COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69140 PATRICIA BARBALICS : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION LUCY V. KOHOUT, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 23, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-259952 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MICHAEL A. SANSON (#0003085) 1640 Standard Building Cleveland, Ohio 44113-1701 For Defendants-Appellees: KERRY RANDALL-LEWIS (#0006704) Law Offices of Jan A. Saurman 14650 Detroit Avenue - Suite 450 Lakewood, Ohio 44107-4210 - 2 - SPELLACY, C.J.: This appeal arises from a jury award entered in the amount of $23,000.00 in favor of plaintiff-appellant Patricia Barbalics in her personal injury action against defendants-appellees Lucy Kohout and Wire Products Company (hereinafter "appellees"). Appellant raises the following assignment of error for our review: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING DEFENDANTS-APPELLEES TO INTRODUCE EVIDENCE AND PERMIT COMMENTS REGARDING PRIOR INJURIES OF PLAINTIFF-APPELLANT, WHICH WERE NOT THE SUBJECT MATTER OF THE LITIGATION, WHICH EVIDENCE AFFECTED THE AMOUNT OF THE JURY AWARD. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. The facts giving rise to this appeal as contained in the record provide the following: On October 21, 1993, appellant and her husband Jeffrey Barbalics filed a complaint in the Cuyahoga County Court of Common Pleas for personal injuries suffered by appellant in an automobile accident. On May 8, 1995, appellant's husband voluntarily dismissed his claim for medical expenses and loss of consortium and a jury trial was held. On May 12, 1995, the jury entered a verdict in favor of the plaintiff-appellant and awarded her twenty-three thousand dollars ($23,000.00) in damages. - 3 - I. On November 4, 1991, appellant was involved in an automobile accident with appellee Kohout who, while attempting to merge onto Interstate 271 from the Brainard Road entrance ramp, collided with the rear end of appellant's vehicle. Following the accident, appellant began to feel a burning pain in her neck and left shoulder. Subsequently, appellant's father drove her to the emergency room at Meridia Suburban Hospital where appellant was treated for her injuries and discharged. Appellant continued to receive treatment for severe headaches, as well as for the pain in her neck, left shoulder, and back until January 6, 1992. Appellant, however, did not return for further treatment until June 1992, at which time appellant's physician, Dr. Yosowitz, suggested that appellant attend the Suburban Pain Management Clinic. Appellant did not seek treatment at the Suburban Pain Management Clinic, and in July 1992, once again discontinued her treatment. On November 8, 1992, appellant was involved in a second motor vehicle accident. Appellant testified that as a result of this second accident her pain worsened. Subsequently, on December 3, 1992, appellant began both physical and occupational therapy, as well as psychological counseling at the Suburban Pain Management Clinic. - 4 - II. In her sole assignment of error, appellant contends that the trial court committed prejudicial error when it admitted evidence concerning her previous injuries and conditions which are not the subject matter of the litigation at issue. Furthermore, appellant contends that testimony given and evidence admitted affected the amount of damages which the jury awarded to appellant. Trial courts are vested with broad discretion when determining the admissibility of evidence in a particular case. An appellate court which reviews the trial court's admission or exclusion of evidence must limit its review to whether the lower court abused its discretion. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271; State v. Finnerty (1989), 45 Ohio St.3d 104, 107. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Sprosty v. Pearlview, Inc. D.B.A. Corinthian, Inc. (September 21, 1995), Cuyahoga App. Nos. 67704, 67728, 67997, unreported citing State ex rel. McMaster v. School Emp. Retirement Sys. (1994), 69 Ohio St.3d 130. In the case sub judice, appellant argues that evidence and testimony concerning her prior injuries and accidents should not have been admitted by the trial court. To be admissible, evidence must be relevant. Where evidence is irrelevant, however, its admission is precluded by Evid.R. 402. Evidence is relevant if it has 'any tendency to make the existence of any fact that is of - 5 - consequence to the determination of the action more or less probable than it would be without the evidence.'" Id. citing Evid.R. 401. Furthermore, Evid.R. 403(A) precludes the admission of evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury." Appellant objects to the trial court's admission of medical records documenting previous visits by appellant to the emergency room prior to the November 4, 1991, accident; testimony by appellees' expert, Dr. Layne, regarding appellant's prior injuries and conditions; and testimony by Dr. Layne regarding medical tests appellant had prior to the November 4, 1991, accident. The general rule governing the admission of evidence regarding prior injuries, accidents, or conditions in a personal injury case states: Most of the cases in which the question has been raised have held or recognized that the plaintiff may properly be cross-examined as to his previous injuries, physical condition, claims, or actions for injuries similar to that constituting the basis of the present action, for the purpose of showing that his present physical condition is not the result of the injury presently sued for, but was caused, wholly or partially, by an earlier injury or pre-existing condition * * *." Tonti v. Morrison (1971), 29 Ohio App.2d 273, 275, citing 69 A.L.R.2d 593, at 596. Where, however, the trial court improperly admits evidence or testimony regarding previous accidents suffered by the complainant, "the allowance of such evidence and comments is - 6 - prejudicial if the amount of the award was affected by it." Tonti, 29 Ohio App.2d, syllabus at 273. In the instant case, we find that the testimony of the appellee's expert witness, Dr. Layne, was proper. Appellant's counsel initially questioned appellant and appellant's expert witness, Dr. Richetta, regarding appellant's prior physical injuries and mental conditions thereby opening the door for all evidence relevant thereto. State v. Clark (1988), 38 Ohio St.3d 252, 255. Since appellant made her prior health conditions an issue at trial, rebuttal testimony given by Dr. Layne that appellant suffered from somatoform disorder, rather than depression as set forth by Dr. Richetta, was relevant. Furthermore, the admission of evidence and testimony regarding appellant's prior injuries, accidents, and conditions does not rise to the level of an abuse of discretion. The trial court's determination that the evidence was relevant and that its probative value was not "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury" falls short of demonstrating an unreasonable, arbitrary, or unconscionable attitude. Finally, the admission of this evidence and testimony was not prejudicial, in that, the jury could have properly determined the award of damages based upon other evidence and testimony presented at trial. - 7 - Accordingly, the trial court did not abuse its discretion in permitting the testimony, and appellant's assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellees recover of appellant their 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, J. and TIMOTHY E. MCMONAGLE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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. - 9 - JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MICHAEL A. SANSON (#0003085) 1640 Standard Building Cleveland, Ohio 44113-1701 For Defendants-Appellees: KERRY RANDALL-LEWIS (#0006704) Law Offices of Jan A. Saurman 14650 Detroit Avenue - Suite 450 Lakewood, Ohio 44107-4210 - 10 - SPELLACY, C.J.: This appeal arises from a jury award entered in the amount of $23,000.00 in favor of plaintiff-appellant Patricia Barbalics in her personal injury action against defendants-appellees Lucy Kohout and Wire Products Company (hereinafter "appellees"). Appellant raises the following assignment of error for our review: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING DEFENDANTS-APPELLEES TO INTRODUCE EVIDENCE AND PERMIT COMMENTS REGARDING PRIOR INJURIES OF PLAINTIFF-APPELLANT, WHICH WERE NOT THE SUBJECT MATTER OF THE LITIGATION, WHICH EVIDENCE AFFECTED THE AMOUNT OF THE JURY AWARD. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. The facts giving rise to this appeal as contained in the record provide the following: On October 21, 1993, appellant and her husband Jeffrey Barbalics filed a complaint in the Cuyahoga County Court of Common Pleas for personal injuries suffered by appellant in an automobile accident November 4, 1991. On May 8, 1995, appellant's husband voluntarily dismissed his claim for medical expenses and loss of consortium and a jury trial was held. On May 12, 1995, the jury entered a verdict in favor of the plaintiff-appellant and awarded her twenty-three thousand dollars ($23,000.00) in damages. - 11 - I. On November 4, 1991, appellant was involved in an automobile accident with appellee Kohout who, while attempting to merge onto Interstate 271 from the Brainard Road entrance ramp, collided with the rear end of appellant's vehicle. Following the accident, appellant began to feel a burning pain in her neck and left shoulder. Subsequently, appellant's father drove her to the emergency room at Meridia Suburban Hospital where appellant was treated for her injuries and discharged. Appellant continued to receive treatment for severe headaches, as well as for the pain in her neck, left shoulder, and back until January 6, 1992. Appellant, however, did not return for further treatment until June, 1992 at which time appellant's physician, Dr. Yosowitz, suggested that appellant attend the Suburban Pain Management Clinic. Appellant did not seek treatment at the Suburban Pain Management Clinic, and in July, 1992, once again discontinued her treatment. On November 8, 1992, appellant was involved in a second motor vehicle accident. Appellant testified that as a result of this second accident her pain worsened. Subsequently, on December 3, 1992, appellant began both physical and occupational therapy, as well as psychological counselling at the Suburban Pain Management Clinic. - 12 - II. In her sole assignment of error, appellant contends that the trial court committed prejudicial error when it admitted evidence concerning her previous injuries and conditions which are not the subject matter of the litigation at issue. Furthermore, appellant contends that testimony given and evidence admitted affected the amount of damages which the jury awarded to appellant. Trial courts are vested with broad discretion when determining the admissibility of evidence in a particular case. An appellate court which reviews the trial court's admission or exclusion of evidence must limit its review to whether the lower court abused its discretion. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271; State v. Finnerty (1989), 45 Ohio St.3d 104, 107. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Sprosty v. Pearlview, Inc. D.B.A. Corinthian, Inc. (September 21, 1995), Cuyahoga App. Nos. 67704, 67728, 67997, unreported citing State ex rel. McMaster v. School Emp. Retirement Sys. (1994), 69 Ohio St.3d 130. In the case sub judice, appellant argues that evidence and testimony concerning her prior injuries and accidents should have been inadmissible. To be admissible, evidence must be relevant. Where evidence is irrelevant, however, its admission is precluded by Evid.R. 402. "Evidence is relevant if it has 'any tendency to make the existence of any fact that is of consequence to the - 13 - determination of the action more or less probable than it would be without the evidence.'" Id. citing Evid.R. 401. Furthermore, Evid.R. 403(A) precludes the admission of evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury." Appellant objects to the trial court's admission of medical records documenting previous visits by appellant to the emergency room prior to the November 4, 1991, accident; testimony by appellees' expert, Dr. Lane, regarding appellant's prior injuries and conditions; and testimony by Dr. Lane regarding medical tests appellant had prior to the November 4, 1991, accident. The general rule governing the admission of evidence regarding prior injuries, accidents, or conditions in a personal injury case states: Most of the cases in which the question has been raised have held or recognized that the plaintiff may properly be cross-examined as to his previous injuries, physical condition, claims, or actions for injuries similar to that constituting the basis of the present action, for the purpose of showing that his present physical condition is not the result of the injury presently sued for, but was caused, wholly or partially, by an earlier injury or pre-existing condition * * *." Tonti v. Morrison (1971), 29 Ohio App.2d 273, 275, citing 69 A.L.R.2d 593, at 596. Where, however, the trial court improperly admits evidence or testimony regarding previous accidents suffered by the complainant, "the allowance of such evidence and comments is - 14 - prejudicial if the amount of the award was affected by it." Tonti, 29 Ohio App.2d, syllabus at 273. The admission of evidence and testimony regarding appellant's prior injuries, accidents, and conditions does not rise to the level of an abuse of discretion. The trial court's determination that the evidence was relevant and that its probative value was not "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury" falls short of demonstrating an unreasonable, arbitrary, or unconscionable attitude. Furthermore, the allowance of such evidence and comments was not prejudicial where the jury was presented with enough other evidence and testimony regarding the injuries sustained by appellant in the November 1, 1991 accident to make the same determination regarding appellant's damage award. Accordingly, appellant's appeal is not well taken. Judgment affirmed. - 15 - It is ordered that appellees recover of appellant their 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, J. and TIMOTHY E. MCMONAGLE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 .