Long v. HardingLong v. Harding
Subashi, Wildermuth & Justice, Nicholas E. Subashi and Lauren K. Epperley, for appellee.
M. POWELL, J.
{¶ 1} Appellants, Jeffrey Long (“Jeffrey“) and his wife Karen Long (“Karen“), appeal a decision of the Butler County Court of Common Pleas in a personal-injury action for refusing to excuse a prospective juror for cause, denying the Longs’ motion to exclude the testimony of an expert witness, and splitting costs between Karen and appellee, Michael Harding (“Harding“).
{¶ 2} This case arose from an automobile accident that occurred on March 10,
{¶ 3} On March 8, 2018, Jeffrey filed a personal-injury complaint against Harding, alleging negligence and seeking damages for the injuries he sustained as a result of the car accident. Subsequently, Karen asserted a loss-of-consortium claim against Harding in an amended complaint. Prior to trial, Harding admitted negligence; therefore, the only issues at trial were proximate cause and damages. Jeffrey sought damages for past and future medical expenses, past and future pain and suffering, and past and future loss of ability to perform usual activities. Karen sought damages for loss of Jeffrey‘s services. In all, the Longs sought damages of $607,830.52.
{¶ 4} On October 12, 2020, the matter proceeded to a six-day jury trial. During voir dire, the Longs challenged four prospective jurors for cause, including Juror 929. The trial court denied these challenges for cause; the Longs used their three peremptory challenges to remove three prospective jurors, but not Juror 929. Harding used his three peremptory challenges to remove three other prospective jurors. At trial, Jeffrey, Karen, and one expert witness testified on behalf of the Longs. Harding and two expert witnesses testified on behalf of Harding.
{¶ 5} Jeffrey is a master goldsmith, designs jewelry and repairs jewelry, watches, and clocks, and owns his own business. His job requires that he perform a great deal of benchwork, in addition to the administrative tasks involved in conducting a business. Jeffrey testified that he immediately experienced back pain after the accident and that upon exiting his Cadillac, he fell down as he was putting on his jacket. Jeffrey obtained a loaner vehicle
{¶ 6} The Longs presented the testimony of Dr. Marc Orlando, a physiatrist. Dr. Orlando testified that Jeffrey‘s symptoms persisted and grew worse with time. He noted that Jeffrey was experiencing back pain and numbness travelling down his legs consistent with a pinched nerve. A September 2016 MRI revealed that Jeffrey suffered from a disc herniation at L5-S1, resulting in significant nerve root impingement. Dr. Orlando opined that the disc herniation was the result of the March 10, 2016 car accident with Harding. Jeffrey was initially treated with physical therapy and epidural injections but eventually underwent a laminectomy and discectomy. Nevertheless, his symptoms returned within six weeks after the surgery. A new MRI revealed “significant disc space collapse with a foraminal disc and a disc bulge.” Jeffrey testified that his only option is to have a second surgery to install a spinal cord stimulator, remove a disc, and fuse his spine. Jeffrey testified that as a result of the car accident, he did not do bench work at the jewelry store for two weeks, can no longer sit at the workbench for extended time periods, fatigues easily, and can no longer engage in his daily activities. He further testified he can no longer help with household chores such as shopping, house cleaning, cooking, and doing dishes. Karen testified that she has to perform these tasks alone.
{¶ 7} Harding presented contrary evidence. Specifically, Jeffrey neither mentioned to his medical providers that he fell down after exiting his Cadillac after the accident nor testified that he did so in his discovery deposition. The ER doctor‘s report reflects that it was a relatively minor mechanism of injury, that Jeffrey ambulated without difficulty, and that Jeffrey‘s complaints were so minor that no x-rays or similar diagnostic tests were ordered.
{¶ 8} Harding presented the testimony of Dr. Steven S. Wunder, a licensed, board-certified medical doctor specializing in Physical Medicine and Rehabilitation and injury/medical causation for over 40 years. Dr. Wunder testified that: (1) Jeffrey had sustained a soft tissue neck and back strain as a result of the March 10, 2016 car accident; (2) Jeffrey‘s nine physical therapy visits post-accident were an appropriate treatment; (3) Jeffrey‘s back surgery was not causally related to the car accident because the mechanism of the accident had not been shown to cause the injury or aggravate an underlying degenerative disc disease; (4) given the lack of any initial symptoms of sciatica, the car accident was not the cause of the traumatic disc herniation; and (5) the disc herniation could not be causally linked to the car accident given the one-to-two-month delayed onset of symptoms.
{¶ 9} Harding also presented the testimony of Douglas Morr, a biomechanical engineer. Morr testified that despite Jeffrey‘s claim that the car accident involved “significant contact,” the sideswipe contact involved minimal overlap and no “shifting components” in either vehicle. Explaining his calculation of the motion (kinematics) and forces (kinetics) Jeffrey experienced in the accident, Morr opined that the motion experienced by Jeffrey would not have been outside the normal range of motion that he would encounter in daily activities, such as getting in and out of a chair. Morr further opined that the forces Jeffrey experienced in the accident would not have been outside the normal range of forces that Jeffrey would experience in walking down stairs, jogging, or walking briskly. Morr testified that the forces were not enough to cause a significant injury such as
{¶ 10} On October 19, 2020, the jury returned a unanimous verdict of $7,296.02 in favor of Jeffrey upon his negligence claim, consisting of $5,296.02 for past medical expenses and $2,000 for past pain and suffering. The jury awarded no damages for Jeffrey‘s future medical expenses, future pain and suffering, and past and future loss of ability to perform usual activities. The jury returned a unanimous verdict in favor of Harding upon Karen‘s loss-of-consortium claim. Following the verdict, the trial court issued a final judgment entry granting judgment in favor of Jeffrey upon his negligence claim and granting judgment in favor of Harding upon Karen‘s loss-of-consortium claim. The trial court ordered costs to be split between Karen and Harding.
{¶ 11} The Longs now appeal, raising three assignments of error.
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS BY DENYING THE MOTION TO STRIKE JUROR 929.
{¶ 14} The Longs argue that the trial court erred in failing to excuse Juror 929 for cause because that juror “expressed an unmistakable bias against those seeking compensation after having been injured.” In particular, the Longs cite that juror‘s expressed belief that personal-injury plaintiffs “take advantage of the situation to get as much as they can” and “push it as far as to get the most they can,” and that if plaintiffs are “making it up, and you award them money, then yes, I would have a problem * * * giving them money.”
{¶ 15}
any petit juror may be challenged on suspicion of prejudice against or partiality for either party, or for want of a competent knowledge of the English language, or other cause that may render the juror at the time an unsuitable juror. The validity of the challenge shall be determined by the court and be sustained if the court has any doubt as to the juror‘s being entirely unbiased.
{¶ 16}
{¶ 17} At the beginning of voir dire, the trial court questioned the prospective jurors regarding bias, impartiality, and fairness as follows: (1) regarding preconceived incorrect ideas as to what the law is or ought to be, “If you have such ideas and thoughts, can each of you commit to setting them aside?” (2) “Is there anyone that has any concern that they would not be able to lay aside any bias, prejudice, or sympathies that they would have, because none of that will be able to have an impact on your deliberations, and that‘s, in fact, prohibited?” (3) “Is there anyone that feels that they would not be able to base their
{¶ 18} During voir dire, counsel for the Longs questioned prospective jurors about people “making claims up” and trying to either exaggerate injuries or “make it look like it‘s more than what it is.” Beginning with that portion of voir dire, the Longs’ attorney continually used the term “bias” or the phrase “little bit of bias” until the trial court eventually directed him to cease using the term as the court had not yet instructed the jury on bias. The following exchange took place between the Longs’ attorney and Juror 929:
JUROR 929: I do have a feeling people look at car accidents as a way to get money, or getting hurt by someone else causing it. But I don‘t want to just say a car accident, that‘s not fair. If somebody else caused your injury in some way, I feel like sometimes they look at it and say, I can plan something and see if I can get money from the person or from their insurance or somehow.
[COUNSEL]: Okay. So what you‘re telling me is in a personal injury realm in general, not just car accidents, but including car accidents. When somebody‘s hurt as a result of the wreck or something like that, you believe that oftentimes people will try to take advantage of the situation to get as much as they can?
JUROR 929: Yes.
[COUNSEL]: Is that what you‘re saying?
JUROR 929: Yes.
[COUNSEL]: Okay. And that you believe that they push it further than they should?
JUROR 929: I think they push it as far as to get the most they can.
[COUNSEL]: Okay. All right. And does that feeling that you have, is that similar to Juror No. 586, this feeling that maybe it
creates a little bit of bias in you about this process — not the process, but the personal injury claims? JUROR 929: I would say yes.
[COUNSEL]: Okay. So when you‘re sitting down and you‘re thinking about this claim, or any claim. Let‘s just forget that you‘re here about this case, any case, you‘re going to have just that little bit of bias in your head about this personal injury claim may be one of those where somebody is pushing more than they should?
JUROR 929: Yes.
[COUNSEL]: Okay. And you might try to put it aside, just like over here, but it‘s still going to be there, and you‘re still going to have that little bit of bias; is that right?
JUROR 929: Yes.
{¶ 19} Counsel for the Longs subsequently asked the prospective jurors whether anyone “ha[d] a real problem with somebody who says you just got to look at the facts, or a case-by-case analysis, and set aside the bias thinking we just went through?” No juror responded to the question.
{¶ 20} Counsel for the Longs then asked whether anyone was “uncomfortable awarding money damages to somebody in a lawsuit where there‘s personal injury? [A]nyone uncomfortable, even a little bit of discomfort, saying a certain person should get money as a result of having an injury?” Juror 929 replied,
JUROR 929: “I mean, if you feel like they‘re making it up, and you award them money, then yes, I would have a problem * * * giving them money.”
[COUNSEL]: Okay. That goes back to the bias situation. If somebody is pushing something they shouldn‘t, they‘re making it up, or they‘re fraudulent claims, then of course they shouldn‘t get money.
JUROR 929: Correct.
{¶ 21} Harding‘s counsel also questioned prospective jurors regarding bias,
{¶ 22} Viewing the totality of the voir dire proceedings and considering the deference to which the trial judge is entitled in seating a jury, we find that the trial court did not abuse its discretion when it refused to excuse Juror 929 for cause.
{¶ 23} Notwithstanding the continual use of the term “bias” by the Longs’ attorney when questioning Juror 929, that juror‘s answers do not indicate that she could not be a fair and impartial juror, or that she would not follow the law as given by the trial court. Rather, Juror 929 simply expressed her feeling that personal-injury plaintiffs sometimes make up claims or exaggerate their injuries in order to get as much money as they can. Juror 929 also expressed skepticism or reticence toward awarding money damages for such fraudulent claims. While Juror 929 expressed skepticism regarding potential fraudulent claims and resulting damage awards, she never stated she could not be impartial in the case at bar. Her answers were an implicit recognition that a plaintiff bears the burden of proof and disclosed her intent to scrutinize evidence rather than blindly accept it.
{¶ 24} Furthermore, Juror 929 actively participated during voir dire, raising her hand multiple times during questioning by the Longs’ attorney. By contrast, the record indicates that she did not respond to the trial court‘s questions regarding bias, impartiality, and fairness quoted above or Harding‘s counsel‘s questions regarding the same. Likewise, the
{¶ 25} The trial court was in the best position to observe the demeanor of Juror 929 and evaluate firsthand the sincerity of her responses to questions. Berk, 53 Ohio St.3d at 169. As long as a trial court is satisfied that the juror can be fair and impartial and follow the law as instructed, the court need not remove that juror for cause. See Giusti v. Felten, 9th Dist. Summit Nos. 26611 and 26695, 2014-Ohio-3115; Gurley, 2004-Ohio-5169.
{¶ 26} In support of their argument that the trial court abused its discretion in failing to excuse Juror 929 for cause, the Longs cite Klem v. Consol. Rail Corp., 191 Ohio App.3d 690, 2010-Ohio-3330 (6th Dist.). In that case, the appellant argued that the trial court erred when it failed to excuse two jurors for cause during voir dire. These jurors were asked whether they could follow the Federal Employers Liability Act, which had abolished the assumption of the risk. The transcript of the voir dire proceedings revealed that the two jurors “had difficulty setting aside the concept of assumption of the risk.” Id. at ¶ 105. One juror questioned the validity of the law specifically appliable to the case and acknowledged it would be “difficult” to accept the trial judge‘s instructions on that score, in his words, “[p]otentially” making it harder for the plaintiff to prove his case. Id. at ¶ 106-118. The other juror admitted having that same issue and stated that his disagreement with the law “would make it far more difficult” for plaintiff‘s counsel to prevail. Id. at ¶ 120-127. Unlike the jurors in Klem, Juror 929 at no time expressed an unwillingness to follow applicable law. Klem is therefore inapplicable.
{¶ 27} The Longs also assert “it is entirely likely that Juror 929‘s sentiments had an impact on the jury‘s decision * * * to award [Jeffrey] a nominal recovery for past pain and
{¶ 28} The Longs’ first assignment of error is overruled.
{¶ 29} Assignment of Error No. 2:
{¶ 30} THE TRIAL COURT ERRED BY DENYING THE MOTION TO EXCLUDE THE TESTIMONY OF STEVEN S. WUNDER, M.D.
{¶ 31} The Longs argue that the trial court erred in allowing Dr. Wunder to testify as a defense expert because they were not provided with the materials he relied upon in forming his opinion and which they had sought via discovery and subpoena.
{¶ 32} Harding identified Dr. Wunder as an expert witness he would present at trial. In 2019, Dr. Wunder reviewed Jeffrey‘s medical records, conducted an independent medical examination, and prepared an initial 11-page report containing his findings and opinion followed by a 2-page supplemental report. Dr. Wunder concluded that Jeffrey sustained a neck and back sprain in the March 10, 2016 car accident, that Jeffrey had pre-existing and longstanding degenerative disc disease, and that Jeffrey‘s disc herniation and subsequent surgery could not be causally linked to the accident. Included in the reports were references to materials such as the NEXUS criteria, the Braford-Hill criteria, and the AMA Guides Newsletter. Both reports were provided to the Longs.
{¶ 34} On February 28, 2020, dissatisfied with Dr. Wunder‘s response to their subpoena and Harding‘s failure to produce the materials relied upon by Dr. Wunder, the Longs moved to exclude the testimony of Dr. Wunder as a defense expert. The Longs asserted that Dr. Wunder‘s “failure to produce the materials he referenced and relied upon in forming his opinions, in violation of the Civil Rules and the subpoena served upon him in advance of his trial deposition” mandated the exclusion of his testimony. The Longs’ motion was denied by a magistrate on September 21, 2020. The Longs filed objections to the magistrate‘s decision, arguing that Dr. Wunder was required to produce the basis of his opinion as an expert witness under
{¶ 35} It is well established that a trial court has broad discretion over discovery matters. See Mezatasta v. Ent. Hill Farm, 6th Dist. Erie No. E-15-037, 2016-Ohio-3371. “The discovery rules give the trial court great latitude in crafting sanctions to fit discovery abuses. A reviewing court‘s responsibility is merely to review these rulings for an abuse of discretion.” Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159. “Although the decision to impose discovery sanctions is a matter within the sound discretion of the trial court, ‘the exclusion of reliable and probative evidence is a severe sanction and should be invoked only when clearly necessary to enforce willful noncompliance or to prevent unfair surprise.‘” Grady v. Charles Kalinsky, D.D.S., Inc., 165 Ohio App.3d 306, 2005-Ohio-5550, ¶ 14 (8th Dist.), quoting Nickey v. Brown, 7 Ohio App.3d 32, 34 (9th Dist.1982).
{¶ 36}
{¶ 37} As stated above, the Longs subpoenaed Dr. Wunder to produce all articles, texts, and other reference materials he had consulted and relied upon in forming his opinion.
{¶ 38} The Longs also filed a request for production of documents upon Harding seeking the same materials set forth in the subpoena.
{¶ 39} We find that the trial court did not abuse its discretion when it denied the Longs’ motion to exclude Dr. Wunder‘s testimony as a sanction for discovery violation. Other than filing their motion to exclude Dr. Wunder‘s testimony, the Longs made no attempts to informally resolve the dispute regarding production of the materials and made no efforts to enforce their discovery rights. Specifically, the Longs did not request or conduct a discovery deposition of Dr. Wunder to inquire about the materials he relied upon
{¶ 40} The Longs argue that Dr. Wunder never objected to the subpoena nor moved to quash it on the basis of undue burden under
{¶ 41} The Longs cite several cases in support of their argument that the trial court erred in failing to exclude Dr. Wunder‘s testimony. However, those cases all involved situations where the expert witness expressed or sought to express new or different opinions at trial than were disclosed prior to trial. See Cox v. MetroHealth Med. Ctr. Bd. of Trustees, 8th Dist. Cuyahoga No. 96848, 2012-Ohio-2383; Weimer v. Anzevino, 122 Ohio App.3d 720 (7th Dist.1997); Jackson v. Booth Memorial Hosp., 47 Ohio App.3d 176 (8th Dist.1988); Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367 (1986); Walker v. Holland, 117 Ohio App.3d 775 (2d Dist.1997); Waste Mgt. of Ohio, Inc. v. Mid-America Tire, Inc., 113 Ohio App.3d 529 (2d Dist.1996); Amerifirst Savings Bank of Xenia v. Krug, 136 Ohio App.3d 468 (2d Dist.1999); O‘Connor v. Cleveland Clinic Found., 161 Ohio App.3d 43, 2005-Ohio-2328 (8th Dist.); and Bradford v. Callaghan, 8th Dist. Cuyahoga No. 56310, 1989 Ohio App. LEXIS 4979 (Nov. 30, 1989). That is not the case here. Dr. Wunder‘s opinion expressed at trial was identical to the opinion expressed in his reports which were timely disclosed to the Longs. The cases above are therefore not applicable here.
{¶ 42} In support of their argument that the trial court erred in failing to exclude Dr. Wunder‘s testimony, the Longs also cite an opinion from this court, Marcus v. Rusk Heating & Cooling, Inc., 12th Dist. Clermont No. CA2012-03-026, 2013-Ohio-528. In that case, we held that the trial court did not abuse its discretion in excluding an expert‘s opinion because the study he relied upon was not provided to the trial court. Marcus did not involve a discovery violation. Rather, it involved whether the expert‘s opinion was scientifically reliable under
{¶ 43} The Longs do not identify how they were prejudiced by Dr. Wunder‘s testimony. The record does not reflect and the Longs do not argue how they would have more effectively cross-examined Dr. Wunder if the materials had been provided to them. We note that two of the sources relied upon by Dr. Wunder, the NEXUS criteria for cervical spine imaging and the Canadian criteria for head CT imaging, are both specifically referenced in the ER doctor‘s report on March 10, 2016, the day of the accident.
{¶ 44} The Longs’ second assignment of error is overruled.
{¶ 45} Assignment of Error No. 3:
{¶ 46} THE TRIAL COURT ERRED BY SPLITTING COSTS BETWEEN PLAINTIFF KAREN LONG AND DEFENDANT MICHAEL HARDING.
{¶ 47} The Longs argue that the trial court abused its discretion by splitting the costs between Karen and Harding. The Longs assert that because Karen‘s loss-of-consortium claim is derivative of Jeffrey‘s personal-injury claim, the trial court‘s order improperly “requires him, the prevailing party, to recover half the costs from his own wife.”
{¶ 48}
{¶ 49} “A prevailing party is the party ‘who successfully prosecutes the action or successfully defends against it * * * The one in whose favor the decision or verdict is rendered and judgment is entered.‘” Gauthier v. Gauthier, 12th. Dist. Warren Nos. CA2018-09-098 and CA2018-09-099, 2019-Ohio-4208, ¶ 64, quoting Wigglesworth v. St. Joseph Riverside Hosp., 143 Ohio App.3d 143, 150 (11th Dist.2001). Although “a loss of
{¶ 50} As the jury returned a verdict in favor of Harding upon Karen‘s loss-of-consortium claim, she was not the prevailing party on her separate and independent claim. The trial court, therefore, did not abuse its discretion in ordering that costs be split between Karen and Harding.
{¶ 51} The Longs’ third assignment of error is overruled.
{¶ 52} Judgment affirmed.
PIPER, P.J., and BYRNE, J., concur.