Bruce v. Junghun

Tyack, Judge. ¶ 1 This is a personal-injury case arising out of a two car collision at the intersection of Hayden Run Road and State Route 33, a.k.a. Riverside Drive, in Franklin County, Ohio. On July 19, 2005, plaintiff-appellee, Linda S. Bruce, was traveling north on Riverside Drive when her vehicle collided with defendant-appellant Kim Junghun’s vehicle traveling east on Hayden Run Road. Junghun was cited for failure to yield, as he had a flashing red light in his direction and Bruce had a flashing yellow light in hers. Bruce was seen at the emergency room and reported having right shoulder and back pain. Bruce followed up with her family doctor, who referred her to a board-certified orthopedic shoulder and elbow specialist, Joseph Mileti, M.D. ¶ 2 Dr. Mileti examined Bruce, who reported persistent pain in the front and side of her shoulder. Bruce was limited in the amount she could move her shoulder because of pain. Mileti ordered an MRI (magnetic resonance imaging) test, which was performed on September 6, 2005. According to Mileti, the MRI *345 showed a tendonopathy: a degenerative condition of the tendon in which the tendons are not absolutely normal in nature. It can be quite common and is usually asymptomatic, but it can be aggravated with an acute injury to the area. ¶ 3 Mileti diagnosed Bruce with rotator-cuff tendonopathy and prescribed a course of anti-inflammatory medication and physical therapy. Bruce continued with physical therapy, and at the time of her last visit to Mileti in July 2006, she was still experiencing some pain. Based on Bruce’s history of no shoulder pain prior to the accident and the development of pain after the accident, Mileti opined that, to a reasonable degree of medical certainty, the cause of the inflammation was the car accident. ¶ 4 The issue of liability was disposed of by means of a motion for partial summary judgment, and the case proceeded to trial with proximate cause and damages being the only issues for the jury. Junghun failed to appear for trial and did not participate in this appeal. His insurer, Allstate Indemnity Company, defended the case and initiated this appeal. These facts form the basis for Bruce’s motion to dismiss this appeal. ¶ 5 Prior to trial, Bruce identified her expert as Mileti. Mileti testified by means of a video deposition. Out of the hearing of the jury, Bruce objected to a portion of the cross-examination of Mileti, and the trial court sustained the objection striking a portion of the testimony. The trial court also allowed Bruce, a retired nurse, to testify as to her understanding of the nature of her injury. Counsel for Junghun objected to Bruce’s testimony, contending that she was testifying as a medical expert when she was never identified as such. The trial court overruled the objection. These objections form the basis for this appeal. ¶ 6 The jury returned a unanimous verdict for Bruce, awarding her $56,125.92 in damages. ¶ 7 On appeal, Junghun raises three assignments of error: I. The trial court erred in excluding Dr. Mileti’s testimony regarding the possible causation of Plaintiffs injuries. II. The trial court erred in permitting Plaintiff to testify as a medical expert on her own behalf. III. The trial court erred in permitting the verdict to stand as the verdict was against the manifest weight of the evidence. ¶ 8 Additionally, Bruce has filed a motion to dismiss this appeal. Bruce filed a motion to dismiss this appeal for the reason that Junghun did not appear at trial and could not be located by his counsel after trial and, therefore, could not have consented to the appeal filed in this action. Bruce argues that a nonparty, Allstate Indemnity Company (“Allstate”), directed that this appeal be taken, and that Allstate lacks standing as a party to pursue the appeal. Bruce claims that *346 Allstate must make a showing that Junghun elected not to appeal before the right-to-appeal provision in the policy is triggered. According to Bruce, the right-to-appeal provision in the policy does not become effective under circumstances such as these where the insured expresses no intent regarding appeal. ¶ 9 Allstate counters that it is required to defend any action against Junghun that is within the coverage of the policy. In addition, Allstate states that there is no limit to the duty to defend and that the duty extends to the appellate process. ¶ 10 Under the “General Statement of Coverage” provision, the contract of insurance provides: We will defend an insured person sued as a result of a covered accident involving an insured auto. We will choose the counsel. We may settle any claim or suit if we believe it is proper. ¶ 11 Under the section entitled “Our Right to Appeal,” the policy states: If an insured person or any other insurer elects not to appeal a judgment, we may do so. We will pay the reasonable costs and interest incidental to the appeal. ¶ 12 In Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 2007-Ohio-4917, 875 N.E.2d 31, at ¶ 7, the Supreme Court of Ohio reiterated a number of contract principles applicable to insurance policies. When confronted with an issue of contractual interpretation, the role of a court is to give effect to the intent of the parties to the agreement. Id. Courts examine the insurance contract as a whole and presume that the intent of the parties is reflected in the language used in the policy. Id. Courts look to the plain and ordinary meaning of the language used in the policy unless another meaning is clearly apparent from the contents of the policy. Id. When the language of a written contract is clear, a court may look no further than the writing itself to find the intent of the parties. Id. ¶ 13 Bearing these principles in mind, we must examine the policy language at issue. ¶ 14 The language of the policy requires Allstate to defend the insured person. The duty to defend has been held to be an integral and valuable part of the contract. It is a valuable right of the insurer to be able to control the defense of actions in which the insurer may be required to pay the judgment. Liberty Mut. Ins. Co. v. Allstate Ins. Co. (Apr. 25, 1984), 9th Dist. No. 11275, 1984 WL 6131. The duty to defend does not automatically cease when the trial court enters judgment. See Great Am. Ins. Co. v. Hartford Ins. Co. (Dec. 28, 1990), 11th Dist. No. 89-L-14-177, 1990 WL 222993. The intent of the policy language is two-fold. It requires Allstate to defend, and it gives Allstate the right to pursue an appeal if it believes it is warranted. We do not read the *347 contract as saying that Allstate must pursue an appeal if the insured wishes to do so. (It retains the right to settle.) Nor does the policy preclude an appeal if the insured has not explicitly elected not to appeal. Junghun’s absence from the proceedings can be construed as an implied or constructive rejection of the right to appeal. Under that scenario, Allstate has reserved to itself the right to appeal a judgment. The motion to dismiss is denied. ¶ 15 We turn to the merits of the appeal. ¶ 16 In his first assignment of error, Junghun argues that the trial court committed reversible error in excluding the following testimony of Mileti: Q. Okay. Would it be fair, Dr. Mileti, to say that you cannot rule out the Plaintiffs age and level of activity as a reason for this aggravation of her right shoulder because of this degeneration that she had prior to the accident? A. I certainly can’t rule it out, but I can — the aggravation — there is two separate conditions. There is the chronic degenerative portion which you’re talking about, which, yeah, you’re right, it is a chronic condition. The accident did not cause her tendonopathy, but certainly cause' — well, I say certainly. I believe it caused the inflammation and the irritation and aggravation of that condition. Q. Okay. Would you expect frequent use of a right shoulder tendonopathy to have equal or similar symptoms to the ones that the Plaintiff was complaining about? A. If that frequent use would have caused an irritation of the shoulder, certainly it could, yes. ¶ 17 In sustaining the objection, the trial court stated: “If you’re going to ask the doctor for an opinion, you have to phrase it appropriate [sic] with an opinion on cross-examination.” ¶ 18 Junghun argues that his inquiry was permissible on cross-examination to cast doubt on Mileti’s credibility as it points to the possibility that the doctor may not have considered the frequency of Bruce’s use of the injured shoulder. Junghun also states that excluding the testimony was highly prejudicial as it completely undercut the defense theory of alternative causation. Although case law supports appellant’s position that cross-examination may use “possibility” evidence to “chip away” the plaintiffs case, Conti v. Topolosky (June 17, 1975), 10th Dist. No. 74AP-515, 1975 WL 181450, the appellant made clear in his brief that was not the purpose for which he intended to use the evidence. ¶ 19 The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Robb (2000), 88 Ohio St.3d 59, 68, 723 N.E.2d 1019. Absent an abuse of discretion and material prejudice to appellant, *348 an appellate court will not disturb a trial court’s ruling as to the admissibility of evidence, including expert scientific evidence. Gen. Elec. Co. v. Joiner (1997), 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508; State v. Martin (1985), 19 Ohio St.3d 122, 129, 19 OBR 330, 483 N.E.2d 1157. An abuse of discretion connotes more than an error of law or judgment; it implies that the court’s attitude was unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144. ¶ 20 The standard for the admissibility of expert testimony as it relates to proximate cause was set forth in Stinson v. England (1994), 69 Ohio St.3d 451, 633 N.E.2d 532, paragraph one of the syllabus: The admissibility of expert testimony that an event is the proximate cause is contingent upon the expression of an opinion by the expert with respect to the causative event in terms of probability. An event is probable if there is a greater than fifty percent likelihood that it produced the occurrence at issue. Inasmuch as the expression of probability is a condition precedent to the admissibility of expert opinion regarding causation, it relates to the competence of the evidence and not its weight. Consequently, expert opinion regarding a causative event, including alternative causes, must be expressed in terms of probability irrespective of whether the proponent of the evidence bears the burden of persuasion with respect to the issue. (Citations omitted.) ¶ 21 Taking the defense theory at face value, there was no abuse of discretion in striking the testimony because the defense was attempting to use the plaintiffs expert to express an opinion on an alternative-cause theory. Under Stinson, the opinion had to be expressed in terms of probability. Here, defense counsel phrased his question in terms of whether Bruce’s age and activity level could be ruled out as the cause of the aggravation. The follow-up question and response were problematic as well because they presumed the frequent use to have caused an irritation of the shoulder. This called for speculation on the part of Mileti. ¶ 22 Junghun also points to the doctor’s earlier testimony in which he agreed to express all of his opinions on the basis of a reasonable degree of medical probability. Despite the earlier testimony, the question as phrased by the defense was asking Mileti to give an opinion based on possibility, not probability, and could not be used as an expert opinion to support an alternative-causation theory. There was evidence in the record that Bruce was physically active before the accident and that prior to the accident, she had had no trauma, no injury, no problems, and no symptoms with her shoulder or any of her joints. Therefore, although the possibility that the doctor may have overlooked a potential cause of Bruce’s injury was a permissible line of questioning for cross-examination, the *349 probative value of such testimony is sharply outweighed by the speculative nature of the testimony. The prejudicial effect of potentially misleading the jury outweighed any potential probative value. See Evid.R. 403(A). ¶ 23 In McWreath v. Ross, 179 Ohio App.3d 227, 2008-Ohio-5855, 901 N.E.2d 289, the plaintiff experienced neck pain after a 2005 automobile accident. He had been in two prior automobile accidents in 1990 and 1992. The case went to trial with liability established, and the remaining issues of proximate cause and damages were tried to a jury. In a videotaped deposition, the plaintiffs neck surgeon testified that the automobile accident was the proximate cause of the plaintiffs herniated disc that he surgically repaired. The surgeon had also removed two adjoining discs that had degenerated due to the “wear and tear of life.” The surgeon testified that the whiplash injury from plaintiffs automobile accident aggravated the preexisting processes in the neck. ¶ 24 On cross-examination, the defense asked if it were possible that the herniated disc was in the plaintiffs neck before the accident. Over objection, the surgeon testified that it was possible. In its case-in-chief, the defense presented no expert medical testimony. ¶ 25 The jury returned a zero verdict, and the trial court granted a new trial. The court of appeals stated: Once a prima facie case has been demonstrated, and adverse party may attempt to negate its effect in various ways. She may cross-examine the expert of the other party; she may adduce testimony from another expert that contradicts the testimony of the expert for her adversary; further, she may adduce expert testimony that sets forth an alternative explanation for the circumstances at issue. Id. at ¶ 79. ¶ 26 The defense did not present any medical evidence to contradict the plaintiffs expert, but relied upon cross-examination of the surgeon attempting to show that the plaintiffs disc herniation was caused by a preexisting degenerative condition of the disc and not by the accident. However, the only testimony the defense was able to elicit was that herniation of discs could occur due to degeneration as well as trauma and that it was possible that the disc herniation was the result of degeneration. ¶ 27 The court of appeals found that by asking whether the herniation could have been preexisting in terms of possibility instead of probability, the cross-examination failed to reveal any contradictions, repudiations, or inconsistencies in the surgeon’s opinion that the herniated disc was caused by the accident. Moreover, the testimony did not even meet the standard of admissibility required for expert testimony setting forth an alternative explanation. Id. at ¶ 84. *350 {¶ 28} In this case, the defense sought to introduce evidence of an alternative causation for Bruce’s shoulder injury by cross-examining Bruce’s expert. The passage that was stricken did not meet the standard of admissibility for expert opinion. In order for the doctor to answer the question whether frequent use of a right shoulder tendonopathy could cause symptoms similar to those Bruce experienced, the doctor had to presume the frequent use caused an irritation to the shoulder. This begs the question of what caused the irritation or aggravation, and would likely lead to jury confusion. ¶ 29 Having found no abuse of discretion, the first assignment of error is overruled. ¶ 30 In the second assignment of error, appellant’s counsel argues that the trial court committed reversible error in allowing Bruce to testify as a medical expert. Bruce was never identified as an expert or qualified as such. She was not asked for her diagnosis of herself or her medical opinion on direct examination. She did relate what she discussed with Mileti and, based on that discussion, she provided her understanding of what was wrong with her shoulder. Bruce related that she had “classic impingement syndrome,” and over objection was allowed to explain to the jury some of the physiology of the shoulder and her understanding of what impingement was. ¶ 31 Bruce did not testify as a medical expert, but rather as a lay witness providing an opinion. A retired nurse, Bruce’s opinion was based upon her own experiences, observations, discussions with her treating physician, and the reports of her medical tests. The testimony was in accord with Evid.R. 701, which states, “If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” ¶ 32 Therefore, the second assignment of error is overruled. ¶ 33 In his third assignment of error, Junghun claims that the jury verdict was excessive and not supported by the manifest weight of the evidence. ¶ 34 A judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578. A reviewing court must not substitute its judgment for that of the trial court where there exists some competent, credible evidence supporting the judgment rendered by the trial court. Myers v. Garson (1993), 66 Ohio St.3d 610, 614 N.E.2d 742. *351 {¶ 35} Here, the jury heard evidence of Bruce’s medical expenses, the pain she experienced at the time of the accident and thereafter, and the limitations she had to put on her formerly active lifestyle because her range of motion is now limited by pain. There existed competent, credible evidence to support the jury award. The third assignment of error is overruled. ¶ 36 Based on the foregoing, we deny the motion to dismiss, and overrule appellant’s three assignments of error. The judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. Brown, J., concurs separately. McGrath, J., dissents.