COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71147 SAEADA SALEM : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION JOSEPH M. TRIVISONNO : : Defendant-appellee : : : JANUARY 29, 1998 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-284228 : JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: MITCHELL A. WEISMAN, ESQ. MARILLYN FAGAN DAMELIO, ESQ. Weisman, Goldberg & Weisman Lakeside Place, Suite 410 1600 Midland Bldg. 323 Lakeside Avenue, West 101 Prospect Avenue., W. Cleveland, OH 44113 Cleveland, OH 44115 -2- PATTON, J. Plaintiff-appellant, Saeada Salem ( plaintiff ), appeals the decision of the trial court overruling her motion for a new trial. She claims the trial court erred because the jury verdict was against the manifest weight of the evidence and the trial court abused its discretion by overruling her motion for a new trial. Plaintiff was parked at a red light when she was bumped from behind by defendant-appellee, Joseph Trivisonno ( defendant ), who was driving his car at a speed less than five miles per hour. The parties exited their cars and, realizing no one was injured and there was no damage to either car, continued on their way. Plaintiff continued to a meeting at work. Later in the day, plaintiff went to the police station to file a police report regarding the accident. That same evening she went to the emergency room, complaining her neck and the left side of her face hurt. She claimed her face hurt as a result of hitting it on the steering wheel. The next day, the pain continued and she went to the hospital where X-rays and a CAT scan of her face were taken. She was referred to an ear, nose, and throat doctor who prescribed medication to counteract the pain. Plaintiff eventually filed suit and the matter proceeded to trial. At trial, several co-workers testified that plaintiff's face was discolored and swollen in the days following the accident. These same co-workers also testified that plaintiff's job perfor- mance deteriorated after the accident. Plaintiff's daughter stated plaintiff was in good health and very active before the accident -3- but after the accident she was always in pain and slept frequently. Two doctors also testified, one for plaintiff and one for the defense. Plaintiff's doctor corroborated the lay testimony stating symptoms of an accident of this type would be swelling twenty-four (24) hours later and black and blue marks. He then opined plaintiff suffered a left semi facial trauma. At deposition, defendant's doctor confirmed plaintiff's injury during the following colloquy: Q. Just so we're clear, your testimony to a reasonable degree of medical certainty is that she sustained what as a result of the accident? A. Soft tissue to the left side of her face. Defendant testified he was traveling less than five miles per hour when he bumped plaintiff. He also said he heard plaintiff state she was fine immediately after the accident. The jury returned a verdict for defendant. Plaintiff filed a motion for a new trial alleging the evidence adduced at trial, specifically the testimony of the doctors, demonstrated she suffered an injury as a result of the accident. The trial court subsequently denied this motion and plaintiff now appeals both the denial of the new trial motion and the jury verdict. In her first assignment of error, plaintiff states as follows: THE VERDICT IN FAVOR OF THE DEFENDANT-APPELLEE WAS AGAINST THE MANIFEST WEIGHT OF THE EVI- DENCE. Plaintiff argues it is well established that when a defendant admits negligence and denies proximate cause, and the plaintiff, plaintiff's physician and defendant's physician testify that some injury was caused by the accident, a verdict for the defendant is -4- against the manifest weight of the evidence. In support of this proposition, defendant cites Vescuso v. Lauria (1989), 63 Ohio App.3d 336 and Hallman v. Skender (Jan. 28, 1988), Cuyahoga App. No. 53027, unreported. Vescuso was injured in a car accident and alleged that she suffered injuries as a result of the accident. Her expert testified, based on the tests he performed, the pain she suffered in her neck, arm, and shoulder, was caused by the accident. The tortfeasor's expert testified the wrist, arm, and shoulder injuries were unproven, but the neck injury was caused by the accident. Based on the tortfeasor's expert testimony this court reversed a defense verdict stating, there was competent and credible evidence to show that the negligence of the appellant had proximately caused some injury to the appellant. Vescuso, supra, at 340. Hallman was involved in a car accident and her expert testified she suffered a ruptured disc as a result. The tortfea- sor's expert stated Hallman had a prior degenerative back condition which mitigated the ruptured disc, but upon further questioning he stated Hallman suffered some soft tissue injury as a result of the accident. This court reversed the jury's defense verdict holding it was against the manifest weight of the evidence based on the competent credible evidence provided by the tortfeasor's expert. Hallman, supra, at page 4. In the present case, defendant counter-argues the jury verdict was not against the manifest weight of the evidence because his expert did not diagnose plaintiff as having a soft-tissue injury, -5- as plaintiff alleges. Defendant maintains the entire case turned on the credibility of plaintiff and it is within the province of the jury to disbelieve plaintiff suffered a facial trauma. Moreover, defendant claims the police report, the emergency records, and the testimony of plaintiff's own witnesses, refute the argument that plaintiff suffered any head trauma resulting from the accident. In support of his position, defendant cites Kump v. Good (Oct. 17, 1996), Cuyahoga App. No. 70100, unreported. Kump was driving her car when she was touched from behind, as stated by the tortfeasor. Very little damage was done to either car and Kump told the tortfeasor the dent in her car was from a prior accident. Kump experts testified that Kump's back, neck, and jaw pain were caused by the accident. The jury returned a defense verdict, which was upheld by this court. Defendant argues Kump is more analogous to the present case than either Vescuso or Hallman. Similar to Kump, he claims this was a minor accident which caused no property damage, where both parties agree as to how the collision occurred, but the evidence reveals that [plaintiff's] alleged injuries were not caused by that collision. We find the facts of the present case are more analogous to Vescuso and Hallman than to the facts in Kump. In Vescuso and Hallman we overruled defense verdicts based on the competent, credible evidence of medical experts diagnosing both Vescuso and Hallman as having suffered injuries as a result of a car accident. -6- Whereas in Kump, we upheld a defense verdict, where there was significant testimony elicited which cast doubt upon Kump's expert medical testimony. In addition, Kump testified no part of her body struck the interior of her car at the time of the accident and that she had been involved in two prior car accidents. The facts in the present case reveal both plaintiff's and defendant's medical experts testified plaintiff was injured as a result of the accident. This is competent, credible evidence in support of plaintiff's claim that she suffered a soft tissue injury to the left side of her face, but it does not permit recovery for the benign retention cyst; the evidence further demonstrates that the motor vehicle accident did not cause plaintiff's chronic maxillary sinusitis polyps, or chronic rhinitis. Additionally, plaintiff testified her face struck her steering wheel and further there was a significant amount of lay testimony corroborating plaintiff's allegation that she suffered a facial injury. Her daughter and three co-workers testified that plaintiff's face was swollen and discolored a short time after the accident. These same witnesses also testified plaintiff's work deteriorated after the accident. Plus, plaintiff and her daughter stated before the accident plaintiff was very active, while after the accident plaintiff mostly slept. The jury's defense verdict was not supported by competent, credible evidence only insofar as it relates to soft tissue injury and pain. Plaintiff's first assignment of error is sustained to this limited extent. -7- In her second assignment of error, plaintiff states as follows: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING PLAINTIFF-APPELLANT'S MOTION FOR NEW TRIAL. In this assignment of error plaintiff argues that since the verdict was against the manifest weight of the evidence the trial court erred in not granting her motion for a new trial. Civ.R. 59 pertains to motions for new trials and states, in pertinent part: (A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following. *** (6) The judgment is not sustained by the weight of the evidence. Considering the determination in the first assignment of error that the jury verdict was against the manifest weight of the evidence only insofar as it relates to soft tissue injury and pain. The trial court's denial of plaintiff's motion for a new trial was unreasonable and an abuse of discretion. Thus, plaintiff's second assignment of error is sustained. Reversed and remanded. -8- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to said 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. DYKE, P.J. O'DONNELL, J., CONCUR. JUDGE JOHN T. PATTON 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 .