2022 Ohio 876
Ohio Ct. App.2022Background
- On Nov. 15, 2017 Jean MacMillan struck Nicky Poteet as Poteet walked on a sidewalk; MacMillan stipulated her negligence caused the injury.
- Poteet sustained an open comminuted distal tibia (pilon) fracture, distal fibula fracture, and patella fracture; she underwent immediate surgery and a second operation (open reduction and internal fixation) with permanent plate and screws.
- Poteet had short-term follow-up and was instructed to do home physical therapy; she missed a recommended six‑month follow-up and had no further treatment until unrelated care in June 2019.
- At trial the parties tried only damages; three doctors testified with conflicting views on permanence and deformity (treating surgeon Venkatarayappa, plaintiff’s expert Paley, defendant’s expert Feibel).
- The trial court (1) sua sponte directed a verdict that Poteet suffered a “permanent injury or loss,” (2) denied defendant’s directed verdict on whether Poteet had a “permanent and substantial physical deformity” (R.C. 2315.18 exception), and (3) excluded evidence of Poteet’s post‑accident incarceration and certain drug‑use records; a jury awarded $825,000 and found a permanent and substantial physical deformity.
- On appeal the Twelfth District: vacated the court’s directed verdict as to ‘‘permanent injury,’’ held the record did not support a finding of a permanent and substantial physical deformity (thus defendant was entitled to directed verdict on that issue), and found the trial court abused discretion by excluding incarceration evidence but did not err in excluding drug‑use evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could direct a verdict that Poteet suffered a "permanent injury or loss" | Poteet relied on treating and expert testimony that some conditions were permanent and she has ongoing pain. | MacMillan pointed to conflicting expert testimony and argued reasonable minds could differ, so directed verdict was improper. | Court vacated the directed verdict — conflict in expert testimony made directed verdict inappropriate. |
| Whether Poteet presented evidence of a "permanent and substantial physical deformity" to avoid R.C. 2315.18 cap | Poteet pointed to scars, malunion, plate/screws and expert testimony about permanence and future surgery to argue deformity exception applied. | MacMillan argued no evidence described present visible, substantial deformity; photos were of acute wounds, not healed appearance; internal hardware and malunion alone are not visible deformities. | Court held no competent evidence of a present visible/substantial deformity; defendant entitled to directed verdict on deformity exception (cap inapplicable). |
| Whether the trial court erred in refusing plaintiff’s proposed proximate‑cause instruction | Poteet relied on the trial court’s given instruction as adequate to guide damages causation. | MacMillan sought the standard OJI proximate‑cause definition and argued omission could mislead the jury. | Court found the instructions adequate (it used "proximately caused some injury" language) and overruled this claim. |
| Whether excluding evidence of Poteet’s post‑accident incarceration and homelessness was proper | Poteet moved in limine to exclude references as prejudicial/irrelevant to damages and credibility. | MacMillan argued incarceration was relevant to challenge Poteet’s claim she diligently performed home therapy and to explain treatment gaps. | Court held the opening statements/testimony "opened the door"; exclusion of incarceration/homelessness was an abuse of discretion — defendant may probe credibility on remand. |
| Whether excluding evidence of Poteet’s post‑accident substance use/overdose was proper | Poteet argued such evidence was unfairly prejudicial and not shown to be drug‑seeking behavior by doctors. | MacMillan argued substance use could explain ongoing complaints and treatment noncompliance. | Court found the record did not sufficiently develop drug‑seeking allegations and that probative value was substantially outweighed by prejudice; exclusion was not an abuse. |
Key Cases Cited
- Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 880 N.E.2d 420 (Ohio 2007) (Ohio Supreme Court requires ‘‘catastrophic’’ quality for exceptions to damages cap)
- Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 76 N.E.3d 1208 (Ohio 2016) (statutory exceptions to caps require "extreme qualifications")