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Hocevar v. Rao12/3/1998
trial court abused its discretion. Kitchens v. McKay (1987), 38 Ohio App.3d 165, 169.
Accordingly, plaintiffs' first assignment of error is overruled.
Plaintiffs' second assignment of error follows:
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
This assignment lacks merit.
Plaintiffs argue that the jury's verdict was against the manifest weight of the evidence. He argues the verdict was insufficient to compensate him for medical bills, lost wages, future medical care, and past and future pain and suffering.
This case boiled down to a textbook credibility contest concerning the extent of Hocevar's injuries. Raymond Hocevar testified that he seriously injured his right knee in this accident. However, a jury could reasonably conclude the impact was minimal because a heavy dump truck was hit by a light compact car and the total cost to repair the physical damage to the dump truck was only $50. The damage to defendant's vehicle depicted by the photographs also appears minimal.
Moreover, Hocevar initially failed to mention a long series of prior injuries and treatments to the same knee. Hocevar apparently injured the same knee in 1983, 1987, and 1991. His knee was first operated on in 1983, and three physicians other than Dr. Froimson, the one who testified by deposition at trial, treated various knee problems prior to the 1994 compact car-dump truck incident.
At oral argument on appeal, plaintiff maintained that because he provided workers' compensation claim numbers he did not omit his prior history. This argument is unpersuasive because of Hocevar's statement during his deposition that he had never injured his right knee before, his denial during the deposition of prior surgery to his right knee, and his denial at trial that he had received any treatment. The record shows otherwise. (Tr. 128-139.)
Dr. Froimson, moreover, was completely unaware of prior surgery to the same knee when he took Hocevar's medical history, treated him, and wrote an expert report. As a result, it would not have been unreasonable for a jury to place little faith in his expert opinion. Dr. Froimson attempted to rehabilitate his testimony later by distinguishing between a current medical meniscus tear and a previous anterior tear. It was not unreasonable, however, for a jury to conclude such a late distinction was a rationalization of the cause rather than an objective explanation.
The jury had a superior opportunity to observe the witnesses and evaluate their demeanor when making its determination concerning the extent of Raymond Hocevar's injuries in this case. The record indicates the existence of a long-standing chronic pre-existing knee condition. From our review of that record, we conclude plaintiffs have failed to show that the jury lost its way or that its verdict was against the manifest weight of the evidence. See Sauto v. Nacht (Apr. 16, 1998), Cuyahoga App. No. 73118, unreported; Reder v. Antenucci (1989), 62 Ohio App.3d 139.
Accordingly, plaintiffs' second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellants his 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
O'DONNELL, P.J., and LEO M. SPELLACY, J., CONCUR.
DIANE KARPINSKI JUDGE
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