Sims v. Dibler

• Decision Date: 13 June 2007
• Docket Number: No. 05 JE 53.,05 JE 53.
• Citation: 172 Ohio App.3d 486,875 N.E.2d 965,2007 Ohio 3035
• Parties: SIMS, Appellant, v. DIBLER, Appellee.
• Court: Ohio Court of Appeals

875 N.E.2d 965

172 Ohio App.3d 486

2007-Ohio-3035

SIMS, Appellant, v. DIBLER, Appellee.

No. 05 JE 53.

Court of Appeals of Ohio, Seventh District, Jefferson County.

Decided June 13, 2007.

Jason A. Cuomo, for appellant.

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., Matthew P. Mullen, and Owen J. Rarric, Canton, for appellee.

WAITE, Judge.

{¶ 1} This appeal involves a jury verdict in favor of the defendant in a personal injury case. Appellant, Kevin Sims, was involved in an automobile accident with appellee, Tiffany Dibler, in 2002. Appellee admitted that she caused the automobile accident. Trial was held in the Jefferson County Court of Common Pleas on the issue of proximate cause of appellant's spinal injury and on damages. It was revealed at trial that appellant had reported no injuries at the scene and drove himself home after the accident. Appellant's treatment consisted of one emergency room visit and two visits to a doctor in the next six months. Appellant had an extensive prior history of back injuries, including back surgery and a related workers' compensation claim for permanent partial disability. Appellant argues on appeal that the workers' compensation claim should not have been introduced at trial, even though the workers' compensation claim goes to the heart of appellant's alleged injury. Appellant's own doctors testified about the prior workers' compensation claim and relied on the results of that claim to form their opinions. Appellant also argues that the trial judge should have sustained a motion for a new trial, but a review of the record clearly supports the jury verdict. Appellant's evidence at trial could not pinpoint when appellant's spinal disc had herniated, and there were indications of a bulging disc dating back to 1994. Appellee's counsel also established numerous credibility problems with appellant's testimony, and it was primarily his testimony that was used to prove proximate cause and damages. There is substantial evidence to support the jury verdict, and thus, the trial court was within its discretion to overrule the motion for a new trial. The judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant was rear-ended by appellee on August 5, 2002. The accident occurred when appellant was driving home from work. He slowed down near the scene of a previous accident, when appellee struck his car and pushed it into the car in front of him on the roadway. Appellant was traveling at approximately five m.p.h. at the time of the accident. Appellant did not tell the police at the scene of the accident that he was hurt. Appellant did not report any pain at the time of the accident. After he drove home, he testified that his back began to hurt, and he went to the hospital. He was given pain relievers and no other treatment. He rested during two scheduled days off from work and then returned to work. He testified that he saw Dr. Schreiber in late September, approximately eight weeks after the accident, and that Dr. Schreiber sent him to a chiropractor, Dr. MacPherson. Appellant underwent an MRI and was sent to a neurosurgeon, Dr. Baker, who recommended surgery. The surgery took place on January 7, 2004.

{¶ 3} Appellant filed his complaint on July 30, 2004. On September 20, 2005, appellant took a videotaped deposition of Dr. MacPherson. On September 22, 2005, appellant took a videotaped deposition of Dr. Baker. Both of these depositions were used at trial.

{¶ 4} On September 20, 2005, appellant filed a motion in limine attempting to preclude appellee from introducing any evidence of a prior workers' compensation claim or a prior social security claim. In the motion appellant concedes that "the fact that he was injured [in] the same area previously might be relevant." Appellant argued, though, that any reference to workers' compensation or social security would be irrelevant, particularly any reference to any conclusions relating to whether appellant was partially or totally disabled. Appellee responded to the motion on September 27, 2005, and the court overruled appellant's motion in limine on September 30, 2005.

{¶ 5} On September 27, 2005, appellant filed objections to certain items on appellee's proposed list of evidence to be introduced at trial. Appellant objected to the introduction of medical records that contained references to workers' compensation or social security claims. The trial court overruled these objections because they were filed late, although it did order that references to insurance be redacted from appellee's exhibits at trial.

{¶ 6} At trial it was revealed that appellant suffered a back injury at work in 1989, resulting in surgery in 1991 to remove the L5-S1 disc in his back (referring to the disc between the fifth lumbar vertebra and first sacral vertebra). Appellant was injured again at work in 1993. He had a chronic condition that entire period and suffered from back pain from 1989 until the time of the 2002 accident and beyond. Medical reports from 1995 and 1997 stated that appellant had back pain in L5-S1 and L4-L5 region (referring to the spinal discs between the fourth and fifth lumbar vertebrae, as well as between the fifth lumbar vertebra and first sacral vertebra). Reports also indicated that even five years after the first accident appellant could do little work or engage in recreational activity, that he could not sit for more than 20 minutes or stand more than five minutes, and that he had chronic pain. Dr. Baker testified that after eight years of treatment, appellant's chronic lower back symptoms never improved and that appellant continued to show classic symptoms of a bulging disc, including pain radiating down the leg.

{¶ 7} The deposition testimony of the two doctors revealed that a great deal of their final opinion about the cause of appellant's current condition was based on appellant's own descriptions of his pain and the onset of that pain. This was necessarily so because there was little other evidence available with which to evaluate appellant's condition prior to the 2002 accident. Although appellant had submitted to an MRI in 1994, no other similar diagnostic tests were done on appellant until after the 2002 accident.

{¶ 8} Appellee's counsel engaged in a very damaging cross-examination of appellant, in which numerous inconsistencies and omissions were revealed pertaining to his medical and employment history, thus calling into question his reports of his own pain over the years.

{¶ 9} The jury ruled in favor of appellee on October 5, 2005.

{¶ 10} On October 13, 2005, appellant filed a motion for judgment notwithstanding the verdict, and a motion for new trial. The court overruled the motions on October 24, 2005. This timely appeal followed.

{¶ 11} Appellant presents two assignments of error on appeal. Both assignments of error are directed at the trial court's decision to overrule appellant's motion for a new trial.

ASSIGNMENT OF ERROR NO. 1

{¶ 12} "The trial court committed reversible error of law in overruling appellant's objections and in permitting the introduction of various references to appellant's pre-wreck workers' compensation filings, workers' compensation disability rating and social security claim filings all of which related to a different injury at appellant's L5-S1 disc."

{¶ 13} Appellant argues that the trial court should have granted a new trial because certain evidence was erroneously admitted at trial. Appellant argues that the trial court should not have allowed appellee to introduce evidence related to his prior workers' compensation and social security claims because those claims were irrelevant to the injury that allegedly occurred in 2002. Appellant contends that Evid.R. 402 prohibits the introduction of irrelevant evidence, and Evid.R. 403(A) prohibits the introduction of evidence whose probative value is substantially outweighed by the danger of unfair prejudice or that would unduly confuse or mislead the jury. Appellant submits that the trial court error was directly responsible for the verdict in appellee's favor and that a new trial should have been granted.

{¶ 14} Although appellant claims that the trial court made a pure error of law, the error alleged involves the erroneous admission of evidence. Thus, we must first determine what evidence is in dispute. Appellant presents this court with no factual details concerning the alleged evidentiary error. He fails to specify the evidence that supposedly resulted in prejudice. Appellant also fails to explain how a single evidentiary error would warrant a new trial. By failing to point to specific instances in the record that demonstrate reversible error, appellant has defeated his first assignment of error. As it states in App.R. 16(A):

{¶ 15} "Brief of the appellant. The appellant shall include in its brief, under the headings and in the order indicated, all of the following:

{¶ 16} "* * *

{¶ 17} "(6) A statement of facts relevant to the assignments of error presented for review, with appropriate references to the record in accordance with division (D) of this rule.

{¶ 18} "(7) An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary."

{¶ 19} Appellant also fails to indicate this court's standard of review in this appeal. This appeal is based on the trial court's failure to grant a new trial, and a request for a new trial is governed by Civ.R. 59(A):

{¶ 20} "A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:

{¶ 21} "(1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an...