Marzullo v. J.D. Pavement Maintenance
975 N.E.2d 1
Ohio Ct. App.2011Background
- In 2007 the Marzullos filed suit alleging seal-coating caused Ruthie’s fall on 10/24/2005.
- Jury trial in 2010 returned $300,000 in favor of Marzullos with specific allocations: $120,000 past, $180,000 future economic, $0 future non-economic, $0 loss of Frank’s consortium.
- Appellant challenges future economic damages and Marzullos challenge noneconomic damages and loss of consortium.
- Trial court allowed Dr. Burke (economist) to testify on future losses based on assumed disability; evidence at trial limited.
- The court remitted for a hearing on future economic damages, while addressing cross-appeals on non-economic damages and loss of consortium.
- Dr. Shapiro (psychologist) testified about ongoing psychological treatment; jury heard medical and lay testimony on permanency and future care.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of economist Burke’s testimony on future losses | Burke’s testimony rested on Ruthie’s assumed disability, not admissible facts. | Trial court has discretion to admit expert opinions; necessary for future damages. | Abuse of discretion; Burke testimony not based on competent medical facts. |
| Proper submission of future economic damages to the jury | Need expert foundation for future earnings and in-kind services; without Burke, unsupported. | Verdict form allowed future economic damages without specifying category. | Remanded for a hearing on future economic damages. |
| Disclosure and updating of expert reports (Dr. Shapiro) | Shapiro’s trial testimony exceeded his December 2009 report. | Court properly exercised discretion; updates were admissible. | Not an abuse of discretion; updates properly allowed. |
| Marzullos’ claims for future non-economic damages and loss of consortium | Expert and lay testimony supports future pain, suffering, and Frank’s consortium loss. | Evidence insufficient or conflicted; jury could reject some damages. | There was some competent evidence supporting non-economic damages; loss of consortium claim upheld. |
Key Cases Cited
- Jordan v. Elex, Inc., 82 Ohio App.3d.222 (1992) (expert testimony required for future damages when injury is subjective)
- Power v. Kirkpatrick, Franklin App. No. 99AP-1026 (2000) (proof of future impairment and extent of damages required)
- Day v. Gulley, 175 Ohio St. 83 (1963) (expert evidence required for future pain and permanency when injury is subjective)
- Powell v. Montgomery, 27 Ohio App.2d 112 (1971) (jury cannot guess future medical expenses; must be supported by data)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978) (manifest weight review requires some competent evidence supporting damages)
- Union v. Clevenger, Cuyahoga App. No. 54030 (1988) (physician testimony regarding permanency and future costs can support damages)