrates plaintiffs presented evidence demonstrating $18,995.01 in medical bills and $4,734.72 in lost wages. The medical testimony presented by the parties conflicted concerning the nature and extent of Gary's knee injury and the causal relationship and necessity for the $20,251.35 future total knee replacement surgery. The jurors were free to disregard or disbelieve the testimony from plaintiffs' economist concerning the economic impact of the injury based upon their conclusions concerning the scope of Gary's injury. See, Reder v. Antenucci (1989), 62 Ohio App. 3d 139, 144 (affirming verdict of zero dollars in automobile accident case where liability was undisputed). Plaintiffs failed to request the jury complete interrogatories concerning these elements of damages and we decline to speculate on the adequacy of the general award. Judgments supported by some competent credible evidence as in the case sub judice will not be reversed on appeal as against the weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279. Plaintiffs purport to distinguish these cases by arguing in their third and fourth assignments of error that the jury verdict resulted from misconduct of defense counsel and the trial court's - 7 - erroneous exclusion of evidence relating to future medical expenses. See Loudy v. Faries (1985), 22 Ohio App. 3d 17. We are unpersuaded. Plaintiffs complain the following statement made by defense counsel during closing argument improperly implied that the defendant was economically deprived and was "tantamount to stating defendant was not insured": Well, I don't have the kind of money, nor does my client to spend $2,250 for somebody like Burke [plaintiffs' economist] to come in here [and testify live]. We'll do our deposition the way we want to. Plaintiffs' counsel argues this statement, when coupled with introductory remarks concerning Sever in defendant's opening 1 statement , indicated poverty and lack of insurance and that defendant Sever was the real party in interest rather than his automobile insurance carrier. However, under the circumstances we find the comment concerning plaintiffs' economist was a permissible response invited by plaintiffs' closing argument and was not otherwise improper. During the course of plaintiffs closing argument, counsel for plaintiffs repeatedly commented to the jury on the fact that 1 Plaintiffs' counsel now contends the following comments made in defendant's opening statement prejudiced his clients: My client is a young man of about 24, 25 years old. Works for a company in a shipping department. He will be here tomorrow morning. Dave Sever lives in Parma. (Tr. 18-19). - 8 - the defense medical expert's testimony was in the form of a deposition transcript rather than video tape as plaintiffs' expert and that this form of testimony would impair the jury's ability to determine the credibility of the defense expert's testimony. (Tr. 121, 125, 132). Under the circumstances, we find defense counsel's response and comment on the fee paid by plaintiffs for the economist's live testimony was not improper. Contrary to plaintiffs' argument, the statement does not arouse passion or prejudice or misleadingly indicate defendant lacked insurance coverage or otherwise improperly appeal to juror sympathy. Finally, plaintiffs also contend the trial court erroneously excluded evidence concerning future medical costs resulting from plaintiff's injury. We note the trial court permitted plaintiffs to argue the estimated $20,251.35 future medical cost for total knee replacement based upon Dr. Anderson's testimony. However, the trial court properly excluded evidence concerning any other future medical costs since Dr. Anderson merely stated that such costs were "possible" and made no estimate of any specific total amount. Medical opinion testimony must be given in terms of "probability" and not mere "possibility." Logan v. Stovall (Jan. 30, 1986), Cuyahoga App. No. 50069, unreported; see also Redfield v. Mt. Sinai Medical Center (Mar. 5, 1992), Cuyahoga App. No. 59275, unreported at 14-15. - 9 - The trial court properly ruled that expert medical testimony was necessary to support this element of damages and that Gary's testimony was not an adequate substitute. Under the circumstances, any award for such costs would have been speculative. Accordingly, plaintiffs' four assignments of error are overruled. Judgment affirmed. - 10 - It is ordered that appellee(s) recover of appellant(s) 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. DAVID T. MATIA, C.J., and DYKE, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .