[Cite as Pytel v. Crenshaw,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

JOHN M. PYTEL, INDIVIDUAL, et al. :

Plaintiff-Appellant : C.A. CASE NO. 25487

v. : T.C. NO. 11CV6264

MICHAEL R. CRENSHAW : (Civil appeal from Common Pleas Court) Defendant-Appellee :

:

..........

OPINION

Rendered on the 16th day of August, 2013.

..........

THOMAS J. INTILI, Atty. Reg. No. 0036843, 130 W. Second Street, Suite 310, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant

STEVEN O. DEAN, Atty. Reg. No. 0009095, 130 W. Second Street, Suite 1500, Dayton, Ohio 45402 Attorney for Defendant-Appellee

..........

DONOVAN, J.

{¶ 1} Plaintiff-appellant John M. Pytel appeals a judgment of the Montgomery 2

Court of Common Pleas, Civil Division, in favor of defendant-appellee Michael R.

Crenshaw after a trial held on July 17 and 18, 2012. On August 13, 2012, Pytel filed a

motion for judgment notwithstanding the verdict (JNOV), or in the alternative, for a new

trial. The trial court overruled both of Pytel’s post-trial motions in a decision issued on

October 24, 2012. On the same day, the trial court issued a final judgment for Crenshaw.

Pytel filed a timely notice of appeal with this Court on November 20, 2012. The incident

which forms the basis for the instant appeal occurred on October 13, 2008, when the parties

were involved in an automobile collision at the corner of Anderson Street and Stewart Street

in Dayton, Ohio, at approximately 4:30 p.m. Crenshaw admitted that he failed to yield the

right-of-way and pulled out in front of Pytel, causing the collision.

{¶ 2} After the accident, Pytel approached Crenshaw’s vehicle and asked him if he

was hurt. Crenshaw stated that both he and his passenger were not hurt. Crenshaw asked

if Pytel was okay. Pytel stated that both he and his son, C., who was also in the vehicle,

were not hurt. Both parties then moved their vehicles off of the roadway and waited for

police and paramedics to arrive.

{¶ 3} Dayton paramedics transported C. to Children’s Medical Center, where he

was treated and released.1 After C. was released, Pytel went to the emergency room at

Good Samaritan Hospital complaining of head, neck, and back pain. Pytel was diagnosed

as having tenderness in the cervical and thoracic-lumbar area of his back, as well as a small

abrasion on his left parietal scalp. The results from the diagnostic testing that was done

1 Any claims regarding C.’s injuries were settled by the parties prior to trial and are not at issue in the instant appeal. 3

were negative, and Pytel’s condition was found to be objectively normal. Pytel was

discharged with prescriptions for Naprosyn, an anti-inflammatory medication, and Ultram, a

mild pain reliever. Pytel was also instructed to intermittently apply ice packs to his back

followed by heat for approximately twenty-four hours.

{¶ 4} Two days later on October 15, 2008, Pytel went to the emergency room at

Kettering Medical Center complaining of head, neck, back, and abdominal pain. Other than

noting that Pytel had a bruise on the left side of his head and knee abrasions, the emergency

room physician failed to find any evidence of neck or back pain. Noting Pytel’s history of

anxiety and depression, the treating physician prescribed Lexapro and Xanax for Pytel and

discharged him.

{¶ 5} On October 16, 2008, Pytel visited Dr. David Kirkwood, M.D., his primary

care physician, complaining of soreness in his neck, back, and head. Dr. Kirkwood noted

that Pytel complained of tenderness in his neck and back and exhibited slightly less than full

range of motion in his neck. Other than Pytel’s complaints of tenderness, Dr. Kirkwood

testified that he found no objective indications of injury to Pytel’s neck, back, and head. Dr.

Kirkwood prescribed Motrin and Vicodin to Pytel and instructed him to return for a

follow-up visit in two weeks. Pytel returned to Dr. Kirkwood’s office approximately two

weeks later on October 27, 2008, still complaining of tenderness in his neck and back, but

Dr. Kirkwood was still unable to discern any objective indications of injury to Pytel, other

than the abrasion to his scalp. Nevertheless, Dr. Kirkwood opined that the accident which

occurred on October 13, 2008, was the proximate cause of Pytel’s injuries.

{¶ 6} On October 17, 2008, Pytel began treatment with Dr. David Heuser at Dixie 4

Chiropractic, for pain in his neck, back, and left leg, as well as headache and numbness. Dr.

Heuser diagnosed Pytel with cervical and lumbar sprain with a left shoulder sprain due to the

automobile accident that occurred on October 13, 2008. Between October 17, 2008, and

December 3, 2008, Pytel underwent nine chiropractic treatments under the care of Dr.

Heuser.

{¶ 7} We note that on September 11, 2008, approximately one month before the

accident, the record establishes that Pytel went to the emergency room at Grandview Hospital

complaining of shoulder, back, and neck pain he suffered as a result of stepping in a hole a few

days prior. In particular, the treating physician found significant spasm in the area of the

trapezius and scapula. Dr. Kirkwood testified that these findings were consistent with the

findings made by the chiropractor following the motor vehicle accident with Crenshaw. The

additional findings made by Dr. Heuser were not consistent with the findings made by Dr.

Kirkwood and the emergency room physicians immediately after the car accident. Dr. Kirkwood

acknowledged this discrepancy during his cross-examination.

{¶ 8} On August 31, 2011, Pytel filed a complaint against Crenshaw seeking damages

for injuries he purportedly sustained in the automobile accident.2 Crenshaw filed an answer to

the complaint on September 13, 2011. A trial was held on July 17 and 18, 2012, after which the

jury returned a verdict in favor of Crenshaw. Pytel was not awarded any damages. Specifically,

while Crenshaw admitted responsibility for causing the accident on October 13, 2008, the jury

found that the accident was not the proximate cause of any injuries of which Pytel complained.

2 The instant case is a re-filing of Case No. 2009 CV 4874 which was voluntarily dismissed without prejudice on September 1, 2010. 5

Pytel subsequently filed a motion for JNOV, or in the alternative, a motion for new trial. The

trial court overruled Pytel’s post-trial motions on October 24, 2012.

{¶ 9} It is from this judgment that Pytel now appeals.

{¶ 10} Because they are interrelated, we will discuss Pytel’s first and second

assignments of error together as follows:

{¶ 11} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION FOR

JUDGMENT NOTWITHSTANDING THE VERDICT.”

{¶ 12} “THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION FOR

NEW TRIAL.”

{¶ 13} A) Motion for JNOV

{¶ 14} In his first assignment, Pytel contends that the trial court erred when it overruled

his motion for JNOV because the evidence adduced at trial was insufficient as a matter of law to

support the jury’s verdict that the automobile accident was not the proximate cause of Pytel’s

injuries. Specifically, Pytel argues that no evidence was adduced that refuted Dr. Kirkwood’s

testimony that appellant’s emergency room treatment at Good Samaritan Hospital was necessary

and that its billing was reasonable. Pytel further asserts that no evidence was adduced that

refuted the necessity of his two office visits with Dr. Kirkwood or the reasonableness of the

resultant billing. Lastly, Pytel argues that unrebutted evidence was adduced that he suffered

some injury as a proximate result of the collision caused by Crenshaw.

{¶ 15} “A motion for judgment notwithstanding the verdict presents an issue of law.

Though the court does not weigh the evidence or consider the credibility of the witnesses, the

court must evaluate the evidence for its sufficiency in relation to the legal standard governing the 6

claim or defense which the motion involves. Furthermore, being a finding as a matter of law,

the trial court’s judgment granting or denying the motion is reviewed on appeal de novo.”

Innovative Technologies Corporation v. Advanced Management Technology, Inc., 2d Dist.

Montgomery No. 23819,

, citing O’Day v. Webb,

,

(1972).

{¶ 16} “[T]he 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 finder not to

supplant it.” McBride v. Quebe, 2d Dist. Montgomery No. 21310,

, citing

Sawyer v. Duncan, 8th Dist. Cuyahoga No. 78056,

(Dec. 14, 2000).

Moreover, the lack of competing expert testimony does not automatically establish that the

testimony from Pytel’s expert, Dr. Kirkwood, was uncontroverted. The defense does not have to

present its own expert, and may rely on cross-examination of the plaintiff’s expert. Pryor v.

Tooson, 2d Dist. Clark No. 2002-CA-91,

, ¶ 25.

{¶ 17} Upon review, we conclude that Crenshaw adduced sufficient evidence during

trial to discredit Pytel’s claim that he suffered injury as a result of the accident. A reasonable

jury could find that Pytel did not carry his burden of proof. The record reveals a lack of

objective findings consistent with Pytel’s claims. Pytel’s primary witness was his family

physician, Dr. Kirkwood. Dr. Kirkwood admitted that a complaint of tenderness has a very high

subjective overlay because the physician is relying upon the patient to make the report of pain.

In his testimony, Dr. Kirkwood acknowledged that there are objective physical findings that are 7

associated with strain and sprain injuries of the neck and back, which can include muscle spasm,

weakness in an extremity, and diminished reflex. None of these findings were noted in the

emergency room records. The emergency room records per Dr. Kirkwood further revealed that

the neck was not in spasm, moved freely, and there was no restriction in the range of motion.

{¶ 18} Regarding the chiropractic care, the objective findings made by Dr. Heuser had

previously been noted during Pytel’s visit to Grandview Hospital’s emergency room

approximately one month before the car accident in September of 2008. Any additional findings

made by Dr. Heuser regarding injury to Pytel were inconsistent with the findings made by Dr.

Kirkwood and the emergency room physicians after the car accident. Dr. Kirkwood

acknowledged this disparity during his cross-examination. We further note that all of the

diagnostic tests performed on Pytel by Dr. Kirkwood and the emergency room personnel

following the car accident failed to support the claims advanced by Pytel. The

cross-examination of Dr. Kirkwood identified several significant issues which undermined the

value of his opinion that Pytel’s injuries were proximately caused by the car accident.

{¶ 19} Additionally, Pytel points to the abrasion on his head as evidence of injury

caused by the car accident. The head abrasion, however, did not require any medical care, and

the record establishes a question of fact as to whether Pytel hit his head in the car accident.

Specifically, defense counsel established during Pytel’s cross-examination that when he was

deposed approximately two years after the car accident, he could not remember whether he hit his

head when the collision occurred. At trial, however, Pytel was certain that he had hit his head

during the accident. Pytel also notes the abrasions on his knees as evidence of injury but was

unable to remember where or how he received the injuries to his knees. [Cite as Pytel v. Crenshaw,

.] {¶ 20} Absent evidence of an obvious cause and effect relationship, “the issue of

proximate cause is ordinarily one for determination by the jury.” Ornella v. Robertson,

,

(1968). We are unwilling to hold that the evidence in the instant

case established a causal relationship that was so obvious in nature that the trial court erred by

refusing to sustain Pytel’s motion for JNOV. Significantly, no evidence in the record exists

wherein Crenshaw concedes that Pytel suffered at least some injury as a result of the accident.

Viewed in a light most favorable to Crenshaw and presuming any doubt in his favor, we cannot

say that reasonable minds could come to but one conclusion on the issue of proximate cause.

Thus, the trial court did not err by refusing to sustain Pytel’s motion for JNOV.

{¶ 21} Pytel’s first assignment of error is overruled.

{¶ 22} B) Motion for New Trial

{¶ 23} In his second assignment of error, Pytel argues that the trial court erred when it

refused to sustain his motion for a new trial because inadequate damages were awarded.

Specifically, Pytel asserts that the jury’s award of zero damages was given under the influence of

passion and/or prejudice pursuant to Civ. R. 59(A)(4). Thus, Pytel argues that the jury’s verdict

was not sustained by the weight of the evidence, and a new trial should be granted. Civ. R.

59(A)(6). Lastlly, Pytel argues that the verdict is contrary to law. Civ. R. 59(A)(7).

{¶ 24} Whether to grant or deny a motion for a new trial rests with the sound discretion

of the trial court, and its judgment will not be disturbed absent an abuse of discretion. Yungwirth

v. McAvoy,

,

(1972). An abuse of discretion is shown when a

decision is unreasonable; that is, when there is no sound reasoning process that would support the

decision. AAAA Enterprises v. River Place Community Urban Redevelopment Corp.,

,

(1990). 9

{¶ 25} “To support a finding of passion or prejudice under Civ.R. 59(A)(4), * * * [the

movant] must demonstrate that ‘the jury's assessment of the damages was so overwhelmingly

disproportionate as to shock reasonable sensibilities.’ * * * In assessing such a claim, a

reviewing court should consider the amount of the verdict, whether the jury considered

incompetent evidence, improper argument by counsel, or other improper conduct that can be said

to have influenced the jury. * * * The granting of a new trial because the verdict is so

[inadequate] as to be the result of passion or prejudice rests in the trial court's discretion.” Berge

v. Columbus Community Cable Access,

,

(10th

Dist. 1999). “The amount of the verdict alone will not sustain a finding of passion or prejudice.

There must be something contained in the record which the complaining party can point to that

wrongfully inflamed the sensibilities of the jury.” Shoemaker v. Crawford,

,

(10th Dist. 1991).

{¶ 26} Other than the award of zero damages, Pytel fails to point to any evidence in the

record which “wrongfully inflamed the sensibilities of the jury.” The jury was not required in

the instant case to award Pytel damages on his claims. Substantial, competent, and credible

evidence was adduced at trial which supported the verdict in favor of Crenshaw. The jury was

free to believe or disbelieve any part of lay witness or expert witness testimony offered by Pytel.

Through effective cross-examination, defense counsel undermined the evidence presented by

Pytel that he suffered some injury as a result of the car accident. There is simply nothing in the

record to support Pytel’s claim that the jury was affected by undue passion or prejudice in

reaching its verdict.

{¶ 27} “Civ. R. 59(A)(6) authorizes the trial court to vacate a judgment and order a new 10

trial on a finding that the verdict on which the judgment was entered ‘is not sustained by the

weight of the evidence.’ When that claim is made, the court must review the evidence and pass in

a limited way on the credibility of the witnesses. (Internal citations omitted). It must appear to

the court that a manifest injustice has been done and that the verdict is against the manifest

weight of the evidence. For example, where it appears probable that a verdict is based on false

testimony, a motion for a new trial should be granted. (Internal citations omitted). A verdict is

not against the manifest weight of the evidence merely because the judge would have decided the

case differently. (Internal citations omitted). If the jury’s verdict is supported as to each

element of the plaintiff’s case by some competent and apparently credible evidence, a defendant’s

motion for new trial should not be granted. (Internal citations omitted). Conversely, if

evidence the defendant offered to rebut one or more of those elements of the plaintiff’s case is

competent and apparently credible, a plaintiff’s motion should not be granted.” Bedard v.

Gardner, 2d Dist. Montgomery No. 20430,

.

{¶ 28} The cases upon which Pytel relies to support his argument that proximate cause

was established at trial involve either a concession of some kind by defense counsel on the issue

of proximate cause or the defense was found to have presented no evidence to challenge the

plaintiff’s claims the defendant’s negligence was the proximate cause of the injuries. See,

Hoschar v. Welton, 7th Dist. Columbiana No.

,

(agreeing the

appellant was entitled to a new trial where “Appellee did not *** dispute or take issue with

Appellant’s emergency medical treatment, diagnoses, or transport arising from the collision”);

Enter v. Fettman, 5th Dist. Stark No. 2005CA00023,

(finding that

competent credible evidence clearly demonstrated that appellant suffered some injuries as a result 11

of the accident and defense counsel made concessions during trial that appellant’s neck and back

injuries were caused by the collision); see also, Gorney v. Naus, 6th Dist. Lucas No. L-06-1223,

; Palmer v. Hopkins, 11th Dist. Ashtabula No. 2006-A-0020,

(defendant admitted negligence in causing accident but denied that accident was proximate cause

of plaintiff’s injuries; trial court found that a new trial was warranted because defendant failed

to offer any direct evidence which controverted plaintiff’s argument that he suffered injuries as a

result of the accident.)

{¶ 29} The instant case does not involve an instance where defense counsel conceded

the issue of proximate cause or the plaintiff experienced an immediate injury at the scene

requiring treatment. In fact, Crenshaw testified that immediately after the accident, Pytel stated

that he was fine and not injured. The jury was instructed that Pytel had to prove Crenshaw’s

negligence was the proximate cause of Pytel’s injuries. Significantly, the interrogatory presented

to the jury specifically asked the jury to indicate a “yes” or “no” response to the following

question: “Do you find that the negligence of defendant Michael Crenshaw directly and

proximately caused injury to the plaintiff John Pytel?” Thus, the issue of proximate cause was

contested at trial and placed squarely before the jury for their determination.

{¶ 30} Pytel’s testimony contained numerous inconsistencies which were brought out

during cross-examination. Specifically, Pytel had trouble recalling the sequence or occurrence

of events when questioned during his deposition in 2010: to wit: a) whether he went to Children’s

Hospital to see his son; b) when he went to Good Samaritan after the accident; c) whether he

actually hit his head during the accident; d) whether he had prior neck or back problems; and e)

whether he had been treated at Grandview Hospital for the prior neck and back injuries one 12

month before the accident. At trial, however, Pytel was able to remember all of these events

clearly. Pytel’s testimony was also inconsistent regarding how he was referred to and began

treatment at Dixie Chiropractic. Initially, he indicated that a physician referred him to Dr.

Heuser. Pytel then testified that it was a female nurse who gave him a list of chiropractors from

which he chose Dr. Heuser. Pytel later admitted that the same female hospital employee simply

told him that he needed to see a chiropractor. Pytel finally acknowledged that he went to Dixie

Chiropractic because the office was close to his house, and he had received a solicitation in the

mail from the practice.

{¶ 31} The trial court fully recognized that the ultimate decision in this matter turned on

the jurors’ evaluation of the credibility of Pytel and Dr. Kirkwood’s testimony. After thoroughly

reviewing the entire record, weighing the evidence and all reasonable inferences, we cannot

conclude that in resolving conflicts in the evidence, the jury lost its way and thereby created a

manifest miscarriage of justice. The jury had the opportunity to see and hear all of the witnesses,

and it was free to determine which testimony to credit. We defer to the jury’s assessment of

credibility. On this record, the jury could have simply discredited Dr. Kirkwood’s testimony

regarding causation because the facts on which his opinions were based were not established by

the greater weight of the evidence, given the conflicting testimony of Pytel and that of Crenshaw.

Given that there were objectively discernable facts in the record that brought the credibility of

Pytel’s claims into question, and that the jury was in the best position to assess credibility, I

cannot conclude that the trial court abused its discretion by upholding the jury verdict awarding

zero damages and denying Pytel’s motion for a new trial.

{¶ 32} My colleagues conclude that the award of zero damages is against the manifest 13

weight since payment for the emergency room bills was not awarded. However, in my view, the

jury was free to conclude that Pytel did not carry his burden of proving causation warranting two

emergency room visits. Pytel’s vehicle sustained minimal damage, he was traveling at a low rate

of speed, 20-25 mph, and the tortfeasor’s vehicle was more heavily damaged. This jury heard

evidence of alternative causes for Pytel’s claimed injuries and evidence was adduced that he was

exaggerating his complaints for financial gain and/or drug-seeking reasons.

{¶ 33} Pytel’s second assignment of error is overruled.

{¶ 34} All of Pytel’s assignments of error having been overruled, the judgment of the

trial court is affirmed.

..........

FAIN, P.J., dissenting:

{¶ 35} I concur in the overruling of Pytel’s First Assignment of Error. Upon this

record, I conclude that Pytel is not entitled to judgment in his favor as a matter of law.

{¶ 36} On the Second Assignment of Error, I agree with Judge Hall that the jury’s

verdict that Pytel should not recover even the charges he incurred for his visit to the Good

Samaritan emergency room following the collision is against the manifest weight of the evidence.

A case can be hypothesized involving a low-velocity “bump” of one motor vehicle against

another in which a reasonable finder of fact could conclude that a trip to an emergency room to

check for possible injury would not have been a reasonable and prudent action necessitated by the

collision. But in my view, the case before us is not that case. I have examined the photographs

in evidence; the damage to Crenshaw’s vehicle was substantial, and there was some, albeit

modest, damage to Pytel’s larger, more massive vehicle. Thus, the kinetic energy involved in 14

the collision was not neglible.

{¶ 37} Despite the fact that two members of the panel of judges of this court charged

with deciding this case would find the judgment to be against the manifest weight of the

evidence, we are not unanimous on this issue, and we must therefore affirm the judgment. “No

judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by

the concurrence of all three judges hearing the cause.” Article IV, Section 3(B)(4) of the Ohio

Constitution. See State v. Hudson, Clark No. 2011 CA 100,

.

{¶ 38} Because we must affirm the judgment despite the fact that two of us conclude

that it is against the manifest weight of the evidence, and because it has long been the custom of

this court to have at least two judges sign a judgment entry, I join in signing our judgment entry

of affirmance, despite my dissenting opinion.

..........

HALL, J., dissenting:

{¶ 39} The car collision in this case was a substantial crash as a result of the admitted

negligence caused by the defendant’s improper entry into an intersection in front of the plaintiff’s

vehicle which was not required to stop. Tow trucks had to be called. Within hours, the plaintiff

reported to a hospital emergency room with a visible head abrasion and neck and back

complaints. In my view the jury clearly “lost its way” when it awarded zero damages.

{¶ 40} Although the plaintiff’s visit to a different hospital two days later, and his

subsequent chiropractic treatment, could properly have been ignored by the jury due to the

plaintiff’s dubious credibility, the same is not true of the initial hospital visit. In my view, when

one is involved in a substantial automobile collision the expense of reasonably prompt medical 15

attention, even if it is just to see if there are serious underlying injuries, is reasonably incurred.

{¶ 41} On this record, I would find that the jury’s conclusion was against the manifest

weight of the evidence and would reverse the judgment and remand for a new trial.

..........

Copies mailed to:

Thomas J. Intili Steven O. Dean Hon. Timothy N. O’Connell