Rigo v. Liberty Mut. Group, Inc.Rigo v. Liberty Mut. Group, Inc.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 30, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-909749
Appearances:
Paulozzi Co. LPA, Todd O. Rosenberg, John Burnett, and Joseph G. Paulozzi, for appellant Joseph Rigo.
Curtin Law, LLC and Cynthia K. Curtin, for appellee Home Depot U.S.A., Inc.
MARY EILEEN KILBANE, J.:
{¶ 1} Plaintiff-appellant Joseph Rigo (“Rigo“) appeals from the jury verdict in his case against defendant-appellee Home Depot U.S.A., Inc. (“Home Depot“). For the reasons that follow, we affirm.
{¶ 2} The underlying proceedings in this case came about following three separate motor vehicle incidents that took place in 2015, 2017, and 2018, respectively. The 2015 accident occurred when Jack Kowalewski (“Kowalewski“) rear-ended Rigo; the 2017 accident occurred when Damian O‘Malley (“O‘Malley“) rear-ended Rigo; and the 2018 accident involved a trailer in the parking lot of a Home Depot store on Brookpark Road in Cleveland, Ohio that Rigo alleges was improperly attached to his vehicle, resulting in the trailer detaching from his vehicle and slamming into the back of his vehicle before he left the Home Depot parking lot. On January 17, 2019, as a result of alleged injuries sustained from these incidents, Rigo and his wife, Lindsay Robertson (“Robertson“) filed a complaint against Liberty Mutual Group, Inc., Geico Insurance Co., The Home Depot, The Home Depot, Inc., two unknown Home Depot employees, Brian O‘Malley, and Kowalewski. The complaint erroneously named Brian O‘Malley rather than Damian O‘Malley as a defendant. Rigo and Robertson raised claims of negligence and loss of consortium.1
{¶ 3} On September 11, 2020, Rigo filed a motion for leave to file his first amended complaint. The trial court granted this motion, and Rigo filed his
{¶ 4} On April 12, 2022, the case proceeded to a jury trial related to the first and third accidents. Rigo called numerous witnesses: Dr. Richard Boehme (“Boehme“), a neurologist; Amy Kutschbach, a vocational rehabilitation counselor; Dr. Ammar Chaudhry, a neuroradiologist; Leceeon Custard, the operations assistant store manager at the Home Depot store where the third accident occurred; Thomas Morris, head of the tool rental department at the Home Depot store; Henry Lipian, a forensic crash reconstructionist; Maryanne Cline, a life care planner; and Dr. John Burke, an economist. Rigo, Robertson, and Rigo‘s 13-year-old son also testified on behalf of Rigo. Rigo also introduced numerous exhibits, primarily consisting of medical records. Rigo‘s theory of the case was that he sustained a concussion, or a mild traumatic brain injury, in the first accident with Kowalewski, that this concussion resulted in post-concussion syndrome, and that this was aggravated or exacerbated by the subsequent accidents. Following testimony from these 11 individuals, Rigo rested his case in chief.
{¶ 5} Kowalewski testified in his defense. Finally, Home Depot called two witnesses: Dr. Gaurang Shah (“Shah“), a neuroradiologist; and Dr. Thomas Swales, a psychologist. Home Depot also introduced the videotaped deposition of Dr. Timothy Herron (“Herron“), a neurologist. Home Depot‘s theory of the case was that Rigo was malingering or exaggerating his symptoms.
{¶ 7} On May 24, 2022, Rigo filed a motion for a new trial. On May 25, 2022, before the trial court ruled on Rigo‘s motion, Rigo filed a notice of appeal.
{¶ 8} On June 8, 2022, Home Depot filed a motion to stay the appeal. On June 9, 2022, this court granted Home Depot‘s motion to stay the appeal and remanded the case to the trial court to rule on Rigo‘s motion for a new trial. On June 27, 2022, Home Depot filed a brief in opposition to Rigo‘s motion for a new trial. On July 12, 2022, the trial court denied Rigo‘s motion for a new trial.
{¶ 9} In a corresponding opinion, the trial court found:
All of [Rigo‘s] claims rested heavily, if not entirely, upon his credibility. Dr. Boehme, for example, repeatedly stressed that [Rigo] was the source of all information he relied upon. Whether it was by direct interview or by review of the medical records, [Rigo] was the source of all information.
[Rigo] claimed a concussion during the first accident. He claimed that he was unconscious from the accident. Kowalewski testified that [Rigo] got out of his car immediately after the accident and was never unconscious. The medical records revealed that Plaintiff did not initially claim he suffered a loss of consciousness. Instead, the claim began as some unknown person told him he had been unconscious. He told Dr. Boehme, [Rigo‘s] expert witness, that he did suffer a loss of consciousness. Dr. Boehme relied upon this statement. No one other than [Rigo] testified that they witnessed [Rigo] suffer a loss of consciousness.
[Rigo] claimed to have hit his head on the rearview mirror in the first accident. Photographic evidence showed that the mirror was facing the rear of the vehicle and in a horizontal position.
[Rigo] claimed to suffer from light sensitivity but never wore dark glasses during trial. [Rigo] claimed to suffer from debilitating headaches and had to sit for hours just holding his head in his hands, yet sat for two weeks at trial never showing any sign of a headache. [Rigo] claimed to be afraid of needles, but it was revealed he previously had numerous facial piercings. [Rigo] claimed a selective memory loss that allowed him to remember pertinent details of Accident No. 3, such as who attached the trailer, but could not remember other details. This is not an exhaustive list of the credibility issues highlighted by Defendants in their case.
The trial court went on to discuss Dr. Boehme‘s credibility, the objective test results introduced as evidence, and both the accident with Kowalewski and the Home Depot accident in detail.
{¶ 10} The case was returned to this court, and both parties submitted appellate briefs. On November 1, 2022, Rigo filed a motion to supplement the record to include the trial court‘s July 12, 2022 journal entry and opinion denying his motion for a new trial. On November 9, 2022, this court granted that motion. On November 21, 2022, the record was supplemented. At no point did Rigo file an amended notice of appeal from the trial court‘s July 12, 2022 journal entry denying his motion for a new trial.
{¶ 11} This appeal follows.
Legal Analysis
{¶ 12} As an initial matter, we note that Rigo‘s opening brief in this appeal failed to comply with
I. Was the jury verdict in the third accident (Home Depot) on May 21, 2018 of no negligence and no damages against the manifest weight of the evidence?
II. Did the trial court err in denying Plaintiff‘s Motion for New Trial?
Under the appellant rules, appellate courts have the discretion to disregard arguments where an appellant has failed to comply with
I. Jury Verdict
{¶ 13} Rigo‘s first argument is that the jury verdict finding no negligence on the part of Home Depot and, thus, awarding no damages, was against the manifest weight of the evidence. Specifically, Rigo argues that the jury lost its way in rendering a verdict in favor of Home Depot when “judicial admissions” by Home
{¶ 14} The Ohio Constitution provides that “[n]o judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by the concurrence of all three judges hearing the cause.”
{¶ 15} Rigo‘s primary argument that the jury lost its way is that Home Depot, through its counsel, made judicial admissions that Home Depot caused Rigo injury. In support of this argument, Rigo refers to testimony from Herron, the defense neurologist, that it was his opinion that Rigo sustained several injuries as a result of
And then the next one would be - if you find against Home Depot, or any of the defendants, a total award for the damages for the plaintiff, I had suggested $50,000, I know it‘s a different number than [Kowalewski‘s counsel] suggested, that encompasses all three accidents. It‘s just a recommendation.
And then certainly if you have to go on the next one, where you have to apportion, I would suggest zero to 10 percent as my portion of damages.
Rigo asserts that these “judicial admissions” support his argument that the jury lost its way.
{¶ 16} Our review of the record reveals that Rigo mischaracterizes these claimed “judicial admissions.” “A judicial admission is a ‘formal statement, made by a party or a party‘s counsel in a judicial proceeding, that act[s] as a substitute for legal evidence at trial.‘” Berger v. Berger, 11th Dist. Geauga No. 2017-G-0108, 2017-Ohio-9329, ¶ 67, quoting Haney v. Law, 1st Dist. Hamilton No. C070313, 2008-Ohio-1843, ¶ 7. Neither of the examples cited by Rigo constitute judicial admissions.
{¶ 17} With respect to Herron‘s testimony, Herron went on to testify that Rigo had each of the three injuries Herron mentioned prior to the Home Depot accident. Even ignoring all of the other evidence presented at trial and the credibility issues inherent in much of that evidence, this statement alone does not amount to an admission of causation as Rigo claims. An opinion that Rigo had injuries after the Home Depot incident, together with an opinion that Rigo had those injuries
{¶ 18} With respect to counsel‘s statements, the excerpt Rigo points to was made specifically in the context of advising the jury on the jury interrogatories. In the broader context of Home Depot‘s closing statement, it is clear that those statements do not constitute a judicial admission. Counsel for Home Depot explicitly stated that the evidence presented did not show any negligence on the part of Home Depot. Further, the statements referring to damages and apportionment were very clearly conditional and related to issues the jury would determine only if it first found that Home Depot was negligent and that this negligence proximately caused Rigo injury.
{¶ 19} Because neither of these statements constitute judicial admissions related to causation — or any other aspect of Rigo‘s case against Home Depot — we cannot conclude that the jury somehow lost its way in relation to these statements.
{¶ 20} Further, nothing else in the record indicates that the jury somehow lost its way in rendering a verdict in favor of Home Depot and awarding no damages. While Rigo called numerous expert witnesses and introduced extensive evidence in the form of medical records, the record is clear that Rigo‘s case was based primarily on his own statements. While there was some independent documentation of Rigo‘s injuries, the large majority of the evidence — including statements from Rigo‘s experts and Rigo‘s medical records — was based on Rigo‘s own statements to his medical providers and other expert witnesses. The record reveals repeated
II. Motion for a New Trial
{¶ 21} Rigo also argues that the trial court erred and abused its discretion when it denied Rigo‘s motion for a new trial. We disagree.
{¶ 22} As an initial matter, we note that
{¶ 23} Because of the requirement in
{¶ 24} While Rigo clearly failed to comply with
{¶ 25} The standard of review we apply to a trial court‘s ruling on a
{¶ 26} In ruling on a motion for a new trial on the basis of manifest weight, the trial court
must weigh the evidence and pass upon the credibility of the witnesses, not in the substantially unlimited sense that such weight and credibility are passed on originally by the jury but in the more restricted sense of whether it appears to the trial court that manifest injustice has been done and that the verdict is against the manifest weight of the evidence.
Eastley, 132 Ohio St.3d at 336, quoting Rohde v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraph three of the syllabus.
{¶ 27} Here, the trial court reviewed the testimony and other evidence, evaluated witness credibility, and ultimately found with respect to the Home Depot accident that
[a] reasonable jury could have concluded that [Rigo] actually attached the trailer, or that [Rigo] failed to prove that Home Depot attached the trailer. As the only witness to Accident number 3 was [Rigo], a reasonable jury could even question whether the accident ever actually happened.
A reasonable jury could have concluded that the accident was not significant enough to proximately cause any quantifiable damage to [Rigo.] [Rigo] failed to meet his burden of persuasion on the issues of negligence and probable cause.
{¶ 28} Nothing in our review of the record, including the trial court‘s well-reasoned and thorough opinion denying Rigo‘s motion for a new trial, indicates that the trial court‘s denial of Rigo‘s motion was unreasonable, arbitrary, or unconscionable. Therefore, even if we had jurisdiction to review Rigo‘s challenge of the trial court‘s denial of his motion for a new trial, we could not conclude that the trial court abused its discretion in denying Rigo‘s motion for a new trial pursuant to
{¶ 29} Judgment affirmed.
It is ordered that appellee recover from appellant 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.
MARY EILEEN KILBANE, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR