Wightman v. Consolidated Rail Corp.

• Decision Date: 15 September 1999
• Docket Number: No. 97-2342.,97-2342.
• Citation: 86 Ohio St.3d 431,715 NE 2d 546
• Parties: WIGHTMAN ET AL., APPELLANTS AND CROSS-APPELLEES, v. CONSOLIDATED RAIL CORPORATION, APPELLEE AND CROSS-APPELLANT.
• Court: Ohio Supreme Court

86 Ohio St.3d 431

715 NE 2d 546

WIGHTMAN ET AL., APPELLANTS AND CROSS-APPELLEES, v. CONSOLIDATED RAIL CORPORATION, APPELLEE AND CROSS-APPELLANT.

No. 97-2342.

Supreme Court of Ohio.

Submitted November 10, 1998.

Decided September 15, 1999.

Murray & Murray Co., L.P.A., Thomas J. Murray and Mary O'Neill, for appellant and cross-appellee Darlene M. Wightman.

Cavitch, Familo, Durkin & Frutkin, Harvey L. Frutkin and Kerin Lyn Kaminski, for appellant and cross-appellee Michelle Wightman Charitable Foundation.

Ralph G. Wellington, pro hac vice, Nancy Winkleman, pro hac vice, and Arlin M. Adams, pro hac vice; Vogelgesang, Howes, Lindamood & Brunn, Philip E. Howes and Thomas R. Himmelspach, for appellee and cross-appellant Consolidated Rail Corporation.

David E. Neumeister, pro hac vice, James K. Horstman, Richard Hodyl and Lloyd E. Williams, Jr., urging reversal on cross-appeal for amici curiae, National Association of Independent Insurers and Alliance of American Insurers.

Stanton G. Darling II, urging reversal on cross-appeal for amici curiae, Product Liability Advisory Counsel and National Association of Manufacturers.

Buckingham, Doolittle & Burroughs, L.L.P., and Scott A. Richardson, urging reversal on cross-appeal for amicus curiae, Ohio Association of Civil Trial Attorneys. Allen Schulman & Assocs. Co., L.P.A., and Allen Schulman, Jr.; Clark, Perdue, Roberts & Scott Co., L.P.A., and Paul O. Scott, urging reversal on appeal for amicus curiae, Ohio Academy of Trial Lawyers.

Squire, Sanders & Dempsey and Charles F. Clarke, urging reversal on cross-appeal for amicus curiae, Association of American Railroads.

PFEIFER, J.

We affirm the lower court decisions on the evidentiary matters in this case. We find that the punitive damages award with remittitur is not excessive and is constitutional. We reverse the lower court on the issue of appealability of a remittitur and adopt the "Wisconsin rule" on that issue. We find that the trial court did not abuse its discretion in ordering a remittitur. Finally, we reverse the lower court on the issue of relief from post-judgment interest on a punitive damages award.

Evidentiary Issues

We find that the trial court acted within its discretion in granting the motions in limine that plaintiffs sought. Despite its claims to the contrary, Conrail was not precluded from mounting a defense.

The purpose of the latest incarnation of this case was to determine how much Conrail should pay in punitive damages. Liability and actual malice on the part of Conrail had already been determined at an earlier trial. This court held in Schellhouse v. Norfolk & W. Ry. Co. (1991), 61 Ohio St.3d 520, 524-525, 575 N.E.2d 453, 456, that "[a]cts committed with actual malice constitute behavior qualitatively different from that which may be characterized as merely negligent" and, therefore, contributory negligence is not available as a defense where conduct in conscious disregard has been established. Thus, since contributory negligence was not a part of this case, the trial court properly prevented the introduction of evidence that Michelle Wightman had consumed a small amount of alcohol prior to the collision, and that the alcohol may have been provided to her by her mother. The testimony of Dr. Herbert Moskowitz was based on the effects Michelle Wightman's youth and drinking might have had on the accident, and was also properly excluded.

Conrail also sought to have introduced to the jury certain findings from the first trial, including the compensatory damages paid to the estate and the trial judge's decision to award no punitive damages. We find that the trial court properly granted plaintiffs' motions in limine on those issues. The amount of compensatory damages awarded in the first trial to the estate is irrelevant to the punitive damages claim of Mrs. Wightman. Finally, the fact that the first trial judge abused his discretion and failed to award punitive damages is also irrelevant to the later punitive damages trial. Conrail also contends that the trial court erred in admitting certain testimony of plaintiffs expert, Dr. William Berg. Conrail objects to Dr. Berg's statement that, based on the statistics he has maintained for over twenty years, there are "in the order of 1,000 vehicle train collisions that were of magnitude that occurred at crossings that didn't have automatic warning devices, including gates per year." Dr. Berg also testified that "a large number of these collisions are occurring in situations that are substantially similar. And when I say substantially similar, what I'm saying is where you have got a loss of credibility because the signals are operative for an extended period of time and when you've got the obstructions."

Conrail argues that Dr. Berg's testimony failed to meet the requirements of Evid.R. 703 and 705. Evid.R. 703 provides as follows:

"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing."

Evid.R. 705 states:

"The expert may testify in terms of opinion or inference and give his reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise."

Conrail asserts that Dr. Berg's testimony violated Evid.R. 703 because he had no personal knowledge of the statistics he cited, and the statistics had not been introduced into evidence. With respect to Evid.R. 705, Conrail asserts that Dr. Berg did not identify the person or organization that maintains those statistics and did not disclose where the statistics are published.

The decision of whether or not to admit evidence rests in the sound discretion of the court and will not be disturbed absent an abuse of that discretion. Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d 296, 299, 587 N.E.2d 290, 292.

We find that the trial court did not err in allowing Dr. Berg's testimony. There are certain things that an expert, by reason of his expertise, knows. Conrail does not claim that Dr. Berg did not qualify as an expert under Evid.R. 702. When providing background information, and not opining as to causation, we cannot expect an expert to footnote every statement with a recitation of his direct observation of the phenomenon, or a bibliography explaining how he knows his statement to be true.

Dr. Berg was merely testifying as to facts in his area of expertise. A distinction can be made between background information and an opinion about causation. A doctor testifying in a medical malpractice case regarding a failed heart surgery, for instance, need not set forth the underlying facts regarding his knowledge of the basic makeup of the thoracic cavity. He does, however, have to set forth the facts underlying his opinion as to what caused the procedure to fail.

Dr. Berg was setting forth background information so that the jury could draw its own conclusion. When testifying as to broad patterns rather than specific opinions, the same level of foundation is not required.

Dr. Berg was open to aggressive cross-examination if Conrail thought his statistics were skewed or inaccurate. He was also open to rebuttal from Conrail witnesses. The trial court acted within its discretion in allowing the testimony of Dr. Berg.

We therefore affirm the court of appeals on all of the evidentiary issues.

Excessiveness of Punitive Damages Award

Conrail argues that the punitive damages award of $15,000,000 was grossly excessive and violated both Ohio law and the Due Process Clause of the United States Constitution. Conrail bases much of its argument regarding Ohio law on the ratio between the compensatory damage award and the punitive damages award. Mrs. Wightman's property loss was $2,400, and upon that loss was based the $15,000,000 punitive damages award, an amount 6,250 times greater than the compensatory award.

In its brief, Conrail provides a survey of Ohio cases from October 1, 1986 to "the beginning of 1997" in which punitive damages were awarded, concluding that the greatest disparity between punitive and compensatory damages was 600 to 1. (Conrail conveniently ends its survey in "the beginning of 1997" before the award of a $6,000,00 punitive damages award on a $100 property damage claim, a 60,000 to 1 ratio, in Garrett v. Consolidated Rail Corp. [1997], 120 Ohio App.3d 378, 697 N.E.2d 1109, discretionary appeals not allowed in 80 Ohio St.3d 1444, 686 N.E.2d 273.) Conrail thus seems to indicate that if Michelle Wightman had been driving a car worth $25,000, a 600 to 1 ratio, the punitive damages award in this case would have been acceptable. Conrail's attempted use of ratios exemplifies why the determination of punitive damages is not a mathematical process.

This court has stated that simply a large disparity between actual and punitive damages is not enough to set aside a jury's punitive damages award:

"Low compensatory damages and high punitive damages assessed by a jury are not in and of themselves cause to reverse the judgment or to grant a remittitur, since it is the function of the jury to assess the damages and, generally, it is not for the trial or appellate court to substitute its judgment for that of the trier of fact. A large disparity, standing alone, is insufficient to justify a court's interference with the province of the jury." Villella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36, 40, 543 N.E.2d 464, 469. A large disparity is allowable because a punitive damages award is more about a defendant's behavior than the plaintiff's loss. "The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct." Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 651, 635 N.E.2d 331, 343. The value of the car Michelle Wightman was driving has little to do with how a jury might effectively and fairly punish and deter Conrail's conduct regarding the operation of its...