Shanower v. Holcomb, Unpublished Decision (8-9-1999)
Shanower v. Holcomb, Unpublished Decision (8-9-1999)
Opinion of the Court
OPINION
On July 9, 1996, appellant, Della M. Shanower, was pulling into a private driveway when her vehicle was struck from behind. Appellant sustained injuries to her neck resulting in a herniated disc. Traveling behind appellant was Jean Beauseigneur in the same lane and appellee, Charles F. Holcomb, in the next lane. There was a dispute as to which individual struck appellant's vehicle. On April 7, 1998, appellant, together with her husband, Corlin Shanower, filed a complaint against appellee, Ms. Beauseigneur and Erie Insurance Company for negligence as a result of the collision. Appellants sought compensatory damages in excess of $25,000. A jury trial commenced on December 14, 1998. The jury found appellee to be fully liable for the collision and awarded appellants $4,000 in damages, $2,000 to appellant for her medical bills, $1,000 for her pain and suffering and $1,000 to appellant's husband on his loss of consortium claim. On December 24, 1998, appellants filed a motion for new trial, or in the alternative, additur. By judgment entry filed January 11, 1999, the trial court denied said motion. Appellants filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:I THE JURY'S AWARD OF DAMAGES WAS INADEQUATE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, WHERE THE JURY FAILED TO FULLY COMPENSATE APPELLANT FOR THE INJURIES CAUSED BY APPELLEE'S NEGLIGENCE AFTER SUCH CAUSATION WAS ESTABLISHED BY UNCONTROVERTED MEDICAL TESTIMONY.
II THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANTS' MOTION FOR NEW TRIAL, OR IN THE ALTERNATIVE, ADDITUR, WHERE THE DAMAGES AWARDED BY THE JURY WERE INADEQUATE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS PROVEN BY THE UNCONTROVERTED MEDICAL TESTIMONY.
A reviewing court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the judgment rendered by the trial court. Myers v. Garson (1993),
This is why I say my opinion — to make it shorter for the benefit of the jury — is that this women didn't have any neck pain or any ailments of the neck before the accident, but following the accident for fourteen months continual neck pain. It is fourteen months after the accident or thirteen months when finally she has the appropriate study. That is a CT scan. The study shows a cervical herniated disc. Then it is operated. This is why I think there is a direct relationship between the injury, based on my information, between the injury and the ruptured disc.
Sos depo. at 49-50.
In particular, Dr. Sos's physical observations at the time of appellant's surgery substantiate that the disc had been herniated for some time. There were `multiple adhesions and adherences to the ligament' which was indicative that the disc had been herniated `for quite some time.' Sos depo. at 27. Upon cross-examination, Dr. Sos explained although a herniated disc could be the result of many causes, when there is trauma to the area immediate radiculopathy (motor loss and/or numbing and tingling) is not always presented. T. at 44-46. Dr. Sos testified the tearing out may be immediate or may happen over the ensuing months. Sos depo. at 46. This is further substantiated by Dr. Galang's observation that in August of 1997, appellant had more symptoms i.e., "more pain and numbness of the left upper extremity." Galang depo. at 16-17. Dr. Sos opined Dr. Galang's failure to do a CT scan prior to September of 1997 was wrong. T. at 55. Appellant testified her symptoms became worse in the passing months and by the summer of 1997 she had pain down her arms into her hip and legs. T. at 222. Undeveloped during the trial was the last therapy session wherein the therapist moved appellant's neck differently to the point where appellant cried and the CT scan was recommended. T. at 266. This is the only incident in the record of any possible break in the causation. This is not developed or discussed by the medical experts. In the record is unrefuted testimony that appellant's symptoms were not present before the accident but were present immediately after the accident and continued until her surgery. T. at 190, 211, 217, 256. Based upon the unrefuted evidence of causation and being mindful there can be more than one proximate cause, we find the damages award was not substantiated by the evidence. There is unrefuted testimony the accident caused the injury and appellant's pain was continuous from the time of the accident to surgery. Further, Dr. Sos's physical observations established appellant's herniated disc was a long term herniation. Upon review, we find the damages award was inadequate and the trial court erred in not granting a new trial. Assignments of Error I and II are granted.
The judgment of the Court of Common Pleas of Stark County, Ohio is hereby reversed and remanded.
By Farmer, J. Gwin, P.J. and Reader, V.J. concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.