COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72480 ANTONIO RODRIGUES, ET AL. Plaintiff-appellant JOURNAL ENTRY vs. AND WENDY WASMAN OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court Case No. CV-293632 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellee: TYRONE E. REED, ESQ. MICHAEL CUNNINGHAM, ESQ. 12025 Shaker Boulevard, #575 323 Lakeside Avenue, West Cleveland, Ohio 44120 410 Lakeside Place Cleveland, Ohio 44113 -2- KARPINSKI, P.J.: Plaintiff-appellant, Antonio Rodriguez, appeals from the judgment of the trial court finding that plaintiff was not entitled to recover damages as a result of a traffic accident between plaintiff and defendant. On appeal, plaintiff argues that the jury's verdict was contrary to the manifest weight of the evidence. For the reasons that follow, we affirm the judgment of the court below. Plaintiff and defendant were involved in a traffic accident in Beachwood, Ohio on February 12, 1994. Defendant admitted that she was negligent in driving through a red light and striking plaintiff's car and thus caused plaintiff's car to hit a third vehicle. Plaintiff brought suit and alleged damages of $456.00 for property damage and $20,000 for personal injuries. Plaintiff was also in a second car accident two months later in late March of 1994. A car hit him from behind while he was stopped at a light. The primary issue in this appeal is the extent of plaintiff's damages and whether they were caused by the first accident with defendant. The first witness for plaintiff was his wife, Joan Jones, a registered nurse. She has been married to plaintiff since 1990 and has known him since 1981. Initially she stated that she had never known her husband to have any severe back problems. She did, however, remember that he saw a chiropractor in the late 80's. When asked if he had a herniated disk, Jones replied that she knew he had a back problem. Concerning plaintiff's abilities before and -3- after the February 12, 1994 accident, Jones explained that plaintiff could jog and work around the house before the accident, but not after. She described plaintiff as sore immediately after the accident of February 12. Although Jones was in the car during the February 12 accident, she was not injured other than being sore. Finally, she remembered plaintiff saying that he was involved in an accident in either March or April of 1994, but the car was not dented. On cross-examination she admitted that plaintiff did not go to the hospital right away. When further questioned by defense counsel, she remembered that three months before the accident plaintiff had been treated by a chiropractor and a Kaiser physician for lower back pain and herniated disks. Dr. Juan Hernandez, an anesthesiologist specializing in pain management, testified via videotaped deposition. When he first saw plaintiff on February 22, 1994, he noted tenderness and pain in the cervical neck and lumbosacral region. He did not observe any degenerative disk disease, nor did plaintiff mention any prior back problems. Initially, Hernandez prescribed massotherapy, electrical stimulation, and heat physiotherapy. When the problems persisted, on February 28, 1994 Hernandez prescribed an MRI, which was performed on March 1, 1994. Because the MRI revealed bulging disks, Hernandez referred plaintiff to Dr. Ortega for surgery. It was the opinion of Dr. Hernandez that the accident of February 1994 caused the back injuries which required surgery. Hernandez added that if plaintiff had any prior degenerative back problems, the February 12, 1994 accident could have aggravated this condition. -4- Hernandez believed that the February 12, 1994 accident, and not the March accident, caused the injuries, because the MRI revealing bulging disks was performed prior to the second accident. Finally, Dr. Hernandez also agreed that bulging disks can be caused by degenerative disease as well as by trauma. The videotaped deposition of Dr. Bienvenido Ortega, a surgeon, also was played to the jury. When he first saw plaintiff on April 13, 1994, the surgeon was unaware of a second accident in March. He noted that plaintiff complained of soreness in his lower back and neck and that an MRI revealed that several disks were bulging in the lower back and neck. He was aware that plaintiff also had degenerative disk disease prior to the accident and agreed that bulging disks can be caused by both degenerative disease or injury. On June 14, 1994, Dr. Ortega performed a procedure called a diskogram followed by an automated percutaneous lumbar disketomy. During a disketomy, segments of the disk are removed to allow the disk to settle down. Regarding the question of what caused the need for the disketomy, Dr. Ortega's testimony was somewhat ambiguous. First, he stated that, although plaintiff had pre- existing back problems prior to the Feb. 12th accident, the February 12thaccident aggravated the preexisting condition. Then, he stated that symptoms present immediately after the February 12th accident led to the surgery. On cross-examination, Dr. Ortega stated that plaintiff's prior back problems got worse after the accident. However, Dr. Ortega could not say whether or not plaintiff's prior back problems would have necessitated the surgery -5- if plaintiff had not been involved in the February 12th accident. Plaintiff testified on his own behalf. He stated that he is not employed because he is physically disabled. Prior to 1993, he was self-employed for 8 to 10 years. In 1985-86, he was treated for hepatitis and a problem with his tailbone. Because of back problems, plaintiff saw Dr. Siegenthaler, a chiropractor, approximately twice a year from 1986 to 1989. After the February 12th accident he went to a Kaiser Urgent Care facility. Kaiser gave him pain medication and took x-rays. When he returned, Kaiser told him there was nothing they could do because the x-rays did not indicate any problems. He then went outside the system to see Dr. Hernandez, who scheduled an MRI and sent plaintiff to Dr. Ortega. Dr. Ortega told plaintiff that he had herniations in the cervical, lumbar, and thoracic areas of the spine. Dr. Ortega performed back surgery on plaintiff in July of 1994. Since this surgery, he continues to see Dr. Hernandez. Plaintiff could not remember the date of the second accident but described it as a tap that did not injure him. On cross-examination, plaintiff admitted that on a hospital form dated January, 1993, thirteen months before the accident, he wrote, disabled now when asked about his employment status. In deposition, however, he stated that prior to the accident he had a healthy back without any back or neck problems. When confronted with this deposition, he reiterated that before the accident of February 12, 1994, there was nothing wrong with his back. -6- Defense counsel further confronted plaintiff with evidence that he told the urgent care facility and Dr. Ortega that he had a ruptured disk prior to the accident. The defense also introduced medical records indicating that plaintiff told the chiropractor, Dr. Siegenthaler, that plaintiff had lower back pain in 1989 and 1990. Also placed into evidence was a Kaiser medical record from 1993 noting three herniated disks. The defense presented the videotaped deposition of its expert Dr. Zaas, who examined plaintiff on August 27, 1996. He opined that plaintiff had problems with his disks for a long time. After reviewing plaintiff's medical history, Dr. Zaas concluded that plaintiff's complaints of pain, stiffness, and physical limitations were due not to a single trauma such as a car accident, but to long-standing arthritis involving his spine up and down, as well as overriding medical problems. (Tr. 19.) Dr. Zaas stated, moreover, the medical records showed an increase in pain immediately after the second accident. Dr. Zaas also noted that plaintiff was not truthful with him. For example, plaintiff told Zaas that he did not have any previous medical problem; however, Kaiser medical records from at least a year before the February 12, 1994 accident showed that plaintiff stated he had three herniated disks before the accident. Moreover, Dr. Siegenthaler had treated plaintiff since the late 1980's for low back pain. Medical records additionally revealed that plaintiff had been treated for years for chronic hepatitis, which causes muscles to weaken. Dr. Zaas concluded that all plaintiff's -7- symptoms were the same before and after the first accident and that his problems could be explained by the problems he had before the accident. Paul Raudenbush, a private investigator, checked plaintiff's background. He found that plaintiff's license was suspended on September 19, 1996. Moreover, Raudenbush observed plaintiff carrying out the garbage and driving without a cervical collar or any apparent difficulty. The last witness for the defense was Alan Baumgardener, a Beachwood police officer, who investigated the accident and interviewed those involved. None of the other persons in the autos reported to him that they were injured. Plaintiff took the stand as a rebuttal witness. He stated that his license was never suspended despite the information in the Bureau of Motor Vehicles report to the contrary. The jury returned a verdict for defendant and awarded no damages. Plaintiff timely appealed, raising the following assignment of error. I. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this lone assignment, plaintiff argues that the decision of the jury was against the manifest weight of the evidence. Generally, judgments supported by some competent, credible evidence going to all the essential elements of a case 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 -8- Ohio St.2d 279; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. In support of this assignment, plaintiff argues that all medical experts, including Defendant's expert, testified that Plaintiff sustained injury from the accident in question. Defendant's Appellate Brief at 5. This statement is untrue. Dr. Zaas specifically testified that plaintiff's symptoms were due to his preexisting back problems and not due to the accident of February 1994, although he admitted the pain increased after this accident. When a defendant admits to negligence in a traffic accident but denies that plaintiff's injuries were proximately caused by the accident, a jury is free to disregard the plaintiff's medical testimony and return a verdict for the defendant. Reder v. Antenucci(1989), 62 Ohio App.3d 139, 144; Younce v. Baker (1966), 9 Ohio App.2d 259. In Reder, while the defendant did not produce any expert witnesses to contradict plaintiff's medical testimony, the testimony from the plaintiff's witnesses provided alternative explanations,including plaintiff's strenuous work, for the source of plaintiff's injuries. After reviewing the evidence presented to the jury, we conclude that the judgment of the jury was not against the manifest weight of the evidence. First, plaintiff and his wife were less than truthful regarding the extent of his previous back problems. More importantly, the jury heard competent evidence from Dr. Zaas' testimony that plaintiff's back problems were not caused by this -9- particular accident. Finally, the jury heard ample testimony that provided alternate explanations for plaintiff's injury. Accord- ingly, the jury's verdict was not against the manifest weight of the evidence. Judgment affirmed. -10- It is ordered that appellee recover of appellants her 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. SPELLACY, J., and ROCCO, J., CONCUR. DIANE KARPINSKI PRESIDING 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 .