CIVIL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS Case No. CVD2011 0390
Brown, Lippert & Laite, David A. Laite, for plaintiff-appellant
Dinsmore & Shohl, LLP, Susan D. Solle and Joan M. Verchot, for defendant-appellee, International Paper Company
Andrew J. Alatis, Assistant Attorney General, for defendant-appellee, Administrator Ohio Bureau of Workers' Compensation
M. POWELL, J.
(¶ 1} Plaintiff-appellant, Margaret Phipps, appeals from a jury verdict in favor of defendant-appellee, International Paper Company, entered in the Clinton County Court of Common Pleas on August 30, 2012, and the trial court's denial of her motions for directed verdict and judgment notwithstanding the verdict.
(¶ 2} On October 22, 1984, while in the course of her employment with International Paper, Phipps was injured when she slipped and fell on a sleeve (open-ended flat or tubular packaging insert). She has not worked since that day. Phipps' workers' compensation claim was allowed for 13 conditions involving her left foot, left humerus, left elbow, right distal radius, lumbosacral region, and both her knees. As a result of her injuries, Phipps underwent several surgeries over the years, including a total replacement of her left knee in 1997 and her right knee in 2010.
(¶ 3} In January 2011, Phipps applied to the Ohio Industrial Commission for allowance of an additional condition, Depressive Disorder NOS (Not Otherwise Specified) (Phipps was diagnosed with the condition in late 2010). The industrial commission denied Phipps' claim, finding no causal relation between the October 22, 1984 accident and the condition. Phipps appealed to the Clinton County Court of Common Pleas where the matter was tried to a jury.
(¶ 4} At trial, Phipps presented the expert testimony of Dr. Kevin Murphy, a psychologist; International Paper presented the expert testimony of Dr. Douglas Songer, a psychiatrist. Both experts testified during a deposition, a transcript of which was read into evidence at trial. Both experts agreed that Phipps suffered from Depressive Disorder NOS but disagreed as to whether Phipps' 1984 industrial accident was a proximate cause of her depression.
(¶ 5} At the close of International Paper's case, Phipps moved for a directed verdict which the trial court denied. On August 30, 2012, the jury returned a verdict in favor of International Paper, finding that Phipps was not entitled to participate in the workers' compensation fund for the additional condition of Depressive Disorder NOS. Phipps moved for a judgment notwithstanding the verdict.
(¶ 6} On October 31, 2012, the trial court denied Phipps' motion. The trial court found that reasonable minds could differ as to the issue of proximate cause of Phipps' Depressive Disorder NOS; International Paper's expert never testified that the industrial accident was a "but for" proximate cause of Phipps' Depressive Disorder NOS; and the jury was free to disagree with Phipps' expert regarding proximate cause.
(¶ 7} Phipps appeals, raising one assignment of error:
(¶ 8} THE TRIAL COURT ERRED BY DENYING PLAINTIFF'S MOTION FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT.
(¶ 9} Phipps argues the trial court erred in denying her motions for directed verdict and judgment notwithstanding the verdict. Specifically, Phipps asserts that because both experts testified the October 22, 1984 accident played a role in the development of her Depressive Disorder NOS, the doctrine of dual causation applies and the trial court should have granted either motion. Phipps also asserts that the testimony of Dr. Songer ...