COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71567 : CHRISTINE MORLAN, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : STANLEY JAMES WODEK, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT JULY 17, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 286462 JUDGMENT: Affirmed in part, Reversed in part. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: ALAN J. RAPOPORT, ESQ. JAMES C. COCHRAN, ESQ. 55 Public Square JOSEPH R. WANTZ, ESQ. Suite 1750 2121 Superior Building Cleveland, Ohio 44113 815 Superior Avenue Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, J.: The issue in this appeal is whether a jury correctly found that Christine Morlan, plaintiff-appellant, suffered no damages as a result of two automobile accidents that were the subjects of her lawsuit. Before the case was submitted to the jury on the question of proximate cause, the trial judge granted Morlan's directed verdict on the issue of negligence against all of the defendants- 1 appellees. However, he submitted to the jury the issue of proximate cause as to her damages. The jury, however, returned a verdict in favor of all of the defendants-appellees on the issue of proximate cause. Morlan assigns the following errors for our review: 1. WHETHER THE TRIAL COURT ERRED IN DENYING A MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND A MOTION FOR A NEW TRIAL WHEN A JURY VERDICT FOR THE DEFENDANTS WAS CONTRARY TO LAW BECAUSE A FINDING THAT DEFENDANTS WERE NEGLIGENT HAD BEEN DIRECTED BY THE TRIAL JUDGE AND THERE WAS NO DISPUTE ABOUT THE EXISTENCE OF PROXIMATE CAUSE IN THE CASE. 2. WHETHER THE TRIAL COURT ERRED IN DENYING A MOTION FOR A NEW TRIAL WHEN THE JURY VERDICT WAS CONTRARY TO ALL EVIDENCE PRESENTED BY BOTH PARTIES AND WAS THEREFORE INADEQUATE AND/OR CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. 3. WHETHER THE LOWER COURT ERRED IN DENYING A PROPER MOTION TO ORDER PAYMENT OF EXPENSES FOR A PLAYBACK AT TRIAL OF A VIDEOTAPE RECORDING OF TESTIMONY OF AN EXPERT MEDICAL WITNESS. 1 The defendants-appellees in this case were Stanley James Wodek, Anthony Duncan, and ABCO Fire Protection, Inc. -3- After reviewing the record and the arguments of the parties, we affirm the trial court on all the issues raised except the refusal to order payment of expenses for the videotape playback at trial. This matter is affirmed in part and reversed in part. The apposite facts follow. This case involves two separate accidents. The first occurred on the morning of November 29, 1993. Morlan was driving on Lakeview Street in Parma after taking her son to school. The weather was poor and the road was icy. Lakeview inclines slightly and has a dead-end at the bottom of the incline. An accident had occurred at the bottom of the incline and there were people milling about the accident. Morlan saw the accident when she first turned onto Lakeview. To avoid the accident, she drove in the opposite direction. In the on-coming traffic was Stanley James Wodek in a 1990 Dodge Minivan; he also saw the accident. He tried to avoid it and steered his vehicle left of center into Morlan's lane and ran head-on into her car. Five months later, on Saturday, April 30, 1994, Morlan was a passenger in her friend's car traveling North on York Road. Anthony James Duncan was traveling in the same direction behind Morlan. The road was wet, so when Morlan's friend stopped at a red light, Duncan skidded approximately fifteen to twenty feet. He swerved his pick-up truck to the left to avoid hitting the car in front of him, but rear-ended it anyway. The truck he was driving was owned by his employer, ABCO, Fire Protection, Inc. -4- At trial, Wodek testified he was trying to avoid the accident that had already taken place. He said that he would have certainly "ran (sic) into the people who were already there, plus the cars and everybody else involved at the accident ***." (TR. 330.) Even though the incline was slight, it was "solid ice and I could not have stopped." (TR. 330.) Duncan testified he thought Morlan's car was going to "make the light." He said he skidded because he was driving too close behind Morlan and her friend and because the road was wet. (TR. 257-258.) Duncan also testified he was not within the scope of his employment at the time of the accident, although he was driving his employer's vehicle, which had the name of the company on the side. He was on his way home from a friend's house. Due to the nature of his job, he is allowed to keep the company car at all times and is allowed to use it for personal business. Duncan further testified he was not on call that day, although he could have been paged at any time. Morlan testified she has been in constant pain since both accidents. After each accident, Morlan went to the emergency room where her injuries were respectively diagnosed as "cervical lumbar strain" and "acute cervical strain." (TR. 205 & 206.) She has seen several doctors since then and has received various treatments ranging from physical therapy to epidural blocks. Morlan's husband, Ron, testified he has lost overtime from his job because he has had to take on more household responsibility since Morlan is in constant pain. He also stated he and Morlan no longer sleep -5- together, kiss, or have sex. Her irritability is unlike her normal personality. One of Morlan's doctors and expert witness, Dr. Kostoglou, diagnosed her as having a three-level disc abnormality after viewing Magnetic Resonance Imaging (MRI) pictures. Dr. Kostoglou informed her that her injury was permanent and that the conservative treatment she had been receiving may not be sufficient. She was referred to Dr. Anderson, a neurosurgeon and was advised she may need surgery in the future. The cost of the surgery is approximately $3,000 - $5,000. (TR. 198.) She will also need anti-inflammatory medications and cervical epidural injections, costing $150-$200 per month and $2,000-$3,000 per procedure, respectively. During cross-examination, Dr. Kostoglou stated that when he initially examined Morlan, he too diagnosed her injury as a strain. He agreed that her symptoms could be explained by something other than a disk protrusion, her current diagnosis. Defendants presented Dr. Kaufman's videotaped testimony as to his examination of Morlan. Dr. Kaufman testified that based upon his physical examination of the plaintiff, she exhibited absolutely no objective signs of injury to her neck or lower back. In fact, when Dr. Kaufman administered two separate tests on the plaintiff to gauge her responses to discomfort, her inconsistent responses indicated to him that she was exaggerating her symptoms. Dr. Kaufman also testified a review of x-rays of the plaintiff indicated degenerative arthritis or osteoarthritis in the -6- plaintiff's neck. This arthritic condition would explain any bulging of cervical discs in the plaintiff's neck. At the close of the Plaintiff's case, Morlan moved for directed verdict. The trial court granted the motion on the issue of negligence. After the defendants presented their case, the court gave the following jury instruction: *** [T]he determination in the case for the plaintiffs are, one, the finding of negligence on behalf of the defendant or defendants, and that has been admitted, and that will not be a determination which you will be required to make in this case. The second issue which the plaintiff must prove is what we call "proximate cause." The party who seeks to recover for injuries or damage must prove not only that the other party was negligent, which has been admitted in this case, but also that such negligence was the proximate cause of those injuries. *** One of the determinations which you will be required to make is whether the defendant, Andrew J. Duncan, was an employee of ABCO, the defendant, ABCO, at the time of the accident. *** If you find in favor of the defendants, that will conclude your deliberations, and you will not go on to consider the question of damages. (Emphasis added.) If you consider damages, and you find for the plaintiffs, you will determine from a preponderance of the evidence an amount of money that reasonably compensates the plaintiffs for the actual injury and damages proximately caused by the negligence of the defendant or defendants. *** Gentlemen, are there any additions, alterations or corrections to this charge as given? -7- Counsel for both parties accepted the charge as stated. The jury found for defendants and awarded no damages. Morlan subsequently filed judgment notwithstanding the verdict and new trial motions, which were denied. The court also denied Morlan's motion to have expenses for videotape playback paid. This appeal followed. In her first assignment of error, Morlan argues the trial court should have granted her motion for judgment notwithstanding the verdict ("JNOV") or her motion for a new trial, or both. Morlan claims the jury verdict was contrary to law due to the court's prior directed verdict for negligence in her favor. Morlan also argues the evidence was so one-sided in her favor, that the court's denial of her motions was unjustified. A ("JNOV") motion should be granted when "the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determina- tive issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party." Civil Rules 50(A)(4). Our review of the JNOV determina- tion is de novo. See Norris v. Allstate Ins. Co. (December 19, 1996), Cuyahoga App. No. 70591, unreported. Appellees presented evidence showing Morlan's condition may have been caused by a pre-existing degenerative condition unrelated to the accidents in question. On cross-examination, Dr. Kostoglou, Morlan's expert witness, stated Morlan's symptoms could be caused by something other than an abnormal disk. He also admitted she -8- received treatment from other doctors, prior to seeking his services. They had diagnosed her injury as a strain or as degenerative. Morlan admitted, during cross-examination, she had been involved in three auto accidents before her accident with Wodek. She also admitted she sustained injuries to her lower back and neck, the same areas complained of in this case. Furthermore, in 1979, she fell at work and injured her lower back. After reviewing the record, we conclude the trial court properly denied the JNOV motion. The issue of negligence was admitted and was no longer a factor for the jury. However, the jury had to consider whether the Appellees' negligence proximately caused Morlan's injuries. The jury concluded it was not. The evidence clearly supports the jury's verdict. Morlan's first assignment of error lacks merit. In her second assignment of error, Morlan raises two issues: whether the trial court erred in not granting her a new trial; and whether this matter should be reversed under the manifest weight of the evidence. The trial court acts within its sound discretion in failing to grant a new trial when there is competent, credible evidence to support the jury's finding. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. After reviewing the record, we conclude the trial court acted correctly. We equally conclude that the jury's verdict was not against the weight of the evidence. The sole issue before the jury was -9- whether these accidents proximately caused Morlan's injuries. The jury said they did not. Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis added.) State v. Thompkins (1997), 78 Ohio St.3d 380, 398. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a "'thirteenth juror'" Id., citing Florida v. Tibbs, and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d t 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, OBR, 215, 219, 485 N.E.2d 717, 720- 721 ("the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.")." Id. Here, Morlan has failed to show that the evidence weighed heavily against the defense verdict. In fact, the evidence showed other accidents as causes of her injuries. In one accident, Morlan told the police she was not hurt. Besides, it is conceivable that the jury totally believed Dr. Kaufman as to Morlan's injuries. -10- Thus, the jury did not lose its way. Consequently, Morlan's second assigned error lacks merit. The third assignment of error addresses the trial court's denial of Morlan's motion to order payment of expenses for playback of video testimony. Morlan relies on C.P.Sup.R. 12(D)(1)(c). This rule states the "expense of playing a videotape recording shall be borne by the court." Civ.R. 54(D) governs court assess- ments of cost to the parties. The Ohio Supreme Court has interpreted Civ.R. 54(D) to allow costs only when the costs are allowed by statutory authority. Siegel v. Birnbaum (2/20/97), Cuyahoga App. Nos. 69105 and 69059, unreported. As to the cost of video testimony of Dr. Zelch, Morlan's expert witness, this court reverses the order of the trial court assessing this cost against Morlan. The third assignment of error is sustained. Judgment affirmed in part and reversed in part. -11- It is ordered that Appellant and Appellees share the 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. JAMES D. SWEENEY, C.J., and ROCCO, J., CONCUR. PATRICIA ANN BLACKMON 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 .