COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70100 KATHLEEN KUMP : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION KERRY GOOD : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 17, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-283017 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: DALE S. ECONOMUS, ESQ. KEITH D. THOMAS, ESQ. JAMES C. WATSON, ESQ. MEYERS, HENTEMANN, SCHNEIDER BEVAN & ECONOMUS & REA CO., L.P.A. 10360 Northfield Road 815 Superior Ave., N.E. #2100 Northfield, Ohio 44067 Cleveland, Ohio 44114 - 2 - DYKE, J.: The parties herein were involved in a minor auto accident on November 3, 1993. Appellant filed her complaint on January 9, 1995, asserting a claim for medical expenses she had incurred as a result of the accident. The parties jointly stipulated to appellee's negligence in causing the accident. Appellant claimed that his negligence consisted of bumping appellant's vehicle from behind while both were turning right from a standstill at the end of an exit ramp. Appellee disputed, however, that his negligence was the proximate cause of appellant's injuries. The case proceeded to a trial before a jury. Testimony was elicited from appellant's dentist, the nurse practitioner at appellant's place of employment, two of her doctors and one of her friends. Appellant also took the stand. Appellant's dentist, Dr. Glick, testified that appellant came to see him about pain in her jaw on July 12, 1994. It was his medical opinion that the accident was the cause of appellant's problem, in spite of the fact that appellant's symptoms occurred nine months after the accident. Patty Koyl saw appellant three weeks after the accident at the clinic where appellant was employed. Koyl noted bruising on appellant's back which appeared to be old. She recommended massotherapy and physical therapy for the pain appellant was experiencing. - 3 - Appellant was referred to Dr. Hernandez by her attorney on February 21, 1994. His diagnosis was severe whiplash and a severe sprain or strain of the lumbar. It was Dr. Hernandez's opinion that appellant's back and neck pain were definitely caused by the car accident. When appellant did not respond to treatment, she was referred to Dr. Ben Ortega. She received several caudal blocks, injections in the lower spine, which provided her with relief. Dr. Hernandez testified that before receiving the injections it was standard procedure to inject a saline solution to ensure that the pain the patient was feeling was real. Upon cross-examination, Dr. Hernandez testified that the results of an MRI and several objective tests for problems with appellant's nerves were normal. A videotape deposition of Dr. Salewski was played for the jury. He testified that Dr. Ortega had referred appellant to him with severe lower back pain. Dr. Salewski administered three caudal block procedures on appellant in April and May of 1994. It was Dr. Salewski's testimony that a saline solution is injected as a means to ensure the proper placement of the needle into the caudal area. Appellant testified to the fact that she had been in two other automobile accidents prior to this one. She sustained neck injury from an accident in 1989 but was completely recovered from that at the time of the recent accident. On the stand, appellant related that she had checked into the hospital emergency room after having dinner at her parents' home, the night of the accident. On cross- - 4 - examination, appellant acknowledged that the emergency room report contained no reference to lower back pain, however on re-direct appellant read from her discharge instructions a reference to the back pain being caused by muscle and ligament strain. Appellant admitted that no part of her body struck the interior of the car at the time of the incident with appellee. When cross-examined on the saline solution injection which Dr. Hernandez and Dr. Salewski referred to in their testimony, appellant admitted that she was unconscious during the caudal block procedure. Any saline solution administered to appellant while unconscious would have been ineffective in determining the reality of her pain. Appellee was the only witness presented in support of his defense. He testified that the damage shown in the photograph of appellant's car was not the damage done by his vehicle. Appellee testified that appellant had told him while they were examining their vehicles for damage that the dent had been there previous to their accident. Appellee stated that because both vehicles had been in need of washing, it was clear where the front bumper of his Jeep Cherokee had touched the back bumper of appellant's car. Upon hearing this evidence, the jury returned a verdict in favor of defendant. The jury responded in the negative to the interrogatory which asked, "Do you find by a preponderance of the evidence that defendant's negligence was a proximate cause of injury to the plaintiff?" Appellant moved for a new trial. The trial court stated that the jury clearly did not believe appellant - 5 - was injured and had the right to disbelieve appellant's evidence even where there is no contrary testimony. Appellant filed a timely notice of appeal from the jury verdict and the court's denial of her motion for new trial. She asserts two assignments of error for our review. I THE JUDGMENT OF THE JURY WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE. Appellant argues that the evidence supported a verdict in her favor. Appellant's assignment of error is not well taken. Although appellant presented a number of witnesses who were of the opinion that appellant's pain was proximately caused by appellee's negligence, significant facts were also brought out upon cross-examination to cast doubt upon the opinions of appellant's witnesses. While Dr. Glick testified that appellant's jaw pain resulted from the accident, appellant did not report this pain to him until nine months following the accident. Dr. Hernandez was of the opinion that appellant suffered severe whiplash and severe sprain or strain of the lumbar. The jury was aware that this doctor was also a referral from appellant's attorney. The evidence as a whole indicated that the incident was quite minor, resulting in very slight damage to either vehicle, according to appellant, and no damage whatsoever, pursuant to appellee's testimony. The testimony presented supports a finding by the jury that the minor accident could not have caused the injuries appellant claims it did. - 6 - Appellant relies heavily upon this Court's decision in Pagano v. Schmidt (Jan. 9, 1992), Cuyahoga App. No. 59672, unreported. We found that the jury verdict in favor of the defendant was not supported by the evidence where: * * *[T]he evidence clearly reflects that negligence was stipulated to by the defense. Also, it is equally clear that Pagano sustained some physical injuries, primarily soft-tissue and abrasions, as a result of the first accident * * * [emphasis added.] Pagano v. Schmidt, supra, at 8-9. That case is distinguishable on the facts in that the injuries were of a more substantial nature. Furthermore, the vehicles in the Pagano/Schmidt accident were both disabled and had to be towed from the scene. The jury in the case at hand was not presented with the same evidence of causation as was presented to the Pagano jury. After a thorough review of the evidence to determine the validity of the jury's verdict, we find that some competent, credible evidence supported the judgment in favor of appellee. As this Court has previously stated: [W]e are guided by the principle that judgments supported by competent, credible evidence going to all the material elements of the case must not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus. If the evidence is susceptible to more than one interpretation, we must give it the interpretation consistent with the trial court's judgment. Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581, 584. In this case we must defer to the judgment of the jury. They were in the unique position to judge the credibility of the - 7 - witnesses. We find that the weight of the evidence does not mandate a reversal of the jury's verdict. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN OVERRULING PLAINTIFF'S MOTION FOR NEW TRIAL. Appellant asserts that a reversal of the trial court's denial of her motion for new trial is required because the evidence was uncontroverted that her injury was caused by appellee's negligence. This assertion is without merit. Civ.R. 59(A)(6) allows the trial court to grant a motion for a new trial when the judgment is not sustained by the weight of the evidence. As we found in the prior assignment of error, the verdict in this case is sustained by the evidence presented. Therefore the motion for a new trial was without foundation and properly denied by the trial court. No abuse of discretion existed in the denial of appellant's motion. Appellant's second assignment of error is overruled. The jury's verdict in favor of defendant and the trial court's denial of appellant's motion for a new trial are both affirmed. - 8 - 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 Court of Common Pleas 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. JAMES D. SWEENEY, P.J., AND O'DONNELL, J., CONCUR ANN DYKE 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 of decision by the .