COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77326 and 77532 SYLVIA MORALES : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JAMES & JULIE PETITTO, et al. : : Defendants-appellants : : DATE OF ANNOUNCEMENT NOVEMBER 9, 2000 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-373469 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: MARK J. OBRAL, ESQ. 1000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendants-Appellants: BRIAN D. SULLIVAN, ESQ. Reminger & Reminger 113 St. Clair Building Cleveland, Ohio 44114-1273 PATRICIA ANN BLACKMON, J.: -2- In this consolidated appeal, appellant Julie Petitto appeals from a jury verdict and an award of prejudgment interest in favor of appellee Sylvia Morales in a personal injury action. Petitto assigns three errors for our review. I. THE TRIAL COURT INCORRECTLY EXCLUDED PHOTOGRAPHS DEPICTING NO VISIBLE PROPERTY DAMAGE TO PLAINTIFF'S VEHICLE. II. THE TRIAL COURT INCORRECTLY EXCLUDED TESTIMONY CONCERNING LOW IMPACT NATURE OF THE COLLISION. III. THE TRIAL COURT INCORRECTLY AWARDED PLAINTIFF PREJUDGMENT INTEREST. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Sylvia Morales was stopped at a traffic light when her car was rear-ended by a car driven by Julie Petitto. Morales filed a personal injury action against Petitto seeking damages for injuries to her neck and back. Before trial, Morales filed a motion in limine seeking to exclude testimony from defense expert, Byron Marsolais, about the bio-mechanics of low impact collisions. Morales also sought to exclude photographs of the damaged cars. The trial court granted the motions, ruling that defense counsel could argue that the impact of the accident was minimal but not based upon a expert's testimony. The court also excluded photographs of the cars, concluding that the prejudicial nature of the photograph outweighed their relevancy. -3- At trial, Morales testified that, on the day after the accident, she awoke to discover that she could not move her neck. She also felt a shooting pain from the top of her head down to her lower back. She telephoned her doctor, Virginia Vatev, and scheduled an appointment. Dr. Vatev examined Morales two days after the accident. Vatev gave Morales some medication, instructed her to alternate between hot and cold compresses to reduce pain and swelling, and told Morales to take some time off from work. She returned to Dr. Vatev when her symptoms didn't improve and asked if she could seek physical therapy. Dr. Vatev agreed and Morales began seeking chiropractor Salvatore Tocco for treatments. She also began seeing Dr. George Mathew for a second opinion. Dr. Mathew prescribed cortisone and muscle relaxers, and told Morales to continue treatments with Dr. Tocco. Morales continued treatments with Dr. Tocco throughout 1997. In 1998, Dr. Tocco referred Morales to Dr. Robert Zaas, an orthopedic surgeon, to see if an MRI was necessary. The MRI showed some degenerative changes, but was otherwise negative. However, via videotape, Zaas testified that soft-tissue injuries such as those sustained by Morales would not necessarily be detected by an MRI. He testified that, during his examination of Morales, he noted tenderness in her neck area and the shoulder region. He added that injuries like those suffered by Morales were best treated with the hands-on methods employed by chiropractors and that the course of treatment employed by Dr. Tocco was appropriate for Morales' condition. -4- Morales described that the continuing pain from the accident prevented her from enjoying the active life she enjoyed prior to being injured. She testified that her pain persisted and that she sometimes experienced strong pain in her neck and severe headaches. The defense presented the testimony of Sylvia Petitto who described the accident as a bump . Petitto stated that she observed no damage to Morales' car at the scene. Petitto noticed a small hairline crack in the bumper of her own car. Both cars were driveable after the accident. The defense also presented video testimony from Dr. Byron Marsolais who examined Morales on August 23, 1999. Marsolais stated that, in his opinion, Morales suffered a mild cervical sprain in the accident on February 10, 1997. However, he also stated that the treatment she received from Dr. Tocco was not of such a nature to be of a curative nature for her, but was only a symptomatic type of treatment. Dr. Marsolais also stated that Morales told him she was in an automobile accident approximately twenty years earlier. Based upon Morales' description of that prior accident and her response to the February 10, 1997 accident, Marsolais concluded that Morales had pre-existing damage to her neck that rendered her more susceptible to neck injury. At the close of all the evidence, the jury awarded Morales $22,000. Morales moved for prejudgment interest, alleging that Petitto failed to participate in good faith settlement negotia- tions. Morales pointed to the fact that, even though Petitto knew -5- Morales' medical bills were over $8,000, he offered only $7,500 to settle the case and never issued another settlement demand. Petitto argued that its $7,500 offer was reasonable because Morales suffered only soft-tissue injuries and jurys are awarding smaller verdicts for soft-tissue injuries. He added that Morales' trial court made a formal settlement demand of $75,000 before trial and never formally decreased it. However, he conceded that Morales verbally indicated a willingness to accept a lesser amount. The trial court awarded Morales prejudgment interest in the amount of $7,019.45 along with costs of $749.40 for the video recording, transcript, and playback of the videotape recording of the deposition of Dr. Robert Zaas. This appeal followed. In her first assignment of error, Petitto argues the trial court erred in excluding photographs of Morales' vehicle. Petitto argues the photographs were relevant to determining the scope and extent of the collision. The trial court acknowledged that relevance of the photographs but ruled them to be more prejudicial than probative. With regard to the photographs, I do believe they're highly prejudicial, and that outweighs the relevancy they'd have. You'd still be able to describe the same thing in words. The photographs, I think, will be too prejudicial. The estimates of the cost of repair, I believe that can go in. But not the photographs. (Tr. 20.) Decisions concerning the admissibility of photographs are within the sound discretion of the court. Brewer v. Sky Climber, Inc. (June 14, 1984), Montgomery App. No. 8071, unreported. Absent -6- an abuse of discretion by the trial court and resultant material prejudice to the appealing party, reviewing courts should give deference to the trial court's decision. Reinoehl v. Trinity Universal Ins. Co. (1998), 130 Ohio App.3d 186, 194, 719 N.E.2d 1000, 1006, discretionary appeal not allowed (1999), 84 Ohio St.3d 1505, 705 N.E.2d 1245, citing Fisher v. Univ. of Cincinnati Med. Ctr., (Aug. 25, 1998), Franklin App. No. 98AP-142, unreported, discretionary appeal not allowed (1999), 84 Ohio St.3d 1469, 704 N.E.2d 578, following State v. Maurer (1984), 15 Ohio St.3d 239, 265, 473 N.E.2d 768, 791, certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728. See, also, Lawson v. Bd. Of Edn. Of the Columbus City School Dist. (August 1, 1996), Franklin App. No. 95APE11-1505, unreported, discretionary appeal not allowed (1996), 77 Ohio St.3d 1494, 673 N.E.2d 150. We find no abuse of discretion in the trial court's decision to exclude the photographs. The trial court correctly noted that Petitto could establish the nature of the impact via witness testimony. In fact, Petitto described the accident as follows: *** I was stopped at the intersection of the off ramp from 480 at Clague Road and I came to a complete stop, but something fell off my -- something was on the ground. I don't know if it fell or if it was there, but I went to pick it up and my foot eased off the brake and that's when I bumped Ms. Morales' car in front of me. (Tr. 258.) Through this testimony, Petitto was able to introduce evidence as to the type of impact involved. In addition, the trial court permitted introduction of the damage repair estimate for Morales' -7- car. This evidence was available for the jury's consideration in determining the extent of the impact. Additionally, the photograph did not accurately depict the damage to the car. The photographs did not show the damage on the inside of the car, which is why the trial court found them ultimately to be highly prejudicial. Accordingly, Petitto has failed to demonstrate that she was prejudiced in any way by the trial court's decision to exclude the photographs. Petitto's first assignment of error is overruled. In her second assignment of error, Petitto argues the trial court erred granting Morales' motion in limine to keep Dr. Byron Marsolais from testifying that the collision was low-impact and that Morales' automobile was fitted with an energy-absorbing rear bumper that absorbed the impact of the collision. Morales argued that Marsolais' expert report failed to include the substance of his proposed testimony as to the bio-mechanics of the collision. Citing Smelser v. Norfolk Southern Railway Corp (6th Cir. 1997), 105 F.3d 299, Morales also argued that Petitto failed to show that Marsolais' findings were based on sound evidence and that his methodology had been independently validated. Determinations as to the admissibility of expert testimony lie within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. Bostic v. Connor (1988), 37 Ohio St.3d 144, 148, 524 N.E.2d 881, 886, rehearing denied (1988), 38 Ohio St.3d 711, 533 N.E.2d 364. The trial court's judgment may not be freely replaced by that of this -8- court. State v. Parks (Dec. 20, 1995), Ross App. No. 95CA2095, unreported, appeal dismissed (1996), 75 Ohio St.3d 1495, 664 N.E.2d 1292; State v. Payne (Aug. 28, 1995), 1995 Ohio App. LEXIS 3757, Ross App. No. 94CA2045, unreported, appeal dismissed (1996), 74 Ohio St.3d 1510, 659 N.E.2d 1287; Stone v. Riffe (Feb. 25, 1997), Scioto App. No. 96CA2408, unreported, appeal dismissed (1997), 79 Ohio St.3d 1418, 680 N.E.2d 156. In granting the motion in limine, the trial court stated that Marsolais failed to provide any information as to the basis of his opinion and that he used no independent tests to reach his conclusion. During his deposition testimony, Marsolais testified as follows: Q: Based on your training, your background in the field of engineering, based on your review of the medical records, based on your review of the estimates, the photographs of the respective vehicles, and the information regarding Saturn bumpers, of course, your examination of her, do you have an opinion within a reasonable degree of engineering certainty as to the extent of impact that Ms. Morales' vehicle and Ms. Petitto's vehicle underwent? A: I do. Mr. Obral: Objection. Q: What is that opinion, Doctor? A: It is my opinion that the impact was very mild. *** Q: What kind of bumper was on the Saturn? A: The Saturn is made with an energy absorbing bumper ****. So, that's a very, very wise design made by this particular company and she was very fortunate to have that because even though the amount of impact to begin with was -9- small, it was further attenuated by this mechanism in her car. So, this in energy that would have been in her neck which was not. The mechanism of the bumper is such that it absorbs the injury into itself instead of into the occupant of the car. (Tr. 33 - 34.) Marsolais' testimony provided no basis for his conclusion that the Saturn's bumper absorbed the impact of the collision. He gave no indication that he was familiar with the operation of energy absorbing bumpers or that he conducted any tests on Morales' car to ascertain whether her bumper operated to reduce the impact of the collision. Moreover, an expert opinion as to the severity of the impact of the two cars was not necessary in this case because the jury could properly make such a determination based upon its own knowledge and experience. See Lee v. Baldwin (1987), 35 Ohio App. 3d 47, 50, 519 N.E.2d 662, 665. When deciding whether to admit expert testimony, the ultimate touchstone is helpfulness to the trier of fact, which is determined by examining whether the expert's principle will aid the jury in reaching accurate results. Miller v. Bike Athletic Company (1998), 80 Ohio St.3d 607, 614, 687 N.E.2d 735, 741. See, also, Daubert v. Merrell Dow Pharmaceuticals (1993), 509 U.S. 579, 591-592, 125 L.Ed.2d 469, 482, 113 S.Ct. 2786, 2796 ( Rule 702's `helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. ) Marsolais failed to establish a link between the speed of an impact and the degree of injury sustained. Accordingly, the trial court properly excluded Marsolais' testimony -10- about the level of impact of the accident. Petitto's second assignment of error is overruled. In her third assignment of error, Petitto argues the trial court erred in awarding Morales prejudgment interest. Awards of prejudgment interest are matters within the discretion of the trial court. Tierney v. Aetna Cas. & Sur. Co. (July 20, 1999), Cuyahoga App. No. 75930, unreported, citing Nash v. Kaiser Found. Health Plan of Ohio (1991), 76 Ohio App.3d 233, 235, 601 N.E.2d 214, 215. R.C. 1343.03(C) provides for an award of interest to be granted in favor of successful tort plaintiffs, when the trial court finds that the defendant failed to act in good faith to achieve pretrial settlement of the dispute. Galayda v. Lake Hospital Systems, Inc. (1994), 71 Ohio St.3d 421, 424, 644 N.E.2d 298, 300, certiorari denied (1995), 516 U.S. 810, 116 S.Ct. 57, 133 L.Ed.2d 21. The purpose of prejudgment interest is to compensate the aggrieved party for the delay encountered by the failure of the tortfeasor to negotiate in good faith and ensure that just compensation to the tort victim is not eroded by the dilatory tactics of the tortfeasor. Id. at 427-428, 644 N.E.2d at 303, citing Digital & Analog Design Corp. v. N. Supply Co. (1992), 63 Ohio St.3d 657, 660-661, 590 N.E.2d 737, 746. At the prejudgment interest hearing, Morales presented the testimony of her attorney, Mark Obral. Obral testified that, after they received notice of Morales' claim, Petitto's insurance company offered to pay $7,500 to settle the claim. Petitto's attorney, Joseph Nicholas, replied that his offer was based upon the report -11- of Dr. Marsolais and upon his belief that no jury would award a large verdict to a plaintiff who suffered a soft tissue injury and whose medical treatment consisted of chiropractic treatment and masso-therapy. Obral testified that he spoke to Petitto's attorney, Joseph Nicholas, to see if he would change his offer. *** I talked to Mr. Nicholas to see if they would change, and he had indicated that the insurance company may go up to $10,000 right before trial, but that the offer was $7,500. And then right at the start of the trial the judge asked me, asked the defendant what the offer was, the defendant indicated 7,500, the judge then asked whether or not they had any movement, and he said no, and I think, if I remember correctly, I stood up and smiled at the judge and said, I have a lot of room to move, your Honor. (Tr. 17.) The trial court confirmed that Obral had indicated a willingness to come down from his settlement demand and that Nicholas always indicated [the defense] would never even come to the medical expenses incurred. (Tr. 7.) Nicholas agreed that he never formally raised his offer but countered that Obral never formally lowered his demand. Our review of the record reveals no abuse of discretion by the trial court in awarding Morales prejudgment interest. The testimony presented by Nicholas makes clear that the defense's highest offer remained less than the amount of Morales' medical bills despite the defense's stipulation of liability and the agreement of the defense expert that Morales was injured. Under the circumstances, we find that the trial court's award of -12- prejudgment interest was appropriate. See Loder v. Burger (1996), 113 Ohio App.3d 669, 676, 681 N.E.2d 1357. (When liability is not in dispute, an insurer must make a determined effort to settle a claim before trial.) See, also, Guerrieri v. Allstate Ins. Co. (September 2, 1999), Cuyahoga App. Nos. 73869, 73870, 75132, 75133, unreported. Accordingly, we overrule Petitto's third assignment of error. The judgment of the trial court is hereby affirmed. 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. JAMES M. PORTER, J., CONCURS. TERRENCE O'DONNELL, P.J., DISSENTS. (SEE ATTACHED DISSENTING OPINION) PATRICIA ANN BLACKMON 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 77326 and 77532 SYLVIA MORALES : : DISSENTING Plaintiff-Appellee : : OPINION vs. : : JAMES & JULIE PETITTO, et al. : : Defendant-Appellants : : DATE: NOVEMBER 9, 2000 TERRENCE O'DONNELL, P.J., DISSENTING: I respectfully dissent. In my view, the trial court abused its discretion when it refused to admit photographs of the vehicle into evidence and when it precluded Dr. Marsolais from testifying as an engineering expert. The photographs in this instance offered evidence of the nature and extent of the vehicle damage; further, no objection had been made to their authentication or identification. Here, the court denied the defense counsel an opportunity to provide relevant evidence in support of its claim that a minor impact collision had caused only minor injury. Regarding the doctor's testimony as an engineering expert, the record reflects that he had been properly qualified to testify as an expert. Therefore, in my view, questions as to what examination of the vehicle he had done prior to rendering his opinion, or which documents he did or did not review, and whether he had done any testing on the vehicle and/or whether such testing would or could have affected his opinion are all issues that go to the weight to be given to his testimony subject to full cross-examination and are therefore matters for the jury to consider under proper judicial instruction. These are not matters that go to the issue of admissibility of the testimony. Marsolais qualified as an expert and the court should have permitted him to testify. Significantly, the excluded evidence in this case had a prejudicial effect on the status of the case. While defense counsel could argue about a minor collision, the corroborative photographs and supportive expert testimony were not part of the evidence to be evaluated by the fact finder. Hence, the skewed presentation of the case unfairly shaved the defense case to one of unsupported allegations. I would reverse and remand the matter for a new trial. Accordingly, I dissent. .