Fisher v. Univ. of Cincinnati Med. Ctr. , 2015 Ohio 3592 ( 2015 )

[Cite as Fisher v. Univ. of Cincinnati Med. Ctr., 2015-Ohio-3592.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Deborah L. Fisher, :
Plaintiff-Appellant, :
No. 14AP-188
v. : (Ct. of Cl. No. 2003-07235)
University of Cincinnati Medical Center, : (REGULAR CALENDAR)
Defendant-Appellee. :
PLURALITY DECISION
Rendered on September 3, 2015
John H. Metz, for appellant.
Michael DeWine, Attorney General, and Brian M. Kneafsey,
Jr., for appellee.
APPEAL from the Court of Claims of Ohio
BRUNNER, J., authoring lead opinion.
{¶ 1} In this appeal, plaintiff-appellant, Deborah L. Fisher, disputes the adequacy
of damages awarded by the Court of Claims of Ohio in her medical malpractice action
against defendant-appellee, University of Cincinnati Medical Center. For the following
reasons, through plurality decision, we affirm in part, reverse in part, and remand for
further proceedings on economic damages only.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} On December 20, 1990, appellant had tumor resection surgery to remove a
craniopharyngioma (benign cystic brain tumor). Dr. Harry Van Loveren performed the
surgery with assistance from chief neurology resident Dr. Bradley Mullen. The record
does not reflect that anything unusual happened in surgery, but afterward, while still
No. 14AP-188 2
hospitalized, appellant's condition deteriorated and she experienced permanent
neurological damage.
{¶ 3} Appellant brought an action in the Hamilton County Court of Common
Pleas against Dr. Van Loveren, Dr. Mullen and others, alleging that they had failed to
render the appropriate standard of medical care in performing her surgery. After Dr.
Mullen moved to dismiss on the ground that he was a state employee, appellant
voluntarily dismissed him from the action and filed suit against the University of
Cincinnati in the Court of Claims. The Court of Claims decided that Dr. Mullen had acted
within the scope of his employment with the university during his treatment of appellant
and that he was entitled to personal immunity pursuant to R.C. 2743.02(F) and 9.86. We
affirmed. Fisher v. Univ. of Cincinnati Med. Ctr., 10th Dist. No. 98AP-142 (Aug. 25,
1998). In Hamilton County, the court of common pleas granted summary judgment for
the remaining defendants, and the First District Court of Appeals affirmed. Fisher v. Van
Loveren, 1st Dist. No. C-070228, 2008-Ohio-4115.
{¶ 4} Appellant voluntarily dismissed her action in the Court of Claims and refiled
it in 2003. The Court of Claims bifurcated the issues of liability and damages for trial. A
magistrate presided over the liability trial and decided that Dr. Mullen had breached the
standard of care recognized by the medical community when, after receiving a report
about appellant's condition while she was still hospitalized on December 24, 1990, he
failed to return to the hospital to evaluate her or inform Dr. Van Loveren of her continued
deterioration. The magistrate found that the unreasonable delay in treatment to relieve
intracranial pressure proximately caused appellant's permanent neurological damage.
The magistrate recommended judgment in favor of appellant on her medical malpractice
claim and dismissal of her claim for punitive damages. Over appellee's timely objections,
the Court of Claims adopted the magistrate's decision.
{¶ 5} At the ensuing damages trial, witnesses on appellant's behalf testified that,
before the tumor resection surgery she was a physically fit, sharp, creative, disciplined and
professional woman. Her sisters, Gloria Wirthwine and Elaine Williams, explained that
she since has suffered from memory problems and cannot perform tasks that require
multiple steps. Appellant cannot organize her medications and has limited ability to
prepare her own meals. She has set several pots on fire. She is depressed, overweight,
and walks with a cane. Appellant has fallen and had difficulty getting back up without
No. 14AP-188 3
assistance. She cannot handle her finances. She exhibits irrational behavior and can be
angry, uncooperative, and physically violent. Appellant has lived alone in an apartment in
the past decade, but she relies on daily assistance from her sisters.
{¶ 6} According to her expert neurologist, Dr. Randall Benson, the increased
intracranial pressure caused permanent diffuse brain injury and numerous neurological
deficits, including impaired problem-solving, socialization, higher language and memory
skills. She has difficulty staying on task, filtering information and making decisions.
{¶ 7} Dr. Jay Barrash, a board certified neurosurgeon, testified that appellant had
a stroke or infarct in the area of the tumor. In his opinion, the stroke caused weakness on
the left side of appellant's body but was not the cause of her cognitive impairments. He
attributed appellant's diffuse brain damage and cognitive deficits to the increased
intracranial pressure. He further opined that appellant lacked insight, judgment, and the
ability to follow commands and work.
{¶ 8} Dr. Bradley Sewick, a clinical neuropsychologist, performed a battery of
tests and determined that appellant had a diffuse pattern of brain damage after the
resection surgery, resulting in mental deficits including memory and executive-related
problems. She suffers from depression and is vulnerable to manipulation and
exploitation. Dr. Sewick stated that appellant's cognitive deficits have rendered her
unemployable.
{¶ 9} According to Dr. Amy Ruschulte, appellant's primary care physician,
appellant suffers from endocrine issues including panhypopituitarism, hypothyroidism,
diabetes insipidus (an inability to concentrate urine), and corticoadrenal insufficiency, all
of which are treatable to some extent through medications. In addition to her depression
and weight issues, she has knee pain and mobility issues, and is at risk to develop other
conditions including diabetes mellitus and hypertension. Dr. Ruschulte has observed
appellant's cognitive problems and her unusual irritability and anger.
{¶ 10} Following the damages trial, the Court of Claims found that appellant's
weight gain, hyperphagia, hypothalamic, pituitary and endocrine problems were not
caused by the delay in treatment for which appellee was liable, but, rather, resulted from
the surgery itself. The Court of Claims did conclude that appellant suffered brain damage
resulting in permanent cognitive impairment affecting her executive and motor functions
and language-related capacities. The Court of Claims awarded appellant $1,120,000 to
No. 14AP-188 4
fund a life-care plan, $1,200,000 for lost wages and earning capacity, $236,000 for loss of
services, and $250,000 in non-economic damages for pain and suffering.
II. ASSIGNMENTS OF ERROR
{¶ 11} Appellant makes the following assignments of error in her appeal of the
judgment on damages:
[I.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
THE APPELLANTS [sic] IN ACCEPTING AND BASING THE
JUDGMENT ON INCOMPETENT EVIDENCE.
[II.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT IN BASING ITS JUDGMENT ON INCOM-
PETENT EVIDENCE.
[III.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
THE APPELLANTS [sic] IN ERRONEOUSLY MISINTER-
PRETTING [sic] THE TESTIMONY OF THE LIFE CARE
PLANNERS AND ACCEPTING INCOMPETENT EVIDENCE.
[IV.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
THE APPELLANTS [sic] IN ERRONEOUSLY FINDING
PLAINTIFF HAD A REDUCED LIFE EXPECTANCY OF 14
YEARS WHICH WAS NOT SUPPORTED BY COMPETENT
EVIDENCE.
[V.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
THE APPELLANTS [sic] IN DENYING PLAINTIFF FULL
RECOVERY OF "LOST WAGES."
[VI.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
THE APPELLANTS [sic] IN DENYING PLAINTIFF FULL
RECOVERY OF "LOSS OF SERVICES."
[VII.] THE TRIAL COURT ERRED TO THE PREJUDICE OF
THE APPELLANTS [sic] IN FAILING TO AWARD
ADEQUATE DAMAGES CONTRARY TO LAW AND
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
[VIII.] THE TRIAL COURT ERRED TO [THE] PREJUDICE
OF APPELLANTS [sic] BY ABUSING ITS DISCRETION AND
DEMONSTRATED A PREVAILING BIAS THROUGHOUT
THIS TRIAL.
III. STANDARD OF REVIEW
{¶ 12} "Appellate courts review an award of damages under a manifest-weight-of-
the-evidence standard." Alternatives Unlimited-Special, Inc. v. Ohio Dept. of Edn., 10th
No. 14AP-188 5
Dist. No. 12AP-647, 2013-Ohio-3890, ¶ 35. "[I]n reviewing a judgment under the
manifest-weight standard, a court of appeals weighs the evidence and all reasonable
inferences, considers the credibility of witnesses, and determines whether, in resolving
conflicts in the evidence, the finder of fact clearly lost its way." Brown v. Dept. of Rehab.
& Corr., 10th Dist. No. 13AP-804, 2014-Ohio-1810, ¶ 19.
{¶ 13} "In undertaking this limited reweighing of the evidence, however, we are
guided by the presumption that the factual findings of the trial court were correct."
Sparre v. Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 2013-Ohio-4153, ¶ 12.
"Accordingly, the weight to be given the evidence and the credibility of the witnesses are
primarily questions to be answered by the trier of fact." Id. The rationale for this
deference is that the trier of fact is in the best position to view witnesses and observe their
demeanor, voice inflections, and gestures. Id., citing Seasons Coal Co. v. Cleveland, 10
Ohio St. 3d 77, 80 (1984).
{¶ 14} We stated in Staley v. Allstate Property Cas. Ins. Co., 10th Dist. No. 12AP-
1085, 2013-Ohio-3424, ¶ 11:
In order to set aside a damage award as inadequate and
against the manifest weight of the evidence, a reviewing court
must determine that the verdict is so gross as to shock the
sense of justice and fairness, cannot be reconciled with the
undisputed evidence in the case, or is the result of an apparent
failure by the jury to include all the items of damage making
up the plaintiff's claim. Bailey v. Allberry, 88 Ohio App. 3d
432, 435, 624 N.E.2d 279 (2d Dist.1993).
{¶ 15} An appellate court cannot reverse the judgment of the trial court if that
judgment is supported by competent, credible evidence. C.E. Morris Co. v. Foley Constr.
Co., 54 Ohio St. 2d 279 (1978), syllabus. "However, if the judgment is against the manifest
weight of the evidence and is so grossly inadequate that it shocks the conscience and
constitutes an abuse of discretion, this court cannot allow the judgment to remain
undisturbed." O'Neil v. State, 13 Ohio App. 3d 320, 321 (10th Dist.1984).
IV. LIFE-CARE PLAN
{¶ 16} The first four assignments of error challenge the award of $1,120,000 for a
life-care plan, structured to pay appellant $80,000 annually over 14 years. The
arguments in appellant's first and third assignments of error involve many of the same
factual and legal issues, and we consider them together.
No. 14AP-188 6
{¶ 17} The Court of Claims awarded $80,000 per year after finding appellee's life-
care planning expert, Dorene Spak, more persuasive than appellant's. In the Court of
Claims' view, Spak's plan for live-in home care, rather than placement in an assisted living
facility, was "consistent with the reality of the previous 20 years of care that [her sisters]
have provided to plaintiff." (Decision, 8.) Spak's original plan and report identified two
care providers and three care options using the providers' services. Spak gave two
options, A and B, for 24-hour care and a third option C based on 8 hours of daily care
from an attendant, even though she did not believe this option was good for appellant.
The Court of Claims rejected Spak's provision of $27,500 annually for aquatic therapy; it
was unconvinced that appellant's weight and knee problems were related to her cognitive
deficiencies. The Court of Claims further stated:
After revising her report to eliminate compensation for
plaintiff's endocrine issues and aquatic therapy, Spak
estimated that option A would cost $81,000 per year; option
B: $120,000 per year; and option C: $80,000 per year.
Inasmuch as the only difference that Spak identified between
option A and option B was the rate at which each provider
charges, the court finds that $80,000 is a reasonable estimate
of the costs of an annual life care plan to address plaintiff's
cognitive deficiencies.
(Decision, 8.)
{¶ 18} Spak's life-care plan also provided for diagnostic tests and medications. The
total annual costs under each of Spak's three options originally were $133,549 for option
A, $172,969 for option B, and $132,089 for option C. The reductions followed
concessions from Dr. Benson that appellant's hypothalamic damage, related to her
diabetes insipidus, probably was not connected to the increased intracranial pressure and
could be a complication of the surgery, and that appellant's obesity was related to a
hypothalamic disorder. Dr. Barrash also agreed that appellant's hyperphagia and weight
gain were consequences of the resection surgery itself. He concurred that appellant would
have pituitary and endocrine problems after the resection surgery regardless of the
increased intracranial pressure.
{¶ 19} At trial, appellant's life-care planning expert, Marianne Boeing, revised her
plan, which entailed an assisted living facility with increasing attendant care as appellant
No. 14AP-188 7
becomes older, to exclude care for endocrine-related issues. On direct examination, Spak
was asked to do the same. She responded:
I'm winging it here. But if I would look at this roughly, if I
would look at medical follow-up, I would look at diagnostic
tests, I would look at medications, those kinds of things, just
to give a rough estimate. I would say, if I'm taking out those
items, I'm probably about $25,000 a year too high. That's just
a rough estimate.
(Tr. Vol. V, 658.) She "would think" to eliminate visits with an endocrinologist ($393),
thyroid profile testing ($451), insulin growth factor testing ($208), cortisol levels testing
($240), and human growth hormone level testing ($148). (Tr. Vol. V, 659.) Later in her
testimony, she estimated a $14,000 to $15,000 reduction in medication costs.
{¶ 20} These items account at most for $16,440 of Spak's $25,000 estimated total
reduction, which the Court of Claims apparently subtracted, along with the $27,500
aquatic therapy cost, from each of Spak's options. Although it noted the providers' rates
as the sole difference between Spak's options A and B, the Court of Claims' $80,000
annual award matches its rounded estimate for option C, which Spak believed was not
appropriate.
{¶ 21} The offhanded manner of Spak's $25,000 reduction, and the Court of
Claims' use of that "rough estimate" to arrive at a life-care plan award at the very low end
of Spak's recalculated cost options, convince us that the Court of Claims' award of
$80,000 per year was not supported by competent, credible evidence. "[A] trial court's
discretion in admitting expert-opinion testimony concerning future damages requires
that the court 'keep such extrapolations within reasonable bounds and insure that they
conform to the evidence.' " Marzullo v. J.D. Pavement Maint., 8th Dist. No. 96221, 2011-
Ohio-6261, ¶ 6, quoting Bach v. Penn Cent. Transp. Co., 502 F.2d 1117, 1122 (6th
Cir.1974). The reduction effectively lowered the range of compensable future medical
expenses without competent support.
{¶ 22} A plaintiff may not obtain future damages based on a mere guess or
speculation; there must be some data on which a reasonable estimate of future expenses
can be based. See Hohn v. Ohio Dept. of Mental Retardation & Dev. Disabilities, 10th
Dist. No. 93AP-106 (Dec. 14, 1993); Powell v. Montgomery, 27 Ohio App. 2d 112, 120 (4th
Dist.1971). By the same token, the Court of Claims needed some data beyond Spak's
No. 14AP-188 8
"rough estimate" to provide a sound basis for lowering the evidential floor for an award of
future expenses. Without such competent evidence, we find the judgment incorporating
an annual life-care plan award at the very bottom of the new and erroneously undervalued
range to be against the manifest weight of the evidence, grossly inadequate so as to "shock
the conscience," and to constitute an abuse of discretion.
{¶ 23} Despite appellant's arguments to the contrary, we find no error in the Court
of Claims' preference for Spak's plan for in-home care over Boeing's projections for
assisted living augmented by services of an attendant. The Court of Claims did not have
to accept appellant's categorical assertion that her "disability is multifactorial, intertwined
and cannot be separated." (Appellant's Brief, 20.) However, the Court of Claims should
not have ruled out the aquatic therapy recommended even by Spak, appellee's expert, and
other treatment for her left knee and side weaknesses. These items should have been
considered by the Court of Claims in calculating an award for appellant's life-care plan.
Evidence of damage to appellant's executive functioning abilities as a result of the
increased intracranial pressure (due to appellee's liability) included her special need for
supervision and assistance in physical activities that could help address the inevitable
endocrinal and obesity issues.
{¶ 24} That she would have had weight gain as a result of the surgery is not the
central issue in determining whether she should receive compensation for related,
increased care. Because appellant lost the executive functioning skills that she could have
otherwise utilized to deal with these conditions, she is entitled to compensation for the
cost of necessary additional assistance due to losing executive function, skills she would
otherwise possess to help her overcome the expected problems and complications of the
surgery, notwithstanding appellee's negligence. The Court of Claims' calculation of
annual future expenses was contrary to the weight of the evidence, and we therefore
sustain appellant's first and third assignments of error, except that the first and third
assignments of error are overruled as they relate to the reduction for aquatic therapy and
other treatment for appellant's left knee and side weaknesses, based on the dissents by the
other two panel members on these particular issues.
{¶ 25} The second assignment of error attacks Spak's competency and
qualifications to give expert testimony. Appellant did not object to or move to strike
Spak's testimony at the time of trial. The written report containing her life-care plan was
No. 14AP-188 9
admitted into evidence without objection. Any errors predicated on her qualifications to
testify as an expert are deemed to have been waived and cannot be raised for the first time
on appeal. See Evid.R. 103(A)(1). Except when she admittedly was "winging it" to back
out medication costs on the spot, we cannot conclude that Spak's testimony is so lacking
in credibility that it should be given no weight. See Deyo v. Adjutant General's Dept.,
10th Dist. No. 93API12-1667 (Aug. 16, 1994). We unanimously overrule the second
assignment of error.
{¶ 26} In her fourth assignment of error, appellant contends that the Court of
Claims erred in finding only a 14-year life expectancy. This estimate, again, was at the
very bottom of the range proposed by the defense expert. For his testimony on life
expectancy, Dr. Steven Day reviewed the medical records and expert reports, and also
medical literature on mortality rates and life expectancy for people with relevant
conditions including craniopharyngioma, brain injury, obesity, chronic depression,
panhypopituitarism, and growth hormone deficiency. Adjusting for these conditions, he
opined that the 55-year-old appellant had a life expectancy of 14 to 18 years.
{¶ 27} Dr. Day referred to specific studies showing mortality rates for adults having
undergone treatment for craniopharyngioma to be three to nine times higher than
average. He performed one life expectancy calculation using the midpoint mortality rate
of six times normal, and found appellant's life expectancy to be 14 years. In a separate
calculation1 adjusting for brain injury, obesity, and depression, he found a life expectancy
approximating 18 years.
{¶ 28} The Court of Claims adjudged that Dr. Day had testified credibly to a
reduced life expectancy on account of appellant's medical conditions. The Court of Claims
rejected appellant's contention that the testimony of her primary care physician, Dr.
Ruschulte, required a finding that appellant had a full life expectancy. We acknowledge
that Dr. Ruschulte, with her continued contact with appellant as her primary care doctor,
was not an expert on life expectancy, nor did she consult medical literature or perform
research on the subject. In fact, she offered no opinion on appellant's life expectancy. Dr.
Ruschulte did testify, however, that appellant's obesity could decrease her life expectancy.
1Dr. Day did not perform a life expectancy calculation adjusting for all of appellant's medical conditions at
once because he recognized some overlap in them. For instance, people with craniopharyngioma often have
some brain damage from resection surgery, panhypopituitarism, and weight problems.
No. 14AP-188 10
{¶ 29} Appellant cites the efforts to impeach Dr. Day's credibility at trial:
consulting mostly for defendants; Court of Claims' exclusion of testimony by two former
colleagues; matters in which his own testimony was precluded; and reference to medical
literature addressing diabetes mellitus (which appellant does not have) in relation to
depression (from which she does suffer). She disputes Dr. Day's opinion that her lack of
smoking, cardiovascular disease, hyperlipidemia, and other conditions was relatively
insignificant. Among the literature Dr. Day reviewed, appellant points to one article
indicating that, for people treated for craniopharyngioma, "the cause-specific late
mortality after 20 years was multifactorial but rarely due to the disease progression." (Tr.
Vol. V, 775.) According to Dr. Day, this does not mean that the tumor or its treatment
rarely relates to cause of death, or that a recurrence is necessary to reduce life expectancy,
as appellant would have it. He explained that while the condition itself rarely caused
mortality, related issues such as panhypopituitarism did contribute to excess mortality.
He noted that excess mortality (number of deaths caused by a specific condition) is
greater for women than men who had been treated for craniopharyngioma. Rather than
specifically adjusting for gender or related risk factors in his calculations, Dr. Day utilized
the midpoint of excess mortality rates across combined male and female populations with
a history of treatment in order to arrive at the lower bound (14 years) on his estimated
range-of-life expectancy.
{¶ 30} Based on this testimony, the Court of Claims found credible Dr. Day's
opinion that, to a reasonable degree of professional certainty, appellant's life expectancy
was between 14 and 18 years from her current age. "In weighing the evidence, the court of
appeals must always be mindful of the presumption in favor of the finder of fact." Eastley
v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, at ¶ 21. Dr. Day provided substantial
credible support for his opinion on appellant's life expectancy, and the Court of Claims'
finding of a 14-year life expectancy was within the bounds of the evidence and its sound
discretion.
{¶ 31} Appellant further argues that the Court of Claims' 14-year life expectancy
finding was error because it was based on Dr. Day's opinion on probability of life
expectancy being expressed in terms of an average life expectancy, in appellant's case
calculated to be a 14 to 18-year range. In Stinson v. England, 69 Ohio St. 3d 451 (1994),
No. 14AP-188 11
paragraph one of the syllabus, "probab[ility]" was described as "a greater than fifty
percent likelihood that it produce[s] the occurrence at issue."
{¶ 32} We note that appellant's expert economist, Dr. Harvey Rosen, also rendered
an opinion according to an average life expectancy (albeit with no discount for appellant's
health issues) based on the 2008 United States Life Tables. We note that appellant did
not object to the admission of either Dr. Day's testimony or his report at trial, and, thus,
she has waived the argument. To preserve error for appellate review, a party must make a
timely objection to the admission of evidence and state the specific ground of the
objection if not otherwise apparent from the context of the testimony. Evid.R. 103(A)(1).
"Failure to object waives any error, other than plain error, on appeal." Fields v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 13AP-1079, 2014-Ohio-3207, ¶ 27. See also Craft
Builders v. McCloud, 10th Dist. No. 96APE05-716 (Jan. 14, 1997); Kluss v. Alcan
Aluminum Corp., 106 Ohio App. 3d 528, 537 (8th Dist.1995). The fourth assignment of
error is overruled by unanimous decision.
V. LOST WAGES
{¶ 33} Appellant's fifth assignment of error addresses the Court of Claims' award
for lost wages. In addition to present-value costs of the future care recommended by
Boeing for appellant, Dr. Rosen calculated appellant's lost earnings using three alternative
retirement ages: 62.2 (from the Bureau of Labor Statistics tables); 65 (the "normal"
retirement age); and 66 years, 8 months (age for full Social Security benefits). (Tr. Vol.
III, 378.) Appellant was a university graduate with a degree in criminal justice. She had
been working with the Butler County Sheriff's Department before she was employed in
1989 as the first woman corporate security manager at Procter & Gamble, where she
earned $38,000 annually, plus benefits. Dr. Rosen used the Employment Cost Index
published by the Bureau of Labor Statistics, indicating an average annual wage increase of
3.39 percent between 1989 and 2013, for the average worker in private industry. Due to
lack of real wage growth in the previous decade, Dr. Rosen projected annual wage growth
at .05 percent after 2013. He figured appellant's lost wages (including fringe benefits) at
$2,414,925 to age 62.2; at $2,610,527 to age 65; and $2,792,041 to age 66 years, 8
months. He made no adjustment for appellant's $17,000 annual disability income.
No. 14AP-188 12
{¶ 34} Appellant does not dispute the Court of Claims' holding that disability pay
must be offset as a collateral source benefit under R.C. 3345.40(B)(2). The Court of
Claims found a work-life expectancy of 62 years and rejected annual wage increases:
Given that plaintiff had only worked at Proctor and Gamble
for a little more than a year, the court cannot conclude that
plaintiff's salary would have continued to increase at such a
rate into the future. Simply put, plaintiff's limited wage
history at Proctor and Gamble does not support an
assumption of annual wage increases.
(Decision, 10.)
{¶ 35} According to the Court of Claims, the award of $1,200,000 for lost wages
and lost earning capacity "includes a reduction for plaintiff's $17,000 annual disability
payment2 and an adjustment to Rosen's unrealistic wage growth percentages." (Decision,
10.) The Court of Claims found that appellant would have been employed from the time
of her injury when she was nearly age 33 until age 62, but it rejected Dr. Rosen's projected
growth rate on the sole basis that she "had only worked at Proctor and Gamble for a little
more than a year." (Decision, 10.)
{¶ 36} The Court of Claims had before it no evidence contra the Employment Cost
Index on which Dr. Rosen relied to arrive at the 3.39 percent average annual growth rate
through 2013. The Court of Claims' award was less than the amount of $1,313,513 Dr.
Rosen had calculated through 2012 for lost wages alone and far less than his projection of
$1,885,499 to 2020, when appellant turns 62. The decision of the Court of Claims gives
no consideration to legally required payments, including Social Security contributions and
fringe benefits, such as appellant's employer's health insurance and profit-sharing
contributions.
"An award of future damages for future wage loss raises two
independent evidentiary concerns: (1) whether a plaintiff
offered sufficient proof of future impairment; and (2) whether
a plaintiff offered sufficient evidence of the extent of
prospective damages flowing from the impairment." Power v.
Kirkpatrick (July 20, 2000), Franklin App. No. 99AP-1026.
To recover future earnings, a plaintiff must prove by sufficient
2 This collateral source benefit was properly deducted from the award against the university under R.C.
3345.40(B)(2). See Aubry v. Univ. of Toledo Med. Ctr., 10th Dist. No. 11AP-509, 2012-Ohio-1313, ¶ 20-22
(recognizing financial assistance received in time of disability either from insurance or public programs as
"benefits" to be setoff from any award against state university or college).
No. 14AP-188 13
evidence that she is reasonably certain to incur such damages
in the future. Id., citing Galayda v. Lake Hosp. Sys., Inc.
(1994), 71 Ohio St. 3d 421, 644 N.E.2d 298.
Marzullo v. J.D. Pavement Maintenance, 8th Dist. No. 96221, 2011-Ohio-6261, ¶ 17.
{¶ 37} This court stated in Miller v. State, 10th Dist. No. 13AP-849, 2014-Ohio-
3738, ¶ 78:
"Predictions about future-earning capacity are necessarily
somewhat speculative." Adae v. State, 10th Dist. No. 12AP-
406, 2013-Ohio-23, ¶ 39, citing Andler v. Clear Channel
Broadcasting, Inc., 670 F.3d 717, 726 (6th Cir.2012), citing
Eastman v. Stanley Works, 180 Ohio App. 3d 844, 907 N.E.2d
768, 2009-Ohio-634 (10th Dist.). "An exact calculation of
what the plaintiff could have earned but for her injury is not
required; the plaintiff must prove damages with reasonable
certainty." Id., citing Andler at 726, Eastman at ¶ 24.
{¶ 38} "When calculating earning capacity, experts often consult actuarial tables,
Bureau of Labor Statistics figures or other averages along with the plaintiff's historical
earnings." Id. at ¶ 79, citing Andler v. Clear Channel Broadcasting, Inc., 670 F.3d 717,
728 (6th Cir.2012), and Taylor v. Freedom Arms, Inc., 5th Dist. No. CT2008-0071, 2009-
Ohio-6091, ¶ 16.
{¶ 39} We note that appellee provides significant argument to reject Dr. Rosen's
opinion on appellee's projected earnings entirely, but it does not separately cross-appeal
on this issue. We address appellee's argument nonetheless. There is no requirement, as
appellee suggests, that the expert's calculations be "strictly tailored" to the plaintiff. (Tr.
Vol. III, 423.) We note that Dr. Rosen did consult Procter & Gamble's medical and profit-
sharing plan data and administrators for company specific benefits but did not obtain
salary information for appellant's position. That the index included no specific
distinctions for occupation, geographic location, or education level afforded no basis to
discard Dr. Rosen's projections for not being specific enough to appellant. Nor did the
mere possibilities that she or any other worker might not reach her life expectancy, could
miss work due to other injury or illness, may be laid off or fired, would incur a reduction
in benefits, or may not receive a pay raise at any stage militate toward a negative or
positive differential from the rates applied to appellant. Appellee claims that the Court of
Claims did not have any relevant evidence, testimonial, documentary or otherwise, on
which to base an award of prospective lost earnings. I disagree. Moreover, the Court of
No. 14AP-188 14
Claims' award for lost wages, without a sound basis to deny annual increases as appellant
submitted through Dr. Rosen, was inadequate and against the weight of the competent
and credible evidence. Since Judge Dorrian concurs in part and dissents in part to the
lead opinion's view on appellant's fifth assignment of error, and Judge Sadler dissents as
to the lead opinion regarding the fifth assignment of error, it is sustained as it relates to
the Court of Claims' rejection of any annual wage increases, but it is overruled as to no
consideration given by the Court of Claims to legally required payments.
VI. LOSS OF SERVICES
{¶ 40} To replace household services appellant could no longer provide to herself,
Dr. Rosen calculated costs through the end of appellant's life, assuming she had a normal
life expectancy. In its decision, the Court of Claims stated:
On cross-examination, Rosen calculated the cost of replacing
such services using the minimum wage plus legally required
benefits. Rosen concluded that such a cost would be
$540,000, about half of which would represent the cost of
household services from 1990 up to the present. However, the
court has previously determined that plaintiff's life expectancy
is 14 years rather than the "normal" life expectancy that Rosen
used. Additionally, if plaintiff enters an assisted living facility,
such services will be included in the cost of the facility.
Moreover, plaintiff is attempting to recover for services that
[her sisters] have provided to plaintiff since 1990.
Accordingly, the court finds that $236,000 is a reasonable
award for loss of services.
(Decision, 11.)
{¶ 41} $236,000 is the amount Dr. Rosen estimated on cross-examination when
he was asked to calculate the value of past household services, as she would have provided
or as her sisters did for her,3 at $10 per hour, reflecting minimum wage plus legally
required benefits. Dr. Rosen's valuation of household services from 1991 through 2013
3The tortfeasor is responsible for the reasonable value of nursing services or other care, regardless of who
provides it and even though it was rendered gratuitously and as a result of moral obligation; the appropriate
measure of damages is the economic value of the care provided. Hutchings v. Childress, 119 Ohio St. 3d 486,
2008-Ohio-4568, ¶ 30, 39-41; White v. Bannerman, 5th Dist. No. 2009CA00221, 2010-Ohio-4846, ¶ 91-93;
Howard v. McKitrick, 10th Dist. No. 87AP-148 (July 2, 1987).
No. 14AP-188 15
was $354,159; those services would stop if appellant entered an assisted living facility in
accordance with Boeing's life-care plan.4
{¶ 42} But the Court of Claims rejected Boeing's plan and adopted Spak's option
for in-home care instead of an assisted living facility. The Court of Claims' suggestion that
entering an assisted living facility would obviate additional expenses for household
services is inconsistent with its decision on appellant's life-care plan. Other than Boeing's
acknowledgment that an attendant would do some of the housekeeping, the evidence does
not support appellee's position that household services, including laundry and cleaning
windows, would be covered under the home care option. The Court of Claims did not find
that Dr. Rosen's valuation of these prospective costs was duplicative, but referred only to
its prior determination that appellant's life expectancy was "14 years rather than the
'normal' life expectancy that Rosen used." (Decision, 11.) The Court of Claims' apparent
conflation of household services with medical, nursing, and other health related care the
parties presented in alternative life-care plans unreasonably foreclosed an award for
future household services. Therefore, we unanimously sustain appellant's sixth
assignment of error.
VII. NON-ECONOMIC DAMAGES
{¶ 43} Appellant's seventh assignment of error recapitulates her arguments over
the inadequacy of the damages awarded and highlights both Boeing's and Spak's
provisions for socialization and transportation in their respective life-care plans. To the
extent we have sustained the points we have found well-taken in assignments of error one,
three, five, and six, we sustain the seventh assignment of error also. Otherwise, we
overrule it. Specifically, we overrule appellant's arguments that error exists relating to the
constitutionality of R.C. 3345.40.
{¶ 44} Appellant argues that the Court of Claims awarded no damages for loss of
enjoyment of life. Appellant received the maximum award of $250,000 in non-economic
damages for pain and suffering. Under R.C. 3345.40(B)(3), the Court of Claims was not
permitted to award any greater sum against appellee, a state university, for non-
4 These calculations were based on Bureau of Labor Statistics data indicating 2.53 hours per day on average
for household services by an employed woman with no children, and 3.6 hours after retirement. After
retirement, that figure increases to 3.6 hours per day. Dr. Rosen used a "normal" life expectancy of 28 years
and a $15 hourly rate to value total lost services at $809,196. At minimum wage plus legally required
benefits, the cost to replace services from 1990 to "normal" life expectancy approximated $540,000.
No. 14AP-188 16
compensatory damages that did not fit the definition of "actual loss" under the 1987
statute. R.C. 3345.40(A)(2)(b)(ii) provides that the calculated "actual loss" of a person
awarded damages does not include "damages awarded for pain and suffering, for the loss
of society, consortium, companionship, care, assistance, attention, protection, advice,
guidance, counsel, instruction, training, or education of an injured person, for mental
anguish, or for any other intangible loss."
{¶ 45} Making the argument for the first time in her reply brief, appellant argues
the unconstitutionality of the state's statutory limitation on damages in this single,
conclusory sentence: "R.C. 3345.40 is clearly unconstitutional under the Ohio and U.S.
Constitutions denying due process, open courts and equal protection." (Appellant's Reply
Brief, 18.) We need not address this new argument in appellant's reply brief for whatever
point it may raise.5 State ex rel. Grounds v. Hocking Cty. Bd. of Elections, 117 Ohio St. 3d
116, 2008-Ohio-566, ¶ 24, citing Hoskins v. Simones, 173 Ohio App. 3d 186, 2007-Ohio-
4084, ¶ 38 (2d Dist.); Whitehall v. Olander, 10th Dist. No. 14AP-6, 2014-Ohio-4066, ¶ 46,
citing Huffer v. Brown, 10th Dist. No. 12AP-1086, 2013-Ohio-4384, ¶ 10.
{¶ 46} Furthermore, "[p]ursuant to App.R. 12(A)(1)(b), appellate courts must
'[d]etermine [an] appeal on its merits on the assignments of error set forth in the briefs
under App.R. 16.' Thus, generally, appellate courts will rule only on assignments of error,
not mere arguments." Camp v. Star Leasing Co., 10th Dist. No. 11AP-977, 2012-Ohio-
3650, ¶ 69, citing Thompson v. Thompson, 196 Ohio App. 3d 764, 2011-Ohio-6286, ¶ 65
(10th Dist.). Had the matter been raised specifically by assignment of error, appellant
would have had to carry her burden of affirmatively demonstrating the error and
substantiating the supporting arguments. Camp at ¶ 67, citing App.R. 16(A)(7). "It is not
the duty of this court to construct legal arguments in support of an appellant's appeal."
Id., citing Proctor v. Ohio Civ. Rights Comm., 169 Ohio App. 3d 527, 2006-Ohio-6007,
¶ 16 (9th Dist.), and State ex rel. Petro v. Gold, 166 Ohio App. 3d 371, 2006-Ohio-943,
5 In her written closing argument in the Court of Claims, appellant stated that R.C. 3345.40 was
unconstitutional because the damages cap did not include "any adjustment for inflation or time." (R. 181, at
22.) "It is well-settled that 'where constitutional arguments are not raised, argued and ruled upon by the
trial court, reviewing courts should not entertain such arguments for the first time on appeal.' " Atlantic
Mtge. & Invest. Corp. v. Sayers, 11th Dist. No. 2000-A-0081 (Mar. 1, 2002), quoting In re Vickers Children,
14 Ohio App. 3d 201, 202 (12th Dist.1983). Neither have we any indication of plain error or rights and
interests sufficient to warrant consideration of any constitutional challenge, let alone one raised at the last
possible juncture and without explication. Compare In re M.D., 38 Ohio St. 3d 149, 151 (1988) ("due process
considerations of appellant's arguments are apparent, and sufficient to avoid the waiver issue").
No. 14AP-188 17
¶ 94 (10th Dist.). "Appellant's bare assertion is insufficient to meet her burden of
establishing error." Proctor at ¶ 16.
VIII. CLAIM OF JUDICIAL BIAS
{¶ 47} In her eighth assignment of error, appellant charges the Court of Claims
with bias and abuse of discretion, and proceeds to recite a number of rulings against her
without any particular legal argument as would be made concerning an assignment of
error.
{¶ 48} Appellant argues that "all of the numbers accepted by the court were those
of defense witnesses; none of which took into consideration any economic inflation or
reduction to present value." (Appellant's Brief, 54.) (We note that the Court of Claims
derived its award for loss of services from appellant's witness, Dr. Rosen, upon cross-
examination.) Appellant argues that the Court of Claims' view that her evidence of
increased cost of future medical care was highly speculative and not reasonably reliable is
error. However, it is axiomatic that "[c]omparison of expert witnesses' professional
stature and the weight of the experts' testimony are for the trier of the facts." McQueen v.
Goldey, 20 Ohio App. 3d 41, 48 (12th Dist.1984), paragraph six of the syllabus.
{¶ 49} Appellant also objects that the Court of Claims admitted expert testimony
by Dr. Van Loveren in his videotaped deposition without a prior written report; denied
appellant's proffer of a transcribed conversation between Dr. Van Loveren and appellant's
sisters; and later struck the transcription from the record when appellant filed it without
leave of court. The Court of Claims ultimately did not rely on or adopt Dr. Van Loveren's
opinion that appellant had no intracranial pressure on December 24, 1990. Therefore, we
find no harmful error regarding these interlocutory rulings, notwithstanding appellant's
failure to assign error properly in the first instance. Civ.R. 61.
{¶ 50} Contrary to appellant's position, Dr. Day did not give testimony on any
medical issues but simply was asked whether certain medical conditions were considered
in his morbidity analyses. Appellant provides no authority or reason to prevent appellee
from extracting the potentially non-compensable items through examination at trial, as
far as the related proofs may warrant. We have sustained the first and third assignments
of error to the extent we found this "deconstruction" to be against the weight of the
evidence. Appellant urges bias in the Court of Claims' decision, the interlocutory rulings
previously mentioned, the denial of leave to file a reply brief regarding pre-judgment
No. 14AP-188 18
interest, and the Court of Claims' declining to rule on appellant's motions for judgment
notwithstanding the verdict, for a new trial, and for relief from judgment prior to this
court dismissing her initial appeal as premature. Appellant also asserts bias as to the
Court of Claims' adverse evidentiary rulings, this point having been added in her reply
brief and which we decline to further delineate.
{¶ 51} Without proper assignments of error or legal explication, we find appellant
identifies no abuse of discretion to justify reversal beyond what we have already decided.
"Pursuant to R.C. 2701.03, only the chief justice of the Supreme Court of Ohio or his or
her designee has the authority to determine a claim that a common pleas court judge is
biased or prejudiced." Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999,
2013-Ohio-5140, ¶ 94. Effective July 10, 2014, R.C. 2701.03 was extended to the Court of
Claims. 2014 Am.Sub.H.B. No. 261. The statute would foreclose our consideration of
judicial bias if this appeal had not been filed and briefed before then. In any event, as in
Stanley we conclude that "appellant has failed to overcome the presumption of lawfulness
and impartiality in the trial judge's participation in this case." Id. at ¶ 100.
{¶ 52} "Judicial bias has been described as 'a hostile feeling or spirit of ill will or
undue friendship or favoritism toward one of the litigants or his attorney, with the
formation of a fixed anticipatory judgment on the part of the judge, as
contradistinguished from an open state of mind which will be governed by the law and the
facts.' " State v. Dean, 127 Ohio St. 3d 140, 2010-Ohio-5070, ¶ 48, quoting State ex rel.
Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph four of the syllabus.
{¶ 53} "A judge is presumed not to be biased or prejudiced, and a party alleging
bias or prejudice must present evidence to overcome the presumption." Wardeh v.
Altabchi, 10th Dist. No. 03AP-1177, 2004-Ohio-4423, ¶ 20. "The appearance of bias or
prejudice must be compelling to overcome this presumption of integrity." Trott v. Trott,
10th Dist. No. 01AP-852 (Mar. 14, 2002), citing In re Disqualification of Olivito, 74 Ohio
St.3d 1261, 1263 (1994). " 'The existence of prejudice or bias against a party is a matter
that is particularly within the knowledge and reflection of each individual judge and is
difficult to question unless the judge specifically verbalizes personal bias or prejudice
toward a party.' " Eller v. Wendy's Internatl., Inc., 142 Ohio App. 3d 321, 340 (10th
Dist.2000), quoting Okocha v. Fehrenbacher, 101 Ohio App. 3d 309, 322 (8th Dist.1995).
"[D]issatisfaction or disagreement with a judge's rulings of law are legal issues subject to
No. 14AP-188 19
appeal. A judge's opinions of law, even if later found to be erroneous, are not by
themselves evidence of bias or prejudice and thus are not grounds for disqualification."
In re Disqualification of Corts, 47 Ohio St. 3d 601, 602 (1988).
{¶ 54} Appellant provides a litany of adverse rulings to support her claim of bias or
prejudice but without explaining how they assist in overcoming the presumption of bias
for any particular allegation. Further, the record does not disclose on its face suggestions
of hostility, favoritism, or a fixed anticipatory judgment. "Appellant's unsubstantiated
accusations of improper conduct are insufficient to overcome the presumption of judicial
integrity." Cline v. Mtge. Electronic Registration Sys., Inc., 10th Dist. No. 13AP-240,
2013-Ohio-5706, ¶ 33, citing Cooke v. United Dairy Farmers, Inc., 10th Dist. No. 05AP-
1307, 2006-Ohio-4365. Accordingly, we unanimously overrule the eighth assignment of
error.
IX. MOTION AND REMAND
{¶ 55} After oral argument, appellant filed a "motion to clarify relief" and basically
asked for entry of judgment in the amount of $10,742,610, pursuant to App.R. 12(B) and
(C). Section (B) does not apply because we have not found that appellant is entitled to
have judgment rendered in her favor "as a matter of law." App.R. 12(C)(1) states:
In any civil action or proceeding that was tried to the trial
court without the intervention of a jury, and when upon
appeal a majority of the judges hearing the appeal find that
the judgment or final order rendered by the trial court is
against the manifest weight of the evidence and have not
found any other prejudicial error of the trial court in any of
the particulars assigned and argued in the appellant's brief,
and have not found that the appellee is entitled to judgment
or final order as a matter of law, the court of appeals shall
reverse the judgment or final order of the trial court and
either weigh the evidence in the record and render the
judgment or final order that the trial court should have
rendered on that evidence or remand the case to the trial
court for further proceedings.
{¶ 56} As stated at the outset, we have elected to remand the matter to the Court of
Claims for further proceedings. We do not agree with appellant that "the only 'reasonable'
and competent evidence justifies a verdict of $10,742,610." (Appellant's Motion to Clarify
Relief, 2.) In her reply brief, appellant had submitted a "minimum total" award of
$5,974,991.91. (Appellant's Reply Brief, 20.) We leave it to the Court of Claims to
No. 14AP-188 20
exercise its discretion to "take additional testimony, amend findings of fact and
conclusions of law or make new findings and conclusions, and enter a new judgment."
Civ.R. 59(A); Behrend v. State, 10th Dist. No. 78AP-575 (Feb. 22, 1979).
{¶ 57} Since appellee has not appealed the judgment of liability and we have
affirmed the award of non-economic damages, those portions of the judgment stand, and
proceedings on remand are limited to economic damages. "App.R. 12(D), in conjunction
with Civ.R. 42(B), authorizes a Court of Appeals to order the retrial of only those issues,
claims or defenses the original trial of which resulted in prejudicial error, and to allow
issues tried free from error to stand." Mast v. Doctor's Hosp. N., 46 Ohio St. 2d 539, 541
(1976). "New trials on the issue of damages only are granted when liability is uncontested,
clear, affirmatively established or supported by the weight of the evidence." Harper v.
Lefkowitz, 10th Dist. No. 09AP-1090, 2010-Ohio-6527, ¶ 36.
{¶ 58} We unanimously deny appellant's "motion to clarify relief," and we remand
the matter to the Court of Claims for further proceedings as set forth in the judgment
entry.
X. CONCLUSION
{¶ 59} In consideration of the separate opinions within this plurality decision
offering concurring and dissenting points of view, we issue the following unified
conclusions as to appellant's eight assignments of error.
{¶ 60} We unanimously overrule the second, fourth, and eighth assignments of
error and affirm the decision of the Court of Claims as to these assignments of error.
{¶ 61} We unanimously sustain appellant's sixth assignment of error and reverse
the decision of the Court of Claims.
{¶ 62} By majorities comprised of differing panel members, we sustain in part and
overrule in part the first and third assignments of error. Specifically, we sustain the first
and third assignments of error as to the Court of Claims' annual life-care plan award in
the same amount as Spak's reduced option C, and its reduction of damages by $25,000
annually for endocrine-related items, thereby reversing the decision of the Court of
Claims as to these issues and remanding these issues for further proceedings consistent
with this plurality decision. We overrule those portions of the first and third assignments
of error as to reduction for aquatic therapy and other treatment for appellant's left knee
No. 14AP-188 21
and side weaknesses, thereby affirming the decision of the Court of Claims as to these
matters.
{¶ 63} By majorities comprised of differing panel members, we sustain in part and
overrule in part the fifth assignment of error. More specifically, we sustain the fifth
assignment of error as to the Court of Claims' rejection of annual wage increases,
reversing its decision on this issue and remanding it for further proceedings consistent
with this plurality decision. We overrule the remainder of the fifth assignment of error
concerning whether the Court of Claims gave consideration to legally required payments,
and we affirm the decision of the Court of Claims on this issue contained within the fifth
assignment of error.
{¶ 64} We overrule appellant's seventh assignment of error as to the argument that
error exists relating to the constitutionality of R.C. 3345.40.
{¶ 65} We unanimously sustain that portion of the seventh assignment of error
that the Court of Claims failed to award adequate damages, and we do so to the extent
that we have sustained the first, third, fifth, and sixth assignments of error concerning the
adequacy of damages awarded for loss of services. Accordingly, we hereby reverse the
decision of the Court of Claims on the seventh assignment of error as to adequate
damages as described herein, thereby reversing the decision of the Court of Claims as to
this issue and remanding it for further proceedings consistent with this plurality decision.
{¶ 66} Finally, we unanimously overrule appellant's motion to clarify relief.
Judgment affirmed in part, reversed in part,
and cause remanded per this plurality decision.
SADLER, J., concurs in part and dissents in part.
DORRIAN, J., concurs in part and dissents in part.
SADLER, J., concurring in part and dissenting in part.
{¶ 67} I agree with the lead opinion in denying appellant's motion to clarify relief
and overruling appellant's second, fourth, and eighth assignments of error and in
sustaining appellant's sixth assignment of error. I also agree with the lead opinion in
overruling in part and sustaining in part appellant's seventh assignment of error;
however, I would only sustain the seventh assignment of error to the extent we sustained
the sixth assignment of error. Accordingly, I concur in part.
No. 14AP-188 22
{¶ 68} In light of Spak's status as a credible expert on life-care plans, as the lead
opinion indicates in the second assignment of error, and because I believe record evidence
supports the award of damages as stated by the Court of Claims, I disagree with the lead
opinion's decision to sustain appellant's first and third assignments of error. I
additionally disagree with the lead opinion's decision to sustain appellant's fifth
assignment of error because I believe the Court of Claims acted within its discretion to not
assume wage growth under the facts of this case. For these reasons, I respectfully dissent
in part.
Appellant's First Assignment of Error
{¶ 69} In her first assignment of error, appellant contends that the Court of Claims
erred when it based its judgment on incompetent evidence. Specifically, appellant
challenges the factual foundations of Spak's life-care plan report as well as Spak's
testimony offering a "rough estimate" of a life-care plan revised to omit those items not
caused by appellee's delay in treatment. (Tr. 658.) Finally, appellant asserts the Court of
Claims acted unjustly by selecting "option C," providing for eight-hour care, where all
experts agreed appellant requires 24/7 care. (Decision, 8.)
{¶ 70} As a preliminary matter, I agree that record evidence shows appellant
requires 24/7 care. However, I do not believe the Court of Claims selected option C as the
model for damages. In its decision, the Court of Claims expressly chose between only
options A and B. In my view, the Court Claims' decision to allocate $80,000 to cover the
life-care plan cost annually reflects that option A was "roughly the same cost" as option C.
(Decision, 7.) In presenting the life-care plans options, Spak repeatedly established the
equivalency of options A and C, opining "[f]or the same price [as option C] you can get
24/7 care." (Tr. 654.) Therefore, I believe the Court of Claims acted within its discretion
to allocate $80,000 a year to fund a life-care plan affording 24/7 care.
{¶ 71} Further, I believe Spak's report and testimony are credible evidence upon
which the Court of Claims determined the award of damages. As the lead opinion
describes in the second assignment of error, Spak's competency and qualifications as an
expert cannot, at this point, be disputed. As such, I disagree with the lead opinion that
Spak's testimony regarding an estimate of reductions, information within her personal
experience and knowledge, was "so lacking in credibility" so as to hold "no weight." (Lead
Opinion, ¶ 25.) In fact, comparing Spak and Boeing's life-care plans, Spak's $25,000
No. 14AP-188 23
reduction estimate is verifiable and remarkably consistent with the endocrine-related
reduction amounts provided in Boeing's report. Thus, in addition to Spak's testimony, the
Court of Claims did have a "sound basis for lowering the evidential floor for an award for
future expenses." (Lead Opinion, ¶ 22.) Therefore, on this record, I believe the Court of
Claims' award is not "grossly inadequate so as to 'shock the conscience.' " (Lead Opinion,
¶ 22.)
{¶ 72} Accordingly, I would overrule appellant's first assignment of error.
Appellant's Third Assignment of Error
{¶ 73} In this assignment of error, appellant belies the Court of Claims' "mistaken"
belief that Boeing failed to properly extract endocrine-related costs from her report and,
due to this mistaken belief, preferred Spak's plan. (Appellant's Brief, 25.) This argument
fails as against the facts. Even in her revised report, Boeing left in major items such as a
left knee replacement surgery that relate to conditions the court determined not to be
compensable. Moreover, the Court of Claims proceeded with Spak's plan for its
substance, emphasizing that Spak's plan reflected care consistent with appellant's
previous 20 years of care and promoted an independent lifestyle.
{¶ 74} As background to why appellant prompted Boeing to revise her report,
appellant discusses the issue of what damages the intracranial pressure caused versus the
surgery itself or subsequent small stroke. Appellant asks for 24/7 care because her
decreased executive function, which the delay in treatment and resulting intracranial
pressure caused, affects her ability to make healthy dietary decisions and contributes to
her obesity and knee problems. As discussed in the first assignment of error, I believe the
Court of Claims allowed for 24/7 care in its award of damages. As such, the argument for
24/7 care is moot. Additionally, since the 24/7 care option provides appellant with
assistance on those endocrine issues arising out of decreased executive function, such as
decision making on dietary choices and physical activity, any additional amount of
damages for this purpose would be duplicative.
{¶ 75} Further, I disagree with the lead opinion's finding that the Court of Claims
improperly excluded costs for appellant's left knee and side weaknesses, such as aquatic
therapy. Because I believe the record supports the Court of Claims' decision that
appellee's delay in treatment did not cause the conditions underlying these costs, I believe
No. 14AP-188 24
the Court of Claims acted within its discretion in excluding these costs from the award for
damages for the life-care plan.
{¶ 76} Accordingly, for the reasons stated above, I would overrule appellant's third
assignment of error.
Appellant's Fifth Assignment of Error
{¶ 77} In her fifth assignment of error, appellant argues that the Court of Claims
erred in denying appellant full recovery of lost wages when it concluded "[appellant's]
limited wage history at Proctor and Gamble does not support an assumption of annual
wage increases." (Decision, 10.) The lead opinion agreed, finding that "without a sound
basis to deny annual increases" reflected in the historic wage growth indexes submitted by
Dr. Rosen, the Court of Claims' award for lost wages was inadequate and against the
weight of competent and credible evidence. (Lead Opinion, ¶ 39.)
{¶ 78} As cited by the lead opinion, a plaintiff bears the burden of proving damages
for wage loss with reasonable certainty. Here, the Court of Claims noted that appellant
only had one year of salary history and did not present evidence showing she, or even
someone holding her former position at Proctor and Gamble, was eligible for wage
increases. Whether or not these reasons pull appellant's proof below the threshold of
reasonable certainty, I believe, is arguable. As such, under review for an abuse of
discretion, the Court of Claims' decision on this point should stand. Accordingly, I would
overrule appellant's fifth assignment of error.
{¶ 79} For the foregoing reasons, I would overrule all but the sixth assignment of
error and, correspondingly, the seventh assignment of error to the extent that it also
challenges the inadequacy of damages for loss of services and remand the matter to the
Court of Claims on that single issue.
DORRIAN, J., concurring in part and dissenting in part.
{¶ 80} I respectfully concur in part with the lead opinion and dissent in part with
the lead opinion as follows.
{¶ 81} I concur to overrule the second, fourth, and eighth assignments of error and
appellant’s motion to clarify relief. I concur to sustain the sixth assignment of error.
{¶ 82} I concur in judgment only to sustain the first and third assignments of error
as they relate to the Court of Claims' selection of option C and reduction of damages by
No. 14AP-188 25
$25,000 for endocrine-related items. I dissent, however, and would overrule the first and
third assignments of error as they relate to the reduction for aquatic therapy and other
treatment for appellant's left knee and side weaknesses.
{¶ 83} I concur to sustain the fifth assignment of error as it relates to the Court of
Claims' rejection of any annual wage increases. I dissent, however, as to the fifth
assignment of error, as it relates to the finding that the Court of Claims' decision gives no
consideration to legally required payments. Appellant did not raise this argument in her
brief, and therefore I would decline to address it.
{¶ 84} I concur to sustain the seventh assignment of error to the extent I would
sustain the first, third, fifth, and sixth assignments of error consistent with this
concurrence and dissent. I concur to overrule the seventh assignment of error as it relates
to the constitutionality of R.C. 3345.40.
___________________