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Richards v. Santini-Diaz8/3/2000
topped short of claiming that any physician deliberately gave her unnecessary treatment. Santini never argued to the jury that Richards' husband had not lost any of his wife's services and tacitly agreed Richards did sustain injury by suggesting a jury award to her of $10,000.
The jury obviously agreed that Richards was injured as a proximate result of the auto collision but no interrogatory was submitted to delineate its compensation for each aspect of her claim. Therefore we have no way of knowing whether the jury found specific expenses improper; we know only that Santini did not specify which expenses should be excluded, but simply requested a general discounting based on the possibility that some of Richards' care was unnecessary or even fabricated.
Regardless of whether objections are made, the judge has discretion to admit or exclude evidence. Oakbrook Realty v. Blout (1988), 48 Ohio App.3d 69, 70, 548 N.E.2d 305, 307. When considering a motion for a new trial he has the discretion to review the evidence and determine the weight to be given. Under Civ.R. 59(A)(6), he concluded that the verdict was not sustained by the weight of the evidence. After hearing the evidence in this case, the judge reasonably could conclude that the jury imposed a general discount on Richards' damages based upon improper consideration of Santini's allegations of concocted claims.
Santini finally argues that the verdict was not so inadequate that it reflected the jury's passion or prejudice and cautions this court to be guided by our earlier decisions. We have held, however, that trial court is afforded wide discretion in determining the propriety of a new trial. Bell v. Mt. Sinai Med. Ctr. (1994), 95 Ohio App.3d 590, 595, 643 N.E.2d 151, 155. Moreover, we will reverse an order for a new trial only upon a showing of abuse of discretion.Kluss v. Alcan Aluminum Corp. (1995), 106 Ohio App.3d 528, 538-39, 666 N.E.2d 603, 610. A jury verdict should be set aside if a review of the record indicates any actions occurring during trial which reasonably can be said to have swayed the jury in the amount of damages it should award. Shimola v. Cleveland (1992), 89 Ohio App.3d 505, 514, 625 N.E.2d 626, 632. Here the judge made a finding from the evidence that the verdict was influenced by passion and prejudice and we cannot, from this record, find an abuse of discretion. This assignment of error is without merit.
Judgment affirmed.
It is ordered that the appellees recover from the appellant their costs herein taxed.
This court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County 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.
JUDGE ANNE L. KILBANE
DIANE KARPINSKI, P.J. AND JAMES D. SWEENEY, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION.
SWEENEY, JAMES D., J., CONCURRING:
I concur in judgment only and cite to concurring opinions in State v. Thomas, (May 13, 1999), Cuyahoga App. Nos. 72536 and 72537, unreported, and Garnett v. Garnett (Sept. 16, 1999), Cuyahoga App. No. 75225, unreported, at 3-4.
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