Daniels v. Northcoast Anesthesia Providers, Inc. , 113 N.E.3d 1153 ( 2018 )

[Cite as Daniels v. Northcoast Anesthesia Providers, Inc., 2018-Ohio-2132.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105125
VICTORIA DANIELS, ET AL.
PLAINTIFFS-APPELLEES
vs.
NORTHCOAST ANESTHESIA
PROVIDERS, INC., ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-11-764060
BEFORE: Stewart, J., Keough, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: May 31, 2018
ATTORNEYS FOR APPELLANTS
William A. Meadows
Reminger Co., L.P.A.
1400 Midland Building
101 West Prospect Avenue
Cleveland, OH 44115
David H. Krause
Reminger Co., L.P.A.
200 Civic Center Drive, Suite 800
Columbus, OH 43215
Douglas G. Leak
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway, Suite 100
Akron, OH 44333
ATTORNEYS FOR APPELLEES
Christopher M. Mellino
Meghan C. Lewallen
Mellino Law Firm, L.L.C.
19704 Center Ridge Road
Rocky River, OH 44116
MELODY J. STEWART, J.:
{¶1} As plaintiff-appellee Victoria Daniels was about to have surgery, the
defendant-appellant-anesthesiologists Zoard Vasarhelyi, M.D. and Rostyslav Koziy, M.D.,
approved the placement of a transdermal patch on her to prevent postoperative nausea. Daniels
appeared to have an allergic reaction to the patch and went into anaphylactic shock. She stopped
breathing and experienced low blood oxygen for close to 30 minutes, causing her to suffer brain
damage. Alleging that the active ingredient in the transdermal patch was part of the same family
of drugs to which she had previously disclosed a serious allergic reaction, Daniels brought this
medical malpractice action against both physicians and their employer, defendant-appellant
Northcoast Anesthesia Providers, Inc., claiming that they violated the standard of care by failing
to formulate an anesthesia plan to prevent her from being given drugs belonging to the same class
of drugs to which she had an established allergy.1 She also alleged that the physicians violated
the standard of care in failing to give her adequate doses of a drug called “Epinephrine” to
resuscitate her. A jury found in Daniels’s favor and awarded damages. The court subsequently
awarded her prejudgment interest on the damages award.
{¶2} The ten assignments of error on appeal contest various pretrial and trial rulings by
the court, as well as an award of prejudgment interest. We conclude that the court abused its
discretion by admitting Daniels’s summary of the medical records evidence to go to the jury; that
the court abused its discretion by not giving the “bad results” instruction to the jury; and that the
court abused its discretion by allowing Daniels’s demonstrative boards to be considered by the
jury. We further find that the cumulative effect of these errors deprived Vasarhelyi and Koziy of
1
Daniels’s two minor children were also named as plaintiffs and sought damages for loss of parental care and
comfort. Because the claims of the minor children are derivative of any relief that Daniels obtained, we shall
collectively refer to the plaintiffs as “Daniels.”
a fair trial. The assignments of error relating to the limitation on closing argument and
prejudgment interest are moot.
I. Hearsay
{¶3} The first assignment of error is that the court abused its discretion by admitting into
evidence, and sending to the jury for its deliberations, a learned treatise in violation of Evid.R.
803(18).
{¶4} The basis of Daniels’s claims against Vasarhelyi and Koziy was that prior to
surgery, she disclosed an allergy to an asthma medication called Atrovent. She maintained that
the antinausea patch placed on her prior to surgery contained a drug called Scopolamine and that
Scopolamine and Atrovent belong to the same family of drugs known as “belladonna alkaloids.”
She maintained that the allergic reaction to Scopolamine could have been prevented had
Vasarhelyi and Koziy cross-checked the drug using, among other resources, an online service
called Lexi-Comp that provides drug information such as dosing, warnings, and precautions.
{¶5} Daniels’s expert testified at trial that there were a variety of resources that doctors
and nurses could consult about drugs, including Lexi-Comp. The expert identified plaintiff’s
exhibit No. 26 as a printout from Lexi-Comp titled “Belladonna Alkaloid Allergy.” The printout
contained a list of “associated drugs” including Scopolamine. According to Daniels’s expert,
the printout showed that Scopolomine “could potentially crossreact in that category.” The
expert said that the Lexi-Comp entry “instructs to avoid scopolamine, which was in the patch; it
talks about Atrovent * * *.” The expert then identified a second printout from Lexi-Comp,
plaintiff’s exhibit No. 26B, titled, “Reported Allergy: Patient Management Considerations.”
The expert testified that the printout stated: “In general, when a previous severe reaction has
occurred, repeated exposure to the initial agent and related compounds should be avoided. * * *
Per the manufacturer’s labeling, use is normally contraindicated in patients with prior allergic
reactions.”
{¶6} “Hearsay” is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Evid.R. 801(C). Statements in a “learned treatise” established as reliable authority are not
excluded by the hearsay rule. See Evid.R. 803(18). However, Evid.R. 803(18) states that “[i]f
admitted, the statements may be read into evidence but may not be received as exhibits.”
{¶7} Daniels stated at trial that she laid a foundation for exhibit No. 26B as a learned
treatise and told the court that the exhibit should not be allowed into evidence. Despite Daniels
agreeing that exhibit No. 26B should be withdrawn, the court inexplicably submitted it to the
jury. This was an error. With Daniels having conceded that the document was a learned
treatise, the court violated Evid.R. 803(18). See Moretz v. Muakkassa, 137 Ohio St. 3d 171,
2013-Ohio-4656, 998 N.E.2d 479, ¶ 56 (stating that materials subject to the learned treatise
hearsay rule “shall not be admitted into evidence as an exhibit over the objection of a party.”).
{¶8} Daniels sought the admission of exhibit No. 26 by arguing that it was admissible as
a resource available to physicians, presumably under Evid.R. 803(17), which excepts from the
hearsay rule “[m]arket quotations, tabulations, lists, directories, or other published compilations,
generally used and relied upon by the public or by persons in particular occupations.”
{¶9} Lexi-Comp appears to be similar to the Physician’s Desk Reference (“PDR”)2 in
that it can be consulted to ascertain potential drug cross-reactivity. Several courts have refused
to admit the PDR and similar materials into evidence under rules similar to Evid.R. 803(17).
2
The PDR is an annual publication compiling “medications, monographs, and FDA approval limitations.” United
States v. Ignasiak, 667 F.3d 1217, 1227 (11th Cir.2012).
See, e.g., Aurora v. Kepley, 11th Dist. Portage No. 801, 1978 Ohio App. LEXIS 9115, at 4 (Sep.
5, 1978) (PDR inadmissible as hearsay “due to the inexact and ever-changing nature of
medicine”); Garvey v. O’Donoghue, 530 A.2d 1141 (D.C.1987) (PDR inadmissible under
Fed.R.Evid. 803(17) because the publication contains not only factual statements, but also
“directions, opinions, suggestions, and recommendations”); Kahanek v. Rogers, 12 S.W.3d 501,
504 (Tex. App. 1999) (PDR inadmissible under market reports exception because the publication
“goes beyond objective information to items on which learned professionals could disagree in
good faith”); In re Richardson-Merrell, Inc. Bendectin Prods. Liab. Litigation, 624 F. Supp.
1212, 1232 (S.D. Ohio 1985) (PDR did not fall within the commercial publications exception of
Fed.R.Evid. 803(17)), aff’d, 857 F.2d 290 (6th Cir. 1988). But see SK&F Co. v. Premo
Pharmaceutical, Laboratories, Inc., 481 F. Supp. 1184, 1189 (D.N.J.1979) (taking judicial notice
that the PDR falls within Fed.R.Evid. 803(17) as “a published compilation generally used and
relied on by physicians and pharmacists”).
{¶10} Despite these courts refusing to allow materials like the PDR into evidence under
their equivalent of Evid.R. 803(17), we find that the prerequisites for admission were established
in this case. Evid.R. 803(17) is patterned after Fed.R.Evid. 803(17). The predicate for
admission under the federal rule of evidence is similar to other hearsay exceptions: necessity and
reliability. United States v. Woods, 321 F.3d 361, 364 (3d Cir.2003), citing 5 Weinstein’s
Federal Evidence Section 803.19[1] (Matthew Bender 2002). With respect to “reliability,”
publications like Lexi-Comp “know that their work will be consulted; if it is inaccurate, the
public or the trade will cease consulting their product.” Id. In other words, the success of the
service depends on its reputation for accuracy, thus ensuring its reliability for purposes of
Evid.R. 803(17).3
{¶11} Daniels’s expert testified without contradiction that physicians rely on materials
like Lexi-Comp and the PDR. Exhibit No. 26 listed Scopolamine as an “associated” drug under
the heading “belladonna alkaloid allergy.” That factual assertion has not been challenged as
false or misleading. In fact, it may have been largely cumulative given the number of witnesses
who agreed that Scopolamine was contraindicated for patients who were hypersensitive to
Atrovent or other belladonna alkaloids. While the court may not have expressly indicated that it
was allowing exhibit No. 26 into evidence under Evid.R. 803(17), it did indicate that the exhibit
was “an informational cite,” a characterization consistent with it being a tabulation or list relied
upon by medical professionals. The court did not err by allowing exhibit No. 26 into evidence.
II. Closing Argument
{¶12} The second assignment of error complains that the court erred by prohibiting
Vasarhelyi and Koziy’s counsel from referencing in closing argument a July 2004 emergency
room treatment that predated the events leading to this case. This assigned error is rendered
moot based on our decision to reverse and remand the case. See App.R. 12(A)(1)(c).
III. FDA Adverse Event Reporting System
{¶13} Vasarhelyi and Koziy filed a motion in limine to bar Daniels from using at trial a
Food and Drug Administration (“FDA”) adverse event report, identified at trial as plaintiff’s
3
Although the “necessity” prong for admission of hearsay is often stated in terms of a witness’s unavailability, State
v. Howard, 2d Dist. Montgomery No. 19413, 2003-Ohio-3235, ¶ 32, learned treatises can be admitted on the basis of
“economic or practical necessity.” State v. Alger, 115 Idaho 42, 49, 764 P.2d 119 (App.1988); Loven v. State, 831
S.W.2d 387, 395 (Tex.App.1992) (“Similarly, there is no longer any reason to believe that evidence contained in a
learned treatise is inferior to live testimony by the author of the treatise.”). Vasarhelyi and Koziy did not question
the necessity of Daniels’s use of the Lexi-Comp materials, so we consider necessity established.
exhibit No. 12. They maintained that the FDA report, which reported 471 cases of adverse
events caused by Scopolamine use, did not include Daniels’s case as an “event” and was not
probative on the issue of whether they breached the standard of care. The court denied the
motion in limine subject to revision at trial. The court allowed questioning on the adverse event
report over objection by Vasarhelyi and Koziy, but it did not allow the report to be admitted into
evidence.
{¶14} “Courts have broad discretion in ruling on the admissibility of evidence, and the
granting of a motion in limine rests within the sound discretion of the trial court.” Bennett v.
Admr., Ohio Bur. of Workers’ Comp., 134 Ohio St. 3d 329, 2012-Ohio-5639, 982 N.E.2d 666, ¶
52. In this context, admissibility is predicated on relevancy; that is, does the evidence have “any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Evid.R. 401.
Even if relevant, evidence must be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R.
403(A).
{¶15} “Federal regulations require drug manufacturers to report ‘[a]ny adverse event
associated with the use of a drug in humans, whether or not considered drug related’ to the
FDA.” Utts v. Bristol-Myers Squibb Co., S.D.N.Y. No. 16cv5668(DLC), 2017 U.S. Dist.
LEXIS 70317, 31 (May 8, 2017), quoting 21 C.F.R. Section 314.80(a), (c). But reporting of
adverse events is not limited to drug manufacturers: “Anyone can submit an adverse event report,
including drug manufacturers, doctors, and individual patients.” Drake v. Allergan, Inc., 111 F.
Supp.3d 562, 565 (D.Vt.2015). The FDA makes it clear that it “does not require that a causal
relationship between a product and event be proven, and reports do not always contain enough
detail to properly evaluate an event.” Utts, supra. “The fact that a user of a drug has suffered
an adverse event, standing alone, does not mean that the drug caused that event.” Matrixx
Initiatives, Inc. v. Siracusano, 563 U.S. 27, 44, 131 S. Ct. 1309, 179 L. Ed. 2d 398 (2011).
{¶16} The fact that an adverse event report specifically does not establish a causal
relationship between a drug and an event does not mean that the report had no probative value.
“A lack of statistically significant data does not mean that medical experts have no reliable basis
for inferring a causal link between a drug and adverse events.” Id. at 40. An adverse event
might be considered significant depending on a variety of factors like the “strength of the
association,” the “temporal relationship of product use and the event,” and the “seriousness of the
event relative to the disease being treated.” Id. at 41.
{¶17} We agree that the court did not abuse its discretion by denying the motion in
limine. It was conceivable, in the pretrial motion stage, that Daniels could establish a basis for
admission of the adverse event report at trial. As it happened, she did not — none of the factors
that might have shown causation or significance were mentioned at trial. Daniels’s expert
testified that the FDA monitors the use of drugs to ensure that adverse drug reactions are
reported. The expert said that the FDA collects the data to both inform drug manufacturers that
the drug might pose a danger and “to communicate to the healthcare providers not to administer
that drug if they see a pattern of potentially danger [sic] with a drug.” Daniels then asked the
expert to identify the adverse event report, which the expert described as “the first page of the
FDA website for adverse event reporting.” With respect to Scopolamine, the expert identified a
section of the adverse effect report, “which you can see is about an inch thick,” listing adverse
events from the drug.
{¶18} This testimony did not take into account how many of the 471 reported instances
actually involved a direct reaction to Scopolamine as opposed to some other cause. This
tenuous connection created the possibility that the jury would give undue weight to the adverse
event report, particularly when the report contained just one relevant instance of anaphylactic
shock associated with the usage of Scopolamine. The report was properly excluded from
evidence because its prejudicial effect substantially outweighed its probative value. That the
report was later excluded from the evidence does not mean that the court erred by denying the
motion in limine and allowing testimony on the report subject to exclusion.
IV. Summary of Medical Records
{¶19} Daniels offered the report of a nurse who summarized Daniels’s medical records.
Vasarhelyi and Koziy filed a motion in limine to exclude the nurse from testifying on grounds
that the summary of medical records went beyond what was allowed under Evid.R. 1006 and that
the summary contained expert opinion that had not been disclosed as required by Loc.R. 21.1.
The court denied the motion in limine (it ordered Daniels to strike a two-sentence paragraph at
the end of the summary), allowed the nurse to testify to matters contained in her report, and later
admitted both the summary and medical records into evidence.
{¶20} “The contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of a chart, summary, or
calculation.” Evid.R. 1006. This is a rule of convenience based on practical necessity. See
Notes of Advisory Committee on Proposed Fed.R.Evid. 1006 (construing identical federal rule).
Because the summary itself is admitted in lieu of the voluminous evidence, the jury is entitled to
consider the summary in its deliberations and base a verdict on it.
{¶21} Fed.R.Evid. 1006, which is functionally identical to Evid.R. 1006, does not
generally permit both a summary of the voluminous evidence and voluminous evidence to be
admitted into evidence. See, e.g., United States v. Whitfield, 590 F.3d 325, 364 (5th Cir. 2009)
(court should avoid the use of a summary of previously admitted evidence to simply repeat entire
case shortly before jury deliberations). If the purpose of the rule is to avoid having to introduce
certain voluminous writings by allowing the introduction of a summary as proof of the content of
voluminous writings where those writings “cannot be conveniently examined,” see United States
v. Janati, 374, 396 (4th Cir. 2004), then under the rule, the summary itself is the evidence
admitted as proof of the content of the writings or other material summarized.
{¶22} Some Ohio cases state the proposition that “for a summary to be admissible, the
documents on which it was based must be admitted or offered into evidence or their absence
explained.” Eysoldt v. Imaging, 194 Ohio App. 3d 630, 2011-Ohio-2359, 957 N.E.2d 780, ¶ 34
(1st Dist.); Hornsby v. Gosser, 12th Dist. Warren No. CA2013-12-134, 2015-Ohio-162, ¶ 14.
{¶23} These cases appear to confuse admissibility under Evid.R. 1006 with the original
document or “best evidence” rule of Evid.R. 1002 (“To prove the content of a writing, recording,
or photograph, the original writing, recording, or photograph is required, except as otherwise
provided in these rules or by statute enacted by the General Assembly not in conflict with a rule
of the Supreme Court of Ohio.” ). Courts interpreting Fed.R.Evid. 1006 recognize that the rule
is an exception to the best evidence rule. United States v. Weaver, 350 U.S.App.D.C. 121, 281
F.3d 228, 232 (2002); Martin v. Funtime, Inc., 963 F.2d 110, 115 (6th Cir.1992); United States v.
Ashford, 924 F.2d 1416, 1422 (7th Cir.1991).
{¶24} To be sure, a summary of voluminous evidence is not automatically admissible —
the evidence on which the summary is based must itself meet all criteria for admissibility.
United States v. Johnson, 594 F.2d 1253, 1256 (9th Cir.1979) (“Commentators and other courts
have agreed that Rule 1006 requires that the proponent of the summary establish that the
underlying documents are admissible in evidence.”); United States v. Scales, 594 F.2d 558, 562
(6th Cir.1979) (“If the records themselves could have been admitted to show what their contents
did not include, there appears to be no reason why Rule 1006 would not apply to a summary of
their contents.”). There is no question that the medical records on which the summary in this
case was based were admissible as medical records under the Evid.R. 803(4) hearsay exception.
{¶25} We find the federal authority persuasive — there is no requirement that the
evidence on which the summaries are based must also be produced at trial. However, Evid.R.
1006 does not bar the trial judge from admitting the actual records into evidence — the rule
plainly states that “[t]he court may order that [the originals] be produced in court.” United States
v. Lemire, 720 F.2d 1327, 1347 (D.C.Cir.1983); United States v. Milkiewicz, 470 F.3d 390, 397
(1st Cir.2006). The court had the discretion to admit the original medical records along with the
summary of those medical records.
{¶26} The court in this case abused its discretion, however, by admitting into evidence a
summary of medical records that contained the opinions of the person summarizing the evidence.
{¶27} To be admissible under Evid.R. 1006, a summary must fairly condense the
voluminous material and do so without embellishment. Gomez v. Great Lakes Steel, Natl. Steel
Corp., 803 F.2d 250, 258 (6th Cir.1986) (criticizing admission of a summary that was “more akin
to argument than evidence”); United States v. Drougas, 748 F.2d 8, 25 (1st Cir.1984) (summaries
with information “not present” in the underlying records deemed inadmissible). At bottom,
because summaries are admitted as evidence in lieu of the records themselves, they must be both
“accurate and nonprejudicial.” United States v. Bray, 139 F.3d 1104, 1111 (6th Cir.1998).
{¶28} The summary offered by Daniels was not an accurate representation of her medical
records. In fact, the summary was more in the nature of an annotation than a summary. The
nurse provided explanations for medical terms, procedures and devices, and she included
numerous “exhibits” not contained in the medical records that depicted body parts, medical
equipment, and illustrations of medical procedures. These annotations went beyond what the
documents themselves contained and were thus impermissible embellishment.
{¶29} At various points the nurse offered her own “notes” to highlight the content of
certain records. For example, she made the following notation regarding a nursing note:
“(NOTE: this note was timed as 0800 [8:00 AM] although it was part of the note written at 1300
[1:00 PM].)” By doing so, the nurse went beyond what the record stated. In another example,
the nurse commented on the amount of Fentanyl administered to Daniels before her surgery:
At 7:35 AM, Ms. Daniels received Ancef 1 gm IV (antibiotic), Versed 2 mg, and
Fentanyl 100 mg. (Fentanyl is a very potent narcotic analgesic. A dose of 100
mcg [or 0.1 mg] of Fentanyl is the equivalent of about 10 mg of Morphine. 100
mg would be an enormous dose of Fentanyl.)
{¶30} The nurse injected her own opinions into the summary. When summarizing a
record that showed Daniels’s oxygen saturation level as “hovering in the 40s,” the nurse included
a parenthetical stating that “[n]ormal oxygen saturation is usually 95% or above; 40% is
extremely low.” When summarizing a postoperative record showing the amount of urine
drained from Daniels, the nurse parenthetically stated that “This is a massive amount of urine.”
When summarizing a postoperative record of Daniels’s weight, the nurse stated, “(Ms. Daniels
weighed 163 pounds on the day of her laparoscopy. This would mean that in two days, Ms.
Daniels gained 88 pounds!)”
{¶31} In going beyond summarizing the medical records themselves, the nurse offered
additional information that was prejudicial to Vasarhelyi and Koziy. The nurse italicized nearly
every portion of the summary in which the records showed that Daniels disclosed an allergy to
Atrovent prior to her surgery. When summarizing a record of postoperative care, the nurse
stated: “The nurses also suctioned Ms. Daniels; breathing tube multiple times. (This can be very
uncomfortable. It can cause gagging and coughing, and a sensation of being unable to catch
your breath.).” When summarizing a record showing that Daniels was given pain medication
and offered “reassurance” in the form of “holding pt’s hand,” the nurse included a parenthetical
stating, “This must have been a very frightening time for Ms. Daniels.” The nurse stated that
“Ms. Daniels’ complex care went on all day, every day; throughout the night, every night. Her
sleep was constantly interrupted.” When describing a record showing that Daniels had been
placed on an ECMO (extra corporeal membrane oxygenation) machine, the nurse wrote in bold
type that “Ms. Daniels’ life was now literally dependent on the staff and a machine.”
(Emphasis sic.)
{¶32} None of this was admissible under Evid.R. 1006 because the addition of the nurse’s
commentary went beyond summarizing the medical records. And the prejudicial effect was
obvious: the nurse’s commentary would no doubt engender sympathy for Daniels.
{¶33} Daniels implicitly concedes prejudice by stating that she offered the nurse as a
witness on pain and suffering, presumably meaning that the commentary in the summary was
designed to portray the medical records in a light most favorable to that end. But by doing so,
the nurse went well beyond what is acceptable for a summary of voluminous evidence under
Evid.R. 1006. And other parts of the summary — notably the numerous italicized portions that
emphasized how Daniels disclosed an allergy to Atrovent — could only be viewed as attempting
to assist Daniels in establishing liability on the medical malpractice claim. This was far outside
what is permissible under the rule.
{¶34} Daniels maintains that any error in admitting the summary was harmless because
the court also sent the actual medical records for comparison purposes. Because the summary
was allowed as substantive evidence in lieu of the actual medical records, the jury in all
likelihood considered the summary to the exclusion of the actual medical records. Would there
be any doubt that if the court admitted both the novel War and Peace and the Cliff Notes version
of that novel into evidence, the jury would read the Cliff Notes? Daniels even conceded in
arguing for the admission of the summary that the medical records consisted of “thousands of
pages of medical records” and that “[t]o ask a juror to examine and fully understand a set of such
complicated medical records is virtually an impossible task[.]” We have no confidence that the
jury, with a 30-page summary of the medical records and the actual medical records numbering
in the “thousands,” actually compared the summary against the medical records. The court’s
error in admitting the summary of the medical records was prejudicial.
V. Jury Instructions
{¶35} The court, over objection, gave the jury an “eggshell skull” instruction, telling the
jury that “if you find that Victoria Daniels had a predisposition that made her more susceptible to
injury” the defendants were nevertheless liable for her actual injuries and damages. Vasarhelyi
and Koziy argue that the court gave this instruction in error because neither party suggested that
Daniels suffered any greater injury due to her frailty or that a person of greater strength would
have been injured less under the circumstances.
{¶36} The “eggshell skull” or “thin skull” doctrine evolved in the context of preexisting
injuries to provide that if a defendant’s wrongful act causes injury, the defendant is fully liable
for the resulting damage even though the injured plaintiff had a preexisting condition that made
the consequences of the wrongful act more severe than they would have been for a plaintiff
without a preexisting condition or injuries. See generally Calandrillo & Buehler, Eggshell
Economics: A Revolutionary Approach to the Eggshell Plaintiff Rule, 74 Ohio St. L.J. 375, 380
(2013).
{¶37} A tortfeasor is fully liable for any damages resulting from its wrongful act even if
the victim had a preexisting condition that made the consequences of the wrongful act more
severe for him than they would have been for a person without the condition. Meyers v.
Wal-Mart Stores, E., Inc., 257 F.3d 625, 632 (6th Cir. 2001); Figueroa-Torres v. Toledo-Davila,
232 F.3d 270, 275-276 (1st Cir. 2000); Jordan v. Atchison, Topeka & Santa Fe Ry. Co., 934 F.2d
225, 228-229 (9th Cir. 1991). While it is a truism that the tortfeasor “takes his victim as he
finds him,” Binns v. Fredendall, 32 Ohio St. 3d 244, 246, 513 N.E.2d 278 (1987), the eggshell
skull rule states only that the tortfeasor may not escape or reduce liability because the victim’s
preexisting condition made the victim more susceptible of injury from the tortfeasor’s conduct.
{¶38} Our review of the record satisfies us that there was sufficient evidence to support
the court’s decision to give the eggshell skull instruction. Niskanen v. Giant Eagle, Inc., 122
Ohio St. 3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 22. Daniels offered the testimony of a
medical doctor specializing in physical medicine and rehabilitation who testified that Daniels
suffered from migraine headaches before suffering hypoxia (oxygen deficiency) as a result of
going into anaphylactic shock. The expert testified that those migraines “are much more
common since she had the brain injury.” The physician also testified that Daniels suffered from
depression prior to going into anaphylactic shock and that “if you already have problems with
depression and anxiety, having hypoxic brain injury makes it that much worse.”
{¶39} Vasarhelyi and Koziy next argue that the court erred by refusing to give a “bad
result” jury instruction. That instruction states that “‘[t]he fact that a doctor’s treatment did not
bring about a cure does not by itself prove that the doctor was negligent.’” Hinkle v. Cleveland
Clinic Found., 159 Ohio App. 3d 351, 2004-Ohio-6853, 823 N.E.2d 945, ¶ 86 (8th Dist.), quoting
Ohio Jury Instructions 331.01(6).
{¶40} The “bad result” or “no guarantee” instruction recognizes that unsatisfactory results
from treatment or care alone do not determine whether the defendant was negligent in treating
the plaintiff. In other words, a bad outcome alone does not determine whether the applicable
standard of care has been met. The instruction thus recognizes a fundamental precept of tort law
that the mere occurrence of an injury or accident, in and of itself, does not mean that the injury
was the result of negligence. Laughlin v. Cleveland, 168 Ohio St. 576, 577, 156 N.E.2d 827
(1959), paragraph two of the syllabus.
{¶41} Daniels argues that a “bad results” instruction was unwarranted because she did not
plead a cause of action against Vasarhelyi and Koziy for breach of personal satisfaction of
contract, breach of express warranty, or lack of informed consent. This argument
misapprehends the nature of the “bad results” jury instruction. The issue at trial was whether
Vasarhelyi and Koziy breached the applicable standard of care. The instruction would have
made it clear that the mere fact that there was a bad result in Daniels’s treatment did not, by
itself, prove that malpractice occurred.
{¶42} Jury instructions “must be given when they are correct, pertinent, and timely
presented.” State v. Joy, 74 Ohio St. 3d 178, 181, 657 N.E.2d 503 (1995), citing Cincinnati v.
Epperson, 20 Ohio St. 2d 59, 253 N.E.2d 785 (1969), paragraph one of the syllabus. Because
medical malpractice cannot be based solely on the fact that the plaintiff suffered an adverse
result, there was no reason for the court to refuse the requested instruction. The court erred by
doing so.
VI. News Video
{¶43} Less than one month after the anaphylactic reaction, one of the nondefendant
doctors who participated in reviving Daniels was interviewed in a local television newscast.
That video apparently showed Daniels, and Vasarhelyi and Koziy wished to introduce a clip of
the video, without accompanying audio, to counter Daniels’s use of photographs to depict the
condition of her body in the weeks following her going into shock. Daniels filed a motion in
limine to exclude the video on grounds that Vasarhelyi and Koziy did not timely produce the
video in discovery, that the video was hearsay, and that it was unduly prejudicial because it made
a nonparty doctor to the case look like “a hero.” The court found the motion in limine moot,4
excluded the video, and it was proffered into evidence.
{¶44} Daniels argues that Vasarhelyi and Koziy did not properly authenticate or verify the
trustworthiness of the video. If the court excluded the proffered video for want of
authentication, this writer is of the opinion that the court erred by doing so. Authentication is
merely a means of proving that something is what its proponent claims it to be. See Evid.R.
901(A). With respect to video, we have held that under Evid.R. 901(B)(4), which permits
authentication based on distinctive appearance, contents, or substance, that “[t]he distinctive
4
It is unclear why the court found the motion in limine moot. The motion might be rendered moot if Daniels chose
not to introduce photographs of her physical condition, thus making it unnecessary for Vasarhelyi and Koziy to
offer the video in rebuttal. However, neither party argues that this happened, nor do they give any indication why
the court found the motion in limine to be moot.
characteristics of the videotaped news report are sufficient evidence” to support a finding that the
news report was what the proponent claimed it to be. Skelly Beauty Academy, Inc. v. Columbia
Gas of Ohio, Inc., 8th Dist. Cuyahoga Nos. 58597, 58598, 58599 and 58600, 1991 Ohio App.
LEXIS 4235, 12 (Aug. 29, 1991). Vasarhelyi and Koziy offered the video to show Daniels in
the period following her going into shock, for the purpose of rebutting photographs that Daniels
used to depict her physical condition during the same time period. At no time did Daniels
suggest that she was not the person shown in the newscast, nor has she suggested that the video
Vasarhelyi and Koziy wished to play to the jury was not a fair depiction of what had been
broadcast during the news segment.
{¶45} To support her motion in limine, Daniels cited State v. Mays, 108 Ohio App. 3d
598, 671 N.E.2d 553, 568 (8th Dist.1995), for the proposition that newscasts are unreliable
hearsay and should be excluded from evidence. Mays is not on point. Mays, a medical doctor,
was found guilty of fraudulently billing county welfare agencies for oral surgeries he did not
perform. Mays wanted to introduce into evidence excerpts from a series of television news
stories relating to welfare fraud that aired three years after his crimes were committed. The
newscast included interviews with persons unrelated to the charges against Mays, and the trial
judge excluded the newscast because it was not evidence on the theft charge and because those
interviewed for the newscast could not be cross-examined. We found that video to be “rank
hearsay as well as irrelevant and confusing.” Id. at 568.
{¶46} In this case, the newscast would be played with no audio, so it would not have
contained any statements offered for the truth of the matter asserted. The newscast was being
offered as demonstrative evidence for the very limited purpose of rebutting photographs that
Daniels planned to introduce for the purpose of showing her condition in the weeks following
anaphylaxis. There was nothing confusing about the video or its purpose.
{¶47} Daniels also maintained that Vasarhelyi and Koziy waited too long to inform her
that they intended to use the newscast — offering it only five days before trial and six days after
the court’s deadline for motions in limine. The trial court may have properly excluded the video
for this reason, however, we need not address this aspect of the issue based on the decision to
reverse the case. There is no majority decision reached on the resolution of this assignment of
error.
VII. Life Care Plan
{¶48} Daniels offered the testimony of a nurse who prepared a life care plan as part of
Daniels’s claim for future monetary damages. Although the nurse reduced her calculation of
future damages to its present value, Vasarhelyi and Koziy maintain that Daniels had to provide
expert testimony to reduce the monetary damage to present day value. They maintain that the
nurse had not been identified as an expert as required by Loc.R. 21.1, so the reduction could not
have been made to a requisite degree of certainty and would be the product of speculation.
{¶49} “In Ohio, a plaintiff is entitled to an award of damages to compensate him for
losses which he is reasonably certain to incur in the future.” Galayda v. Lake Hosp. Sys., 71
Ohio St. 3d 421, 425, 644 N.E.2d 298 (1994). Those future damages are often set forth in what
is called a “life care plan.” The typical life care plan details the life-time costs of all future
medical care resulting from the tortfeasor’s acts that is reasonably certain to occur in the future.
But as with all future damages, the cost of a life care plan must be reduced to present value of
those actual damages. Id.
{¶50} “Expert testimony is not required to entitle a plaintiff to recover future earnings.”
Sahrbacker v. Lucerne Prods., Inc., 52 Ohio St. 3d 179, 179, 556 N.E.2d 497 (1990).
{¶51} Vasarhelyi and Koziy acknowledge Sahrbacker, but claim that it is distinguishable
from this case and does not prevent us from finding that expert testimony is required to reduce to
present value any future award. They maintain that Sahrbacker addressed a contract claim that,
unlike the medical malpractice claim in this case, did not require the jury to establish damages to
a reasonable degree of medical certainty. Their attempt to distinguish Sahrbacker fails — courts
have long-held that “[i]n order for a plaintiff to recover lost profits in a breach of contract action,
the amount of the lost profits, as well as their existence, must be demonstrated with reasonable
certainty.” Gahanna v. Eastgate Properties, Inc., 36 Ohio St. 3d 65, 66, 521 N.E.2d 814 (1988).
See also Gateway Consultants Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist. Cuyahoga
No. 104014, 2017-Ohio-1443, ¶ 8 (damages in a breach of contract action must be shown with
certainty); Chuang Dev. L.L.C. v. Raina, 10th Dist. Franklin Nos. 15AP-1062 and 16AP-500,
2017-Ohio-3000, ¶ 73 (“A plaintiff must establish their entitlement to damages under a contract
with reasonable certainty, and such damages may not be based on mere speculation or
conjecture.”). The reasonable certainty standard applied to damages in a medical malpractice
case is the same standard as that applied in a contract case like Sahrbacker. Consistent with
Sahrbacker, Daniels did not have to offer expert testimony reducing the life care plan to present
value.
{¶52} Vasarhelyi and Koziy also argue that the court abused its discretion by refusing to
bar Daniels from offering the nurse as an expert because Daniels did not timely identify the nurse
as an expert witness under Loc.R. 21.1. We need not address this issue in light of our disposition
of the case.
{¶53} Finally, Vasarhelyi and Koziy maintain that the court erred by allowing the jury to
view a copy of the life care plan during its deliberations. They maintain that the life care plan
was prejudicially cumulative and repetitive to the nurse’s testimony. We reject this assertion
because the life care plan consisted of charts that were admitted into evidence after the nurse
discussed the life care plan during her testimony. Vasarhelyi and Koziy did not offer their own
cost estimate of a life care plan for Daniels, nor did they cross-examine the nurse on the
substance of her calculations. We thus have no basis for finding that the jury was unfairly
influenced by the court’s decision to admit the life care plan into evidence and allow it to go the
jury room during deliberations.
VIII. Demonstrative Boards
{¶54} One of Daniels’s experts testified with the aid of a demonstrative chart titled
“Harms and Losses.” The chart described 30 different “limitations” caused by the alleged
malpractice, such as “migraines, headaches, accompanied by loss of vision.” Next to the
particular limitation was a checkmark indicating whether the particular limitation was “Frequent”
or “Always.” Over objection, the court admitted the chart into evidence and allowed it to go the
jury. Vasarhelyi and Koziy complain that by allowing the chart to go to the jury, the court
influenced the jury by allowing it to place more emphasis on what was repetitive to the expert’s
trial testimony.
{¶55} There is a distinction between summaries of evidence allowed by Evid.R. 1006 and
pedagogical devices that organize evidence for the aid of the jury. Kinn v. HCR ManorCare,
2013-Ohio-4086, 998 N.E.2d 852, ¶ 79 (6th Dist.). Pedagogical (sometimes called
“demonstrative” or “illustrative”) devices make it easier for the jury to visualize evidence, a
“development we do not wish to discourage so long as there is no unfair surprise.” Cherovsky v.
St. Luke’s Hosp., 8th Dist. Cuyahoga No. 68326, 1995 Ohio App. LEXIS 5530, 35 (Dec. 14,
1995).
{¶56} Unlike summaries of evidence allowed by Evid.R. 1006, pedagogical devices are
not evidence, but “more akin to argument than evidence.” Kinn, supra. The presence of a chart
in the jury room might cause the jury to believe that the chart itself, as opposed to the testimony
of the witness who prepared the chart, constitutes the actual evidence. There is also the
possibility that the jury might rely on the summarized information as a substitute for assessing
the credibility of the witness who prepared the chart. For this reason, a pedagogical device
should not be allowed into the jury room unless all parties consent, and even then, the
pedagogical device should be accompanied by a limiting instruction that the device is not
evidence. Id., citing United States v. Munar, 419 Fed.Appx. 600, 608 (6th Cir.2011) and
Gomez, 803 F.2d 250 at 257-259. See also Lucitte v. Lucitte (In re Estate of Lucitte), 6th Dist.
Lucas No. L-10-1136, 2012-Ohio-390, ¶ 71; United States v. Harms, 442 F.3d 367, 375 (5th
Cir.2006) (“If a summary or chart is introduced solely as a pedagogical device, the court should
instruct the jury that the chart or summary is not to be considered as evidence, but only as an aid
in evaluating evidence.”).
{¶57} Daniels argues that the chart was a pedagogical device authorized by Evid.R.
611(A). That rule allows the court to exercise reasonable control over the presentation of
evidence in order to, among other things, “make the interrogation and presentation effective for
the ascertainment of the truth[.]”
{¶58} Daniels acknowledges that some courts have declined to treat pedagogical devices
as evidence, but cites several federal courts that have allowed pedagogical devices to go into
evidence for the jury’s consideration. See, e.g., Bray, 139 F.3d 1104 at 1111-1112; United
States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir. 1987). While we acknowledge those cases,
we see no basis for departing from established Ohio precedent on the matter. The court erred by
allowing the “harms and losses” chart to go to the jury, and it compounded the error by failing to
give a limiting instruction.
IX. Prejudgment Interest
{¶59} Vasarhelyi and Koziy offer a ninth assignment of error relating to the imposition of
prejudgment interest. However, the errors we have found are sufficient for us to turn to the
tenth assigned error and the claim of cumulative error, rendering any ruling on prejudgment
interest moot. See App.R. 12(A)(1)(c).
X. Cumulative Error
{¶60} “Under the doctrine of cumulative error, ‘a conviction will be reversed when the
cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the
numerous instances of trial-court error does not individually constitute cause for reversal.’”
State v. McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 321, quoting State v.
Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. We apply the cumulative
error doctrine to civil cases. See, e.g., Edge v. Fairview Hosp., 8th Dist. Cuyahoga No. 95215,
2011-Ohio-2148, ¶ 46; O’Malley v. O’Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio-5238,
¶ 95; Dawson v. Cleveland Metro. Gen. Hosp., 8th Dist. Cuyahoga Nos. 51052 and 51779, 1986
Ohio App. LEXIS 9169 (Nov. 20, 1986). Other Ohio appellate districts also apply the
cumulative error doctrine to civil cases. See, e.g., Katz v. Enzer, 29 Ohio App. 3d 118, 124, 504
N.E.2d 427 (1st Dist.1985); Bigler v. Personal Serv. Ins. Co., 7th Dist. Belmont No. 12 BE 10,
2014-Ohio-1467, ¶ 175-176.
{¶61} Some Ohio appellate districts, however, do not apply the cumulative error doctrine
to civil cases. See, e.g., Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin No.
12AP-999, 2013-Ohio-5140, ¶ 124; Wolf v. Rothstein, 2016-Ohio-5441, 61 N.E.3d 1, ¶ 96 (2d
Dist.); J.P. v. T.H., 9th Dist. Lorain No. 14CA010715, 2016-Ohio-243, ¶ 35; Lambert v.
Wilkinson, 11th Dist. Ashtabula No. 2007-A-0032, 2008-Ohio-2915, ¶ 110. It bears noting,
however, that these districts are not emphatic in rejecting the cumulative error doctrine in the
civil context, couching the doctrine in terms of it not being “typically” or “generally” applicable.
See, e.g, Stanley, supra, at ¶ 124 (“the cumulative error doctrine is not typically employed in civil
cases”); Lambert, supra (“the cumulative error doctrine is generally not applicable in civil
cases.”).
{¶62} Two other appellate districts are agnostic. See, e.g., State, Dept. of Natural
Resources v. Mark L. Knapke Revocable Living Trust, 2015-Ohio-470, 28 N.E.3d 667, ¶ 57 (3d
Dist.) (assuming without finding that cumulative error applies in civil cases); McQueen v.
Goldey, 20 Ohio App. 3d 41, 50, 484 N.E.2d 712 (12th Dist.1984) (“Without addressing the
relative merits of the cumulative error concept, we conclude that even if we were to accept and
apply the concept to a civil case, the accumulation of harmless errors in the case at bar did not
constitute prejudicial error.”).
{¶63} The case on which some districts rely in refusing to apply the cumulative error
doctrine to civil cases appears to be Richlin v. Gooding Amusement Co., 113 Ohio App. 99, 170
N.E.2d 505 (8th Dist.1960), where we held:
An error committed by the court in its charge to the jury is either prejudicial or it
is not. There is no legal way to add up the separate effects of such claims so that
taken together they may be considered as affecting prejudicially the rights of a
contending party. Each claim of error must be considered as standing or falling
on its own facts unassociated with others on different subjects.
Id. at 103.
{¶64} The stated rationale of Richlin — that there is no legal way to add up the separate
effects of claims of error to determine whether together they prejudicially affect the rights of the
complaining party — is no longer viable. The Ohio Supreme Court applies the cumulative error
doctrine in criminal cases, proving that there is a basis for “adding up” the separate effects of
errors. See, e.g., Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 223 (“a
conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of
a fair trial even though each of the numerous instances of trial-court error does not individually
constitute cause for reversal.”); State v. DeMarco, 31 Ohio St. 3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus (“Although violations of the Rules of Evidence during trial,
singularly, may not rise to the level of prejudicial error, a conviction will be reversed where the
cumulative effect of the errors deprives a defendant of the constitutional right to a fair trial.”);
State v. Montgomery, 148 Ohio St. 3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 147. The ability
to weigh the cumulative impact of multiple trial errors is independent of whether the context is
criminal or civil. Richlin, and to the extent that other cases can be traced back to it, is no longer
persuasive. A 30-year, unbroken line of cases from this appellate district applying the
cumulative error doctrine to civil cases indicates that we long ago rejected Richlin as binding
authority on the matter. We hereby reaffirm that the cumulative error doctrine applies to civil
cases.
{¶65} In reviewing the assignments of error, we have identified several trial errors that,
standing alone, might not support reversal. Cumulatively, however, those errors are numerous
enough that we conclude that Vasarhelyi and Koziy did not receive a fair trial. We therefore
vacate the judgment and reverse and remand for a new trial.
XI. Conclusion
{¶66} The fourth, fifth, eighth, and tenth assignments of error are sustained. The second
and ninth assignments of error are moot. The remaining assignments of error are overruled.
{¶67} Judgment reversed and remanded.
It is ordered that appellants recover of appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the 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.
______________________________________________
MELODY J. STEWART, JUDGE
EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION);
KATHLEEN ANN KEOUGH, P.J., DISSENTS IN PART AND CONCURS IN JUDGMENT
ONLY IN PART (WITH SEPARATE OPINION)
EILEEN T. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:
{¶68} I concur in judgment only with the majority’s decision to vacate the judgment and
remand for a new trial based on its determination that appellants did not receive a fair trial.
However, I write separately to express my belief that appellants’ fourth assignment of error,
standing alone, supports reversal for a new trial.
{¶69} In this case, the trial court permitted counsel for Daniels to submit to the jury a
medical history report prepared by Jane Heron, R.N. As stated by the majority, however, the
medical history summary improperly contained annotations that expressed Heron’s personal
opinions and the various conclusions or inferences she made upon reviewing Daniels’s medical
records. Thus, the summary was not an accurate representation of Daniels’s medical records,
and the trial court erred by admitting the document under Evid.R. 1006.
{¶70} Furthermore, I cannot say the introduction of the medical history summary was
harmless. Given the competing theories of the parties in this case, the prejudicial impact of the
opinion-based commentary in the summary was significant. Without question, Daniels’s
medical history, including her previous interaction with belladonna alkaloids, was relevant to the
jury’s assessment of liability in this medical malpractice case. Because the summary was clearly
designed to support Daniels’s claims while simultaneously invoking sympathy, I am unable to
conclude that the erroneous admission of the summary “[did] not affect the substantial rights of
the complaining party.” O’Brien v. Angley, 63 Ohio St. 2d 159, 407 N.E.2d 490 (1980); Civ.R.
61.
{¶71} Accordingly, I would vacate the judgment exclusively on the grounds set forth in
the majority’s fourth assignment of error. I would further find that the remaining assignments of
error are moot. I recognize that the unaddressed challenges to the trial court’s evidentiary
rulings “may or may not be at issue [on remand].” Nance v. Akron City Hosp., 9th Dist. Summit
No. 20112, 2001 Ohio App. LEXIS 2278, 11 (May 23, 2001). However, I am equally cognizant
that those issues “may be resolved upon different arguments or supplemental evidence.” Id.
Therefore, the resolution of the remaining assignments of error would be advisory in nature, and
would not resolve a live controversy. See Ramadan v. Metrohealth Med. Ctr., 8th Dist.
Cuyahoga No. 93981, 2011-Ohio-67, ¶ 94, citing App.R. 12(A)(1)(c) (“As an appeals court,
however, we will not indulge in advisory opinions.”).
{¶72} I am sympathetic to the significant and permanent injuries sustained by Daniels in
this matter. To be clear, resolution of the assignments of error is predicated solely on legal
precedent, and should not be interpreted as a position on the merits of Daniels’s allegations.
Regardless of the facts before this court, however, protection of the fundamental and substantial
right to a fair trial is paramount. Accordingly, I would sustain appellants’ fourth assignment of
error, vacate the judgment of the common pleas court, and remand this case for a new trial.
KATHLEEN ANN KEOUGH, P.J., CONCURRING IN JUDGMENT ONLY IN PART;
DISSENTING IN PART:
{¶73} I disagree that it is unnecessary to address the defendants’ late disclosure of their
intent to use the video in the sixth assignment of error, and would find the late disclosure to be a
proper basis to exclude the newscast. If defendants had timely disclosed their intent to use the
video, Daniels could have called the “hero” doctor as a witness to point out how egregious
defendants’ errors were. Furthermore, defendants apparently engaged in a pattern of late
disclosure — their expert offered new opinions at trial without first disclosing those opinions to
Daniels.
{¶74} Nevertheless, I concur that the cumulative effect of the other errors warrants a
reversal and a new trial. Accordingly, I dissent in part and concur in judgment only in part.