The opinion
Grady, Judge,
dissenting.
{¶ 29} I respectfully dissent from the decision of the majority.
{¶ 30} Section 16, Article I of the Ohio Constitution provides: “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”
{¶ 31} The broad guarantees of Section 16, Article I are nevertheless subject to the limitations imposed on the prosecution of claims for relief by rules of practice and procedure promulgated by the Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution. One of those, Civ.R. 50(A)(4), authorizes the court to direct a verdict on any issue determinative of a claim for relief, on the evidence presented, which is adverse to the party that presented the evidence, when the court finds that reasonable minds could only reach that conclusion. However, in so doing, the court must have construed the evidence most strongly in favor of party against whom the verdict is directed.
{¶ 32} In
Darnell v. Eastman
(1970), 23 Ohio St.2d 13 , 52 O.O.2d 76 , 261 N.E.2d 114 , the Supreme Court held:
*749
{¶ 33} “Except as to questions of cause and effect which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a
specific subsequent physical disability
involves a
scientific inquiry
and must be established by the opinion of medical witnesses competent to express such opinion. In the absence of such medical opinion, it is error to refuse to withdraw that issue from the consideration of the jury.” (Emphasis added.) Id., syllabus.
{¶ 34} The claim for relief in
Eastman
arose out of an automobile collision. The plaintiff claimed that as a proximate result of an injury to his nose, he suffered severe nosebleeds that required surgery to correct. The only medical evidence presented showed that the surgery was performed to correct a deviated septum. However, no evidence was offered to show that the deviated septum was a condition that proximately resulted from the collision and the defendant’s alleged negligence. The plaintiffs claim that the physical disability, the deviated septum, was somehow connected to the trauma he suffered presented the jury with a scientific inquiry that the jury could not competently resolve without the assistance of expert witness evidence.
{¶ 35} In the present case, defendant’s complaint alleges:
{¶ 36} “2. As the proximate result of the negligence of Defendant Huong T. Nguyen, Plaintiff Kim K. Lasley sustained injuries and damages as follows:
{¶ 37} “a. Severe and permanent injuries;
{¶ 38} “b. Great pain and suffering, both physical and emotional, and loss of ability to perform usual function and the injuries will cause further pain and suffering and loss of ability to perform usual functions in the future; and
{¶ 39} “e. Reasonable and necessary medical expenses in an amount yet to be determined, as well as further medical expenses to be incurred in the future.”
{¶ 40} Plaintiff Lasley offered her own testimony to prove the injuries and losses alleged in her complaint. The trial court granted defendant’s motion for directed verdict on a finding that, in addition, expert evidence was required to prove her claim for relief.
{¶ 41} Plaintiff neither alleged nor sought to prove a “specific subsequent physical disability” similar to the deviated septum in
Eastman .
Plaintiff merely alleged trauma to her person that caused pain and suffering. She is entitled to seek a remedy for her injury in open court. Section 10, Article I, Ohio Constitution. She did not plead and she is not required to prove a particular physical disability in order to prosecute her claim. Therefore, the jury was not confronted with the kind of scientific inquiry that in
Eastman
required proof through expert witness evidence.
*750
{¶ 42} The trial court followed the holding of the First District Court of Appeals in
Rogers v. Armstrong
(Mar. 15, 2002), Hamilton App. No. C-010287, 2002 WL 397728 , which applied the rule of
Eastman
to soft-tissue injuries. Injuries of that kind are not readily susceptible to objective diagnosis by a physician, who typically must depend on the patient’s subjective complaints to make a diagnosis. Any physician who then recommends a course of treatment on the diagnosis the physician made necessarily assumes the truth of the patient’s complaints. There seems to be little purpose in requiring the plaintiff to present evidence of the diagnosis, in addition to the plaintiffs own testimony, to prove that an injury occurred.
{¶ 43} The critical issue is whether the jury can decide the claim for relief without making a scientific inquiry.
Eastman
reasonably required expert witness evidence because, on the record before the court, the jury could not determine the alleged connection between the plaintiffs deviated septum and the trauma she suffered without making the related scientific inquiry. In the present case, it is within the common knowledge of jurors that a jolt resulting from an automobile collision can produce pain and discomfort for persons who are inside the automobile. That’s all the plaintiff claimed. Requiring her to produce expert witness testimony to prove the existence and/or operation of a sprain and strain injury that can cause pain of that kind is unnecessary to the inquiry the jury was required to make.
{¶ 44} Invading the jury’s function further, the trial court decided that expert testimony was required to sort out the injury plaintiff claims she suffered from her pre-existing medical conditions. It is the defendant’s burden to prove that some or all of the pain plaintiff claims was caused by the collision is instead attributable to her pre-existing conditions. Those facts may weigh against the plaintiffs case in the eyes of the jury, but they are not a basis to allow the court to relieve defendant of its burden of proof by granting a defendant’s motion for directed verdict.
{¶ 45} I would sustain the first assignment of error.