2020 Ohio 4271
Ohio Ct. App.2020Background
- December 2015 collision between car driven by Devin Felderman‑Swearingen and plaintiffs Luigi and Tina Berardo; both sued for personal injuries.
- Jury awarded Luigi $23,677 ( $19,677 past medical; $4,000 past noneconomic); awarded Tina $9,853 (all past medical); both received $0 for future noneconomic damages.
- Plaintiffs moved for a new trial under Civ.R. 59(A)(4), (6), and (7), arguing the noneconomic awards (Luigi: low past and $0 future; Tina: $0 past) were inadequate, against the weight of the evidence, and contrary to law; trial court denied the motion.
- At trial: both parties’ experts agreed accident caused at least some injuries; Luigi had a rotator‑cuff tear requiring surgery and some prior shoulder/back history; Tina had cervical and lumbosacral sprain/strain with significant preexisting degenerative changes but treating physician testified her pain was causally related and she responded to treatment.
- Defense counsel suggested specific dollar ranges for pain‑and‑suffering awards during closing; plaintiffs argued those suggestions amounted to concession that pain was undisputed.
- Appellate court affirmed denial of new trial as to Luigi but reversed in part and remanded for a new trial on Tina’s past noneconomic damages, concluding her pain was uncontroverted and a $0 noneconomic award was against the manifest weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel’s suggested award amounts in closing were judicial admissions dispensing with proof of pain | Defense: defense’s closing suggested numbers conceded pain was undisputed and should guide verdict | Defense: closing argument is not evidence and comments did not intentionally waive proof | Held: Not admissions — closing argument is not evidence and remarks were not distinct, unequivocal judicial admissions |
| Whether damages were inadequate due to passion or prejudice under Civ.R.59(A)(4) | Berardos: awards (especially Tina’s $0) were inadequate and influenced by improper passion/prejudice | Felderman‑Swearingen: no record evidence of passion or prejudice; verdict within jury province | Held: Denied — plaintiffs pointed to no record evidence of passion or prejudice |
| Whether Luigi’s noneconomic awards were against the manifest weight of the evidence under Civ.R.59(A)(6) | Berardos: $4,000 past and $0 future noneconomic damages were inadequate given his surgery and testimony of disability | Defense: evidence showed recovery, prior shoulder/back problems, and experts could not say future pain was likely | Held: Denied — sufficient credible evidence supported jury’s verdict for Luigi |
| Whether Tina’s $0 past noneconomic award was against the manifest weight of the evidence under Civ.R.59(A)(6) (and whether judgment was contrary to law under Civ.R.59(A)(7)) | Berardos: treating physician’s testimony that Tina suffered pain causally related to the accident was uncontroverted, so awarding only medical expenses and $0 pain is against manifest weight | Defense: emphasized significant preexisting degenerative changes and that symptoms were temporary and resolved | Held: New trial required — because Tina’s pain was uncontroverted, $0 noneconomic award was against the manifest weight of the evidence; judgment not otherwise contrary to law |
Key Cases Cited
- Harrod v. USAA Ins. Co., 140 N.E.3d 184 (2019) (closing argument is not evidence)
- Scatamacchio v. W. Res. Healthcare, 829 N.E.2d 1247 (2005) (counsel statements may be judicial admissions in limited circumstances)
- Hake v. George Wiedemann Brewing Co., 262 N.E.2d 703 (Ohio 1970) (legal discussion of admissions by counsel)
- Holeski v. Lawrence, 621 N.E.2d 802 (1993) (statements by counsel are not judicial admissions absent intent to waive proof)
- Rohde v. Farmer, 262 N.E.2d 685 (1970) (standard for new trial on manifest weight grounds)
- Uhlir v. State Farm Ins. Co., 841 N.E.2d 344 (2005) (discussing split whether medical bills without noneconomic award is automatically against manifest weight)
- Farkas v. Detar, 711 N.E.2d 703 (1998) (if evidence of pain is uncontroverted, awarding only medical expenses is against the manifest weight of the evidence)