NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0980n.06 Nos. 09-4000/10-4457/10-4458/10-4497 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

L I NDA CHAPMA N, Administrator of the Estate of John Chapman, Dec ease d, Plaintiff - Appellee ,

v. MI L FORD TOWI

NG & SERV I CE, I

NC.; J OHNNY WHI TAKER, Def endants - A

ppellants. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE SOUTHERN DI STRI CT OF OH I O

OPI NI ON

Be fore : BATCHEL DER, Chief J udg e; NORRI S and STRANCH, Circuit J udg es. JANE B. STRANCH , Circuit J udg e. Milford Towing & Service, I nc. (Milford Towing), and its employ ee, J ohnny Whit aker , appea led the jury ’s verdic t ag ainst them in this neg lige nce case , along with the district court’s order s awa rding prejudg ment interest on a portion of the damage s

awa rd. Milford Towing ’s insurer, Motorists Mutual I nsuranc e Company (Motorists Mutual), its inhouse attorney s, Steven Ranck and Tammy Bur g oy ne, and outside trial counsel, Fe lix Gora , appea l the district court’s order s awa rding prejudg ment interest. The injured party , J ohn Chapman, crossappea led the orde rs on pre judgme nt interest. For

the re asons explained below, we AFF I RM. 1

During the pendenc y of these appea ls, Chapman died and the court substitut ed as a p ar t y 1 L inda Chapman, the a dminist rator of Chapman’s e state.

1I. F ACTS AND P ROCEDURAL HISTORY

On the morning of November 9, 2005, J ohn Chapman was driving an 18-whe el trac tor-tra iler southbound on I nterstate 71 ne ar Cincinnati, Ohio. He felt the trailer drag g ing, a s though the rea r tandems were not g etting enoug h air pressure. Chapman pul led off onto the right sh o u l d er o f t h e interstate and stopped. He place d war ning triang les along the paveme nt behind the trac tor-tra ile r and
contac ted his dispatcher to reque st a service man to repa ir the vehicle. Chapman then went into the sleepe r ca b to rea d and re lax whil e wa iting for the re pairman to a

rrive. Whit aker , a tow truck driver for Milford Towing , responde d to the scene . The parties hotly disputed the conve rsation that followed be tween Cha pman and Whitaker. Chapman testified that he told Whit aker he thought he had an air leak and he was waiting for

a service man to show up to r epair the truck. When Whit aker explained that he was sent to tow the truck, Chapman replied that the truck was not his and Whit aker should not touch it until Chapman
contac ted hi s dispatcher to rec eive a pproval for

a tow. Chapman the n returne d to the t ruck cab to call the dispatc her a

nd org anize his personal e ffe cts in the eve nt the vehicle w as towed. Whit aker t es tified that Penske L easing , the owner of the trac tor Chapman was driving , dispatched him to tow the trac tor-tra iler, and upon arr ival, Whit aker parke d his tow truck about five fee t in front of Chapman’s trac tor. Chapman told him that the truck would not run. Whit aker denied that Chapman stated he neede d to contac t his dispatcher to confirm whether the trac tor-tra iler should be towed. Whit aker told Chapman to watch out and move out of the way so that he could hook up t h e t ow truck to the trac tor-tra iler. Chapman moved to a g rassy are a on the passeng er side of t h e truck, but afte r that Whit aker did not keep trac k of Chapman’s wher eabouts. He did not know that Chapman climbed ba ck into the trac tor’s ca b.

2Whit aker testified that he hooked the tow truck to the trac tor-tra iler and raised the front end

of the trac tor approximately twelve to eig hteen inches off the g round. Whit aker then g ot under the
trac tor and attache d chains so that the truck’s axle would not move during towing. This proce ss took fiftee n to twenty minutes. Whit aker then walked down the passeng er side of the tow truck, rounded the front, and walked down the driver’ s side toward the rea r of the tow truck to activate the controls. Be fore Whit aker g ot to the back of his truc k, he saw the driver’ s door of Chapman’s trac tor open. Chapman started climbing out of the cab, but he lost his balanc e and fell mid-air into the passeng er side of a box truck passing by in the rig ht lane of the interstate. Chapman suffe red serious injuries 2 to his right leg , sever al ver tebra e, and r ibs. The leg injury require d amputation above the knee. C h ap m an testified that he chec ked the trac tor’s mirrors and waited for car s to pass before starting to climb out of the cab. As he lowere d his foot to the bottom step, he “g ot the sensation of
t h e t ruck moving” and lost his balanc e. The defe nse challeng ed Chapman’s trial testimony as i n conflict with his prior account. At deposition, Chapman said he fe lt the trac tor being raised as he started to climb out of the truck, he felt a jerk, and he was shaken or thrown off the truck as he was climbing down. The defe n s e co n t ended that Chapman chang ed his testimony beca use Chapman lear ned afte r his deposition that Whit aker had alre ady raised up the trac tor by the time Chapman fell. The defense al s o contended that Chapman was wea ring sandals when he climbed out of t he truck cab, e ven thoug h Chapman testified he was we aring tennis shoes. Three experts testified at trial conce rning a tow truck o p er at o r’s standard of car e: two for plaintiff and one for the defe nse. The experts g ener ally ag ree d on the steps a tow truck opera tor must

The box truck was owned by Diller Medica l, I nc. (Diller Medica l), and was driven by Ricky 2 Armstrong

. Early in the litigation, Chapman stipulated to the dismiss al without prejudice of these two defe ndants, rese rving the rig ht to refile suit ag ainst them within one y ear . 3take to insure the safe ty of individuals during the proce ss of towing a vehicle. O ne expert told the

jury that the standard of car e require d Whit aker to ask Chapman if he neede d t o g et back into his truck for any

thing befor e the hook-up and lift beg an. Chapman’s experts opined that Whit aker violated the standard o f car e. Milford Towing ’s expert testified that Whit aker did not violate the standard of car e, but if the jury believed Chapman’s testimony , then Whit aker brea ched the standard of ca re. I n addition to his trial testimony , Whit aker g ave a statement to the pol i ce at t h e acc ident

scene . He also g ave a rec orded teleph o n e i n t er view to a claims adjuster for Cincinnati I nsuranc e Company , the insurer of Diller Medica l. I n neit h er statement did Whit aker mention that he told Chapman to move out of the way befor e he started the towing proce ss. Also, in the interview with the adjuster for Cincinnati I nsuranc e, Whit aker repor ted that Chapman told him the truck “wouldn’t run rig ht,” which supporte d Chapman’s ve rsion of the e vents. The jury found neg lige nce on both sides and assessed seventy -five perc ent compar ative fault
to Whit aker and Milford Towing and twenty -five perc ent compar ative fault to Chapman. The jury

awa rded Chapman total compensa tory damag es of $2,000,513.00, which the district court reduc ed by twenty -five pe rce nt to $1,500,384.75. Chapman then filed a post-judgme nt motion seeking pre- judgme nt interest on the jury awa rd under Ohio Rev. Code § 1343.03(C)(1) (West 2009). Following discove ry , the district court he ld

an evidentiar

y hear ing and subsequently enter ed an order finding that Motorists Mutual and its staff did not rationally evalua te the risks of litigation or the defe ndant s ’ p o t en t i al liability

. The court further found t hat M otorists Mutual’s settlement appr oval of only $100,000.00 at all times during the l itigation, including court mediation, was not objectively rea sonable, es p ec i al l y when defense

4counsel informed Motorists Mutual in Marc h 2009 that a jury verdic t for Chapman could rang e

betwee n $750,000.00 and $1.75 million under diffe rent sce narios of c ompara tive fault. The c ourt ruled that prejudg ment interest would run from May 10, 2006, the date Chapman g ave the defe ndants and their insure r notice of the claim in ac corda

nce w ith the statute. I n a supplemental order , the district co u rt deter mined that the portions of compensa tory damag es repr esenting medical loss in the amount of $280,514.00 and lost wag e ear nin gs i n t he
amount of $430,749.00 “ar e prese nt and acc rued damag es.” The two amounts added toge ther totaled $711,263.00. The court reduc ed that amount by twenty -five perc ent and awa rded pre- judgme nt interest on $533,447.25. The cour t fu rt h er found that the portion of compensa tory damag es repr esenting non-ec onomic loss of $ 1 , 2 8 9 , 2 50.00 constituted future damag es not subject to prejudgme nt interest. II. ANALYSIS The defe ndants raise four challeng es o n appeal, and Chapman cross-a ppeals, alleg ing one

err or in the calc ulation of prejudg ment interest. Having car efully revie wed the rec ord, we conclude that the district court did not commit err or when it ref used to g ive Ohio J ury I nstruction § 405.05 on intervening and super seding cause or when the court refuse d to give a cur ative instruction about a defe nse wit n es s ’s brief mention of “Cincinnati I nsuranc e.” The court proper ly admitted into evidenc e Whit aker ’s rec orded telephone interview with the claims adjuster for Cincinnati I nsuranc e b ec au se i t was the statement of a party opponent and a busi ness record. Finally , the court did no t

err in gr anting or ca lculating pre- judgme nt interest.

5A. Requeste d in struct ion on interve nin g and s uperseding cause

1. Standard of Review I n a d i v er s ity case , state l aw determines the substance of jury instructions, but fede ral law g overns t h e s t andard of revie w and any questions conce rning the propriety of the instructions. Hisrich v. Volvo Cars of N. Am., Inc. , 226 F.3d 445, 4 4 9 (6 th Cir. 2000). We revie w a district

co u rt ’s refusal to g ive a reque sted jury instruction for an abuse of discretion. Id. An “abuse of discretion” is define d “as ‘a definite and firm conviction that the trial court committed a clea r err or of judgme nt.’” Id. (quoting Bowling v. Pfizer, Inc. , 102 F.3d 777, 780 (6th Cir. 1996)). We revie w the jury instructions as a whole to decide whether the instructions as g iven adequa tely informed the jury of the rele vant considera tions and provided a basis in law to assist the jury in re ac h i ng its decision. Id. The district c ourt’s re fusal to g ive an instruction is reve rsible er ror if the instruction

was a corr ect state ment of the law, the i nstruction was not substantially cover ed by other charg es, and the failure to g ive the instruction impaired the reque sting party ’s theory of the case . Id. We will

reve rse only if the instructions, vie wed as a whole, wer e confusing , misleading , or prejudicia l. Id. 2. Defendants hav e not shown instructional error I n their proposed jury instructions, Milford To wi ng and Whit aker reque sted Ohio J ury I nstruction § 405.05(4) on inter vening and super seding cause as follows: I NDEPENDEN T SUPERS EDI NG CAUSE. Causal connec tion is broken wh en another ’s neg lige nt act, which could not ha ve been rea sonably fore seen and is f ully independe nt of the defendants’ neg lige nce, intervene s and completely remove s the eff ect of the def endants’ ne g lige nce, a

nd become s itself the proxi mate cause of the injury

.

6After hear ing the parties’ arg uments and considerin g o p t i o ns during the jury char g e

confe renc e, the district court decide d to include only the following lang uag e as part of its proxi mate

cause instruction:

There may be more than one proxi mate cause . The fac t that some other cause combined with the neg lige nce of a defe ndant in producing an injury does not relieve the defe ndant from liability unless it is shown such other cause would have produce d the injury independe ntly

of the de fenda

nt’s neg lige nce. The c ourt also instructed the jury on rea sonable fore seea bility and followed with a n instruction on compar ative neg lige nce. The district court explained to defe nse counsel that the court’s instructions would allow him
to arg ue to the jury that Chapman’s neg lige nce was an independe nt act that cause d his own injuries, reg ardle ss of any

thing done by the defe ndants, and that Chapman’s injuries would not have occur red but for Chapman’s own neg lige nce. The court was conce rned that adding any further lang uag e might confuse the jury

. Although the instruction reque sted by the defense was g ener ally a correc t statement of the law, we are not convince d that the district court was require d to g ive the instruction on the fac ts of this case . The Oh i o S u p re me Court has held that “the test to be used to deter mine whether the intervening act was fore seea ble and there fore a conseque nce of the orig inal neg lige nt act or whether the interve ning a ct oper ates to absolve the orig inal actor ” is “‘w hether the original and succe ssive
acts may be joined toge ther as a whole, linking eac h of the actor s as to the liability , or whether there is a new and independe nt act or cause which intervene s and there by absolves the orig inal neg lige nt actor .’” Leibreich v. A.J. Refrigeration, Inc. , 617 N.E.2d 1068, 1071 (Ohio 1993) (quoting Cascone

v. He r b Kay Co. , 451 N.E.2d 815, 819 (Ohio 1983)). The term “indepe ndent” is define d as “t h e

7absenc e of a ny connec tion or relationship of cause and eff ect betwee n the orig inal and subsequent
act of neg lige nce.” Id. at 1071–72. “The term ‘new ’ means that the second act of neg lige nce could

n o t re as onably have been fore seen.” Id. at 1072 (empha sis omitted) (interna l quotation marks omitted). There fore , whether an interve ning a ct bre aks the c ausal c onnection between neg lige nce and injury is de pendent upon whether the interve ning c ause w as re asonably fore seea ble to the one who was initially neg lige nt. Id. The “interve ning cause must be disconnec ted from the neg lige nce of the first p erson and must be of itself an eff icient, independe nt, and self-pr oducing cause of the injury .” Berdyc k v. Shinde , 613 N.E.2d 1014, 1025 (Ohio 1993); T h r o p p v. Bache Halsey Stuart Shields, Inc. , 650 F.2d 817, 821 (6th Cir. 1981) (noting , under Ohio law, that an intervening cause must produce the result without the cooper ation of the origi n al wr o n g ). See also Potter v. Ford Motor Co. , 213 S.W .3d 264, 274 (Tenn. Ct. App. 2006) (obser ving that “the intervening cause doctrine is inapplicable wher e the alleg ed interveni n g , superse ding cause is the plaintiff’s own neg lige nt conduct”)

. The dist rict court did not err in concluding that Chapman’s conduct in climbing out of t he truck fell within the scope of the fore s eea ble risk that Whit aker ’s neg lige nce cre ated, and thus, Chapman’s conduct could not be considere d an intervening and superse ding cause under Ohio law. That conclusion is supported by Prosser and Keeton on The Law Of Torts , § 44 at 303–04 (5th ed. 1984) (f ootnote omitted), which provides: Obviously the defe ndant cannot be relieve d from liability by the fac t that the risk, or a substantial and important part of the risk, to which the defe ndant has subjected the plai n t i ff h as indeed come to pass. For esee able intervening forc es are within the scope of the original risk, and hence of the defendant’s neg lige nce. The courts are quite g ener ally

ag ree d that intervening cause s which fa ll fairly within this cate g ory will not supersede the defe ndant’s re sponsibili ty

.

8The defe ndants’ relianc e on Thrash v. U- Dr i ve-It Co. , 110 N.E.2d 419 (Ohio 1953), is

misplaced. I n t h at ca s e, a vehicle leasing company sold a used truck it owned to an automobile deale r who in tur

n sold the truck to a purcha ser whose son was injured as the result of a defe ct that exis ted in the truck at the time the leasing company owned it. The Ohio Supreme Court ruled, under the specific circ umstances of t h e ca s e, that the leasing company could invoke the defe nse of intervening and superse ding cause beca use it had sold the truck “as is” to the deale r and “exerc ised no control” with r espec t to the future dispositi on of the truck. Id. at 423. Not only are the fac ts of Thrash differ ent from those in our case , but Ohio law on intervening an d superse ding cause subsequently

evolved in Cascone and Leibreich , the ca ses we a pply here

. M il f o r d T o w ing also cites Powell v. Consolidat ed Rail Corp. , 510 N.E.2d 818 (Ohio Ct. App

. 1986) (pe r cur iam), but the conc ept of intervening and superse ding cause was not the basis for the decision of the Ohio Court of Appea ls in that case . There , a vehicle opera tor drove around lowere d railroa d crossing g ates resulting in a collision with a train. Id. at 819. The driver and her daug hter

wer e killed and the driver’ s son was injured. Id. The driver’ s husband filed suit ag ainst the railroa d alleg ing neg lige nt failure to maintain t h e crossing g ates, which historically lowere d even when a train was not approa ching

. Id. at 820. T h e Ohio Court of Appea ls aff irmed a g rant of summary judgme nt for the railroa d, concluding that the driver’ s decision to g o around the lowere d g ates without looking down the tr ac k s to see if a train was coming was the sole proxi mate cause of the fata lities and injuries. Id. at 821. I n t his case , if the jury had found that Chapman was the sole proxi mate ca

use of his own injuries, the court’s instructions and verdict forms allowe d the jury to return a defe nse verdic t, but the jury did not do so. I nstead, t h e jury found both Whit aker and Chapman neg lige nt and assig ned g rea ter fa ult to W hitaker.

9Milford Towing also cites Austermiller v. Dosick , 767 N.E.2d 1248 (Ohio Ct. App. 2001), i n which a phy sician alleg ed that a pharma cy ’s intervening and superse ding neg lige nce in fi l l i n g presc riptions for a m ed i ca tion that ultimately cause d the patient’s death completely relieve d the phy sician of liability

. The court reve rsed a direc ted verdic t for the phy sician and rema nded for a jury deter mination of whether the pharma cy ’s neg lige nce constituted an intervening and superse ding

cause . Id. at 1250–51. Austermiller repr esents t h e cl as sic fac t situation wher e a third party ’s neg lige nce may intervene and superse de the n egl i g ence of the first actor

. The patient’s own neg lige nce was not the issue. The case is inapplicable here beca use the defe ndants did not identify a third par

ty whose ne g lige nce w as interve ning a nd superse ding to r elieve the m of liability

. Whil e the district court was not require d to g ive § 405.05(4) under the fac ts of this case , the
court substantially cover ed the defe nse reque st when it instructed the jury on proxi mate causa tion. See Hisrich, 226 F.3d at 449. Def ense counsel repe atedly arg ued during closin g ar gu m en t that Chapman’s conduct was the sole proxi mate cause of his injuries. Thus, the defe nse was not limit ed to arg uing only

compar ative neg lige nce. The district court did not abuse its discretion in cra fting the instructions or in ref using to g ive the entire ty

of § 405.05(4) . We affir m on this i ssue. B. Curative instruction 1. Standard of review We revie w a district court’s ref usal to give a reque sted jury instruction for abuse of discretion. See Hisrich , 226 F.3d a t 449.

102. The district court did not err in refusing a curative instruction Patrick Gra tzi anna, a defe nse expe rt wi t n es s , made a brief ref ere nce befor e the jury to “Cincinnati I nsuranc e,” the insurer of Di ller Medica l. During cross-e x amination, Chapman’s counsel a sked Gratzi anna a bout various documents he revie wed: Q. And y ou also revie wed Mr. Whit aker ’s rec orded statement, Ex hibit 20. You have a copy of that, don’t y ou? A. Yes. That was with the Cincinnati I nsuranc e? Q. No, no, no. I t was Exhibi t 20 in this book. Take a look in this book. Def ense counsel did not obj ec t o r re q u est an immediate cura tive instruction, but later that day he

s u b m i tted a written cura tive instruction and asked the court to include it in the court’s final jury instructions: T he Cincinnati I nsuranc e Company was mentioned by Mr. Gra tzi anna . T h e Cincinnati I nsuranc e Company does not insure Mr. Whit aker or Milford Towing or the P laintiff. There is no evidenc e before y ou that the de fe n d an t s or pl aintiff have or do not have insurance

. W h et h er such insurance exis ts has no bear ing upon any issue in this case. You must not discuss or consider it for any purpose. The district court char acte rized Gra tzi anna’ s comment as not “eve n a foul tip. I t was just a loose comment t h at I t h ink rig ht now is better off left quiet without any further instruction to highlig ht

. . . the comment itself.” The court ag ree d to addre ss the issue if the jury posed a question about insuranc e during delibera tions. Evidence of insurance is g ener ally not admissible at trial unless it is offe red for a purpose permitted by Fe deral Rule of Evidence 411. See also Piontkowski v. Scott , 582 N.E.2d 1002, 1003–04 (Ohio Ct. App. 1989). Gra tzi anna’ s brief ref ere nce to “Cincinnati I nsuranc e” was inadver tent and unresponsive to the question Chapman’s counsel asked. Counsel hurriedly diverted

11t h e j ury ’s attention from the comment and, unlike the case s on which defe ndants rely , d ef en s e counsel did not ask the court contempora neously to strike the witness’s rema rk and instruct the jury
to disreg ard it, nor did counsel ask for an immediate cura tive instruction. Cf. e.g. , K a l trider v. Y MCA of Cleveland, Ohio , 457 F.2d 768, 770 (6th Cir. 1972) (holding mistrial unwar rante d wher e contempora

neous objection was made to single mention of i n s u ranc e and court g ave cautionar y instruction); Davis v. W

al-Mart S t o r es , Inc. , 967 F.2d 1563, 1565–66, 1568–69 (11th Cir. 1992) (holding no prejudice occur red wher e party made contempora neous objection to brief rema rk about insurance during closing arg ument and cour t ga ve ca utionary instruction). This Court held long ag o that, when a trial statement conce rning ins u ra n ce i s casua l, not soug ht by counsel, and “is inadver tently injected into the case i n the abse nce of bad fa ith, with no purpose to profit there by , the er ror will be reg arde d as not pr ejudicial[.] ” Terminal Transp. Co. v

. Berry , 217 F.2d 32, 3 4 (6 t h C i r. 1954). Counsel’s decision not to object to the comment immediately was appar ently a matter of trial tactics. See id. By the time defe nse counsel asked the district court to add the cura tive instruction to the final set of jury instructions, howeve r, “it is likely emphasis and prominence would have been gi v en t o [ the comment] and g rea ter damag e done appellant than le tting it alone.” Id. at 34–35 (interna l quotation marks omitted). The district cour t did not abuse its discretion when it decide d that highlig hting Gra tzi anna’ s comment to the jury might do more ha

rm than g ood and the issue should be “ left quiet.” C. Adm ission of Wh itaker’s inter view w ith Cincin nati Ins urance 1. Standard of review We revie w a co n t es t ed evidentiar y ruling for an abuse of the trial court’s discretion. See Harris v. J.B. Robinson Jewe lers , 627 F.3d 235, 240 (6th Cir. 2010). Chapman urg es us to revie w

12this iss ue only for plain err or, corr ectly

alleg ing tha t defe ndants did not raise the pr ecise objection to the evidenc e at tria l as defe ndants now ra ise on appe al. The de fenda nts did, however, obje ct to admission of the evidenc e befor e and during trial. Be cause the issue is easily resolved in plaintiff’s favor under the abuse- of-discr etion standard, we find no need to apply the highe r standard of revie w. 2. W hitaker’s prior statement was properly admitted At the close of Chapman’s case , the district court admitted into evidenc e Plaintiff’s Ex hibit 20, the written transcr ipt of a telephone statement Whit aker g ave to Cincinnati I nsuranc e Company

on May 9, 2006. The defe ndants contend Ex hibit 20 was inadmissible beca use Whit aker conce ded
at trial that he made the prior inconsistent statement and there fore , extrinsi c proof of the statement was not admissible. For support, the defe ndants rely on Rush v. Ill. Central R.R. Co. , 399 F.3d 705, 723 (6th Cir. 2005), and two simil ar case s from the Fifth Circuit, United States v. Gree r , 806 F.2d 556, 559 (5th Cir. 1986), and United States v. Sisto , 534 F.2d 616, 6 2 2 (5th Cir. 1979). Those authorities are distinguishable beca

use the witnesses who made the prior incons is te n t s ta te me n ts in those case s wer e

n o t named parties, as is Whit aker in this case . Be cause those courts wer e confr onted wi t h p ri o r inconsistent statements of non-par ty witnesses, the courts applied Fe dera l Rule of Evidence 613 to bar extrinsi c evidenc e of prior incon s i s t ent statements afte r the witnesses admitted making the
statements. I n contra st, Whit aker ’s prior statement was admissible ag ainst him as substantive evidenc e under F eder al Rule of Evidence 801(d)(2)( A) as the s tatement of a par ty opponent. See Bondie v. Bic Corp. , 947 F.2d 1531, 1534 (6th Cir. 1991). At the time of trial, Rule 613 e x pressly provided that “[t] his provision does not apply to admissions of a party -opponent as define d in rule 801(d)( 2).”

13Fe d. R. Evid. 613(b). Thus, the relianc e by t h e d ef en s e o n R ule 613, Rush , Gree r , and Sisto is 3 faulty

. See United States v. Kenny , 645 F.2d 1323, 1340 (9th Cir. 1981). The defe ndants also arg ue that the statement was inadmissible beca use Whit aker did not write it or revie w it, but “whe n a statement is the party opponent’s own statement, there is no require ment that the p arty opponent ‘adopt’ the statement.” Bondie , 947 F.3d a t 1534. The de fense did not question the authenticity of W hitaker’ s statement. The transcript was admissible und er the business rec ords exception beca use a Cincinnati I nsuranc e repr esenta tive testified that the document was “made at or near the time by , or from information transmitted by , a person with knowledg e,” the document was “kept in the course of a reg ularly conduc t ed b usiness activity ,” and “it was the reg ular prac tice of that business activity to make” the rec ord. Fe d. R. Evid. 803(6) ; Bondie , 947 F.2d at 1534 (holding social worke r’s repor t a bout pla intiffs’ statements was 4 admissible throug h the combined eff ect of Rules 801(d)( 2)(A) and 803(6))

. See also Essex Ins. Co.

v. Fid. Guar. Ins. Underwriters, Inc. , 282 F. App’x 406, 411–12 (6th Cir. 2008) (holding transcr ipt of witness interview taken by insurance ag ent fell within Rule 803(6), but no other hear say exception applied to allow admission of the statem en t s wi t h i n the transcr ipt as substantive evidenc e). The defe nse further contends that Chapman did not call a proper foundation witness to testify , but Rule 803(6) provides that the requisite showing must be made throug h “the testimony of the custodian or other qualified wi t n es s.” Chapman called a qualified witness to testify

. Finally , the defe ndants contend that Rule 803(6) cannot apply beca use the transcr ipt was not the business rec ord of Milford

Rule 613(b) wa s amende d eff ective D ece mber 1, 2011. 3 This rule was also amende d eff ective Dec ember 1, 2011, but the lang uag e we quote was in 4 eff ect a t the time of trial. 14Towing

. This contention s imply miscontrues R ule 803(6), whi ch re q u ires only that the record be

kept in the course of a reg ularly conducte d business activity

. Finding no abuse of discretion in the admission of Ex hibit 20, we aff irm on this is sue. D. P re- judgme nt interestaward 1. Standard of review I n a diversity case , state law g overns the di s trict court’s decision whether to awa rd prejudgme nt interest on damag es, and we revie w that deter mination for an abuse of discretion. Fe d. R. Civ. P. 59(e) ; Conte v. Gen. Housewares Corp. , 215 F.3d 628, 633 (6th Cir. 2000). A district court abuses its discretion if it does not awa rd pre-judg ment interest that is mandatory u n d er state l aw. V en t a s , Inc. v. HCP, Inc. , 647 F.3d 291, 328 (6th Cir. 2011). “The Ohio courts have define d an abuse o f d i s cretion, in the context of prejudg ment interest awa rds, as a result ‘so palpably and g rossly violative of fac t and logic that it evidenc es not the exercise of will but perve rsity of will, not the exercise o f j u d g ment but defia nce there of, not the exercise of rea son but rathe r of passion or bias.’” Conte , 215 F.3d a t 633 (quoted ca ses omitted). 2. Pre-judgme nt interest was properly awarded At the time of trial, the pe rtinent Ohio statute provided in pa rt: I f, upon motion of any party to a civil action that is based on tortious conduct, that has not been settled by ag ree ment of the parties, and in wh i ch t h e court has rende red a judgme nt, decr ee, or order for the pay ment of money , the court deter mines at a hear ing h el d s u b sequent to the verdic t or decision in the action that the party require d to pay the money failed to make a g ood faith eff ort to settle the case and that the party to whom the money is to be paid did not fail to make a g ood faith eff ort to sett le the case , interest on the judgme nt, decr ee, or order shall be computed [as provided in the statute.]

15Ohio Rev. Code Ann. § 1343.03(C)(1)

. Section 1 3 4 3

. 0 3 ( C) ( 2 ) p r o v id e s , howeve r, that pre- judgme nt interest shall not be a

war ded on future damag es found by the trier of

fac t. The purposes of pre-

judgme nt interest are to promote settlement eff orts, preve nt tortfea sors from delay

ing the ultimate resolution of case s, conser ve resour ces, promote judicial economy , and compensa te the plaintiff for the defe ndant’s use of money which rig htfully belong ed to the plaintiff. Musisca v. Massillon Cmty. Hosp. , 635 N.E.2d 358, 360 (Ohio 1994); Kalain v. Smith , 495 N.E.2d 572, 574 (Ohio 1986); Pey ko v. Frederic k , 495 N.E.2d 918, 921 (Ohio 1986). Acc ording to the Ohio Supreme Court,

A party has not “fa iled to make a g ood faith eff ort to settle”

. . . i f h e h as (1) fully cooper ated in disc overy proce eding s, (2) rationally evalua ted his r isks a nd potential liability , (3) not attempted to unnece ssarily delay any o f t h e proce eding s, and (4) made a g ood faith monetary settlement offe r or responde d in g ood faith to an offe r fr om the other pa

rty . I f a pa

rty has a g ood faith, objectively rea sonable be lief that he has no liability , he nee d not make a mone tary settlement offe r. The decision as to whether a party ’s settlement eff orts indicate g ood faith is gen er al ly within the sound discretion of the trial court.

. . . This court wi l l n o t overturn a findi ng on this issue unless t h e t ri al court’s actions indicate an abuse of discretion. Kalain , 495 N.E.2d at 574 (interna l c itation omitted). I n Moskov itz v

. Mount Sinai Med. Ctr. , 635 N.E.2d 331, 348 (Ohio 1994) , the Ohio Supreme Court clar ified that the burde n of proof is on the party seeking pre-

judgme nt interest, but that party need only show a lack of g ood faith in settlement, not bad fa ith by

the other pa

rty

. 5

Al t h oug h the defe ndants contend that a showing of dishonest purpose, conscious 5 wrong doing or ill will in the nature of fra ud is nece ssary , citing Villella v. W aikem Motors, Inc. , 543 N.E.2d 464, 4 7 0 (Ohio 1989), the Moskowitz court expressly overr uled lang uag e in Villella sug g esting that a showing of bad f aith is require d. Moskov itz , 635 N.E.2d at 348.

16a. P re- judgme nt interestwas appropriate und er t he circ um stances After the jury returne d its verdic t, Chapman moved for p re- judgme nt interest under § 1343.03(C)(1)

. After considering the testimony , exhibi ts, a nd arg uments prese nted at a hear ing,

as we ll as expert affida

vits submi tted by

the parties, the district c ourt found that Motorists Mut ual failed to make a g ood faith eff ort to settle beca

use it did not rationally evalua te its risks and potential liability and bec ause it did not respond in g ood faith to Chapman’s se ttlement offer s. Having car efully

revie wed the f

actua l rec ord, we have no difficulty aff irming the awa

rd of pre- judgme nt interest. Motorists M utual took a firm position that Milford Towing and Whit aker

wer e not neg lige nt and that Chapman was solely l i ab l e for his own injuries. Despite rea sonable eff orts to settle the ca se by

plaintiff and the district c ourt, Motorists Mutual ref used t o move from its position and at no time during the litigation incre ased its settlement authority above $100,000.00. Motorists Mutual held to it s position even though outside counsel advised in Marc h 2009 that Chapman would “be able to blac kboard spe cials of a round $500,000 - $750,000,” and predicted a jury verdic t in the rang e of $1.5 to 1.75 million if the jury found t he def endants solely

liable. The jury verdic t of $2,000,513.00, reduc ed to $1,500,384.75 for Chapman’s share of compar ative fault,

wa s o n l y s lightly highe r than defe nse counsel’s predic tion to Motorists Mutual of a best-ca s e

scena rio for Chapma

n. The district court found that Motorists Mutual’s offe r of $100,000.00 was “tantamount to no offe r” or “mer ely a nuisance value offe r.” The court further found that Motorists Mutual’s litigation position was not objectively rea sonable. Under the circ umstances prese nted, t h e court held, Motorists Mutual did not rationally evalua te the risks or its potential liability , and its response to Chapman’s settlement demand was not made i n g ood faith. The court calc ulated pre- judgme nt

17interest from May 10, 2006, the date the defe ndants and Motorists Mutual wer e put on notice of the

claim in acc ordanc e with the statute. I n making its decision, the district co u rt wa s n o t limit ed to the evidenc e prese nted at the evidentiar y hear ing beca

use i t also could review t he trial evidenc e, as well as its p ri o r rulings and jury instructions, particula rly when considering fac tors such as the ty pe of case , the extent of injury , and the applicable law and defe nses. Galmish v. Cicchini , 734 N.E.2d 782, 794 (Ohio 2000). Chapman was not require d to neg otiate ag ainst himself by unilatera lly reduc ing his settlement offe r, id. , and the district court proper ly considere d the disparity betwee n the verdic t and the defe nse offe r in deciding if the offe r was made in g ood faith. Strasel v. Seve n Hills OB-GYN A s s o c. , In c. , 866 N.E.2d 48, 57 (Ohio Ct. App. 2007). “A trial court does not abuse its d i s cr et i o n i n awa rding prejudg ment interest when, as here, a defe ndant ‘just s ay s n o ’ despite a plaintiff’s presentation of

cre dible

. . . evidenc e that the defe ndant

. . . fell short of the standard of

. . . car e . . . , when it is clea r t h at the plaintiff has suffe red injuries, and when the causa tion of those injuries is ar gu ab l y attributable to the defe ndant’s conduct.” Ga l a yd a v. L a ke Hosp. Sys., Inc. , 644 N.E.2d 298, 304 (Ohio 1994). b. Th e district court proper ly calculated the am ount aw arded Section 1343.03(C)(2) forb ids an awa rd of pre- judgme nt interest on future damag es. The defe nse arg ues that the district court improperly awa rded pre- judgme nt interest on the jury ’s awa rds of $280,514.00 for medical l oss and $430,749.00 for wag e los s, claiming t h at t hese awar ds likely included past and fu t u re d am ag es and the jury verdic t form did not include appropr iate interrog atories to allow the jur y to separate past fr om future da mag es.

18Taking the m edica l loss first, the court instructed the jury that the parties had st ipulated t o

the amount of the medical b ills: The providers billed $371,234.00 and acc epted $280,514.00 as pay ment in full. The jury awa rded $280,514.00 as “[t] he portion of the compensa tory damag es that repr esents medical loss of Plaintiff[ .]” The jury ’s awa rd was fo r past medical loss only , so the district court prope rly

awa rded pr e-judg ment interest on that amount. By compar ison, the wag e loss awa rd may have included both past and future wag e loss. The jury verdic t form did not ask t he jury to separ ate past wag e los s fr o m fu t u re wag e los s reduc ed to prese nt value. Th e d ef

en s e asked the district court to g ive the jury a specia l interrog atory on this subject, but when the district court sugg ested co m b ining categ ories on the verdict form to ask t he jury only to specify the total amounts of damag es, defe nse co u n s el ac q u i esce d. By doing so, the defe nse waived its objection an d invited the err or it now asser ts on appea l. See Ford v. Cnty. of Grand Traverse , 535 F.3d 483, 491 (6th Cir. 2008); Buchman v . Bd. of Educ. of t he W ayne Trace Local Sc h. Dist. , 652 N.E.2d 952, 961 (Ohio 1995); Luri v. Republic Servs., I nc. , 953 N.E.2d 859, 868–69 (Ohio C t. App. 2011). See also K r o n en berg v. W

hale , 153 N.E. 302, 306 (Ohio C t. App. 1926); Kritz wiser v. Bonetzky , No. 8-07-24, 2008 W L 4 378157, at *5 (Ohio Ct. App. Sept. 29, 2008)(unpublished); Antonoff v. Allstate Ins. Co. , No. 03 MA 105, 2004 WL 2391540, at *2 (Ohio Ct. App. Oct. 19, 2004) (unpublished). I n any event, the district court did not err in a war ding prejudgme nt interest on the entire wag e loss amount beca use Chapman was no longe r able to work and the damag es we re a ccr

ued. Chapman cross-a

ppeals the district court’s ref usal to g rant pre-

judgme nt intere s t o n th e e n tire jury awa rd. We ag ree with the court’s decision that pre- judgme nt interest could not be imposed on

19the jury ’s awa rd for non-ec onomic loss, whic h repr esente d future damag es. Ohio Rev. Code Ann. § 1343.03(C)(2)

. III. CONCLUSION For all of t he reasons st ated, the di strict court’s trial ruling s wer e properly made under t he fac ts and law pre sented. Ac cording ly , we AF F IRM

.

20