COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72351 DAWN M. SUTHERIN, ET AL. : : : JOURNAL ENTRY PLAINTIFFS-APPELLANTS : : AND v. : : OPINION REGINA DIMORA : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 26, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, CV-295185. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Brian J. Melling, Esq. 31 Columbus Road P.O. Box 46311 Bedford, OH 44146 Thomas G. Longo, Esq. 28001 Chagrin Boulevard Suite 300 Cleveland, OH 44122 Clarence B. Rader, III, Esq. Melling, Melling & Bell 31 Columbus Road P.O. Box 46311 Bedford, OH 44146 For Defendant-Appellee: Laurel E. Letts, Esq. 410 Lakeside Place 323 Lakeside Avenue W. Cleveland, OH 44113 -2- William D. Dowling, Esq. Oldham & Dowling 195 S. Main Street, Suite 300 Akron, OH 44308-1314 -3- TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant, DawnSutherin ( appellant )1, appeals the decision of the Cuyahoga County Common Pleas Court which denied appellant's motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial. Specifically, appellant argues that the jury's verdict, wherein it found in favor of appellant but awarded zero dollars, is against the manifest weight of the evidence. On October 13, 1993, appellant was involved in an automobile accident with defendant-appellee, Regina Dimora ( appellee ). Appellant subsequently brought suit against appellee claiming that appellee's negligence proximately caused appellant's injuries. Appellee eventually admitted causing the accident but denied causing appellant's injuries to the extent claimed by appellant. Specifically, appellee did not dispute that appellant required emergency room treatment for injury to her hands and knees as well as for follow-up obstetrical care related to monitoring any injury to her unborn child. What appellee did dispute, however, was the necessity of medical/surgical treatment for appellant's nose, which appellant claimed was injured when the airbag equipped in her vehicle deployed upon impact. The record reflects that appellant had sustained a previous nasal injury sometime in 1992 for which she underwent surgery later 1While appellant's notice of appeal and it briefs to this court reference appellant's husband, Daniel Sutherin, as a party to the appeal, the record reflects that Mr. Sutherin dismissed his claims with prejudice during trial. See January 22, 1997 journal entry. -4- that year. It was appellant's argument at trial that the collision with appellee re-injured her nose and caused her to seek the medical opinion of Bayman Guyuron, M.D. At Dr. Guyuron's recommendation, appellant subsequently underwent surgery in June 1994. Because the surgery was not completely successful, Dr. Guyuron recommended, but has yet to perform, additional surgery. Appellant testified that, on the day of the accident, she experienced injury to her hands and knees and was anxious about any injury to her unborn child, especially when she observed bruising across her abdomen shortly thereafter. The balance of her testimony was related to the nose surgery performed subsequent to the accident. Before resting her case, appellant submitted, without objection, the medical bills for her emergency room visit and follow-up obstetrical bills. Additionally, she submitted medical bills associated with the June 1994 nose surgery as well as a statement from Dr. Guyuron projecting the anticipated costs of additional surgery. Appellee presented the testimony of her medical expert, James Lehman, M.D., who disagreed with Dr. Guyuron's conclusion as to the cause of appellant's nasal deformities. Specifically, Dr. Lehman did not see that the surgery performed on appellant's nose was necessitated by the automobile accident that had occurred in October 1993. The jury ultimately rendered a verdict in favor of appellant but awarded appellant zero damages. The court, without opinion, denied appellant's motion for judgment notwithstanding the verdict or, in the alternative, a new trial. -5- Appellant timely appeals and assigns the following errors for our review: I. THE JURY VERDICT AND JUDGMENT THEREON WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL. III. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT. I. Appellant does not challenge the jury's verdict insofar as it awarded no damages related to appellant's subsequent nose surgery. What appellant does challenge, however, is the failure of the jury to award damages related to her emergency room treatment, necessary obstetrical follow-up and associated pain and suffering. Specifically, appellant contends in her first two assignments of error that she is entitled to a new trial because the jury's award is inadequate and not sustained by the manifest weight of the evidence. Because liability was uncontested, she argues that the jury erred in not rendering a monetary award, at least to the extent of her emergency room treatment and associated pain and suffering, when it found in her favor. Civ.R. 59(A)(6) allows the trial court to grant a party's motion for a new trial where the judgment is not sustained by the weight of the evidence. Civ.R. 59(A)(4) provides the same relief when an award of damages is inadequate. A reviewing court, however, will not disturb a trial court's ruling on such a motion absent an abuse of discretion. Rohde v. Farmer (1970), 23 Ohio -6- St.2d 82; Jones v. Olcese (1991), 75 Ohio App.3d 34, 37. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In deciding a motion for a new trial on the basis that the award of damages is not sustained by the weight of the evidence, the court must determine if the award resulted from the jury's failure to consider an element of damages that was established by uncontroverted evidence. Dillon v. Bundy (1992), 72 Ohio App.3d 767, 773; see, also, Slivka v. C.W. Transport, Inc. (1988), 49 Ohio App.3d 79, 80-81. Nonetheless, if a judgment is supported by some competent, credible evidence, it will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus; see, also, State ex rel. Pizza v. Strope (1990), 54 Ohio St.3d 41, 46. Likewise, in deciding whether the trial court abused its discretion in ruling on a motion for new trial on the basis that the award is inadequate, a reviewing court must consider whether the movant has demonstrated that the verdict was the result of jury passion and prejudice and that it was disproportionate in amount so as to shock reasonable sensibilities. Pena v. Northeast Ohio Emergency Affiliates, Inc. (1995), 108 Ohio App.3d 96, 104; Weidner v. Blazic (1994), 98 Ohio App.3d 321, 334. In this case, while competent, credible evidence was before the trial court supporting the jury's verdict to the extent that it -7- denied damages for appellant's subsequent nose surgery, the jury ignored uncontroverted evidence that the collision necessitated appellant's treatment at a local emergency room and required subsequent obstetrical follow-up. Likewise, there was testimony to the effect that the collision caused appellant anxiety about her pregnancy entitling her, at least to this limited extent, some award for pain and suffering. See Siders v. Reynoldsburg School Dist. (1994), 99 Ohio App.3d 173, 192-193. Appellee counters that the jury's award is entirely appropriate given that there was no medical testimony to support the injuries to appellant's hands and knees or the need for subsequent obstetrical follow-up. While it is true that it is appellant's burden to show that the accident proximately caused the claimed damage, proof that the accident caused the claimed damage may be shown by expert opinion testimony or by the testimony of the plaintiff when the causal relationship is a matter of common knowledge. In the latter instance, the jury can decide whether the specific care was justified from the evidence about the nature of the injuries and the subsequent care. See Wood v. Elzoheary (1983), 11 Ohio App.3d 27, 29; Woyma v. Begovic (July 14, 1994), Cuyahoga App. No. 64985, unreported at 17. In this case, appellant sought, inter alia, payment of medical bills associated with the emergency room treatment rendered on the day of the accident as well as for follow-up obstetrical care rendered shortly thereafter. Appellee never contested the reasonableness or necessity of this treatment and, in fact, -8- suggested a monetary award to compensate appellant for these claims. Under these circumstances, appellant's injuries as they relate to her hands, knees and follow-up obstetrical care, were within the common knowledge of the fact-finder and did not require the testimony of a medical expert. In summary, notwithstanding that the jury found no compensable injury to appellant's nose, we find that the jury's award of zero dollars is disproportionate in light of uncontroverted evidence of injury to her hands and knees as well as for follow-up obstetrical care. Because we find that the trial court abused its discretion in denying appellant's motion for a new trial, we reverse the decision of the trial court and remand for a new trial on the sole issue of damages only. On remand, the trial court is instructed that the jury is to consider only those damages related to the unchallenged evidence of medical bills associated with appellant's emergency room treatment and subsequent obstetrical follow-up as well as any associated pain and suffering. Accordingly, appellant's first and second assignments of error are well taken and sustained. II. Due to our disposition above, appellant's third assignment of error need not be addressed. See App.R. 12(A)(1)(c). -9- 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. and PATTON, J., CONCUR. TIMOTHY E. McMONAGLE 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 .