Berardo v. Felderman-Swearingen, APPEAL NO. C-200227
| Decision Date | 31 August 2020 |
| Docket Number | APPEAL NO. C-200227 |
| Citation | 2020 Ohio 4271 |
| Parties | LUIGI BERARDO, and TINA BERARDO, Plaintiffs-Appellants, v. DEVIN Q. FELDERMAN-SWEARINGEN, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Dennis C. Mahoney and Amanda L Patton, for Plaintiffs-Appellants,
Jamey T. Pregon, for Defendant-Appellee.
{¶1} Luigi and Tina Berardo appeal the judgment of the Hamilton County Court of Common Pleas denying their motion for a new trial. Because the trial court abused its discretion by denying the motion for a new trial with respect to Tina Berardo's past noneconomic damages, we reverse the trial court's judgment in part and remand for a new trial on that issue.
{¶2} The Berardos filed a complaint seeking damages for injuries they sustained in an accident when a car driven by Devin Q. Felderman-Swearingen collided with their car. Following a trial, the jury rendered verdicts in favor of both of the Berardos against Felderman-Swearingen. The jury awarded Luigi Berardo damages in the amount of $23,677: $19,677 for past economic damages ( past medical expenses) and $4,000 for past noneconomic damages (pain and suffering).1 The jury awarded $0 to Luigi Berardo for future noneconomic damages. The jury awarded Tina Berardo damages in the amount of $9,853, all of which was for past economic damages ( past medical expenses). The jury awarded Tina Berardo $0 for past noneconomic damages and $0 for future noneconomic damages.
{¶3} The Berardos filed a motion for a new trial pursuant to Civ.R. 59(A)(4), (6), and (7). They asserted that the jury's awards of $4,000 to Luigi Berardo and $0 to Tina Berardo for past noneconomic damages and the award of $0 to Luigi Berardo for future noneconomic damages were inadequate, were notsupported by the evidence, and were contrary to law. The trial court denied the motion.
{¶4} We dismissed the Berardos' first appeal from that judgment for lack of jurisdiction. See Berardo v. Felderman-Swearingen, 1st Dist. Hamilton No. C-190515, 2020-Ohio-3098, ¶ 18. Thereafter, the trial court placed of record an order that entered judgment on the Berardos' claims against Felderman-Swearingen and certified that, pursuant to Civ.R. 54(B), there is no just reason for delay. This appeal followed.
{¶5} In a single assignment of error, the Berardos argue that the trial court erred by denying their motion for a new trial. They argue that their motion for a new trial should have been granted on the grounds set forth in Civ.R.59(A)(4), (6), and (7).
{¶6} Civ.R. 59(A) provides in relevant part:
{¶7} The standard of review of a trial court's ruling on a Civ.R. 59(A) motion for a new trial depends on the grounds for the motion. Harrison v. Horizon Women's Healthcare, LLC, 2d Dist. Montgomery No. 28154, 2019-Ohio-3528, ¶ 11.We review a trial court's decision granting or denying a motion for a new trial under Civ.R. 59(A)(4) and (6) for an abuse of discretion. See Weber v. Kinnen, 1st Dist. Hamilton No. C-100801, 2011-Ohio-6718, ¶ 13. When reviewing the grant or denial of a motion for a new trial based upon Civ.R. 59(A)(7), we must decide whether the trial court erred as a matter of law. Riedel v. Akron Gen. Health Sys., 2018-Ohio-840, 97 N.E.3d 508, ¶ 13 (8th Dist). We review a trial court's ruling on a motion brought under Civ.R. 59(A)(7) de novo. Hoke v. Miami Valley Hosp., 2d Dist. Montgomery No. 28462, 2020-Ohio-3387, ¶ 29.
{¶8} The Berardos argue that the trial court erred by denying their motion for a new trial because the evidence of their pain and suffering was undisputed at trial, the defendant's medical expert "agreed with [their] injuries," and defense counsel in closing argument "conceded specific pain and suffering numbers to the jury." They point to defense counsel's suggestion to the jury of awards of $4,000 to $9,000 for past pain and suffering for Tina Berardo, and awards for Luigi Berardo of $15,000 to $20,000 for past pain and suffering, and $5,000 for future pain and suffering for him. The Berardos assert that the jury's award of $4,000 to Luigi Berardo for past pain and suffering, without any award for his future pain and suffering, and the award of zero dollars for Tina Berardo's past pain and suffering were inadequate, against the weight of the evidence, and contrary to law.
{¶9} We begin with the Berardos' assertion that the suggestions of award amounts by defense counsel in closing argument amounted to concessions by the defense that the evidence of pain and suffering was undisputed. It is well established that closing arguments are not evidence upon which a jury can rely. Harrod v. USAA Ins. Co., 2019-Ohio-2748, 140 N.E.3d 184, ¶ 42 (2d Dist.). Although "[t]hearguments or statements of counsel may be considered judicial admissions in certain instances," Scatamacchio v. W. Res. Healthcare, 161 Ohio App.3d 230, 2005-Ohio-2690, 829 N.E.2d 1247, ¶ 46 (7th Dist.), citing Hake v. George Wiedemann Brewing Co., 23 Ohio St.2d 65, 262 N.E.2d 703 (1970), counsel's statements will not rise to the level of a judicial admission where "there is no indication that the statement was intended to dispense with formal proof of material facts for which witnesses would otherwise be called at trial." Holeski v. Lawrence, 85 Ohio App.3d 824, 621 N.E.2d 802 (11th Dist.1993). To constitute a judicial admission, counsel's statements must be "distinct and unequivocal, and be, by intention, an act of waiver relating to the opponent's proof of the fact, and not merely a statement of assertion or concession, made for some independent purpose." Shepler v. Love, 6th Dist. Huron No. H-00-022, 2001 WL 1104811, *3 (Sept. 14, 2001), quoting Carl & Gene Towing Serv., Inc. v. Shortway Lines, 6th Dist. Lucas No. L-81-265, 1982 WL 6322, *2 (Mar. 26, 1982).
{¶10} Here, defense counsel told the jury that its job was to decide the value of the Berardos' claims and asked the jury to be reasonable in its awards. Defense counsel's suggestion of potential amounts for pain-and-suffering awards did not constitute judicial admissions because there was no indication that the remarks were intended to waive the Berardos' burden of proof with respect to damages. See Padden v. Herron, 11th Dist. Lake No. 97-L-23, 1998 WL 964545, *5 (Dec. 24, 1998); see also Phoenix Lighting Group LLC v. Genlyte Thomas Group LLC, 9th Dist. Summit No. 28082, 2018-Ohio-2393, ¶ 64, rev'd on other grounds, Slip Opinion No. 2020-Ohio-1056. We reject the Berardos' assertion that the suggestions of award amounts by defense counsel in closing argument amounted to concessions by the defense that the evidence of pain and suffering was undisputed.
{¶11} A court may grant a new trial under Civ.R. 59(A)(4) when the damages awarded (1) are either excessive or inadequate and (2) appear to have been given under the influence of passion or prejudice. Weber, 1st Dist. Hamilton No. C-100801, 2011-Ohio-6718, at ¶ 14. Both criteria must be met. Id. at ¶ 15, quoting Shoemaker v. Crawford, 78 Ohio App.3d 53, 65, 603 N.E.2d 1114 (10th Dist.1991).
{¶12} Here, the Berardos argue only the first component of the test under Civ.R. 59(A)(4): they assert that the jury's award was inadequate because the "undisputed evidence" at trial showed that they experienced pain and suffering. (They reiterate this argument in relation to Civ.R. 59(A)(6) and (A)(7), as addressed below). However, they do not point to anything in the record, or even argue, that the jury's award was the product of either passion or prejudice. The trial court did not abuse its discretion by denying the Berardos' motion for a new trial under Civ.R. 59(A)(4).
{¶13} A trial court may grant a new trial pursuant to Civ.R 59(A)(6) when a judgment is not supported by the weight of the evidence. The trial court must weigh the evidence and credibility of the witnesses, not "in the substantially unlimited sense" that a jury does, but "in the more restricted sense of whether it appears to the trial court that manifest injustice has been done and that the verdict is against the manifest weight of the evidence." Lally v. Mukkada, 1st Dist. Hamilton No. C-100602, 2011-Ohio-3681, ¶ 6, quoting Rohde v. Farmer, 23 Ohio St.2d 82, 92, 262N.E.2d 685 (1970), paragraph three of the syllabus. "[T]he relief should be granted only when the trial court is persuaded that there is insufficient credible evidence to sustain the verdict in light of the other evidence presented." Green v. Bailey, 1st Dist. Hamilton No. C-070221, 2008-Ohio-3569, ¶ 13, citing Rohde at 92.
{¶14} "There is a split among Ohio courts whether damage awards for medical bills for injuries, without any award for pain and suffering, are against the manifest weight of the evidence." Dailey v. Masonbrink, 3d Dist. Auglaize No. 2-15-02, 2015-Ohio-2207, ¶ 21, quoting Uhlir v. State Farm Ins. Co., 164 Ohio App.3d 71, 2005-Ohio-5545, 841 N.E.2d 344, ¶ 19 (8th Dist.). Some courts have found that such awards are automatically against the manifest weight of the evidence. Id.; Krauss v. Daniels, 6th Dist. Wood No. WD-98-076, 1999 WL 435114, *3 (June...
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