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Koerper v. Szabo

Court of Appeals of Ohio, Tenth District

August 6, 2019

Jamie Koerper et al., Plaintiffs-Appellants,
v.
Norma Szabo, Defendant-Appellee.

          APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 17CV-6295)

         On brief:

          Donahey & Defossez, and Curtis M. Fifner, for appellants.

          Ritzler, Coughlin & Paglia, and Joseph G. Ritzler, for appellee.

         Argued:

          Curtis M. Fifner.

          Rachel E. Ladan.

          DECISION

          KLATT, P.J.

         {¶ 1} Plaintiffs-appellants, Jamie and Nathan Koerper, appeal from a judgment entered by the Franklin County Court of Common Pleas denying their motion for new trial pursuant to Civ.R. 59. Because the trial court properly denied appellants' motion for new trial, we affirm.

         {¶ 2} On July 14, 2017, appellants filed a complaint alleging negligence and loss of consortium against defendant-appellee, Norma Szabo, arising from a February 24, 2014 motor vehicle accident.[1] On that date, Jamie was driving a minivan and was struck from behind by a vehicle driven by appellee; Jamie suffered injuries as a result of the accident[2] At the November 2017 trial, appellee stipulated to breach of duty; accordingly, the only issues tried to the jury were proximate cause and damages.

         {¶ 3} Following trial, the jury found by a preponderance of the evidence that appellee's negligence was the proximate cause of Jamie's injuries. The jury awarded Jamie damages totaling $15, 000; $10, 000 for past economic damages and $5, 000 for past non-economic damages. The jury awarded $0 for future economic and non-economic damages and $0 for loss of consortium.

         {¶ 4} On December 20, 2017, appellants filed a motion for new trial pursuant to Civ.R. 59(A)(1), (4), (6) and (9). On August 30, 2018, the trial court filed a decision and entry denying appellants' motion.

         {¶ 5} Appellants have timely appealed from the trial court's denial of their motion for new trial and set forth the following four assignments of error for our review:

[1]. The Trial Court Abused its Discretion by Permitting the Jury to Hear Speculative Testimony from Dr. Kerner[.]
[2]. The Trial Court Abused its Discretion by Refusing to Give Appellants' Successive Tortfeasor Jury Instruction as an Injury that is Caused or Aggravated by a Subsequent Treating Medical Provider Relates Back to the Original Tortfeasor[.]
[3]. The Trial Court Erred by Refusing to Grant a New Trial Because the Jury's Verdict was Inadequate and the Judgment was Against the Manifest Weight of the Evidence[.]
[4]. The Trial Court Abused its Discretion as a New Trial should have been Granted due to Irregularity in the Proceedings by the Court, and Errors of Law that were Perpetuated Throughout Trial[.]

         {¶ 6} In their first assignment of error, appellants contend that the trial court erred in denying their motion for new trial pursuant to Civ.R. 59(A)(1) and (9). More particularly, appellants argue that the trial court erred in permitting appellants' expert medical witness to be cross-examined on alternative causes of Jamie's injuries.

         {¶ 7} Civ.R. 59(A)(1) permits a new trial on all or part of the issues if the moving party demonstrates "[i]rregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial." "In the context of a motion for a new trial, an 'irregularity' is 'a departure from the due, orderly and established mode of proceeding therein, where a party, with no fault on his part, has been deprived of some right or benefit otherwise available to him.'" Ellinger v. Ho, 10th Dist. No. 08AP-1079, 201o-Ohio-553, ¶ 63, quoting Meyer v. Srivastava, 141 Ohio App.3d 662, 667 (2001). Disposition of a motion for new trial on the ground set forth in Civ.R. 59(A)(1) is a decision committed to the sound discretion of the trial court, and a reviewing court will not reverse such a ruling absent an abuse of discretion. Id., citing Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-5587, ¶ 35. An abuse of discretion implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

         {¶ 8} In addition, Civ.R. 59(A)(9) permits a new trial based on an "[e]rror of law occurring at the trial and brought to the attention of the trial court by the party making the application." An appellate court's review of a motion pursuant to Civ.R. 59(A)(9) is de ...


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