[Cite as Jawary v. Underwood, 2020-Ohio-5176.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA LAILA AL JAWARY, : Plaintiff-Appellant, : No. 108424 v. : ASHTEN E. UNDERWOOD, ET AL. : Defendants-Appellees. : JOURNAL ENTRY AND OPINION JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: November 5, 2020 Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-874770 Appearances: Obral, Silk & Associates, L.L.C., Mark J. Obral, and Thomas Silk, for appellant. Kenneally & Associates, Co., Terrence J. Kenneally, and Sean M. Kenneally, for appellees. ON SUA SPONTE RECONSIDERATION1 ANITA LASTER MAYS, P.J.: Plaintiff-appellant Laila Al Jawary (“Jawary”) appeals the denial of her motion for a new trial in a personal injury action. We reverse the trial court’s judgment in part and remand the case for a new trial on the issue of noneconomic damages. I. Background and Facts Jawary filed suit against defendant-appellee Ashten E. Underwood, Erie Insurance Company, and John Doe defendants on January 17, 2017, seeking damages for personal injuries suffered on February 13, 2015, when her vehicle was struck from behind by Underwood. The insurer answered and cross-claimed against Underwood. The claims against the insurer were dismissed without prejudice under Civ.R. 41(A) on September 11, 2017. On February 27, 2019, a jury trial commenced before a visiting judge due to a docket conflict. On March 1, 2019, the jury unanimously awarded Jawary $10,590 for past medical damages but did not award past or future or noneconomic damages for pain and suffering, by a six to two vote. Jawary advises that the trial court went to speak with the jury after the verdict. The trial court emerged from the jury area and informed Jawary’s 1 This court sua sponte overrules its motion No. 537819, dated May 11, 2020, that denied reconsideration in this case. The original announcement of decision in Jawary v. Underwood, 8th Dist. Cuyahoga No. 108424, 2020-Ohio-1272, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C). See also S.Ct.Prac.R. 7.01. counsel that two jurors, a doctor and a nurse, told the jury during deliberations that Jawary’s cervical disk fracture could not have been caused by a rear impact of her vehicle. On March 15, 2019, Jawary moved for a new trial. Jawary argued that the jury’s failure to award compensation for pain and suffering was against the manifest weight of the evidence under Civ.R. 59(A)(6) and was due to passion or prejudice under Civ.R. 59(A)(4). Jawary also argued that jury misconduct under Civ.R. 59(A)(2) was a factor that fostered passion or prejudice under Civ.R. 59(A)(6). Jawary requested an evidentiary hearing and Underwood opposed the request. On April 11, 2019, the original judge summarily denied the motion. Jawary appeals. II. Error and Discussion Jawary poses a single assigned error based on Civ.R. 59(A)(2), (4), and (6): “The trial court erred [by] denying plaintiff’s motion for new trial on the issue of noneconomic damages stemming from plaintiff’s broken neck.” We find that the ...
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