Hippely v. Lincoln Elec. Holdings, Inc. , 2011 Ohio 5274 ( 2011 )

[Cite as Hippely v. Lincoln Elec. Holdings, Inc., 2011-Ohio-5274.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96439
GREGORY P. HIPPELY
PLAINTIFF-APPELLANT
vs.
LINCOLN ELECTRIC HOLDINGS,
INC., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-720689
BEFORE: E. Gallagher, J., Blackmon, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: October 13, 2011
2
ATTORNEY FOR APPELLANT
Kristen M. Kraus
Dworken & Bernstein Co., LPA
60 South Park Place
Painesville, Ohio 44077
ATTORNEY FOR APPELLEE,
LINCOLN ELECTRIC HOLDINGS, INC.
Glenn R. Jones
Jones, Funk & Associates
321 North Broadway Street
Medina, Ohio 44256
ATTORNEY FOR APPELLEE,
BUREAU OF WORKERS’ COMPENSATION
Sandra L. Nimrick
Assistant Attorney General
State Office Bldg., 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Appellant Gregory Hippely appeals from a jury verdict in favor of appellee
Lincoln Electric Holdings, Inc. (“Lincoln Electric”) entered in the Cuyahoga County
Court of Common Pleas on December 9, 2010 and the trial court’s January 25, 2011
denial of his motion for a judgment notwithstanding the verdict and motion for a new
3
trial. For the following reasons we affirm.
{¶ 2} Appellant began working at Lincoln Electric on June 8, 1970. Appellant’s
employment at Lincoln Electric included positions as welder, lathe operator, and gang
leader. (Tr. 142-144.) On October 4, 2001, appellant was injured while in the course
of, and arising out of, his employment with Lincoln Electric. Appellant suffered injury
while repeatedly moving an I-beam. Appellant’s worker’s compensation claim was
allowed for the conditions of “sprain lumbar region, sprained right shoulder, tear of
right rotator cuff and displacement at L2-3 and L5-S1.” (Tr. 9.)
{¶ 3} Appellant was treated by Dr. Jeffrey Shall, M.D., an orthopedic surgeon,
who recommended that appellant have back surgery. (Tr. 150-151.) Due to his concerns
about the potential risks and side effects of such surgery and his concern that he would
be unable to return to work, the appellant refused the procedure. (Tr. 152.)
{¶ 4} Appellant returned to work after one month but was limited to light duty.
Lincoln Electric accommodated the restrictions that appellant’s physician placed upon
his work and appellant was given a job in the cafeteria. Appellant worked in the
cafeteria from January 16, 2002, until January 18, 2008, when appellant testified that he
was unable to continue working due to back pain. (Tr. 157-158.) Appellant was
awarded temporary total disability at that time and was continuing to receive those
benefits at the time of trial. (Tr. 175-176.) Lincoln Electric terminated appellant’s
employment on June 15, 2009, and placed him in “retiree” status.
4
{¶ 5} On July 10, 2009, appellant moved the Bureau of Workers’ Compensation
(“Bureau”) for an additional allowance for the condition of major depressive disorder,
single episode, mild. Appellant’s claim was allowed by the Bureau and Lincoln Electric
filed a notice of appeal of the Industrial Commission’s order in the Cuyahoga County
Court of Common Pleas on March 9, 2010. The case proceeded to trial and the jury
returned a verdict in favor of Lincoln Electric. Appellant did file a motion for judgment
notwithstanding the verdict, as well as a motion for a new trial, both of which the trial
court denied. Appellant appealed from the judgment of the trial court and the denial of
his motions, asserting the three assignments of error contained in the appendix to this
opinion.
{¶ 6} Appellant argues in his first assignment of error that the jury’s verdict was
against the manifest weight of the evidence.
{¶ 7} It is a basic principle of appellate review that judgments supported by
competent, credible evidence going to all the material elements of a case must not be
reversed as against the manifest weight of the evidence. Berry v. Lupica, Cuyahoga
App. No. 95393, 2011-Ohio-3464, at ¶21, citing C.E. Morris Co. v. Foley Constr. Co.
(1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus; Gerijo, Inc. v. Fairfield, 70 Ohio
St.3d 223, 226, 1994-Ohio-432, 638 N.E.2d 533. “We therefore indulge every
reasonable presumption in favor of the trial court’s judgment, and to the extent that the
evidence is susceptible to more than one interpretation, we construe it consistently with
5
the jury’s verdict.” Id. (Internal citations omitted.)
{¶ 8} “[I]t is for the trial court to resolve disputes of fact and weigh the
testimony and credibility of the witnesses.” Bechtol v. Bechtol (1990), 49 Ohio St.3d
21, 23, 550 N.E.2d 178, 180. That is, an appellate court should not substitute its
judgment for that of the trial court when there exists competent and credible evidence
supporting the findings of fact and conclusions of law rendered by the trial judge.
Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.
{¶ 9} In the case sub judice, both parties’ experts agreed that appellant suffered
from Major Depressive Disorder but disagreed at trial as to whether appellant’s 2001
injury was a proximate cause of his depression. The sole question before the jury was
whether appellant’s October 4, 2001 injury was a proximate cause of his depression.
{¶ 10} “[A]n injury may have more than one proximate cause. * * * [W]hen two
factors combine to produce damage or illness, each is a proximate cause.” Musil v.
Truesdell, Cuyahoga App. No. 93407, 2010-Ohio-1579, quoting Murphy v. Carrollton
Mfg. Co. (1991), 61 Ohio St.3d 585, 587-588, 575 N.E.2d 828. The trial court provided
an instruction to the jury consistent with this point of law.
{¶ 11} Appellant testified that he first felt symptoms of depression when he
started working in the cafeteria. (Tr. 180.) Appellant stated that he hated working in
the cafeteria and that the job was degrading. (Tr. 156.) He was embarrassed when
confronted with former co-workers who looked down upon his cafeteria job and he felt
6
“worthless.” (Tr. 156.) Appellant testified that he became more depressed when he
realized he would be permanantly working in the cafeteria. (Tr. 160.) Appellant
testified that he wanted to recover and get out of the cafeteria job but that did not happen
and his depression worsened over time. (Tr. 161.) Appellant testified that the pain in
his back persisted and that it increased to a point where he could no longer take it in
January of 2008. (Tr. 187.)
{¶ 12} Appellant presented the expert testimony of Dr. Donald Weinstein, Ph.D.,
a psychologist who evaluated appellant. Dr. Weinstein explained that pain,
sleeplessness, irritability, and depression can become interrelated. (Tr. 53-56.) Dr.
Weinstein testified that as pain increases, depression can worsen. (Tr. 67.) Appellant
complained to Dr. Weinstein of being in constant pain. (Tr. 56.) Dr. Weinstein found
appellant’s pain level and depression to be related. Dr. Weinstein opined, to a
reasonable degree of psychological certainty, that the cause of appellant’s major
depressive disorder was his 2001 injury. (Tr. 72.) Dr. Weinstein did admit that the loss
of appellant’s employment was one of the causes of his depression. (Tr. 91.) Dr.
Weinstein further noted that there was no indication of appellant suffering from
depression prior to October of 2008. (Tr. 90.)
{¶ 13} Appellant argues that the jury heard no psychological testimony disputing
his expert’s opinion that his major depressive disorder was proximately caused by his
2001 injury. A review of the record reveals this not to be the case. Lincoln Electric
7
presented the expert testimony of Dr. Joel Steinberg, M.D., a physician who practices in
psychiatry. (Tr. 212.) Dr. Steinberg examined and evaluated appellant in August of
2009. Dr. Steinberg opined, to a reasonable degree of medical and psychiatric certainty,
that the primary cause of appellant’s major depressive disorder was the loss of work, his
continuing unemployment, and his negative feelings concerning the way his employment
with Lincoln Electric came to an end. (Tr. 239.) On appeal, appellant takes issue with
Dr. Steinberg’s use of the phrase “primary cause.” When asked to clarify at trial, Dr.
Steinberg testified that appellant not working was not the only cause of his depression.
Dr. Steinberg cited as other factors appellant’s feelings in regards to being “fired” and
the death of appellant’s father shortly before appellant ceased working. (Tr. 253.)
{¶ 14} Dr. Steinberg testified that appellant was hurt, angry, and disappointed
about being terminated from Lincoln Electric. (Tr. 230.) Appellant felt abandoned and
not working made him feel worthless. (Tr. 230.) Steinberg concluded that appellant’s
depression began when he was unable to work even his menial cafeteria job. (Tr. 234.)
While Dr. Steinberg stated that he could not “completely exclude” chronic pain as a
cause of appellant’s depression, he testified that he did not relate appellant’s depression
to chronic pain from the 2001 injury due to the long lag time between the injury and the
appearance of the depression. (Tr. 260-261.) Dr. Steinberg opined that there was no
direct, causal relationship between the injury and the depression and, that if the injury
had caused the depression, he would have expected appellant to seek treatment for the
8
depression much closer in proximity to the injury.
{¶ 15} “It is well established that the jury, as the trier of fact, is vested with the
power to judge the credibility of witnesses and to determine the weight to be afforded to
the evidence presented.” DeCapua v. Rychlik, Cuyahoga App. No. 91189,
2009-Ohio-2029, at ¶23, quoting Croft v. State Farm Mutual Auto. Ins. Co., 3d Dist. No.
1-01-72, 2002-Ohio-113, citing Swan v. Skeen (1974), 40 Ohio App.2d 307, 308-309,
319 N.E.2d 221. A jury is free to accept or reject any or all the testimony of any
witness, including testimony of an expert witness. Id., citing Weidner v. Blazic (1994),
98 Ohio App.3d 321, 335, 648 N.E.2d 565.
{¶ 16} “[T]he jury is not required to give any additional weight to the opinion of
an expert, if any weight at all. Rather, an expert’s opinion is admissible, as is any other
testimony, to aid the trier of fact in arriving at a correct determination of the issues being
litigated. Expert testimony is permitted to supplement the decision-making process of
the fact finder, not to supplant it.” Sawyer v. Duncan (Dec. 14, 2000), Cuyahoga App.
No. 78056.
{¶ 17} In the case sub judice, the evidence was susceptible to more than one
interpretation. Competing experts with opposite opinions were presented to the jury.
Thus, given the evidence set forth above and the presumption that the jury’s findings of
fact are correct, we cannot conclude that the jury’s verdict was against the manifest
weight of the evidence.
9
{¶ 18} Appellant also takes issue with a portion of Dr. Steinberg’s testimony
regarding the source of the pain that appellant was enduring. Though the court initially
allowed Dr. Steinberg to testify on this subject, the court later reversed its ruling because
Dr. Steinberg did not include this opinion in his expert report. (Tr. 265-278, 272.) The
trial court issued a curative instruction for the jury to disregard this portion of testimony.
(Tr. 277.) Curative instructions have been recognized as an effective means of
remedying errors or irregularities that occur during trial. State v. Ghaster, Cuyahoga
App. No. 91576, 2009-Ohio-2134, at ¶20, citing State v. Zuern (1987), 32 Ohio St.3d 56,
61, 512 N.E.2d 585. A jury is presumed to follow the instructions, including curative
instructions, given it by a trial judge. State v. Suber, Cuyahoga App. No. 95455,
2011-Ohio-2396, citing State v. Elko, Cuyahoga App. No. 83641, 2004-Ohio-5209; State
v. Hardwick, Cuyahoga App. No. 79701, 2002-Ohio-496.
{¶ 19} In light of the admissible portions of Dr. Steinberg’s testimony discussed
above we find that the jury’s judgment was supported by competent, credible evidence
going to all the material elements of the case.
{¶ 20} Appellant’s first assignment of error is overruled.
{¶ 21} Appellant argues in his second assignment of error that the trial court erred
in denying his motion for judgment notwithstanding the verdict. Specifically, appellant
argues that because Lincoln Electric’s expert, Dr. Steinberg, testified that he could not
exclude chronic pain as a cause of appellant’s depression, the jury’s verdict against
10
appellant was contrary to law.
{¶ 22} We review the denial of a motion for judgment notwithstanding the verdict
under the following standard: “The evidence adduced at trial and the facts established by
admissions in the pleadings and in the record must be construed most strongly in favor of
the party against whom the motion is made, and, where there is substantial evidence to
support his side of the case, upon which reasonable minds may reach different
conclusions, the motion must be denied. Neither the weight of the evidence nor the
credibility of the witnesses is for the court’s determination in ruling upon either of the
above motions.” Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271,
275, 344 N.E.2d 334. See, also, Civ.R. 50(B).
{¶ 23} A motion for judgment notwithstanding the verdict tests the legal
sufficiency of the evidence. This is a question of law that does not require the reviewing
court to weigh the evidence or test the credibility of witnesses. Berry v. Lupica,
Cuyahoga App. No. 95393, 2011-Ohio-3462, citing Ruta v. Breckenridge-Remy Co.
(1982), 69 Ohio St.2d 66, 430 N.E.2d 935.
{¶ 24} We find appellant’s argument to be without merit. As discussed above,
Dr. Steinberg opined that he did not relate appellant’s depression to chronic pain from
the 2001 injury due to the lag time between the injury and the appearance of the
depression. Indeed, appellant’s own expert testified that there was no indication of
appellant having depression prior to October of 2008. (Tr. 90.) Reasonable minds could
11
reach different conclusions based on the opposing expert opinions presented in regards
to the causes of appellant’s major depressive disorder. Lincoln Electric provided
sufficient evidence to support its position. Therefore, it was not error for the court to
deny plaintiff’s motion.
{¶ 25} Appellant’s second assignment of error is overruled.
{¶ 26} Appellant argues in his third assignment of error that the trial court erred in
denying his motion for a new trial.
{¶ 27} Civ.R. 59(A) provides in pertinent part that “[a] new trial may be granted
to all or any of the parties and on all or part of the issues upon any of the following
grounds: * * * (6) The judgment is not sustained by the weight of the evidence; (7) The
judgment is contrary to law; * * * (9) Error of law occurring at the trial and brought to
the attention of the trial court by the party making the application.”
{¶ 28} A trial court’s judgment on a Civ.R. 59 motion for a new trial is reviewed
under the abuse of discretion standard. May v. Marc Glassman, Inc., Cuyahoga App.
No. 93966, 2011-Ohio-1581, at ¶12, citing Eddingham v. XP3 Corp., Portage App. No.
2006-P-0083, 2007-Ohio-7135. The decision to grant a motion for a new trial rests
within the sound discretion of the trial court and will not be disturbed upon appeal unless
there has been an abuse of that discretion. Id., citing Pena v. N.E. Ohio Emergency
Affiliates, Inc. (1995), 108 Ohio App.3d 96, 104, 670 N.E.2d 268.
{¶ 29} Appellant presents three separate arguments for a new trial pursuant to
12
Civ.R. 59(A)(6), (7), and (9). Appellant’s arguments under Civ.R. 59(A)(6) and (7)
mirror his previously presented arguments in assignments of error one and two and lack
merit for the reasons aforementioned. In his Civ.R. 59(A)(9) motion, appellant
reiterates his previously presented argument that the trial court erred in permitting Dr.
Steinberg to testify regarding the cause of appellant’s current complaints of pain. As
noted in the first assignment of error, the trial court provided the jury with a curative
instruction and a jury is presumed to follow such instructions. We cannot say that the
trial court abused its discretion in denying appellant’s motion for a new trial on the basis
of any of these previously addressed arguments.
{¶ 30} Appellant’s third assignment of error is overruled.
{¶ 31} The judgment of the trial court is affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower 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.
EILEEN A. GALLAGHER, JUDGE
13
PATRICIA A. BLACKMON, P.J., and
JAMES J. SWEENEY, J., CONCUR
Appendix
Assignment of Error No. 1:
“The Jury’s verdict in favor of defendants-appellees was against the manifest
weight of the evidence (Journal Entry dated December 9, 2010.)”
Assignment of Error No. 2:
“The Trial Court erred by denying plaintiff-appellant’s motion for judgment
notwithstanding the verdict (Journal Entry dated January 25, 2011.)”
Assignment of Error No. 3:
“The Trial Court erred by denying plaintiff-appellant’s motion for new trial.
(Journal Entry dated January 25, 2011.)”