COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72110 DAVID M. SANTOLI : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DELORES MARBUERY : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION MAY 14, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-303257 JUDGMENT: REVERSE DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JOHN S. WOLANIN (#0051970) JOSEPH S. SIMMS (#0066584) WILSMAN & SCHOONOVER 1920 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1804 For Defendant-Appellant: ROGER H. WILLIAMS (#0016430) MATTHEW J. GRIMM (#0065060) WILLIAMS & SENNETT CO. L.P.A. 2241 Pinnacle Parkway Twinsburg, OH 44087-2367 -2- SPELLACY, J.: Defendant-appellant Delores Marbuery ( appellant ) appeals from the granting of plaintiff-appellee David Santoli's motion for new trial. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED AND ABUSED ITS JUDICIAL DISCRETION IN GRANTING PLAINTIFF-APPELLEE'S MOTION FOR A NEW TRIAL. II. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED PLAINTIFF-APPELLEE'S MOTION FOR A NEW TRIAL. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CLEARLY IDENTIFY THE GROUNDS UPON WHICH IT GRANTED PLAINTIFF- APPELLEE'S MOTION FOR A NEW TRIAL. Finding the appeal to have merit, the judgment of the trial court is reversed. I. On September 1, 1994, an automobile accident occurred at East 71stStreet and Fullerton Avenue. A Chevrolet-Geo Metro driven by appellant entered the intersection of East 71st Street and Fullerton Avenue and collided with Kazimierz Chodubski's 1978 Ford LTD. Appellant testified that she had come to a complete stop at the intersection, looked both ways but failed to see Chodubski's vehicle. Chodubski estimated he was traveling between fifteen and twenty miles per hour at the time of impact. Chodubski filed suit against appellant for negligently causing him personal injury. Appellant also brought claims for negligence per se and emotional distress. Chodubski's motion for summary -3- judgment as to appellant's negligence per se was granted by the trial court and is not an issue in this appeal. The case proceeded to trial on the issue of negligence. Teresa Romejko testified that she was a passenger in Chodubski's automobile when the accident occurred. She felt a very hard bump to the car when it was in the intersection. The impact took place on the driver's side door. The car was pushed to the side of the road. Romejko asked Chodubski if he was alright and he replied in the affirmative. He could move and talk after the collision. By evening, Romejko noticed Chodubski was shaky. He complained of pain. Romejko accompanied Chodubski to his doctor the next day. In the two years between the accident and trial, Romejko did not recall Chodubski ever complaining that his leg or back hurt. His only complaints have been related to headaches caused by medication he is taking. Chodubski testified that the impact of the accident was strong. Although he was wearing his seat belt and shoulder harness, Chodubski found himself under the steering wheel after the crash. He immediately felt pain in his back and leg. Chodubski visited his family doctor the next day, complaining of back and leg pain. His doctor gave Chodubski an injection and had an x-ray taken. A week later, Chodubski went for an MRI which revealed some bulging discs and degenerative changes known as spinal stenosis. About four to six weeks after the accident, Chodubski began using a therapeutic device in an effort to relieve the pain in his back. A year after the accident, Chodubski visited Dr. Andre -4- Wolanin, a Polish speaking surgeon. Dr. Wolanin recommended surgery which Chodubski never had due to the expense. That doctor referred Chodubski to Dr. Anderson. Chodubski testified he still took medicine to relieve the pain caused by the accident. He had trouble sleeping because of the pain in his back and leg. Chodubski experienced severe pain when walking over one hundred feet. He seldom drove because of the discomfort. Upon cross-examination, Chodubski denied being treated at the hospital in 1992 for back problems. He further denied being involved in an accident prior to 1994 although his medical records reflected the information. Chodubski stated he may have had problems sleeping after a work-related accident in 1990 but that difficulty was transitory. Dr. Andre Wolanin testified that Chodubski was referred to him primarily because he fluently speaks Polish. He is the brother of Chodubski's attorney. Dr. Wolanin reviewed the medical records and bills regarding the case. He examined Chodubski on September 28, 1995. At the time, Chodubski was fifty-one years of age and was experiencing low back pain. Chodubski stated to Dr. Wolanin that he was suffering increasing low back pain which radiated down his left leg. Chodubski claimed the pain had been increasing and limited his ability to walk and his daily activities. Sleep was impossible. Dr. Wolanin discovered that Chodubski had a compression around the nerve root in his spine which would cause the leg pain. Chodubski had significant narrowing at the fourth -5- vertebral level which caused the nerve root compression. Dr. Wolanin stated that trauma caused by the accident most likely resulted in an inflammation which exacerbated Chodubski's symptoms. Dr. Wolanin recommended Chodubski undergo surgery which would cost approximately $30,000. He felt that all the medical treatment Chodubski had received was reasonable and medically necessary. Dr. Wolanin referred Chodubski to Dr. Anderson who recommended more conservative treatment which did not include surgery. Dr. Wolanin also agreed that degenerative problems can occur over time which can cause symptoms such as Chodubski experienced. Appellant testified that she was traveling no more than twenty miles per hour at the time of impact. Appellant had stopped at the intersection but did not see Chodubski's vehicle before she pulled into traffic. Appellant denied that the accident caused Chodubski's car to move into the curb but stated that both cars stopped at the point of contact. Chodubski did not complain of any injuries in her presence. The jury returned a verdict for Chodubski for $2,500. Chodubski filed a motion for new trial in which he argued the damages were inadequate and appeared to have been rendered under the influence of passion or prejudice and that the judgment was against the weight of the evidence. The trial court granted Chodubski's motion. In its findings of fact and conclusions of law, the trial court stated that it already was determined that appellant's negligence was the direct and proximate cause of the accident and of Chodubski's injuries. -6- The trial court found that Chodubski's testimony, that he had incurred $5,112.43 in medical expenses, had difficulty walking for any distance, and could not sleep because of pain in his leg, was unchallenged by appellant. The trial court also found Chodubski's expert medical testimony regarding the $30,000 in future medical expenses to be uncontroverted, as the defense offered no expert testimony. The trial court found that the verdict was clearly against the weight of the evidence and granted the motion on the grounds of inadequacy of damages. Chodubski has since died and the administrator of his estate has been substituted as the plaintiff in the matter. II. Appellant's first and second assignments of error will be addressed together as both advance similar arguments. In the assignments of error, appellant basically argues that the trial court abused its discretion in granting Chodubski's motion for a new trial. She contends that the trial court substituted its judgment for that of the jury as reflected by the trial court's findings of fact which contradict what the evidence adduced at trial. Appellant maintains that she did challenge Chodubski's evidence through cross-examination. She states that the trial court erroneously maintained that Chodubski's medical testimony was uncontroverted because appellant did not have a medical expert also. Civ.R. 59(A)(6) permits a trial court to order a new trial if the judgment is not sustained by the weight of the evidence. The -7- granting of a motion for a new trial rests within the sound discretion of the trial court. That determination will not be disturbed upon appeal unless there has been an abuse of that discretion. Pena v. Northeast Ohio Emergency Affiliates, Inc. (1995), 108 Ohio App.3d 96. An abuse of discretion connotes more than an error of law or judgment; it implies an attitude on the part of the trial court which was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. The trial court's decision will be affirmed upon appeal unless it was clearly wrong and without legal basis. Dawson v. MetroHealth Ctr. (1995), 104 Ohio App.3d 654. When considering a Civ.R. 59(A)(6) motion, the trial court must weigh the evidence and pass on the credibility of the witnesses. The trial court's consideration of this weight and credibility is not in the substantially unlimited sense employed by the jury but in a more restricted sense of whether it appears to the trial court that manifest injustice has been done and that the verdict is against the weight of the evidence. Rohde v. Farmer (1970), 23 Ohio St.2d 82, paragraph three of the syllabus. A trial judge should abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. Bland v. Graves (1993), 85 Ohio App.3d 644. An appellate court's review of a decision of whether or not to grant a new trial does not involve an evaluation or weighing of the evidence. Only an abuse of discretion standard is to be applied. Osler v. Lorain (1986), 28 Ohio St.3d 345. A reviewing court -8- should view the evidence favorably to the trial court's action rather than the jury's verdict. Jenkins v. Krieger (1981), 67 Ohio St.2d 314. A new trial should be granted under Civ.R. 59(A)(6) where it appears the jury awarded inadequate damages because it failed to consider an element of damages established by uncontroverted expert testimony. Dillon v. Bundy (1991), 72 Ohio App.3d 767. [I]n order to set aside a damage award as inadequate and against the manifest weight of the evidence, a reviewing court must determine that the verdict is so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiff's claim. (Emphasis deleted.) Bailey v. Allberry (1993), 88 Ohio App.3d 432, 435. In the instant case, it appears that the trial court did substitute its opinion for that of the jury. Its findings of fact at times does not accurately reflect the evidence or history of this case. Although summary judgment was granted on the issue of appellant's negligence in causing the accident, this did not include the issue of Chodubski's injuries or proximate cause as stated by the trial court. The trial court also relies on Chodubski's MRI without mentioning that the test result was negative for injuries caused by the accident. Only degenerative changes were found. Also, the expert medical testimony was challenged by appellant through cross-examination of Dr. Wolanin which included the admission that Dr. Anderson did not recommend surgery. The testimony of Teresa Romejko, Chodubski's companion, was -9- that Chodubski never complained to her about any pain in his back or leg. Romejko regularly accompanied Chodubski to his medical appointments and heard other complaints by Chodubski relative to his health. On cross-examination, Chodubski denied ever seeking treatment for his back although appellant presented medical records to that effect. Chodubski also denied being in an accident in 1990 although this information is found in his medical records. He then disputed having a phobia about driving before the accident or having sleeping problems but then stated he may have had these problems for a short time following a work-related accident in 1990. Because the trial court misstated the factual history of this case, it abused its discretion by granting the new trial. After all, it is initially the jury's function to weigh the evidence and to pass upon the credibility of the witnesses. A trial court may not set aside the jury verdict based only on a difference of opinion. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679. The court does not undertake to judge the credibility of the evidence, but only to judge whether it has the semblance of credibility. Verbon v. Pennese (1982), 7 Ohio App.3d 182, 183. A reviewing court, while giving deference to the trial court's opinion, must engage in a more searching inquiry when a verdict is set aside as being against the weight of the evidence in order to prevent the trial court from encroaching on the jury's important fact-finding function. Bland v. Graves (1993), 85 Ohio App.3d 644. -10- There was evidence adduced at trial which supports the jury's verdict. Therefore, it appears that the trial court did encroach upon the province of the jury in finding the facts. It was an abuse of discretion to grant a new trial for the verdict being against the weight of the evidence. The trial court also stated that the damages were inadequate. Therefore, the new trial additionally may have been granted pursuant to Civ.R. 59(A)(4). Factors to be assessed in reviewing the exercise of discretion by the trial court under this provision include the excessive nature of the verdict, consideration by the jury of incompetent evidence, improper argument by counsel, or other improper conduct which can be said to have influenced the jury. Fieldsv. Dailey (1990), 68 Ohio App.3d 33, 39. To support a finding of passion or prejudice, it must be demonstrated that the jury's assessment of damages was so overwhelmingly disproportionate as to shock reasonable sensibilities. Pena v. Northeast Ohio Emergency Affiliates (1995), 108 Ohio App.3d 96. The burden is on the moving party to demonstrate that passion and prejudice played a role in the jury's determination. Knor v. Parking Co. Of Am. (1991), 73 Ohio App.3d 177. A reviewing court should be particularly circumspect about attributing passion or prejudice to a jury's determination of damages as that is a matter peculiarly in their province. Kluss v. Alcan Aluminum Corp. (1995), 106 Ohio App.3d 528, 539. After all, passion and prejudice are not proved by the size of the verdict. Id. There is nothing in the record to support a finding of passion -11- or prejudice on the part of the jury. There was no incompetent evidence admitted, no misconduct on the part of counsel or the trial court, or any other action or event which could have swayed the jury in their determination of damages. A grant of a new trial under Civ.R. 59(A)(4) was not warranted. Appellant's first and second assignments of error have merit. III. In her third assignment of error, appellant argues that the trial court committed reversible error by not clearly identifying the grounds upon which it granted the motion for new trial. Appellant points out that the trial court never specifically stated upon which provision of Civ.R. 59(A) it was basing the grant of the new trial. A trial court must articulate its reasons for granting a motion for new trial in order to allow for proper review. Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio St.3d 144, syllabus. In Antal, the trial court granted a motion for new trial because the verdict was not sustained by the weight of the evidence but did not specify any reasons for the decision. The decision was reversed as the trial court did not offer any explanation for its decision. In the instant case, the opposite occurred. The trial court did articulate its reasoning for granting a new trial and mentioned both weight and inadequacy of damages but did not specify if the motion was granted pursuant to Civ.R. 59(A)(4), Civ.R. 59(A)(6) or both. Although the better practice would be to state upon which provision or provisions of Civ.R. 59 the decision is premised, the -12- trial court's decision set forth the reasoning behind its decision which permitted proper review by this court. Appellant's third assignment of error is overruled. Judgment reversed. -13- This cause is reversed. 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. Exceptions. JAMES M. PORTER, P.J. and JOHN T. PATTON, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .