COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70861 TYRONE DAVIS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CHARLES GRIMES : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-287997 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: DEBRA DIXON, ESQ. KEITH D.THOMAS, ESQ. JAMES L. DEESE, ESQ. MEYERS, HENTEMANN, SCHNEIDER 700 West St. Clair Avenue & REA COMPANY, L.P.A. Suite 216 815 Superior Avenue, N.E. Cleveland, Ohio 44113 Cleveland, Ohio 44114 - 2 - DYKE, J.: On June 27, 1993 appellant was a passenger in a Chevrolet Blazer being driven by Montorie Foster. Appellee was driving a Nissan when he pulled into the lane occupied by the Blazer, forcing it off the street and into a light pole. Appellant, Foster and another passenger, Delanzo Jacobs, brought an action sounding in negligence against appellee for damages resulting from the accident. Appellee and appellant agreed to stipulate to appellee's negligent operation of his motor vehicle at the time of the accident. In the same list of stipulations, the parties agreed that any copies of appellant's medical records or bills would be given the same evidentiary force and effect as the originals. Delanzo Jacobs voluntarily dismissed his action against appellee without prejudice prior to the trial. The case went before an impaneled jury for their determination of liability. The jury found in favor of appellee. Appellant filed motions for a judgment notwithstanding this verdict and a new trial, both of which were denied by the trial court. Appellant filed this timely appeal from the jury's verdict and the trial court's rulings in appellee's favor. Appellant asserts seven assignments of error. I THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN NOT SUBMITTING TO THE JURY A SINGLE VERDICT FORM DIRECTING A VERDICT IN FAVOR OF THE PLAINTIFF. - 3 - Appellant argues that only one jury verdict form should have been submitted because the appellee had already stipulated to the negligence which caused the collision. Appellant claims that the court erroneously invited the jury to disregard the stipulations of the parties and the undisputed evidence of physical injury. Appellant's argument is without merit. The evidence supported the submission of verdict forms to the jury in favor of both appellant and appellee. The fact that appellee admitted negligence which caused the accident was not an admission that the negligence caused appellant's injuries. The testimony of appellant's doctors conflicted with the emergency room records and radiology reports as to which shoulder was injured. The jury could believe that appellee was not liable for appellant's extensive medical bills relating to his right shoulder, when the medical records compiled at the time of the accident referred to a possible injury in appellant's left shoulder. The trial court retains discretion over the submission of general verdict forms and interrogatories to the jury. Civ.R. 49. We find no abuse of discretion in the submission of both forms where evidence supports either verdict. Appellant's first assignment of error is overruled. II THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING PLAINTIFF'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. Appellant asserts that the evidence is uncontroverted that he sustained some injury in the accident. Appellant argues that - 4 - even the defense counsel admitted some injury existed. Therefore, appellant claims that the trial court should have directed a judgment notwithstanding the verdict when the jury found no liability on the part of appellee. Appellant's argument is not well taken. The same standard is used to review both directed verdict and judgment notwithstanding the verdict motions, except the court will review all evidence presented at trial when ruling on a motion for judgment notwithstanding the verdict. Chemical Bank of New York v. Neman (1990), 52 Ohio St.3d 204. A trial court will grant a motion for judgment notwithstanding the verdict only "after construing the evidence most strongly in favor of the party against whom the motion is directed" and finding "that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party." Civ.R. 50(A)(4). We can not find that the trial court committed prejudicial error in denying appellant's motion for judgment notwithstanding the verdict where reasonable minds could not come to but one conclusion as to the issue of whether appellee's negligence was the proximate cause of appellant's injury to his right shoulder. Reviewing the evidence most strongly in favor of appellee, the party against whom the motion was directed, reasonable minds could not come to but one conclusion. Appellant argues that appellee's trial counsel admitted that some injury existed. The comment made by appellee's trial - 5 - counsel occurred during his closing arguments. He suggested that the jury find appellee liable to appellant for the emergency room costs. This suggestion was not evidence to be considered by the jury. They did not find liability for the emergency room visit, which is the prerogative of the jury. Appellant's second assignment of error is overruled. III THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL. Appellant claims that he is entitled to a new trial because the jury came back with a verdict for appellee where undisputed evidence of injury and stipulated negligence were presented. Appellant's argument is not supported by law nor evidence. Civ.R. 59(A)(6) allows a court to grant a party's motion for new trial where the judgment is not sustained by the weight of the evidence. In the present case, the judgment is sustained by the weight of the evidence, specifically the emergency room reports and radiology records compiled on the date of the accident, which directly conflict with appellant's claim of injury. The trial court properly denied appellant's motion. Appellant's third assignment of error is overruled. IV THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO GIVE A JURY INSTRUCTION IN ACCORDANCE WITH FANTOZZI V. SANDUSKY CEMENT PRODUCTS CO. Appellant asserts that the trial court should have instructed the jury that his injuries preclude his participation - 6 - in daily activities, given that evidence was presented by Dr. Jeffrey Morris to support such an instruction. Appellant's assertion is not well taken. Appellant requested that the trial court give the jury an instruction on his potential damages related to the loss of enjoyment of life: [T]he claimed impairment of one's physical capacity to enjoy the amenities of life. This concept entails providing compensation for the deprivation of one's ability to engage in those activities, and perform those functions, which were part of, and provided pleasure to, one's life prior to the injury. Fantozzi v. Sandusky Cement (1992), 64 Ohio St.3d 601, 616. The trial court did not commit prejudicial error by failing to give this instruction where the jury did not find liability on the part of appellee. Any opinion as to whether the Fantozzi instruction was warranted in this case would be advisory given the jury's verdict. Appellant's fourth assignment of error is overruled. V THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO GIVE A PROPOSED JURY INSTRUCTION ON CAUSATION IN FACT. Appellant argues that appellee's stipulated negligence should have supported an instruction on causation in fact, rather than legal causation. Appellant's argument is without merit. Legal causation remained an issue in this case after appellee stipulated to the negligence which caused the accident. The proximate cause issue is whether that negligence caused appellant's injury. Appellant cites to a case where the tortious - 7 - conduct of multiple parties caused a single injury and the jury faced the prospect of determining who caused which part of the injury. See, Pang v. Minch (1990), 53 Ohio St.3d 186. The facts of the present case are easily distinguishable from Pang v. Minch, supra, because the jury's determination was whether or not the negligence of one actor proximately caused the injury complained of by appellant. Appellant argues that because he went to the emergency room the fact of his injury is established. Appellant is not entitled to judgment based on that evidence of injury. The primary evidence of injury presented in appellant's case-in-chief was based upon medical treatment received a year and a half after the accident for injury to his right shoulder. He was not entitled to an instruction as to causation in fact due to a lack of evidence to support proximate cause. Appellant's fifth assignment of error is overruled. VI THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO ALLOW THE TESTIMONY OF PLAINTIFF'S PRIVATE INVESTIGATOR. Appellant asserts that his expert's testimony regarding the severity of the impact of the Blazer with the light pole should have been admitted. Appellant also argues that the same expert should have been allowed to testify that he was present when appellant gave a medical history and statement about the accident to a doctor hired by appellee's defense counsel. Appellant wanted to use his expert's testimony to corroborate the version - 8 - of the accident appellant gave at trial as the same version which he gave to the defense's doctor in the expert's presence. The expert's testimony on both the severity of impact and the verification of appellant's statement was properly excluded by the trial court. The court has discretion as to the admission or exclusion of evidence during the course of the trial. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * * *" Evid.R. 103(A). We do not find that any of appellant's substantial rights were affected by the trial court's exclusion of the investigator's testimony. The testimony to corroborate the history given by appellant to the defense's medical expert at the time of the exam was clearly inadmissible hearsay sought to be admitted for the truth of the matter. The testimony relating to the photos admitted into evidence would have been redundant given that the photos themselves were self-explanatory. The trial court did not abuse its discretion in excluding the testimony of appellant's investigator. Appellant's sixth assignment of error is overruled. VII THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN EXCLUDING FROM EVIDENCE THE MEDICAL RECORDS OF DEFENDANT'S INDEPENDENT MEDICAL EXAMINER. Appellant argues in his final assignment of error that the expert report prepared by Dr. Brahms should have been admissible when appellant lacked the opportunity to cross-examine him at a - 9 - deposition, which was cancelled by appellee's trial counsel, and when Dr. Brahms was unable to testify at the trial due to a medical operation. Appellant's argument is not well taken. R.C. 2317.36 gives the trial court authority to admit expert reports into evidence where no substantial injustice will be done to the opposite party and the report is testified to by the person making the report or findings. Dr. Brahms was initially contacted by appellee to perform an independent medical exam on appellant. The exam was performed and a written report was made. However, the scheduled deposition of the doctor was cancelled by appellee. Appellant did not have the opportunity to depose Dr. Brahms nor call him to testify due to a medical problem which rendered Dr. Brahms unavailable. The injustice in allowing Dr. Brahms' report to be admitted without benefit of his availability is in the lack of opportunity for either of the parties to examine or cross-examine the doctor as to his findings. The trial court did not abuse its discretion where the possibility of injustice to one of the parties existed and the medical expert was not available to testify to his report. Appellant also claims that the report should have been admitted under the parties' stipulation to the authenticity of the copies of all of appellant's medical records. This expert report is not included in the stipulation as to authenticity. The report was not made in the course of treatment as were the medical records referred to by the stipulation. - 10 - Appellant's seventh assignment of error is overruled. The jury's verdict which found no liability on the part of appellee is affirmed. - 11 - 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. DAVID T. MATIA, P.J., AND SPELLACY, 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 .