COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77414 LEONARD WISMER, et al : : Plaintiffs-appellant : : JOURNAL ENTRY vs. : and : OPINION RANDALL S. WORKMAN : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 9, 2000 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 372,103 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellant: J. CHARLES RUIZ-BUENO KATHLEEN J. ST. JOHN Attorneys at Law Nurenberg, Plevin, Heller & McCarthy Standard Building, 1st Floor 1370 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: GARY D. HARMANN PATRICK J. HOLLAND PETER A. RUSSELL Attorneys at Law Hermann, Cahn & Schneider 1301 East Ninth Street, #500 Cleveland, Ohio 44114 KENNETH A. ROCCO, J.: -2- Plaintiffs-appellants Leonard Wismer and his wife (hereinafter referred to in the singular) appeal from the trial court orders that denied their motions for a mistrial and for a new trial. Appellant also appeal the trial court's failure to give the jury a curative instruction during trial. Appellant asserts the trial court erred on the basis defense counsel tainted the trial by his improper actions. This court has reviewed the record and cannot find the trial court either erred or abused its discretion in denying appellant's motions and declining to give the jury a curative instruction; therefore, the trial court's orders are affirmed. Appellant instituted this action claiming personal injury as a result of a traffic accident in which, prior to the jury trial, appellee Randall S. Workman admitted negligence in rear-ending the taxicab appellant was driving. The motor vehicle accident occurred on February 7, 1996. Appellant was driving a customer to a destination in Cleveland. He stopped the taxicab, a Ford Crown Victoria, for a traffic light, then started to proceed after the light turned green. When a vehicle in front of the taxicab stopped, appellant stopped his vehicle as well, but appellee, who had just moved from his lane of traffic to follow appellant, was not at that moment looking ahead. Therefore, appellee's vehicle, a Ford Escort, bumped into appel- lant's. The two men examined their vehicles and exchanged information. They then continued on their way. Appellant finished driving his -3- customer to his destination before proceeding home for the evening. The following day, on orders from his employer, appellant filed a police report concerning the incident. Although at the time he informed the police officer he had not been injured, he later testified he had on that day begun to experience pain in his back. A few days later, appellant went to a hospital emergency room complaining of pain down his left leg from his back. An X-ray was taken, and he thereafter made a follow-up visit to his own physi- cian, Dr. Brightman. Brightman had been treating appellant since June 26, 1995. On May 30, 1995, appellant had strained his back while pushing an automobile at his place of part-time employment. Since the first doctor's treatment for the injury had not been successful, appellant consulted Brightman. With Brightman's aid, appellant filed a claim for workers' compensation for this May 1995 injury. To support the claim, Brightman had ordered an "MRI" for appellant's lumbar region. He found "multiple levels of degeneration of the discs from L1 to L5 *** an old fracture of the first lumbar vertebrae and *** diagnos[ed] *** multiple levels of spinal stentosis" that had been aggravated by the work injury. Brightman recommended a course of physical therapy for appellant. Appellant's workers' compensation claim was allowed for forty weeks of temporary total disability. Appellant completed the physical therapy. In August 1995, appellant was examined for purposes of the workers' compensation claim by a Dr. Katz, who noted appellant's continued complaints of -4- pain but found no objective manifestations to support them. Katz reported appellant needed no further treatment; however, in Sep- tember 1995, appellant still complained of back pain to Brightman. In February 1996, after the motor vehicle accident with appellee, Dr. Brickel indicated he suspected "osteophytic changes" in appellant's back. Brickel ordered an "MRI lumbar" of appel- lant's spine. The MRI demonstrated "posttraumatic lumbar disc herniation and lumbar canal stenosis." This essentially was the same diagnosis appellant had received in July 1995 when he originally had been treating with Brightman. In March 1996, appellant applied for permanent partial dis- ability with the Bureau of Workers' Compensation. In July 1996, he was examined by Dr. Zellars for the claim. Zellars' notes indicate appellant did not mention the February automobile accident; rather, "[appellant's] past medical history was negative for previous injuries involving his low back region" and appellant "denie[d] suffering any new injuries since the date of [his] claim." Appellant's claim for permanent partial disability from the May, 1995 workplace injury subsequently was allowed. In January 1997, appellant filed the instant action against appellee seeking damages for injuries allegedly incurred in the motor vehicle accident. Appellant later dismissed the case but re- filed it in December 1998 pursuant to the savings statute. Following discovery in the action, appellant filed a motion in limine seeking to prevent appellee from introducing evidence concerning any "property damage" sustained in the accident. -5- Appellant insisted such evidence was more prejudicial than probative and also insisted appellee would need expert testimony regarding the force of the impact between the vehicles. Although appellee opposed the motion, the trial court granted it. The case then was assigned to a visiting judge for a jury trial. The visiting judge refused either to reconsider the ruling or determine the issue differently during trial. The jury heard the testimony of appellant, appellant's wife and stepson, and Dr. Anstandig, a neurologist who had seen appellant in February, 1999. Anstandig opined appellant's MRI results demonstrated a new injury had occurred to appellant's back between 1995 and 1996 and, further, appellant's more recent injury was a "direct result" of the February 1996 automobile "collision." Appellant also presented the testimony of radiologist Dr. Zelch, Anstandig's colleague, who noted differences in the two MRI films. Appellee thereafter presented the testimony of his expert wit- ness, orthopedic surgeon Dr. Kaufman. Although Kaufman personally never had examined appellant, Kaufman's review of appellant's medical records, X-rays and MRI results led him to conclude that appellant's back problems pre-dated the automobile accident and, further, that the accident had no causal connection to his ongoing symptoms. The jury ultimately returned a verdict in appellee's favor. Appellant's subsequent motion for a new trial was overruled without opinion by the trial court. -6- Appellant has timely appealed; he presents the following three interrelated assignments of error for review: I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFFS' MOTION FOR A NEW TRIAL. II. THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO GRANT A MISTRIAL WHEN THE DEFENDANT REVEALED THE EXCLUDED BLOWUP PHOTOGRAPH TO THE JURY. III. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GIVE IMMEDIATE (OR ANY) CURA- TIVE INSTRUCTIONS WHEN DEFENDANT'S COUN- SEL REVEALED TO THE JURY EXCLUDED EVI- DENCE. Appellant's three assignments of error challenge the propriety of the trial court's actions in denying his motion for a mistrial, failing to give a curative instruction to the jury during trial, and denying his motion for a new trial. All of appellant's chal- lenges are made on the basis defense counsel disregarded the ruling on appellant's motion in limine, thereby tainting the jury's verdict. Appellant's challenges, however, are unsupported in the record. As appellant acknowledges in his brief to this court, the challenged actions may be reversed only upon findings the trial court abused its discretion in each instance. Apaydin v. Cleveland Clinic Found. (1995), 105 Ohio App.3d 149; Pesek v. Univ. Neurolo- gists Assn., Inc. (2000), 87 Ohio St.3d 495 at 501; Rohde v. Farmer (1970), 23 Ohio St.2d 82, syllabus 3; Civ. R. 51(B). -7- Moreover, with regard to a decision on a motion for a new trial, the trial court's action should be viewed favorably and affirmed if there is competent, credible evidence to support it. Jenkins v. Krieger (1981), 67 Ohio St.2d 314; Verbon v. Pennese (1982), 7 Ohio App.3d 182, headnote 1. This case does not demonstrate an abuse of discretion. Each of the instances of defense counsel's "misconduct" appellant cites as justifying a reversal of the trial court's orders is, in context, actually mere advocacy. First, defense counsel's cross-examination of appellant regarding the force of the impact was in direct response to appellant's counsel's repeated references on direct examination to the "collision" between the vehicles. The dictionary definition of "collision" indicates the contact is "violent." Defense counsel thus actually was not referring to property damage but rather to appellant's claim of bodily injury resulting from the accident. The transcript of the trial demonstrates the trial court was aware of this tactic. Its denial of appellant's motion for a mistrial, therefore, was not an abuse of discretion. See, e.g., Nott v. Homan (1992), 84 Ohio App.3d 372. Second, a review of the transcript indicates the trial court correctly surmised defense counsel's shuffling of the exhibits that briefly exposed the photograph of appellant's taxicab was neither egregious conduct nor prejudicial. Defense counsel clearly sought only to obtain another exhibit, appellant's counsel's outraged response to the blunder was immediate, and the trial court's -8- reaction quickly was to caution defense counsel. At that point, the trial court declared no prejudice had resulted to appellant. The trial court was in a position to determine how distant the photograph was from the jury box and the time the jury had to notice it before it again was concealed. Hence, the trial court properly could conclude neither a curative instruction, which only would draw the jury's attention to the mistake, nor a mistrial was warranted. Third, defense counsel's comments in closing argument were not sufficiently egregious to justify overturning the jury's verdict. Bell v. Mt. Sinai Med. Ctr. (1994), 95 Ohio App.3d 590. Counsel was not referring to appellee's photograph of the taxicab but rather to appellant's scanty medical evidence that a new injury resulted from the accident. A review of the medical experts' tes- timony reveals the differences appellant's witnesses observed in the two MRI films were minute. Finally, the jury's verdict is supported by the evidence. Appellant's testimony was not credible in the face of his own statements made both for medical diagnosis and treatment and for asserting a claim for workers' compensation. The jury reasonably could conclude appellant's continuing back problems actually resulted from a combination of both his 1991 motor vehicle accident, when a collision with a truck at high speed on an interstate highway caused his vehicle to exit the roadway, roll and crash, and his 1995 industrial injury. -9- For the foregoing reasons, appellant's assignments of error are overruled. The orders of the trial court are affirmed. -10- It is ordered that appellee recover of appellants 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 Cuyahoga County 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. LEO M. SPELLACY,J. CONCURS ANN DYKE, A.J. DISSENTS (See separate Opinion) JUDGE KENNETH A. ROCCO 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 NO. 77414 LEONARD WISMER, ET AL. : : Plaintiffs-Appellant : : D I S S E N T I N G -vs- : O P I N I O N : RANDALL S. WORKMAN : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 9, 2000 DYKE, A.J., DISSENTING: Respectfully, I dissent. Reversible error occurred because appellee's counsel repeatedly referred to facts which were excluded from evidence. The jury never received a curative instruction to disregard this evidence. The trial court abused its discretion in refusing to grant a new trial under these circumstances. When appellee's counsel was cross-examining Mr. Wismer, counsel made several improper remarks. The following took place: Q: Collision means a big impact, and this was not a big impact, was it? A: You have got to do better than big im- pact. Q: I can do much better. I have a photograph right here. The judge said that appellee's counsel could not refer to something not in evidence. Counsel then asked, That car you were -2- driving wasn't even scratched, was it? Wismer replied, The Crown Victoria? The judge sustained an objection, and Mr. Wismer did not answer the question. No curative instruction was given. Appellee's counsel said in closing arguments: . . . if you are going to say There was a collision, you had better have a photograph as big as that wall of that car because col- lision is a big term, and you don't have a photograph . . . Appellants' counsel objected. The trial court noted the objection, but did not sustain it or order the jury to disregard this statement. Improper remarks by counsel may constitute misconduct warranting a new trial. See Pesek v. University Neurologists Ass'n, Inc. (2000), 87 Ohio St.3d 495. Injecting evidence not on the record coupled with abusive attacks on the opposing party's expert and counsel constituted conduct warranting a new trial in Pesek, supra. Misconduct occurs when counsel comments on evidence which was excluded by the trial court or counsel makes statements which are intended to get evidence before the jury which counsel was not entitled to have the jury consider. Drake v. Caterpillar Tractor Co. (1984), 15 Ohio St. 3d 346. Cross-examining a witness concerning matters precluded by a motion in limine is misconduct. Fricano v. McLaughlin (July 2, 1998), Columbiana App. No. 95-C-8, unreported. Misconduct of the prevailing party warrants a new trial if such misconduct had a prejudicial effect. See Drake, supra; Fields v. Dailey (1990), 68 Ohio App. 3d 33. If there is room for doubt, -3- whether the verdict may have been influenced by improper remarks of counsel, that doubt should be resolved in favor of the defeated party. Pesek v. University Neurologists Ass'n, Inc. (2000), 87 Ohio St.3d 495. If the trial court merely "noted" appellee's objection to the improper statements and failed to give an immediate curative instruction, it is more likely that the jury may have utilized evidence in reaching its verdict. See Drake, Fricano supra. Appellee's attorney engaged in prejudicial misconduct by asking whether the car was scratched and referring to the photo- graph of damage. Prejudicial misconduct also occurred when appellee's attorney argued in closing that appellants failed to show their car was damaged, when he knew that evidence of the damage to the vehicle had been excluded. This statement can not be construed as a reference to the medical evidence. Appellee's attorney was clearly referring to the lack of damage to the vehicle. The statements made in closing arguments and cross- examination went beyond mere advocacy. Counsel was referring to the evidence which was specifically excluded by the motion in limine and excluded by order of the court during trial. Appel- lants' counsel was unable to respond to appellee's backdoor attempts at bringing in the excluded evidence without drawing more attention to this evidence. This misconduct was prejudicial because it could have influenced the jury to give verdict of zero dollars to appellants. The evidence in this case was not such that the jury could have -4- only ruled in favor of appellee. Leonard Wismer testified that the back injury in 1995 felt like a pulled muscle. The injury healed in two or three months. Wismer said he told Dr. Zeller about the car accident, but Dr. Zeller was only interested in the Workers' Compensation injuries. Appellants' expert testified that the MRI after the automobile accident showed additional injuries which did not exist in the 1995 MRI. Accordingly, I would sustain appellants' first assignment of error. I would reverse the decision of the trial court and remand this case for a new trial. .