Myzk v. Miller
| Decision Date | 25 March 2015 |
| Docket Number | Case No. 2014 AP 05 0019 |
| Parties | FLOYD MYZK AND VERDA CINDIA, Plaintiffs - Appellants v. CHRISTAN MILLER Defendant - Appellee |
| Court | Ohio Court of Appeals |
OPINION
For Plaintiffs-Appellants
EUGENE H. NEMITZ, JR.
136 2nd Street N.E.
New Philadelphia, OH 44663
For Defendant-Appellee
WILLIAM M. SHACKELFORD
KELLY M. JACKSON
625 Alpha Drive - Box #011B
Highland Heights, OH 44143
{¶1} Plaintiffs-appellants Floyd Myzk and Verda Cindia appeal from the December 19, 2013 Judgment Entry of the Tuscarawas County Court of Common Pleas memorializing the verdict in favor of defendant-appellee Christan Miller and the March 4, 2014 Judgment Entry overruling plaintiffs-appellants' Motions for Judgment Notwithstanding the Verdict under Civ.R. 50(B) and for a New Trial under Civ.R. 59(A)(6) and (7).
{¶2} On April 12, 2010, the vehicle in which appellants were traveling was rear-ended by a vehicle driven by appellee Christan Miller. Appellants filed a complaint against appellee. Appellant Myzk alleged that he had injuries to his neck, cervical, thoracic and lumbar spine while appellant Cindia alleged that she had injuries to her cervical spine, thoracic spine and lumbar spine. The matter proceeded to a jury trial on the issue of damages only because liability was admitted.
{¶3} At trial, testimony was adduced that appellee told the Trooper who investigated the accident that she was going 30 miles an hour at the time of the accident. The Trooper testified that appellant Myzk, when asked if he was injured, said that he did not think so but was sore.
{¶4} Appellant Cindia, who was eighty years old at the time of trial, testified that her head hit the head rest and that her head and neck hurt, but that she declined to go to the hospital after the accident. She testified that she indicated that she would go to her doctor. Appellant Cindia testified that the next day she was unable to get out of bed because her shoulders, neck and back were sore. She further testified that the second day after the accident she also was unable to get out of bed. According to appellantCindia, she called her doctor, Dr. Joseph Lach, the fifth or sixth day after the accident and saw him seven days after the accident. She testified that he prescribed her pain medication and that she had arthritis before the accident, but that the accident made it worse.
{¶5} After Dr. Lach, appellant Cindia saw Dr. Michael Brown, a chiropractor, who she had seen previously for back and neck troubles. Appellant Cindia testified that she saw Dr. Brown after the accident because she was very sore and that, after a while, she started getting headaches from the accident. Appellant Cindia testified that she saw Dr. Brown frequently right after the accident, but that the visits had decreased. She stated that the treatments that he gave her helped.
{¶6} Appellant Cindia also testified that the injuries affected her ability to lift things and to mop. She indicated that the accident had aggravated her back, neck and head. According to appellant Cindia, she took three trips by car after the accident to, among other places, Iowa, Mt. Rushmore and Florida. One of the trips was the October after the accident and the trip to Florida was in December of 2012.
{¶7} On cross-examination, appellant Cindia testified that she was able to get out of the car after the accident and walk back and talk to appellee. She admitted that she had no emergency treatment at the scene of the accident and that she had taken a second trip to Florida in 2011. When asked if she was still able to get together with her friends for lunch and go grocery shopping, she indicated that she was. Appellant Cindia further testified that before the accident, she had curvature in her spine.
{¶8} The next witness to testify was appellant Myzk. He testified that after appellee's car struck his, he took his seat belt off and went to speak with appellee. He testified that he felt "very sore" after the accident, but that the real soreness did not setin until the next day. Trial Transcript at 107. According to appellant Myzk, the soreness made it hard for him to get out of a chair and to lie down. The pain subsided on the third day. Appellant Myzk also saw Dr. Lach a week after the accident and was given a pain killer that he was on for about a week and then used from time to time as needed. He testified that he was in pain from back problems on the day of trial and that he did not have the same kind of pain before the accident.
{¶9} Appellant Myzk testified that he saw Dr. Brown twice a week after the accident and then the visits leveled off to once a week after about a month. According to him, the treatments provided by Dr. Brown helped. When asked what type of injuries he suffered in the accident, he testified that he had a sort of "whiplash" and that conditions in his spine and back were aggravated. Trial Transcript at 111. Appellant Myzk testified that he drove on the trips to Iowa in 2010 and Florida in 2011 with appellant Cindia and that his back hurt when he stood while helping appellant Cindia with the cooking.
{¶10} On cross-examination, appellant Myzk testified that at the time of the accident he lived alone in a two story house and that after the accident, he was able to go up and down the stairs to shower and get dressed. He also prepared his own meals. Appellant Myzk also admitted that he did not receive any medical treatment at the scene of the accident and did not go to the hospital. He also admitted that he maintained a garden after the accident.
{¶11} The videotaped deposition testimony of Dr. Joseph Lach was played for the jury. He testified that he was Board Certified in Internal Medicine and that he first saw appellant Myzk on April 19, 2010 for recurrent headaches and neck pain. According to Dr. Lach, appellant Myzk did not complain of back pain at the time. Dr. Lach diagnosed appellant Myzk with intermittent neck pain with some headaches andprescribed pain medication. He next saw appellant Myzk on May 3, 2010 for neck pain and saw him again on May 25, 2010 for the same pain. Dr. Lach testified that he thought that appellant Myzk had a cervical strain with continued pain and ordered an MRI. The MRI showed degenerative disc disease, which is a form of osteoarthritis that over time causes pain and disability. The MRI also showed spondylosis, which is a condition where the vertebra are not exactly lined up on top of each other, and an arthritic accumulation of calcium deposits which happens over time.
{¶12} Dr. Lach further testified that he saw appellant Myzk next on September 2, 2011 for non-accident related problems and saw him throughout the fall of 2010. His records did not reflect any continuing ongoing complaints about injuries from the accident. According to Dr. Lach, appellant Myzk did not complain of back problems until October 31, 2011 and had a recent back injury. A lumbar MRI performed after such visit showed spinal stenosis, which is often caused by progressive osteoarthritis, and degenerative disc disease. Dr. Lach also identified pre-accident records and testified that a 1983 record stated that appellant Myzk had degenerative joint disease and cervical radiculiitis, which is a general term for arthritis. Dr. Lach also identified a medical report from a prior treating doctor from November 14, 1991 that indicated that appellant Myzk had chronic lumbar and neck pain. During his deposition, Dr. Lach testified that an accident could cause an arthritic condition that was asymptomatic to become symptomatic.
{¶13} Dr. Lach was next questioned about appellant Cindia. He testified that he saw her on April 19, 2010 for neck pain and that he was "working with a diagnosis of myofascial strain." Trial Transcript at 153. He testified that her tissues were likely irritated by the accident. He further testified that he noted a whiplash type of injury anddecreased rotation of the neck. Appellant Cindia did not see him again until June 15, 2010 for neck pain and chest wall discomfort and was given pain medication and came in again in November of 2010 complaining of headaches. Dr. Lach testified that an August 2011 cervical MRI showed that appellant Cindia had a C4-C5 neck fusion, degenerative disc disease at multiple levels and an arthritic accumulation of calcium deposits over time.
{¶14} Dr. Lach was questioned about appellant Cindia's treatment prior to the accident. He testified that in August of 2003, she treated with both his office and a chiropractor for neck and head problems and that notes from April 13, 2006 indicated that she complained of recurrent neck pain and arm and shoulder pain. He testified that in October of 2008, he diagnosed appellant Cindia with right shoulder bursitis and that appellant Cindia had suffered an injury to her back in December of 2009 from a near fall.
{¶15} Dr. Lach also testified that post-traumatic osteoarthritis that was usually caused by outside forces or trauma could cause degenerative bone changes. He testified that the accident probably contributed to the headaches that appellant Cindia was complaining about on November 1, 2010. Dr. Lach testified that appellant Cindia saw him on July 12, 2011 and reported that she still had intermittent neck pain and discomfort and that she reported the same pain on November 15, 2011 that related to the accident in this case. He admitted that appellant Cindia had been coming to his practice for several years before the accident with complaints of neck pain and that the same type of chest wall discomfort that she complained about after the accident she had complained about a week before the accident.
{¶16} The videotaped...
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