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Neal v. Johnson2/19/2004
. Jacqueline Neal appeals from a judgment entered by Visiting Judge Norman A. Fuerst and his subsequent denial of her motion for a new trial after a jury verdict awarded zero damages on her personal injury claims. She contends the appellee, Kayla Johnson, unfairly argued that she faked her injuries and incurred unnecessary medical costs, and that the jury awarded no damages because of the unfair tactics. We reverse and remand.
. In December of 2000, fifty-year-old Ms. Neal was driving her 1986 Dodge Caravan eastbound on South Woodland Avenue when she stopped for a red light at the Van Aken Boulevard intersection. Ms. Johnson, also driving eastbound on South Woodland, caused the Ford Explorer she was driving to collide with the rear of the Neal vehicle. Complaining of neck and low back pain at the scene, Ms. Neal was transported by an EMS ambulance to a hospital emergency room, where x-rays were taken and she was treated and released. She received no further medical care for those complaints until March of 2001, when she began chiropractic treatment.
. Ms. Neal then sued Ms. Johnson and, because liability was stipulated, the only issues for the jury were causation and damages. She testified on her own behalf, introduced her ambulance and emergency room records and bills, and introduced bills for the cost of chiropractic treatment from March 20, 2001, until June 30, 2001. She presented the testimony of Dr. Gust Gallucci, her chiropractor, who stated that he treated her for pain in her neck, back, and right leg, and that x-rays showed injuries to her lower back and neck. It was his opinion that her injuries were proximately caused by the accident, that her treatment was necessary, and that her expenses were reasonable.
. Ms. Johnson, however, introduced x-rays of Neal's neck and back taken in 1997, and argued that her complaints pre-existed the collision. Through the use of photographs of the two cars, she argued that Ms. Neal could not have been seriously injured because neither car was seriously damaged and the impact of the collision was minor. She further claimed that the 1997 x-rays resulted from an earlier auto accident, but offered no evidence in support.
. The jury returned a verdict awarding zero damages, and the judge denied Ms. Neal's motion for a new trial. She asserts five assignments of error, which are included in an appendix to this opinion. Within those assignments she argues: (1) that the judge erred in failing to remove a juror for cause after she indicated a prejudice against the plaintiff's suit; (2) that Ms. Johnson unfairly prejudiced the jury during voir dire by suggesting that Dr. Gallucci frequently testified on behalf of injured plaintiffs, even though she had no such evidence; (3) that Ms. Johnson made similar unfair comments during her opening statement; (4) that she introduced an inadmissible hearsay statement: to wit, that paramedics at the scene told her they believed Ms. Neal was faking her injuries; and (5) that the damages award is inadequate and against the weight of the evidence because the evidence of medical bills is uncontroverted.
. We first note that Ms. Neal has waived any error concerning jury selection or jury voir dire, because that portion of the proceedings is not included in the transcript. Although she requested the entire transcript be transmitted on appeal, it remains her duty to ensure that the record is properly transmitted. If the record is deficient, it is her duty to submit an alternative to a transcript under App.R. 9(C) or (D). Without a record of the jury voir dire, we will not find error in Ms. Johnson's allegedly unfair questioning of potential jurors or in the judge's alleged fa
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