COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69842 DEBRA A. YACHANIN, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : STATE FARM INSURANCE COMPANIES, : OPINION ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 26, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-262878. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Kenneth C. Podor, Esq. David W. Reuven, Esq. Podor & Associates 23811 Chagrin Boulevard Suite 140 Beachwood, OH 44122 For Defendants-Appellees John S. Rea, Esq. State Farm Insurance Co., Meyers, Hentemann, Schneider & Rea et al.: 21st Floor - Superior Building Cleveland, OH 44114 For Defendant Appellee Barbara L. Armstrong, Esq. Myra Leonard: William E. Armstrong, Esq. Buckley, King & Bluso 1400 Bank One Center Cleveland, OH 44114-2652 -2- DAVID T. MATIA, J.: Debra Yachanin, et al., plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CV- 262878, in which the trial court denied plaintiffs-appellants' motion for judgment notwithstanding the verdict. Plaintiffs- appellants also challenge the admission of Myra Leonard's, defendant-appellee's, deposition testimony into evidence. Plaintiffs-appellants assign two errors for this court's review. Plaintiffs-appellants' appeal is not well taken. I. THE FACTS On December 16, 1991, Debra Yachanin, plaintiff-appellant, was involved in an automobile accident in which her automobile was struck from behind by a vehicle operated by Myra Leonard, defendant-appellee. Mrs. Yachanin's automobile had just come to a stop at a stop sign when Mrs. Leonard's vehicle slid on the icy road surface and slightly impacted with Mrs. Yachanin's automobile. Neither automobile appeared damaged and no injuries were reported at the time of the accident. No emergency medical service vehicles or police were called to the scene of the accident. Mrs. Yachanin and Mrs. Leonard then exchanged information and went their respective ways. Soon after, Mrs. Yachanin filed an accident report at the Second District Police Station in the City of Cleveland. Mrs. Yachanin indicated to the police that she was not injured in the accident. Mrs. Yachanin, a registered nurse at Metrohealth Medical Center, missed one day of work as a direct result of the accident. -3- On December 16, 1993, Debra and George Yachanin, plaintiffs- appellants, filed a complaint against Mrs. Leonard and State Farm Insurance Company, plaintiffs-appellants' automobile insurance carrier, seeking payment pursuant to the uninsured/underinsured provisions of the insurance policy for injuries allegedly sustained by Mrs. Yachanin in the accident. George Yachanin also requested damages for loss of consortium arising out of the accident. Prior to trial, Mrs. Leonard admitted that her negligence was the sole cause of the accident. Therefore, the only remaining issues for determination by the jury were 1) the nature and extent of Mrs. Yachanin's alleged injuries, and 2) the amount of compensable damages arising out of Mrs. Yachanin's injuries. At trial, plaintiffs-appellants introduced into evidence the videotaped deposition testimony of Dr. William Kay and Dr. Arthur C.J. Brickel in support of their case. Both Dr. Kay and Dr. Brickel testified that Mrs. Yachanin sustained injuries as a result of the December 16, 1991 automobile accident. Defendants-appellees' medical expert, Dr. Donald Mann, also testified by videotaped deposition. Dr. Mann maintained that, after reviewing Mrs. Yachanin's medical records, test results, x- rays and MRI films, it was his opinion that Mrs. Yachanin did not suffer the injuries identified as the subject matter of this lawsuit in the automobile accident in question. Dr. Mann maintained further that any problems with Mrs. Yachanin's back were degenerative in nature and present before the underlying accident occurred. (Mann dep. at 19.) In addition, Mrs. Leonard's video -4- deposition, in which she described the details of the accident, was admitted into evidence. Mrs. Leonard was unable to attend the trial due to her infant daughter's health problems. On October 17, 1995, after listening to a day and a half of evidence, the jury returned its verdict in favor of defendants- appellees. On October 31, 1995, plaintiffs-appellants filed a motion for judgment notwithstanding the verdict, or, in the alternative, motion for a new trial. On November 22, 1995, the trial court denied plaintiffs-appellants' motion in its entirety. Plaintiffs-appellants filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Debra and George Yachanin's, plaintiffs-appellants', first assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED THE PLAINTIFFS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT WHEN THE DECISION OF THE TRIAL COURT IN FINDING FOR THE DEFENDANT WAS MADE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: JNOV. Plaintiffs-appellants argue, through their first assignment of error, that the trial court erred in denying their motion for judgment notwithstanding the verdict filed pursuant to Civ.R. -5- 1 50(B). Specifically, plaintiffs-appellants maintain that a review of the record clearly demonstrates that the verdict of the jury was contrary to the manifest weight of the evidence. It is plaintiffs-appellants' position that the admitted liability of Mrs. Myra Leonard combined with the testimony of the two doctors who testified in their behalf clearly established that Mrs. Yachanin suffered injuries as a result of the accident for which she was entitled to receive compensatory damages. Accordingly, plaintiffs-appellants believe that the trial court, after reviewing the evidence presented at trial, should have granted their motion for judgment notwithstanding the verdict. Plaintiffs-appellants' first assignment of error is not well taken. B. STANDARD OF REVIEW FOR JNOV. In Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.2d 124, 127, the Ohio Supreme Court set forth the following standard of review for motions for judgment notwithstanding the verdict: "The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may 1 Plaintiffs-appellants do not challenge the denial of their alternative motion for a new trial. Therefore, this court will not now address that issue. See Lewallen v. Mentor Lagoons, Inc. (1993), 85 Ohio App.3d 91, 97. -6- reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions." Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338; ***. A motion for a judgment notwithstanding the verdict pursuant to Civ.R. 50(B) tests the legal sufficiency of the evidence. Brooks v. Brost Foundry Co. (May 2, 1991), Cuyahoga App. No. 58065, unreported. A review of the trial court's denial of a motion for judgment notwithstanding the verdict requires a preliminary analysis of the components of the action. See, Shore, Shirley & Co. v. Kelley (1988), 40 Ohio App.3d 10, 13. C. THE TRIAL COURT PROPERLY DENIED PLAINTIFFS-APPELLANTS' MOTION FOR JNOV. In the case sub judice, a review of the record demonstrates that adequate evidence was adduced at trial to place into controversy the issue of whether Debra Yachanin's, plaintiff- appellant's, alleged injuries were the result of the December 16, 1991 automobile accident or whether they were degenerative in nature and unrelated to the accident. Initially, it must be noted that, contrary to plaintiffs-appellants' position, the mere fact that Mrs. Leonard admitted liability for the accident does not, by itself, mandate an award of damages. If the jury, after hearing all the evidence, did not believe that Mrs. Yachanin suffered any injury as a result of the accident, then she would not be entitled to an award of damages. Johnson v. Knebusch -7- (June 7, 1984), Cuyahoga App. No. 47543, unreported; Michaels v. Aden (December 7, 1995), Cuyahoga App. No. 68561. During the trial, Dr. Donald Mann, the defense medical expert, testified that, after a thorough review of Mrs. Yachanin's medical records as well as his own physical examination of Mrs. Yachanin, it was his opinion that, based upon reasonable medical certainty, her injuries were not related to the automobile accident but that "her condition" had existed prior to the accident. (Mann dep. at 21.) This testimony was in direct conflict with the testimony of plaintiffs-appellants' medical experts. As in any case where the jury is presented with conflicting evidence, the weight to be accorded the evidence and the evaluation of the credibility of the witnesses are primarily for determination for the jury. State v. DeHass (1967), 10 Ohio St.2d 230, 231; Feldon v. Ashland Chem. Co. (1993), 91 Ohio App.3d 48, 63. Based upon the entirety of the record before this court, we find that adequate testimony was adduced at trial to place into controversy the question of whether the alleged injuries suffered by Mrs. Yachanin, plaintiff-appellant, were caused by the underlying automobile accident. Construing the evidence in a light most favorable to plaintiffs-appellants, we find sufficient evidence existed from which reasonable minds might differ as to whether the claimed injuries were caused by Myra Leonard's, defendant-appellee's, admitted negligence. Not only was expert medical testimony introduced to demonstrate that Mrs. Yachanin's -8- injuries were not the result of the accident but evidence was presented regarding the details of the accident which could only be described as a minor collision. Accordingly, it was not error for the trial court to deny plaintiffs-appellants' motion for judgment notwithstanding the verdict. Plaintiffs-appellants' first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Debra and George Yachanin's, plaintiffs-appellants', second and final assignment of error states: THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE TESTIMONY OF DEFENDANT-APPELLEE WHEN SAID TESTIMONY OF DEFENDANT-APPELLEE WAS GIVEN PURSUANT TO INSTRUCTIONS OF THE COUNSEL FOR DEFENDANT-APPELLEE. A. THE ISSUE RAISED: ADMISSION OF EVIDENCE. Plaintiffs-appellants argue, through their second and final assignment of error, that the trial court erred in admitting into evidence the videotaped deposition testimony of Myra Leonard, defendant-appellee. Specifically, plaintiffs-appellants maintain that one of Mrs. Leonard's answers to one of the deposition questions was improperly suggested to her by her counsel during the deposition. It is plaintiffs-appellants' position that such conduct amounted to attorney misconduct and, by allowing the videotaped deposition into evidence, the trial court greatly prejudiced plaintiffs-appellants' case. Plaintiffs-appellants' second assignment of error is not well taken. -9- -10- B. STANDARD OF REVIEW FOR ADMISSIBILITY. It is well settled that the admission of evidence falls under the general standard of relevancy set forth in Evid.R. 401 which states: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. However, pursuant to Evid.R. 403, relevant evidence must be excluded if its probative value is substantially outweighed by the threat of unfair prejudice. In Ohio, this determination is within the sound discretion of the trial court. State v. Jackson (1993), 86 Ohio App.3d 568; Vogel v. Wells (1991), 57 Ohio St.3d 91. Absent a showing of an abuse of discretion, a reviewing court will not interfere with the decision of the trial court. State v. Rutledge (Sept. 27, 1994), Franklin App. No. 93APAO8- 1212, unreported. In Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, the Ohio Supreme Court stated: The term "abuse of discretion" was defined by this court in State v Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "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. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. -11- C. THE TRIAL COURT DID NOT ERR BY ADMITTING THE VIDEOTAPED DEPOSITION TESTIMONY. In the case sub judice, plaintiffs-appellants object to the following exchange which took place during the videotaped telephonic deposition: Q. *** Mrs. Leonard, isn't it a fact that this accident was caused by your negligence? A. No. Q. Are you stating this accident was not your fault? A. It's my fault, but it was due to the icy road conditions. Q. So you're stating to me now that the accident was caused by your negligence; is that correct? Ms. Armstrong: Objection. You can answer it. Mr. Rea: The question has been asked and answered, counsel. Please proceed. Q. One last question. Mrs. Leonard, this accident was your fault, is it not? Mr. Rea: Tell him snow and ice. The witness: I believe it was due to road conditions. I tried to avoid this accident. (Leonard dep. at 24.) A review of the disputed testimony demonstrates that the comment made by counsel for Mrs. Leonard, while somewhat inappropriate, did not rise to the level of attorney misconduct under the facts of this case. Mrs. Leonard had previously answered the identical question regarding liability for the -12- automobile accident. When the question arose for a second time, defense counsel merely directed his client to respond in a similar manner. In addition, the initial question dealt with Mrs. Leonard's liability for the automobile accident, liability which she had admitted prior to trial. Accordingly, plaintiffs- appellants have not demonstrated any prejudice as a result of the admission of the deposition testimony since the subject question revolved around a stipulated issue. Plaintiffs-appellants' second assignment of error is not well taken. Judgment of the trial court is affirmed. -13- It is ordered that appellees recover of appellants 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. BLACKMON, P.J. and KARPINSKI, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .