COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73907 TODD SCHROEDER : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION GRAHAM M. PARKER, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-324179 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ROBERT A. BOYD (#0024240) 55 Public Square #2075 Cleveland, Ohio 44113 For Defendants-Appellees: MARGARET GARDNER (#0020740) The 113 St. Clair Bldg. Suite 525 Cleveland, Ohio 44114 SPELLACY, J.: Plaintiff-appellant Todd Schroeder ( appellant ) appeals from -2- the jury verdict in his favor in the amount of One Hundred Twenty- Five Dollars ($125.00) for injuries he sustained in a motor vehicle accident. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN ADMITTING EXPERT MEDICAL OPINION TESTIMONY WHICH WAS NOT BASED UPON REASONABLE MEDICAL PROBABILITY OR CERTAINTY. II. THE TRIAL COURT ERRED WHEN IT PERMITTED DEFENSE COUNSEL TO USE A GOLDEN RULE ARGUMENT DURING CLOSING. III. THE TRIAL JUDGE PREJUDICED THE JURY IN FAVOR OF THE DEFENDANT WITH EXTEMPORANEOUS COMMENTS DURING THE READING OF JURY INSTRUCTIONS AND HAND WRITTEN AMENDMENTS OF THE JURY INSTRUCTIONS WHICH WERE SENT TO THE JURY DURING THEIR DELIBERATION. Finding appellant's assignments of error to lack merit, the judgment of the trial court is affirmed. I. On July 31, 1996, appellant was involved in a minor rear-end automobile accident with defendant-appellee Graham M. Parker ( appellee ). On August 9, 1996, appellant sought medical treatment from James Furey, M.D., an orthopedic physician. Dr. Furey's records, which were admitted into evidence, indicated that appellant had neck and low back strains. Dr. Furey's records also indicated that appellant had a history of back problems, that appellant's injuries were resolving, and that no further care was recommended. Dr. Furey charged appellant One Hundred Twenty-Five Dollars ($125.00) for one office visit. Notwithstanding the conservative treatment rendered by Dr. Furey, appellant began a lengthy and expensive course of -3- chiropractic treatment with Dr. Richard Dickson on August 14, 1996. Appellant continued to treat with Dr. Dickson until March 1997. Dr. Dickson charged appellant approximately Seven Thousand Dollars ($7,000.00) for his chiropractic treatment. On January 18, 1997, appellant filed the underlying lawsuit against appellee for injuries allegedly sustained in the subject automobile accident. In addition, appellant filed a claim against Daryl L. Parker alleging the negligent entrustment of his vehicle to appellee.1 On November 13, 1997, the jury trial of this case commenced. Appellee conceded his negligence at trial; however, appellee contested the issues of proximate cause and damages. Appellant presented the live expert testimony of his chiropractor, Dr. Dickson, to support his claim that his alleged injuries and related chiropractic treatment were caused by the subject automobile accident. In addition, Dr. Dickson testified that appellant suffered permanent impairment as a result of the accident. Appellant also testified on his own behalf. Appellee presented the videotaped trial deposition of his expert, Dr. Charles Duvall. Dr. Duvall testified that Dr. Dickson's treatment of appellant was grossly excessive. Dr. Duvall opined that this course of chiropractic care was not necessitated by the automobile accident. Moreover, Dr. Duvall testified that appellant did not suffer permanent impairment as a result of the accident. In addition, appellee testified on his own 1 Subsequent to filing this appeal, appellant voluntarily dismissed Daryl L. Parker as a party to the underlying lawsuit. -4- behalf and presented the testimony of Officer Alan Nero of the Garfield Heights Police Department. On November 17, 1997, the jury returned a verdict in favor of appellant in the amount of One Hundred Twenty-Five Dollars ($125.00). On November 28, 1997, appellant filed a motion for a new trial or, in the alternative, judgment notwithstanding the verdict. On January 6, 1998, the trial court denied appellant's post-judgment motion. Therefrom, appellant filed the instant appeal. II. In his first assignment of error, appellant argues that the trial court abused its discretion in admitting certain portions of the medical opinion testimony of appellee's expert, Dr. Charles Duvall, because his testimony was not based upon reasonable medical certainty. A medical expert's opinion testimony is only competent if it is held to a reasonable degree of medical certainty or probability. State v. Benner (1988), 40 Ohio St.3d 301, 313, citing State v. Holt(1969), 17 Ohio St.2d 81, syllabus. This degree of reasonable probability, however, simply means more likely than not. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 369. [A]n event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue." Stinson v. England (1994), 69 Ohio St.3d 451, 455, citing Cooper v. Sisters of Charity of Cincinnati, Inc. (1971), 27 Ohio St.2d 242, -5- 253. However, the requirement that a medical expert testify in terms of reasonable medical probability only applies to opinion testimony on issues such as proximate cause, permanent impairment, and whether the medical treatment and bills were necessary and reasonable. Cf. Shumaker, 28 Ohio St.3d at 369; Colonna v. The Ohio Bell Telephone Co. (Nov. 12, 1981), Cuyahoga App. No. 43332, unreported. Moreover, the magic words probability or certainty are not required. Frye v. Weber & Sons Service Repair, Inc. (Jan. 22, 1998), Cuyahoga App. Nos. 72164, 72555, unreported. Rather, the expert's testimony, when considered in its entirety, must be equivalent to an expression of probability. Frye, supra. We note that the admission of expert testimony is committed to the sound discretion of the court, reviewable only for an abuse of that discretion. Maloney v. Day (Aug. 6, 1998), Cuyahoga App. No. 73037, unreported, citing Scott v. Yates (1994), 71 Ohio St.3d 219, 221. In the instant case, appellant challenges the portion of Dr. Duvall's testimony where he emphasized the differences between Dr. Furey's medical findings and the subsequent records of Dr. Dickson. Appellant notes that Dr. Duvall did not couch this testimony in terms of reasonable medical probability. However, we find that Dr. Duvall did not have to testify in terms of reasonable medical probability in this regard because he was not offering an opinion on an issue such as proximate cause or permanent impairment; Dr. Duvall was merely illustrating the inconsistencies in appellant's -6- medical records. Appellant also claims that Dr. Duvall failed to testify in terms of reasonable medical probability when he opined that appellant did not suffer permanent physical impairment as a result of the subject accident. However, a review of Dr. Duvall's trial deposition reveals the following: Q. Okay. Again, Dr. DuVall, based upon your many years of experience, your education, your training, your review of all the data that you had before you, do you have an opinion to a reasonable degree of chiropractic certainty as to whether or not there is any evidence, sir, before you that this gentleman has a permanent impairment as a result of this auto accident? A. Yes, I do. Q. What is your opinion? A. He has no permanent physical impairment as a direct and proximal result of the automobile accident of 7/31/96. (Emphasis added.) Appellant also challenges other portions of Dr. Duvall's testimony which were not expressed in terms of reasonable medical probability. However, when considering Dr. Duvall's testimony in its entirety, we find that Dr. Duvall testified in terms of reasonable medical probability when it came to his opinion on such issues as causation, permanent impairment, and the necessity and reasonableness of appellant's medical treatment and related billing. Therefore, the trial court did not abuse its discretion in allowing the admission of this expert testimony. Accordingly, appellant's first assignment of error is without -7- merit and is overruled. III. As for his second assignment of error, appellant claims that the trial court abused its discretion in permitting appellee's counsel to use a golden rule argument during closing argument. A "golden rule" argument exists where counsel appeals to the jury to abandon their position of impartiality by placing themselves in the place of one of the parties. Boop v. The Baltimore & Ohio Railroad Co. (1963), 118 Ohio App. 171, 174. Generally, a golden rule argument is improper. However, a golden rule comment during closing argument is not per se prejudicial so as to warrant a new trial. See Dillon v. Bundy (1991), 72 Ohio App.3d 767, 775. It is axiomatic that great latitude is afforded counsel in the presentation of closing argument to the jury. Pang v. Minch (1990), 53 Ohio St.3d 186, 194. Moreover, the determination of whether permissible bounds of closing argument have been exceeded is a discretionary function to be performed by the trial court. Absent an abuse of discretion, the trial court's determination will not be reversed on appeal. Id. at paragraph three of the syllabus. Only if the circumstances are of such reprehensible and heinous nature as to constitute prejudice will this court reverse a judgment. Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 688. Appellant finds exception to two portions of appellee's closing argument in which appellee's counsel makes golden rule -8- comments. First, appellant cites to the portion of appellee's closing argument where appellee's counsel said: MS. GARDNER: As you deliberate I ask each and every one of you to put yourself in that young man's seat. That could be any one of you who happens to hit one of Dr. Dickson's patients on the road. Quite accidently I might add. We note that appellant failed to object to this statement. A party's failure at trial to object to a golden rule argument or to request from the trial court curative action by way of admonishment to jury waives any such error. See Yerrick v. East Ohio Gas Co. (1964), 119 Ohio App. 220, 224. Appellant also finds exception with the following portion of appellee's closing argument: MS. GARDNER: * * * I ask your verdict to be consistent with the evidence, with the weight of the evidence. And, again, I ask you to put yourself in the position of the defendant and -- MR. BOYD: Objection. THE COURT: Put yourself where? MS. GARDNER: In the defendant's position, Judge. THE COURT: Overruled. MR. BOYD: Overruled? THE COURT: Overruled. Finish the statement. Let's hear it. MS. GARDNER: That I ask you as a jury to give no less than you would expect of a jury who is here in your case. In this portion of closing argument, appellee's counsel is merely asking jurors to weigh the evidence as carefully as they -9- would like it to be weighed if they were a party in the lawsuit. We find that this comment was not prejudicial. Therefore, we find that the trial court did not abuse its discretion in allowing this comment. According, appellant's second assignment of error is without merit and is overruled. IV. In his third assignment of error, appellant challenges the trial court's handwritten insertions to the typewritten copy of instructions provided to the jury during their deliberation. In particular, appellant takes exception to the trial court's handwritten insertion of the phrase if any in the jury instruction on damages. Civ.R. 51(A) provides, in pertinent part: On appeal, a party may not assign as error the giving or failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. Appellant failed to specifically state an objection on the record to the challenged handwritten insertion to the typewritten jury instructions. Thus, any error in this regard is reversible only if it amounts to plain error. Plain error must be obvious and prejudicial to such an extent that it has "a material adverse effect on the character and public confidence in the judicial proceedings." Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209. The plain error doctrine is -10- utilized in civil matters only under exceptional circumstances to prevent a manifest miscarriage of justice. Cleveland Elec. Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 275. In addition, appellant challenges extemporaneous comments the trial court made during its oral instructions to the jury. In particular, after instructing the jury on damages, the trial court stated: Now, as to the damage instruction here, whenever someone claims damages it is up to the Court to instruct on damages. That does not necessarily mean that you should or will award. We have to instruct you on it if it is claimed, do you know that? Ok. Appellant objected to this extemporaneous comment. In examining an alleged error in a jury instruction, a reviewing court must consider the jury charge as a whole and "must determine whether the jury charge probably misled the jury in a matter materially affecting the complaining party's substantial rights." Becker v. Lake Cty. Mem. Hosp. W. (1990), 53 Ohio St.3d 202, 208. Upon review of the applicable case law, we find that the trial court's written and oral jury charges, as a whole, were not contrary to Ohio law on damages. See Reder v. Antenucci (1989), 62 Ohio App.3d 139, 142 ( Without injury * * *, there could be no damages for medical expenses or otherwise. ). In the instant case, appellee disputed whether appellant sustained any injury in the subject automobile accident. Therefore, notwithstanding any objection to the challenged handwritten insertion to the typewritten jury instructions and the extemporaneous comment at -11- the end of the court's oral charge on damages, we find that the trial court's jury instructions on damages, as a whole, did not mislead the jury in a matter materially affecting appellant's substantial rights. Becker, 53 Ohio St.3d at 208. Moreover, we note that the trial court provided the following curative charge to the jury after appellant raised his objections to the trial court's jury instructions: * * * If you have an impression that this Court has indicated how any disputed facts should be decided, you must put aside such impression because that decision is to be made by you based solely on the facts presented in this courtroom. We find that this admonition by the court to the jury would have remedied any perceived prejudice in the trial court's jury instruction on damages. In addition, we note the jury rejected the challenged handwritten insertion and extemporaneous comment and, in fact, found that appellant did sustain some damages. Accordingly, appellant's third assignment of error is not well taken. Judgment affirmed. It is ordered that appellees recover of appellant their 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 -12- 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. JAMES M. PORTER, P.J. and ANN DYKE, 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 .