COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72570 SUSAN GARGIULO : : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : JERRY WALDEN : OPINION : Defendant-Appellee : Date of Announcement of Decision: MAY 7, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 271074 Judgment: AFFIRMED Date of Journalization: Appearances: For Plaintiff-Appellant: For Defendant-Appellee: ANDREW P. KREMBS, ESQ. FREDRIC E. KRAMER, ESQ. JOHN P. SCHLOSS, ESQ. McNeal, Schick, Archibald SANDRA ROSENTHAL, ESQ. and Biro Co., L.P.A. Nurenberg, Plevin, Heller Skylight Office Tower & McCarthy Co., L.P.A. Suite 700 1370 Ontario St., 1st Fl. 1660 West Second Street Cleveland, Ohio 44113-1792 Cleveland, Ohio 44113-1454 -2- JAMES M. PORTER, P.J.: Plaintiff-appellant SusanGargiulo appeals from a jury verdict and judgment in her favor on the grounds that the personal injury award of $4,035.25 was inadequate as a matter of law; the trial court erred in failing to grant a new trial and in failing to submit interrogatories to the jury. We find no error and affirm. On June 2, 1992, plaintiff was involved in a rear end collision with the defendant. Defendant admitted at trial that he failed to maintain an assured clear distance and struck the rear of the plaintiff's vehicle which was stopped at an intersection. However, defendant never conceded at trial that his negligence was the direct and proximate cause of plaintiff's injuries. At trial, conflicting testimony was presented as to whether or not the plaintiff suffered serious and substantial injury to her neck as a result of the accident. Plaintiff contended that neck surgery and carpel tunnel surgery resulted from the collision. Defendant disputed whether or not these surgeries were necessitated by the accident. Plaintiff testified that she was about 5/ months pregnant at the time of the accident. She was sent to the hospital after the accident as she was having signs of premature labor. She was given an IV and kept overnight for observation. At that time she was also experiencing extreme pain in her neck, shoulders and arms. She admitted that she had suffered from numbness in her arms prior to the accident, but that her family physician had suspected it was pregnancy related as it began with her pregnancy and was not -3- constant. Plaintiff claimed that the numbness she suffered after the accident was different then the numbness she suffered prior to the accident. She stated that in 1986 she suffered a lower back soft tissue injury on a Nautilus machine during a physical education class at Tri-C. She also previously suffered from stiff necks when she worked as a telemarketer, but claimed the condition stopped once she was issued a head set. Plaintiff alleged that due to the pain and injury she suffered from the accident, she saw 21 different doctors for treatment on approximately 122 separate occasions and incurred $40,000 in medical expenses. On cross examination, the plaintiff admitted that she filed a lawsuit back in 1986 for the injuries sustained on the Nautilus machine. She did not recall any injury to her neck or back as a result of this incident, although her complaint alleged she suffered permanent injury to her back, neck and shoulders. She also testified that although she was in a head-on collision in the early 1970's, she only suffered injuries requiring stitches and no injury to her neck. She admitted that Dr. Poolos, the neurosurgeon who eventually performed her carpal tunnel surgery, did not recommend neck surgery, but instead recommended conservative treatment. She also admitted that Dr. Shaffron, another neurosurgeon, also recommended against surgery. Dr. Mann, the plaintiff's neurologist, testified that the plaintiff was referred to him by her family physician. He examined her on October 22, 1993 and found she had limited ability to rotate -4- her head and could not tilt her head. Based on these observations he suspected a disk injury. Several years went by, however, until he could find any objective evidence of the disk injury. He therefore recommended more conservative therapy. Later, an MRI taken in October 1995 showed a minimal bulge in her cervical disk area. He claimed that since conservative treatment was not helping her, surgery was necessary. He therefore referred her to a neurosurgeon. Dr. Mann stated that it was his opinion that the disk herniation was caused by the accident several years earlier. He denied it was a degenerative problem, as her disk changed over a short period of time. He admitted on cross-examination that he had no objective evidence to link the injury to the accident. He also acknowledged that Dr. Shaffron, a neurosurgeon from whom plaintiff sought a second opinion, was uncomfortable recommending back surgery in plaintiff's case. Dr. Mann said he recommended the surgery in spite of Dr. Shaffron's opinion because plaintiff's pain had gone on long enough. (Mann Depo. at 74). Dr. Carlson, an orthopedic surgeon, performed the plaintiff's spinal fusion surgery in March 1996. He testified that he believed with reasonable medical certainty that the plaintiff's neck pain and associated condition were caused by the car accident almost 3/ years prior to the surgery. He claimed that the surgery revealed a large fragmented disk which had herniated, thereby placing pressure on the plaintiff's nerve root. Immediately following surgery, the plaintiff experienced relief from the pain, however, the pain returned to a lesser degree three months later. Dr. -5- Carlson believed that the bone is not fusing properly and further surgery is necessary. On cross examination, he admitted that the plaintiff's MRIs indicated she had a degenerative condition of the cervical spine and that the measurement of pain and range of motion and strength were all subjective tests. He also admitted that he was unaware that a prior physician of plaintiff's had recommended a psychological evaluation of the plaintiff and that another physician was concerned regarding the excessive amount of Tylenol 3 that plaintiff was taking. Dr. Poolos, a neurosurgeon who performed the carpal tunnel surgery on the plaintiff, testified on behalf of the defense. He first saw the plaintiff on December 12, 1995. Plaintiff brought with her the two MRIs. He testified that the earlier MRI showed a degenerative condition and that the second MRI from October 1995 showed a worsening of the degenerative condition, but did not indicate that her nerves were being compressed. His physical examination showed that although the plaintiff complained of pain, she had a good range of motion, normal reflexes in the arms and no muscle weakness. He told her at this exam that he did not recommend neck surgery, even though he did see a degenerative condition on her October 1995 MRI. Also, at that time, while she had subjective complaints, he could find no evidence of carpal tunnel. On February 13 and 27, 1996, he performed carpal tunnel surgery on the plaintiff and during surgery he did discover nerve -6- compression in her wrists. Nevertheless, at this time, he did not recommend surgery on the plaintiff's neck. Dr. Kaufmann also testified on behalf of the defense. He examined the plaintiff on August 15, 1995. At that time she did not appear to be in pain; her neck motion was normal; no spasm was detected in her neck; no tenderness was found in her neck muscle; she had normal arm reflexes; no weakness in her arms; and she held her head straight. Her neurological examination came back negative and the X-rays indicated she had a degenerative condition which was unrelated to the accident. Her 1993 MRI showed a growth spur six months after the accident. Kaufmann testified that growth spurs take a long time to grow so it was not accident related. The 1995 MRI according to Kaufmann indicated a narrowing of the disk caused by degenerative changes in the cervical spine. However, neither MRI indicated that surgery was necessary. Kaufmann also noted that the pathology report from surgery only indicated that bony fragments were removed from the plaintiff and not disk material. This was consistent with Kaufmann's growth spur theory. According to Kaufmann, the plaintiff showed no signs of carpal tunnel syndrome. He concluded that the plaintiff's problems were unrelated to the accident. On cross-examination Kaufmann admitted that plaintiff suffered some injury as a result of the accident as the ER records indicated she suffered a sprained neck. Based on his exam in 1995, however, he found no lingering injury related to the accident. He believed her problems were linked to her degenerative problem, which existed -7- prior to the accident. Kaufmann disagreed that conservative treatments were necessary as he contended that nothing was wrong with the plaintiff. Based on the above evidence, the jury awarded the plaintiff $4,035.25. Plaintiff timely appeals. We will address plaintiff's assignments of error in the order presented and together where appropriate to the discussion. I. THE VERDICT RETURNED BY THE JURY WAS INADEQUATE AS A MATTER OF LAW. II. THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL ON THE ISSUE OF DAMAGES. The essence of these two assignments of error is that the jury verdict of $4,035.25 was inadequate and that the trial court erred in not granting a new trial on the grounds that the verdict was against the manifest weight of the evidence pursuant to Civ.R. 59(A)(6). Because negligence was uncontested, plaintiff argues that the jury erred in not rendering a monetary award, at least to the extent of the special damages claimed for conservative treatment ($18,000) and the pain and suffering associated therewith. 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. 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 St.2d 82, paragraph one of syllabus; Jones v. Olcese (1991), 75 Ohio App.3d 34, 37. An -8- abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Rohde, supra at 87. A new trial based on the weight of the evidence is not warranted where the judgment is supported by substantial, competent and credible evidence. Dillon v. Bundy (1991), 72 Ohio App.3d 767, 773-774. Damage awards in personal injury actions are particularly within the province of the jury and mere disagreement with the jury verdict does not warrant setting aside the verdict. Litchfield v. Morris (1985), 25 Ohio App.3d 42, 44; Koler v. Leff (Aug. 18, 1994), Cuyahoga App. No. 66073, unreported at 3. Notwithstanding plaintiff's vigorous argument that the jury verdict was woefully inadequate given the five year history of medical treatment including back surgery and carpel tunnel surgery, substantial medical expense and pain and suffering, the jury must have concluded that the bulk of these problems did not result from the rear end collision in question. Given the state of the disputed medical testimony and the uncertain diagnoses at which the treating and consulting physicians arrived, we cannot say that the jury verdict was against the manifest weight of the evidence. Dr. Carlson and Dr. Mann opined that the plaintiff's injuries were related to the 1992 accident. However, Dr. Kaufmann believed there was no correlation with the accident as he was of the opinion that the plaintiff's problems were degenerative in nature. Dr. Kaufmann even stated that their was nothing wrong with the plaintiff and that conservative treatment was not even warranted. -9- Along with this dispute in the medical evidence, the plaintiff also admitted that she filed a suit in 1986 for injuries sustained while using Nautilus equipment. Her complaint alleged she suffered permanent injuries to her back, neck and shoulders. Given the state of this evidence, it was within the jury's discretion to determine the credibility of the witnesses and we cannot hold that the trial court abused its discretion in denying the plaintiff's motion for a new trial. Assignments of Error I and II are overruled. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF IN FAILING TO SUBMIT INTERROGATORIES TO THE JURY. Plaintiff contends that the trial court erred in not submitting plaintiff's proposed interrogatories to the jury. The proposed interrogatories, however, were not included in the record on appeal. Appellant bears the burden of providing a record which demonstrates the claimed error. Baker v. Cuyahoga Cty. Court of Common Pleas (1989), 61 Ohio App.3d 59, 62. Since we do not have the interrogatories before us, we presume regularity in the trial court's proceedings. See Brookridge Party Center v. Fisher Foods (1983), 12 Ohio App.3d 130, 136 (presume regularity when interrogatory not in the record); Poe v. Dinard (Nov. 7, 1990), Lorain App. No. 90 CA 00478, unreported (proposed interrogatories not in record; presume regularity). Assignment of Error III is overruled. Judgment affirmed. -10- It is ordered that appellee recover of appellant his 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 Court of Common Pleas 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. PATTON, J., and SPELLACY, J., CONCUR. JAMES M. PORTER 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 .