RONALD E. CONSTANT, ET AL. v. LUIS A. TORRES
No. 97543
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 28, 2012
[Cite as Constant v. Torres, 2012-Ohio-2926.]
BEFORE: S. Gallagher, J., Blackmon, A.J., and Jones, J.
JOURNAL ENTRY AND OPINION
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-735052
RELEASED AND JOURNALIZED: June 28, 2012
Earl F. Ghaster
Kubyn & Ghaster
8373 Mentor Avenue
Mentor, OH 44060
ATTORNEYS FOR APPELLEE
Deborah W. Yue
Holly Olarczuk-Smith
Gallagher Sharp
Sixth Floor - Bulkley Building
1501 Euclid Avenue
Cleveland, OH 44115
{¶1} Appellants Ronald Constant (“Constant“), Danielle Hilson, Renard Constant, and Roberta Drew (collectively “appellants“) appeal the trial court‘s decision to admit a certain photograph during the jury trial of a motor-vehicle accident case they filed against appellee Luis Torres, and to deny appellants’ post-dispositive motion for a new trial or judgment notwithstanding the verdict. For the following reasons, we affirm the decisions of the trial court.
{¶2} In the early morning hours of January 1, 2010, appellants were driving together in Constant‘s car and were rear-ended by Torres while stopped at the intersection of Archwood and Fulton Avenues in Cleveland, Ohio. Constant was driving his girlfriend, Hilson, his brother Renard Constant, and another friend, Drew, home from a New Year‘s Eve party. Later in the afternoon of the same day, appellants went to the Fairview Hospital emergency room for treatment. On January 7, 2010, upon advice from counsel, appellants sought further treatment at Cleveland Therapy Center. Constant and Hilson were treated there until February 3, Drew until February 5, and Renard Constant until February 6, 2010. Dr. Theodore Mabini testified that the treatments appellants received were reasonable and necessary and the injuries resulted from the January 1 car accident. The injuries complained of were primarily soft-tissue type back and neck injuries.
{¶4} On May 21, 2010, Constant filed a claim for the personal injuries and property damage against his own insurance policy. After determining that Torres had insurance coverage, the claim was transferred to Torres‘s insurance company, Alfa Insurance Company (“Alfa“). Alfa prematurely drafted a check for the $1,073.19 amount referenced in the Domestic quote. Alfa immediately notified Constant of the error and of the intent to stop payment of the check. Alfa requested additional documentation for the repairs that were already completed. At trial, a representative for another body shop, PJ Auto Body, testified to completing the repairs to Constant‘s car. PJ Auto Body used a plastic bumper repair kit to refinish the bumper cover and charged Constant $230 for the work performed. Constant disputes paying PJ Auto Body the $230 in cash and maintains that he paid Domestic the full amount of the quote, in cash, despite Domestic‘s lack of records concerning the transaction.
{¶5} Torres claimed the accident occurred as a result of coasting into Constant‘s car at no more than 5 m.p.h. Torres claimed Constant started to pull into the intersection
{¶6} At trial, Torres introduced two pictures of Constant‘s Taurus that depicted a minor defect in the bumper cover near the license plate in the center of the bumper. Appellants objected to the introduction of the photographs on the basis that Torres failed to authenticate the picture and additionally that the picture depicted Constant‘s car after it was repaired.
{¶7} The jury returned a defense verdict on the medical claims and awarded Constant $230 for the property damage. Appellants filed an unsuccessful motion for a new trial or judgment notwithstanding the verdict. Thereafter, appellants timely appealed and raised three assignments of error in which appellants advanced two claims: the trial court erred by admitting Torres‘s photographs depicting Constant‘s car because the pictures were unauthenticated and were improperly used to establish that appellants’ injuries could not have occurred in light of the minor impact; and the trial court erred by denying appellants’ post-dispositive motion for a new trial or judgment notwithstanding the verdict. We note that although appellants included the issue of the motion for a
{¶8} In appellants’ first and second assignments of error, they argue the trial court impermissibly admitted the photographs of Constant‘s car introduced by Torres in “the attempt to depict minimal damage * * * without expert testimony to establish that there was any correlation between [the] alleged minimal vehicle damage and the injuries claimed by appellants.” Appellants’ argument is misplaced.
{¶9} Generally, the admission of evidence lies within the broad discretion of the trial court. Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 239, 2005-Ohio-4787, 834 N.E.2d 323. A reviewing court will uphold an evidentiary decision absent an abuse of discretion that has affected the substantial rights of the adverse party or is inconsistent with substantial justice. Id. “Abuse of discretion connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.” Landis v. Grange Mut. Ins. Co., 82 Ohio St.3d 339, 342, 1998-Ohio-387, 695 N.E.2d 1140, citing Pembaur v. Leis, 1 Ohio St.3d 89, 91, 127, 437 N.E.2d 1199 (1982).
{¶10} Appellants’ claim for damages included one for property damage to Constant‘s car. This made the existence and extent of damage to the car an issue to be resolved at trial. Constant argued that more than $1,000 in damage to his car was caused as a result of Torres‘s negligence. Torres disagreed and claimed that the bumper of Constant‘s car received a minor scratch. The purpose of Torres‘s photographs of
{¶11} Appellants also argue that Torres failed to authenticate the photographs prior to their introduction. Appellants maintain that Torres was unable to authenticate the photographs because he did not know the photographer or when the photographs were taken.
{¶12} “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
{¶13} At trial, prior to the introduction of the disputed photographs, Torres testified that the pictures of the rear bumper of Constant‘s car fairly and accurately
{¶14} Our resolution of the first assignment of error necessarily disposes of appellants’ second assignment of error, which challenges the trial court‘s decision to deny their motion for a new trial based on the presumption that the trial court erroneously admitted the disputed photographs. The photographs were relevant, authenticated, and properly admitted for the purposes of the trial. Appellants’ first and second assignments of error are overruled.
{¶15} Finally, appellants’ third assignment of error challenges the trial court‘s decision to deny their motion for a new trial. In that motion, appellants claimed they presented uncontested trial testimony regarding the nature and proximate cause of each of appellants’ injuries and expenses. In light of that, appellants argue that the jury‘s verdict was not sustained by the manifest weight of the evidence.
{¶17} Appellants’ sole argument is that their medical expert, Dr. Mabini, was the only medical expert to testify at trial, and therefore, the jury‘s failure to award the cost of medical treatment to appellants evinced the need for a new trial, especially in light of the uncontested liability. Appellants claim that Torres‘s cross-examination of Dr. Mabini, appellants’ expert, failed to present any contradictions or evidence of preexisting conditions. According to appellants, Dr. Mabini insisted that all of appellants’ injuries resulted from the accident with Torres. We find no merit to this argument.
{¶18} This court has consistently maintained that “‘the jury is not required to give any additional weight to the opinion of an expert, if any weight at all. * * * Expert
{¶19} In DeCapua, the plaintiff sought twice as much compensation for past medical bills as she received from a jury‘s verdict. In upholding the trial court‘s decision to deny a motion for a new trial, this court found relevant the fact that the plaintiff‘s subjective complaints of pain made to the expert were open to credibility determinations made at trial. The jury could disbelieve the level and severity of pain the plaintiff disclosed to the expert. Id. at ¶ 28. Accordingly, the jury was free to discount the expert testimony establishing the reasonableness and necessity of treatment. See id.
{¶20} In the current case, of the appellants’ trial testimony, only Constant‘s was included in the record for our review. Appellants have the duty to file the transcript or such parts of the transcript that are necessary for evaluating the trial court‘s decision. See
{¶21} Upon our review of Constant‘s trial testimony, the jury was free to reject Constant‘s subjective complaints of pain expressed to the treating doctor based on his credibility issues at trial. Appellants’ expert was not aware of Constant‘s preexisting lower back problems at the time of treatment for his lower back soft-tissue injuries resulting from the January 1 accident. Constant‘s recollection of past car accidents varied throughout his pretrial deposition, direct examination, and cross-examination as it related to these preexisting conditions. During treatment and initially at trial, Constant claimed his lower back pain first manifested after the car accident with Torres. Constant, at his pretrial deposition, only admitted to two prior car accidents and claimed no prior injury to his lower back. Torres used this testimony at trial to impeach Constant. In all, Constant admitted to being involved in seven car accidents during his cross-examination, three of which involved injury to his lower back. During his direct examination, Constant could only recall one prior car accident. Further, Constant was less than forthcoming with his 11 prior worker‘s compensation claims, four of which involved injury to his lower back. He could only remember one such injury during his direct examination, which, according to Constant, occurred in 1989 or 1993. In assessing the probative value of the expert testimony, the jury was free to evaluate Constant‘s credibility to determine whether Constant‘s disclosure to the treating physician of the level, severity, and source of his lower back problems were accurate.
{¶23} The decision of the trial court is affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR