COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72672 LINDA R. DOSS : : Plaintiff-appellant : : -vs- : JOURNAL ENTRY : AND PEGGIE A. SMITH, ET AL. : OPINION : Defendant-appellees : : ANNOUNCEMENT OF DECISION DATE : JUNE 25, 1998 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court, Case No. CV-297235 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Robert J. Sawyer, Esq. 300 The Superior Building 815 Superior Avenue Cleveland, Ohio 44114-2746 For defendant-appellees: Roger H. Williams, Esq. Matthew J. Grimm, Esq. William & Sennett Co. 2241 Pinnacle Parkway Twinsburg, Ohio 44087-2367 Attorneys [continued] For Ohio Dept. of Human Services: Betty Montgomery, Esq. Ohio Attorney General Robert J. Byrne, Esq. -2- Assistant Ohio Attorney General Revenue Recovery Unit 101 East Town Street Columbus, Ohio 43215-5148 -3- MICHAEL J. CORRIGAN, J.: Plaintiff-appellant, Linda Doss, appeals from the verdict in th Cuyahoga County Court of Common Pleas in favor of defendant- appellee, Peggie Smith, et. al. Plaintiff-appellant assigns two errors for review concerning the weight of the evidence and the triale court's denial of her motion for a new trial. This court, finding no error, affirms the decision of the trial court. On or about August 17, 1991, plaintiff-appellant was involved in an automobile accident. More specifically, plaintiff-appellant was in the passenger seat of a vehicle that was stopped at an intersection which was struck from behind by Peggie Smith, defendant-appellee. Plaintiff-appellant went to the hospital and eventually sought treatment from her family doctor for pain in and about her neck. Plaintiff-appellant's physician prescribed physical therapy for her condition.1 In 1994, plaintiff-appellant was diagnosed as having a herniated disc which was confirmed by a MRI taken at the Cleveland Clinic. Medical expenses were assumed by the Ohio Department of Human Services. On October 23, 1995, plaintiff-appellant filed this action and subsequently amended her complaint on December 6, 1996. In plaintiff-appellant's claims against Peggie Smith, the Ohio Department of Human Services and Meridia Health Systems, she argued 1We note that since X-rays were performed on plaintiff- appellant's back in 1992, there may be an issue concerning the two- year statute of limitation in which to file a claim. See, R.C. 2305.10. However, due to our disposition of this appeal and since neither party has raised said issue before the trial court, it will not be addressed on appeal. -4- as a direct and proximate result of Peggie Smith's negligence, she suffered injuries which only later became apparent to her (i.e., the herniated disc).2As a result of these injuries, she claimed to incur expenses in excess of $5,000 along with loss of income. Plaintiff-appellant sought $1,700,000. After the case was transferred to a visiting judge, a jury trial began on March 31, 1997. On April 3, 1997, the jury returned a verdict in favor of defendants-appellees. After the unanimous verdict was rendered in open court, two jurors indicated they wanted to change their vote in favor of plaintiff-appellant. The trial court, at plaintiff-appellant's request, then polled the remaining six jurors who confirmed their votes. Plaintiff-appellant then filed a motion for a new trial pursuant to Civ.R. 59. The trial court denied said motion on May 15, 1997 and plaintiff- appellant timely filed this appeal. Plaintiff-appellant states as her first assignment of error: I. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. Plaintiff-appellant argues the verdict for defendant was against the manifest weight of the evidence since there is no dispute that: 1) defendant-appellee, Peggie Smith, was negligent as a matter of law; and 2) even defendants-appellees' own medical expert admitted plaintiff-appellant suffered injuries from this accident. Accordingly, plaintiff-appellant argues the defense 2The Ohio Department of Human Services answered and included a cross-claim for the amount of $27,000. -5- verdict is against the manifest weight of the evidence and is contrary to law. We disagree. In a criminal context, Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where the Court held that unlike a reversal, based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the -6- judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Moreover, the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. In a civil context, it is well established that where an appellant challenges a trial court's judgment in a civil action as being against the weight of the evidence, the function of the appellate court is limited to an examination of the record to determine if there is any competent, credible evidence to support the underlying judgment. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 461 N.E. 2d 1273; Chandler and Assoc., Inc. v. America's Healthcare Alliance, Inc. (Oct. 30, 1997), Cuyahoga App. Nos. 71325, 71832, unreported. If competent, credible evidence is present, a reviewing court will not reverse the trial court's judgment. Fijalkovich v. W. Bishop Co., Inc. (Sept. 18, 1997), Cuyahoga App. No. 71725, unreported. Finally, we note the jury is not required to give any additional weight to the opinion of an expert, if any weight at all. Rather, an expert's opinion is admissible, as is any other testimony, to aid the trier of fact in arriving at a correct determination of the issues being litigated. Expert testimony is permitted to supplement the decision-making process of the fact -7- finder not to supplant it. See Ragon v. Vitali & Beltrami, Jr. Inc. (1975), 42 Ohio St.2d 161. Again, we stress that a jury is considered the primary fact-finder whose determinations must be afforded due deference upon appellate review. From a review of the record, we find there was sufficient evidence from which the jury could have found plaintiff-appellant's injuries were either existing prior to the accident or caused from a subsequent automobile accident in which she was involved. Accordingly, the verdict was not against the weight of the evidence. Plaintiff-appellant's first assignment of error is overruled. Plaintiff-appellant states as her second assignment of error: II. THE JUDGMENT IS NOT SUSTAINED BY THE WEIGHT OF THE EVIDENCE AS THERE EXISTS IRREGULARITIES IN THE PROCEEDINGS OF THE COURT AND THE PREVAILING PARTY. In this assignment of error, plaintiff-appellant argues the trial court abused its discretion in denying her motion for a new trial. Specifically, plaintiff-appellant argues the juries award does not compensate plaintiff-appellant for injuries established by uncontroverted evidence. Moreover, plaintiff-appellant seems to argue that by granting a defense motion for directed verdict against the cross-claim filed by the State of Ohio, the trial court changed the character of the medical bills presented at trial and prejudiced plaintiff-appellant. Finally, plaintiff-appellant argues since the trial was held before the Visiting Judge Lawther, and her motion for a new trial was denied by Judge Coyne, the irregularity mandates the granting of a motion for a new trial. We find such argument unpersuasive and not supported by the record. -8- The granting of a new trial is governed by Civ.R. 59 which States in pertinent part: (A) Grounds. A new trial may be granted to all or any of the parties on all or part of the issues upon any the following reasons: (1) Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court, referee, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial. *** (4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice; *** (6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case; Whether to grant a motion for a new trial is up to the discretion of the trial court. Verbon v. Pennese (1982), 7 Ohio App.3d 182. Absent clear evidence that the trial court acted unreasonably, unconscionably,or arbitrarily and rendered a decision which is clearly wrong and without legal basis, the trial court's decision must be affirmed. See Castlebrook, Ltd. v. Dayton Properties (1992), 78 Ohio App.3d In this case, we again disagree with plaintiff-appellant's assertions that there was undisputed evidence of injures sustained by plaintiff-appellant which were proximately caused by the accident. A review of the record establishes evidence supporting the fact that plaintiff-appellant complained of injuries of her legs -9- and back prior to the automobile accident and that plaintiff- appellant was involved in a second accident in 1993. We also find from a review of the record that plaintiff- appellant's counsel was permitted to introduce the medical records as exhibits but chose not to do so. Instead, the court permitted him the opportunity to tell the jury that the total medical expenses on said exhibits amounted to $27,000 which were expended by the Statetowards plaintiff-appellant's medical bills. It is clear the majority of jurors simply refused to believe that those medical expenses were proximately related to the 1991 automobile accident. See, also, Sauto v. Nacht (April 16, 1998), Cuyahoga App. No. 73118, unreported. Finally, contrary to plaintiff-appellant's assertions, Judge Lawther overruledher motion for a new trial and not the originally assigned trial judge. For all of these reasons and after a complete review of the record, we find the trial court did not abuse its discretion in denying plaintiff-appellant's motion for a new trial. Plaintiff-appellant's second assignment of error is not well taken. Judgment affirmed. -10- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. TERRENCE O'DONNELL, P.J., JOHN T. PATTON, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .